Constitutional law

Question 1

Presidential pardons

Answer 1

Can only grant reprieves or pardons for offenses against the U.S. So, federal offenses.

Question 2

Abstention

Answer 2

Fed ct will refuse to review a case based on an unsettled issue of state law
Fed review prohibited where there are pending state criminal proceedings

Question 3

Presidential powers

Answer 3

• issuance of executive orders which have the binding force of law upon federal agencies
• commander in chief
• appointment powers
• emergency powers
• clemency powers

Question 4

Hierarchy of laws

Answer 4

1. Constitution
2. Acts of congress, treaty
3. Executive agreement (foreign policy/affairs), executive order (domestic policy)
4. State law

Question 5

Conflict between laws on equal footing (like act of congress AND a treaty)

Answer 5

Last in time will prevail. Most recent.

Question 6

Executive agreements subject to judicial review?

Answer 6

YES.

Foreign policy/affairs

Question 7

Generally wrong answers

Answer 7

General welfare clause
Necessary and proper clause
–these two NOT an independent source of power, just vehicles that carry into effect some other law, but don’t provide power in and of themselves

14th A privileges and immunities clause
–not always wrong tho. P&I of Art 4 probably more likely right.

Contracts clause
–only applies to the states, so not correct if the fed gov is acting

Distinction between Rights and Privileges

10th A - caveat NY v US
–usually a weak limitation on federal action.

Question 8

Congress delegation of power

Answer 8

• may delegate the task of implementing its laws to gov agencies
• allows Cong to indirectly monitor an area in which it has passed laws without becoming bogged down in enforcement details

Question 9

When Congressional delegation of power is valid

Answer 9

1. Cong passes enabling legislation
2. specified the purpose, functions, and powers
3. describes the procedures of the agency

Question 10

Supremacy clause

Answer 10

Superseding doctrine
And
Preemption doctrine

Question 11

Superseding doctrine

Answer 11

A fed law will supersede any state law in direct conflict

Question 12

Preemption doctrine

Answer 12

Any state law in an area where congress intends to occupy the field is unconstitutional

Question 13

State law vs. administrative order of a federal agency

Answer 13

Administrative order of federal agency wins.

Question 14

Can states set more stringent standards that the federal law?

Answer 14

YES, if it falls within the Police Power or another exception.

Question 15

To uphold a state statute

Answer 15

1. Dormant commerce clause
   - non discriminatory
   - no undue burden on interstate commerce (use balancing test)
2. Police power
   - health, safety, welfare, morals, aesthetics

Question 16

When can a state tax federal property?

Answer 16

When its used for proprietary purposes (so long as it’s not discriminatory)

Question 17

State taxation of federal things

Answer 17

States can’t tax the fed gov

Fed employees and contractors can be taxed as long as the incidence of the tax does not fall on the fed gov itself

Question 18

To uphold federal statute:

Answer 18

1. Supremacy clause
2. Any enumerated power of congress (Art 1, section 8)
3. Federal property power

Question 19

Property power

Answer 19

Congress has the power to dispose of the territory or other property belonging to the US

Question 20

Affectation doctrine

Answer 20

Congress may regulate any activity which had a substantial economic effect on interstate commerce

Question 21

Regulation of interstate commerce constitutional so long as:

Answer 21

1. Non discriminatory
   AND
2. Does not place an undue burden on interstate commerce

Question 22

Can congress appropriate funds for the general welfare even though disparate treatment is given to different groups?

Answer 22

YEP

Question 23

Can Congress commandeer the states to enact and enforce legislation?

Answer 23

NOPE

Question 24

Commandeering

Answer 24

Cong can’t do anything that forces the states to enact and enforce legislation.

Unconstitutional

Question 25

State action

Answer 25

Threshold requirement of conduct by the gov which MUST be satisfied before private discrimination can be restricted

Question 26

STRICT SCRUTINY

Answer 26

Burden on - GOV Standard - necessary for a compelling gov interest Race, alienage, national origin, fundamental rights

Question 27

INTERMEDIATE SCRUTINY

Answer 27

Burden on - GOV Standard - substantially related to an important gov interest Gender, illegitimacy

Question 28

RATIONAL BASIS

Answer 28

Burden on - PLAINTIFF Standard - rationally related to a legitimate gov interest Age, mental retardation, poverty, necessities, social and economic welfare measures

Question 29

When a statute is neutral on its face, P must show:

Answer 29

1. Discriminatory effect, AND 2. Discriminatory purpose. To raise burden above rational basis

Question 30

Fundamental right of privacy

Answer 30

``` Contraception Abortion Marriage Procreation Private education Family relations ``` CAMPER

Question 31

Fundamental rights

Answer 31

Right to vote Right to travel Right to privacy Substantive due process - the source from which these rights derive

Question 32

Article IV Privileges and Immunities

Answer 32

Prevents economic discrimination by one state against citizens or residents of another state UNLESS a substantial gov interest exists Right to access courts, medical care, earn a living, pursue a livelihood - can't discriminate. For recreational things, CAN charge more for out of state people.

Question 33

Non Fundamental Voting rights

Answer 33

Apply RB: | - the right to be a candidate (payment of a filing fee, minimum and maximum age restrictions)

Question 34

Fundamental voting rights

Answer 34

Apply strict scrutiny: Discrimination in voting Reapportionment Switching party affiliation Ballot restrictions based on "special interests" (land ownership)

Question 35

Taking

Answer 35

Regulation that denies the owner all reasonable economically viable use of his land

Question 36

Bill of attainder

Answer 36

Legislative punishment of a named group or individual without judicial trial

Question 37

"Public Use" requirement (for taking)

Answer 37

1. Burden on gov to show measure is rationally related to any conceivable purpose 2. To qualify as public purpose, property does not have to be held out for use by the general public Want to show that it benefits the public generally, but doesn't have to be open to the public.

Question 38

Procedural Due Process

Answer 38

The procedural safeguards if notice and a hearing are available whenever there is a serious deprivation of any life, liberty, or property interest

Question 39

Ex post facto laws

Answer 39

UNCONSTITUTIONAL criminal laws that: 1. Make criminal conduct that was not a crime when committed OR 2. Decrease the amount of evidence needed to convict/change the procedure(s) for conviction

Question 40

Content Specific Regulation - protected speech

Answer 40

Apply strict scrutiny

Question 41

Content Specific Regulation - unprotected speech (types)

Answer 41

``` Clear and Present Danger Defamation Obscenity Child Pornography "Fighting words" Fraudulent commercial speech ```

Question 42

Test for "Content Neutral" regulation (Time, place and manner)

Answer 42

3 part test: 1. Further a significant government interest 2. Be narrowly tailored (least restrictive means possible) AND 3. Leave open alternative channels of communication

Question 43

4 Facial Attacks to a statute (first amendment)

Answer 43

1. Overbreadth 2. Vagueness 3. Prior restraints 4. Unfettered discretion (where one person has too much power to do something, no balance of power)

Question 44

Types of Public Speaking Forums

Answer 44

1. Public Forum 2. Limited Public Forum 3. Non-public Forum

Question 45

When a gov provides open advertising on city buses, can it engage in viewpoint-based distinctions?

Answer 45

NOPE. Cannot make content-based discrimination

Question 46

Public Forum

Answer 46

Areas generally open to the public. | Examples: streets, sidewalks, public parks

Question 47

Limited Public Forum

Answer 47

Opened by state on permanent/limited basis | Examples: school rooms, public-owned theaters

Question 48

Non-public Forum

Answer 48

Most other public places | Examples: military bases, city bus, government workplaces, airport terminals

Question 49

Vice Advertising (test)

Answer 49

Gov regulation must: 1. Directly advance 2. a substantial gov interest, 3. AND be "narrowly tailored"

Question 50

Establishment Clause test (Lemon v. Kurtzman)

Answer 50

In order NOT to violate the Lemon test: 1. The primary purpose must be secular 2. Primary effect must neither inhibit nor advance religion 3. No excessive government entanglement with religion

Question 51

Standard of review for Free Exercise of Religion infringements

Answer 51

Purposeful interference -> Strict scrutiny Incidental burden -> Rational basis

Question 52

When a state court decision is based on federal interpretation of a similar federal law, adequate and independent state grounds will not apply. True or false?

Answer 52

TRUE. SCOTUS may review in this situation.

Question 53

May Congress expand SCOTUS's appellate jdx to include direct review of the decisions of lower state courts? (not state supreme courts)

Answer 53

YES. Cong may expand or restrict the number and types of lower court decisions which SCOTUS may hear. Cong has power over SCOTUS's appellate jdx, can alter it.

Question 54

When may a jdx restrict the right to vote?

Answer 54

So long as the restriction is necessary to advance a compelling gov interest and the jdx has chosen the least restrictive means of achieving that interest. Residency, age, and citizenship have been allowed - least restrictive means of achieving this interest.

Question 55

Residency requirement for right to vote that has been upheld by SCOTUS? (is less burdensome on right to vote)

Answer 55

50 day residency requirement

Question 56

May Congress set aside, or override, an administrative order of a cabinet member?

Answer 56

NO. If Cong wants to enact new laws, it has to legislate a new bill though its express or implied powers, and then have the President sign it into law. Cong may NOT abrogate an authorization prescribed by federal law without new legislation permitting such action. Legislative vetoes are unconstitutional.