Constitutional Law

Question 1

What does standing for individuals and orgs require?

Answer 1

RIC
Injury, Causation, redressable

Organizational standing also requires: interests related to org’s purpose, no participation of members is required, each member would d have standing on their own

Question 2

threshold issue to bring claim under Constitution?

Answer 2

state action

traditional public function or heavy governmental entanglement OK

Question 3

SoR for content-based regulations

Answer 3

strict scrutiny (necessary for compelling interest)

Question 4

SoR for content-neutral regulations

Answer 4

Intermediate (significant gov interest, narrowly tailored, Leaves open alternative channels of communication)

Question 5

what is a public forum and when can you restrict speech?

Answer 5

open to the public or designated public (open to public for specific purpose)

Content neutral
significant /important gov interest
narrowly tailored
open alternative channel

Question 6

1A free exercise clause

Answer 6

incorporated in states through 14A.

Gov cannot prohibit or seriously burden the exercise of a “sincerely held religious belief”

BUT if law of general applicability that does not intentionally burden, and advanced important gov interests then OK

If substantial burden –> SS

Question 7

1A establishment clause and the lemon test

Answer 7

the government cannot take action or promulgate a rule that has the effect of establishing or inhibiting religion.

BUT law that incidentally favors one religion over another but is designed to benefit a wide variety of people is fine.

Law is OK if it passes the Lemon test: (sep)
- has secular purpose
- its primary effect neither inhibits nor advances religion
- does not produce excess gov entanglement if religion

Question 8

when expression is being regulated, what are the four facial attacks to analyze first?

Answer 8

VUPO facial attacks

1. Prior restraint: Gov’t action restricting speech before it occurs (rather than punishing after) is
   disfavored. Such restriction must be narrowly drawn and show special societal harm will result
2. Overbreadth: Ordinance invalid as overbroad if it prohibits activities that may be constitutionally
   forbidden and also those that may be protected under 1A (allowable under another standard)
3. Vagueness: Regulation is void as vague if ordinance is so unclear that reasonably intelligent
   persons would have to guess at its meaning and would differ as to its application
4. Unfettered discretion: A regulation cannot give officials unfettered discretion over determining
   speech issues (e.g., power to raise permit fee, or require review); there must be defined standards

Question 9

when is regulation based on content ok (three exceptions to the kinds of comment ok to regulate)

Answer 9

Obscenity: Regulation valid only if the work 1) appeals to prurient (sexual) interests based on local community standards, 2) depiction or description is patently offensive per local standards, 3) as a whole lacks serious literary, artistic, political, scientific (LAPS) value to a reasonable person

probably too broad:
Hostile audience: Speech eliciting imminent, violent reaction from the crowd. But police must
make reasonable efforts to protect the speaker

Fighting words: Likely to incite ordinary citizen to acts of immediate, violent retaliation to speaker

Question 10

when is commercial speech protected and what is the SoR?

Answer 10

Commercial speech is protected if it
1) is not false or deceptive and
2) does not relate to unlawful activity.

Intermediate Scrutiny standard

Question 11

11A and exceptions

Answer 11

11A sovereign immunity: preempts private citizens from suing state governments in federal courts for DAMAGES.

Local governments are OK.
Injunctions are OK.
OK to bring claims under 13A, 14A, 15A

Question 12

Art. III standing analysis

Answer 12

RAAAMPS

Standing
Ripeness
Mootness
Political Question doctrine
Abstention (can abstain from hearing case if based on undecided state law)
Adequate and independent state grounds
Advisory opinions NO

Question 13

Delegation of Legislative Powers

Answer 13

Congress may delegate its legislative authority to agencies so long as it provides reasonably intelligible standards

Question 14

10A police power and Commandeering clause

Answer 14

10th Amendment police power: States have broad power to regulate areas traditionally w/in power of states
(involving health, safety, welfare, morals), limited by contrary fed power (laws, tax immunity, enumerated powers, foreign affairs, exclusive jx)

i. Anti-commandeering doctrine: Congress cannot make state legislatures pass a law or require state executive officials (e.g., police) to enforce federal law. However…
1. Mere prohibitions are not commandeering
2. Spending power can indirectly regulate state if condition for money is clear + not unduly coercive

Question 15

suspect classifications of the equal protections clause and SOR

Answer 15

Applies where a statute or gov’t action treats similarly situated people in a dissimilar manner or singles out one class

1. race –> SS (affirmative action passes SS)
2. Alienage except illegal aliens and public function exception (can require citizenship for state jobs that directly affect politics)
3. gender – strict IS (exceedingly persuasive justification)
4. illegitimacy –> IS

Question 16

privileges and immunities clause

Answer 16

Protects national unity

Article IV comity clause (basic rights): State cannot discriminate against non-residents of the state if economic
discrimination affects “fundamental rights” or “important economic activities,” UNLESS passes IS

i. Non-resident discrimination cannot affect rights including civil liberties and right to work and pursue
livelihood, e.g., higher license fees or taxes for out-of-staters, abortions or employment for locals only. BUT OK for recreational activities

b. 14th Amendment (narrow scope, rarely used): State cannot deny citizen rights of national citizenship, e.g., to travel state lines and establish residency in a new state
c. N/A to aliens and corporations (“persons”).

Question 17

dormant commerce clause

Answer 17

State may not regulate ISC in a way that is discriminatory or unduly burdensome

i. UNLESS congress hasn’t enacted applicable law, law is NOT for “economic protectionism” and does not unduly burden interstate commerce (burden < state’s interest in the action)

1. If facially discriminatory against OOS actors, invalid unless OOS acts is particular source of evil AND IS ( important NONeconomic state interest + no reasonable nondiscriminatory alternatives) (usually invalid)

a. Market participant EXCEPTION: State may prefer own citizens as a market participant (buy, sell, hire, etc.)

2. If facially neutral and merely incidentally burdens ISC, use balancing test: Law is invalid only if burden on ISC > promotion of legitimate local interests (i.e., undue burden)

Question 18

substantive due process

Answer 18

government action that infringes on a fundamental right must satisfy strict scrutiny, meaning the government must show that it is necessary to achieve a compelling purpose. If a fundamental right is not implicated, then the government action is subject only to rational basis review. As a practical matter, most government action will satisfy rational basis review.