Constitutional Law

Question 1

Strict Scrutiny

Answer 1

-Law will be upheld if necessary to achieve a compelling govt interest

-Triggered for Fundamental rights (Privacy, Vote, Travel) & Suspect class (Race, National Origin, Alienage [If state discriminating gets strict scrutiny, unless dealing with impt govt function then gets rational basis])

-Gov’t has burden & must show there are no less restrictive or burdensome means of achieving goal.

Question 2

Intermediate Scrutiny

Answer 2

-Law will be upheld if it substantially related to an important govt interest

-Triggered for Quasi-Suspect Classifications: Gender & Legitimacy

-Gov’t has burden

Question 3

Rational Basis

Answer 3

-Law will be upheld as long as it is rationally related to a legitimate gov purpose.

-Alienage [if Congress is discriminating, get Rational Basis] & all other classifications: Age Disability, Poverty, Economic

-Challenger has burden (law will almost always be upheld under rational basis)

Question 4

Public Forum

Answer 4

-streets, parks, sidewalks, places historically open to speech-related activity

-Can be regulated by time, place, and manner regulations that are 1) content neutral, 2) narrowly tailored to serve an important govt interest, and 3) leave open alternative channels of communication.

Question 5

Designated Public Forum

Answer 5

-property that although not historically open to speech-related activity, has been made available by the govt for such activity.

-can be regulated by time, place, and manner regulations that are 1) content neutral, 2) narrowly tailored to serve an important govt interest, and 3) leave open alternative avenues of communication

Question 6

Limited Public Forum

Answer 6

-gov’t property that is open for speech or speech-related activity on a particular topic

-tets is whether the regulation is 1) viewpoint neutral and 2) reasonably related to a legitimate govt purpose

Question 7

Non-Public Forum

Answer 7

-subject to weak Rational Basis review: as long as restriction is 1) viewpoint neutral and 2) serves a rational basis, then restrictions on non-public forum will be upheld.

Question 8

What is required to have constitutional standing?

Answer 8

Imminent or Actual injury, Causation, Redressibility.

No Third Party standing EXCEPT: close relationship, injured 3rd party unlikely to assert his own rights.

Question 9

What does the 11A State Sovereign Immunity mean?

Answer 9

11A prohibits a party from suing a state or state agency in federal court. States are immune from lawsuits in federal court. (Cannot sue state of IL in federal court for damages occurred when state police negligently raided his store)

[in analysis, go through each exception for state & for officials]

EXCEPTIONS to state sovereign immunity: States can be sued in federal court when:
1) When state/state official explicitly consents to waive immunity
2) For lawsuits pertaining to federal laws, only laws adopted specifically under Section 5 of 14A. (Ex: lawsuit against a state claiming that the states medical leave restrictions discriminate against female employees & violates the Family & Medical Leave Act would not be barred by 11A.) Federal law overriding state sovereign immunity is called abrogation. Congress can abrogate the 11A pursuant to the 14A but cannot abrogate the 11A pursuant to the commerce clause.
3) Lawsuits that seek injunctive relief from a state official. Can be when plaintiff is seeking to stop the state official from enforcing the statute-relief in form of stopping an action is injunctive relief. (ex: James a farmer can sue the Secretary of Agriculture to prevent the enforcement of a new law requiring extensive reporting requirement for state farmers.)
4) Lawsuits seeking money damages from a state official. In order for this exception to apply, the plaintiff must be claiming that the state official is personally liable for their financial losses or under a theory of respondeat superior or vicarious liability. (ex: store owner wanted monetary relief from state of IL for damage done to his store. That suit was barred by sovereign immunity. But, if he instead sued the chief of police who is leading the raid of David’s store)

11A does NOT apply to:
1) local govt’s (if store raided by Schaumburg police, can sue city of Schaumburg/Schaumburg police)
2) state v state
3) lawsuit by federal govt against state (US v Virginia)

Question 10

Adequate & Independent State Grounds Doctrine

Answer 10

Supreme Court can review a decision from a state court only when:
1) Final judgment (& decrees) from state court
2) Judgment came from highest state court
3) Had to pose a substantial federal question being raised
4) Decision by state court did NOT rest on adequate and independent state grounds

A ground is adequate if it is completely dispositive of the case. It is independent if it does not rely on federal law.

If the state supreme court based its decision entirely on the state constitution without addressing the federal constitutional issue then the SC cannot review that judgment.

The SC will not hear an appeal from a state court decision that is supported by adequate & independent state grounds. If it is unclear whether a decision rests on independent & adequate state grounds, SC can hear the federal issue and then remand the state issue back to the state courts.

Also when dealing with the “final judgment from highest state court” part, a judgment will qualify as final if the judgment settled that issue & that issue would not arise again on re-trial so the petition to the SC is the only opportunity to review that issue.

Question 11

Congress’ Taxing & Spending Power

Answer 11

Analysis: Is Congress getting money or withholding spent money?

Gives Congress power to lay and collect taxes, duties, imposts and excises to pay the debts and provide for the Common Defense & General welfare for the U.S.

Duty: tax on import/export
Impost: tax or similar compulsory payment
Excise: tax on certain goods and commodities produced or sold domestically and on licenses for certain activities.

Under the law, taxes must be geographically uniform across the US. While the fed gov’t can tax different goods & services at different rates, it cannot tax goods, services or people differently based on their location. 16A gives Congress power to collect taxes on income from any source → federal tax rate will be the same no matter where you live.

Congress can spend only for 1) Common Defense (includes protecting against terrorism) or 2) General Welfare. Congress may attach restrictions on states receiving federal funds (incentivizing states through the power of its purse), but Congress must satisfy the following:
1) Spending must be for the general welfare
2) Condition must be clear and imposed unambiguously
3) Condition must be related to the federal interest in national projects or programs
4) Condition cannot induce unconstitutional activity
5) Condition cannot be so coercive as to turn pressure into compulsion.
-look for real coercion

When Congress is taxing & spending, it is subject to a very weak Rational Basis standard of review. As long as there is some legit purpose behind the law, its ok.

A tax can be used to achieve a regulatory purpose as long as the tax is reasonably related to raising revenue (low burden)

Question 12

Can the President Impound funds whose expenditure Congress has expressly mandated?

Answer 12

No. President has no power to decline to spend funds specifically appropriated by Congress when Congress has expressly mandated that they be spent, regardless of Congress’s reason for making the appropriation.

There is no constitutional basis for the President to “impound” (refuse to spend) funds whose expenditure Congress has expressly mandated.

President has no “legislative” power in internal affairs.

Congress has power to spend to “provide for common defense and general welfare.”

Question 13

Entering into Treaties

Answer 13

Constitution only requires that President obtain advice and consent of Senate to enter into treaties

Question 14

Can the President void a treaty?

Answer 14

Yes, under the foreign policy powers of the President. The power to enter treaties is vested in the President and his power to act for the U.S. in day-to-day foreign affairs is paramount.

Question 15

State legislation

Answer 15

States may regulate local aspects of interstate commerce as long as Congress has not:
1) adopted regulations concerning the subject matter or
2) preempted the entire area of regulation.

Even absent federal legislation, under the Dormant Commerce Clause, the state regulation must not discriminate against interstate commerce or unduly burden it.

Question 16

Privileges and Immunities Clause in Article IV

Answer 16

Prohibits discrimination by states against nonresidents for economic interests.

Discrimination has to:
1) Concern either important commercial activities (like pursuit of livelihood) OR fundamental rights. AND
2) Discrimination is intentionally protectionist in nature

If the state law does burden an impt commercial activity or fundamental right, it will be invalid unless the law is:
1) necessary to achieve an important govt interest, and
2) there are no less restrictive means available

REMEMBER: always consider both Article IV Privileges and Immunities Clause & Dormant Commerce Clause bc they mutually reinforce each other, even if they apply diff. standards & produce diff results.

Question 17

Privileges or Immunities Clause of 14A

Answer 17

Prohibits states from denying their citizens the privileges or immunities of national citizenship, including the right to interstate travel.

REMEMBER: “or” = our own citizens

The right to travel includes the right of newly arrived citizens of a state to enjoy the same privileges and immunities as are enjoyed by other citizens of the state.

-One year residency requirements to: receive full welfare benefits, receive state-subsidized medical care, to vote in state are all invalid.
-30 day residency to vote in state is OK

Question 18

Market Participant Exception

Answer 18

Under this exception, a state or local gov’t may discriminate against out of state commerce if it acting as a market participant rather than solely a regulator of economic activity.

A state may favor its own citizens regarding state programs, state businesses, or when it is the entity buying or selling goods.

market participant ex: buying or selling products, hiring labor, giving subsidies

Question 19

Taking - Decreasing Value

Answer 19

If a gov’t regulation denies a landowner all economic use of his land, the regulation generally will constitute a “taking” requiring the payment of “just compensation” under the 5A.

However, regulations that merely decrease the value of property do not necessarily result in a taking as long as there remains an economically viable use for the property.

Court will consider (i) the social goals sought to be promoted, (ii) the diminution in value to the owner, and (iii) whether the regulation substantially interferes with the distinct, investment-backed objectives.

Question 20

State Action

Answer 20

With one exception, only the federal or state gov’t can violate your constitutional rights. If a private citizen or company is discriminating, it will usually not violate anyone’s constitutional rights. Remedy will be a statutory remedy like civil rights statute.

EXCEPTION: 13A prohibition against involuntary servitude. Applies not just to gov’t but everyone including private citizens.

14A Due Process Clause, which makes many of the provisions of the Bill of Rights applicable to the states, does not apply to purely private conduct that interferes with these rights.

Unless the private individual (1) was performing exclusively public functions, OR (2) took actions with significant state involvement, the individual’s action is not unconstitutional.

Only if the state is 1) significantly involved in the constitutional deprivation OR 2) is performing a traditional state function, then state action.

If state is only incidentally involved, then probably no state action & no constitutional violation. Ex: state grants land as a one-time donation to private individual who discriminates based on national origin.

Question 21

13A

Answer 21

13A provides that neither slavery nor involuntary servitude shall exist within the US and gives Congress the power to adopt appropriate legislation to enforce the proscription.

Since the amendment is not limited to state action, Congress may adopt legislation regulating private parties. Under the 13A, SC has allowed Congress to prohibit any private conduct that Congress deems to be a “badge” or “incident” of slavery, and has upheld statutes regulating private contracts.

Question 22

Property Interest in Job

Answer 22

A public employee who is subject to removal only for “cause” has a property interest in his job and:
1) must be given notice of the charges against him that are to be the basis for his job termination, and
2) a determination opportunity to respond to those charges.

Question 23

Triggering Strict Scrutitny

Answer 23

The mere fact that legislation or governmental action has a discriminatory effect is not sufficient to trigger strict scrutiny.

There must be intent to discriminate on the part of the gov’t, which can be shown by:
1) the discriminatory application of a law or
2) regulation that appears neutral on its face

Question 24

Commercial Speech

Answer 24

Court will first ask whether the speech is about a 1) lawful activity, 2) is truthful and 3) not misleading. If these conditions are not satisfied → speech has no protection.

If the speech regulated concerns a lawful activity and is not misleading or fraudulent, the regulation will be valid only if it
1) serves a substantial govt interest,
2) directly advances the interest and
3) is narrowly tailored to serve the substantial interest.
While the test does not require the least restrictive means to be used, there must be a reasonable fit b/w the legislation’s end and the means chosen.

Question 25

Establishment Clause

Answer 25

1A prohibits laws respecting the establishment of religion.

Govt action will pass muster under the Establishment Clause if it is neutral with regard to religion.

Establishment clause issues arise when gov’t is favoring, endorsing or discriminating against a particular faith.
-Gov’t cannot sponsor religion (aid or formally establish religion)
-Gov’t cannot directly or indirectly coerce individuals to exercise or refrain from exercising with respect to religion

If it is not neutral, it will be evaluated based on historical practice and whether the Founding Fathers would have considered it acceptable. A questionable action will be upheld if it is supported by history & tradition.

Question 26

15A

Answer 26

The right to vote shall not be abridged on the basis of race or color

Enabling clause of 15A allows Congress to adopt legislation protecting the right to vote from discrimination.

Question 27

Freedom of Association

Answer 27

Freedom of association under the 1A:
A state cannot inquire about an applicant’s associations for the purpose of withholding a right or benefit due to the individual’s beliefs.

Right to freedom of association covers organized and professional orgs such as political parties, trade unions, public associations etc.

Question 28

Free Exercise Clause Violation

Answer 28

To establish a violation of the Free Exercise Clause, the challenger must show that the govt’s intent was to target religion. When such intent is established, courts will use strict scrutiny over the gov’t action, which often invalidates the restriction in question

Question 29

Appointments Clause of the Constitution

Answer 29

1) President’s power to nominate principal officers
(a provision limiting Presidents options to a list of 3 nominees would violate this power)
2) Senate must be able to consent to the appointment of a principal officer
(provision that has an automatic 30 day confirmation provision violates this requirement)

Question 30

Ex Post Facto Law

Answer 30

States cannot pass ex post facto laws.

Cannot punish conduct that occurred before the law became effective

Question 31

President’s Foreign Affairs Powers

Answer 31

President as: Commander-in-Chief, Treaty-making authority, Right to appoint ambassadors

Generally, President holds a special role in implementing U.S. foreign policy. SCOTUS has held that the President alone has the authority to represent the U.S. in foreign affairs

Question 32

President’s Power to Direct Actions of Federal Executive Agencies

Answer 32

President has the authority to direct the actions of federal executive agencies, so long as the President’s directives are not inconsistent with an act of Congress.

The President does not have the authority to direct actions of persons outside the executive branch unless the President’s direction is authorized by an act of Congress.

Question 33

Congress’ Broad Power to Restrict SCOTUS Appellate Jrdx

Answer 33

Congress has full power to regulate and limit the Supreme Court’s appellate jurisdiction. However, Congress does not have unlimited power to tamper with the Court’s appellate jrdx. Certain guidelines have been suggested:

-Congress may eliminate specific avenues for SC review as long as it does not eliminate all areas
-Congress may eliminate SC review of certain cases within federal judicial power, but it must permit jrdx to remain in some lower federal court, and
-If Congress were to deny all S.C. review of an alleged violation of constitutional rights, or even deny a hearing before any federal judge on such a claim, this would violate due process of law

Question 34

5A Taking

Answer 34

5A applies ONLY to federal govt, NOT the states (would be applied to states through the 14A due process clause)

Under the Taking’s Clause of the 5A, the gov’t may take private property for public use if it provides just compensation.

A taking is deemed for public use as long as there is a reasonable belief that it would benefit the public. Just compensation is measured by the fair market value of the property at the time of the taking.

Public use: infrastructure & services, public schools, public utilities, parks & transit operations.

2 Types of Takings:
1) Possessory Taking: when govt physically takes it & occupies the property

2) Regulatory Taking:
A) Total taking- occurs when regulation leaves the landowner with no economically beneficial use of their property.
B) Partial taking - property owner is left with some economically viable uses of its property following application of its regulation.

Scope of governmental taking includes: physical appropriations of property, and also any governmental action that significantly damages property or impairs its use.

Municipalities often attempt to condition building or development permits on a landowner’s (1) conveying title to part, or all, of the property to the govt OR (2) granting the public access to the property. Such exactions constitute an uncompensated taking unless: the govt can show that the condition relates to a legit govt interest (nexus) AND 2) there is a rough proportionality b/w the size of the give-back demanded by the city and the burden on the public caused by the proposed development

Question 35

Procedural Due Process & Termination of Public Employment

Answer 35

Public employees have a right to receive notice of their termination AND a PRE-termination hearing with an opportunity to respond.

Otherwise, employees procedural due process rights will be violated bc of the deprivation of their property interest in continued public employment.

State employment is considered an important enough property right to require a pre-dismissal hearing, and typically a post-dismissal hearing is only constitutionally acceptable when a pre-termination hearing would be considered highly impracticable.

Question 36

Dormant Commerce Clause

Answer 36

Under the Dormant Commerce Clause, state and local government’s cannot pass laws that discriminate against out of state commerce or place an undue burden on interstate commerce.

A state regulation violates the Dormant Commerce Clause if the regulation:
1) discriminates against out of state commerce/competition
2) unduly burdens interstate commerce OR
3) regulates wholly out of state activity

When Does a State Regulation Discriminate Against Out of State Competition?
-It discriminates when it promotes the economic interest of its own residents at the expense of out of staters. ex: Imposing requirements on out-of-state companies but not in state companies

**If dealing with Dormant Commerce Clause on exam, also likely dealing with Privileges & Immunities, Substantive Due Process & Equal Protection

Question 37

Dormant Commerce Clause Analysis

Answer 37

Under the Dormant Commerce Clause, state and local government’s cannot pass laws that discriminate against out of state commerce or place an undue burden on interstate commerce.

Analysis: Ask is it discriminatory, if not then go to non-discriminatory analysis.

DISCRIMINATORY REGULATIONS:

A law is deemed discriminatory when it is either a) facially discriminatory OR b) has a discriminatory impact bc it favors in-state commerce v out of state commerce.

DISCRIMINATORY RULE: Absent federal authorization, State and local laws that discriminate against out-of-state commerce are unconstitutional unless the burden on interstate commerce is narrowly tailored to achieve a legitimate non-protectionist state objective. For a law to be narrowly tailored, there must be no less discriminatory alternatives available.

NONDISCRIMINATORY REGULATIONS:

Balancing Test: When a state regulation does not discriminate, but merely burdens interstate commerce, it will be valid unless the burden outweighs the promotion of a legitimate local interest. Courts will consider whether less restrictive alternatives are available.
The balancing test is appropriate ONLY if Congress has not enacted a statute authorizing the state regulation at issue.

[ask: is the burden excessive in relation to the law’s purported local benefits?]

Question 38

Dormant Commerce Clause: When are Regulations that Discriminate Against Outsiders Valid?

Answer 38

Regulations can be held valid if:

1) the regulation is necessary to achieve an important gov’t interest AND there is no reasonable non-discriminatory alternative.

2) the state is a market participant

3) the regulations involves traditional gov’t functions (like trash collection)

4) if Congress has expressly authorized regulation, through a statute authorizing the state regulation at issue

Question 39

Free Exercise Clause

Answer 39

FEC prohibits the gov’t from outlawing or preventing the exercise of religious beliefs

FEC prohibits the gov’t from punishing someone (which includes denying a benefit) on the basis of the person’s religious beliefs.

However, the SC has held that the prohibition applies only to gov’t conduct that targets conduct specifically bc it is religiously motivated.

A generally applicable, religiously neutral regulation that incidentally burdens religious conduct is valid, and the gov’t need not include an exemption for religiously motivated instances of the regulated conduct.

To establish a violation of the Free Exercise Clause, the challenger must show that the govt’s intent was to target religion

Question 40

Laws that intentionally target religious beliefs are subject to what level of scrutiny?

Answer 40

Strict scrutiny

Question 41

Laws that only incidentally impact religion are subject to what scrutiny?

Answer 41

Rational Basis review

Question 42

Establishment Clause

Answer 42

Establishment clause prohibits the gov’t from endorsing or supporting a particular religion

Question 43

Laws promoting a particular religion are subject to what level of scrutiny?

Answer 43

Strict scrutiny

Question 44

Necessary & Proper Clause

Answer 44

Gives Congress the power to enact legislation necessary to carry out its enumerated powers.

**NOT an independent source of power, only to be used with an express congressional power. Never pick this as a free-standing power of Congress

Question 45

Commerce Clause

Answer 45

Commerce Clause grants Congress the authority to regulate 2 broad categories: interstate commerce and intrastate commerce.

1) Interstate Commerce → allows Congress to regulate the channels, instrumentalities, or articles moving in interstate commerce and any activities that substantially affect interstate commerce
and
[remember: C.I.A.A.]
2) Intrastate Commerce → Intrastate commerce allows Congress to regulate: A) economic activities that substantially affect commercial activity in the aggregate. AND
B) Non-economic activities that substantially & directly affect commercial activity (higher burden)

Commerce Clause Analysis
1) Who passed the law? → If Congress, then Commerce Clause. If State, then Dormant Commerce Clause)

2) If Congress, does it fall within commerce clause power? a) channels of interstate commerce b) instrumentalities of interstate commerce or c) activities that have a substantial affect on interstate commerce?
-If category c) activities that have a substantial affect on interstate commerce, need to ask whether the activity is directly economic in nature? Where is activity taking place? Is Congress regulating activity or trying to compel activity in the face of inactivity?

Question 46

How can Congress enact laws?

Answer 46

Bicameralism + Presentment

Requires passage of law in both the house & the senate (bicameralism) and approval of the law by the President (Presentment Requirement) or an override of a presidential veto. (Congress can override a veto by passing the act by a two-thirds vote in both the House and the Senate.)

Question 47

Main Powers of President?

Answer 47

DOMESTIC POWERS
1) Enforcement of Laws

2) Commander in Chief

3) Appointment Powers → President can appoint high level officers w/ advice & consent of senate
-Appoint heads of federal agencies, aka President’s cabinet: Secretary of Agriculture, Transportation, Homeland Security, Education

4) Removal Powers → President can remove high level executive appointees without cause. Congress shall NOT play any roles in removal of executive officers. President can remove without the consent of the Senate.
Exception: President must show cause to remove either an officer performing a judicial or quasi-judicial role OR officers appointed for a statutory specified duration.

5) Pardon Powers → Pardon federal crimes. Has to be federally related. Generally, pardon power is an unqualified power (except as to impeachment). President cannot pardon state offenders, that’s what the state governor does.
-A federal official who has already been impeached by Congress (accused by House & convicted by Senate) aka thrown out of office by impeachment, no presidential pardon is available.
-But, President can pardon a federal official who has been indicted by a federal grand jury & left the ocuntry
-President can issue blanket pardons

6) Power to Veto→ President has power to veto any law passed by both houses within 10 days of receiving it. If the president does not veto within 10 days, bill automatically becomes law
-Pocket Veto → Congress adjourns during 10 day period & President fails to act. Here, bill will not automatically become law.

FOREIGN AFFAIRS POWERS
1) Negotiate treaties with Senate approval

2) Enter into executive agreements (without senate approval)

3) Control & deploy U.S. troops in foreign countries

Question 48

Violation of Separation of Powers?

Answer 48

Congress cannot usurp the power of the executive branch to execute laws by placing it in the hands of Congress. This violates the separation of powers & is an unconstitutional legislative interference.

Look for: instances where Congress passes a law & President signed it, but then Congress sought further control by requiring expenditures to be approved specifically by Congress w/o presentment to the President.

Question 49

Does Congress have federal police power to promote the general welfare of the states?

Answer 49

No. Only states have police power

Question 50

Article III gives Congress explicit power to?

Answer 50

Article III explicitly allows Congress to make exceptions to the Supreme Court’s appellate jurisdiction without qualification.

Question 51

Separation of Powers Doctrine

Answer 51

Series of checks and balances among the three branches of gov’t

Question 52

Fundamental Privacy Rights

Answer 52

Include:
1) Marriage (or the right to marry)

2) Procreation (the right to be free in dealing with issues of procreation)

3) Private education (or the right to privately educate your child)

4) Family Relations → rights of parents to the companionship, care, custody, and control of their children.

5) Sexual contact (or the right of fully consenting adults to engage in private, intimate sexual conduct that is not commercial in nature)

Question 53

Obscentity

Answer 53

SC has defined obscentiy as:
**A description or depiction of sexual conduct that, taken as a whole by the average person, applying contemporary community standards:*

1) Appeals to the prurient interest in sex
2) Portrays sex in a patently offensive way, and
3) Using a national standard, does not have serious literary, political, or scientific value.

Not obscenity: video showing pictures of nude sunbathers, with no depiction of sexual conduct does not fall within definition of obscentiy

Question 54

10A

Answer 54

10A prohibits the federal gov’t from adopting a statute that compels the states to enact or enforce a regulatory program. Under our system of federalism, the federal gov’t cannot order state govt’s to adopt particular laws.

Question 55

Contract Clause

Answer 55

Contract Clause limits the ability of states to enact laws that retroactively impair contract rights.
-does not apply to federal laws, ONLY state law.

Cannot retroactively invalidate already existing contracts unless the govt act serves an impt govt interest & is narrowly tailored to serve that interest.

If question is asking for State’s best argument → defer to 10A which will trump contracts clause. State will argue they are protecting their state citizens

Question 56

Hierarchy of US Law

Answer 56

Constitution > Treaties & Federal law > Executive Agreements > State law

Question 57

Legislation to Monitor Federal Agencies

Answer 57

Under Article I, Congress may invoke its lawmaking powers to establish federal agencies, offices within those agencies, agency structures and operation. it may also require, subject to constitutional limitations, the appointment and removal of officeholders within those agencies. Congress may determine which powers, duties, and functions the agencies may exercise, in addition to directly opposing, through implementing legislation, certain actions by agencies acting pursuant to their authority.

Legislation is typically required for Congress to monitor federal agencies, including when it seeks to control structures, funding, and regulations. This legislative action must abide by bicameral constitutional requirements, meaning it must be 1) approved by both houses of Congress and 2) presented to the President for either signature or veto.

When Congress seeks to exercise legislative veto power in furtherance of controlling federal agencies, such an action must abide by Article I, Sections 1 & 7, requiring a bicameral majority vote and presentation to the President for signature or veto.

Question 58

Equal Protection Clause of 14A

Answer 58

14A prevents states from depriving any person of life, liberty or property without due process & equal protection of law.

Looking at equal protection of laws & examining whether a law is discriminating against a protected class or infringing on a fundamental right as to a certain group.

1) Rule: 14A prevents states from depriving any person of life, liberty or property without due process & equal protection of the law.
2) Explain whether discrimination is happening on face of law OR as a result of unequal application of OR disparate impact of a facially neutral law (this one requires proving discriminatory motive too)
3) ID fundamental right or suspect class
4) apply scrutiny standards

-MBE TIP: 14A → ONLY STATE action. Cannot pick equal protection when dealing with a federal law. There is no federal equal protection clause. Equal protection clause exists in 14A & ONLY applies to the states.
-If have discrimination + federal law, analyze through Substantive Due Process

EPC issue: when we have a state law/policy/regyulation treating ppl or classes of ppl different from others.

The EPC does not prohibit discrimination, it only prohibits unreasonable discrimination. To determine reasonableness, we need to look at how the gov’t is dividing ppl into groups & how the S.C. has specified that we solve this kind of problem.

Refer to strict scrutiny, intermediate scrutiny & rational basis. In order for P to prevail on a heightened scrutiny review for EPC issue, they have to show discriminatory intent by showing:
-law is discriminatory on its face,
-is applied in a discriminatory manner or
-there was a discriminatory motive behind the law. Discriminatory effects are not sufficient

On MBE, rational basis usually means govt will win. Strict scrutiny usually means complainant will win.

Question 59

SC has what two types of jurisdiction?

Answer 59

1) Original jrdx
2) Appellate jrdx

Question 60

Over what types of cases does the SC have Original jrdx?

Answer 60

Article 3, Section 2

SC has Original Jrdx over cases involving:
-ambassadors
-other public ministers & consuls
-when a state is a party

Question 61

What are 2 ways for SC to hear an appellate case?

Answer 61

1) Writ of Certiorari → a discretionary review. Court will grant review if at least 4 of the justice agree to accept

2) Mandatory Appeal → These are appeals for injunctive decisions issued by 3-judge district court panels

Question 62

SC will only correct a state court judgment if the state court?

Answer 62

If the state court incorrectly applied federal rights.

Question 63

Procedural Due Process

Answer 63

Is there a deprivation of a protected interest (life, liberty or property)? If yes, then is there proper notice & a hearing? If no proper notice or hearing then we have a procedural due process violation.

1) Rule Statement: Under 14 Amendment, no person shall be deprived of life, liberty or property by the gov’t without due process of law (notice and a fair hearing)

2) ID the interest:
-life & liberty?→ has someone been killed or confined by the state?
-property?→ person has to show some entitlement to that property. So for employment, there is not entitlement when the employment is at will. But, look out for facts when someone is fired for cause in a tenured position. Can include continued attendance in public schools, public/gov’t employment, welfare benefits, doctor’s license is property!

3) Engage in Balancing Test:
Due Process = notice + hearing
Whether the process is sufficient depends on balancing:
1) Importance of private interest at stake
2) the risk of erroneous deprivation under the current procedures and the value of additional procedures and
3) importance of states interests including the states interest cost effectiveness & the burden that arises from additional safeguards.
-If hearing was provided, then focus on time or sufficiency of the hearing.

3) If the interest at stake is a protected interest and the current process is insufficient to protect against erroneous deprivation and adding more process would not be disproportionately burdensome or costly on govt then you have a procedural due process violation.

MBE TIP: For employment hypos, look for a contract or policy that provides for continued work. If one exists, then the employee has a sufficient property interest in continued employment to trigger procedural due process question. ex: termination only for cause.

Ex of No DPC violation: Statute gives agency discretion to decide which applicants can receive a federal loan. Agency denies farmer’s loan application. This is not a deprivation of a property or liberty interest protected by DPC by the farmer had no legitimate claim of entitlement to a loan bc the statute gave the agency discretion to decide which applicants were to receive the loans.

Question 64

Substantive Due Process

Answer 64

Is there a fundamental right at stake? Analyze’s govt’s power to regulate certain rights by applying the appropriate standard of scrutiny. These rights are read into the liberty interest of the 14A. Include voting, right to travel freely, 1A rights, & Privacy interests (parenting, marriage, contraception, abortion, education & medical decisions).

This is when gov’t is somehow limiting a liberty interest or limiting someone’s ability to exercise a fundamental right & limitation is applied to EVERYONE across the board (again distinguish from 14A EPC bc EPC is triggered when we have state law treating ppl or classes of ppl differently from others)

-apply same strict, intermediate, rational basis

-MBE tip: correct answer if federal govt is discriminating will say 5A as source of authority

Question 65

Content-Based Restrictions on Speech

Answer 65

Must satisfy strict scrutiny

Question 66

Supremacy Clause & Federal Agency Activities

Answer 66

Under the Supremacy Clause, a federal agency’s activities supersede any inconsistent local law. A local body may not regulate any part of the federal gov’t. As long as the federal agency is involved in a lawful federal function, a local law may not prohibit it from performing that function w/o the consent of Congress.

Ex: US Dept of Energy regularly transports nuclear materials through a particular city on the way to a nuclear weapons processing plant it operates in a nearby state. City recently adopted an ordinance prohibiting the transportation of any nuclear materials in or through the city. Ordinance declares its purpose is to protect the health & safety of the residents of that city. → DOE can continue to transport nuclear materials through the city bc it is a federal agency engaged in a lawful federal function & therefore its activities may not be regulated by a local gov’t without the consent of Congress.

Question 67

Demonstrating by Nude Dancing in a City Park

Answer 67

Demonstrating by nude dancing in the city park, which is a traditional public forum, is expressive conduct protected by the First Amendment.
(But SC has still upheld bans on nude dancing and public nudity more generally)

Can be regulated by a content-neutral regulation. Remember content-neutral regulation would be an ordinance that does not target any message conveyed by the public nudity.

Question 68

1A Does NOT Shield Reporters from Generally Applicable State-Law Claims

Answer 68

Freedom of press protected by 1A does not exempt press activities from laws of general application such as contract law

ex: reporter agrees to pay estranged daughter $10k for info on politician. publishes story & never pays up. daughter sues & reporter moves to dismiss alleging the lawsuit violates the freedom of press clause of 1A → NO. Valid & enforceable contract here.

Question 69

Political Questions

Answer 69

Federal Courts will not decide political questions. Politica question doctrine insulates from judicial review certain constitutional questions the Constitution has committed either to the legislative or executive branch.

Interbranch disputes involving foreign affairs are not political questions when they concern the validity of a federal statute

Question 70

State Tax

Answer 70

A state tax is valid if it is 1) nondiscriminatory and 2) does not apply directly to the federal govt

A state cannot impose a tax directly on the federal government or any of its agencies.
Ex: state may not collect tax on the lease of real estate by the Social Security Administration

Question 71

1A Freedom of Press

Answer 71

Freedom of press guarantees that the govt will not hinder the free exercise of media or press communication and expression through print & electronic media etc. This idea is sacrosanct in America & essential to our pillar of democracy.

-Press is not immune from following generally applicable laws (even when in pursuit of a news story & even when the story is a matter of public concern). 1A is no shield to liability,

-Disclosure of Private Facts → 1A protects press from 1) liability when publishing truthful private facts, 2) the publication is regarding a matter of public concern, 3) where the information was legally obtained by the publisher, 4) if illegally obtained info was published, there is no knowledge that the info was obtained illegally. (Person publishing must be an innocent player)
If private facts are 1) true, 2) a matter of public concern & 3) either legally obtained or published without knowledge that the info is illegally obtained

-Defamation: as a general rule, press is afforded heightened protection under 1A for defamation lawsuits. Level of protection depends on person suing. Generally, to prove defamation one must prove: 1) a false or defamatory statement that harms the reputation of another 2) of & concerning the plaintiff made by the defendant, 3) publication to a 3rd party & 4) damages.
-If P is public figure or speaking on matter of public concern, plaintiff must also prove the def acted with actual malice: defendant spoke with recklessness or knowledge of its falsity.

TEST: if info is true, apply rule for disclosure of private facts. If info is false, then apply defamation rule.

Question 72

Power Struggle b/w Gov’t Entities

Answer 72

Executive Authority - President v. Congress
-3 levels of Presidential Authority
1) If President acts pursuant to an express or implied authorization of Congress, he is acting within highest level of authority and his actions are deemed valid.
2) If President is acting when Congress is silent, the Presidents acts will be upheld unless he is usurping the power of another branch of federal govt.
3) If President acts against an express or implied will of Congress, he acts within the lowest level of authority, making his actions likely to be deemed invalid unless he is acting pursuant to his Executive Authority.

Federal Preemption - Fed gov’t v. state govts
-Under the Supremacy clause, validly enacted federal law will always preempt or trump conflicting state law.
-Express Preemption → occurs when federal legislation specifically states that the federal law is exclusive, has to explicitly state it is.
-Implied Preemption → occurs through
A) Conflict Preemption/Direct
conflict with state law →
only when its impossibly to comply
with both simultaneously
B) Field preemption → when it
appears from law itself or legislative
history that fed govt intended to
completely occupy this field
C) “Obstacle Preemption”
When the state law substantially
interferes with the objective of the
federal law → state law frustrates
Congress’s intent to adopt a
uniform system of federal
regulation

Commandeering - Fed gov’t v. state govts
-Anti-Comandeering Doctrine → Congress may not comandeer the states to regulate on its behalf
-But remember can incentivize w/ power of purse as long as not too coercive
whenever you see federal govt requiring state or local govt to do something → probably comandeering problem

Question 73

Powers of Congress

Answer 73

1) Regulate interstate commerce

2) Collect taxes

3) Spend for the general welfare

-Enumerated Powers
-Implied Powers: Necessary & Proper Clause, Taxing & Spending Power, Commerce Clause