Constitutional Law

Question 1

What makes a claim justiciable?

Answer 1

Not an Advisory Opinion: Federal courts cannot issue advisory opinions, which are decisions that lack (1) an actual dispute between adverse parties, or (2) any legally binding effect on the parties.

Ripeness (before claims developed): Pre-enforcement reviews of laws and general policies are not ripe unless (1) the issues are fit for a judicial decision (i.e., the more the case involves legal issues) AND (2) the plaintiff would suffer substantial hardship in the absence of review.

Mootness (after claims developed): The plaintiff must be suffering from an ongoing injury. However, there are several exceptions: (1) controversies capable of repetition that escape review because of their inherently short duration, (2) cases where the defendant voluntarily stops the offending practice but is free to resume it, and (3) class action in which the class representative’s controversy has become moot but the claim of at least one other class member is still viable.

Standing: A plaintiff has standing if he has suffered (1) a concrete and particularized injury in fact, (2) a causal connection between the injury and the alleged conduct, and (3) a likelihood that a favorable decision will eliminate their harm. A plaintiff can claim standing on behalf of a third party if (1) it is difficult for the third party to assert their own rights OR (2) a close relationship exists between the claimant and the third party. Corporations can claim standing on behalf of their members if (1) there is an injury in fact to the members, (2) the member’s injury is related to the organization’s purpose, and (3) individual members participating in the lawsuit is not required.

Question 2

What are the exceptions to standing?

Answer 2

There are several exceptions to standing: (1) taxpayers challenging their tax bills, (2) violation of the 10th Amendment (as long as the person has a redressable injury in fact), and (3) challenges to congressional spending measures on First Amendment Establishment Clause grounds.

Question 3

What are the rules for sovereign immunity?

Answer 3

The 11th Amendment’s doctrine of sovereign immunity bars suit against a state in federal and state courts. However, there are several exceptions: (1) express waiver, (2) structural waiver, (3) actions against local governments, (3) suits by other states or the federal government against states, (4) bankruptcy, (5) suits against state officers in their personal capacity or for acts that would violate the Constitution or federal law, and (6) instances where Congress allows plaintiffs to sue states for anti-discrimination violates under the 14th Amendment.

Question 4

What is the Necessary and Proper Clause?

Answer 4

Congress has the power to make all laws necessary and proper to carry out any of the legislative powers enumerated in Article 1, as long as that law doesn’t violate another provision of the Constitution.

Question 5

What are the rules for the Taxing and Spending Power?

Answer 5

Congress has the power to tax and spend to provide for the general welfare. This may be used for any constitutional public purpose.

Spending Power Conditions: Congress can impose conditions on the grant of money to state or local governments to encourage states to pass certain laws if (1) they are clearly stated, (2) they relate to the purpose of the law, (3) they are not unduly coercive, and (4) they do not otherwise violate the Constitution.

Taxes Generally Valid: Most federal taxes will be upheld if they bear some reasonable relationship to revenue production or to promoting the general welfare. However, a tax may be an unconstitutional penalty if it seeks to compel rather than influence behavior.

Question 6

What are the rules for the Commerce Clause power?

Answer 6

Congress has the power to regulate (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce, and (3) intrastate activities that have a substantial effect on interstate commerce (this only applies to commercial activities). This power allows Congress to prohibit private discrimination in places of public accommodation. However, under this power, Congress cannot regulate noneconomic intrastate activity in areas traditionally regulated by state or local governments and Congress cannot use it to compel activity.

Question 7

What are the rules for Congress’s delegation of legislative power?

Answer 7

Congress can delegate rulemaking power to the executive branch or judicial branch as long as intelligible standards are set and the power isn’t something that is uniquely confined to Congress. However, under the Major Questions Doctrine, agencies that adopt regulations with extraordinary economic and political significance must have clear congressional authorization in exercising such power.

Question 8

What are the rules for implied presidential powers?

Answer 8

If the President acts with the express or implied authority of Congress, his actions are likely valid. If the President acts where Congress is silent, the Court will consider the circumstances and any relevant history to determine whether his actions are valid. Usurping power from another branch or interfering with their tasks likely makes the act invalid. If the president acts against the express will of Congress and Congress had the authority to act, his actions will likely be invalid.

Question 9

What are the rules for the 10th Amendment?

Answer 9

Under the 10th Amendment, powers not granted to the federal government are reserved to states or people. Under this Amendment, Congress cannot require the states to enact legislation or enforce federal laws.

Question 10

What are the rules for preemption?

Answer 10

Express Preemption: A federal law may expressly say a state cannot adopt laws concerning the subject matter of federal legislation.

Implied Preemption: Implied preemption arises when (1) there is a conflict between state and federal law requirements that would make it impossible to comply with both laws, (2) a state law prevents the achievement of a federal objective, or (3) a federal law impliedly occupies the entire field.

Question 11

What are the rules for the Privileges and Immunities Clauses?

Answer 11

Article IV: Article IV’s Privileges and Immunities Clause prohibits discrimination related to commercial activities or fundamental rights by a state against nonresidents. This Clause only applies to laws that are intentionally protectionist. If the state law burdens an important commercial activity or fundamental right, it will be invalid unless the law is necessary to achieve an important government purpose and there are no less restrictive means available.

14th Amendment: States may not deny their citizens the privileges or immunities of national citizenship (for example, the right to petition Congress for redress of grievances, the right to vote for federal officers, and the right to interstate travel).

Note: A Commerce Clause analysis will usually include a Privileges and Immunities Clause analysis.

Question 12

What are the rules for the Dormant Commerce Clause?

Answer 12

Under the Dormant Commerce Clause, states cannot discriminate against or unduly burden interstate commerce.

Discriminatory Laws: Laws that discriminate against interstate commerce to protect local interests are invalid unless the law is necessary to achieve an important, noneconomic state interest and there are not reasonable nondisriminatory alternatives available.

Nondiscriminatory Laws: If a nondiscriminatory state law (that is, a law that treats local and out-of-state interests alike) burdens interstate commerce, it will be valid unless the burden outweighs the promotion of a legitimate local interest.

Exceptions to Discriminatory Laws: (1) Congress permits state regulations that would otherwise violate the Dormant Commerce Clause, (2) a state prefers its own citizens in receiving benefits from government programs or in dealing with government owned businesses, and (3) a law that favors government action involves the performance of a traditional government function (e.g., waste disposal).

Question 13

What types of state action fall within the purview of the Constitution?

Answer 13

(1) Actions by private individuals who perform exclusive public functions or have significant state involvement, (2) activities that are traditionally the exclusive prerogative of the states, or (3) a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens or where there is sufficient entwinement between the state and private party.

Question 14

What are the tiers of scrutiny?

Answer 14

Rational Basis: A law that does not affect fundamental rights or involve suspect or quasi-suspect classifications is upheld if it is rationally related to a legitimate government purpose. The law will be valid unless it is arbitrary or irrational. The person challenging the law bears the burden of proof that the law does not survive rational basis .

Intermediate Scrutiny: A law involving quasi-suspect classifications (i.e., gender and legitimacy) is upheld if it is substantially related to an important government purpose. Usually, courts place the burden on the government to show that the law survives intermediate scrutiny.

Strict Scrutiny: A law affecting fundamental rights (i.e., interstate travel, voting, and the First Amendment) or involving suspect classifications (i.e., race, national origin, and alienage) must be necessary (i.e., least restrictive means) to achieve a compelling government purpose. The law will be invalidated, especially if there is a less burdensome alternative. The government has the burden of proof to show that the law survives strict scrutiny.

Question 15

What are the rules for procedural due process?

Answer 15

Procedural due process under the Fifth and Fourteenth Amendments protects life, liberty, and property. A liberty deprivation occurs if a person (1) loses significant freedom of action or (2) is denied a freedom provided by the Constitution or a statute. Property includes personal and real property as well as government benefits to which there is an entitlement.

Procedural due process requires (1) notice of a deprivation, (2) a hearing, and (3) a neutral decisionmaker. The type and extent of hearing are determined by a test that balances (1) the importance of the interest to the individual and (2) the value of specific procedural safeguards to that interest against (3) the government interest in fiscal and administrative efficiency. The claimant should ordinarily be given a pre-deprivation hearing. A neutral decisionmaker cannot have any actual bias or a serious risk of actual bias.

Question 16

What are the rules for substantive due process?

Answer 16

Fundamental rights are subject to strict scrutiny.

Privacy Rights: Various privacy rights including marriage, procreation, contraception, childrearing, and keeping families together are fundamental rights. Exception: Abortion restrictions are subject to rational basis review.

Interstate Travel: An individual has a fundamental right (1) to travel from state to state, and (2) to be treated equally after moving into a new state. Exception: International travel is not a fundamental right.

Right to Vote: The right to vote is a fundamental right. As a result, restrictions on that right, other than on the basis of residence, age, and citizenship, are invalid unless they can pass strict scrutiny. For state and local elections, the populations of voting districts must be substantially equal, but a deviation is allowed if it is reasonable and tailored to promote a legitimate state interest (Note: A 10% deviation is presumptively valid). For Congressional elections, the populations of voting district must be almost exactly the same. However, Congress has deference to apportion representatives among the states.

Right to Bear Arms: If a regulation burdens an individual’s right to keep and bear arms, then the government must justify the regulation by demonstrating it is consistent with the country’s historical tradition of firearm regulation.

Right to Intimate Sexual Conduct: No clear standard. Does not pass rational basis.

Right to Refuse Medical Treatment: Part of an individual’s “liberty” interest under the Fifth and Fourteenth Amendment Due Process Clauses.

Question 17

What are the rules for Equal Protection?

Answer 17

An equal protection claim arises wheever the government treats some people differently from others. Equal protection guarantees apply against the states under the Fourteenth Amendment and against the federal government under the Fifth Amendment.

Standard: For strict or intermediate scrutiny to apply, there must be discriminatory intent. Intent may be shown by (1) a law that is facially discriminatory, (2) a discriminatory application of a facially neutral law, or (3) a facially neutral law with a disparate impact on a protected class of people.

Suspect Classifications: Classifications based on race, national origin, or alienage are subject to strict scrutiny. The government has a compelling interest in remedying past governmental discrimination, but promoting diversity is not a compelling government interest. Federal laws can discriminate against aliens, but state laws that discriminate against aliens are subject to strict scrutiny. The only exception is that state laws can discriminate against alien participation in state government and important public policy positions so long as the laws pass rational basis. Undocumented aliens are not part of a suspect classification, so rational basis applies to laws related to this class of people.

Quasi-Suspect Classifications: Classifications based on gender and whether children are marital or non-marital are subject to intermediate scrutiny.

Other Classifications: Classifications based on age, disability, and wealth are subject to rational basis.

Note: An Equal Protection analysis should include a substantive due process analysis.

Question 18

What are the rules under the Taking Clause?

Answer 18

The Fifth Amendment provides that private property may only be taken (1) for public use and (2) the government must pay just compensation. This applies to personal property, real property, and certain intangible property.

Taking Generally: A taking occurs if there is a confiscation of a person’s property or a permanent or regular physical occupation of a person’s property by the government.

Taking - Temporary Occupation: Temporary occupations by the government may also be a taking, depending on factors like the degree of invasion, the duration, the government’s intention, the foreseeability of the result, the character of the property, and the interference with the use of the property.

Taking - Development Exception: The government cannot condition a land permit on a taking unless (1) the government can show there is an essential nexus between the condition and the proposed development (that is, the condition relates to a legitimate government interest) and (2) the adverse impact of the proposed development is roughly proportional to the loss caused to the property owner from the forced transfer.

Taking - Denial of All Economic Value: If a government regulation denies a landowner of all economically viable use of their land, the regulation amounts to a taking unless principles of nuisance or property law make the use prohibitable.

Taking - Decreasing Economic Value: In determining whether a decrease in economic value (e.g., prohibiting the most beneficial use) amounts to a taking, courts will consider (1) the government interests sought to be promoted; (2) the diminution in value to the owner; and (3) whether the regulation substantially interferes with distinct, investment-backed expectations of the owner.

Public Use: If the government’s action is rationally related to a legitimate public purpose, the public use requirement is satisfied.

Just Compensation: Measured by the fair market value of the property taken at the time of the taking.

Question 19

What are the rules for the Contract Clause?

Answer 19

The Contract Clause limits the ability of state and local governments to enact laws that retroactively impair contract rights. Legislation that substantially impairs an existing private contract is invalid unless the legislation satisfies intermediate scrutiny. Legislation that substantially impairs an existing public contract is invalid unless the legislation satisfies a heightened scrutiny.

Question 20

What are the Rules for Ex Post Facto Laws?

Answer 20

The government cannot pass an ex post facto law, a law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purpose of punishing someone for a past activity. This occurs if the law (1) makes criminal an act that was innocent when done, (2) imposes a greater punishment for an act than was imposed for the act when it was done, (3) reduces the evidence required to convict a person of a crime from what was required when the act was committed.

Question 21

What are the types of protected speech?

Answer 21

The First Amendment protects words, symbols, and expressive conduct. Expressive Conduct is any kind of conduct that is either inherently expressive, or conduct that is (1) intended to convey a message and (2) reasonably likely to be perceived as conveying a message.

Question 22

What are the types of unprotected speech?

Answer 22

Incitement: Speech is incitement if (1) it is intended to produce imminent lawless action and (2) likely to produce such action.

Fighting Words: Speech is fighting words if the speech contains verbally abusive words that are likely to invite immediate physical retaliation in an average person.

True Threats: True threats are words intended to convey to someone a serious threat of bodily harm. The speaker must have had some subjective understanding that their treats were of a threatening nature, but a mere mental state of recklessness is sufficient.

Obscenity: Speech is obscene if it describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person: (1) appeals to the prurient interest in sex under a contemporary community standard, (2) is patently offensive under contemporary community standards, and (3) lacks serious value under a national, reasonable person standard.

Question 23

What are the rules for defamation and other privacy torts?

Answer 23

Public Officials and Figures: If the plaintiff is a public official or figure, the plaintiff must show the defendant acted with actual malice–that is, the statement was made with knowledge that it was false or with a reckless disregard as to its truth or falsity. It does not matter whether the plaintiff was speaking on a matter of public or private concern.

Private Figure: If the plaintiff is a private figure and the defamatory statement involves a matter of public concern, the plaintiff can only recover actual damages if the plaintiff shows negligence. To recover punitive damages or presumed damages, they need to show actual malice. If the plaintiff is a private figure suing on a matter of private concern, the First Amendment is not involved.

Question 24

What are the rules for commercial speech?

Answer 24

Commercial speech is not protected if it is (1) false, (2) misleading, or (3) about illegal products or services. Other regulations will only be upheld if they (1) serve a substantial government interest, (2) directly advance that interest, and (3) are narrowly tailored to serve that interest.

Question 25

What is the First Amendment analysis for speech restrictions on government property?

Answer 25

Traditional Public Forums and Designated Public Forums: Public property that has historically been open to speech-related activities is called a public forum while public public that has been thrown open for free-speech activities on a permanent or limited basis, by practice or policy, is called a designated public forum. Content-based (i.e., viewpoint and subject matter) restrictions are subject to strict scrutiny. Content-neutral restrictions must be narrowly tailored to serve an important government interest and leave open alternative channels of communication.

Limited Public Forums and Nonpublic Forums: Limited public forums are government forums not historically open for free speech but opened for specific speech activity while nonpublic forums are government property not historically open for speech and not help open for specific speech activities. Regulations in these spaces are valid if they are viewpoint neutral and reasonably related to a legitimate government purpose.

Question 26

What is the First Amendment analysis for speech restrictions for government employees?

Answer 26

Protected Speech: If the employee’s speech is on a matter of public concern but is not made pursuant to the employee’s official duties, the courts will 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, the speech is protected absent a detrimental effect on the workplace.

Unprotected Speech: If a government employee’s speech while at work involves a matter of private concern, the employer can punish the employee if the speech was disruptive of the work environment. A government employer 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 27

What is the vagueness doctrine?

Answer 27

If a criminal law or regulation fails to give persons reasonable notice of what is prohibitable, it may violate the Due Process Clause. This principle is applied more strictly when the First Amendment is involved.

Question 28

What is the overbreadth doctrine?

Answer 28

A regulation of speech or speech-related conduct will be invalidated as overbroad if it punishes substantially more speech than is necessary. An overbroad regulation is facially invalid, unless a court has limited construction of the regulation so as to remove the threat to constitutionally protected expression. Invalidation is only justified if the unconstitutional applications are realistic and substantially disproportionate to the statute’s lawful sweep. If the regulation is not substantially overbroad, it can be enforced against persons engaging in activities that are not constitutionally protected.

Question 29

What are the rules for prior restraint?

Answer 29

Prior restraints are court orders or administrative systems that prevent speech before it occurs. They are disfavored and rarely allowed. Content-based prior restraints are subject to strict scrutiny and content-neutral prior restraints are subject to intermediate scrutiny. The government must prove that there is a special societal harm that justifies the restraint.

Procedural Safeguards: A system for prior restraint must provide the following safeguards: (1) the standards that are narrowly drawn, reasonable and definite; (2) the injunction must be promptly sought; and (3) there must be prompt and final judicial determination of the validity of the restraint.

Question 30

What are the rules for the Free Exercise Clause?

Answer 30

The Free Exercise Clause prohibits the government from punishing someone on the basis of their religious belief or related religious status or conduct. Courts may only question the sincerity of a person’s belief, not the truthfulness of the belief.

Laws that discriminate against religion are subject to strict scrutiny. This includes facially discriminatory laws and facially neutral laws designed to target religion generally or religion in particular. However, facially natural law that are generally applicable are not subject to the Free Exercise Clause.

The Free Exercise Clause does not require exemptions from generally applicable government regulations that happen to burden religious conduct. However, if the government chooses to grant exemptions from a law and the government refuses to grant an exemption from a law on religious grounds, strict scrutiny applies.

Question 31

What are the rules for the Establishment Clause?

Answer 31

The Establishment Clause prohibits government sponsorship of religion. This means the government should remain neutral with respect to religion and cannot coerce individuals into exercising or refrain from exercising certain religions. However, government religious practices and displays will not violate the Establishment Clause if such practices and displays are consistent with history, tradition, and the Founder’s intent.

Question 32

What is the standard of review for content-based and content-neutral speech restrictions?

Answer 32

Content-Based: Content-based regulations are subject to strict scrutiny, and the are presumptively unconstitutional (unless they fall within one of the categories of unprotected speech, like obscenity). A regulation is content-based if it restricts speech based on the subject matter or viewpoint of the speech.

Content-Neutral: Content-neutral restrictions on speech (that is, restrictions that are both subject matter-neutral and viewpoint-neutral) generally are subject to intermediate scrutiny; that is, they must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary (or must be narrowly tailored) to further those interests.

Question 33

What are the rules for Supreme Court review of cases involving interpretations of state law and federal law?

Answer 33

The state court may hold that a state statute violates both state and federal constitutional provisions. The holding that the state constitution is violated may be achieved in one of two ways: (i) the state court may have independently interpreted the state constitutional provision, without relying directly on federal cases construing the federal constitutional provision; or (ii) the state court may have interpreted the state constitutional provision as being co-extensive with the comparable federal constitutional provision, and then attempted to follow the relevant federal case law. In that case, the Court may find that an independent and adequate state ground really did not exist, allowing the Court to review it.