Constitutional Law

Question 1

Unprotected Speech

Answer 1

To be valid, restrictions on the content of speech must be necessary to achieve a
compelling government interest. The government has a compelling interest in the following categories of speech, which are deemed “unprotected speech” under the 1st
Amendment:

(1) Inciting imminent lawless action;
(2) Fighting words;
(3) Obscenity;
(4) Defamatory speech; AND
(5) Some commercial speech

Question 2

Rule about to make rules RE presidential electors.

Answer 2

Question 3

Free Speech Reqs for Public and Designated public forum

Answer 3

The government may regulate speech in public forums and designated public
forums with reasonable time, place, and manner regulations that:

(a) Are content-neutral (i.e., are subject matter and viewpoint neutral)

(b) Are narrowly tailored to serve an important government interest; AND

(c) Leave open alternative channels of communication.

Question 4

Free speech regulation in limited and non-public

Answer 4

The government may regulate speech in limited public forums and nonpublic
forums if the regulations are:

(a) Viewpoint neutral; AND

(b) Reasonably related to a legitimate government purpose

Question 5

Unprotected Speech

Answer 5

To be valid, restrictions on the content of speech must be necessary to achieve a
compelling government interest. The government has a compelling interest in the
following categories of speech, which are deemed “unprotected speech” under the 1st
Amendment:

subj to rules ofc

(1) Inciting imminent lawless action;
(2) Fighting words;
(3) Obscenity;
(4) Defamatory speech; AND
(5) Some commercial speech

Question 6

Inciting Imminent Lawless Conduct

Answer 6

Speech can be restricted if it creates a clear and present danger of imminent lawless
action. It must be shown that:

(1) Imminent illegal conduct is likely; AND

(2) The speaker intended to cause it.

Question 7

Fighting Words

Answer 7

Speech also can be limited if it constitutes fighting words. Fighting words are personally
abusive words that are likely to incite immediate physical retaliation in an average
person. Words that are merely insulting or annoying are not enough

however, The Supreme Court will NOT tolerate fighting words statutes that are designed to punish
only certain viewpoints (e.g., prohibiting only fighting words that insult on the basis of
race, religion, or gender).

Question 8

True Threats

Answer 8

True threats are NOT protected by the 1st Amendment (e.g., cross-burning carried out
with an intent to intimidate).

Question 9

Obscenity

Answer 9

Obscene speech is NOT protected. Speech is obscene if it describes or depicts sexual
conduct that, taken as a whole, by the average person:

(1) Appeals to the prurient interest in sex, using a community standard;

(2) Is patently offensive; AND

(3) Lacks serious literary, artistic, political, or scientific value, using a national
reasonable person standard.

Question 10

Commercial Speech

Answer 10

Generally, commercial speech is afforded 1st Amendment protection if it is truthful.
However, commercial speech that proposes unlawful activity or that is false,
misleading, or fraudulent may be restricted as unprotected speech.

Any other
regulation of commercial speech will be upheld only if it:

(1) Serves a substantial government interest;

(2) Directly advances that interest; AND

(3) Is narrowly tailored to serve that interest.

Therefore, complete bans on truthful advertising of lawful products are very unlikely to
be upheld due to a lack of narrow tailoring

Question 11

Can you be punished or deprived of public employment for your association with a group?

Answer 11

A person may only be punished or deprived of public employment
based on association if that individual:
(1) Is an active member of a subversive organization;

(2) Has knowledge of the organization’s illegal activity; AND

(3) Has a specific intent to further those illegal objectives.

Question 12

Does government have power to regulate conduct associated with speech?

Answer 12

Yes. The government has power to regulate the conduct associated with speech, HOWEVER
the breadth of this power depends on whether the forum involved is a public forum, a
designated public forum, a limited public forum, or a nonpublic forum.

Question 13

Prior Restraints on Speech

Answer 13

A prior restraint is a regulation of speech that occurs before its expression. Generally,
prior restraints are presumed to be unconstitutional with limited exceptions, including:

(1) There is a particular harm to be avoided (e.g., restraining a newspaper from
publishing troop movements).

(2) Procedural safeguards are provided to the speaker (e.g., the standards must be
narrowly drawn, reasonable, and definite).

Question 14

Variance

Answer 14

When a property owner proposes to use her property in a manner that does not conform with the uses permitted by a zoning ordinance for the property, the owner should seek a variance from the zoning enforcement officer.

Question 15

State action

Answer 15

Constitutional protections only apply to action by state/gov’t (except 13a)

But under the state-action doctrine, a private actor is considered a government actor (and bound by the Constitution) when:

the private actor performs a traditional and exclusive government functionor
the government is significantly involved in the private actor’s activities (more than funding or regulating).

Question 16

States taxing the feds

Answer 16

The federal government and its instrumentalities (such as a federal credit union) are immune from taxation by the states. States may, however, impose generally applicable indirect taxes so long as they do not unreasonably burden the federal government (e.g., state income taxes on federal employees).

Question 17

State’s ability to tax interstate commerce

Answer 17

States may tax interstate commerce if Congress has not already acted in the particular area and if the tax does not discriminate against or unduly burden interstate commerce.

The Supreme Court applies a four-part test to determine whether a state tax comports with the Commerce Clause:
(1) there must be a substantial nexus between the activity taxed and the taxing state (here, that requirement is satisfied as the taxing state is both supplying the electricity and paying for clean-up),
(2) the tax must be fairly apportioned according to a rational formula (here, tax is calculated by usage),
(
3) the tax may not provide a direct commercial advantage to local businesses over interstate competitors (nothing in the fact pattern indicates that this factor is present), and

(4) there must be a fair relationship between the tax and the service provided (here, the tax is calculated in direct proportion to usage and is used for clean-up efforts related to production of electricity)

Question 18

Bill of Attainder

Answer 18

​​​​​​ Article I bill of attainder clauses PROHIBIT federal and state legislative acts that inflict civil or criminal punishment on named persons—or easily identifiable groups of persons—without a judicial trial.

Question 19

Ex Post Facto Law

Answer 19

Prohibit enactment of retroactive criminal laws that:

criminalize previously legal conduct
impose greater punishment than previously prescribed
eliminate previously available defenses
decrease prosecution’s previous burden of proof

Question 20

1a protections, generally.

Answer 20

Question 21

Takings - when Govt is transfering your property to another private property.

Answer 21

The Fifth Amendment Takings Clause, which applies to the states through the Fourteenth Amendment, provides that a government may seize private property not only for its own direct use, but also in order to transfer the property to another private party.

Such a seizure is permissible if it is rationally related to a conceivable public purpose.

Question 22

Commerce Clause
Art I, sec. 8, clause 3

Answer 22

Congress’ power to regulate ISC, commerce with foreign nations and tribes.

Congr. has power to regulate:

i) the channels (highways, waterways, airways, etc.) and

(ii) the instrumentalities (cars, trucks, ships, airplanes, etc.) of interstate commerce, as well as

iii) persons and things in iSC and

(iii) any activity that substantially affects interstate commerce, provided that the regulation does not infringe upon any other constitutional right

Question 23

Congr. Commerce Power is

Answer 23

Construed broadly. But, no power to mandate individuals engage in commercial activities.

Question 24

Substantial Economic Effect Meaning

Answer 24

Congr has power to regulate any activity, intra or inter-state, that in and of itself OR in combination with other activities has a “substantial economic effect upon” or “effect on movement in” interstate commerce.

Question 25

What’s test for Congr. trying to Regulation economic INTRA-state activity?

Answer 25

Will be upheld if:

1. If economic/commercial activity

and

2. Theres a rational basis on which Congress could conclude
   that the activity in aggregate substantially affects interstate commerce.

Question 26

What’s test for Congr. trying to Regulation NON-economic, INTRA-state activity?

Answer 26

No aggregation.

Will only be upheld if
if Congress can
show a direct SUBSTANTIAL economic effect on interstate commerce, which it generally
will not be able to do.

Question 27

Congr. Taxing and Spending
Article I, Section 8 provides

Answer 27

Power to tax and spend for the common defense and general welfare

general welfare = any public purpose

*If you see the terms “appropriation bill” or “authorization bill” on the exam, the power to spend is likely a consideration.

Question 28

Taxing Power of Congress

Answer 28

A tax by C will generally be upheld if it has reasonable relationship to revenue production.

Plenary/exclusive power

But no specific power to legislate for the public welfare in general. such police power is reserved for state.

Question 29

Indirect Taxes

Answer 29

Indirect “Taxes” do not apply directly to people. They apply to entities/ things

i.e. duties, sales taxes, and import & excise taxes

Such taxes must be applied with uniformity - must be the same rate structure to exist nationally. does not mean they have to be applied to all states necessarily.

Question 30

Direct Taxes

Answer 30

A direct tax applies to land or directly to humans “without regard to property, profession, or any other circumstance. e.g. ad valorem tax

Direct Taxes by congress must be apportioned evenly among the states. Basically, each state has to pay the same amt total —>
Apportionment means that citizens of relatively wealthy states must pay at lower rates than citizens of relatively poor states in order to make the total payment for states of equal population come out the same.

Ex. Let’s say VA and MA have the same number of people and Congress wanted to directly tax every personal automobile. But, despite the same population #, MA has 1000 cars and VA only has 100. In order to meet the requirement of apportionment by population, VA cars would have to be taxed at a rate 10x higher than the tax rate on MA cars.

Question 31

16th A income tax

Answer 31

under the 16th Amendment, Congress the power to lay and collect income tax without apportionment among the states. Its technically considered an indirect tax…but is it really

Question 32

Congress - Export Taxation Clause

Answer 32

Goods exported to foreign countries and activities closely related to export may not be taxed by Congress. Article I, Section

Question 33

Congress - Origination Clause

Answer 33

provides that “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”

Question 34

Congr - Spending Power

Answer 34

Broad. Congress has the power to spend for the “general welfare”—i.e., any public purpose (but not police pwr)—not just to pursue its other enumerated powers.

it can use its spending power to accomplish such regulation indirectly by conditioning federal funding.

Question 35

When can congress attach restrictions/conditions on States receiving federal funds??

Answer 35

1) Spending must be for the general welfare;

2) Condition imposed unambiguously;

3) Condition related to federal interest in national projects or programs;

(must be nexus between condition and purpose of expenditure, UNLESS it has to do with enumerated power)

4) Condition cannot induce unconstitutional activity;

AND

5) Condition cannot be so coercive as to turn pressure into compulsion.

Question 36

Congr. - War and Defense Pwrs

Answer 36

Broad
Congress the power to declare war, raise and support armies, provide and maintain a navy, make rules for governing and regulating the land and naval forces, and provide for the organizing of a militia.

-may basically do whatever necessary for Natl defense during war time and peace time

-establish military tribunals

-has dual control of Natl Guard along with states –> can authorize President to call NG to do shit

Question 37

Congr - investigatory power

Answer 37

Congress does not have an express power to investigate, but the N&P clause gives them broad authority to conduct investigations incident to its power to legislate, which extends to congressional committees.

Question 38

Subpoena Power

Answer 38

“A congressional subpoena is valid only if it is related to, and in furtherance of, a legitimate task of the Congress; the subpoena must serve a valid legislative purpose, and must concern a subject on which legislation could be had.”

witness has due process rights

-court can quash if against president

Question 39

Property Power

Answer 39

Congress’s absolute power over federal lands. includes protecting public lands from nuisances. There is no express limit on Congress’s power to dispose of property owned by the United States.

TAKINGS: Under the Fifth Amendment, however, Congress may only take private property for public use (eminent domain) with just compensation and in order to effectuate an enumerated power.

Question 40

Congress Postal Power

Answer 40

Exclusive power.

Congress may impose reasonable restrictions on the use of the mail (such as prohibiting obscene or fraudulent material to be mailed), but the postal power may not be used to abridge any Constitution right (e.g., the First Amendment).

Question 41

Power of Non-Citizens Congr

Answer 41

Congr has plenary power in this arena, but subject to 5a DPC for noncit. in US

Congr. has power over naturalization process.

congress cannot take away citizen from person unless pbtained by fraud or bad faith, altho US citizen can voluntarily renounce

Question 42

Enclave Clause

Answer 42

Congress has supreme authority over Washington, D.C., and may legislate freely with regard to D.C. law.

Question 43

Elections Clause - Congr

Answer 43

Explicitly empowers Congress to override state laws concerning federal elections.

Question 44

Necessary & Proper

Answer 44

The Necessary and Proper Clause is not an independent source of power, but it permits Congress’s otherwise designated authority to be exercised fully

*must be attached to enumerated power

Question 45

Congr Power to Enforce Civil Rights Amendments 13, 14, 15

Answer 45

Each of the Thirteenth, Fourteenth, and Fifteenth Amendments contains a provision that authorizes Congress to pass “appropriate legislation” to enforce the civil rights guaranteed by those amendments

Question 46

13a - Congr Power

Answer 46

Congress has the power to adopt legislation rationally related to eliminating racial discrimination, as it is among the “badges or incidents” of slavery.

Only power that allows Congr to regulate purely private conduct.

Question 47

14a - Congr Power

Answer 47

Enabling Clause permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by 14a, but not to expand those rights or create new ones

• must be a “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end.
• Congr can override 11a State Sov Immunity in its exercise of 14a power

Question 48

15a - Congr

Answer 48

Right to vote - cant. deny based on race

Include the right to have that vote meaningfully counted.

Question 49

Pardon - President Powers - Article II

Answer 49

Reprieve or pardon federal offenses, except in cases of impeachment;

Question 50

Veto Power - President

Answer 50

Once passed by both houses of Congress, a bill must be presented to the President. Upon presentment, the President has 10 days to act on the proposed legislation.

P signs bill –> becomes law

P vetoes bill by sending back with objections –> congress can enact bill into law by 2/3 vote of each house

P does nothing –> two outcomes:

1. Congr in sesh at the end of the 10 days, it becomes law w/o P’s sign;
2. If Congr is NOT in sesh/adjourned at end of 10 days, bill does not become law - pocket veto

Question 51

Can president do line item vetoes?

Answer 51

NAH. No “line item” veto, refusing part of a bill and approving the rest, because it violates the Presentment Clause.

Question 52

Appointment power - president

Answer 52

Appoint all officers of the United States (e.g., ambassadors, Supreme Court
Justices, etc.) with the advice and consent of the Senate;

Question 53

Removal power - president

Answer 53

Remove any executive appointee without cause and without Senate approval,
except in cases of federal judges (federal judges may only be removed by
impeachment)

Question 54

Scope of the President’s power to issue executive orders and govern domestic affairs

Answer 54

Not clearly delineated.
Depends on degree of congressional
authorization the President

Question 55

President - commander in chief

Answer 55

Although the President is commander in chief of the military, only
Congress may declare war. However, the President may take military action without a declaration of war in the case of actual hostilities against the United States.

Question 56

President - treaties

Answer 56

The President has the exclusive power to negotiate treaties, although a treaty
may only be ratified with the concurrence of two-thirds of the Senate.

A treaty has the same authority as an act of Congress; should the two conflict, the one most recently adopted controls

Question 57

President - executive agreements w/other nations

Answer 57

do not require senate approval.

Conflicting federal statutes and treaties take precedence over executive agreements, but executive agreements take precedence over conflicting state laws.

Question 58

Appropriation

Answer 58

If Congress explicitly mandates an allocation, distribution, or expenditure of funds, the President has no power to impound those funds (e.g., refuse to spend them or delay the spending). The President is permitted to exercise discretion if the authorizing legislation so provides.

Question 59

Legislative Veto

Answer 59

It is unconstitutional for Congress to attempt a “legislative veto” of an executive action—that is, to retain direct control over the actions of an executive agency, rather than going through the proper channels of passing a bill.

cant do an end run around the bicameral process

Question 60

Delegation of Power by Congr.

Answer 60

Delegation of some of Congress’s authority to the executive branch has consistently been held constitutional, so long as Congress specifies an “intelligible principle” to guide the delegate

Cannot delegate law making power, impeachment power, power eto decl war

Question 61

11a State Sov. Immunity

Answer 61

-No suits against states govt in fed court by private party or foreign govt

-SSI also bars suits against states in state courts

Exceptions :
1. waiver

2. abrogation - suit involves enforcement under 14a, sec 5.
3. the fed gov brings the suit
4. bankruptcy

Suits Against State officers tho:
can be brought in fed court is suit invovles either:

1. injunctive relief claim for violation of const or fed law
2. claim for money damages to be paid by state officer personally

Question 62

Executive Immunity & Privilege

Answer 62

President has absolute immunity from civil damages based on any action he took
within his official responsibilities as President; however, there is no immunity for acts
that allegedly occurred before taking office.

A privilege to keep certain communications secret. National security
secrets are given the greatest deference by the courts. In criminal proceedings,
presidential communications will be available to the prosecution where a need for such
information is demonstrated.

Question 63

DPC when person has property interest conferred by state

Answer 63

A person has a property interest in a benefit that is conferred by state law (e.g., professional license, welfare benefits). The Fourteenth Amendment due process clause safeguards this interest by requiring states to follow certain procedures before intentionally depriving persons thereof. This typically includes providing persons with:

1. adequate notice of the charges or proceedings against them and
2. a meaningful opportunity to be heard—i.e., to confront adverse witnesses and present arguments—before a neutral decision-maker

Question 64

Eighth Amendment excessive fine

Answer 64

​​​​​​​Eighth Amendment ban on excessive fines applies to the states because it has been incorporated into the Fourteenth Amendment due process clause. The Eighth Amendment ban limits the amount of payments, whether in cash or other property, that may be imposed as punishment for an offense.

Question 65

Long Erie analysis

Answer 65

Federal courts sitting in diversity must apply state law to substantive issues and federal law to procedural issues (Choices A & C). However, there are instances when it is unclear whether an issue is substantive or procedural—as seen here with review of a jury verdict. A court must then determine if a federal law directly addresses the issue. Federal law encompasses federal constitutional provisions, statutes, and rules—but not federal common law. As a result, no direct federal law applies here.

In such a case, the Erieanalysis must be used to decide if a federal court should supplant state law with federal common law. Under this analysis, the issue will be considered substantive and state law will therefore apply if it is outcome determinative AND there is no countervailing federal policy interest. State law is outcome determinative if the failure to apply state law would result in:

1. forum-shopping – litigants will be encouraged to sue in federal court to take advantage of benefits not afforded in state court or
2. inequitable administration of the laws – the application of substantially different rules in federal and state court would cause unfair outcomes.

Question 66

1st Am. - Political speech/contributions & Expenditures

Answer 66

A government restriction on campaign contributions must survive intermediate scrutiny, which requires the government to prove that its restriction is closely drawn to serve (ie, substantially related to) an important government interest.

Restriction on campaign expenditure must meet strict scrutiny

**Preventing quid pro quo corruption or the appearance of it is the only government interest that the U.S. Supreme Court has recognized is important enough to justify government restrictions on campaign contributions

Question 67

Art III, power of judiciary

Answer 67

Article III, which grants federal courts “judicial power” to decide actual “cases or controversies”—i.e., to render a final judgment, binding on the parties, that cannot be reviewed or revised by the other branches of government. T

Answer 68

The general rule is that, in the absence of an agreement to the contrary, ownership of a fixture attached to real property passes to the buyer of the related real property. Since the statue is a fixture and the contract of sale does not discuss it, the owner may not remove it