Constitutional Law

Question 0

What Are the Requirements of Substantive Due Process?

Answer 0

A government’s intrusion on a fundamental right (life, liberty, or property) is subject to strict scrutiny. An economic liberty triggers rational basis review.

A state may not create an undue burden on a woman’s ability to obtain an abortion. E.g. Spousal consent or parental consent with no alternative. 24-hour waiting period, requirement of licensed physician, partial birth abortion ban, or parental consent with alternatives have been upheld as not excessively burdensome.

Question 1

What Are the Limits on State Taxation on Interstate Commerce?

Answer 1

Where state taxation conflicts with federal law, the state tax is preempted by the Supremacy Clause. Discriminatory taxation is presumptively invalid under the Commerce Clause.

A state tax on interstate commerce will be upheld where there is a 1) substantial nexus between the activity and the state’s jurisdiction; and 2) the state tax’s effect on interstate business is fairly apportioned.

A state may not discriminatorily tax out of state residents in violation of the dormant commerce clause, but may provide benefits to encourage individuals or businesses to locate in the state.

Question 2

What Are the Requirements of Procedural Due Process?

Answer 2

An individual is normally entitled to notice and a hearing before a state actor deprives him of his rights.

Courts balance AIG

1) the ability of additional procedures to increase the accuracy of fact-finding; 2) the importance of the interest to the individual; and 3) the government’s interest in the action.

Question 3

What is the Standard for Rational Basis Review?

Answer 3

The action must be rationally related to achieve a legitimate governmental interest.

E.g. Neutral laws of general applicability preventing free exercise of religion.

Question 4

What is the Standard for Intermediate Scrutiny?

Answer 4

The action must be substantially related to an important state interest.

Applicable to content-neutral restrictions on speech, gender-based discrimination (gender discrimination must be narrowly tailored to important state interest with exceedingly persuasive justification).

Question 5

What Is the Standard for Strict Scrutiny?

Answer 5

The action must be the narrowly tailored, least restrictive means to achieve a compelling state interest.

E.g. content based restrictions on speech, prior restraints on speech, non-neutral prohibitions on free exercise of religion.

Question 6

What Are the Restrictions Imposed by the Contracts Clause?

Answer 6

Prohibits states from passing legislation that would retroactively impair the obligation of pre-existing contracts.

Private contracts trigger intermediate scrutiny; public or government contracts trigger strict scrutiny. If a law imposes retroactive civil liability, rational basis is used.

Question 7

What Are the Restrictions Imposed by the Free Exercise Clause?

Answer 7

Prohibits a government from imposing restrictions on someone on the basis of their religious beliefs or from freely exercising those beliefs.

A neutral law of general applicability with the effect of prohibiting individual religious expression does not violate the right. Rational basis.

If the law is not neutral, strict scrutiny is applied.

Question 8

What Are the Restrictions Imposed by the Establishment Clause?

Answer 8

A law will not violate the establishment clause so long as it

1) has a secular purpose;
2) neither advances nor inhibits religion; and
3) there is no excessive entanglement with religion.

Question 9

What Are the Requirements for Takings and Eminent Domain?

Answer 9

Must be for a public use and for just compensation (fair market value.)

Question 10

What are the Restrictions on Laws that Impair the Freedom of Association?

Answer 10

Laws that prohibit or punish membership in a group must meet strict scrutiny.

The government must prove that the person is actively affiliated in an illegal group, that they know of the illegality of the activities, and the individual has the specific intent to further those activities.

Question 11

What Types of Restrictions on Speech Are Permitted in Non-public Forums?

Answer 11

Government may regulate the speech in these forums so long as the regulation is reasonable and content neutral.

Non-public forums are military bases, airports, and public schools.

Question 12

What is the Standard for Restrictions on Speech in Public Forums?

Answer 12

Content-based restrictions: strict scrutiny with no other alternatives available.

Content-neutral: time, place and manner restrictions are permissible, but they must be narrowly tailored to achieve an important state interest and must leave alternative avenues for expression open.

Question 13

What Is the Standard for Restrictions on Speech in Limited Public Forums?

Answer 13

Are non-public forums that the government opens up for speech. Subject to same analysis as public forums.

Question 14

What is Unprotected Speech?

Answer 14

Incitement of illegal activity, or a substantial likelihood of imminent lawlessness.

Obscenity that appeals to the prurient interest, is patently offensive, and taken as a whole lacks any serious redeeming artistic, literary, political or scientific value.

Commercial speech that inherently risks deception or advertises illegal activity is unprotected.

Question 15

What is Symbolic Speech?

Answer 15

The expression of a political or ideological viewpoint through non-verbal conduct

Question 16

When Will a Law Be Considered Unconstitutionally Vague?

Answer 16

A law is unconstitutionally vague if a reasonable person cannot determine what speech or action is prohibited and what speech or action is allowed.

Question 17

When Will a Law Be Considered Unconstitutionally Overbroad?

Answer 17

A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution permits.

Question 18

When Are Prior Restraint on Speech Allowed?

Answer 18

Permissible if the gravity of the harm justifies the restraint and the restraint is necessary to prevent the harm.

Permits for speech must be narrowly tailored to achieve an important state interest, must involve no discretion, there must be clear criteria to grant the permit, and there must be a procedure for timely resolutions or appeals.

Question 19

What is State Action?

Answer 19

An individual or entity performing a public function or has significant support from the state in the course of their activities.

Question 20

What Are the Prohibitions on Dormant Commerce Clause?

Answer 20

If a state discriminates against an out-of-state party, the regulation must be necessary to serve an important governmental interest and no less restrictive means are available (hybrid of strict and intermediate).

There is an exception to this analysis if Congress has approved the legislation or if the state is acting as a market participant. (E.g. lower tuition for in-state residents; preferring own citizens in providing access to government benefits).

Question 21

What Are the Restrictions Imposed By The Privileges and Immunities Clause?

Answer 21

Regulation must be necessary to achieve important governmental interest. (?)

No state may deny citizens of another state the privileges or immunities it provides to its own citizens.

The clause is violated where state regulation discriminates against individuals with regard to important economic activities or civil liberties.

Question 22

What Are the President’s Foreign Relations Powers?

Answer 22

President has the paramount power to represent the US in foreign relations. President has the power to enter treaties with consent of two thirds of the Senate, and may enter into executive agreements with the head of a foreign country without Senate approval.

Question 23

What Are the President’s War Powers?

Answer 23

President lacks power to declare war, but may take military action in actual hostilities. Congress may limit such action by military appropriations.

Question 24

What is the Jurisprudential Doctrine of Mootness?

Answer 24

Plaintiffs case should be dismissed if plaintiff’s injury is redressed after the suit is filed unless 1) there is still a chance of the plaintiff’s injury recurring or 2) the defendant can resume the activity at any time.

A class action suit will continue even if the representative plaintiff’s claim becomes moot.

Question 25

What is Considered a Political Question?

Answer 25

Court will not hear challenges based on Constitutional questions that are best left to political branches.

Republican form of government clause;

president’s conduct on foreign policy;

impeachment and removal;

partisan gerrymandering.

Question 26

What is Sovereign Immunity?

Answer 26

The 11th Amendment bars suits against state and local governments in state courts and federal courts and agencies unless waived by state legislation; or the state is sued by the federal government; or it is a bankruptcy proceeding against the State.

Question 27

What is the Doctrine of Abstention?

Answer 27

A federal court may not enjoin state court proceedings where the federal court would disrupt an ongoing state criminal, civil, or administrative proceeding that implicates an important state interest and the state proceeding affords an adequate opportunity to raise the claim.(Younger)

If there are simultaneous federal and state court proceedings and the state court has already begun and affords an adequate forum (Colorado river)

If a plaintiff loses a federal claim in state court he may not use the district courts as a source of appeals if the state court decision is inextricably intertwined (Rooker-Feldman)

Question 28

What Are a State’s Tenth Amendment Powers?

Answer 28

All powers not granted to the federal government are reserved to the states. Congress cannot compel state regulatory or legislative action. Congress can induce or encourage activity by making conditional grants if the grants are related to a valid exercise of Congress’ spending power.

Question 29

What Is The Necessary and Proper Clause?

Answer 29

Congress may use any means not prohibited by the Constitution to carry out it’s other enumerated powers.

Question 30

What is the Taxing and Spending Clause?

Answer 30

Congress may tax and spend for the general welfare

Question 31

What Is the Commerce Clause?

Answer 31

Congress may regulate the channels and instrumentalities of interstate commerce. May also regulate activities with a substantial effect on interstate commerce.

Question 32

When May Taxpayer Initiate Suits against the Government?

Answer 32

Individuals may not use as taxpayers or citizens, but may challenge expenditure of funds in violation of the Establishment Clause

Question 33

What are the Requirements of Standing?

Answer 33

Plaintiffs must show 1) injury in fact (existing or imminent); 2) causation; 3) redressability.

Associational standing is proper if 1) members of the group have standing; 2) the interest at issue is germane to the group’s purpose; 3) individual participation is unnecessary.

Question 34

What Are the Requirements of Ripeness?

Answer 34

A federal court may hear a case involving the pre-enforcement review of a statute or regulation if the plaintiff shows that 1) there is a hardship without review and 2) the record is fit for review.

Question 35

What Are A Citizen’s Fundamental Rights?

Answer 35

Life, liberty, property, privacy, parents right to raise children. Laws that discriminate based on the rxercise of these rights also trigger strict scrutiny.

Question 36

What is 11th Amendment Immunity?

Answer 36

States must provide for their liability to be used by statute.

Question 37

What Are the Constitutional Requirements Regarding Access to Courts?

Answer 37

State must waive filing fees imposed on indigents when the fee would deny the indigent a fundamental right. The inability to pay the fee cannot be the sole basis for denial.

Note that access to courts itself is not a fundamental right, but representation by counsel is.