Constitutional Law

Question 1

11th Amendment

Answer 1

Rule: You cannot sue a state for money damages in either the state’s own court or federal court unless

1. the state consents, or
2. U.S. Congress expressly says so to enforce the 14th Amendment

Question 2

Suit of State Officer

Answer 2

• May sue state official for either injunction or personal money damages.
  
  • damages from the treasury are barred, except where Congress expressly says so to enforce individual rights

Question 3

Supreme Court Jurisdiction

Answer 3

1. Original jurisdiction
   
   • mostly cases between states
2. Appellate jurisdiction
   
   • certiorari
     
     • most cases
     • discretionary (Supreme Court is the only federal court with discretionary jurisdiction
   • direct appeal

Question 4

Limits on Supreme Court Appellate Jurisdiction

Answer 4

No jurisdiction where:

• Congressional legislation: Congress can legislate an exception to appellate jurisdiction
• Adequate and independant state grounds: the supreme court can review a state court judgment only if it turned on a federal issue.
  
  • adequate: where the state grounds control the issue no matter how the federal issue is decided
  • independant: the state law does not depend on interpretation of federal law
  • if it is unclear whether AISG, may review and then remand to state to determine

Question 5

Standing

Answer 5

1. Injury
2. Causation
3. Redressability

Question 6

Standing: Injury

Answer 6

Injury must be concrete

• need not be economic
• restriction of freedom of movement counts
• mere ideaological objection does not count
• tax liability counts

Question 7

Standing: Causation

Answer 7

Injury must be fairly traceable to defendant’s action

Question 8

Standing: Redressability

Answer 8

A court must be able to rememdy a discreet harm to the plaintiff

• damages for a past injury (usually)
• injunction for future injury
  
  • past injury will not necessarily warrant (or be redressed by) injunction for future injury; must show that harm will reoccur

Question 9

Taxpayer Standing

Answer 9

Taxpayer status does not give standing to challenge government expenditures

Exceptions:

Any taxpayer may challenge specific congressional appropriations in violation of the Establishments Clause.

May usually challenge municipal expenditures (will usually occur in state court)

Question 10

Legislator Standing

Answer 10

Legislators do not have standing to challenge laws they voted against

Question 11

Third Party Standing

Answer 11

No third party standing except:

• Parties to an exchange or transaction can raise the rights of other parties to the exchange or transaction
• Sometimes where the injured party is unable to assert their own rights

Question 12

Parental Standing

Answer 12

Parents generally have standing to litigate an injury to their child, but it may turn on whether the parent has legal custody

• where joint legal custody, the court will consider the best interest of the child and might not give standing to one parent where another opposes the action

Question 13

Organizational Standing

Answer 13

Organizations have standing if

1. its members have standing
2. the interests at stake are germane to the organization’s purpose

Question 14

Justiciability: Timeliness

Answer 14

Ripe: Actual or immediate threat of harm

• dispute over legislation that is proposed or has not yet gone into effect will not be ripe

Moot: the harm no longer exists or remedy is no longer available

• Exception: controversies capable of repeition but evading review are not moot
  
  • these controversies always have an internal time limit that will not last the length of the court process

Question 15

Advisory Opinion Bar

Answer 15

Supreme Court may not issues advisory opinions

• may not rule on constitutionality of proposed legislation
• Congress cannot rule that opinion is binding only if agreed upon by another branch/person

Question 16

Justiciability: Political Question Bar

Answer 16

A political question incapable of judicial review exists where:

• the constitution has assigned the issue to another branch of government
  
  • most foreign affairs (diplomatic relations)
  • Impeachment proceedings
• **or, **it is non-justiciable because there are no manageable standards for decision-making
  
  • Gaurunty clause - republical form of government (Art. 4)
  • political gerrymandering

Question 17

Commerce Power

Answer 17

Through the commerce power, Congress may regulate:

• channels of interstate commerce
• instrumentalities of interstate commerce
• intrastate activity that in the aggregate has a substantial effect on interstate commerce
  
  • substantial effect is presumed where the activity is economic or commercial
  • for non-economic, non-commercial intrastate activity, must prove the substantial effect

Question 18

Taxing Power

Answer 18

Congress has the power to tax, even if the tax is intended to be prohibitive

• must be rationally related to raising revenue

Question 19

Spending Power

Answer 19

Congress has power to spend

• may spend for the general welfare
• may spend in order to accomplish things it could not otherwise accomplish through regulation under the commerce clause

Question 20

Anti-Commandeering

Answer 20

Congress may not force states to adopt or enforce regulatory programs. It cannot commandeer state or local officers to carry out federal programs

• may still bribe via spending power
• can require states to change laws pertaining to federal elections (pursuant to Article I s. 4)

Question 21

13th Amendment Powers

Answer 21

Congress has broad power to legislate against racial discrimination, whether public or purely private.

Question 22

14th Amendment Powers

Answer 22

Congress has the power to remedy violations of individual rights by the government

• only the courts may define those rights
  
  • ​Congress may not define rights or overrule courts via legislation
• remedial legislation must be congruent and proportionate​

Question 23

15th Amendment

Answer 23

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Gives Congress the power to ensure no racial discrimination in voting

Question 24

Article II Executive Powers

Answer 24

Article II authorizes the preseident to enforce the law.

• power is strongest when authorized by statute

Question 25

Pardon Power

Answer 25

Executive has power to pardon or commute punishment for any federal crime

• not subject to Congressional control

Question 26

Veto Power

Answer 26

President has 10 days to veto legislation

• may veto for any reason
• cannot veto only portions
• 2/3 majority of each house required to override veto

Question 27

Appointment/Removal Power

Answer 27

The president has the exclusive power to appoint and remove executive officers

• Senate can neither fire nor hire executive agents, or give executive power to anyone it can fire or hire
  
  • it may hire or fire persons who investigate or advise, but not act as an agent of the U.S.
• some senior level officers (cabinet, federal judges, ambassadors) require the advice and consent of the Senate

Question 28

Impeachment

Answer 28

An accusation of high crimes or misdemeanors

• applies to executive officers: president, VP, cabinet, federal judges
• requires a majority vote of the House
• trial in the Senate
  
  • 2/3 vote to convict
• Remedy is removal - no other penalty

Question 29

Impoundment

Answer 29

If statute gives president the discretion to spend funds, may exercise discretion.

Where stature unambiguously requries the funds be spent, the president has no power to impound them.

Question 30

Legislative Veto

Answer 30

Where Congress by legislation reserves the right to disapprove future executive actions

• prohibited
• may legislate contrary to executive, but
  cannot evade the president’s veto power

Question 31

Delegation of Powers

Answer 31

Congress may delegate its powers to administrative agencies, so long as there are intelligible standards governing the exercise of that power

• not a strict test - rarely will delegation of powers be determined unconstitutional

Question 32

Presidential Immunity

Answer 32

The president has absolute immunity for official acts taken while in office.

• no immunity for acts taken prior to office

Question 33

Executive Privilege

Answer 33

The president has the executive privilege not to reveal confidential communications with presidential advisers

• privilege can be outweighed by **specifically demonstrated need **in a criminal prosecution

Question 34

Judicial Immunity

Answer 34

Judges have absolute immunity for all judicial acts

• may be liable for non-judicial activities

Question 35

Legislative Immunity

(Speech and Debate Clause)

Answer 35

U.S. Senators, Representatives, and aides cannot be prosecuted or punished in relation to their official acts

• anything said on floor/votes/etc. cannot be introduced into evidence
  
  • but can be proved another way

Question 36

Supremacy

Answer 36

Some powers are exclusively federal

• power to coin money
• power over foreign relations

It is presumed that other Federal powers are concurrent with state powers

• where there is a conflict between state and federal regulation, federal regulation wins.

Question 37

Preemption

Answer 37

Federal law preempts inconsistent state law.

• state law not preempted merely because it addresses the same subject matter as a federal statute
  
  • must be incompatability or conflict

Field Preemption: Where federal law is so pervasive it preempts any state law in the field

• rare

Question 38

Intergovernmental Immunity

Answer 38

The Federal Government is immune from direct state regulation or taxation

• might be indirectly taxed via employees

States are not immune from Federal regulation and taxation

• states laws cannot shield state officials from federal liability

Question 39

Privileges and Immunities

(Article IV - Comity Clause)

Answer 39

Article IV, Section 2 of the Constitution states that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”

Rule: There can be no legal requirement of residency for private employment.

• public employment may require residency

States are prohibited from serious discrimination against out-of-state individuals absent substantial justification

• typically involves employment
• may discriminate with regard to recreational opportunities
• may discriminate with regard to state benefits
  
  • in-state tuition, etc.
• does not protect corporations

Question 40

Dormant Commerce Power

Answer 40

Rule: In the absense of federal regulation, state regulation of commerce is vald so long as

1. there is no discrimination against out-of-state interests
2. the regulation does not unduly burden interstate commerce, and
3. the regulation does not apply to wholly extraterritorial activity

Exceptions:

• where the state acts as a market participant
• subsidies (in-state tuition, welfare)
• federal authorization or consent

Question 41

Dormant Commerce Power

(Non-discriminatory State Legislation)

Answer 41

Rule: Where state legislation is not discriminatory on its face, it will be struck down only where it is so outrageously costly relative to the benefits of the regulation.

• “undue burden”
• balancing test
• non-discriminatory regulations are rarely struck down

Question 42

Dormant Commerce Power

(Discriminatory State Taxes)

Answer 42

Rule: Discriminatory state taxes will be struck down unless Congress consents (same as other state regulation of commerce)

Question 43

Dormant Commerce Power

(Ad Valorem Property Taxes)

Answer 43

States may levy taxes on personal property:

• Commodities within a state’s border on tax day
  
  • Rule: Pay the full tax to every state where goods are stopped for a business purpose on tax day
  • Pay no tax where commodities are merely in transit
• Instrumentalities used within a state
  
  • Each state where used can tax the value of the instrumentality
  • tax on value must be fairly apportioned between states according to propotion of value used in each state

Question 44

Interstate Compacts

Answer 44

States may make interstate compacts, but if the compact affects federal rights, Congress must approve.

Question 45

Full Faith and Credit Clause

Answer 45

Rule: States must give full faith and credit to judgments rendered by other states’ courts, so long as the rendering court had jurisdiction to enter a final judgment.

Question 46

13th Amendment

Answer 46

Outlaws slavery and involuntary servitude; interpreted to prohibit:

• housing discrimination
• employment discrimination
• school discrimination

*** The only amendment that permits regulation of purely private conduct

Question 47

14th Amendment

(State Discrimination)

Answer 47

• Protection of individual rights
• Prohibits state action
  
  • ​where the state facilitates discrimination
  • where the state profits from discrimination
  • where the state enforces a private agreement to discriminate
• the state is not required to prevent private discrimination
  
  • so long as neutral and evenhanded
  • licensing usually not enough

Question 48

Due Process Generally (5/14)

Answer 48

The Due Process Clause of the Fifth Amendment, which applies against the federal government, provides that “[n]o person shall be…deprived of life, liberty, or property, without due process of law.” The Due Process Clause of the Fourteenth Amendment, which applies against the states, provides that “no state shall make or enforce any law which shall…deprive any person of life, liberty, or property, without due process of the law

Question 49

Due Process Generally

Answer 49

The Due Process Clauses of the 5th and 14th ensure that the federal and state governments follow certain procedures before depriving any person of “life, liberty, or property.” These safeguards, like notice and a hearing, are the cornerstone of procedural due process.

At another level, the Fourteenth Amendment, through its guarantee of rights respecting life, liberty, and property, has been interpreted to make most provisions of the Bill of Rights (which by its terms applies to the federal government) applicable against the states as well.

Both Due Process Clauses contain a “substantive” component that guarantees certain fundamental rights to all persons. This substantive due process acts as something of a catchall for rights not explicitly set forth elsewhere in the Constitution.

Question 50

14th Amendment

(Procedural Due Process)

• generally
• balancing factors
• pre v post

Answer 50

• ​Life, Liberty, Property.
• Funadmental fairness is at the heart of the right to procedural due process.

1. Is the threatned interest a protected one?
2. If so, what process is due?

To determine level of process due, balance three factors:

1. the individual interest at stake
2. the value of the procedure in protecting the interest
3. the government interest in efficiency and cost

Pre-deprivation hearings:

• termination of welfare benefits
• condemnation of home
• non-emergency revocation of driver’s license
• for-cause termination of public employment

Post-deprivation hearings (prompt and fair):

• for-cause termination of public employee where significant reason
• termination of disability
• academic dismissal

Question 51

Procedural Due Process - Life

Answer 51

Life: death penalty requires procedural due process

Question 52

14th Amendment

(Procedural Due Process - Liberty Interests)

Answer 52

• An impingement on liberty is generally construed to mean significant governmental restraint on one’s physical freedom, exercise of fundamental rights (i.e., those guaranteed by the Constitution), or freedom of choice or action.
• Examples of loss of liberty include commitment to a mental institution, parole revocation, and loss of parental rights. Injury to reputation alone is not a deprivation of liberty, unless the injury is so great that the individual has lost significant employment or associational rights.

Loss of reputation is not a liberty interest.

Question 53

14th Amendment

(Procedural Due Process - Property Interests)

Answer 53

• there must be a “legitimate claim of entitlement” by virtue of statute, employment contract, or custom.
• The rights to public education, to government-issued licenses, and to continued welfare and disability benefits are legitimate property interests.
• There is a legitimate property interest in continued public employment only if there is an employment contract or a clear understanding that the employee may be fired only for cause.
  
  • an “at-will” governmental employee cannot be fired for having engaged in speech protected by the First Amendment.
• Rule: a property interest in a government job or benefit exists whenever there is a legitimate entitlement to continued employment or reciept
  
  • government jobs are entitlements where government says so
    
    • promise to re-hire
    • contractual term stipulating dismissal only for cause
  • most government benefits are entitlements

Question 54

14th Amendment

(Substantive Due Process - Strict Scrutiny)

Answer 54

Applies when a governmental action infringes upon a fundamental right.

Rule: Is the law necessary to achieve a compelling government interest? With no less restrictive means.

Burden is on the government to prove that the law is necessary

Question 55

14th Amendment

(Substantive Due Process - Rational Basis)

Answer 55

If the interest infringed upon is not fundamental, then there need be only a rational basis for the regulation.

A law meets the rational basis standard of review if it is rationally related to a legitimate state interest. This is a test of minimal scrutiny and generally results in the law being upheld.

Burden is on the challengerto show the law is arbitrary or irrational.

Question 56

14th Amendment

(Substantive Due Process - Fundamental Rights)

Answer 56

• interstate travel and settlement
• voting and ballot access
• privacy
  
  • marriage
  • contraception
  • sexual intimacy
  • abortion
  • parenting
  • family relations
  • obscene material
  • refusal of medical treatment
  • right to avoid disclosure of personal medical info

Question 57

14th Amendment

(Fundamental Rights - Right to Travel)

Answer 57

There is a fundamental right to interstate travel and settlement

• Rule: States may impose reasonable residency requirements for political participation and government benefits
  
  • no more than 30-90 days for most benefits
  • 1 year is permitted for
    
    • in-state tuition
    • divorce

Question 58

14th Amendment

(Fundamental Rights - Voting)

Answer 58

Voting is a fundamental right to all citizens over 18.

• poll taxes are an unconstitutional burden on the right to vote
• short term (30 day) residency requirements are permitted
  
  • Congress controls residency requirements for presidential elections

Ballot access is a fundamental right

• states may impose requirements to be listed on ballot, such as longer residency, fees, and nominations
• requirements are unconstitutional if they become so onerous that they effectively bar access to the ballot to serious candidates

Question 59

14th Amendment

(Fundamental Rights - Right to Privacy)

Answer 59

Marriage: substantial interference with the marriage of an age-qualified man and woman is unconstitutional

Contraception: it is a fundamental right for everyone, whether married or not, to purchase contraceptives

[Sexual intimacy: the state has no legitimate interest in regulating non-commercial sexual intimacy between consenting adults]

Abortion: a woman has a right to terminate a pregnancy pre-viability.

Parenting: fundamental right to raise children as see fit including choice of schools

• lose rights thought abandonment, abuse, or neglect

Family relations: right to live together with close relatives

Obscene material: fundamental right to possess in one’s home, except child porn

Refusal of medical treatment: a competent person has a liberty interest in refusing medical treatment

• no right to commit suicide

Right to avoid disclosure of personal medical information: courts weigh it against competing interests, employing a balancing test

Question 60

14th Amendment

(Equal Protection)

Answer 60

• The Equal Protection Clause of the Fourteenth Amendment provides that “no state shall…deny to any person within its jurisdiction the equal protection of the laws.” This clause applies only to states and localities.
• Although there is no federal equal protection clause, the Supreme Court has held that the Fifth Amendment Due Process Clause includes the rights guaranteed by the Equal Protection Clause, thereby making discrimination by the federal government subject to review under the same standards as discrimination by the states.

Question 61

14th Amendment

(Equal Protection - standards of review)

Answer 61

• Strict scrutiny - law must be the least restrictive means to achieve a compelling governmental interest. Burden on the government.
  
  • Applies to fundamental rights and suspect classifactions
• Intermediate scrutiny - the law must be substantially related to an important governmental interst. Burden appears to be on the government.
  
  • Applies when a classifaction is based on gender or status as a nonmarital child (legitamcy).
• To trigger strict or intermediate scrutiny, there must be discriminatory intent on the part of the government. The fact that legislation has a disparate effect on people of different races, genders, etc., without intent, is insufficient. Discriminatory intent can be shown facially, as applied, or when there is a discriminatory motive.
• Rational basis - law must be rationally related to a legitamate state interest. Burden is on the challenger.
  
  • Applies to laws drawing distinctions based on age, wealth, weight, or most other classifications, as well as to any distinctions drawn for business or economic reasons, or any other case where a higher standard doesn’t apply.

Question 62

14th Amendment

(Equal Protection - suspect classifactions)

Answer 62

• Race
• ethnicity
• national orgin
• if the classification is by state law: alienage

Question 63

14th Amendment

(Fundamental Rights Unique to Equal Protection)

Answer 63

The fundamental rights guaranteed by substantive due process are often protected by equal protection principles as well. Thus, impingement of the right to vote, to travel, or to marry may trigger an inquiry under either the Due Process Clause or the Equal Protection Clause. However, certain rights and principles are particular to equal protection.

• The right to travel and the right to vote are the most frequently tested fundamental rights in the area of equal protection. (Often, both the Due Process Clause and the Equal Protection Clause will apply. Equal protection predominates if the question emphasizes denial of a right to a particular group, and it does not apply if the denial of the right is universal.)

Question 64

What procedural safeguards are mandated by the Due Process Clause?

Answer 64

The Due Process Clause requires notice and a hearing when an individual’s life, liberty, or property is at stake. Note: Only intentional infringement will violate the Constitution.

Question 65

What is the procedural due process balancing test?

Answer 65

The procedural due process balancing test weighs three factors:

• The importance of the individual interest
• The value of the particular procedural safeguards with respect to that interest
• The government interest (which is usually economic or efficiency-based)

Question 66

What is strick scrutiny review?

Answer 66

Strict scrutiny review is one standard of review used to determine whether a substantive due process or equal protection violation has occurred. This standard is used when a fundamental right or suspect classification is involved. In order for a law to be upheld under strict scrutiny, the law must be necessary to achieve a compelling governmental purpose. Note: The burden is on the government.

Question 67

What is intermediate scrutiny review?

Answer 67

Intermediate scrutiny review is one standard of review to determine whether a substantive due process or equal protection violation has occurred. This standard is used when a quasi-suspect classification is involved. In order for a law to be upheld under intermediate scrutiny, the law must be substantially related to an important governmental interest. Note: The burden is usually on the government.

Question 68

What is rational basis review?

Answer 68

Rational basis review is one standard of review to determine whether a substantive due process or equal protection violation has occurred. This standard is used in situations that do not involve a fundamental right, suspect class, or quasi-suspect class. In order for a law to be upheld under rational basis review, the law must be rationally related to a legitimate governmental interest. Note: The burden is usually on the individual challenging the particular law.

Question 69

Suspect classifications include:

Answer 69

• Race
• National origin
• Alienage

Question 70

Quasi-suspect classifications include:

Answer 70

• Gender
• Legitimacy

Question 71

What is affirmative action and under what standard is it reviewed?

Answer 71

Affirmative action involves the enactment of laws designed to favor racial or ethnic minorities. Such legislation is reviewed under strict scrutiny, which requires that the law be narrowly tailored to address a compelling governmental interest. Note: Remedying past discrimination is a compelling interest.

Question 72

The First Amendment provides:

Answer 72

Congress may not make any law that:

• Establishes a religion
• Interferes with the free exercise of religion
• Abridges the freedom of speech and press
• Interferes with the right to free assembly

Question 73

Can speech be regulated?

Answer 73

• Content regulations are presumptively unconstitutional
• Content-neutral regulations are still subject to intermediate scrutiny
• Conduct regulations control the time, place, and manner of speech without regard to the ideas communicated
• Speech regulations must be reasonable and cannot be overbroad and or vague
• The First Amendment also covers the freedom not to speak

Question 74

Are time, place and manner regulations on speech permissible?

Answer 74

• Conduct regulation in a public forum must be content neutral, narrowly tailored to serve a significant government interest, and alternative channels of communication must remain open
• Speech can be constitutionally regulated in non-public forums so long as the regulations are viewpoint neutral and reasonably related to a legitimate government purpose

Question 75

What type of speech is not protected?

Answer 75

• Speech that is likely to cause imminent lawless action
• Fighting words
• Obscene speech
• Defamatory speech
• Certain commercial speech

Question 76

The Free Exercise Clause prohibits the government from:

Answer 76

• Interfering with religious belief
• Requiring people to take a religious oath
• Excluding clerics from holding public office
• Declarating that a religious belief is false

Note: Government can regulate conduct, but only if nondiscriminatory.

Question 77

The Establishment Clause provides:

Answer 77

The government cannot regulate with respect to the establishment of religion. To test validity, ask:

1. Does the law have a secular purpose?
2. Does the law have a primary effect which neither advances nor inhibits religion?
3. Does the law cause an excessive government entanglement with religion?

Question 78

What is covered by the right to privacy?

Answer 78

A person has the right to privacy with respect to marriage, sexual relations, abortion, and childrearing. This includes the right of a woman to have an abortion without undue interference from the state.

Question 79

Distinguish between permissibility of pre- and post-viability restrictions on abortion.

Answer 79

• Pre-viability: A woman may have an abortion and the state cannot place any undue burdens on a woman’s freedom to exercise this right; any substantial obstacle will be invalidated
• Post-viability: The state may prohibit abortions so long as there is an exception for circumstances where pregnancy puts the health of the mother in jeopardy

Question 80

What constitutes property (in the context of procedural due process)?

Answer 80

• Personal belongings
• Real estate
• Money
• Entitlement to a benefit provided by the government (e.g. education or welfare)