Constitutional Law Flashcards
1
Q
What is a limit on Congress’s power to regulate and limit SCOTUS’s appellate jurisdiction?
A
Congress may not exercise its authority over the appellate jx of the Supreme Court in a way that seriously interferes with the establishment of a supreme and uniform body of federal constitutional law– Congress cannot violate the separation of powers doctrine or other constitutional provisions.
2
Q
How does consent come into play as an exception to the application of the Eleventh Amendment?
A
A state may consent to suit by waiving its Eleventh Amendment protection.
3
Q
What does the Federal Property Clause give Congress the power to do?
A
The Federal Property Clause gives Congress the power to dispose of and make all necessary rules and regulations respecting the territory or other property of the United States.
There is no express limit on Congress’s power to dispose of property owned by the US, but Congress may only take property for public use with just compensation.
4
Q
What is are the four suspect classifications for whom strict scrutiny will apply in an Equal Protection claim?
A
(i) Race
(ii) Ethnicity
(iii) National origin
(iv) If the classification is by state law, citizenship status
5
Q
When may a state impose an ad valorem tax on personal property?
A
Once the goods are stopped for a business purpose (i.e., obtain a “taxable situs”)
Note: A state may not levy ad valorem taxes on goods in the course of transit.
6
Q
How does aggregation come into play when considering the “substantial economic effect” of an activity for purposes of the Commerce Clause?
A
Congress has the power to regulate any activity that in and of itself, or in combination with other activities, has a substantial economic effect upon interstate commerce. Aggregation deals with the “in combination with other activities” part of the rule. While one farmer growing wheat on his farm with no intent to sell to anyone seems to be an isolated event, that can change when combined with other farmers who share that same intent. These isolated events can “in the aggregate” have a substantial effect on interstate commerce (or lack thereof) and be regulated by Congress.
7
Q
What suits are barred by the 11th Amendment?
A
(i) Citizens of one state suing another state in federal court;
(ii) Suits in federal court against state officials for violating state law; and
(iii) Citizens suing their own state in federal court.
Note: These are subject to exceptions.
8
Q
List three fundamental rights.
A
(i) The right to travel;
(ii) The right to vote; and
(iii) The right to privacy (including marriage, sexual relations, child rearing, and the right of related persons to live together).
9
Q
Who may impeach the president and who may convict the president?
A
The House of Representatives determines what constitutes “high crimes and misdemeanors” and may impeach by a majority vote. The Senate tries the impeached official, and a 2/3 vote is necessary for conviction.
10
Q
Name the three requirements that must be met in order for a restriction on the time, place, or manner of speech to be permissible.
A
The restriction must:
(i) Be content-neutral as to both subject matter and viewpoint;
(ii) Be narrowly tailored serve a significant state interest; and
(iii) Leave open ample alternative channels for communication of the information.
11
Q
What level of scrutiny applies to laws interfering with fundamental rights?
A
Strict scrutiny
12
Q
There is a general rule that states cannot enact legislation that discriminates against out-of-state commerce. What are the five exceptions to this rule?
A
(i) Necessary to important state interest and no other nondiscriminatory means are available
(ii) State as a Market Participant
(iii) Traditional government function exception
(iv) Subsidies
(v) Federal/Congressional Approval
13
Q
To have standing, a plaintiff bears the burden of establishing three elements. Name the elements.
A
(i) Injury in fact;
(ii) Causation (the injury must be caused by the defendant’s violation of a constitutional or other federal right); and
(iii) Redressability (the relief requested must prevent or redress the injury).
Note: The federal judiciary has also established a “prudential standing” requirement, i.e., that a plaintiff is a proper party to invoke a judicial resolution of the dispute.
14
Q
What is the difference between the Privileges and Immunities Clause of Article IV and the Privileges or Immunities Clause of the Fourteenth Amendment?
A
Article IV applies to state citizenship and the Fourteenth Amendment applies to national citizenship.
Note: The Fourteenth Amendment’s Privileges or Immunities Clause applies, in practice, only to the right to travel.
15
Q
In the absence of federal regulation, state regulation of commerce is valid so long as: (Name the three rules)
A
(i) There is no discrimination against out-of-state interests;
(ii) The regulation does not unduly burden interstate commerce; and
(iii) The regulation does not purposefully and deliberately apply to wholly extraterritorial activity.
16
Q
Define the Takings Clause of the Fifth Amendment.
A
Private property may not “be taken for public use, without just compensation.”
This includes interests in real property and personal property, and both possessory and nonpossesory interests in land (e.g., easements, liens).
17
Q
What is required for a governmental affirmative action program based on race to be constitutional?
A
To pass strict scrutiny:
(i) The government must itself be guilty of specific past discrimination against the group it is seeking to favor; and
(ii) The remedy must be narrowly tailored to end that discrimination and eliminate its effects.
18
Q
Name three actions not barred by the Eleventh Amendment.
A
The Eleventh Amendment does not bar:
(i) Actions against local governments
(ii) Actions by the United States government or other state governments
(iii) Bankruptcy proceedings that impact state finances
19
Q
Name the five categories where the government is permitted to restrict speech on the basis of content.
A
- Obscenity
- Incitement to violence
- Fighting words
- Defamation
- Commercial speech
20
Q
Compare and contrast ripeness and mootness.
A
Ripeness and mootness both deal with the timeliness of an action for judicial review purposes. Ripeness is an action that is brought too soon, and mootness is an action that is brought too late, as there is no longer a case or controversy.
21
Q
Under Equal Protection, when is intermediate scrutiny applied?
A
When a classification is based on gender or status as a nonmarital child (legitimacy)
Note: In gender cases, there must be an “exceedingly persuasive justification” for the classification.
22
Q
How is the President’s veto power exercised?
A
The President can, within 10 days of presentment, veto (or reject) a bill and send it back, with objections, to the house in which it originated. Once a bill is vetoed, Congress can override the President’s veto with a 2/3rds vote in each house.
23
Q
Generally, a person who is intentionally being deprived of life, liberty or property, is entitled to what two procedural due process rights?
A
The rights to notice and a hearing
24
Q
Over what types of cases does the Supreme Court have original jurisdiction?
A
The Supreme Court has original jurisdiction over:
(i) All cases affecting ambassadors
(ii) Other public ministers and consuls
(iii) Those in which a state is a party
25
For what types of offenses can the President exercise the Pardon Power?
The Constitution grants the President the power to "grant reprieves and pardons for offenses against the United States, except in cases of impeachment." This power only applies to federal cases- the President may not pardon anyone for state offenses.
26
What is the scope of the President's power to remove executive officials?
The Constitution says nothing about the President's power to remove executive officers, but it is generally accepted that the President may remove any executive appointee without cause (and without Senate approval).
Note: federal judges are excepted and hold their offices during good behavior and until impeached.
27
What are the two means for establishing appellate jurisdiction in the Supreme Court?
1. Certiorari (discretionary review)
2. Direct appeal (mandatory)
28
The federal government may not commandeer state legislators. What does this mean?
Congress cannot command state legislature to enact specific legislation or enforce a federal regulatory program, and it may not circumvent that restriction by conscripting a state executive officer directly.
Note: While Congress cannot directly command (either by compelling a state to enact legislation or prohibiting a state from enacting new laws), it can use its taxing and spending powers to encourage state action.
29
Define rational basis.
A law meets the rational basis standard of review if it is rationally related to a legitimate state interest.
Note: This test generally results in the law being upheld.
30
What is required to trigger constitutional protections (with the exception of the Thirteenth Amendment)?
State action
31
Define strict scrutiny.
The law must be the least restrictive means to achieve a compelling governmental interest.
32
What is the difference between the Due Process Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment?
The Due Process Clause of the Fifth Amendment applies against the federal government, and the Due Process Clause of the Fourteenth Amendment applies against the states.
33
What powers does Congress use to encourage state action that it cannot directly compel?
The Taxing and Spending Power, which gives Congress the broad power to spend for the general welfare
Note: Congressional encouragement may not exceed the point at which pressure turns into compulsion.
34
Define intermediate scrutiny.
To be constitutional, the law must be substantially related to an important governmental interest.
35
Under the commerce power, what three areas can Congress regulate as interstate commerce?
(i) The channels of interstate commerce;
(ii) The instrumentalities of interstate commerce; and
(iii) Intrastate and interstate activity (economic or commercial) that has a substantial effect on interstate commerce.
Note: Remember that Congress may regulate intrastate activity that does not have a direct economic impact on interstate commerce as long as there is a rational basis for concluding that the “total incidence” of the activity in the aggregate substantially affects interstate commerce.
36
When can the states tax the federal government?
When that tax is indirect and does not unreasonably burden the federal government (e.g., state income taxes on federal employees)
37
What is a legislative veto, and is it constitutional?
Legislative vetoes arise when Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution. Such acts are unconstitutional.
38
In what three circumstances is federal preemption implied?
(i) Congress intended for federal law to occupy the field;
(ii) The state law directly conflicts with federal law; or
(iii) The state law indirectly conflicts with federal law by creating an obstacle or frustrating the accomplishment of that law's purpose.
39
When is Congress able to regulate purely private conduct?
When it adopts legislation rationally related to eliminating racial discrimination (i.e., “badges or incidents” of slavery) pursuant to the Thirteenth Amendment.
40
What does it mean for a claim to be ripe for litigation?
The plaintiff must have experienced a real injury (or imminent threat thereof). A federal court will not consider a claim before it has fully developed.
41
When does federal law expressly preempt state law?
When (i) the Constitution makes federal power exclusive (such as the powers to coin money or declare war), or (ii) when Congress has enacted legislation that explicitly prohibits state regulation in the same area
42
What standard is used to determine whether a tax by Congress should be upheld?
The tax only need be rationally related (or have a reasonable relationship) to revenue production.
43
(A) If the Constitution and a treaty conflict, which controls?
(B) If a treaty and an act of Congress conflict, which controls?
(A) The Constitution is superior to a treaty.
(B) The most recently adopted will control.
44
What must the plaintiff show in order to trigger strict or intermediate scrutiny under the Equal Protection Clause?
Discriminatory intent, which can be shown facially, as applied, or when there is a discriminatory motive
45
What clause of the US Constitution grants Congress the power to enact legislation to execute authority granted to a branch of the federal government?
The Necessary and Proper Clause grants Congress the power to enact any legislation necessary and proper to execute any authority granted to any branch of the federal government.
Note: The Necessary and Proper clause is not an independent source of power. It simply permits Congress to use otherwise designated authority to be exercised fully.
46
What is the "nondelegation doctrine," and in what circumstances is an exception to the doctrine made?
A principle that states Congress may not delegate legislative power to any other branch of government. However, Congress can delegate some of its authority to the executive branch, so long as Congress specifies an "intelligible principle."
Note: The power of impeachment and the power to declare war are nondelegable. Further, an administrative agency may not make “decisions of vast economic and political significance” unless Congress clearly gives the agency decision-making authority in that area.
47
A state may impose a nondiscriminatory tax on interstate commerce, as long as the following three requirements are met:
(i) There is a substantial nexus between the taxing state and the property or activity to be taxed;
(ii) There must be fair apportionment of tax liability among states; and
(iii) The tax must be fairly related to the services provided by the taxing state.
48
What level of scrutiny applies in the following situations:
(1) State law intentionally targets religious conduct
(2) Neutral law that has an impact on religious conduct
47 of 67
(1) Strict scrutiny
(2) Rational basis
49
In what two scenarios does private conduct amount to state action?
(i) When a private person carries on activities that are traditionally performed exclusively by the state; and
(ii) When the government is significantly involved in private discrimination.
50
A political question not subject to judicial review arises when: [Name the two possibilities.]
(i) The Constitution has assigned decision making on this subject to a different branch of the government; or
(ii) The matter is inherently not one that the judiciary can decide.
51
What requirements must be met for a government to be permitted to regulate speech-related activities in nonpublic forums?
The regulation must be:
(i) Viewpoint-neutral; and
(ii) Reasonably related to a legitimate governmental interest.
52
(1) When can the President invoke executive immunity; and
(2) When is the President not protected by executive immunity?
(1) The President may not be sued for civil damages with regard to any acts performed as part of the President's official responsibilities.
(2) The President has no immunity for civil actions based on conduct that occurred before the President took office or completely unrelated to carrying out the job.
53
When discussing third-party standing, what are the two requirements for an organization to bring an action on behalf of its members?
In order for an organization to bring an action on behalf of its members, the organization needs to show:
(i) Its members would have standing to sue in their own right; and
(ii) The interests at stake are germane to the organization's purpose.
54
The Supreme Court has sorted government property that is open for speech into three categories.
What are the three categories?
1. Traditional public forums
2. Designated public forums
3. Nonpublic/limited public forums
55
What is a line item veto?
A line item veto is where the President refuses only part of a bill and approves the rest. Line item vetos violate the Presentment Clause and are therefore unconstitutional.
56
What is an advisory opinion and why do federal courts not render them?
An advisory opinion is an opinion issued by a court or a commission (like an election commission) that does not have the effect of adjudicating a specific legal case, but merely advises on the constitutionality or interpretation of a law.
Federal courts do not render advisory opinions because federal courts only render decisions where an actual case or controversy exists.
57
When is there a legitimate property interest in continued public employment?
When there is an employment contract or a clear understanding that the employee may be fired only for cause
Note: Even those employees who lack any entitlement to continued employment cannot be discharged for reasons that in and of themselves violate the Constitution.
58
What four requirements must be met in order for government regulation of expressive conduct to be upheld?
(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.
59
How does injunctive relief operate as an exception to the application of the Eleventh Amendment?
When a state official, rather than the state itself, is named as the defendant, the state official may be enjoined from enforcing a state law that violates federal law, or may be compelled to act in accord with federal law despite state law to the contrary. However, federal courts generally may not issue injunctions against state court judges or clerks because they generally do not enforce state laws but resolve disputes between parties.
60
What is a pocket veto?
If Congress has adjourned within the 10-day period after presenting a bill to the President, and the President had not yet acted on the bill, this is known as a "pocket veto" and the bill does not become law. This cannot be overridden.
61
What is provided under the Tenth Amendment?
The Tenth Amendment provides that all powers not assigned by the Constitution to the federal government are reserved to the states, or to the people.
62
What does it mean for a judgment to rest on "adequate and independent state grounds"?
The state law grounds fully resolve the matter (i.e., be adequate) and do not incorporate a federal standard by reference (i.e., be independent). The U.S. Supreme Court may not review a final state-court judgment that rests on adequate and independent state grounds.
63
Name the four situations where a federal or state statute will be struck down as being ex post facto.
If the law:
(i) Creates a new crime and applies retroactively;
(ii) Increases the penalty for past conduct;
(iii) Deprives the defendant of a defense available at the time the act was committed; or
(iv) Decreases the prosecution's burden of proof required for a conviction below what was required when the alleged offense was committed.
64
What does it mean in terms of mootness when a case is capable of repetition, yet evading review?
A case will not be dismissed as moot if there is a reasonable expectation that the same complaining party will be subject to the same action again (capable of repetition) but that the action will not last long enough to work its way through the judicial system (yet evading review).
Note: Roe v. Wade provides the classic constitutional example. By the time the woman seeking to terminate her pregnancy finally came before the Supreme Court, she was no longer pregnant, therefore the argument was made that her claim was moot. However, she could once again find herself in a similar situation, and would again be without judicial recourse.
65
What type of immunity does a judge have for judicial acts resulting in civil liability?
Absolute immunity
Exception-- if the court clearly lacked subject-matter jx at the time the action was taken
66
Under Equal Protection, in what two instances does the court apply the strict scrutiny test?
When the state action in question involves a fundamental right or suspect classification.
67
When does a taxpayer have standing to file a federal lawsuit?
A taxpayer has standing when the taxpayer's suit (1) challenges legislation enacted under Congress's taxing and spending power and (2) alleges a violation of a specific constitutional limitation on that power (i.e., the establishment clause).
(A taxpayer also has standing to litigate whether, or how much, she owes on her tax bill.)
68
What type of class is citizenship?
Suspect, which triggers strict scrutiny.
69
What is the free exercise clause and what does it allow?
The free exercise clause of the First Amendment, applicable to the states through the Fourteenth Amendment, guarantees the freedom to believe in any religion or no religion at all. This clause prohibits government interference with or discrimination against sincere religious beliefs or conduct.
Accordingly, the free exercise clause allows the government to determine whether a religious belief is sincerely held but not whether that belief is reasonable or true.
70
What does the Article IV, Section 2 privileges and immunities clause do?
The Article IV, Section 2 privileges and immunities clause prohibits states from treating citizens of other states in a discriminatory manner by denying them a right of state citizenship. But this clause does not prohibit states from discriminating against their own citizens
71
Content-neutral regulations trigger what standard of review?
Content-neutral restrictions that regulate the time, place, or manner of speech—e.g., no signs allowed on city property—are constitutional if they satisfy intermediate scrutiny review. This standard of review requires that the restriction be narrowly tailored to serve a significant government interest and leave open alternative channels of communication.
72
Content-based restrictions trigger what standard of review?
Content-based restrictions on speech are presumptively invalid and will only be upheld if they survive strict scrutiny—i.e., if the government proves that the restriction is necessary and narrowly tailored to achieve a compelling government interest.
73
What is the ex post facto clause?
The ex post facto clauses prohibit federal and state governments from enacting criminal laws that have a retroactive punitive effect (i.e., ex post facto laws).
74
When does the ex post facto clause apply to civil laws?
A civil law will be deemed to be an ex post facto law when its retroactive effect is so punitive that it clearly overrides its nonpunitive purpose.
Courts weigh several factors to determine whether the punitive effect of a retroactive civil law clearly overrides its nonpunitive purpose. These include whether the law:
- imposes an affirmative disability or restraint (e.g., imprisonment)
- 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
75
Are federal laws based on US citizenship presumptively constitutional?
Under Article I of the Constitution, Congress has plenary (i.e., exclusive) authority over immigration and naturalization, so federal laws based on U.S. citizenship are presumptively constitutional.
To rebut this presumption and show that such a law violates the equal protection component of the Fifth Amendment, a challenger must show that the law is not rationally related to a legitimate government interest—i.e., that the law is arbitrary or unreasonable.
76
What does procedural due process require for public employees who can only be fired for cause?
When a public employee can only be fired for cause, procedural due process generally requires that the employee receive (1) notice of any alleged misconduct, (2) a pre-termination hearing to respond to the allegation, and (3) a post-termination evidentiary hearing to determine if the dismissal was warranted.
77
When does a regulatory taking occur?
A regulatory taking occurs when the government (1) substantially restricts the use of private property or (2) deprives an owner of all economically beneficial use of the property but the owner retains possession of it.
78
What standard are laws that retroactively impair an ordinary right (e.g., the right to raise the statute of limitations as a defense, property use) challenged under?
Laws that retroactively impair an ordinary right can be challenged on substantive due process grounds. Such laws are reviewed under rational basis scrutiny and therefore are generally constitutional.
79
What does the militia clause do?
Under the militia clauses, Congress has the power to authorize the President to deploy the National Guard into action without the approval of the state governor to execute federal laws, suppress insurrections, or repel invasions.
80
When can the government interfere with the First Amendment freedom of association?
The government can interfere with the First Amendment freedom of association by punishing persons who (1) are active members of a subversive organization, (2) know of the organization's illegal objectives, and (3) specifically intend to further those objectives.
81
What is the ministerial exception to the First Amendment?
The First Amendment free exercise clause prohibits government interference with a religious organization's right to shape its faith and mission. As a result, the ministerial exception protects religious organizations from civil liability for employment discrimination when they hire or fire employees who serve in ministerial roles.
82
What does Section 2 of the Fourteenth Amendment do?
Section 2 of the Fourteenth Amendment permits states to prohibit felons—even those unconditionally released from prison—from voting in elections.
83
Who can regulate foreign commerce?
The commerce clause gives Congress plenary (i.e., exclusive) authority to regulate foreign commerce—including the power to impose tariffs (i.e., taxes) on imported goods.
84
When does the Fourteenth Amendment require that a judge recuse themself from a case?
The Fourteenth Amendment due process clause requires that the government provide an opportunity to be heard before a neutral decision-maker. A judge must therefore recuse him/herself from a case when (1) the judge has a direct, personal, substantial, pecuniary interest in it or (2) a serious, objective risk of actual bias exists.
85
Can race be the predominant factor used to draw boundary lines for state or federal legislative districts?
Race cannot be the predominant factor used to draw boundary lines for state or federal legislative districts. And if it is, those boundary lines will be subject to strict scrutiny and likely invalidated on equal protection grounds.
86
What is the enclave clause?
The enclave clause of Art. I, Section 8 gives Congress plenary (i.e., exclusive) legislative power over the District of Columbia.
87
Does Congress have the power to tax exported goods?
Under the export clause, Congress can never impose taxes on exported goods or services or on services and activities closely related to the export process.
88
For the purposes of a private entity's conduct constituting state action, what meets the "significantly involved" prong?
To be considered significantly involved, the state must act affirmatively to facilitate, authorize, or encourage the private activity or must have intertwined its actions with those of the private entity to such an extent that the state and the private party mutually benefit from the
involvement (e.g., a joint venture).
Merely providing government funding (however substantial), licensing, or regulating does not amount to significant involvement.
89
When does different treatment of the genders by the government survive an equal protection analysis?
Different treatment of the genders by the government (for example separate sports facilities at state
universities) does not violate the equal protection guarantee if the state can show that it has an
“exceedingly persuasive justification” for the different treatment and that the separate facilities offered
are “substantially equivalent.”
90
What does the First Amendment protect?
The freedom of speech as well as the freedom not to speak. Protected speech can include written, oral, and visual communication, as well as expressive conduct such as picketing and leafleting.
91
What constitutes unconstitutional legislative interference with an executive function?
Once Congress delegates power to an executive agency, it cannot interfere with the agency's functions without satisfying the legislative-action process-- i.e., bicamerilalism and presentment. Any attempt to bypass this process is an unconstitutional legislative veto.
92
What does Section 5 of the 14th Amendment do and what are the limits on Congress's power to enact legislation under this clause?
The Fourteenth Amendment, Section Five Enabling Clause permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by that amendment.
However, this clause does not grant Congress the authority 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.
Accordingly, though Congress may override state government action that infringes upon Fourteenth Amendment rights if the "congruence and proportionality" test is satisfied, its enforcement power would not stretch to prohibit a law that does not violate the Constitution.
93
When it comes to rational basis review, is it required that there actually be a link between the means selected by the state and a legitimate state objective?
It is not required that there actually be a link between the means selected by the state and a legitimate state objective. However, the legislature must reasonably believe there is a link.
94
Who has the burden when it comes to a rational basis review challenge?
The burden is on the challenger to show that a law is arbitrary or irrational (laws are presumed valid).
95
What does procedural due process require in civil forfeiture actions?
Typically, procedural due process requires the government provide reasonable notice of seizure and a meaningful opportunity to be heard before a neutral decision-maker.
However, personal property may be seized prior to providing notice and a hearing when:
- 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.
96
How many Congress use its spending power to regulate states?
Congress may use its spending power to regulate states by placing conditions on the receipt of federal funds that (1) are clear and unambiguous, (2) are reasonably related to the purpose for which the funds will be expended, (3) do not require recipients to engage in unconstitutional activity, and (4) are not unduly coercive (i.e., withholding 10%+ of a state's overall budget).
97
Who has the exclusive power to recognize foreign governments?
The President.
98
When does the First Amendment shield the media from liability for publishing truthful information that was unlawfully obtained by a third party?
The First Amendment shields the media from liability for publishing truthful information that was unlawfully obtained by a third party if (1) the information involves a matter of public concern and (2) the publisher neither obtained it unlawfully nor knows who did.
99
Is the federal government immune from taxes on its commercial acticity?
Yes, unless Congress expressly consents
100
What is the 21st Amendment?
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).
101
Can Congress override state laws regulating Congressional elections?
Yes. The Article I, section 4 elections clause grants state legislatures the power to enact laws that regulate the time, place, and manner of congressional elections (e.g., by establishing voting sites). But the clause also grants Congress the power to override those state laws by supplanting them with federal law.
102
How does the Fourteenth Amendment interact with the regulation of children's education?
The Fourteenth Amendment due process clause generally prohibits states from enacting laws that substantially impair parents' right to control their children's upbringing and education.
However, this right is not absolute, so states may impose reasonable educational standards on schools without violating the due process clause (such as requiring children to attend school, establishing minimum competency requirements for instructions, and defining an academic curriculum and content).
103
How is the standard for reviewing state electoral regulations determined?
The standard for reviewing such regulations depends on whether the burden imposed is ordinary (rational basis) or severe (strict scrutiny).
104
What is the general test for determining whether Congress can regulate an activity?
To determine if Congress can regulate an activity, courts consider whether (1) the activity is economic in nature, (2) the regulation contains a jurisdictional element, (3) Congress made express findings on the activity's effect on interstate commerce, and (4) there is a strong link between the activity and that effect.
105
What are the limits on Congress's ability to revoke US citizenship?
Congress has plenary (i.e., exclusive) power to regulate naturalization—i.e., the process through which noncitizens obtain U.S. citizenship. But the Fourteenth Amendment limits this power by prohibiting Congress from revoking the citizenship of any U.S. citizen without his/her consent unless that citizenship was obtained by fraud or in bad faith.
106
Can Congress appoint federal officers?
No. Federal officers (1) hold a continuing public office and (2) have significant discretionary authority to administer and/or enforce laws (i.e., executive powers). They must be appointed by the President or in a manner otherwise consistent with the Article II appointments clause, which does not permit congressional appointments.
107
What is the standard for reviewing restrictions on the Second Amendment right to bear arms?
SCOTUS has never determined whether rational basis or strict scrutiny review applies to restrictions on the Second Amendment right to bear arms. Instead, such restrictions must not interfere with a traditionally lawful purpose for possessing and using firearms.
The Second Amendment guarantees individuals the right to possess and use firearms for traditionally lawful purposes like self-defense in the home. However, this right is not absolute, so certain government restrictions are permissible—e.g., imposing conditions and qualifications on commercial sales of firearms.
108
Does Congress have the power to regulate private property that affects federal public land?
The Article IV, section 3 property clause gives Congress complete power to dispose of and regulate federally owned land and territories. This clause includes the power to regulate private property that affects federal public lands when such regulation is necessary to protect those lands
