Constitutional Law

Question 1

Case or controversy

Answer 1

Must be an actual case or controversy.

Question 2

Political questions

Answer 2

May not be heard by federal courts.

Question 3

Individual standing

Answer 3

1. Actual or imminent injury
2. The injury is caused by the conduct complained of
3. Injury will be redressed by a favorable decision

Question 4

Third-party standing

Answer 4

1. individual standing
2. Special relationship
3. Difficult for 3rd party to assert his own rights

Question 5

Organizational standing

Answer 5

1. Members have standing in their own right
2. Related to the organization purpose
3. Does not require participation of individual members

Question 6

Timeliness

Answer 6

Ripeness and mootness

Question 7

11th Amendment

Answer 7

Immunity to the states from private damage suits brought in the states own courts.

Question 8

State action

Answer 8

For an action to violate the constitution there must be government involvement.

A public actor can qualify as state action if:
1. The private actor performs functions that are traditionally and exclusively public functions.
2. The state is heavily involved in the activity.

Question 9

Congressional power to regulate commerce

Answer 9

1. interstate commerce
   a. Channels of interstate commerce
   b. Instrumentalities of interstate commerce
   c. Persons and things moving in interstate commerce
   d. Activities that substantially effect interstate commerce
2. intrastate commerce
   a. rational basis to believe that activity will have a substantial economic effect on interstate commerce.
   b. Noneconomic activity may be regulated if the activity has a direct and substantial affect on interstate commerce.

Question 10

Other congressional powers

Answer 10

1. Regulate commerce
2. Tax and spend for the general welfare
3. Declare war
4. Naturalization
5. Bankruptcy
6. 13th slavery
7. 14th equal rights
8. 15th right to vote
9. Necessary and proper (must be rationally related to enumerated power)

Question 11

Judicial powers

Answer 11

Federal courts may review cases
a. arising under the constitution
b. admiralty
c. between two or more states
d. between citizens of different states
e. between a state/citizen and a foreign country/citizen

Exception SC will not review a case where there are independent and adequate state law grounds.

Question 12

Executive powers

Answer 12

1. Execute laws
2. Supervise executive branch/executive orders
3. Make treaties with foreign nations
4. Speak for the US in foreign policy
5. Appoint ambassadors
6. Appoint federal officers
7. Issue pardons
8. Veto
9. Disclose information

Question 13

Supremecy clause

Answer 13

Any state law that directly conflicts with federal law, impedes the objectives of federal law, or regulates an area traditionally occupied by Congress, will be preempted by federal law

Question 14

Dormant Commerce Clause

Answer 14

Restricts the states and local governments from regulating activity that affects interstate commerce if the regulation is (1) discriminatory or (2) unduly burdensome. Facially discriminatory against OOT permitted only if necessary to achieve an important noneconomic governmental interest such that there are no reasonable alternatives. (NEVER WORKS) Regulation that unduly burdens interstate commerce must be rationally related to a legitimate government interest and the burden imposed on interstate commerce must be outweighed by the benefits to the state.

Question 15

Privileges and Immunities Clause

Answer 15

Prevents a state from intentionally discriminating against noncitizens regarding rights fundamental to national unity. This includes comercial activities and civil liberties. Corporations and aliens are not considered citizens and are therefore not protected. Discrimination is only allowed if noncitizens are a peculiar source of evil, the discrimination is substantially related to the evil, and there are no less discriminatory alternative means available.

Question 16

Contracts clause

Answer 16

Prevents state governments from passing laws that retroactively and substantially impair existing contracts. Must be reasonable and appropriate to serve a signifcant and legitimate public purpose.

Question 17

10th amendment

Answer 17

Reserves all powers not delegated to the federal government by the Constitution. The federal government cannot commandeer the states but can impose regulatory statutes of generally applicable laws.

Congress cannot delegate its legislative authority to make law.

Congress can delegate regulatory powers if there are intelligible principles.

Question 18

Freedom of religion

Answer 18

Freedom of religion is a first amendment right that applies to the federal government and to the states via the 14th amendment.

The free exercise clause bars any law that seriously burdens the free exercise of religion unless there is a compelling government interest. A law of general applicability that does not intentionally burden religious beliefs and advances important public interests is allowable.

The establishment clause prohibits laws respecting the establishment of religion. The government can’t endorse or favor specific religious groups. Incidentally favoring one religion over another in an attempt to benefit a wide variety of people is allowable. If the government action contains a sect preference strict scrutiny applies (narrowly tailored, compelling gov interest). If no sect preference must:
1. Have a secular purpose.
2. Have a primary secular effect.
3. Not foster excessive government entanglement

Question 19

Freedom of speech

Answer 19

The first amendment protects an individual’s right to free speech.

Speech prohibitions can be content based or content neutral. Content based regulations are subject to strict scrutiny (narrowly tailored, compelling interest). Content neutral regulations are allowed if they:
1. Serve a significant/important government interest.
2. Are narrowly tailored to serve that interest.
3. Leave open alternative channels of communication.

Question 20

Unprotected speech

Answer 20

1. obscenity
   a. appeals to prurient interest
   b. is patently offensive
   c. lacks serious literary, artistic, political, or scientific value
2. misrepresentation and defamation
3. Imminent lawless action
4. Fighting words

Question 21

Free speech time, place, and manner restrictions

Answer 21

• Speech restrictions in public and limited public forums must:
  1. be content neutral and viewpoint neutral
  2. serve a significant/important government interest
  3. narroly tailored
  4. leave open alternative channels
• Limited and nonpublic forums
  1. Be viewpoint neutral
  2. Serve a legitimate government interest
  3. be reasonably related

Question 22

Commercial speech

Answer 22

The government may restrict commercial speech if it:
1. serves a substantial government interest
2. directly advances that interest
3. is narrowly tailored so that there is a reasonable fit to serve that interest

Question 23

Additional constitutional limitations on speech regulations

Answer 23

1. vague if reasonable person would have to guess meaning
2. overbroad if band both protected and unprotected speech
3. unfettered discretion
   i. permit granting body must set narrow and specific grounds for denying a permit
   ii. permit mechanism closely tailored to the regulations objective
   iii. must be a reasonable means of maintaining public order

Question 24

Freedom of association

Answer 24

The first amendment protects an individual’s right to freely associate with individuals or groups. Freedom of association prevents the government from denying a public benefit or job based on a person’s association. Restrictions must be narrowly tailored for a compelling interest.

Question 25

Substantive due process

Answer 25

SDP limits the government's ability to regulate one's personal autonomy and privacy. Fundamental rights relate to marriage, family status, domestic travel, voting, and first amendment rights. Strict scrutiny applies to fundamental rights meaning the government action must be necessary to acheive a compelling government objective. Nonfundemental rights are subject to a rational basis test that must be rationally related to a legitimate government objective.

Question 26

Procedural Due Process

Answer 26

PDP requires the government to use fair process before intentionally depriving a person of life, liberty, or property. For judicial proceedings this includes the right to a hearing, counsel, call witnesses, a fair trial, and appeal. For nonjudicial proceedings the court must weigh the individual's interest in the right, the added value of procedural safegaurds, and the governments interest in efficiency.

Question 27

13th amendment

Answer 27

Involuntary servitude is prohibited, the 13th amendment applies to state action and private action.

Question 28

Equal Protection Clause

Answer 28

The EPC of the 14th am applicable to the federal government through the 5th am prohibits the government from treating similarly situated persons differently. Intentionally different treatment is required for heightened review and not just incidental burdening effects. Suspect classifications including race, national origin, and alienage are subject to strict scrutiny (necessary, compelling). Quasi-suspect classifications include gender and illegitimacy and are subject to intermediate scrutiny (substantially related, important). Rational basis applies to all other qualifications (rationally related, legitimate). Fundamental rights are subject to strict scrutiny under the EPC. Voting, political candidate, access to the courts, travel from state to state, first amendment rights.

Question 29

Takings clause of the 5th am.

Answer 29

The takings clause provides that private property may not be taken for public use without just compensation. Regulatory actions are total takings if there is a permanent physical invasion or use restriction that denies all economically beneficial use of property. To determine if a regulation that denies all use temporarily requires just compensation court will consider all relevant circumstances.

Question 30

Regulatory taking

Answer 30

Regulations that decrease the economic value of property by prohibiting most beneficial use are not considered takings if there is still an economically viable use for the property. Court will use a balancing test that considers the character of the invasion, the economic impact, the extent of the interference with the investment backed expectations of the owner.