Constitutional Law

Question 1

Ex Post Facto

Answer 1

Government cannot enact criminal laws that:
a)criminalize previously legal conduct
b) impose greater punishment than previously prescribed
c) eliminate previously available defenses
d) decrease prosecution’s previous burden of proof

Civil laws generally no punitive but can be subject if has retroactive effect that is so punitive that it clearly overrides its nonpunitive purpose

Question 2

Discrimination against Noncitizen

Answer 2

Federal (5th amendment) - rational basis (law rationally for a legitimate interest

State Law (14th amendment) - necessary to achieve a compelling state interest

Political Function Exception in State law - law excludes noncitzen from a government function that would allow direct participating in formulation, execution, or review of public policy or exercise of broad discretion (then rational basis)

Question 3

Discriminatory Laws

Answer 3

Challenged under equal protection clause and generally subject to rational basis review (rationally related to a legitimate government objective)

If intentionally discriminates or against a fundamental right will use intermediate review

Intentionally discriminated when
1) on its face - langauge of the law distinugies between classes
2) in it application - facially neutral law is purposefully applied differently to different classes or
3) in its motive - otherwise neutral law was eneacted to disproportinately impact a protected class

Question 4

Commandeering Clause

Answer 4

Congress is prohibited from commandeering state or local government by requiring them to enforce federal laws; even when Congress has the power to regulate

Question 5

Freedom of Press

Answer 5

Government action has a presumptive unconstitutional right and must survive strict scrutiny - least restrictive means to achieve a compelling government interest

Question 6

Taking Clause

Answer 6

Methods:
a) Physical - possession or permanent physical invasion no matter how small
b) Regulatory - deprives of all economically beneficial use - restrict under totality of circumstances for character of government action, economic impact, and reasonable-investment back expectation
c) Exaction - condition to obtain a permit for a building/development
d) destruction of property or property interest

Taking occur when substantial restricts use of property of deprive all economically beneficial use - must prove just compensation

Public Peril - destruction of private property for owner just compensation is not required when in response to public peril

Question 7

Substantive Due Process

Answer 7

Deprivation of life, liberty, and property

Ordinary Right: economic, employment, education or social welfare (rational basis)

Fundamental Right: first amendment rights, voting, interstate travel, and privacy (strict scrutiny)

Question 8

Ministerial Exception

Answer 8

protects religious organization from civil liability for employment discrimination when they hire or fire employees who serve in ministerial roles

Question 9

Free Exercise Clause

Answer 9

prohibits government interference with a religious organization’s right to shape its faith and mission

Question 10

Forum-Based Regulation of Speech

Answer 10

Traditional Public Forums - historically used for, or associated with public speech (content-based regulations prohibited)

Designated (limited) public forums - public property opened for specific types of expression (content-based regulations prohibted)

Nonpublic forums - all other public property (content-based regulations permitted if viewpoint-neutral)

IF violate - presumptively invalid and will upheld unless the government can survive strict scrutiny

Question 11

Younger abstention doctrine

Answer 11

when declaratory or injunctive relief is sought in federal court; requires abstention when such relief would interfere with a pending state proceeding on any criminal matter or particular civil matter that involves important state interest and provides an adequate opportunity to litigate the federal issues

Question 12

Equal Protection

Answer 12

Strict Scrutiny: least restrictive means to achieve a compelling government interest (fundamental right - right to appeal infringed because of wealth and suspect classes)

Question 13

Procedural Due Process

Answer 13

14th due process clause requires the government prvoide a meaniful opportunity to be heard before a neutral deceision-maker when depriving persons life, liberty, or property

Judge must recuse when
1) direct, personal, substantial pecuniary itnerest in it or
2) serious, objective risk of actual bias exists

Question 14

SCOTUS Review of State Court Decisions

Answer 14

If not based on federal law - dismiss writ for lack of jurisdiction

If no abased on adequate state ground - may grant writ and review federal issue

If the decisions does not reach independence of federal law then may grant writ and review the federal issue, otherwise dismiss for writ for lack of jurisdiction

CANNOT review based on adequate and independent state grounds
1) state law fully resolves the matter and the court did not rely on federal law

Original Jurisdiction - cases filed direcrly; must involve an ambassador/public minister/consul or state as a party

Appellate - case filed after decisions by either - Congress can limit it; lower federal court or highest state court by writ of certiorari or direct appeal;

Exceptions Clause: gives Congress power to expand, regulate, or make exceptions to such jurisdiction

Question 15

Pullman Doctrine

Question 16

Burford Doctrine

Question 17

Colorado River Doctrine

Question 18

Enclave Clause

Answer 18

Congress has plenary legislative power over the District of Columbia; federal statute that prohibits actions in DC likely to be found constitutional

Question 19

Permissible race-based affirmative action

Answer 19

All race-based classification imposed are subject to strict scrutiny under equal protection; race a suspect class - must prove that its racially discriminatory actions are necessary to achieve a compelling government interest

Richamond v. JA Crosn o minority set-asides for government employments contracts (remedying own history of racial discrimination)

Freeman v. Pitts - race-based student assignment in public elementary/high schools (remedying past intentional racial segregation in public schools)

Must be
1) own history of discrimination against the favored group AND
2) discriminatory program is necessary because race-neutral methods are unavailable or insufficient to further the interest

Question 20

Civil Forfeiture (Procedural Due Process)

Answer 20

Government depreives an individual of property interst by seizing property used in criminal activity; generally requires that the government provide reasonable notice of the seizure and a meaningful opportunity to be heard before a neutral deceision-maker

Personal property can be seized prior to providing notice and hearing when:
1) seizure serves a significant government interest
2) interest would be frustrated by advance notice of the seizure and
3) the seizure is performed by the government

Real Property may be seized by the government prior to providing notice and hearing, must balance
1) private interest affected by deprivation
2) risk of erroneous deprivation to value of additional or substitute procedural safeguards and
3) government interest inducing the fiscal and administrative burdens that other safeguards would entail

Question 21

Nondelegation Doctrine

Answer 21

Exclusive legislative power: ex: making/repealing law, declaring war, impeach federal (unconstitutional)

Incidental Legislative Power: Ex: rulemaking, carrying out legislation, enforcing regulation - Valid provided that intelligible principle defining
1) policy it seeks to advance
2) agency carrying out out policy
3) scope of agency’s authority

Question 22

Conditional Federal Funding

Answer 22

Congress can condition federal funding through spending clause to spend for the general welfare but must:
1) state clearly and unambiguous
2) reasonably related to federal interest in funded program
3) do not require state to engage in unconstitutional activity
4) do not unduly coerce states into accepting the funds

Question 23

Election Clause

Answer 23

state legislatures have the power to enact laws that regulate the time, place, and manner of congressional elections

Congress also has the power to override those state laws by supplanting them with federal law

Question 24

State Election Restrictions

Answer 24

Ordinary: voter registration, photo ID, and disallow write-in (must be rational basis for a legitimate state interest)

Severe: poll tax, disallowing third-party candidacies, property-ownership requirement ( strict scrutiny necessary to achieve compelling state interest)

Question 25

Appointment of Federal Officers

Answer 25

Principal: ambassadors, Supreme Court Justice, Cabinet Official - appointed by President with Senate approval

Infererior: infependent counsel, judidical clerk, administrative law judge ( appointed by Preseident with Senate approval unelss Congress delegates appointment to:

1) President alone, federal courts, or heads of executive department

Question 26

Fundamental Rights

Answer 26

All get strict scrutiny control:
1) First Amendment Freedoms
2) Voting
3) Interstate Travel
4) Privacy

Privacy includes marriage/family, parental rights, sexual acts, and contraceptives

States may impose reasonable educational standards on public, and private schools, including homeschool

Question 27

State Action Doctrine

Answer 27

Constitutional requirements only apply to government conduct

a private actor is considered a government actor when:
1) private actor performs a traditional and exclusive government function OR
2) government is significantly involved

Question 28

Legislative Action

Answer 28

Congress has the power to take legislative action; action is legislative when purpose or effect is to alter the legal rights or duties of personss outside of congress

Legislative action must be:
1) approved by both houses of Congress AND
2) presented to the President for approval or disapproval

Congress can delegate some of its power - but once does so, cannot interfere with the agencies functions unless it against complies with the process ( otherwise it is a unconstitutional legislative veto)

Question 29

Suspension Clause

Answer 29

a person in federal custody can challenge his/her detention by filing a petition for a writ habeas corpus in federal court unless Congress has explicitly suspended the writ

Clause applies to noncitizens classified and detained as enemy combatants in territories over which the Untied States has sovereign control

Question 30

Right to Free Speech

Answer 30

applied to the states 14th amendment, does not extend to public employees speaking pursuant ot their official duties;

Does extend to public employees who speak as private citizens about matters of public concern

Government can regulate content of that speech if its interest in efficient government function outweighs the employees free-speech right

Question 31

Defamatory Speech

Answer 31

unprotected speech, one cannot challenge the constitutionality of the oridenance as applied to them; can challenge the oridance on tis face since it could be unconstitutionally applied to other not before the court

Deemed facially invalid if it is either:
1) overbroad - the law restricts a substantial amount of constitutionally protected expression Or
2) unduly vague - law fails to give persons of ordinary intelligence fair notice of prohibited expression

Question 32

Intermediate Scrutiny

Answer 32

Used for equal protection clause for gender and legitimacy

Test: law is substantially related to an important state interest

Question 33

Strict Scrutiny

Answer 33

Equal protection clause for suspect class and fundamental rights

Law must be necessary to achieve a compelling state interest

Suspect Class:
1) ethnicity, race nationality
2) citizenship

Fundamental Right:
1) voting
2) interstate travel
3) Privacy
4) First Amendment Right

Question 34

Type of Taxes

Answer 34

Direct: tac on person or property - must be 1) apportioned evenly among states and reasonably related to revenue raising

Indirect: sales, excise, and income - must be 1) uniformly applied in every state and 2) reasonably related to revenue raising

Export tax - always unconstitutional

Question 35

Doctrine of Preemption

Answer 35

Federal law supsersedes state and municipal laws by:

Express Preemption: constitution says federal regulation is exclusive OR federal law expressly prohibits state/municipal regulation

Implied Preemption:
1) congress’s pervasive regulation shows intent to occupy entire field OR
2) Conflict Preemption:
a) direct - nearly impossible to comply with both laws
b) indirect - state municipal law frustrate federal law purpose

Question 36

Media Immunity

Answer 36

First Amendment shield the media from criminal and civil liability for publishing lawfully obtained private facts and other truthful information involving matters of public concern

Question 37

Sovereign Immunity

Answer 37

prohibits private parties , states, or foreign governments from suing the federal government and their employees unless Congress consents for actions taken in their official capacity in office

11th amendment for state officials