Constitutional Law

Question 1

Adequate & Independent State grounds

Answer 1

The Supreme Court can review a state court judgment only if it turned on federal grounds. The Court has no jurisdiction if the judgment below rested on an adequate and independent state ground.
o Adequate: state ground must control the decision no matter how a federal issue is decided.
o Independent: the state law does not depend/hinge on an interpretation of federal law.

There is no AISG if the state law adopts or follows federal law.

When a state court decision is unclear as to the basis of the decision (i.e. Whether it is based on the state constitution or the federal Constitution), the Supreme Court can review the federal issue.

Question 2

Anti- Commandeering

Answer 2

Congress cannot force states to adopt or enforce federal regulatory programs. It cannot commandeer state and local agencies to implement federal programs.

Question 3

The War and Defense Powers

Answer 3

Congress has the power to declare war and the power to maintain the army and navy & the power to provide for military discipline of US military personnel.

Congress can provide for military trial of enemy combatants and enemy civilians, but Congress cannot provide for military trial of US citizens who are civilians

Question 4

Congress’ Ability to Tax

Answer 4

Congress has the power to tax if rationally related to raising revenue and has the power to spend for the general welfare

Question 5

13th Amendment

Answer 5

Congress has broad power to legislate against racial discrimination, whether public or private and the key is that the 13th can regulate private discrimination; “vestiges of slavery”.

Question 6

Legislative Vetoes

Answer 6

When Congress attempts to overturn an executive action without bicameralism and presentment. This is unconstitutional.

If Congress wants to override executive actions, it must change the law (so that the president has an opportunity to veto the new legislation).

Question 7

Line-item Veto

Answer 7

When the president attempts to veto part of a bill while signing the rest into law.

This is unconstitutional

Answer 8

• Pardon Power: the president can pardon or commute punishment for any and all federal offenses. (Governors have a similar power for state crimes.) Cannot be limited by Congress.

Answer 9

• Veto Power: president has 10 days to veto legislation. President can veto for any reason/no reason but cannot veto specific provisions and except others. It is all or nothing.

Question 10

Appointment & Removal Powers

Answer 10

Only the president (or his appointees) can hire or fire executive officers.

Some senior officers (e.g., cabinet officers, ambassadors, federal judges) require the advice and consent of the Senate.

The Senate has a power of rejection.

The Senate approval power does not translate into a power of appointment.

Question 11

Treaties

Answer 11

Negotiated by the president but require approval by a 2/3 vote of the Senate.

Once a treaty is ratified (approved) it has the same authority as a statute.

Question 12

Executive Agreements

Answer 12

Presidential negotiations not submitted for approval by the Senate.

They can be authorized, precluded, or overridden by statute, but they take precedence over conflicting state laws.

They do not have the binding status of a treaty.

Question 13

Presidential Immunity

Answer 13

The President has ABSOLUTE IMMUNITY from liability for official acts (broadly construed), but no immunity for acts done prior to taking office.

There is an executive privilege to not reveal confidential communications with presidential advisers, but that privilege can be outweighed by a specifically demonstrated need in a criminal prosecution.

Question 14

Privileges & Immunities of Article IV

Answer 14

Forbids serious discrimination against out-of-state individuals, absent substantial justification (does not include corporations.)

There can be no legal requirement of residency for private employment. States cannot require that you live or reside in the state to work in the state.

However, public employment can require residency requirements.

NOTE: Applies ONLY when a state is discriminating against out-of-staters

Question 15

Procedural Due Process

Answer 15

Concerned with deprivations of life (i.e., death penalty), Liberty (i.e., physical confinement and parole or restrictions on constitutionally protected rights, etc.), and Property.

You have a property interest in your government job or benefit whenever you have a legitimate entitlement to continued enjoyment of the job or benefit.

Sometimes, a hearing must occur before the deprivation. (terminating welfare benefits; non-emergency revocation of drivers licenses.)

Sometimes, the hearing can occur after the action, so long as hearing is prompt and fair. (terminating disability benefits; disciplinary suspension from a public secondary school)

Question 16

Levels of Scrutiny

Answer 16

Strict scrutiny: is the law necessary for a compelling government interest? This requires the restrictive means. When strict scrutiny applies, the government bears the burden of proof

Intermediate Scrutiny: Is the law substantially related to an important government interest? The government bears the burden of proof.

Rational Basis: Is the law rationally related to a legitimate interest? The challenger bears the burden of proof.

Question 17

Due Process v. Equal Protection

Answer 17

Due process versus equal protection: if a law denies a fundamental right to everyone, it violates due process, but if a law denies a fundamental right to only some and violates equal protection

Question 18

14th Amendment Equal Protections Clause

Answer 18

1. What is the classification?
2. What level of scrutiny should be applied?
3. Does this law meet the level of scrutiny?

The Equal Protection Clause of the Fourteenth Amendment provides that “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

The equal protection clause of the Fourteenth Amendment applies only to state and local governments. Equal protection is applied to the federal government through the due process clause of the Fifth Amendment

Question 19

14th Amendment, Section 5 Enabling Clause

Answer 19

Permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the 14th Amendment, but not to expand those rights or create new ones.

In enforcing such rights, there must be a “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end.

Question 20

Establishment Clause

Answer 20

The government may not directly or indirectly coerce individuals to exercise or refrain from exercising their religion.

The Establishment Clause inquiry focuses on neutrality, historical practice, and whether the Founding Fathers would have considered the action involved acceptable.