Constitutional Law

Question 1

Ripeness

Answer 1

Issue fit for judicial decision [legal] + P would suffer hardship w/o review

Question 2

Mootness

Answer 2

Real, live controversy at all stages; P must be still suffering)

Question 3

Standing

Answer 3

P has concrete stake in outcome at all stages of litigation; injury in fact (particularized and concrete). P must be within zone of interests of Congress.

Question 4

Taxpayer Standing

Answer 4

Challenge tax bill, Congressional taxing/spending in violation of establishment clause (religion), or fed action violating 10th amendment

Question 5

Sovereign Immunity

Answer 5

Can’t sue state in federal court for damages w/o permission (explicit or structural).
States can sue other states and so can the federal government.
Can sue state officials (enjoin) and local government.

Question 5

SC Cases Require

Answer 5

Ripeness, no mootness, standing, causation, and redressability

Question 6

Congress’s Police Power

Answer 6

Congress has no general police power, only over DC, fed lands, bases, reservations

Question 7

Congress’s Taxing Power

Answer 7

If revenue raising > gen valid; may be for any public purpose not prohibited

Question 8

Congress’s Spending Power

Answer 8

May be for any public purpose; strings allowed if strings clearly stated, related to purpose of grant, and not unduly coercive

Question 9

Congress’s Commerce Power

Answer 9

All foreign and interstate commerce (+ intrastate channels, instrumentalities, and activities with substantial impact on interstate)

Question 10

Congress’s Property Power

Answer 10

Eminent domain, dispose of federal property, rules/laws re fed lands/reservations

Question 11

Delegation Doctrine

Answer 11

Congress may delegate power (requires intelligible standard), may not do line item veto or legislative veto OR limit pardon power

Question 12

Major Questions Doctrine

Answer 12

Rules w/ extraordinary significance > language clearly granting authority

Question 13

Speech or Debate Clause

Answer 13

Immunity for speech made within Congress

Question 14

Domestic Presidential Powers

Answer 14

Appoint/remove officers & SC justices > Advise and consent of Senate
Pardon for federal crimes (offenses against the US; except impeachment)
Veto power – 10 days; no action: Congress in session > approval; out > pocket veto
Pres v. Congress: Youngstown guidance: express/implied > highest power, valid; silent > med power, valid; against will > low power; likely invalid

Question 15

External Presidential Powers

Answer 15

War Power – President can commit troops
Represent US in foreign relations
Treaty power – Sign treaties with approval of 2/3 of Senate

Question 16

Treaty Power vs Other Laws

Answer 16

Treaty is = to other federal laws; conflict with congressional act > last in time
Self-executing treaties don’t require implementation
Executive agreements are enforceable if they don’t conflict with fed law/const
Conflicting state law invalid against exec agreements and treaties

Question 17

Executive Privilege

Answer 17

Extends to documents and conversations; yields if court decides info needed for crim
Presidential immunity for civil damages re actions taken as President

Question 19

State Police Power

Answer 19

10th Amendment
States have general police powers (health, safety, welfare of people)

Question 20

Supremacy Clause

Answer 20

Federal law is supreme and conflicting state law is invalid
Includes actual conflict, interference w/ fed objectives, and preemption
Express preemption – Fed law expressly says states cant adopt laws on topic
Implied preemption: Conflict – State law conflicts w/ fed > preempted; Objective – State law prevents fed objective > preempted; Field – Fed law/agency oversees area > maybe preemption

Question 21

States Discriminating Against Interstate Commerce

Answer 21

Discriminatory laws are presumptively invalid; state can justify if it is necessary to achieve a purpose unrelated to protectionism and there are no alternatives
Non-discriminatory laws are presumptively valid; may not be unduly burdensome
Exceptions: Congressional approval, state as market participant, traditional gov functions

Question 22

Dormant Commerce Clause

Answer 22

If Congress has not regulated, state can regulate local aspect of interstate commerce if:
Doesn’t discriminate against other states (protectionist) OR unduly burden interstate commerce

Question 23

Federal Taxation of States

Answer 23

Taxes/regs applying to both private & state entities > valid
Taxes/regs of states as states > generally invalid
States cannot directly tax or regulate fed gov, but can tax fed employee salaries

Question 24

Full Faith and Credit Clause

Answer 24

State court judgements must be recognized in other states if court that rendered judgement has jurisdiction, judgement was on merits, and is final

Question 25

Privileges and Immunities Clause

Answer 25

Article 4
Protects out of state citizens from state denying them important economic interests
Invalid unless: substantial justification + no less restrictive means available
Prohibits states from discriminating against citizens of other states re fundamental rights

Question 26

Constitutional Rights Apply When

Answer 26

There is a state action by the government (other than 13th)
Private actions can be attributed to gov if they are in form of trad gov function, involve significant state involvement, or state/private actors are entwined

Question 27

Scrutiny: Rational Basis

Answer 27

Gov must show law rationally related to legit government purpose
Used on regs which do not affect fundamental rights or discriminate against suspect/quasi-suspect classes
Burden on challenger; Gov typically wins unless arbitrary/irrational

Question 28

Scrutiny: Intermediate Scrutiny

Answer 28

Upheld if law is substantially related to important gov purpose
Used for quasi-suspect classifications (gender/legitimacy)
Gender > exceedingly persuasive justification
Burden unclear, typically on government

Question 29

Scrutiny: Strict Scrutiny

Answer 29

Gov must show law is necessary (least restrictive) to achieve compelling gov purpose
Used for regs affecting fundamental rights or suspect classifications
Fundamental rights (interstate travel, voting, 1st amendment)
Suspect classifications (race, national origin, alienage)
Burden on government

Question 30

Contracts Clause

Answer 30

States may not pass laws which retroactively impair contract rights
Private Contracts – Intermediate scrutiny
Public Contracts – Heightened scrutiny; worried gov will try to give themselves better deal

Question 31

Ex Post Faco Laws

Answer 31

Laws retroactively altering criminal liability are prohibited

Question 32

Procedural Due Process

Answer 32

Right to fair process before gov deprives (any actual or physical appropriation) of life/liberty/property.
Notice – Reasonable notice of deprivation
Hearing – Opportunity to be heard
Neutral decision maker – no actual bias or risk of bias

Question 33

Regulatory Takings

Answer 33

Regulation leaves no economically viable use > taking
Regulation decreases economic value > apply balancing test and consider the economic impact, investment-backed expectations, and the public interest

Question 34

Substantive Due Process

Answer 34

Prohibition against unreasonable laws.
Fundamental rights (all 1st am, right to travel, voting) > strict scrutiny

Question 35

Voting Restrictions and Districting

Answer 35

Voting: residency requirements w/ reasonable time periods generally valid, as is ID requirement, but not poll taxes
For state/local elections, populations of voting districts must be substantially equal (<10% variance; unless protecting political lines)
States must use almost exact mathematical equality when creating congressional districts within the state
Racial/suspect gerrymandering not allowed unless meeting strict scrutiny but political gerrymandering is a political question not reviewable by court

Question 36

Privacy Rights

Answer 36

Marriage – Narrowly tailored to compelling/important gov interest (if reg doesn’t substantially burden right [like age] > rational basis
Procreation – Fundamental right, may not be limited
Contraceptives – State cannot prohibit nonmedical contraceptives
Rights of Parents - companionship, care, custody, upbringing
Right to Live with Family
Abortion – Left to states; reg entitled to presumption of validity
Obscene Reading Material – Freedom in own home
Unspecified Rights > standard is unclear
Intimate sexual conduct > state has no legitimate interest
All other interests > rational basis (rationally related; legit gov purpose)

Question 37

Equal Protection

Answer 37

Gov is selectively treating a person or class of persons differently from others.
Reasonableness depends on criterial (suspect or quasi-suspect) and nature (fundamental)

Question 38

Equal Protection - Discriminatory Intent

Answer 38

Facial discrimination/discriminatory motive > sufficient
Discriminatory in application > sufficient to show intent
Disparate impact > intent must be shown or rational basis review

Question 39

Equal Protection - Suspect Classifications

Answer 39

Strict Scrutiny: Gov must show law is necessary (least restrictive) to achieve compelling gov purpose
Affirmative action invalid unless seeking remedy to past discrimination
Alienage – state/local laws are suspect except for employment
Privacy rights (marriage, contraceptives, obscene reading materials)
Voting/state benefits > short residency requirements are usually valid

Question 40

Equal Protection - Quasi-Suspect Classifications

Answer 40

Intermediate Scrutiny: Upheld if law is substantially related to important gov purpose
Sex-discrimination > exceedingly persuasive justification
Discriminatory regs punishing nonmarital children

Question 41

Freedom of Speech

Answer 41

Gov speech must be viewpoint neutral (includes monuments and funding of speech) except for funding for the arts.
Speech is words, symbols, or expressive conduct (intent to convey a message + perceived)
Rules typically invalidated for overbreadth, vague, or too much discretion
Overbreadth: Regulation failing to give reasonable notice of what is prohibited has chilling effect on speech and violates due process.

Question 42

Content-Based Speech Restrictions

Answer 42

Strict-scrutiny, presumptively unconstitutional

Question 43

Content-Neutral Speech Restrictions

Answer 43

Intermediate scrutiny, important interest unrelated to suppression of speech + not burden more than necessary

Question 44

Unprotected Types of Speech

Answer 44

Incitement – Intended to produce imminent lawless action + likely to do so
Fighting words – Personally abusive, incite physical retaliation
True threats – intended to convey to someone threat of bodily harm
Obscenity - prurient interest in sex, portrays sex in patently offensive way, and has little outside value

Question 45

Partial Protection of Speech

Answer 45

Defamatory speech (of public concern):
If P a private figure > P must show negligence for actual damages OR actual malice for punitive/presumed damages; If a private concern > no first amendment involved;
If P public official > P must prove defamation + falsity + fault; Fault = actual malice (knowing it was false or reckless re truth)

Speech of gov employees: Official or private > punish unwanted/disruptive; matter of public concern > balance right against gov interest

Intentional Infliction of Emotional Distress: Proof of actual malice if P is public figure + speech public concern

Commercial Speech – Protects truthful commercial speech. Does not protect false, misleading, or info about illegal products . Regulation of speech re lawful activity & not false/misleading reg valid if: serves substantial gov interest, directly advances interest, and is narrowly tailored for that interest. Complete bans on ads are unlikely to be upheld. Gov requirement of ad disclosures valid if not unduly burdensome

Question 46

Time, Place, and Manner Restrictions

Answer 46

Public forums (gov-owned property historically open to speech activity)
Content-based > subject to strict scrutiny.
Content-neutral > reqs it is narrowly tailored, alt channels open
Same for designated public forums(not historically open, but limited basis)
Schools that are open for public/extracurricular activities become public

Nonpublic forums (gov property not open for speech)
Includes limited public forums (opened for specific speech activity)
Regulations valid if viewpoint neutral + reasonably related to legit interest
Viewpoint based > strict scrutiny

Question 47

Prior Restraints on Speech

Answer 47

Invalid unless justified by special harm/by contract
Must be narrowly drawn, reasonable, definite

Question 48

Speech by students attending public schools

Answer 48

Speech can be reasonably regulated to serve school’s educational mission
Student’s own speech cant be censored absent substantial disruption
If off campus, harder to censor (unless bullying, threats, etc.)
Restrictions related to teaching must be related to legit pedagogical concerns

Question 49

Employment Speech Protections

Answer 49

Protected: Speech on public concern but not related to official duties > balancing; Speech on private concern out of work > protected if no detriment on work
Unprotected: Speech on job & pursuant to official duties

Question 50

Freedom of Association

Answer 50

Disclosure of associations okay for gov benefits/employment if relevant to position
School sponsorship of extracurricular clubs > can be content based, must be viewpoint neutral and reasonably related to legit gov interest

Question 51

Free Exercise Clause

Answer 51

No punishment of beliefs
General conduct regulations that incidentally burden religious practices > valid
A law that is facially neutral and generally applicable is not subject to the Free Exercise Clause
Religious exemptions generally not required except: Amish secondary school; conscientious objectors re munitions work
Courts can question sincerity of person’s belief, but not truthfulness of the belief

Question 52

Establishment Clause

Answer 52

Establishment clause – Gov cannot aid or formally establish a religion, compels neutral
Neutrality principle: Compels the government to pursue a course of neutrality toward religion (not favor or disfavor), NO COERCISON
If not neural, may be permitted on historical tradition/practice
School-sponsored religious activity invalid but accommodation of religion valid