Constitutional Law

Question 1

Judicial Power

Answer 1

Federal Courts have the right to DENY a case if it DOESNT MEET the following criteria:

1) Standing
2) Mootness
3) Ripeness
4) Political Question

Question 2

Standing

Answer 2

A person bringing the claim must have a concrete stake in the outcome of the case at all stages of review. This is met if claimant shows 1) an injury, 2) causation, and 3) redressability.

Question 3

Mootness

Answer 3

A real controversy must exist at all stages of review. An exception applies if a controversy is moot, but is capable of repetition and will otherwise evade review.

(Look for a claim after harm has been resolved)

Question 4

Ripeness

Answer 4

Must be an actual or imminent legal dispute.

Look for a claim before any harm has occurred

Question 5

Political Question

Answer 5

Federal courts will not hear a case if it challenges:

• “republican form of government” clause,
• foreign policy,
• impeachment and removal process, or
• partisan gerrymandering (manipulation)

Question 6

11th Amendment

Answer 6

prohibits FEDERAL COURTS from hearing claims against a state government.

EXCEPTION: when claim is brought by by the U.S. Government or another state.

Question 7

Legislative Powers

Answer 7

The federal government has limited powers traced back to the Constitution.

Question 8

Necessary and Proper

Answer 8

Congress can exercise all powers enumerated in the Constitution, as well as any auxilary powers NECESSARY AND PROPER to carry out all powers vested in federal government.

–> invalid by itself, Congress must have additional support

Question 9

Taxing/Spending Powers

Answer 9

Congress has the power to tax if there is a REASONABLE RELATIONSHIP TO REVENUE PRODUCTION, and may spend for ANY PUBLIC PURPOSE for common defense and general welfare.

Question 10

Commerce Power

Answer 10

Congress has the power to regulate all foreign and interstate commerce, so long as it:

1) regulates the channels,
2) regulates the instrumentalities, or
3) regulates activities that have a substantial effect on interstate commerce.

Question 11

Police Powers (limited)

Answer 11

There is NO general police powers. However, they do have powers to police (FIDM):

• Federal lands,
• Indian lands,
• District of Columbia, and
• Military bases.

Question 12

Domestic Powers of the President

Answer 12

The President has the power to appoint and remove executive officers, grant pardons for federal offenses, VETO an act of Congress (in totality, not line item), and otherwise act with express or implied authority from Congress.

Question 13

Foreign and External Powers of the President

Answer 13

The President has the power over foreign relations, and may enter into TREATIES and EXECUTIVE AGREEMENTS.

Order of Law
Constitution
Treaties = Federal Law
Executive Agreements
State Law

Question 14

Federalism and State Powers

Answer 14

All powers not delegated to the federal government are reserved to the states.

Question 15

Preemption

Answer 15

State laws are invalid where:

1) they are mutually exclusive with federal laws,
2) they impede a federal objective, or
3) there is a clear Congressional intent to preempt.

Question 16

Dormant Commerce Clause

Answer 16

State laws are unconstitutional if they place an undue burden on interstate commerce. This can be shown by:

• Non-discriminatory against Interstate commerce: burden on interstate commerce is greater than benefit to the state.
• Discriminatory laws: State must show a necessary and important government interest.

Question 17

Privileges and Immunities Clause of Art. IV

Answer 17

State laws violate the P&I Clause if discriminatory against an out-of-state citizen’s civil liberties or important economic activities.

-State must show a necessary and important government interest; otherwise unconstitutional.

Question 18

State Tax on Interstate Commerce

Answer 18

Can be Constitutional if:

1) there is a substantial nexus to the state, and
2) the tax is fairly apportioned.

Question 19

Full Faith and Credit Clause

Answer 19

A court in one state MUST give credit to a prior judgment in another state if:

1) court had jurisdiction,
2) valid judgment on the merits,
3) and final.

Question 20

State Actions

Answer 20

If a public representative is acting, or a private entity that is either performing a traditionally public task or a task that is entangled with the state government, then individual guarantees are applicable (due process, equal protection and 1st Amendment Freedoms).

Question 21

Rational Basis

Answer 21

Challenger must prove that the action is NOT RATIONALLY RELATED to a LEGITIMATE government interest.

Question 22

Intermediate Scrutiny

Answer 22

State must prove that the action is SUBSTANTIALLY RELATED to an IMPORTANT government interest.

Question 23

Strict Scrutiny

Answer 23

State must prove that the action is NECESSARY to ACHIEVE a COMPELLING government interest.

Question 24

Procedural Due Process

Answer 24

A FAIR PROCESS is required for a government agency to individually take a person’s “LIFE, LIBERTY, or PROPERTY” (must be found on the face of the law).

To determine process, Courts weigh:

i) importance of the interest, and
ii) value of SPECIFIC PROCEDURAL SAFEGUARDS, against
iii) GOVERNMENT INTEREST in efficiency.

Question 25

Substantive Due Process

Answer 25

the government must have an adequate reason for taking away a person’s life, liberty, or property (found in the substance of the law ~ discriminatory affect).

If a fundamental right (i.e. privacy) - Strict Scrutiny Applies

All other rights (i.e. economic liberties) - Rational Basis Applies

Question 26

Retroactive Legislation

Answer 26

Ex Post Facto - cannot retroactively punish after a law has passed, or increase punishment, for a past CRIME.

Bill of Attainder - Congress cannot pass a law punishing a group or persons without a trial.

Question 27

Equal Protection

Answer 27

Categories:
Strict Scrutiny - Race, National Origin, Alienage, Religion

Intermediate Scrutiny - Children, Gender

Rational Basis - Alienage for Gov’t Jobs, Age, Disability, Sexuality, all others.

Question 28

1st Amendment

Answer 28

prohibits Congress from establishing a religion or interfering with the free exercise of religion, abridging the freedoms of speech and press, or interfering with the right of assembly.

Question 29

Facial Attacks

Answer 29

Overbreath - if a regulation of speech or speech-related conduct punishes a SUBSTANTIAL AMOUNT OF PROTECTED SPEECH, it is facially invalid.

Vagueness - if a regulation fails to give persons reasonable notice of what is prohibited, it is facially invalid.

Prior Restraints - preventing speech before it occurs (must meet Strict Scrutiny).

Unfettered Discretion - A regulation cannot give officially broad discretion; there must be DEFINED STANDARDS, otherwise it is facially invalid.

Question 30

Symbolic Speech

Answer 30

Restrictions on SYMBOLIC acts (i.e., flag burning) are unconstitutional unless:

1) Necessary, and
2) Important Government Interest

Question 31

Content-Based Restrictions

Answer 31

Any restriction of the CONTENT of speech must must Strict Scrutiny unless one of the following categories:

• CLEAR AND PRESENT DANGER (incite lawlessness)
• FIGHTING WORDS (likely to provoke violence)
• OBSCENE (must i) appeal to prurient interests, ii) be patently offensive, and iii) lack serious artistic, literary, political, or scientific value)
• COMMERCIAL SPEECH (Intermediate Scrutiny - but no falsity or deception)

Question 32

Content-Neutral Restrictions

Answer 32

Any time, place, and manner restriction on speech (that doesn’t discriminate on content) is constitutionally valid depending on location:

Public Forum: Intermediate Scrutiny applies, and must leave open an alternate location for speech.

Limited Public Forum: same as Public Forum IF HELD OUT AS A PUBLIC PLACE.

Non-Public Forums: must be viewpoint neutral, and Rational Basis applies.

Question 33

Freedom of Association

Answer 33

Any restriction on the association with a specific group is unconstitutional (use Strict Scrutiny) unless:

• Punishing 1) active members 2) of a group furthering illegal activity, 3) and individuals have knowledge of illegal acts.
• requiring a group to disclose membership (use Strict Scrutiny)
• prohibiting a group from being discriminated against (however, if this interferes with intimate association or freedom of expression, it is invalid)

Question 34

Freedom of the Press

Answer 34

The press generally has the same First Amendment freedoms that a private citizen does. Press can attend trials and publish in newspapers.

-Broadcast and Cable Television regulations are allowed to be more restrictive.

Question 35

Freedom of Religion

Answer 35

The First Amendment prohibition on establishment of religion and its protection of the free exercise of religion is applicable to the states through the 14th Amendment.

Question 36

Free Exercise Clause

Answer 36

A government must not punish an individual on the basis of their religious beliefs. A law that PROHIBITS CONDUCT of ALL people is valid unless it is specifically designed to interfere with a religion.

Question 37

Establishment Clause

Answer 37

A government must not entangle itself with religion; any regulation of religious speech is help to a Strict Scrutiny standard.

Entanglement Test (SEX):

• Secular Purpose
• Effect (neither advances or hinders religion)
• No excessive entanglement with religion