Constitutional Law

Question 1

Justiciable case or controversy - Ripeness

Answer 1

A plaintiff is not entitled to review of a statute or regulation before enforcement unless there is a threat the plaintiff will suffer some harm or immediate threat of harm.

Question 2

Justiciable case or controversy - Abstention

Answer 2

Federal courts will abstain from resolving a constitutional claim when based on unsettled questions of state law.

Question 3

Justiciable case or controversy - Mootness

Answer 3

A real controversy must exist at all stages of review. If the matter has already been resolved, the case will be dismissed as moot until the controversy is capable of repetition. A class action representative may still continue even though her particular claim is moot as long as other class members claims are viable.

Question 4

Justiciable case or controversy - Political question

Answer 4

Political questions arise when an issue is constitutionally committed to another branch of government or inherently incapable of judicial review.

Question 5

Justiciable case or controversy - Standing

Answer 5

To have standing, a plaintiff must show a concrete stake in the outcome of the controversy. Individual standing requires a personal injury, causation between the conduct and injury, and redressaility. Standing to assert the rights of another requires violations of the claimant’s own rights, plus either a special relationship between the claimant and the third party, or if it is difficult for a third party to assert their own rights. Organizational standing requires that individual members have standing, that the interests are germane to the organization’s purpose, and individual’s participation in the lawsuit is not required.

Question 6

Justiciable case or controversy - Eleventh Amendment

Answer 6

Prohibits federal courts from hearing a private party’s claims against a state government unless the private party sues a state officer, the state consents, or Congress removes immunity. Actions against local governments or state officers for injunctive relief is not barred.

Question 7

Governmental power - Separation of powers

Answer 7

Judicial (justiciability), executive (foreign and domestic) legislative (source of power)

Question 8

Governmental power - Executive power - foreign powers

Answer 8

The executive branch holds the treaty power, power to create executive agreements, and the war and foreign relations power.
Under the treaty power, the president can enter into agreements with foreign countries with a 2/3 Senate approval. Treaties will prevail over conflicting state laws.
Under the executive agreement power, the president may enter into an agreement with a foreign country. The agreement will prevail over conflicting state laws but not federal laws or the constitution.
Under the war and foreign relations power, the president has no power but may act militarily in actual hostilities.

Question 9

Governmental power - Executive power - domestic power

Answer 9

Domestically, the president has the power to appoint and remove people from executive positions, the power to pardon, and the power to veto. If the president acts with express or implied constitutional authority, his actions are likely to be valid. If the president acts where congress is silent, his actions likely will be upheld unless he usurps power of another branch, and if the president acts against express congressional will, he has little authority.

Question 10

Governmental power - Executive power - executive privilege and immunity

Answer 10

The president has the privilege of keeping certain communications secret, particularly regarding national security, but not in criminal proceedings where the prosecution can show a need. The president has absolute immunity from civil damage for acts committed while in office.

Question 11

Governmental power - Legislative power - impeachment

Answer 11

A majority of the house is needed to charge impeachment and a 2/3 Senate vote to convict and remove him from office

Question 12

Governmental power - Legislative power - congress’s authority to act

Answer 12

For congress to act, there must be express or implied authority in the constitution. The Necessary and Proper clause allows congress to take any action not prohibited by the Constitution to enable execution of any power granted by any branch of the federal government.

Question 13

Governmental power - Legislative power - enumerated powers

Answer 13

Congress has a number of enumerated powers. Those include the power over: commerce, taxing and spending, property, citizenship, and war.

Question 14

Governmental power - Legislative power - enumerated powers - commerce clause

Answer 14

Congress has the power to regulate the channels of interstate commerce, the instrumentalities of interstate commerce and persons or things in interstate commerce, or economic activities that have a substantial effect on interstate commerce.

Question 15

Governmental power - Legislative power - enumerated powers - taxing and spending

Answer 15

Congress may tax and spend for the general welfare and may enact any tax to raise revenue for the general welfare. Congress’s taxing power is plenary and it can tax any activity that it can otherwise regulate or where there is a revenue raising purpose. Taxes must be geographically uniform.

When exercising its spending power, Congress generally is free to condition its grants so long as the conditions are clearly stated, it relates to purpose of the spending program, and is not unduly coercive.

Question 16

Governmental power - Legislative power - enumerated powers - property

Answer 16

Congress may dispose of and make all needful rules regarding territories and property of the United States

Question 17

Governmental power - Legislative power - enumerated powers - citizenship

Answer 17

Congress’s power over citizenship is plenary.

Question 18

Governmental power - Legislative power - enumerated powers - war

Answer 18

Congress has the power to declare war.

Question 19

Governmental power - Legislative power - limitations on power by the 10th Amendment

Answer 19

All powers not granted to the US, nor prohibited to the states, are reserved to the states or the people. Congress cannot compel state regulatory or legislative action but can induce state government action by putting strings on grants so long as it is not unduly coercive. Congress may prohibit harmful commercial activity by state governments

Question 20

Governmental power - Federalism - preemption

Answer 20

The Supremacy Clause of Article VI provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land. There is express preemption where congress expressly states it is preempting state law. There is implied preemption where state and federal laws conflict, where state law interferes with a valid federal objective, or if it appears that congress intended to preempt a field by establishing an agency or because of the scope of its action.

Question 21

Governmental power - Federalism - dormant commerce clause

Answer 21

If a state law discriminates against out-of-state competition, it is invalid unless: the law furthers an important state interest and there are no reasonable, nondiscriminatory alternatives, the state is a market participant, or the government action involved is in performance of a typical government function.
If a state law does not discriminate, it may still burden interstate commerce. If it does it is invalid unless the state’s interest in the regulation outweighs the burden on interstate commerce. If it does not burden interstate commerce, then it is valid.

Question 22

Governmental power - Federalism - privileges and immunities clause

Answer 22

This includes Article IV and the Fourteenth Amendment.
Under Article IV, state laws which deny an out of state person the same privileges and immunities accorded to in state persons are invalid. A law that discriminates will only be valid if the government can show that non residents are at least part of a problem that the government is trying to remedy, and that there are no less restrictive means available.
The Fourteenth amendment prohibits states from denying their own citizens rights of national citizenship and applies to situations where there is a right to travel at issue.

Question 23

Individual rights - State action

Answer 23

State actions issues arise when it is alleged that someone other than the government or government official is acting with state authority to deprive them of constitutional rights. Look for significant state involvement where there has been discrimination.

Question 24

Individual rights - First amendment speech - prior restraint

Answer 24

A prior restraint restricts speech before it occurs, rather than punishing for it afterwards. The government must show some special societal harm would result without the restriction. To be valid a prior restraint must have the following safeguards: Standards must be narrowly drawn, reasonable and definite; the injunction must be properly sought, and there must be a prompt and final determination of the validity of the restraint.

Question 25

Individual rights - First amendment speech - vagueness and overbreadth

Answer 25

Statutes restricting speech cannot be vague or over broad. The vagueness requirement holds that a reasonable person must have notice of what is prohibited. Statutes are over broad when they regulate both protected and unprotected speech.

Question 26

Individual rights - First amendment speech - content regulations

Answer 26

Content regulations are generally unconstitutional unless it is necessary to achieve a compelling government interest. Exceptions to the general rule are in cases of: incitement of illegal activity, obscenity, commercial speech, and defamation. Incitement of illegal activity requires there is an imminent threat of illegal activity, and the the speech is directed to cause the activity. Obscenity is speech that appeals to prurient interests, is patently offensive, and lacks any literary, artistic, political, or scientific value. Commercial speech includes any illegal, false, or deceptive adds. All other commercial speech is subject to intermediate scrutiny.

Question 27

Individual rights - First amendment speech - content neutral regulations

Answer 27

Content neutral restrictions are time, place and manner restrictions on speech. Public forums include streets, sidewalks, parks, and other areas open to First Amendment Activities. Here, regulations must be content neutral, narrowly tailored to an important government interest, and serve an important government function. Limitations in limited public forums and private forums must be reasonable and viewpoint neutral.

Question 28

Individual rights - First amendment speech - symbolic speech

Answer 28

The government can regulate symbolic speech to serve an important state interests unrelated to the suppression of the message as long as the burden is not greater than what is necessary.

Question 29

Individual rights - Freedom of association

Answer 29

The government may not prohibit or punish group membership unless the law meets strict scruitney

Question 30

Individual rights - First amendment religion - free exercise clause

Answer 30

The government may not deny any benefit or impose any burden on the basis of religious beliefs. However, the government need not grant exemptions to generally applicable conduct regulations that incidentally burden religious activity.

Question 31

Individual rights - First amendment speech - establishment clause

Answer 31

The establishment clause prohibits the government from favoring or showing a preference for one religion over another. If there is a sect preference on the face of the regulation, the courts must apply a strict scrutiny test. Otherwise it will apply the Lemon test: is there a secular purpose, the primary effect of the regulation is neither to advance nor inhibit religion, there is not excessive entanglement between government and religion.

Question 32

Individual rights - Equal protection

Answer 32

The Equal Protection Clause prohibits the government from treating similarly situated persons in a dissimilar manner. Whether discrimination is reasonable depends on the classification for discrimination and the interests involved. Suspect classifications include race, alienage, and national origin, and require strict scrutiny analysis. Quasi suspect classes include gender and illegitimacy, and requires intermediate scrutiny. Other classifications, including wealth, age, disability, and alienage issues related to important governmental functions are only subject to a rational basis test.

Question 33

Individual rights - Equal protection - strict scrutiny

Answer 33

The government must show a compelling government purpose and that the law is necessary to achieve that purpose.

Question 34

Individual rights - Equal protection - intermediate scrutiny

Answer 34

The government must show that the law relates to an important government purpose and that it is substantially related to achieving that purpose.

Question 35

Individual rights - Equal protection - rational basis

Answer 35

The challenger must show that the law is not rationally related to achieving any legitimate government purpose.

Question 36

Individual rights - Substantive due process - rational basis

Answer 36

Rational basis tests under substantive due process applies to all non fundamental rights, which typically include economic and social regulations.

Question 37

Individual rights - Substantive due process - strict scrutiny

Answer 37

Strict scrutiny applies to all fundamental rights. This includes the right to interstate travel, the right to vote, and the right to privacy, which includes contraception, marriage, procreation, child rearing, and familial relations

Question 38

Individual rights - Substantive due process - abortion

Answer 38

Where a fetus is in a pre viability stage, an undue burden test is appropriate. Where the fetus is post viability, abortions can be prohibited unless the woman’s health is threatened.

Question 39

Individual rights - Procedural due process

Answer 39

Procedural due process provides an opportunity to present objections to proposed government action against an individual to a fair and neutral decision maker. It applies any time there has been a deprivation of life, liberty, or property. The deprivation must involve intentional, or reckless government action. The due process owed to citizens requires a balancing of: the importance of the individual’s interest, the ability of additional procedures to increase the accuracy of fact finding, and the government’s interest.

Question 40

Individual rights - Economic liberties - Takings

Answer 40

The takings clause allows the government to take private property for public use where there is a reasonable belief that its action will benefit the public, so long as it provides just compensation for what is taken.
A taking can be either possessory or regulatory, and can be complete or partial. A possessory taking occurs when the government takes physical possession of property. A regulatory taking occurs when there is a deprivation of all economic value because of a government regulation. If the regulatory taking only decreases the value of the property but leaves it with some economically viable use for the land, it will not be a taking.

Question 41

Individual rights - Economic liberties - partial takings

Answer 41

Regulations that decrease the value of property by denying its most beneficial use do not necessarily result in a partial taking if they leave an economically viable use. The Court balances three factors: the social goals sought to be promoted; the diminution in value to the owner; and the owner’s reasonable expectations regarding use of the property. There will be a partial taking if the regulation greatly reduces the value with only slight public benefit.

Question 42

Due Process Clause

Answer 42

Under the Due Process Clause, the government is prohibited from acting unreasonably and arbitrarily. The test to determine whether government action is arbitrary and rational depends on the interests involved. There are two types of due process: procedural due process and substantive due process. Procedural due process requires that citizens have a right to be heard when the government interferes with their rights. Substantive due process is the principle that allows federal courts to protect certain fundamental rights under the due process clause.

Question 43

Thirteenth amendment

Answer 43

The thirteenth amendment authorizes congress to pass laws prohibiting slavery, the badges of slavery, and involuntary servitude. This provides congress with the ability to prohibit racial discrimination in private and public transactions.

Question 44

Contracts clause

Answer 44

Says that state and local governments may not substantially impair the obligations under private contracts unless it serves a legitimate and important state interest and is reasonable and narrowly tailored to promote that interest.

Question 45

Legislative veto

Answer 45

A legislative veto is an attempt to overturn an executive agency action without bicameralism or presentment. This arises where congress has delegated a duty to an executive agency but then tries to control the agency by requiring it to present the action to congress for final approval.