Constitutional Law

Question 1

Article III Jurisdiction

Answer 1

(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 citizenship

Question 2

Sovereign Immunity

Answer 2

Bars a private party’s suit against a state in federal and state courts. Bars claims against a state in federal and state agencies.

Question 3

Exceptions to Sovereign Immunity

Answer 3

Express waiver, actions against local governments, injunctive relief, individual damages against state officers, Congressional authorization

Question 4

Injunctive relief exception to 11A

Answer 4

A person can sue a state official (1) for damages personally or (2) to enjoin the official from future conduct that violates the Constitution or federal law, even if this will require prospective payment from the state. However, a suit against a state official is prohibited by sovereign immunity to the extent that it seeks retroactive damages.

Ex Parte Young was a case for injunctions seeking prospective relief against state officials to enforce federal constitutional rights. Suit allows cause of action in the federal courts against state officials for violations of federal law for injunctions; exception to 11A immunity. Courts have been reluctant to extend this doctrine to retroactive relief or to any sort of injunctive relief that smells of “damages.” (Edelman; damages disguised as “equitable restitution” did not pass muster); it is a fuzzy line since all injunctive relief has a potential fiscal impact.

Question 5

Individual damages exception to 11A

Answer 5

An action for damages against a state official is not prohibited so long as the official himself (not the state) has to pay

Question 6

Standing

Answer 6

injury in fact, causation, redressability

Question 7

Taxpayer standing

Answer 7

taxpayer does NOT have standing to file a federal lawsuit simply because the taxpayer believes that the government has allocated funds in an improper way. Does have standing to litigate tax bill or when taxpayer challenges government expenditures violating the establishment clause

Question 8

Third party standing

Answer 8

(1) third party would experience difficulty or is unable to assert their own rights, (2) there is a special relationship between the plaintiff and the third party, or (3) the plaintiff’s injury adversely affects the plaintiffs relationship with the third party

Question 9

organizational standing

Answer 9

(1) there is an injury in fact to the members; (2) the members’ injury is related to the organization’s purpose; and (3) individual member participation in the lawsuit is not required (for example, not seeking individualized damages).

Question 10

Ripeness

Answer 10

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.

Plaintiff may establish ripeness before a law or policy is enforced by showing: (1) issues are fit for judicial decision; and (2) plaintiff would suffer substantial hardship in the absence of review.

Question 11

Mootness

Answer 11

Requires a live controversy.

Capable of repetition, yet evading review: a case will not be dismissed as moot if the controversy is a type that may often recur, but that will not last long enough to work its way through the judicial system

Voluntary cessation: A case will not be dismissed as moot if the defendant voluntarily ceases the wrongful action once litigation has commenced. The court must be assured that there is no reasonable expectation that the wrong will be repeated

Question 12

Taxing Power

Answer 12

Congress has the power to tax for “any public purpose,” and most taxes will be upheld if they (1) bear some reasonable relationship; or (2) Congress has the power to regulate the activity taxed.

Question 13

Spending Power

Answer 13

Congress may spend “to provide for the common defense and general welfare.” Spending may be for any public purpose (Congress has NO general police power).

Spending power conditions: Congress can impose conditions on the grant of money to state or local governments. Valid if: (1) clearly stated; (2) relate to the purpose of the program; (3) are not unduly coercive; and (4) do not otherwise violate the constitution.

Question 14

Commerce Power

Answer 14

Under Congress’s power under the Commerce Clause, a federal law regulating interstate commerce must regulate the (1) channels (2) instrumentalities or (3) activities that have a substantial effect on interstate commerce.

Question 15

Intrastate regulation of economic activity

Answer 15

Court will uphold if (1) regulation is of economic or commercial activity; and (2) the court can conceive of a rational basis on which Congress could conclude that the activity in the aggregate substantially affects interstate commerce.

If it is non-economic and noncommercial (possessing a gun in a school zone), the Court generally will not aggregate the effects and the regulation will be upheld only if Congress can show a direct substantial economic effect on interstate commerce, which it generally will not be able to do so

Question 16

Powers of the President

Answer 16

(1) reprieve or pardon federal offenses; (2) appoint all officers of the United States with the advice and consent of the Senate; (3) remove any executive appointee without cause and without Senate approval, except in cases of federal judges and (4) Veto any bill presented to him by Congress

PARV

Question 17

Veto Procedure

Answer 17

Upon presentment, 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 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 in each house

Question 18

Scope of Presidential Power

Answer 18

Jacksonian framework:

(1) When President is acting with the express or implied authorization of Congress, his authority is at its highest, and the action is strongly presumed to be valid

(2) When Congress has not spoken, presidential authority is diminished, and then action is invalid if it interferes with the operations or power of another branch of government

(3) When Congress has spoken to the contrary, presidential authority is at its lowest and likely invalid

Question 19

Presidential Foreign Powers

Answer 19

(1) Commander in Chief: May take military action without a declaration of war in the case of active hostilities against the United States

(2) Treaties: President has the exclusive power to negotiate treaties, although a treat may only be ratified with the concurrence of 2/3 of the Senate

(3) Executive Agreements: President has the power to enter into executive agreements with foreign nations without approval of the Senate

Question 20

Executive Privilege

Answer 20

(1) President has privilege to keep certain communications secret. National security secrets are given the greatest deference by the courts.

(2) In criminal proceedings, presidential communications will be available to the prosecution where a need for such information is demonstrated.

(3) President has absolute immunity from civil damages based on any action he took within his official responsibilities as President, however, there is no immunity for acts that allegedly occurred before taking office.

Question 21

Exclusive State Powers (10A)

Answer 21

(1) 10A provides that all powers not assigned by the Constitution to the federal government are reserved to the states, or to the people.

(2) The federal government has virtually unlimited power to regulate the states.

(3) Generally, Congress may regulate the states so long as it is exercising an enumerated power.

(4) While Congress cannot command state legislatures to enact specific legislation or administer federal regulatory programs, it may encourage state action through the use of its taxing and spending powers.

Question 22

Dormant Commerce Clause

Answer 22

States can regulate so long as the state or local action does not: (1) discriminate against out of state commerce; (2) unduly burden interstate commerce; or (3) regulate wholly out of state activity.

1. A state that discriminates against interstate commerce in a way that operates as a tariff or trade barrier against out of state interests is subject to strict scrutiny and is virtually per se unconstitutional. A discriminatory law may be valid if it is necessary to achieve an important noneconomic state interest and there are no reasonable nondiscriminatory alternatives available.

**this is stupid and annoying and not exactly SS, so maybe say heightened scrutiny

2. A nondiscriminatory state law that imposes an incidental burden on interstate commerce will be valid unless the burden outweighs the promotion of a legitimate local interest

Question 23

When can states discriminate against commerce?

Answer 23

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 24

Express Preemption

Answer 24

Constitution makes the federal power exclusive or Congress has enacted legislation that explicitly prohibits state regulation in the same area

Question 25

Implied Preemption

Answer 25

(1) Congress intended for federal law to occupy the entire field (2) the state law directly conflicts with the federal law (3) the state law creates an obstacle to or frustrates the accomplishment of the federal law’s purpose

Question 26

State Action good sentences

Answer 26

(1) A private person carries on activities that are traditionally performed exclusively by the state OR (2) there are sufficient mutual contracts between the conduct of a private party and the government

Question 27

Mathews Balancing

Answer 27

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 (2) the value of specific procedural safeguards and risk of erroneous deprivation and (3) the government interest in fiscal and administrative efficiency

Question 28

Government Intent for Equal Protection Analysis

Answer 28

MUST be intent on the part of the government to discriminate. A discriminatory effect or disparate impact toward a group of people alone is NOT enough to show governmental intent. May be shown by:

(1) a law that is discriminatory on its face

OR facially neutral but:

(2) a discriminatory application
(3) a discriminatory motive

Question 29

5th Amendment Takings Clause

Answer 29

The power of the government to take private property for public purposes 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
3. With just compensation (fair market value)

Question 30

Regulatory Taking

Answer 30

Regulations may rise to the level of a taking. In determining whether a regulation constitutes a taking, these factors are considered:

(1) the 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 the use of the property AND

(3) the character of the regulation

Question 31

Per Se Taking

Answer 31

A governmental regulation clearly results in a taking when the regulation results in:

(1) permanent physical occupation of the property OR
(2) permanent total loss of the property’s economic value

Question 32

Exaction as a Taking

Answer 32

A local government may exact promises from a developer without violating the Takings Clause if there is: (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 33

P&I IV

Answer 33

Privileges and Immunities IV prohibits discrimination by a state against nonresidents of the state when the discrimination concerns either important COMMERCIAL activities or fundamental rights.

However, discrimination against out of state citizens may be valid if 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 that the state is attempting to solve AND (2) there are no less restrictive means to solve the problem

Question 34

Contracts Clause

Answer 34

The Contracts Clause limits the ability of states to enact laws that retroactively impair contract rights. It does NOT affect contracts not yet made. There is no comparable clause applicable to the federal government.

State legislation that substantially impairs an existing private contract (a contract between private parties) is invalid unless the legislation passes intermediate scrutiny

State legislation that substantially impairs an existing public contract is tested by the same basic test as above, but will likely receive stricter scrutiny

Question 35

Ex Post Facto laws

Answer 35

State or federal government may not pass an ex post facto law. An ex post facto law is a law that retroactively alters criminal offense or punishments in a substantially prejudicial manner for the purpose of punishing a person for some past activity.

A statute retroactively alters a law in a substantially prejudicial manner if it: (1) makes criminal an act that was innocent when done; (2) prescribes greater punishment for an act than was prescribed when it was done; OR (3) reduces the evidence required to convict a person of a crime from what was required when the act was done

Question 36

Scope of Speech

Answer 36

The freedom to speak includes the freedom not to speak. The government cannot require people to salute the flag or display other messages with which they disagree. The freedom can extend to symbolic acts undertaken to communicate an idea

Question 37

Prior Restraints

Answer 37

Prior restraint is regulation of speech that occurs before its expression. Generally, prior restraints are presumed to be unconstitutional with limited exceptions, including: (1) there is a particular harm to be avoided; (2) procedural safeguards are provided to the speaker (the standards must be narrowly drawn, reasonable, and definite)

Question 38

Content Based Restrictions

Answer 38

It is presumptively unconstitutional to place burdens on speech because of its content, except for certain categories of unprotected speech.

However, content-neutral speech regulations generally are subject to intermediate scrutiny. They must:

(1) Advance important interests unrelated to the suppression of speech AND

(2) NOT burden substantially more speech than necessary (narrowly tailored) to further those interests.

Question 39

Conduct-Based Restrictions

Answer 39

Conduct related to speech can be regulated by content-neutral time, place, and manner restrictions.

Question 40

Public Forum

Answer 40

Public property that has historically been open to speech-related activity

Question 41

Designated public forum

Answer 41

Public property that has NOT historically been open to speech related activities, but which the government has made open for such activities on a permanent or limited basis, by practice or policy

(schoolrooms that are open for after school use by social, civic, or recreation groups)

Question 42

Public forum and designated public forum speech regulation

Answer 42

The government may regulate speech in public forums and designated public forums with reasonable time, place, and manner regulations that: (1) are content-neutral; (2) narrowly tailored to serve an important government interest; AND (3) leave open alternative channels of communication

Question 43

Limited public forum

Answer 43

Government property that has not been historically linked with speech and assembly but has been opened for specific speech

(school gym opened to host a debate on a particular community issue)

Question 44

Nonpublic Forum

Answer 44

Government property that has not been historically linked with speech and assembly and has NOT been opened for specific speech activity is called a nonpublic forum

(military bases, schools while classes are in session, government workplaces, etc.)

Question 45

limited public forum and nonpublic forum speech regulation

Answer 45

The government may regulate speech in limited public forums and nonpublic forums if the regulations are: viewpoint neutral and reasonably related to a legitimate government purpose

Question 46

Unprotected Speech

Answer 46

inciting imminent lawless action, fighting words, obscenity, defamatory speech, AND some commercial speech

Question 47

Inciting Imminent Lawless Action

Answer 47

Speech can be restricted if it creates a clear and present danger of imminent lawless action. It must be shown that: (1) imminent illegal conduct is likely AND (2) the speaker intended to cause it

Question 48

Fighting Words

Answer 48

True threats are NOT protected by the First Amendment. Speech can also be limited if it constitutes fighting words.

Fighting words are personally abusive words that are likely to incite immediate physical retaliation in an average person.

Words that are merely insulting or annoying are not enough.

The Supreme Court will NOT tolerate fighting words statutes that are designed to punish only certain viewpoints.

Question 49

Obscenity

Answer 49

Obscene speech 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 50

Commercial Speech

Answer 50

Commercial speech is afford 1A protection if it is truthful.

Commercial speech that proposes unlawful activity or that is false, misleading, or fraudulent may be restricted as unprotected speech.

Any other regulation of commercial speech will be upheld only if it:

(1) serves a substantial government interest
(2) directly advances that interest AND
(3) is narrowly tailored to serve that interest

Complete bans on truthful advertising or lawful products are very unlikely to be upheld due to lack of narrow tailoring

Question 51

Freedom of Association and Public Employment

Answer 51

A person may only be punished or deprived of public employment based on association if that individual: (1) is an active member of a subversive organization; (2) has knowledge of the organization’s illegal activity; AND (3) has a specific intent to further those illegal objectives

Question 52

Free Exercise Clause

Answer 52

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

Question 53

Establishment Clause

Answer 53

Compels the government to pursue a course of neutrality toward religion.

Question 54

Government employee speech

Answer 54

If speech is not made pursuant to an employee’s official duties, and the speech is a matter of public concern, courts must balance the employee’s rights as a citizen to comment on a matter of public concern against the government’s interest as an employer in the efficient performance of public service.

Question 55

Personal student speech on campus

Answer 55

A student’s own personal speech on campus cannot be censored absent evidence of substantial disruption

Question 56

Personal student speech off campus

Answer 56

Schools limited to restricting speech to prevent cheating, bullying, threats, and other speech where pedagogical or safety interests clearly outweigh the speech interest of students as private citizens

Question 57

Unprotected employee speech

Answer 57

Private concern, employer can punish the employee if the speech was disruptive to the work environment. May also punish a public employee’s speech whenever the speech is made on the job and pursuant to the employee’s official duties, even if the speech touches on a matter of public concern

Question 58

Protected employee speech

Answer 58

On a matter of public concern but is not made pursuant to the employee’s official duties, the courts use a balancing test.

Balance the value of the speech against the government’s interest in the efficient operation of the workplace. For speech on matters of private concern outside the workplace, test is unclear, but this speech appears protected absent detrimental effect on the workplace.

Question 59

Start 1A Essay like this

Answer 59

“The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment.” Must be a government regulation of private speech.