Constitutional Law

Question 1

State Sovereign Immunity (11th Amend)

Answer 1

State gov cannot be sued by a private person in federal court.

Question 2

Justiciability

Standing

Answer 2

• A P must have standing to sue in federal court.
• Standing exists when the P personally suffered:
  1. an injury in fact,
  2. that was caused by the D, and
  3. that is redressable.

Question 3

Justiciability

Third-Party Standing

Answer 3

Generally, third-party standing is not permitted, unless:
(a) there is a close relationship between the P and the third-party (i.e. doctor/patient),
(b) it would be difficult for the third-party to assert their rights on their own, or
(c) the third-party is an organization.

Question 4

Justiciability

Organization Standing

Answer 4

An organization has standing to sue on behalf of its members if:
1. the issue is related to the organization’s purpose,
2. the members have standing to sue, and
3. the members’ participation is not necessary.

Question 5

Justiciability

Advisory Opinions

Answer 5

A court cannot give advisory opinions or address hypothetical disputes.

Question 6

Justiciability

Ripeness

Answer 6

A case is ripe for review by a court when there is actual harm or an immediate threat of harm to the P.

Question 7

Justiciability

Mootness

Answer 7

• Mootness refers to instances when the dispute has ended or was resolved before review.
• However, a court may hear a case when the wrong alleged is capable of being repeated and escaping review.

Question 8

Powers of Congress

Legislative Powers - Commerce Clause

Answer 8

• Congress has the power to regulate foreign and interstate commerce (IC).
• Congress may regulate:
  1. the channels of IC (i.e. highways, phone lines),
  2. the people and instrumentalities that work and travel in IC (i.e. cars, airplane, pilots, flight attendants), and
  3. activities that have a substantial effect on IC.

Question 9

Powers of Congress

Legislative Powers - Spending Power

Answer 9

• Congress has the power to spend for the common defense and general welfare.
• This power allows Congress to attach conditions on States receving federal funds.

Question 10

State Immunity from Federal Law (10th Amend)

Answer 10

• All powers not granted to the Fed gov are reserved to the States.
• Congress cannot compel state governments to implement legislation.

Question 11

Limits on State Authority

Negative (Dormant) Commerce Clause

Answer 11

• States may regulate intrastate commerce, as long as Congress has not enacted laws on the subject matter.
• However, states cannot pass laws that:
  (a) discriminate agaist out-of-state commerce, or
  (b) place an undue burden on IC.
• If the law is discriminately, the state must show that it has no other reasonable means to achieve a legitimate, noneconomic state interest.

Question 12

Governmental Action (“State Action”)

Answer 12

• When alleging a constitutional violation, a P must show that the violation is attributable to gov action (state action).
• Courts will find “state action” for private conduct when:
  (a) it is a traditional public function, or
  (b) significant gov involvement exists to authorize, encourage, or facilitate private unconstitutional conduct.

Question 13

Incorporation Doctrine

Answer 13

The Bill of Rights (the first 10 Amendments) applies directly to the Fed gov. Under the incorporation doctrine, most of the Amendments are now also applicable to the States.

Exceptions:
5th - indictment by a grand jury.
7th - jury trial in civil case.

Question 14

Due Process (5th & 14th Amendments)

Substantive Due Process

Answer 14

The Due Process Clause of the 5th Amend (applicable to the Fed gov) and 14th Amend (applicable to the States) requires the gov to have substantive basis for taking life, liberty, or property.

Limiting Fundamental Rights (First VIP)
Strict Scrutiny
The gov must show that the law is necessary to serve a compelling gov interest.

Non Fundamental Rights
Rational Basis Test
P must show that the law is not rationally related to a legitimate gov interest.

Question 15

Due Process (5th & 14th Amendments)

Procedural Due Process

Answer 15

Under the Due Process Clause, a fair process (e.g. notice and hearing) is required when the gov deprives a person of life, liberty, or property.

To determine the procedure required, the court will balance:
1. importance of the private interests,
2. risk of error under current procedures and the value of additional procedures, and
3. importance of state interests and the burden that arises from additional safeguards.

Question 16

Equal Protection Clause (1/2)

Answer 16

• The Equal Protection Clause of the 5th Amend (Fed) and the 14th Amend (States) prohibits the gov from denying citizens equal protection of the laws.
• A discriminately classification exists when:
  (a) the law is discriminately on its face,
  (b) the law is facially neutral, but is applied in a discriminatory manner, or
  (c) there is a discriminatory motive behind the law.

Question 17

Equal Protection Clause (2/2)

Answer 17

When laws classify people into groups, the constitutionality of the law will be considered using the three levels of scrutiny.

Strict Scrutiny

• The court will apply strict scrutiny when a suspect class (race, nationality, citizenship) or a fundamental right (First VIP: 1st Amend rights, voting, interstate travel, privacy) is involved.
• Under strict scrutiny, the gov must show that the classification is necessary to serve a compelling gov interest.

Intermediate Scrutiny

• The court will apply intermediate scrutiny when a quasi-suspect class (gender, non-marital children) is involved.
• Under intermediate scrutiny, the gov must show that the classification is substantially related to an important gov interest.

Rational Basis

• For all other classes (age, disability, wealth, undocumented aliens), the court will apply the rational basis test.
• Under rational basis, the P must show that the classification is NOT rationally related to a legitimate gov interest.

Question 18

Takings (5th Amend)

Answer 18

• The gov may take private property for public use if it provides just compensation.
• A taking is deemed for public use as long as there is a reasonable belief that it will benefit the public.
• Just compensation is measured by the FMV of the property at the time of the taking.

Question 19

Takings

Per Se Takings

Answer 19

Per se takings occur when the gov:
(a) physically takes the property, even if it’s just a small portion of the property, or
(b) deprives an owner of all economically beneficial use of her property.

Question 20

Takings

Conditions on Development of Property

Answer 20

Gov conditions on development of property do not constitute a taking if:
1. there is an essential nexus between the state interest and the condition, and
2. the condition is roughly proportional to advancing that state interest.

Question 21

Privileges and Immunities Clause

Answer 21

• Under the P&I Clause, States cannot intentionally discriminate against non-residents concerning:
  (a) civil liberties (voting, interstate travel), or
  (b) important economic activities (ability to earn a livelihood).
• The P&I Clause does not protect aliens or corporations.
• Regulations will be upheld when:
  1. a substantial reason exists, and
  2. the discriminatory law has a substantial relationship to that reason.

Question 22

First Amendment

Answer 22

The First Amend of the U.S. Constitution protects the following rights:
1. freedom of speech,
2. freedom to exercise religion,
3. freedom of the press,
4. freedom to peaceably assemble, and
5. the right to petition the gov for a redress of grievances.

(In addition, the First Amend’s Establishment Clause prohibits the gov from establishing a religion).

Question 23

Freedom of Religion (1st Amend)

Establishment Clause

Answer 23

• The Establishment Clause prohibits the gov from establishing a religion or endorsing/favoring specific religious groups.
• Laws that favor one religion over another (discriminate against a religion) must satisfy strict scrutiny.
• Under strict scrutiny, the gov must show:
  1. that the law is narrowly tailored to achieve a compelling gov interest, and
  2. that the least restrictive means was used.
• A law or policy that is facially neutral does not violate the Establishment Clause when the gov action has historically been permitted in accordance with the original meaning of the Constitution.
• Coercion (to support or participate in religious activity) is one of the historical hallmarks to be prohibited under the 1st Amend.

Question 24

Freedom of Religion (1st Amend)

Free Exercise Clause

Answer 24

• The Free Exercise Clause prohibits the gov from interfering with the exercise of religion.
• Laws designed to interfere with religion must meet strict scrutiny.
• Laws of general applicability that cause unintentional burdens on religion are constitutional and do not offend the Free Exercise Clause.
  (i.e. prohibiting illegal drug use or human/animal sacrifice)

Question 25

Freedom of Speech (1st Amendment)

Content-Based vs. Content-Neutral Restrictions

Answer 25

• The gov cannot regulate speech based on content unless it satisfies strict scrutiny.
• Under strict scrutiny, the gov must show:
  1. that the regulation is narrowly tailored to achieve a compelling gov interest, and
  2. that the least restrictive means was used.
• The gov may regulate the time, place, and manner (TPM) of content-neutral speech if the regulation satisfies intermediate scrutiny.
• Under intermediate scrutiny, the gov must show that the regulation:
  1. is narrowly tailored to achieve a significant gov interest, and
  2. leaves open alternative channels of communication.
  (Aesthetic preservation and traffic safety have been deemed to be significant gov interests).

Question 26

Freedom of Speech (1st Amendment)

Prior Restraint

Answer 26

• Prior restraints on speech are generally disfavored and unconstitutional.
• The classic type of prior restraint is where the gov requires a license or permit in order for speech to occur.
• For a licensing scheme to be valid:
  1. the purpose must be to prevent irreparable/serious harm to the public,
  2. there must be specific and clear standards, and
  3. procedural safeguards must be in place, including assuring prompt final judicial decision when a license is denied.

Question 27

Freedom of Speech (1st Amendment)

Public & Designated Public Forums

Answer 27

Public forums are forums that are generally open to the public (i.e. parks, streets, public sidewalks).

Designated public forums are forums that are not traditionally open to the public, but are opended up to the public at large for a specific purpose (a school makes a classroom open for club meetings).
- The gov cannot regulate speech in public and designated public forums based on content unless it satisfies strict scrutiny.
- The gov may regulate the TPM of content-neutral speech in public and designated public forums if the regulation satisfies intermediate scrutiny.

Question 28

Freedom of Speech (1st Amendment)

Non-Public & Limited Public Forums

Answer 28

Non-public forums are forums that are closed to the public for speech (i.e. military bases, schools, jails, airports).
Limited public forums are non-public forums that are opened to certain groups or topics (i.e. municipal meeting rooms).

The gov may regulate speech in non-public forums and limited public forums if the regulation is:
1. reasonable, and
2. viewpoint neutral.

Question 29

Freedom of Speech (1st Amendment)

Express Conduct and Symbolic Speech

Answer 29

Express conduct or symbolic speech may be regulated if:
1. the gov has an important purpose,
2. the purpose is independent of the suppression of speech, and
3. the restrection is no greater than necessary to achieve that purpose.

Question 30

Freedom of Speech (1st Amendment)

Vague & Overbroad Laws

Answer 30

• Vague or overbroad laws are unconsitutional.
• A statute is unduly vague if it does not put the public on reasonable notice as to what is prohibited.
• A statute is overbroad if it bans both protected speech and unprotected speech.