Constitutional Law

Question 1

Can the government inquire into a person’s associations (First Amendment)?

Answer 1

No, the 1st Amendment prohibits the gov’t form inquiring into a person’s associations unless that inquiry is necessary to protect a legitimate state interest.

Question 2

Regulatory Taking

Answer 2

Gov’t substantially restricts (or destroys all economically beneficial) use of private property — including land and personal property.

NOTE: owner is only entitled to “just compensation” in the amount of the property’s fair market value at the time of the taking — not lost profits.

Question 3

Ripe (too soon)

Answer 3

Action will not be heard until plaintiff has experienced actual injury or imminent threat thereof

Question 4

Moot (too late)

Answer 4

Action will be dismissed if further proceedings would have no effect unless:
-Plaintiff’s harm is capable of repetition yet evading review
-Defendant voluntarily stops action but can resume it anytime
-Plaintiff is named plaintiff in class action & claims of unnamed plaintiffs are still viable

Question 5

Eleventh Amendment prohibits…

Answer 5

Foreign gov’ts and private parties from suing a state in federal court

Question 6

Does POTUS need the advise and consent of the Senate to enter into an executive agreement?

Answer 6

No, these agreements are less formal than treaties and take effect as soon as the President enters into them

Question 7

Do executive agreements prevail over state laws?

Answer 7

Yes, under the supremacy clause, executive agreements (which carry the force of federal law) prevail over conflicting state laws

Question 8

What foreign affairs powers does POTUS have?

Answer 8

Power to negotiate and enter into executive agreements with foreign countries. Under the supremacy clause, executive agreements prevail over conflicting state laws.

Question 9

When can the gov’t regulate content based speech?

Answer 9

When it can show that the regulation is NECESSARY and NARROWLY TAILORED to achieve a COMPELLING GOVT INTEREST (nearly impossible)

Question 10

Procedural due process

Answer 10

Requires the government to follow certain procedures when it intentionally deprives a person of life, liberty, or property.

NOTE: Challenger bears the initial burden of showing that he/she has a protected interest at stake

Question 11

Nondelegation doctrine

Answer 11

Congress may only delegate its legislative authority to others if it provides an intelligible principle to guide them.

Question 12

Spending clause

Answer 12

Allows Congress to place conditions on the receipt of federal funds if those conditions (1) are clearly stated, (2) are reasonably related to the purpose of the expenditure, (3) do not induce unconstitutional behavior, and (4) are not unduly coercive.

Question 13

When can the government regulate commercial speech?

Answer 13

Government can only regulate protected commercial speech if the government proves that its regulation directly advances a substantial government interest and is not more extensive than necessary to serve that interest.

Question 14

Can the government ban commercial speech that is (1) false or misleading, or (2) concerns unlawful activity?

Answer 14

Yes

Question 15

Do taxpayers have standing to challenge the way the gov’t spend tax dollars?

Answer 15

Generally, no. However, there are two exceptions:
(1) if the taxpayer challenges legislation enacted under Congress’ (or states’) taxing and spending power, and
(2) alleges a violation of a specific constitutional limitation on this power (i.e. establishment clause)

Question 16

When can the gov’t interfere with the 1st Amendment freedom of association?

Answer 16

When someone is (1) an active member of a subversive organization, (2) knows of the organization’s illegal objectives, and (3) specifically intends to further those objectives.

Question 17

Who has the power to remove judges?

Answer 17

Congress has the SOLE power to impeach and remove federal judges for treason, bribery, or other high crimes and misdemeanors.

Question 18

Full Faith and Credit Clause

Answer 18

Requires a state court to recognize and enforce a decision by a court in another state when (1) that court had personal and subject matter JX, (2) the case was decided on its merits, and (3) a final judgment was entered

Question 19

Can Congress overturn an executive agency’s actions?

Answer 19

Yes, but only by enacting new legislation, which requires: (1) passage by majority vote in the House of Representatives and Senate (i.e. bicameralism) and (2) presentation to POTUS for approval or disapproval (i.e. presentment)

Question 20

Privileges and Immunities Clause

Answer 20

Generally prohibits states from discriminating against citizens of other states by denying them a right of state citizenship

Question 21

Bill of Attainder

Answer 21

A legislative act that punishes a specified person or group without a judicial tial

Question 22

Ex post facto clauses

Answer 22

Bar state and federal governments from enacting criminal statutes that punish actions retroactively

Question 23

Can Congress establish military courts and tribunals?

Answer 23

Yes, Congress may grant military courts jurisdiction over enemy combatants, enemy civilians, and current members of the US military.

HOWEVER — Congress MUST afford procedural due process to US citizens classified and detained as enemy combatants

Question 24

Procedural due process requires that US citizens be given:

Answer 24

(1) Notice of the factual basis for the citizen’s classification as an enemy combatant, AND
(2) a fair opportunity to rebut the government’s factual assertions before a neutral decision maker.

Question 25

What is a writ of habeas corpus?

Answer 25

A court order that a person in custody be brought before the court to determine if his/her detention is legal.

Question 26

When reviewing an equal protection challenge under the rational basis test, does the court give extreme deference to legislature?

Answer 26

Yes. Court will give extreme deference to a legislature’s right to define a law’s objectives. If those objectives are unclear, the law will be upheld if the court can conceive of any plausible justification for the law.

Question 27

Rational Basis

Answer 27

Challenger has the burden to prove that the law has no rational relation to a legitimate state interest

Question 28

Intermediate Scrutiny

Answer 28

Government has the burden of proving that the law has a substantial relation to an important state interest

Question 29

Strict Scrutiny

Answer 29

Government has the burden of proving that the law is necessary to achieve a compelling state interest (highest burden)

Question 30

Tenth Amendment

Answer 30

Gives states all powers that are not expressly granted to the federal government by the Constitution – eg, police power to impose taxes on state activities.

But, pursuant to the supremacy clause, state police powers do NOT take precedence over other constitutional provisions, including the negative implications of the commerce clause.

Question 31

Do state taxes that affect interstate commerce violate the dormant commerce clause?

Answer 31

No, if (1) it is applied to a person/activity that has a substantial nexus with the state, (2) it is fairly apportioned, (3) it is nondiscriminatory, and (4) it is fairly related to services or benefits provided by the state.

Question 32

Can the government compel individuals to endorse/include viewpoints with which the individuals disagree with?

Answer 32

No

Question 33

Privileges and Immunities Clause

Answer 33

Generally prohibits states from discriminating against citizens of other states. But it does not apply to the federal government

Question 34

Privileges or Immunities Clause

Answer 34

Applies to states (not the fed government) and bars them from depriving individuals of the very limited rights of national citizenship

Question 35

How does the EPC apply to the federal government?

Answer 35

Through the 5th Amendment DPC. Under this clause, federal laws that intentionally discriminate against a suspect class (eg, race) are almost always invalidated under SS.

Question 36

Dormant commerce clause

Answer 36

Prohibits states from enacting regulations that purposefully or deliberately regulate out of state conduct – e.g., by requiring out of state commerce to be conducted in accordance with a state statute

Question 37

Does the 11th Amendment bar suits against local governments in federal court?

Answer 37

No. The 11th Amendment immunity that bars suits against state governments in federal courts does not apply to local governments (i.e. counties, municipalities).

Question 38

Article IV privileges and immunities clause

Answer 38

Prohibits states from discriminating against citizens of other states by denying them a right of citizenship

Question 39

Political function exception

Answer 39

Although state laws that discriminate based on citizenship are generally subject to strict scrutiny, under the political-function exception, rational basis scrutiny applies when such laws restrict a noncitizen’s participation in government functions allowing the (1) direct formulation, execution, or review of public policy or (2) exercise of broad discretion.

Question 40

Is the federal government immune from state regulation?

Answer 40

Yes. The operations of the federal government, including those of its agencies and instrumentalities, are completely immune from state regulation unless Congress consents.

Question 41

Can Congress limit POTUS’ powers?

Answer 41

Yes, when they share authority over an area (i.e. use of federal funds).

The Youngstown framework is then used to determine the extent of POTUS’ authority*

Question 42

Can Congress require states to enact legislation or enforce federal law?

Answer 42

No. Under the 10th Amendment, the federal government cannot require states or their political subdivisions to enact legislation or enforce federal law. However; federal government may incentivize states to act through conditional federal funding

Question 43

A government restriction on campaign contributions has to satisfy what test?

Answer 43

Intermediate scrutiny — i.e. the government must show that its restriction is closely drawn to serve an important government interest

Question 44

Government restrictions on campaign expenditures

Answer 44

Unconstitutional unless the government satisfies strict scrutiny by showing that the restriction is the least restrictive means to serve a compelling governemnt interest

Question 45

Establishment Clause challenges

Answer 45

Reviewed under the historical test, which upholds government actions that have historically been permitted in accordance with with the meaning of the Constitution

Question 46

Does the president have the authority to direct the actions of federal executive agencies?

Answer 46

Yes. Articles 2 gives POTUS, as the country’s chief executive, the authority to direct the actions of federal executive agencies/

NOTE — Congress also has authority over these agencies under the nondelegation doctrine, so POTUS must act with congressional approval or in a manner consistent with an act of Congress

Question 47

Enumerated congressional powers (Article 1, Section 8)

Answer 47

Taxing and spending, Commerce, War/Armed Forces/Militia, Coin & borrow money, Immigration and naturalization, mail, Copyright and patent laws, federal courts, District of Columbia, bankruptcy, rules concerning captures

Question 48

Does Congress’ power to regulate the JX and procedures of federal courts extend to state courts?

Answer 48

No. The power does not allow Congress to regulate state courts.

Question 49

Is a durational residency requirement constitutional?

Answer 49

No. Laws with this requirement are generally reviewed under the EPC since they treat two classes of persons differently — those who have resided in the state for a designated period and those who have not. Since these laws substantially burden the fundamental right to travel by discouraging persons from moving into the state, they are subject to SS.

Question 50

Does Congress has the power to tax and spend for the general welfare?

Answer 50

Yes.

Question 51

Does a state legislator have absolute immunity from federal civil liability for official legislative actions?

Answer 51

Yes; however, this immunity does not extend to federal criminal liability

Question 52

When does a seizure occur?

Answer 52

When a reasonable person would believe that he is not free to leave. Courts consider the totality of the circumstances in making this determination.

Question 53

Consent to search (4th Amendment)

Answer 53

Police may conduct a valid warrantless search when they have a voluntary consent to do so. Knowledge of the right to withhold consent, while a factor to be considered, is not a prerequisite to establishing a voluntary consent.

Question 54

Does a search warrant authorize the police to search persons found on the premises who are not named in the warrant?

Answer 54

No. In Ybarra v. Illinois, SCOTUS held that “each patron of the tavern had an individual right to be free of unreasonable searches, and presence at a location subject to search does not negate the requirement of probable cause to search the person present.”

Question 55

State discrimination against foreign commerce

Answer 55

State laws that discriminate against foreign commerce are reviewed with the utmost scrutiny and are almost always invalid since it is imperative that the country speak with one voice in foreign affairs.

Question 56

Congress’ power to act to promote the general welfare

Answer 56

Limited to Congress’ taxing and spending power