Constitutional Law

Question 1

Federal Judicial Jurisdiction

Answer 1

Federal Judicial Power extends to cases involving:
(1) Interpretation of the Constitution, federal laws, treaties, and admiralty and maritime laws; AND
(2) Disputes between states, states and foreign citizens, and citizens of diverse citizenshi[.

Question 2

State Sovreign Immunity (11th Amendment)

Answer 2

The 11th Amendment is a jurisdictional bar that prohibits:
(1) The citizens of one state or a foreign country from suing another state in federal court for money damages or equitable relief; AND
(2) Suits in federal court against state officials for violating state law.

Question 3

Execeptions to the 11th Amendment Sovereign Immunity

Answer 3

1) **Consent: **a State may consent to a suit by waiving it’s 11th amendment protection.
2) Injunctive Relief: When a state official, rather than the state itself, is named as the defendant in an action brought in federal court, the state official may be enjoined from enforcing a state law that violates federal law or may compelled to act in accordance with federal law despite state law to the contrary.
3) Individual Damages:An action for damages against a state official is not prohibited so long as the official himself (not the state) will have to pay.
4) Congressional Authorization:Congress may abrogate state immunity from liability if it is clearly and expressly acting to enforce rights created by the 14th amendment.

Question 4

Justicability: Standing

Answer 4

A federal court cannot decide a case unless the plaintiff has standing. To have standing, a plaintiff bears the burden of establishing three elements:
(1) Injury in fact
(2) Causation
(3) Redressibility

Question 5

Standing Requirement 1: Injury in fact

Answer 5

The injury must be concrete and particularized (when a harm is concrete, though widely shared, there is standing). However, it does not have to be physical or economic. While the threat of future injury can suffice, it cannot be merely hypothetical or conjectural, it must be concrete.

Question 6

Standing Requirement 2: Causation

Answer 6

The injury must be fairly traceable to the challenged action (i.e. the defendant’s conduct caused the injury).

Question 7

Standing Requirement 3: Redressability

Answer 7

Redressability: It must be likely that a favorable court decision will redress an injury suffered by the plaintiff.

Question 8

3rd Party Standing

Answer 8

Generally, one cannot assert the constitutional rights of others to obtain standing, but a claimant with standing in her own right may also assert the right of a third party if:
(1) The 3rd party would experience difficulty or is unable to assert their own rights.
(2) There is a special relationship between the plaintiff and the 3rd party; OR
(3) The plaintiff’s injury adversely affects the plaintiff’s relationship with the third party

Question 9

Taxpayer Standing

Answer 9

Generally, a taxpayer does NOT have standing to file a federal lawsuit simply because the taxpayer believes the government has allocated funds in an improper way. However, a taxpayer has standing to litigate whether, or how, she owes on her tax bill. In addition, a taxpayer has standing when the taxpayer challenges government expenditures as violating the establishment clause.

Question 10

Organizational Standing

Answer 10

An organization may bring an action when it has suffered an injury. In addition, an organization may bring an action on behalf of its members (even if the organization itself has suffered an injury) if:
(1) Its members would have standing to sue in their own rights; AND
(2) The interests at stake are germane to the organizations purpose.

Question 11

Timeliness: Ripeness

Answer 11

Ripeness: Federal Court will NOT consider a claim before it has fully developed. For a case to be ripe for litigation, the plaintiff must have experienced a real injury or imminent threat thereof.

Question 12

Timeliness: Mootness

Answer 12

Mootness: A case has become moot if further legal proceedings would have no effect (i.e., there is no longer a controversy). A Live controversy must exist at each stage of review (not merely when the complaint is filed). There are three exceptions.

Question 13

Advisory Opinions

Answer 13

Federal courts may NOT render advisory opinions on the basis of an abstract or hypothetical dispute. An actual case or controversy must exist. However, courts may issue declaratory judgments (i.e. judgments that determine the legal effect of proposed conduct without awarding damages or injunctive relief) so long as the action in question poses a real and imminent danger to a party’s interest.

Question 14

Political Question

Answer 14

A federal court will NOT rule on a matter in controversy if the matter is a political question to be resolved by one or both of the other two branches of government. A **political question **not subject to judicial review arises when:
(1) The Constitution has assigned decision making on the matter to a different brach of government; OR
(2) The matter is inherently not one the judiciary can decide

Question 15

Powers of Congress: The Necessary and Proper Clause

Answer 15

Congress can exercise those powers enumerated in the constitution plus all auxillary powers necessary and proper to carry out all powers vested in the Federal Government. Thus, Congress has the power to make all laws necessary and proper for executing any power granted to any branch of the federal government.
REMEMBER: N&P Clause cannot alone support federal law – it must work in conjunction with another federal power.
**NOTE: ** If a fact pattern creates a scenario where congress passes a new law; you must discuss which enumerated power(s) gives them the ability to make that law (e.g., taxing power, spending power, commerce power).

Question 16

Taxing & Spending Power

Answer 16

Taxing Power: Congress has the power to tax, and most taxes will be upheld if:
(1) They bear some reasonable relationship to revenue production; OR
(2) Congress has the** power to regulate the activity** being taxed.

Spending Power: Congress may spend to provide for the “common defense and general welfare”. Spending may be for any public purpose.

Question 17

Commerce Power

Answer 17

Congress has the power to regulate all foreign and interstate commerce. To be within Congress’ power under the Commerce Clause, a federal law regulating interstate commerce must either regulate the:
(1)** Channels **of interstate commerce;
(2) Instrumentalities of interstate commerce and persons and things in interstate commerce; OR
(3) Activites that have a substantive effect on interstate commerce

Question 18

When the Court will uphold Congressional regulation of INTRAstate Commerce (third prong)

Answer 18

When Congress attempts to regulate intrastate activity under the third prong, the Court will uphold the regulation if:
(1) The regulation is of economic or commercial activity
(2) The court can conceive of a rational basis on which Congress could conclude that the activity in the aggregate substantially affects interstate commerce.

HOWEVER: If the regulated intrastate activity is noneconomic and noncommercial, the court will generally not aggregate the effects and the regulation will only be upheld if Congress can show a direct substantial economic effect on INTERstate commerce which it generally can’t do.

Question 19

13th, 14th, & 15th Amendment Enforcement Powers

Answer 19

Each of these amendments (ban on slavery, equal protection & due process, voting rights) contain a provision that authorizes Congress to pass “Appropriate legislation” to enforce the civil rights gauranteed by those Amendments.

Question 20

Delegation of Legislative Power

Answer 20

Legislative Power may generally be delegated to the executive or judicial branch provided that:
(1) Intelligible standards are set to guide the delegation; AND
(2) The power is NOT uniquely confined to Congress.(ie. power to declare war).

Question 21

Presidental Powers: Domestic

Answer 21

President has the power to:
(1) Reprieve or Pardon: federal offenses, except in cases of impeachment.
(2) Appoint: all officers of the United States (eg. ambassadors, Supreme Court Justices, etc.) with the advice and consent of the senate.
(3) Remove: Any executive apointee without cause and without Senate approval (except in case of federal judges, who can only be removed through impeachment).
(4) Veto: Any bill presented to them by Congress.

Question 22

Veto Power and Procedure:

Answer 22

Procedure: Upon presentment of a bill, the President has 10 days to act. If the president signs the bill, it becomes law. If the President does nothing, the bill becomes law without the President’s signature, so long as congress is still in session at the end of the 10-day period. If the President vetoes the bill by sending it back with objections, Congress may override the veto and enact the bill into law by a 2/3 vote.

**NOTE: NO Line-Item Veto **(President cannot veto part of a bill and sign the rest into law)

Question 23

Scope of Presidential Power

Answer 23

In order to determine whether the President’s actions are within the scope of his constitutional power, the court must consider the degree of congressional authorization the President is acting with:
(1) When the president is acting with express or implied authorization, presidential authority is at it’s highest and the action is strongly presumed to be valid.
(2) When Congress has not spoken, presidential authority is diminished and the action is invalid if it interferes with the operation of another branch of government.
(3) When Congress has spoken to the contrary, presidential authority is at its lowest and the action is likely invalid.

Question 24

Foreign Powers of the President

Answer 24

(1) Commander-in-chief: Although the president is the CIC of the military, only Congress can declare war. President may act without a declaration of war in the case of actual hostilities against the United States.
**(2) Treaties: ** The President has the exclusive power to negotiate treaties, although a treaty may only be ratified with the concurrence of two-thirds of the Senate.
(3) Executive Agreements: The President has the power to enter into executive agreements (e.g. trade agreements) with foreign nations without the approval of the Senate.

Question 25

Executive Privilege and Immunity

Answer 25

a) The President has a privilege to keep certain communications secret. National security secrets are given the greatest deference by the courts. In Criminal Proceedings, presidential communications will be available to the prosecution where a need for such information is demonstrated.
b) The President has absolute immunity from civil damages based on action taken within official responsibilities as President.
NOTE: No immunity for actions before taking office.

Question 26

Impeachment

Answer 26

The President, Vice President, and all civil officers of the United States are subject to impeachment. Grounds include treason, bribery, high crimes, and misdemeanors. A majority vote in the House is necessary invoke the charges of impeachment and two thirds vote in the senate is necessary to convict and remove from office.

Question 27

Exclusive State Powers: 10th Amendment

Answer 27

Reserved Powers: The 10th Amendment provides that all powers not assigned by the Constitution to the federal government are reserved to the States, or to the people.
Federal Regulation The Federal Government has virtually unlimited power to regulate the states. Generally, Congress may regulate the states so long as it is exercising an enumerated power. While Congress cannot command state legislatures to enach specific legistlation or administer federal regulatory programs, it may encourage state action through taxing and spending powers.

Question 28

Dormant Commerce Clause

Answer 28

If Congress has not enacted legislation in a particular area of interstate commerce, then the States are free to regulate, so long as the state or local action does NOT:
(1) **Discriminate **against out-of-state commerce
(2) Unduly burden interstate commerce; OR
(a) state law that discriminates against interstate commerce in a way that operates a tariff or trade barrier against out-of-state interests is subject to strict scrunity is virtually per-se unconstitutional
(b) a nondiscriminatory state law (i.e, the law applies equally to in-state and out-of-state participants) that imposes an incidental burdne on interstate commerce will be unconstitutional if the burden it imposes is clearly excessive in relation to the putative local benefits.
(3) Regulate wholly-out-of state activity

Question 29

Exceptions to Negative Commerce Clause:

Answer 29

Legislation that violates any of the DCC requirements is generally deemed unconstituional unless:
(1) The state is acting as a market participant rather than a market regulator
(2) The legislation favors state or local government entities that are performing a traditional government function; OR
(3) Congress explicitly permits the legislation

Question 30

Supremacy Clause and Preemption

Answer 30

The Supremacy Clause provides that federal law is the supreme law of the land and state law that directly or indirectly conflicts with federal law is void under the Supremacy Clause. Federal law can expressly or impliedly preempt state law.

Question 31

State Action Requirement

Answer 31

Generally, the Constitution protects against wrongful conduct by the government, not private parties. Thus, state action is required to trigger an individual’s constitutional protections. State Action may exist in cases of private parties when: A private person carries on activities traditionally performed by the State or there are sufficient mutual contacts between the conduct of a private party and the government.

Question 32

Due Process (5th and 14th Amendments)

Answer 32

The Due Process Clause of the 5th and 14th Amendment guarantees that no person shall be denied, life, liberty or property without due process of law. Thus, a fair process (e.g. notice and a hearing) is required for government agency to take person’s life, liberty, or property.

Question 33

Due Process Liberty

Answer 33

The term “liberty” includes more than just freedom from bodily restraints (eg. it includes the right to contract and engage in gainful employment). A deprivation of liberty occurs if a person:
(1) Loses significant freedom of action; OR
(2) Is denied freedom provided by the Constitution or a statute.

Question 34

Due Process Property

Answer 34

The term property includes more than personal belongings and realty. A deprivation of property occurs if a person has a** legitimate claim or entitlement** that is not fulfilled (e.g. continuted attendance at public school, welfare benefits, etc.)

Question 35

Three-Part Balancing Test for Procedural Due Process

Answer 35

The type and extent of procedural due process that is required is determined by a three-part balancing test that weighs:
1. The importance of the individual’s interest that is being affected; AND
2. The value of specific procedural safeguards to that interest; AGAINST
3. The **government interest **in fiscal and administrative efficiency

Question 36

Substantive Due Process Analysis

Answer 36

A government regulation that infringes upon a fundamental right is subject to strict scrutiny whle a regulation that does not infringe upon a fundamental right is subject to rational basis review.

Question 37

Strict Scrutiny

Answer 37

Strict Scrutiny: The **government **must prove that the regulation is the **least restrictive means **to achieve a compelling government interest.

Question 38

Rational Basis Review

Answer 38

The Challenger must prove that the regulation is NOT rationally related to any legitimate government interest (very difficult to prove)

Question 39

Fundamental Rights (Trigger Strict Scruntiny)

Answer 39

Some rights are so deeply rooted in our nation’s tradition and history that they are considered fundamental:
1. The right to interstate travel;
2. The right to marry;
3. The right of married persons to use contraceptives;
4. The right of adults to engage in non-commercial, consensual sex.
5. The right of parents to make decisions regarding the care, custody, and control of their children (including the right to privately educate a child outside the public school system.)
6. The right of related persons to live together in a single household.

Question 40

Equal Protection (14th Amendment)

Answer 40

The equal protection clause of the 14th amendment prohibits the government from denying citizens equal protection of the laws. When the government makes laws that classify people into groups, the constitutionality of the law will be evaluated according to the type of classification made (ie whether the group is suspect, quasi-suspect, or other classification.)

Question 41

Suspect Classifications (Trigger Strict Scrutiny)

Answer 41

Classifications are suspect if they are based on: race, ethnicity, national origin, or alienage(only if made by state law). Under Strict Scrutiny, the **government ** MUST PROVE that the regulation is the least restrictive means to achieve a compelling government interest

Question 42

Quasi-Suspect Classification (triggers intermediate scrutiny)

Answer 42

Classifications are **quasi-suspect **if they are based on gender, or legitmacy (non-marital children). Under intermediate scrutiny, the government MUST SHOW that the classification is substantially related to an important government interest.

Question 43

Governmental Intent

Answer 43

For Strict or **Intermediate Scrutiny **to apply, there MUST be INTENT on the part of the GOVERNMENT to discriminate. A discriminatory effect or disparate impact towards a group of people alone is NOT enough to show governmental intent. Governmental intent can be show by:
1. A law that is discriminatory on its face;
2. A discriminatory application of a facially neutral law
3. A discriminatory motive behind a facially neutral law

Question 44

Non-Suspect Classifications (Rational Basis)

Answer 44

For all other classifications (age, disability, and wealth classifications) the rational basis standard applies. Under Rational Basis, the Challenger must prove that the regulation is NOT rationally related to any ** legitimate** government interest

Question 45

Due Process vs. Equal Protection

Answer 45

If a law limits liberty of ALL persons to engage in some activity it is usually a DUE PROCESS issue, if the law treats a** person or class of person** differently from others, it is usually an EQUAL PROTECTION issue.

Question 46

Affirmative Action

Answer 46

States may implement regulations to remedy past discrimination if the class has actually suffered persistent and readily identifiable past discrimination. A race-based plan cannot be used to remedy general past “soceital discrimination.” The level of scrutiny applied to the regulation depends on the classification.

Question 47

Takings Clause (Eminent Domain 5th Amendment)

Answer 47

The power of the government to take private property for public purpose is known as “eminent domain.” The takings clause of the 5th amendment acts as a check on this power. It provides that:
1. Private Property may be taken;
2. For Public Use;
(a) The government can take private property and transfer it to another private party. To challenge this, challenger must show taking not rationally related to any conceivable public purpose (very hard).
3. With Just Compensation.
(a) Just Compensation =Fair Market Value

Question 48

Regulatory Takings

Answer 48

Generally, a governmental regulation that adversely affects a person’s property interest is** NOT** a taking. The Penn Central factors are considered to determine if a taking by regulation has occurred:
(1) Economic impact of the regulation on the property owner;
(2) The extent to which the regulation interferes with the owner’s reasonable investment backed expectations regarding use of the property; AND
(3) The character of the regulation

Question 49

Per Se Takings (regulatory takings)

Answer 49

A governmental regulation clearly results in a taking when the regulation results in:
(1) Permanent physical occupation of the property (e.g. a law requiring a landlord to permit a cable company to permanently install equipment on their land); OR
(2) Permanent total loss of the property’s economic value (Dramatic Decline in value is not enough must be pretty much unsalvageable.)

Question 50

Exaction as takings

Answer 50

A local government may exact promises from a developer (e.g. setting aside a portion of the land being developed for public use in exchange for issuing the necessary construction permits) without violating the takings clause if:
(1) an essential nexus between legitimate state interests and the conditions imposed on the property owner; AND
(2) a rough proportionality between the burden imposed by the conditions on the property owner and the impact of the proposed development.

Question 51

Privileges and Immunities Clause

Answer 51

Prohibits one state from discriminating against the citizens of another state (does not apply to corporations or aliens). Out-of-state citizens are protected from discriminatio with respect to any fundamental rights or essential activities (i.e. pursuit of employment, transfer of property, engaging in the political process)

Question 52

When states can discriminate against out-of-state citizens (against P&E clause)

Answer 52

When the state can show a substantial reason for the difference in treatment. A substantial reason exists if
(1) the out of state citizens either cause or are part of the problem the state is attempting to solve; AND
(2) there are no less restrictive means

Question 53

Contracts Clause

Answer 53

Contracts clause limits the ability of states to enact laws that retroactively impair contract rights. No comparable clause applicable to the federal government.

State legislation that substantially impairs an existing private contract is invalid unless it passes intermediate scrutiny (must further important government interest by means that are substantially related to that interest.)

State legistlation that substantially impairs an existing public contract is invalid unless it passes strict scrutiny.

Question 54

Ex Post Facto Laws

Answer 54

The state or federal government may not pass an ex-post facto law. AKA cannot retroactively alter criminal offenses or punishments in a substantially prejudicial manner.
(1) Cannot make criminal an act that was innocent when done.;
(2) Prescribes greater punishment for an act than was prescribed when it was done;
(3) Reduces the evidence required to convict a person of a crime than was required when the act was done.

Question 55

Bills of Attainder

Answer 55

Legislative acts that inflict punishment on individuals without a judicial trial.

Question 56

1st Amenment Scope of Speech

Answer 56

The Freedom to Speak also includes the freedom not to speak. Thus the government cannot force you to salute the flag or display other messages with which you disagree.

Question 57

Restriction of Symbolic Speech

Answer 57

The freedom to speech generally extends to symbolic acts undertaken to communicate an idea. The government however may regulate this conduct if:
(1) The Government has an important interest independent of the suppression of speech; AND;
(2) The incidental burden on speech is no greater than necessary to further that interest.

Question 58

Ovebreadth and Vagueness

Answer 58

Overbreadth Doctrine:If a regulation of speech or speech-related conduct punishes a substantial amount of protected speech in relation to its plainly legitimate sweep, the regulation is facially invalid.

Void for Vagueness Doctrine: A statute or regulation is void for vagueness IF it does not put the public on reasonable notice as to what is prohibited.

Question 59

Prior Restraints

Answer 59

A prior restraint is a regulation on speech before its expression. Generally presumed to be unconstituional unless:
(1) There is a particular harm to be avoided (ie preventing newspaper from publishing troop movements).
(2) Procedural Safeguards are provided to the speaker (e.g. the standards must be narrowly drawn, reasonable, and definite).

Question 60

Content-Based Speech Regulation

Answer 60

Speech regulations that forbid communciation of specific ideas are content based.
It is presumptively unconstituional to place burdens on speech because of its content, except for certain categories of unprotected speech (e.g., obscenity, defamation etc.). However, content-neutral speech regulations are subject to intermediate scrutiny:
(1) Advance important interest unrelated to the suppression of speech; AND
(2) Not Burden substantially more speech than necessary (i.e., narrowly tailored) to further those interests.

Question 61

Conduct-Based Restrictions (Time, place, manner)

Answer 61

Conduct related to speech can be regulated by content-neutral time place and manner restrictions. The breadth of this power depends on whether the forum involved is a public forum, designated public forum, a limited public forum, or nonpublic forum.

Question 62

Public Forums and Designated Public Forums

Answer 62

Public property that has historically been open to speech-related activity is called a public forum(e.g. streets, sidewalks, and public parks).

Public property that has NOT historically been open for speech but which the government has made open for such activities on a regualr basis by practice or policy is called a designated public forum (e.g., schoolrooms open for after-school use)

Government can regulate with restrictions that are:
(1) Content-Neutral;
(2) Are Narrowly Tailored to serve an important government interest; AND
(3) Leave open Alternative channels of communication

Question 63

T,P,M Restrictions on Non-Public Forums or Lmited Public Forums

Answer 63

**Limited Public Forum **= NOT historically linked with speech and assembly but has been opened for specific speech activity (e.g., school gym opened to host a debate on a specific community issue).

Non-Public Forum = NOt historically linked with speech and NOT opened for specific speech actitvity.

Can regulate as long as regulations are:
(1) Viewpoint Neutral; AND
(2) Reasonably related to a legitimate government purpose.

Question 64

Unprotected Speech

Answer 64

1. Inciting imminent lawless action;
2. Fighting words;
3. Obscenity;
4. Defamatory Speech; AND
5. Some Commercial speech

Question 65

Inciting imminent lawless action

Answer 65

Speech can be restricted if it creates a clear and present danger of imminent lawless action. Must show that:
(1) Imminent illegal conduct is likely; AND
(2) The speaker intended to cause it.

Question 66

Fighting Words

Answer 66

a) True threats are NOT protected by the 1st amendment
b) Speech can also be limited if it constitutes fighting words. Fighting words are personally abusive words likely to incite immediately physcial retaliation in an average person
c) Supreme Court will NOT tolerate fighting words statutes that designed to punish only certain viewpoints.

Question 67

Obscenity

Answer 67

Obscenity is NOT Protected. Speech is obscene if it describes or depicts sexual conduct that, taken as a whole, by the average person:
(1) Appeals to the prurient interest in sex, using a community standard;
(2) is patently offensive; AND
(3) Lacks serious literary, artistic, political, or scientific value, using a national reasonable person standard

Question 68

Commercial Speech

Answer 68

Commercial speech that proposes unlawful activity or that is false, misleading, or fraudulent may be restircted. Any other restriction will only be upheld if it:
(1) Serves a substantial government interest;
(2)** Directly advances** that interest; AND
(3) Is narrowly tailored to serve that interest

Question 69

Freedom of Association Clause

Answer 69

Freedom of association protects the rights to form or participate in any group, gathering, club, or organiziation without government interference. However the government may infringe upon this right if they satisfy strict scrutiny.
A person may only be punished or deprived of public employment based on association if that individual is:
(a) An active member of a subversive organization;
(b) Has knowledge of the organizations illegal activity; AND
(c) Has a specific intent to further those illegal objectives.

Question 70

Free Exercise Clause

Answer 70

Prohibits the government from punishing someone on the basis of their religious beliefs, or interfering with their exercise of religion.

Question 71

Establishment Clause

Answer 71

Compels the government to pursue a course of neutrality toward religion. Government action challenged under the Establishment clause will be found invalid, unless the action:
(1) Has a secular purpose;
(2) Has a primary effect that neither advances nor inhibits religion; AND
(3) Does NOT produce excessive government entanglement with religion.