Constitutional Law

Question 1

What are the exceptions for standing for taxpayers?

Answer 1

This narrow exception arises when the taxpayer:

challenges legislation enacted under Congress’s taxing and spending power and

alleges a violation of a specific constitutional limitation on this power—to date, the only limitation on this power that the Supreme Court has found is the First Amendment establishment of religion clause.

Question 2

How does the Pike balancing test function in dormant commerce clause analysis?

Answer 2

Under the Pike balancing test, a nondiscriminatory law will be upheld unless the challenger shows that the law’s burden on interstate commerce clearly exceeds its local benefits.

Question 3

What is the effect of the state-action doctrine?

Answer 3

a private actor qualifies as a government actor when (1) the private actor performs a traditional government function or (2) the government is significantly involved in the private actor’s activities. Significant involvement exists when the government:

has a mutually beneficial relationship with the private actor (e.g., joint venture)

creates a nexus by affirmatively facilitating or authorizing private action (e.g., through a police officer acting under color of law) or

is pervasively intertwined in the private actor’s management or control.

Question 4

What does article IV protect?

Answer 4

State discriminates against citizens of other states & interferes with rights of state citizenship:

Travel/reside in state
Pursue employment
Practice commercial trade/business
Own/transfer property
Seek medical services
Civil liberties
Creditor’s rights
Tax exemptions

Question 5

What does the 14th amendment protect as it relates to the privileges and immunities clause?

Answer 5

State interferes with its citizens’ rights of national citizenship:

Interstate travel
Assemble peacefully
Vote for national offices
Enter public lands
Petition Congress for redress of grievances
Protection when in custody of U.S. Marshal

Question 6

When does a physical taking occur?

Answer 6

When the government (or a third party authorized by the government) permanently and physically occupies private property—regardless of the public interest it may serve.

Question 7

A content regulation uses what standard of review?

Answer 7

The regulation must be necessary to achieve a compelling governmental interest

Question 8

When does state action arise for a private entity?

Answer 8

When the private person or entity carries on activities that are traditionally performed exclusively by the state, such as running primary elections or governing a company town.

Question 9

Expressive conduct is subject to a lesser degree of protection. A governmental regulation of expressive conduct will be upheld if…

Answer 9

(i) the regulation is within the government’s power to enact, (ii) the regulation furthers an important governmental interest, (iii) the governmental interest is unrelated to the suppression of ideas, and (iv) the burden on speech is no greater than necessary (i.e., is narrowly tailored).

Question 10

The comity clause of AIV, which deals with privileges and immunities of state citizenship, does what?

Answer 10

Prevents a state from imposing a residency requirement for private employment.

Question 11

When may a civil law become an ex post facto law?

Answer 11

The courts will determine this based on the weight of the following factors.

imposes an affirmative disability or restraint (e.g., imprisonment) (not seen here)
has historically been regarded as punishment (e.g., public shaming)
promotes the traditional aims of punishment (e.g., retribution)
is rationally related to its nonpunitive purpose*

Question 12

Implied preemption occurs through…

Answer 12

field preemption – when Congress intended to completely occupy a particular field by legislating so thoroughly that it left no room for supplementary state regulations

direct conflict preemption – when it is impossible or nearly impossible to comply with both federal and state law or

indirect conflict preemption – when the state law frustrates the purpose of the federal law.

Question 13

A public employee can only be terminated for cause has a property interest in the employment. What is required to ensure due process in a termination?

Answer 13

notice of his/her alleged misconduct
a pre-termination opportunity to respond to that allegation and
a post-termination evidentiary hearing to determine if the termination was warranted.

Question 14

A regulatory taking occurs when the government

Answer 14

substantially restricts the use of private property (based on the totality of the circumstances) or

deprives an owner of all economically beneficial use of the property but the owner retains possession

Question 15

How does the militia clause affect the national guard?

Answer 15

Under the militia clauses, Congress has the power to authorize the President to call state National Guard units into action without the approval of the state governor to execute federal laws, suppress insurrections, or repel invasions.

Question 16

Membership in a subversive organization requires

Answer 16

that the person is an
is active member
knows of organization’s illegal objectives and
specifically intends to further them

Question 17

May a suit for injunctive relief proceed against a state officially in a suit over a violation of state law?

Answer 17

No. The 11th Amendment is a complete bar.

Question 18

Younger abstention applies when declaratory or injunctive relief is sought in federal court. What are the requirements of Younger abstention?

Answer 18

This doctrine requires abstention when such relief would interfere with a pending state proceeding on any criminal matter or a particular civil matter* that:

involves an important state interest and
provides an adequate opportunity to litigate the federal issue(s).

Question 19

What test does a federal court use to analyze a state law that prohibits the exercise of a fundamental right based on an individual’s wealth?

Answer 19

Strict scrutiny

Question 20

Can congress tax exported goods?

Answer 20

No

Question 21

The Article IV, section 3 property clause gives Congress complete power to dispose of and regulate federally owned land and territories. What relation does this power have to private property?

Answer 21

This clause includes the power to regulate private property that affects federal public lands when such regulation is necessary to protect those lands—e.g., by prohibiting the erection of structures that completely enclose federally owned land.

Question 22

What is a federal officer?

Answer 22

someone who (1) holds a continuing public office and (2) has significant discretionary authority to administer or enforce laws (i.e., executive powers).

Question 23

Who may appoint a federal officer?

Answer 23

The president

Question 24

What is the effect of the supremacy clause on direct taxation by a state?

Answer 24

The federal government is immune from direct taxation by the states.

Question 25

When may a state discriminate against an out of state economic interest?

Answer 25

If:
the state law furthers an important or legitimate noneconomic state interest and
no reasonable, nondiscriminatory alternatives are available.

Question 26

Is promoting in-state business by discriminating against out-of-state business a legitimate government interest?

Answer 26

No.

Question 27

How does the 21st Amendment affect state commerce?

Answer 27

The Twenty-first Amendment grants states broad authority to regulate the use of alcohol within their borders. This authority permits a state to prohibit the importation, transportation, or sale of alcohol within the state and to delegate such authority to local governments (e.g., municipalities).

Question 28

When may personal property be seized prior to providing notice and a hearing?

Answer 28

the seizure serves a significant government interest
that interest would be frustrated by advance notice of the seizure and
the seizure is performed by the government.

Question 29

How does a court determine whether real property may be seized?

Answer 29

the court must balance three factors:

the private interest affected by the deprivation

the risk of erroneous deprivation of that interest through current procedures and the probable value of additional or substitute procedural safeguards and

the government’s interest, including the fiscal and administrative burdens that other safeguards would entail

Question 30

Are possessory and nonpossessory interests in land private property rights under takings clause?

Answer 30

Yes. These include liens and easements.

Question 31

A declaratory judgment requires a…

Answer 31

Real and immediate danger to a party’s interest.

Question 32

If an assignee assumes the responsibility of pursuing a suit for which the original party has standing, does the assignee have standing?

Answer 32

Yes. The assignment must have been made for an ordinary business purpose and in good faith.

Question 33

When can Congress impose a direct federal tax?

Answer 33

Only if it’s

apportioned evenly (i.e., proportionately) among the states based on each state’s population and
reasonably related to revenue production (i.e., no provision extraneous to tax purposes).

Question 34

Under the Article I suspension clause…

Answer 34

a person in federal custody can challenge his/her detention by filing a petition for a writ of habeas corpus in a federal court unless Congress has explicitly suspended the writ. This clause applies to noncitizens classified and detained as enemy combatants in territories over which the United States has sovereign control

Question 35

When is a tax levied against a government affiliate exempted?

Answer 35

Congress has granted the affiliate immunity

the tax discriminates against the federal government or the affiliate or

the tax substantially interferes with the affiliate’s federal purpose or duties—e.g., when a high tax burden makes it impossible for the affiliate to accomplish its federal functions.

Question 36

a state or local action (e.g., county ordinance) that discriminates against interstate commerce—i.e., an action that protects in-state over out-of-state economic interests—is invalid unless:

Answer 36

it furthers a legitimate, noneconomic state or local interest (e.g., protecting natural resources) and
no nondiscriminatory alternative is available to achieve this interest

Question 37

What is required for Congress to properly subpoena a witness?

Answer 37

Procedural due process rights, including the presence of counsel.

Question 38

What does the presentment clause of article 1, section 7, of the Constitution do?

Answer 38

The Presentment Clause requires any bill that has been passed by Congress to be presented to the President. If the President signs the bill, it becomes law. If the President does not, it may either become law or not depending on whether the President vetoes it (either directly or via a “pocket veto”), and if by a direct veto, whether Congress overrides the President’s veto.

Question 39

The test for whether a state statute permissible discriminates against out of state commerce is…

Answer 39

(i) an important local interest is being served, and (ii) no other nondiscriminatory means are available to achieve that purpose

Question 40

What is required for the termination of disability benefits?

Answer 40

the state must give prior notice, but only a post-termination evidentiary hearing.

Question 41

Describe a content based restriction and the test for one.

Answer 41

A state law that prohibits a particular type of speech (i.e., violent video games). Such regulations must be necessary to achieve a compelling government interest and narrowly tailored to meet that interest

Question 42

What cases has Congress denied exclusive jurisdiction to SCOTUS?

Answer 42

lower federal courts have concurrent jurisdiction over:

cases involving foreign ambassadors, public ministers, or consuls
cases between the United States and a state and
cases between a state and citizens of another state or noncitizens.

Question 43

The war and defense powers are extremely broad. What may Congress do with them?

Answer 43

Congress to declare war and to provide for the national defense during wartime and peacetime—e.g.:

by excluding civilians from sensitive or military areas
by implementing a military draft and
by imposing wage, price, and rent controls on the private civilian economy (as seen here).

Question 44

How does the first amendment protect the press?

Answer 44

This amendment also shields the media from liability for publishing truthful information that was unlawfully obtained by a third party if:

the information involves a matter of public concern and
the publisher neither obtained it unlawfully nor knows who did.