Constitutional Law Flashcards
1
Q
Which Article of the Constitution governs judicial power.
A
Article III
2
Q
What is the limit of judicial power?
A
Actual cases and controversies.
3
Q
What does it mean for a case to be justiciable?
A
No advisory opinions
Ripe and not moot
Plaintiff has standing
4
Q
What is an advisory opinion?
A
An opinion that lacks an actual dispute or would not have a legally binding effect on the parties.
5
Q
Which of the following is not an advisory opinion?
- Jefferson asking the Supreme Court for advice on the meaning of federal treaties.
- Plaintiff suing at defendant’s request, and defendant finances and directs the suit.
- Federal law allows veterans to file pension claims in federal court, but gives the Secretary of Defense the power to ignore court decision.
- Firm subject to tax seeks declaratory judgment on its constitutionality.
A
- Firm subject to tax seeks declaratory judgment on its constitutionality.
A declaratory judgement is not necessarily an advisory opinion.
6
Q
How would you analyze a ripeness question?
A
1) Look for a pre-enforcement request
2) Apply the test: Pre-enforcement requests are not ripe unless:
a) there is substantial hardship in absence of review (the more the better); and
b) the issues and record are fit for review (the more legal than factual, the better.)
7
Q
P seeks a declaratory judgment on the constitutionality of anti-contraception laws not enforced in 80 years. Ripe?
A
No. No enforcement likely.
8
Q
Drug firm seeks declaration that FDA lacked authority to require generic names on all drug labels and ads. Compliance would cost $$$; non-compliance would result in serious and civil penalties. Ripe?
A
Yes. Threat of enforcement (hardship) is real. Plaintiff is simply challenging the fact that the FDA lacks legal authority. There are no facts at issue.
9
Q
How would you analyze a mootness question?
A
1) Is the controversy live?
a) P continues to be injured.
b) P has not been made whole.
2) Is there an exception?
a) Capable of repetition, yet evading review. (pregnancy/abortion - and other events of a limited duration.)
b) D’s voluntary cessation
c) Class action, and one P has an ongoing injury.
10
Q
Inmate suing to change prison conditions, but completes his sentence. Moot?
A
Yes. No more injury.
11
Q
Pregnant woman challenges an abortion law, but delivers her baby before the case is heard. Moot?
A
No. Capable of repetition, yet evading review.
12
Q
City seeks to close a strip club, but owner retires and closes the doors. Moot?
A
No. D voluntarily ceased.
13
Q
What are the elements of standing?
A
1) Injury in fact
2) Causation
3) Redressability
14
Q
For standing purposes, what constitutes an injury?
A
Almost any harm counts, whether it is physical, economic, environmental, loss of constitutional or statutory rights, etc.
Future injuries can be enough, but they have to be imminent or be sufficient likelihood that they will occur again.
Not: ideological objections (i.e. political complaints), or generalized grievances that you share with the rest of society.
15
Q
Citizen wants to sue the government to obey the law. Does Citizen have standing?
A
No
16
Q
Taxpayer wants to sue the government for how it spends tax revenues. Does Taxpayer have standing?
A
No
17
Q
Name two exceptions to the general rule that plaintiffs who challenge taxes or spending do not have standing.
A
- Taxpayers may challenge their own tax liability.
- Plaintiff can challenge congressional spending in violation of the establishment clause (e.g. Congress allocates $ to build a church.) Plaintiff is still prohibited from challenging executive spending, however.
18
Q
When might a third party have standing?
A
- Close relationship (e.g. parent/child or Dr./Patient)
a) P must have an injury, and he could bring suit.
b) 3P unable or unlikely to sue (maybe for privacy reasons)
c) P can adequately rep the 3P. - Organizations on behalf of their members
a) Members have standing individually.
b) Members’ injury is related to purpose of the org.
c) Members’ participation is not required (i.e. not seeking individualized damages). - Free Speech Overbreadth
a) Substantial overbreadth in terms of the law’s legitimate to illegitimate sweep.
b) Not commercial speech.
19
Q
Dr. challenged an abortion law, raising the claim of his patient. Third party standing proper?
A
Yes. Close relationship.
20
Q
Non-custodial parent w/o decision making authority wants to challenge a statute on behalf of his child. Third party standing?
A
No. No close relationship.
21
Q
NAACP wants to challenge a law compelling disclosure of group membership raising the association rights of its members. Third party standing?
A
Yes. It is a group asserting the rights of its members and it is only seeking declaratory relief, not individual damages.
22
Q
Publisher of an obscene website wants to challenge an internet indecency ban on behalf of those with non-obscene websites. Third party standing?
A
Yes because the law is substantially overbroad.
23
Q
Publisher of obscene website wants to challenge a ban on indecent commercial websites on behalf of those with non-obscene websites. Third party standing?
A
No because he is attacking a commercial regulation.
24
Q
What is legislative standing?
A
Legislators may challenge acts that injure themselves personally, rather than the legislature generally or institutionally.
e.g.
Legislator challenging a tie-breaking vote of Lt. Gov. that nullified contrary votes = legislative standing.
Legislator challenging a line item veto that gave the President the power to alter legislation by Congress = no standing.
25
How does one prove causation for standing purposes?
P must show that his injury is fairly traceable to defendant. The more attenuated, the more there is likely a break in the chain.
E.g. No causation where parents of black public school children challenged IRS failure to deny tax breaks to discriminatory private schools, claiming that the breaks caused public schools to be less integrated. Denying tax breaks did not cause white flight.
26
How does one prove redressability for standing purposes?
P must show that a favorable court can remedy the harm (e.g. through $ damages or an injunction.)
e.g. No redressability when mother challenged the state's failure to prosecute for non-payment of child support, claiming loss of child support from lack of prosecution. Even resolving this case would not result in mother receiving child support. It would simply put father in jail.
27
What is the political question doctrine?
Federal courts will not decide political questions, that is, questions:
1) Committed by the Constitution to the political branches of government; or
2) Incapable of, or inappropriate for, judicial resolution.
28
Give some examples of political questions, which the federal courts will not hear.
Challenges based on:
1) The Guaranty Clause - guaranteeing a republican form of gov't.
2) The President's foreign affairs and foreign policy decisions.
3) Impeachment process. Challenges to the procedures used in an impeachment process.
4) Partisan gerrymandering.
5) Qualifications of members of congress are reserved to that chamber to decide.
6) Seating of delegates at political conventions.
29
What is sovereign immunity? What are some exceptions, and when is it not barred?
Sovereign immunity protects the states from being sued unless they consent.
Exceptions:
1. Waiver. They have all consented to be sued for negligence.
2. The plaintiff is another state or federal gov't.
3. Bankruptcy proceedings and state is creditor.
4. Clear abrogation by Congress under 14th Am powers to prevent discrimination.
Not Barred:
1. Can sue state officials even if you cannot sue the state itself. (entitled to injunctive relief or $ damages from their own pocket.)
2. Local governments (municipal and county) can be sued because they do not enjoy sovereign immunity.
30
I want to sue my state to prevent my home from being bulldozed. Barred?
Yes.
31
I want to sue the state director of transportation to prevent my home from being bulldozed for a highway. Barred?
No.
32
Rodney King sues LAPD for beating him up. Barred?
No.
33
I want to sue my state under federal anti-discrimination laws for firing me on racial grounds. Barred?
No.
34
When will federal courts decline to (abstain from) decide a federal constitutional claim?
1. If there is an unsettled Q of state law (e.g. law is ambiguous and federal courts need to know how it is interpreted at the state level before federal courts take it up.)
2. Fed Courts generally may not enjoin pending state judicial or administrative proceedings.
35
When will the U.S. Supreme Court review a case?
After there has been a final judgment by the highest state court capable or rendering a decision, a federal court of appeals, or (in special cases) a three judge district court.
36
A state Supreme Court found that a search violates both the 4th Am. to the U.S. Const., and, it also violated an independently interpreted provision of the state const. May the Supreme Court review?
No. The case was decided on independent and adequate state law grounds. Even if the Supreme Court ruled on the 4th Am. issue, the search still violated the state constitution, so the outcome would not change.
37
A state Supreme Court found that a search violates both the 4th Am. to the U.S. Const., and, it also violated an parallel provision of the state const.that incorporates federal law. May the Supreme Court review?
Yes because the state constitution paralleled and incorporated state law.
38
What does it mean if the Supreme Court refuses to review something because of independent and adequate state grounds?
The US Supreme Court will not review a federal question if the state court decision rests on an independent (separate) and adequate (sufficient) state law ground.
39
State supreme court denies review of appeal under procedural rule only applied against black people. Ind. and Adeq. state law grounds?
No. Independent and adequate state law grounds do not apply if the state law grounds apply a rule that is irregularly applied or discriminatorily applied.
40
What Article of the Constitution outlines Congress' enumerated powers?
Article I, Section 8
41
Under what circumstances does Congress have a general police power?
Federal land, Indian reservations, DC.
42
When is the necessary and proper clause invoked as a basis for legislative power?
When it is connected to another enumerated power. Congress may choose any rational means to carry out an enumerated power, as long as, the means are not prohibited by the Constitution. Need not be the best means.
E.g. Congressional bake sale to raise money for the Army is ok.
43
Give examples of Congress' enumerated powers.
```
Citizenship
Bankruptcy
Federal Property
Patents and Copyright
Post Offices
Coining Money
Territories and DC
Declaring War
Raising and Supporting Armies
Providing and Maintaining Navy
```
44
Define Congress' taxing and spending power.
Congress may tax and spend to provide for the general welfare. This includes an public purpose not prohibited by the Constitution, even if not within an enumerated power.
45
Which of the following are permissible under the taxing and spending power?
1) A tax on factory carbon emissions.
2) Spending on schools for states following federal education standards.
3) Tax on failure to purchase health insurance.
All are permissible.
46
If Congress wants to attach conditions on its spending, may they do so?
Yes, if
1) the "strings" relate to the purpose of the spending and do not violate the Constitution.
2) the "strings" are not unduly coercive (cannot act as a "gun to the head").
e. g. Congress cannot condition school money on highway speed limits. Not related.
e. g. Cannot withhold Medicaid funding (over 10% of state budgets) if states refuse to participate in Obamacare. Withholding 10% of a states' budget amounts to a gun to the head.
47
With whom may Congress regulate commerce?
1) Foreign nations
2) Indian tribes
3) Among the states.
48
Explain the Commerce Clause.
Congress may regulate the channels, instrumentlities, and activities that have a substantial effect on of interstate commerce.
Congress may also regulate solely intrastate activity if:
1) It is economic and, in the aggregate, the activity substantially effects interstate commerce.
2) It is non-economic and the state can show the activity substantial economic impact. (They usually cannot.)
Other limits:
1) No power to regulate non-economic activity in an area traditionally regulated by states.
2) Congress cannot compel participation in commerce (even if lack of participation substantially affects interstate commerce. e.g. buy health insurance).
49
Is a ban on discrimination at hotels and restaurants within Congress' power under the Commerce Clause?
Yes. It is an activity that substantially effects interstate commerce.
50
Is a ban on local cultivation and use of marijuana within Congress' power under the Commerce Clause?
Yes. See Wicker. It is intrastate economic activity that, in the aggregate, substantially affects interstate commerce. That is, if everyone did it, it would have an effect.
51
Is a criminal ban on domestic violence against women within Congress' power under the Commerce Clause?
No. It is intrastate and non-economic activity; therefore, there must be substantial economic impact.
52
Is a criminal ban on possessing a gun within 1000 ft of a school within Congress' power under the Commerce Clause?
No. It is intrastate and non-economic activity; therefore, there must be substantial economic impact.
53
Is a mandate to purchase individual health insurance within Congress' power under the Commerce Clause?
No. Congress cannot require you to participate, but they can tax you for failing to participate.
54
True or False:
In addition to banning private discrimination under its commerce power, Congress may also ban state discrimination under its 14 Am. power to enforce the guarantee of equal protection.
True.
e.g. Congress may authorize private suits against state governments for employment discrimination on basis of race, gender, and religion.
55
What is the standard for Congress to delegate power to agencies?
Congress may broadly delegate legislative power so long as they provide some intelligible principle to guide the exercise of power.
e.g. Delegation of authority to EPA to regulate air pollutants that "endanger public health or welfare."
56
Does the President have the power to line item veto? Can he get it from Congress?
No. It violates bicameralism, which is the principle that a law must pass both houses and be presented to the President for his wholesale approval or rejection.
57
Can Congress grant itself a line item veto power?
No. It violates bicameralism and presentment. That is, Congress cannot pass a law granting one house or a committee with the power to reform it later.
58
If I want to sue Ted Cruz for acting like an assbag in a speech on the floor of the Senate, may I do so? Why/Why not?
No. Members of Congress enjoy immunity from civil and criminal liability for legislative acts, which include, speeches on the floor, voting, and committee reports.
It does not include: bribes, tweets, town halls, speeches and publications outside of Congress.
59
What Article of the Constitution governs Executive power?
Article II
60
What is the job description of the President in one sentence?
President has the power and duty to faithfully execute laws.
61
Whom may the President appoint and remove?
The President has the power to appoint:
1) Ambassadors
2) Federal Judges
3) Officers of the US (e.g. cabinet secretaries)
w/ majority approval by the Senate.
Recess appointments are permissible if the Senate is in recess for at least 10 days, and those last until the end of the next Senate session.
Congress may vest appointment power in the President, department heads, or judiciary, but not in themselves for the appointment of inferior officers (e.g. the undersecretaries or independent counsel).
The President may remove high-level executive officers at will (e.g. cabinet secretaries), but Congress may limit his removal of other executive officials to good cause.
Note***Congress may only remove official through the impeachment process.
62
When may the President pardon someone?
The President may pardon someone convicted or accused of a federal crime unless and until that person has been impeached by Congress.
Note***This does not cover civil liability for that crime.
63
Who may declare war? Who may deploy troops?
Only Congress may declare war, but the President, as Commander-in-Chief, has broad discretion to deploy troops internationally in order to protect American lives and property.
Note
* Challenges may be non-justiciable as a political question.
* *Congress can check the President's power through the power of the purse.
64
What are the similarities and differences between a treaty and an Executive Agreement?
1) The President negotiates them both.
2) Treaties must be ratified by the Senate by 2/3 approval; Executive Agreements have no ratification requirement.
3) Both trump existing and future state law.
4) Treaties trump existing (not future) federal law; Executive Agreements do not ever trump federal law.
65
Explain Congress' impeachment power.
Congress may impeach the President, VP, federal judges, and all officer of the US for treason, bribery, or other high crimes and misdemeanors.
First the house must vote to impeach (majority), then the Senate must convict by 2/3 vote in order to remove.
66
What is the difference between Presidential Immunity and Executive Privilege?
Presidential Immunity refers to the President's absolute immunity from civil damages for any actions arguably within official responsibilities. However, he does not have immunity from private suits for conduct prior to taking office.
Executive Privilege protects confidentiality of presidential communications unless the privilege is outweighed by other important interests (e.g. US v. Nixon).
67
Explain the levels of inherent/implied presidential power.
1) Congress has authorized the President to act. (Best for President)
2) Congress is silent on the President's authority to act. (Mediocre for President)
3) Congress has prohibited the President to act. (Worst for President).
68
What is the 10th Amendment and how does it protect the state from the federal government?
The 10th Am. is the states' police power and it reserves to the states and the people, all the powers not granted to the US or prohibited.
It protects the states because Congress cannot compel states to enact or administer federal programs.
e.g. Requiring states to enact environmental regulations or
Requiring local law enforcement to conduct background checks for federal handgun laws.
69
What is the Supremacy Clause?
The Supremacy Clause of Article VI makes federal law preempt inconsistent state and local laws.
70
What types of code and documents make up federal law?
The Constitution, statutes, regulations, treaties, and executive agreements.
71
What is preemption?
The concept of preemption is similar to the Supremacy Clause, but it is more specific.
There are two types:
1) Express Preemption - Congress says that Federal Law governs x, y, or z. In which case, federal law preempts state law.
2) Implied Preemption -
a) Conflict
(i) it is impossible to follow both federal and state law so federal law governs.
(ii) state law impedes federal law/
b) Field - Extensive regulation indicates Congressional intent to occupy the field because there is no room left for the state to regulate.
72
Which of the following are examples of preemption
A - Fed law sets max auto emissions at 50 ppb. State law sets max at 40ppb.
B - Fed law sets max auto emissions at 50 ppb. State law sets max at 60 ppb.
C - Fed law delegates to EPA the exclusive authority to set max auto emissions. EPA sets max at 50 ppb. State sets max at 40 ppb.
D - Fed law encourages reporting employment discrimination to federal agency. State law denies unemployment benefits to its citizens who do.
E - Congress extensively regulates immigration. Border state imposes additional requirements for entry.
B, C, D, and E are all examples of preemption.
73
What is the dormant commerce clause?
It prohibits state laws that discriminate against or unduly burden interstate commerce.
An state's law violates the DCC if:
1) It is discriminatory, unless:
The law is necessary to achieve an important government purpose other than protectionism, and there are no less discriminatory alternatives.
OR
2) Even though it is non-discriminatory, it unduly burdens interstate commerce.
Exceptions:
1) Congress approves of the statute
2) The State acts as a market participant
3) The law is favoring gov't action that involves the performance of a traditional gov't function (e.g. waste disposal).
74
What is the Privileges & Immunities clause of Article IV?
The P&I Clause prohibits state laws that discriminate against out-of-state US citizens with regards to
1) Important Commercial Activities (i.e. earning livelihood)
2) Fundamental Rights
In order to successfully sue a plaintiff must:
1) Be an out of state US citizen (person, not corp/entity)
2) Show that the law discriminates on that out of state citizens ability to earn a livelihood or fundamental rights.
Exception:
Laws may discriminate on out of state citizens if the law is necessary to achieve an important gov't interest and there are no less restrictive alternatives.
75
True or False:
| DCC and P&I Art. IV are mutually reinforcing rather than mutually exclusive.
True. They often overlap and a law could violate either, neither, or both.
76
City requires its contractors to employ 50% residents. Out of state citizen sues? Does this violate DCC and/or P&I Art. IV?
```
DCC = Valid because city is a market participant.
P&I = Invalid; right to earn a living burdened.
```
77
State law prohibits sale of out of state milk at price lower than in state milk. Out of state dairy farm sues. Does this violate DCC and/or P&I Art. IV?
```
DCC = Invalid; straight protectionism.
P&I = N/A; not a US Citizen suing.
```
78
State charges out of staters more than in staters for college. Out of state citizen sues. Does this violate DCC and/or P&I Art. IV?
```
DCC = Valid; State is market participant.
P&I = Valid; Not being denied right to earn living or fundamental right (no fundamental right to higher ed.)
```
79
OK bans transport and sale of in-state minnows out of state. Texas bait company sues. Does this violate DCC and/or P&I Art. IV?
```
DCC = Invalid; there's a less discriminatory alternative.
P&I = N/A; US Citizen not the one suing.
```
80
ME bans importation of live bait fish, which might introduce new parasites into the state. NH bait company sues. Does this violate DCC and/or P&I Art. IV?
```
DCC = Valid; discriminatory but important gov't interest, and no less compelling alt.
P&I = N/A; P not a US citizen.
```
81
CA bans gas guzzling SUVs. MI manufacturer sues. Does this violate DCC and/or P&I Art. IV?
```
DCC = Valid; not discriminatory and burdens on IC do not clearly outweigh benefits.
P&I = N/A; P not a US citizen
```
82
IL, alone, requires trucks to use curved mud flaps, which confer no clear safety benefits. Out of state trucking company sues. Does this violate DCC and/or P&I Art. IV?
```
DCC = Invalid; nondiscriminatory but burdens on IC clearly outweigh benefits.
P&I = N/A; P not a US citizen.
```
83
TX charges out of staters substantially more than in-staters for commercial fishing licenses. LA citizen sues. Does this violate DCC and/or P&I Art. IV?
```
DCC = Invalid; discriminatory and no important purpose.
P&I = Invalid; out of state citizen and TX is burdening the LA citizen's right to earn a living.
```
84
City requires law firms to hire 50% residents. Out of state citizen sues. Does this violate DCC and/or P&I Art. IV?
```
DCC = Invalid; discriminatory purpose and no important interest.
P&I = Invalid; right P and burdens right to earn a living.
```
85
State restricts contraceptives sales to residents. Out of state citizen sues. Does this violate DCC and/or P&I Art. IV?
```
DCC = Invalid; disc. purpose and no imp. gov't int.
P&I = Invalid; Right P and fundamental right burdened.
```
86
Can a state impose taxes that discriminate based on state citizenship?
Like state regulation of IC, state taxation of IC is subject to Commerce Clause challenge.
i.e. Discriminatory taxes = generally invalid
Non-discriminatory taxes generally valid if
1) There is a substantial nexus between taxpayer and the state; and
2) Fair apportionment to business done or benefits received in state.
e. g. Tax credits for gas sellers of in-state ethanol = invalid.
e. g. Sales tax on items sold or shipped from out of state seller = invalid.
e. g. Gross receipts tax applied to 25% of gross receipts of multistate business with 25% in-state sales.
87
May the states tax the federal gov't?
No, states may not tax or regulate the federal government including its agents and activities without its consent.
e.g. State cannot require contractor to obtain a state license to build on a federal air force base.
88
What is the Privileges or Immunities Clause of the 14th Am?
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Prohibits state laws that interfere with:
1) Interstate travel
a) Right to enter or leave state
b) Equal treatment once a perm. res. of a state.
c) No fundamental right to international travel.
2) Ability to Petition Federal Gov't
3) Not provide you with protections of the Bill of Rights
89
True or False: The Constitution applies to public and private conduct.
Mostly false. In general, the Constitution applies to public, not private conduct.
Exceptions and Further explanations
1) The 13 Am. ban on slavery applies to the public and private action.
2) Private party is performing function traditionally and exclusively done by government is considered state action.
3) Significant state involvement in private conduct is considered state action.
90
What rights have not been incorporated to the states from the Bill of Rights?
Quartering of soldiers
Right to grand jury indictment
Right to Jury in a civil case
Right against excessive fines.
91
If a police officer or a teacher acts unlawfully, but in her official capacity, does this count as state action?
Yes
92
Which of the following constitutes state action?
(A) Company runs a company town
(B) Company runs a shopping mall
(C) State privatizes prisons
(A) Company runs a company town
| (C) State privatizes prisons
93
Which of the following constitutes state action?
(A) State grants liquor license to private club that racially discriminates.
(B) State fails to protect person not in state custody from private harm.
(C) Voluntary association of mostly public and some private high schools, run mainly by public school officials during school hours, regulates sports within the state.
(D) NCAA voluntary association of public and private universities that regulates sports, ordered firing of state college coach.
(E) State leases premises to restaurant that racially discriminates.
(F) Officer targets minorities contrary to policy.
(G) State court enforcement of racially restrictive covenant.
(C) Voluntary association of mostly public and some private high schools, run mainly by public school officials during school hours, regulates sports within the state.
(E) State leases premises to restaurant that racially discriminates.
(F) Officer targets minorities contrary to policy.
(G) State court enforcement of racially restrictive covenant.
94
What amendments tells us that due process applies to the states? What amendment tells us that it applies to the federal gov't?
```
States = 14th Am.
Fed = 5th Am.
```
95
What is procedural due process?
An individual has the right to a fair process when the government acts to deprive a person of life, liberty, or property.
Such a deprivation occurs when there is an intentional or reckless disregard, not a negligent one.
Liberty refers to physical freedom and Constitutional rights, not harm to reputation.
Property refers to real, tangible, and intangible. Also refers to gov't entitlements to which an individual has a reasonable expectation of continued receipt. (Welfare, public education, gov't licenses, tenured employment, employment for a term, but not at will employment.)
96
If the gov't intends to deprive you of life, liberty, or property, what must they do to comply with procedural due process?
1) Notice (reaosnably calculated to inform);
2) Give opportunity to be heard (pre-deprivation except in cases of emergency like taking someone's license when he refuses a breathalyzer); and
3) Neutral decision maker (no actual or serious risk of bias.)
97
What is the balancing test for whether someone has been giving proper opportunity to be heard?
It determines if the hearing was good enough to comply with due process considering the nature and extent of the proceedings and these factors:
1) The importance of the interest to the individual;
2) The risk of error through procedures used;
3) Accuracy gain from additional proceedings;
4) Burden on gov't (e.g. inefficiency and costs.)
Compare the procedure for terminating parental rights with the detention of a citizen as enemy combatant. Lecture notes page 26-27.
98
What is rational basis review? When does it apply?
Rational basis review places the burden on the challenger of the law to prove that the gov't act or classification is not rationally related to any legitimate gov't interest.
It applies in all the situations that S.S. and I.S. do not such as age, disability, wealth, alienage classifications by Congress, and alienage classifications related to democratic governance.
99
What is intermediate scrutiny? When does it apply?
I.S. review places the burden on the gov't to prove that their classification was substantially related to an important government interest.
Or, and important interest that requires an exceedingly persuasive justification, not a role stereotype.
It applies when the gov't discriminates based on gender or legitimacy.
100
What is strict scrutiny? When does it apply?
S.S. review places the burden on the gov't to prove that the burden they placed on a fundamental right or the suspect classification is narrowly tailored to a compelling gov't interest, and there are no less compelling means for achieving that interest.
It applies when the gov't burdens a fundamental right or treats members of a suspect class differently.
Suspect classifications are ones based on race, national origin, and alienage classifications by state gov't.
Fundamental rights include marriage, procreation, contraception, custody, care and upbringing of a child, living with extended family, interstate travel, and the right to vote.
101
What provisions of the Constitution provide for equal protection?
As to the states = 14th Am.
| As to the Fed Gov't = 5th Am. (it's implied in the due process clause of the 5th Am.)
102
What are the steps to follow in an Equal Protection question?
1) Identify the class
2) Identify the test (level of review)
3) Apply the test.
103
How does one determine which test to use?
1) Is it facially discriminatory?
2) Is it facially neutral but has both discriminatory impact and intent?
e. g. Male only hiring policy for firefighters = facial; I.S. apples.
e. g. Written test for hiring shows lower scores for black people, but was not designed as a discrimination tool. = neutral and no intent; R.B. applies.
e. g.State grants hiring preferences for veterans who are disproportionately male. = neutral, no intent; R.B. applies.
104
How does strict scrutiny change with school integration?
States may impose classifications that would otherwise violate S.S. if there is history of discrimination to be remedied.
e.g. Busing pupils on racial basis to remedy effects of past legal segregation in district is a compelling interest, and narrowly tailored.
versus
Busing pupils to integrate or diversify schools beyond remedying effects of past legalized segregation in district violates E.P. because while diversity is a compelling interest, busing is not narrowly tailored to achieve that interest.
Race must not be a blunt instrument in the efforts to achieve diversity.
105
When is Affirmative Action acceptable? How should it be implemented?
A.A. can acceptable in higher ed and in gov't hiring and contracting.
e. g. School uses a holistic approach in which race is one of many non-determinative factors in admissions. This is narrowly tailored to achieving a compelling gov't interest (diversity in law school is a compelling gov't interest.)
e. g. can't give points for race because it is using race as a blunt instrument.
e. g. An agency can employ AA to remedy its own past discrimination.
e. g. Cannot set aside 30% of gov't contracting work for minority contractors when there is no history of discrimination.
106
When is a classification based on alienage not subject to S.S.?
1) When Congress is making the classification.
e. g. Congress may choose not to extend health care coverage to non-citizens for fiscal reasons.
2) State classification based on democratic self-governance.
e.g.
States may NOT require US citizenship for employment (generally), gov't benefits, property ownership, being a notary public, or admission to the bar.
They may if it involves democratic self governance such as, voting, holding elective office, being a police officer or public school teacher, or jury service.
107
State law only entitles women to alimony upon divorce. What test, what result?
I.S.; invalid.
108
VMI excludes women because they would not be able to satisfy the physical requirements or succeed under the adversative method. What test, what result?
I.S.; invalid
109
Selective Service Act only requires males to register. What test, what result?
Court upheld it but kind of dodged it at the same time saying that it was up to Congress, and they won't interfere..
110
Social Security formula entitles women to greater benefits to remedy long history of pay discrimination. What test, what result?
I.S.; valid to remedy long history of pay discrimination.
111
Statutory rape law only makes men liable. What test, what result?
I.S.; valid since women have a natural deterrent to having sex as a minor, that is, pregnancy.
112
Law permitting parents to sue for wrongful death for marital but non-non-marital children. What test, what result?
I.S.; invalid.
113
Law allowing non-marital children to inherit from father only if paternity was established during father's lifetime. What test, what result?
I.S.; valid.
114
Law denying children of undocumented aliens free public education. What test; what result?
Unclear; invalidated under what appeared to be I.S.
115
State law denying discrimination protection to gays and lesbians. What test; what result?
R.B. but animus is never rational so the law was invalidated.
116
What Amendments guarantee substantive due process?
As to the the states = 14th Am.
| As to the federal gov't = 5th Am.
117
How does one determine if something is a fundamental right?
1) It is deeply rooted in this nation's history and tradition.
2) It is implicit in the concept of ordered liberty.
OR
3) It is identified as a fundamental right based upon reasoned judgement and new insight.
118
Law denying the right to marry. Is that a substantive due process or equal protection problem?
Substantive Due Process. It denies everyone a fundamental right.
119
Law denying gays and lesbians the right to get married. Is that a due process or equal protection problem?
Both. It denies some people a fundamental right.
120
At what point does a burden on marriage trigger strict scrutiny?
Substantial interference with the right to marry is necessary, and reasonable requirements to protect rather than hinder the right to marry are upheld under R.B. (e.g. reasonable age, proper ID).
121
State passes a law that will sterilize repeat offenders of moral turpitude. What test, what result?
S.S.; invalid. Burdens right to procreate.
122
State bans distribution and use of contraceptives, and limits sale to a pharmacist. What test, what result?
S.S.; invalid. Burdens right to contraception.
123
State requires that all early childhood education be done in English. What test, what result?
S.S.; invalid. Burdens right to custody, care, and upbringing of children.
124
City prohibits extended family from living in the same household. What test, what result?
S.S.; invalid. Burdens right to live with extended family.
125
State imposes a one year residency requirement for non-emergency medical care at the county's expense. What test, what result?
S.S.; invalid. Burdens right to enter and leave a state.
126
CA limits first year residents' welfare benefits even if they would have received them in their previous state. What test, what result?
S.S.; invalid. Burdens equal treatment as citizens of a state.
127
Federal gov't bans interstate travel to North Korea. What test, what result?
R.B.; valid. No fundamental right to international travel.
128
State requires voter to be 18. What test, what result?
R.B.; valid. Only R.B. applies for reasonable requirements that protect rather than hinder the right to vote.
129
State requires a voter to have been a resident of the state for 30 days. What test, what result?
R.B.; valid. Only R.B. applies for reasonable requirements that protect rather than hinder the right to vote. Residency tests must be "modest".
130
State requires US citizenship in order to vote. What test; what result?
R.B.; valid. Only R.B. applies for reasonable requirements that protect rather than hinder the right to vote.
131
State imposes a poll tax. What test, what result?
S.S.; invalid. Onerous and potentially discriminatory regulations are subject to S.S.
132
State imposes a literacy test to vote. What test, what result?
S.S.; invalid. Onerous and potentially discriminatory regulations are subject to S.S.
133
State redraws voting districts, and they are mostly equal, but a couple districts have as much as 16% more people. What test; what result?
S.S. One person, one vote. EP requires population of voting districts to be substantially equal, and the Court has upheld as large as 16% variance as reasonable in light of state interest in preserving political subdivisions.
134
Federal gov't redraws congressional districts within a state, and they are mostly equal, but there is a 2% variance in some. What test, what result?
S.S. One person, one vote. Art I requires population of congressional districts within a state be almost exactly equal. Even a .7% variance has been invalidated.
135
Gov't redraws congressional districts with obvious gerrymandering. Can the court hear this issue? What test, what result?
The Court can hear it if race was a factor in the re-drawing, in which case, S.S. applies.
The Court cannot hear the issue if it was political gerrymandering. That is a non-justiciable political question.
136
What is the test for laws burdening abortion?
Pre-viability, the state may regulate, but not prohibit abortions to protect the mother's health or the life of the fetus.
The test is whether the law presents an undue burden (i.e. a substantial obstacle) on access to abortion.
Post-viability, the state may prohibit/ban abortions unless they are necessary to protect the mother's life or health.
137
Which of the following present an undue burden on abortion?
1) Requiring a licensed physician to perform the abortion.
2) Requiring informed consent (nature and risk of abortion and childbirth gestational age.)
3) Requiring 24 hour waiting period after informed consent.
4) Requiring parental notification or consent for minor (with judicial bypass option).
5) Banning partial-birth abortions.
6) Not publicly funding abortions.
7) Requiring spousal notification or consent.
8) Requiring extensive recordkeeping and reporting of abortions (not directed at maternal health or not sufficiently protective of privacy).
7) Requiring spousal notification or consent.
8) Requiring extensive recordkeeping and reporting of abortions (not directed at maternal health or not sufficiently protective of privacy).
138
Give three examples of rights that might be fundamental, but the S.Ct. has been unclear so S.S. does not apply.
1) Private consensual adult sexual intimacy. No legitimate state interest in criminal ban on same-sex intimate conduct.
2) Right to refuse medical treatment.
(a) Competent adult may refuse lifesaving medical treatment, but the state may require clear and convincing evidence of individual's wish, and may prevent family members from terminating treatment.
(b) No fundamental right to assisted suicide.
(c) State may compel vaccination against contagious diseases.
3) Right to bear arms has been upheld as an individual right, but the S.Ct. has dodged whether it is a fundamental right.
139
What Am governs takings?
5th Am takings clause and 14th Am due process clause.
140
If the gov't takes your property, what is required?
1) It must be for a public use (broadly construed)
| 2) They must provide just compensation (fair value of property at time it was taken, not value to gov't.)
141
What property is subject to takings rules?
Real and personal property included rights to possess, use, dispose, etc.
This includes intangible property like the interest in attorney trust accounts and trade secrets, but it does not include welfare benefits. Welfare benefits are subject to procedural due process only.
142
What constitutes a taking?
1) Confiscation
2) Regular or permanent occupation. Temporary occupation may be a taking depending on the degree of the invasion, duration, gov't intention, and foreseeability with respect to result, character of property and interference with use.
3) Development Exception: traditional conditions on property development (e.g. streets, utility easements) are not takings if benefits are roughly proportional to burdens.
4) Emergency Exception: Taking less likely to be found, even for complete and permanent deprivation, if pursuant to public emergencies such as war.
143
Gov't built a dam and permanently flood private property. Taking?
Yes
144
Army Corps of Engineers temporarily flooded downstream to ease unusually heavy upstream water buildup. Taking?
No. This could change if it is a recurring problem or more substantial harm.
145
Regular military flights over a chicken farm scared the chickens to death. Taking?
Yes. Character was foreseeable and substantial, and it interfered with the farm's dedicated use.
146
Apartment owners were forced to make a small space available for TV equipment. Taking?
Yes. Cable is an amenity not akin to roads and power.
147
Gov't destroyed oil facilities to prevent them falling into enemy hands in WWII. Taking?
No. Emergency exception applies.
148
What is a regulatory taking?
A taking when a regulation on use does not merely diminish property value but leaves no economically viable use.
May also argue (but difficult to claim)
Something is a taking when considering
1) the economic impact of the regulation.
2) Interference with investment backed expectations
3) Character of gov't action.
149
Designating Grand Central Station as a landmark, thus preventing a proposed (but not all) upward expansion. Taking?
No. Not depriving all economic use, just this one. This application and interference was no so great as to be a taking.
150
New zoning ordinance prevents owner from building on his beach front lot. Taking?
Yes. It totally deprives him of viable economic use.
151
Gov't places a moratorium on development for 32 months pending completion of comprehensive land use planning. Taking?
No. Does not deprive of all economic use. It's only temporary.
152
What is a public purpose good enough to require a taking?
Any legitimate public purpose, that is, any purpose that gov't reasonably believes will benefit the public.
e. g. Both of the following were public use/purpose.
1) Confiscating property in a blighted area for sale to private company as part of a city's economic redevelopment plan.
2) Breakup of property from oligopoly of landholders for resale to remedy economic and social evils from concentration of land ownership.
153
What does it mean to provide just compensation for a gov't taking?
FMV at time of taking. Actual benefit to the gov't is irrelevant.
154
What is the contracts clause? What is the test?
No state shall pass any law impairing the obligation of contracts. It applies only to state and local laws (not federal gov't or state judicial processes.)
Test for private contracts
If State substantially impairs existing rights, it is invalid unless:
1) There is an important gov't purpose.
2) Reasonably related means.
Test for public contracts = heightened scrutiny (intermediate or strict, but it is unclear which).
155
State law banning underground coal mining that damages the surface substantially interfered with existing K rights. Valid?
Yes. It substantially interfered but there's an important gov't interest and the law reasonably relates to the means.
156
City retroactively reduces reimbursement rate for contractors travel expenses due to budget squeeze. Valid?
No. It is a Public K and subject to heightened scrutiny (save $ is not an important purpose for this test).
157
What is an ex post facto law?
A law that retroactively bans criminal activity.
Violated if:
1) Criminalizes an act that was innocent when done.
2) Makes a crime greater (felony vs. misdemeanor) than when committed.
3) Set greater punishment (1 year v.s 10 years) than when the act was done.
4) Reducing the evidence required to convict from what was required when the act was done.
158
What is a bill of attainder?
Neither state nor federal gov't may pass legislation that designates particular individuals (by name or description) for punishment without judicial trial. In a sense, the legislature is acting as judge and jury.
This applies to traditional sanctions (death, prison, fines, and confiscation) and punitive measures (exclusion from employment and benefits.)
159
Federal budge law denied salary payments to three federal employees that Congress determined to be subversive. Bill of attainder?
Yes.
160
Federal bailout law requiring CEOs of firms that sold more than $10 bllion in repackaged subprime mortgages to pay "bailout fee" of $10 million. Bill of attainder?
Yes.
161
What is speech?
Words, symbols, and expressive conduct.
Expressive conduct is anything that is inherently expressive, as well as, conduct that is intended to and reasonably likely to be perceived as conveying a message.
162
Which of the following are speech?
1) Arson
2) Flag Burning
3) Ballet
4) Nude Dancing
5) Ordinary Clothing
6) Black Arm Band
2) Flag Burning
3) Ballet
4) Nude Dancing
6) Black Arm Band
163
What are the categories of unprotected speech?
1) Incitement
2) Fighting words
3) True threats
4) Obscenity
5) Child Pornography
6) Defamation with actual malice
7) Commercial speech (false, misleading, or illegal)
164
What categories are considered partially protected speech?
1) Defamation about public officials, public figures, or matters of public concern.
2) Commercial speech (not false, misleading, or illegal).
165
How do you analyze a first amendment question?
1) Ask, is it speech?
2) If yes, is the speech protected or unprotected?
3) Find the appropriate test and apply it.
4) Ask, is the restriction vague, overbroad, or a prior restraint?
166
What is the test for incitement?
Advocacy of lawless action that is both
1) intended and
2) likely to produce imminent lawless action.
Mere advocacy is not enough.
167
KKK leader urging members at a rural rally to take "revengence" if gov't continues oppressing the white race. Incitement?
No.
168
KKK leader urging members to "take action" while standing in front of a black rape suspect's home. Incitement?
Yes.
169
Protester urging other protesters to "take to the fucking streets later" as they were being cleared by police. Incitement?
No. It is not clear he was promoting lawless action, and there is no imminent lawless action.
170
What is the test for fighting words?
Words likely to provoke an immediate violent response.
171
Calling someone a mother fucker in a bar. Fighting words?
Yes
172
Wearing a jacket in the hallway of a courthouse that says "Fuck the Draft". Fighting words?
No. It is protected political speech.
173
What is the test for true threats?
Words intended to convey to someone a serious threat of bodily harm. (perhaps recklessly conveying such a threat suffices.)
174
Burning a cross at a KKK rally. True threat?
No
175
Burning a cross on a black man's front yard. True threat?
Yes.
176
What is the test for obscenity?
Depiction of sexual conduct that, taken as a whole, by contemporary community standards
1) appeals to the prurient interest in sex,
2) is patently offensive, and
3) lacks serious social value by national standards.
Nudity, soft core porn, and dirty words are not obscene.
Even if something is obscene, you can still have it in your home as long as it is not child porn. This is your right to privacy.
Sexually explicit or indecent speech that is not obscene may nonetheless be subject to zoning (nighttime versus daylight, specific parts of town, etc.)
1) to protect children and unwilling adults from exposure.
2) to prevent neighborhood crime and decay
3) so long as there are ample alternative channels for the speech.
177
City bans an adult bookstore and theater within 1000ft of neighborhoods, schools, churches, and parks leaving less than 5% of city for this speech. Valid or invalid?
Valid.
178
FCC bans daytime airing of an indecent George Carlin monologue. Valid or invalid?
Valid.
179
What is child pornography?
Depicting of children engaging in sexual conduct whether obscene or not obscene.
Must be actual children not virtual or adults playing kids.
In home possession is also prohibited.
180
What is the rule for Con Law defamation?
First Am protects speech made without actual malice about
1) Public officials
(a) Holding or running for office
(b) Public employees in positions of public importance
like prosecutors, school principals, and police officers.
2) Public figures
(a) Assumed roles of prominence (e.g. Oprah, Bill
Gates)
(b) Achieved personal fame and notoriety (e.g. Kim
Kardashian)
(c) Thrust themselves into particular public
controversies to influence their resolution. (e.g. Joe the
Plumber)
3) Matters of Public Concern - matters important to society and democracy (e.g. national and local laws.)
181
What is actual malice? What is the burden of proof?
1) Knowledge of falsehood
2) Reckless disregard for the truth.
Must be proved by clear and convincing evidence.
182
Explain the Con Law analysis of a defamation claim.
Step 1: ID the type of plaintiff (public official, public figure, or private figure.)
Step 2: ID the subject matter of the alleged defamation (public or private concern.)
These two steps determine
1) Whether actual malice must be proven
2) What damages P may recover
Note***State elements for defamation still must be satisfied.
A public official or public figure must show actual malice to recover any damages.
A private figure on a matter of public concern must show actual malice to recover presumed and punitive damages, but needs only show negligence to recover actual damages.
A private figure on a matter of private concern need not show actual malice. Only state law governs.
183
What is the Con Law standard to recover for IIED?
Court requires actual malice for recovery for IIED infliction if P is a public figure or the speech is on a matter of public concern.
Parodies (skits, etc.) and protected speech (Westboro Baptist Church funeral picketing) will not result in IIED recovery.
184
What is commercial speech?
Ads, promotions of products and services, and brand marketing (e.g. the Nike swoosh.)
Just because there is a profit motive, does not make the speech commercial (e.g. The NY Times and novels are not commercial speech.)
185
What type of commercial speech is not fully protected?
False, misleading, or advertisements for an illegal service.
186
What is the test for Commercial Speech restrictions?
I.S.
1. Substantial gov't interest (e.g. consumer pro)
2. Narrowly tailored (reasonable fit [traditionally] --> least restrictive [modern]).
187
Bans on deceptive trade practices, including false or misleading ads. Valid?
Yes
188
Ban on attorney in-person solicitation for pecuniary gain. Valid?
Yes
189
Ban on accountant in-person solicitation for pecuniary gain. Valid?
No. Not as persuasive and predatory as lawyers.
190
Ban on truthful price advertising. Valid?
No. It's true and it's the type of info consumers want.
191
Compelled disclosure of prescription drug side effects. Valid?
Yes. There is an important purpose, and the law is narrowly tailored to fit that purpose.
192
In general, what standard applies to content based speech restrictions?
S.S. compelling interest, narrowly tailored to achieve that interest. Must employ least restrictive means.
193
In general, what standard applies to content-neutral restrictions?
I.S. (Barbri says important interest, narrowly tailored to achieve that interest as long as there is no substantial overbreadth.)
May channel through time, place, and manner restrictions.
194
Ban on flag burning. Type of restriction? Valid?
CB, Invalid.
195
Burn ban during summer months. Type of restriction? Valid?
CN, valid.
196
Ban on noisy neighborhood parties. Type of restriction? Valid?
CN, valid.
197
$1000 cap on campaign contributions. Type of restriction? Valid?
CB, valid. Can cap contributions if the cap is reasonable because it opens up the door to corruption. It is CB because $ is speech and it is restricting political speech.
198
Cap on campaign expenditures by candidates or independent expenditure by individuals or corporations.
CB, invalid. Cannot restrict how much a candidate spends on his or her campaign.
199
What is the forum doctrine?
The forum doctrine governs speech regulations on gov't property.
Traditional public forums (parks, sidewalks, streets) are open to the public as free speech zones.
Designated public forums (gov't email, town hall meeting in high school gym) are opened by policy or purposeful practice as a free speech zone, but can be undesignated.
Non-public forums or limited public forums (military bases, classrooms, post offices, DMVs, airports) are not opened by tradition or designation as free speech zones.
200
What level(s) of scrutiny applies to the forum doctrine?
In Public Forums and Designated Public Forums
1) CB restrictions are subject to SS,
2) CN to IS.
3) Must leave open alternative channels of communication.
4) Must not be overbroad, vague, or give unfettered discretion to enforce.
In Non-public Forums the gov't has leeway to restrict speech given the nature of the forum (time, place, and manner.)
1) SS if viewpoint based
2) RB if viewpoint neutral.
201
Ban on sleeping in parks. Which forum, which restriction, valid?
Public, CN, Valid
202
Ban on political signs in the courtroom. Which forum, which restriction, valid?
Non-Public, CB, Valid
203
Ban on anti-gov't protests inside congressional viewing gallery.
Non-Public, CB and VB, invalid
204
Under what circumstances may schools limit students' speech?
Personal student speech cannot be censored absent evidence of substantial disruption.
Exception: Speech promoting illegal drug use does not require showing any disruption.
School speech (including co-oped student speech) can be censored if reasonably related to legitimate pedagogical concerns.
205
Student suspended for wearing black arm band in class without incident to protest war. Valid restriction?
No
206
Student suspended for passing notes in class. Valid restriction?
Yes
207
Student unfurls a poster reading "Bong Hits 4 Jesus" when Olympic torch runs by. Valid restriction?
Yes
208
Censorship of an age inappropriate newspaper article about student pregnancy for high school journalism class. Valid restriction?
Yes
209
When is public employment speech protected and unprotected?
Unprotected
1. Private concern (water cooler talk and office gossip)
2. Pursuant to official duties (e.g. closing arguments, office memos, etc.)
You can be fired for doing a bad job.
Protected
Matters of public concern (not made pursuant to official duties.)
The test is to balance the value of speech with the state interest in efficient operation.
210
Which of the following restrictions are valid?
1) Ban on dirty jokes
2) Dismissing a prosecutor for reporting wrongdoing as required by office policy
3) Dismissing a teacher for letter to the editor criticizing school spending.
4) Dismiss state employee for water cooler comment that President should be impeached.
1) Ban on dirty jokes
| 2) Dismissing a prosecutor for reporting wrongdoing as required by office policy
211
True or False: Employees may not be hired or fired based on political affiliation or expression.
True with the exception of high level policy makers.
212
What is vagueness?
Vagueness means that a person of common intelligence would not understand what speech a law is prohibiting.
213
What is overbreadth?
Overbreadth means that the law prohibits a substantial amount of speech that the government may not suppress. "It burns the house down to roast the pig."
Note***3rd Party standing allowed to challenge.
214
What is a prior restraint?
Licensing schemes or injunctions that prevent speech before it occurs, rather than punishing speech afterwards.
If content based, subject to very strict scrutiny.
Licensing systems must have sufficiently definite standards to cabin discretion, as well as prompt judicial review of denials.
215
Injunction against "Pentagon Papers" based on speculative harm to war effort. Valid?
No. It is an invalid prior restraint.
216
Injunction against publication of D-Day plans, one week before attack. Valid?
Yes.
217
Parade permits given at discretion of a city official. Valid?
No
218
Parade permits given to all who pay a reasonable fee for security and sanitation. Valid?
Yes
219
True or False: The press, expressive associations like the NAACP, and corporations and unions engaging in non-commercial speech are generally treated the same as other speakers.
True.
220
True or False: Gov't speech is generally not subject to the 1st Am.
True. Gov'ts can say what they want in official speeches like the SOTU, and gov'ts can put up statues of whomever they please.
However, gov'ts cannot compel private parties to convey its message (e.g. Live Free or Die on license plates is invalid under SS.
221
What is the test to determine if a law violates the Free Exercise Clause?
1) Laws that target religion are subject to SS.
2) Laws that are neutral and generally applicable are not subject to the Free Exercise Clause.
However, religious organizations are exempt from employment discrimination suits by their ministers. e.g. male only priests.
To decide the claim, the gov't may inquire into the sincerity of the religious belief but not the truth. Religion means both in the traditional and non-traditional (that is, beliefs that play a role in someone's life similar to religion.)
222
Ban on clergy holding office. Valid under FE Clause?
No.
223
Ban on animal sacrifice except for hunting or kosher food. Valid under FE Clause?
No.
224
Ban on underage drinking. Valid under FE Clause?
Yes.
225
Ban on head dress for driver's license photo. Valid under FE Clause?
Yes.
226
What are the tests for the Establishment Clause?
1) Neutrality
2) Coercion
3) Lemon
4) Endorsement
5) History and Tradition
227
What is the Neutrality test for EC?
Government must remain neutral with respect to religion, neither favoring nor disfavoring it.
```
Neutral = providing fire and police protection to churches in the same way as secular community.
Favoring = Exempting religious pubs, but not others from sales tax.
Disfavoring = allowing student groups to use school meeting rooms after school, except the religious ones.
```
228
What is the Coercion test for EC?
Government may not directly or indirectly coerce individuals to exercise or refrain from exercising religion.
```
Direct = fine for not attending church.
Indirect = providing for clergy invocation and benediction at middle school graduation
Non-Coercion = brief solemnizing prayer at beginning town board meetings open to any clergy or non clergy to give with content not dictated by board.
```
229
What is the Lemon Test for EC?
The gov't violates the EC if
1. Primary purpose is sectarian or
2. Primary effect is sectarian or
3. Gov't is excessively entangled with religion.
Sect. purpose = posting 10 Comm. on walls in pub school classrooms despite legislative statement to the contrary.
Effect = reciting the Lord's prayer each morning in pub school.
Entanglement = pay salary of teachers of secular subjects in parochial schools. Entangles cuz must monitor to ensure only teaching secular stuff.
230
What is the Endorsement test to determine EC?
From standpoint of a reasonable and informed observer, gov't must not appear to endorse or disapprove of religion, making it seem relevant to a person's standing in the political community.
```
Endorsement = lone display of nativity scene on courthouse steps.
Non-endorsement = display of creche surrounded by Santa, reindeer, elephant, clown, candy cane, teddy bear, and other non-sectarian holiday symbols. The message was sufficiently diluted and neutralized.
```
231
What is the history and tradition test for EC?
A state or religious display or practice is tolerable acknowledgment of the role religion has played in the history and tradition of the nation.
It helps if the display or practice has been around for a while or is in historical setting.
e. g. Prayer opening legislative session.
e. g. Four decade old 10 Comm. on TX capitol grounds surrounded by dozens of other displays of historical or societal significance.
232
When will Massachusetts courts issue advisory opinions?
No adv. op. for private litigants, but will answer certified questions from a federal court on unsettled questions of MA law and requests from the executive or legislative branch on the constitutionality of pending legislation.
233
What additional suspect classifications does MA have that are subject to SS.
Religious, ethnic, handicap, and sex based disc. as warranting SS. These only apply to state laws.
234
What is MA's rules on handicap discrimination?
Art. 114 forbids disc. against an "otherwise qualified" handicapped person in any program or activity within the Commonwealth. Probably goes to private and public disc. but MA Sup Ct hasn't said for sure.
Employers and owners and managers of certain housing must also make reasonable accommodations for otherwise qualified handicapped employees.
Factors:
1) undue financial or administrative burden?
2) require employer to waive or disregard essential functions of the job?
235
What does MA mean when they say "Equality under the Law"?
Art I of MA Const. provides that equality of the law may not be abridged or denied based on sex, race, color, creed, or national origin.
236
What is the MA R.B. test?
Courts explicitly balance the harm to the disadvantaged class against the public purpose of the classification. The classification survives if any state of facts reasonably may be conceived to justify it.
237
When may a court issue an injunction in MA that regulates speech?
An injunction that restrains a litigant from discussing his case with the media is a prior restraint and must be based on a comp. int. with no reasonable, less restrictive alternatives available.
A general int. in maintaining the anonymity of children's IDs in care and protection cases is not sufficiently compelling to sustain an injunc., absent spec. findings as to the harmful effect disclosure has on children.
238
To what extent does MA protect student expression in public schools?
By statute, MA protects such expression unless it causes disruption or disorder within the school. Even lewd or vulgar expression is protected unless it causes a disruption.
239
To what extent does MA protect charitable solicitation?
Statutes imposing criminal liability for soliciting contributions and peaceful begging in public is unconst. in MA because it is overbroad and an unreasonable CB restriction on expressive activity.
240
How does MA protect elections?
Art. 9 forbids state or private interference with the electoral process.
241
How does MA protect Freedom of Religion?
Art. 46
Any law burdening FE of rel. must
1) advance a comp. gov't int. and
2) be narrowly tail. to achieve that int.
If law is seemingly neutral, P must show
1) sincere rel. belief.
2) that belief conflicts with or is burdened by the law.
Then, state must show
1) law serves unusually impt. gov't goal.
2) Exemption for claimant would substantially hinder the fulfillment of that goal.
242
What is Ch. 151B in MA?
151B is an anti-discrimination statute that protects protected classes from discrimination in employment (hiring, firing, promoting, terms of employment, etc.), aiding employment disc., housing (including economic discrimination), credit and services.
243
How does MA protect age discrimination?
1) Employers may not disc. over age of 40, but may on youth.
2) Do not apply to extending credit
3) Mandatory retirement generally forbidden with exceptions for executives or high policy making positions or tenured professors in higher ed.
244
How does Ch. 151B in MA protect gender discrimination in the workplace?
Disc. based on pregnancy or other sex related medical conditions is unlawful.
Must be permitted to use accumulated sick time for pregnancy (during or after) and must provide unpaid leave during birth.
Upon returning to work after birth, must be offered a reasonably equivalent position in terms of pay, job responsibilities, and opportunities for advancement.
245
How does Ch. 151B protect against sexual harassment?
151 B forbids disc. in the terms or cond. of employment through the creation of a hostile working environment and by sexually harassing behavior of supervisors or fellow employees. 151B also prohibits same sex sexual harassment, regardless of the sexual orientation of the parties.
246
How does Ch. 151B protect sexual orientation?
151B protects all forms of sexual orientation except those who are attracted to children. Sexual orientation is not considered in child custody.
247
How does Ch. 151B protect religion?
Unlawful to impose a cond. of employment that would require an ind. to violate a sincerely held religious belief.
248
If a P feels his 151B rights have been violated, what are the procedural steps?
1) Complaint filed with MA Commission Against Disc. (MCAD).
2) within 6 months of the alleged offense
3) MCAD investigates and decides whether to move forward with a full administrative hearing.
4) Once complaint with MCAD for 90 days or with the consent of the commissioner, P may file in Superior Ct, which terminates the administrative proceeding.
5) Removal entitles P to a jury trial.
Burden begins on P to establish prima facie case of disc.
Then, employer must provide a legit non-disc. reason. If he does, then burden shifts back to P to show that D acted not for the reasons he said, but or disc. reasons.
249
Does preemption apply to 151B?
Failure to filed timely complaint with MCAD bars 151B claims, but not other contract or statutory claims.
151B also does not apply to employers with fewer than 6 employees.
250
What remedies are available in a 151B suit?
1) Injunctive relief (including cease and desist, reinstatement)
2) Compensatory Damages (lost wages, anticipated lost wages, emotional distress, lost benefits, lost pension accumulation, etc.)
Emo. Dist. is "natural and probable" so no expert testimony required.
3) Attorney's fees and costs
4) Punitive damages by superior court only (see outline for more info)
251
What is MERA?
The MA Equal Rights Act.
All persons have same rights as white males to
1) make and enforce Ks.
2) purchase, lease, rent and sell prop.
3) equal benefit of laws
6 month SoL. File with MCAD first or bring directly to superior court.
Damages
1) Equitable relief
2) Compensatory damages
3) Exemplary damages including, emo distress
4) Mandatory attorney's fees and costs
252
What is MCRA?
The Massachusetts Civil Rights Act.
Punishes interference with rights MA or US Const. through threats, intimidation, or coercion.
AG may bring suit for equitable relief
Private individual may bring for equitable relief (including an injunction preventing harm against any member of P's class), compensatory damages, attorney's fees, and costs.
Supreme Judicial Court construes threats, intimidation, or coercion to mean that d forced or sought to force P to do something. Direct violations are not subject to liability unless they also include a further attempt to force P to take some action.
253
What is MA's Equal Pay Act?
Wage disc. based on sex prohibited.
Same pay for "work of like or comparable character or work on like or comparable operations."
Court determines
1) Substantive content of job is comparable, common characteristics
2) Comparable skills, efforts, responsibilities, and working conditions.
Reasonable maternity leave must also be given.
254
What is the MA Public Accommodation Law?
No disc. in any place of public resort, accommodation, or amusement based on race, religion, national origin, sex physical or mental disability, or sexual orientation.
Public Accomm. = taver, hotel, retail, hospital, or transportation facility
Also, insurance and credit agencies with a place of business in MA.
Also, parades on public streets.
Extended to lactating mothers too.
Applies to private orgs with discriminatory membership policies if the org owns a place or regularly lease space for meetings.
To avoid liability the org must show that they are highly selective beyond excluding members of a protected group.
255
What Const. defenses might a D raise in a disc. suit?
Fed const review in the application. That is, D's fed const. rights trump the MA const.
256
What is the right to bear arms in MA?
There is no right for a private citizen to keep and bear arms in Article 17 of the MA Declaration of Rights. Therefore, requiring a license is fine and there is no deprivation of property because you have to pay for the license.
257
What are MA citizens' freedom of movement rights?
Intrastate travel cannot be restricted unless it passes SS. This includes a curfew for juveniles.
258
To be valid, a time, place, and manner regulation of a limited public forum must be:
Viewpoint neutral and rationally related to a legitimate government purpose
259
If a regulation of speech is found to be overbroad, but judged in relation to its plainly legitimate sweep it does not prohibit a substantial amount of protected speech, may it be enforced?
Yes, but only against persons engaging in activities that are not constitutionally protected
260
For due process purposes, a person will be deemed to have a property interest in continuation of a government benefit if the person has:
A legitimate claim or entitlement to the benefit
261
What are the factors a court would consider when determining the procedures required under the Due Process Clause when a person faces deprivation of a protected benefit?
The importance of the individual interest, the value of specific safeguards to that interest, and the government’s interest in efficiency.
262
Which of the following statements is true regarding Congress’s taxing power?
A By its terms, the federal power to tax is exclusive.
B The federal taxing power allows Congress to tax exports.
C Federal taxes must be uniform among the states.
D A federal tax is permitted only if Congress otherwise has the power to regulate the subject of the tax.
C Federal taxes must be uniform among the states.
263
Which of the following activities involving public schools is valid under the Establishment Clause?
A A school policy whereby students themselves decide whether to hold a student invocation ceremony prior to athletic events.
B Posting of the Ten Commandments in a public school pursuant to legislature’s declaration that the posting is for a secular purpose.
C A voluntary moment of silent prayer or meditation at the beginning of the schoolday.
D A program whereby, once weekly, the school day ends one hour early so that interested students may participate in voluntary religious classes in a separate location from the school.
D A program whereby, once weekly, the school day ends one hour early so that interested students may participate in voluntary religious classes in a separate location from the school.
264
Under the Privileges or Immunities Clause of the Fourteenth Amendment, a state may not infringe on its citizens':
A Right to earn a living
B Right to travel
C Right to an attorney
D Freedom of speech
B Right to travel
265
The states are sovereignties apart from the federal government. When the federal government acts within a state, the state may:
A Directly tax federal property and instrumentalities within the state
B Charge a sales tax on items purchased by contractors acting as purchasing agents for the federal government
C Require federal employees who drive as part of their jobs to have a valid driver’s license, even when performing job duties
D Impose an income tax on persons who receive a salary from the federal government
D Impose an income tax on persons who receive a salary from the federal government
266
Under the Commerce Clause:
A Congress can adopt laws discriminating against interstate commerce and so can states if authorized by federal law
B Neither Congress nor the states may adopt laws discriminating against interstate commerce
C Congress can adopt laws discriminating against interstate commerce, but states cannot
D The states can adopt laws discriminating against interstate commerce but Congress cannot
A Congress can adopt laws discriminating against interstate commerce and so can states if authorized by federal law
267
The “market participant” exception, which allows a state to favor its own residents in interstate commerce when the state itself acts as a participant in the market, is an exception to:
Only the DCC, not P&I IV.
268
A state adopted a statute making the ritual slaughter of chickens illegal. The legislative debates made clear that the purpose of the statute was to prevent unnecessary cruelty to animals. The religious leader of a church located within the state, whose core religious beliefs require ritual slaughter of chickens during worship services, brought suit to have the statute declared unconstitutional for violating her right to practice her religion.
How will the court likely rule?
A Uphold the statute, because of the compelling state interest involved.
B Uphold the statute, because it is a neutral law of general application.
C Invalidate the statute, because ritual slaughter is a core tenet of the plaintiff’s religious beliefs.
D Invalidate the statute, because it targets only ritual slaughter.
D Invalidate the statute, because it targets only ritual slaughter.
269
A state passed a statute that provided for direct reimbursement from public funds to nonpublic schools, including religious schools, of the cost of performing various testing services required of all schools by state law. The three state-prepared tests involved consisted of a student evaluation test, a comprehensive achievement test, and scholarship and college qualification tests. The law also provided for payment to the nonpublic schools for the grading of the tests, which are graded objectively.
On review by the Supreme Court, what is the likely result?
A The statute is constitutional, because objective grading standards are used and reimbursement covers only secular services.
B The statute is constitutional, if the state interest is great enough to justify the burden on religion, and no alternative means are available.
C The statute is unconstitutional, because direct payment to nonpublic schools is a violation of the Establishment Clause of the First Amendment.
D The statute is unconstitutional, because the statewide administration of the test for nonpublic as well as public schools entangles the state with religious schools.
A The statute is constitutional, because objective grading standards are used and reimbursement covers only secular services.
270
To provide low-cost housing to the unemployed, a city has a policy of leasing empty city-owned buildings to social agencies that promise to convert or rehabilitate the buildings into habitable, low-cost apartments and to pay the city 10% of any net profit made from rentals. A church entered into such an agreement with the city and converted one of the city’s abandoned office buildings into 50 small, low-cost apartments. The lease agreement used by the church provides, among other things, that the lessee must affirm a belief in God. The lease agreement was submitted to the city for approval prior to its use by the church, and it was approved. On the first day that the church made the apartments available for rent, the plaintiff, an avowed atheist, applied to lease a unit. The plaintiff’s application was quickly denied for the sole reason that the plaintiff refused to affirm a belief in God.
If the plaintiff brings suit against the church on the ground that the required affirmation of a belief in God violates the plaintiff’s constitutional rights, who likely will prevail?
A The plaintiff, because denial of a lease to atheists has been held to hinder the free exercise of religion.
B The plaintiff, because the purpose and effect of the church’s policy results in a violation of the Establishment Clause.
C The church, because freedom of religion is not protected against acts of private individuals or groups or a private institution.
D The church, because as an atheist, the plaintiff has no standing to challenge the lease requirement on religious grounds.
B The plaintiff, because the purpose and effect of the church’s policy results in a violation of the Establishment Clause.
The plaintiff will likely prevail because the policy violates the Establishment Clause. The First Amendment prohibits laws respecting the establishment of religion. Governmental action that does not contain a sect preference will pass muster under the Establishment Clause if it has a secular purpose, its primary effect neither advances nor inhibits religion, and it does not require excessive government entanglement with religion. The church’s action will be considered to be state action here because of the significant involvement between the church and the city. (The city is leasing the building to the church, the church shares profits with the city, and the church submitted its lease forms to the city for approval.) Requiring a lessee to affirm a belief in God appears to have no secular purpose. Moreover, its primary effect probably is to advance religion. Therefore, the church’s action will be found to have violated the Establishment Clause. (A) is wrong because there simply is no such Supreme Court holding. (C) is wrong because, as was pointed out above, state action can be found because of the city’s significant involvement in the apartment building at issue. (D) is wrong because a person asserting a violation of the Establishment Clause does not have to allege infringement of a particular religious freedom in order to have standing; it is enough that the person is directly affected by the government action challenged.
271
An accountant employed by the Federal Communications Commission was offended by various jokes and cartoons that employees would post in the office cafeteria. The Commission did not have any rules regarding what employees could post in the cafeteria, and none of the cartoons were pornographic or harassing. Nevertheless, the accountant lodged a number of complaints with his supervisor that went unheeded. Finally, the accountant posted his own notice chastising the hypocrisy and immorality of the agency for allowing such cartoons when it was charged with ensuring a standard of decency on the public airwaves. The notice prompted a great deal of debate among employees and a great deal of displeasure on the part of the accountant’s supervisor, particularly after it was posted on another employee’s blog and received some media attention. A labor contract between the agency and the clerical workers’ union contained a policy for providing for termination of union employees only for certain specified grounds, but the accountant was not a member of the union and was not covered by the policy or any other employment agreement.
Which of the following statements is most accurate regarding the agency’s right to dismiss the accountant?
A The accountant has a liberty interest in the exercise of his First Amendment rights that entitles him to a hearing to contest the grounds of his dismissal.
B
The accountant has a property interest as a public employee that precludes him from being fired without notice and an opportunity to respond.
C The accountant has no right to a hearing because his statements were not an expression of views on public issues.
D The accountant has both a liberty interest and a property interest that entitles him to a pretermination evidentiary hearing
A The accountant has a liberty interest in the exercise of his First Amendment rights that entitles him to a hearing to contest the grounds of his dismissal.
If the accountant is fired, he has a right to a hearing to determine whether his First Amendment rights were violated by his dismissal. Under the Due Process Clause of the Fifth Amendment, a person has a liberty interest in the exercise of specific rights provided by the Constitution, including freedom of speech. A government employee may not be fired for expressing his views regarding public issues, but can be fired for speech that disrupts the employer’s policies or undermines the employer’s authority. Under the Court’s expansive interpretation of what a public issue is in this context [see Rankin v. McPherson (1987)], the accountant’s statement would probably qualify. At the very least, he can make enough of a showing that his termination violates his free speech rights to be entitled to a hearing on the issue under procedural due process principles. [See Givhan v. Western Line Consolidated School District (1979)] (B) is wrong because the accountant does not appear to have a property interest in his job. A public employee who is subject to removal only for “cause” has a property interest in his job and must be given notice of the charges against him that are to be the basis for his job termination, and a pretermination opportunity to respond to those charges. Here, however, the accountant did not have a property interest in his job. He could have been dismissed for no reason at all. He was not covered by the labor contract between the agency and its clerical workers, and there appears to be no other basis for him to claim an entitlement to continued employment. (C) is wrong because the accountant is entitled to a hearing as long as he can raise a prima facie claim that his speech, which was regarding an issue important to the perception of his agency, was on a public issue and therefore protected by the First Amendment. (D) is wrong for two reasons: As discussed above, the accountant does not have a property interest in his job. Also, due process does not necessarily entitle him to a pretermination evidentiary hearing; a post-termination evidentiary hearing is probably sufficient. [See Cleveland Board of Education v. Loudermill (1985)]
272
To combat rising insurance rates, a state formed a state-owned insurance company that operated exclusively within the state. The company provided insurance on the basis of premiums calculated according to a schedule of fees. Under the schedule, premiums for residents of a particular city were 25% higher than the premiums for any other municipality in the state. Forty percent of that city’s residents were of Mexican descent compared with a state-wide Mexican-American population of approximately 15%. A Mexican-American citizen living in the city brings suit, alleging that the state insurance company’s rate structure violates the Equal Protection Clause.
Will the citizen's suit prevail?
A Yes, because the higher rates have the effect of discriminating against the Mexican-American population.
B Yes, unless the state insurance company shows a compelling reason for the discrimination.
C No, unless the citizen shows that Mexican-American citizens pay higher rates than similarly situated non-Mexican-American citizens of that city.
D No, because discriminatory economic regulations are not a suspect classification.
C No, unless the citizen shows that Mexican-American citizens pay higher rates than similarly situated non-Mexican-American citizens of that city.
273
Congress enacted a statute requiring state-supported institutions of higher education that provide federal student loan funds to their students to fund women’s sports according to a complex formula intended to fairly support woman’s athletics and remedy past funding discrimination. Under the formula, a particular state military school will be required to allocate 25% of its athletic budget to its female athletics programs even though only 10% of the school population is female. A male student whose athletic program will be discontinued because of the budget allocation filed suit in federal court challenging the federal statute on various constitutional grounds.
Is the court likely to find that the statute is constitutional?
A No, because the government will be unable to prove that the discriminatory funding requirements required by the statute are necessary to achieve a compelling government interest.
B No, because the federal government does not have the power to dictate the budget allocations of state-supported educational institutions.
C Yes, because remedying past discrimination is a legitimate government interest, and the student will be unable to prove that the statute’s funding requirements are not
rationally related to that interest.
D Yes, because the government will be able to prove that the statute’s funding requirements are substantially related to an important government interest.
D Yes, because the government will be able to prove that the statute’s funding requirements are substantially related to an important government interest.
274
A state provided for a public school system based primarily on property tax revenues from the various districts. School districts that had a property tax base below a certain threshold received supplemental funds from the state that were derived from state lottery revenues. The school districts receiving the supplemental funds served a predominantly Hispanic population as compared to the school districts funded only from property tax revenues.
To help balance its budget this year, the state legislature passed a statute terminating the supplemental funds program and earmarking the lottery revenues for deficit reduction. A group of parents of Hispanic schoolchildren in one of the school districts formerly receiving supplemental funds filed suit in federal court, alleging that the state’s action in terminating the funding violates the Equal Protection Clause of the Fourteenth Amendment.
Which of the following best describes the appropriate standard by which the court should review the constitutionality of the state action?
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A Because the state statute results in discrimination against a suspect class, the state will have to demonstrate that the statute is necessary to vindicate a compelling state interest.
B Because the right to education burdened by the statute is not a fundamental right, the parents will have to demonstrate that the statute is not substantially related to an important state interest.
C Because no suspect class or fundamental right is improperly burdened in this case, the parents will have to demonstrate that the statute is not rationally related to any legitimate state interest.
D Because the state statute is not discriminatory in intent, the state will have to demonstrate only that the statute is rationally related to a legitimate state interest.
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C Because no suspect class or fundamental right is improperly burdened in this case, the parents will have to demonstrate that the statute is not rationally related to any legitimate state interest.
To prevail, the parents will have to show that the statute does not meet the rational basis test. Under that test, a law is presumed to be valid and will be upheld unless the challenger can make the difficult showing that it is not rationally related to a legitimate state interest. Here, the statute terminating the funds did not target a suspect class and did not burden a fundamental right, so the rational basis test applies. (A) is incorrect because it is not enough to show that legislation has a discriminatory effect on a suspect class; there must be an intent to discriminate. To establish a racial, national origin, or ethnicity classification, the party challenging the law must show that (i) the racial classification appears in the law itself (facial discrimination), (ii) the law was applied in a purposefully discriminatory manner, or (iii) the law was enacted or maintained for a discriminatory purpose. None of these situations appears to be indicated under these facts. (B) is incorrect because it states the wrong standard. As that choice indicates, the Supreme Court has not held education to be a fundamental right under the Due Process Clause, nor has it found classifications based on wealth to require strict scrutiny. Hence, the test that is applied is the rational basis standard; the standard in (B) is an intermediate scrutiny test applied to gender and legitimacy classifications. (D) is incorrect because it imposes the burden of proof on the wrong party. For a statute that does not discriminate against a suspect class, the plaintiff bears the burden of proving that the statute is not rationally related to a legitimate state interest.
275
After a recent rainy season, a number of the communities in a western state suffered flooding and mudslides. A study commissioned by the state legislature determined that the extensive removal of a certain plant from hillsides within the state contributed significantly to the flooding and mudslides. The plant had an extensive root system that helped hold hillside soil in place, and it was being rapidly removed because its roots had recently gained national favor as a powerful herbal remedy. As a result, the legislature passed a statute prohibiting the removal of more than 50% of such plants from any hillside within the state.
A landowner within the state challenged the statute under the Takings Clause of the Fifth Amendment, alleging that he had regularly harvested substantially more than 50% of the plants from his property and needed to do the same this year to meet the demand for the root.
Is he likely to prevail in his challenge?
A Yes, because the statute substantially impairs the economic value of the landowner’s property.
B Yes, because the statute effects a taking of private property for public use without just compensation.
C No, because the statute is rationally related to the legitimate public purpose of preventing flood damage to property.
D No, because the statute promotes a legitimate public purpose and permits the continued use of the landowner’s property.
D No, because the statute promotes a legitimate public purpose and permits the continued use of the landowner’s property.
276
To help alleviate discrimination in private contracts, Congress passed a bill providing:
"It shall be unlawful to discriminate against minority race members in the making and enforcement of any public or private contract, of every kind whatsoever. Any person whose rights under this statute are violated may bring a cause of action against the party that has so violated the person’s rights in the federal district court for the district in which he resides, seeking treble damages or $1,000, whichever is greater."
Several large banks that have been accused of discriminatory loan practices challenge the federal statute.
If the court finds that Congress had the power to enact the statute, the court most likely will find that the power arose from which of the following?
A The Thirteenth Amendment.
B The Contract Clause.
C The Fourteenth Amendment.
D The Commerce Clause.
A The Thirteenth Amendment.
277
A state enacted a law banning the use within the state of computerized telephone solicitation devices, and requiring that all telephone solicitation calls within the state to in-state numbers be dialed by human beings. Federal legislation and administrative regulations control only the rates to be charged for telephone calls.
Is the legislation valid?
A Yes, because it involves wholly intrastate commerce that is not subject to federal regulation.
B Yes, because the statute does not conflict with federal legislation or the negative implications of the Commerce Clause.
C No, because the statute is preempted by federal legislation under the Supremacy Clause.
D No, because the statute is an unconstitutional attempt by a state to regulate interstate commerce.
B Yes, because the statute does not conflict with federal legislation or the negative implications of the Commerce Clause.
278
Congress passed a law allowing widespread oil exploration on federal lands in the western United States. A large deposit of oil sand was discovered in one western state and Congress authorized an oil sand refining plant to be built on federal park land within the state. The refinery was built in compliance with federal pollution regulations. Pursuant to state law, the plant manager allowed the state to inspect the plant before putting it into operation. Because state refinery standards were more strict than the federal standards (in order to better protect state citizens from pollution associated with refineries), the refinery did not pass the inspection, and the state inspector refused to give the manager a permit to run the refinery. The refinery manager nevertheless began to run the refinery and was fined by the state.
Which of the following is the manager’s best defense against imposition of the fine?
A The state does not have a compelling interest in regulating the refinery, because it is within a federal park.
B The state regulation is invalid because Congress has preempted the field of pollution control.
C The state pollution regulation is invalid because it is inconsistent with the state’s compelling interest in providing jobs.
D The state law violates the principles of intergovernmental immunity as applied to the manager.
D The state law violates the principles of intergovernmental immunity as applied to the manager.
The state law violates intergovernmental immunities principles. The states have no power to regulate the activities of the federal government unless Congress consents to the regulation. Thus, instrumentalities and agents of the federal government are immune from state regulations that interfere with their federal functions. Here, the regulation clearly interferes with the manager’s duties to run the refinery. While it might be argued that the manager agreed to comply with the state regulations, because he allowed the state inspection, nothing indicates that Congress consented, and so the state regulation cannot be applied to the manager. (A) is factually incorrect; a state may still have a compelling interest in activities on federal lands, and the interest here of preventing pollution that may spread beyond federal lands probably is compelling. Nevertheless, the argument is without merit because it is irrelevant whether the state has a compelling interest in regulating federal activities; a state simply is not allowed to interfere with federal activities. (B) is incorrect because not enough facts are given to make this determination. The Supremacy Clause prohibits states from adopting laws that interfere with federal laws, and this prohibition extends to any law—even one that seeks to support the federal scheme—when Congress has preempted the field. In determining whether a field has been preempted, courts will consider the comprehensiveness of the federal scheme. The question does not give enough facts to make the determination here. (C) is incorrect because it is irrelevant. The Constitution does not require the state to favor one compelling interest over another, and so states are free to adopt laws that interfere or are inconsistent with other state goals, unless the laws are arbitrary, in which case they would violate substantive due process. The laws here do not appear to be arbitrary, and so (C) does not offer a viable defense.
279
A state requires that persons holding a state license to practice a particular profession reside in the state for at least one year before engaging in that practice. A practitioner who held the state license moved into the state and shortly thereafter contracted with a local business to provide professional services. As soon as he began practicing his profession, the state licensing board sought to sanction him for violating the one‑year waiting period.
Which of the following provides the strongest basis for the practitioner to challenge the waiting period?
A The Privileges and Immunities Clause of Article IV.
B The Contract Clause.
C The Privileges or Immunities Clause of the Fourteenth Amendment.
D The Commerce Clause.
C The Privileges or Immunities Clause of the Fourteenth Amendment.
The strongest basis for challenging the waiting period is the Privileges or Immunities Clause of the Fourteenth Amendment. The Fourteenth Amendment Privileges or Immunities Clause prohibits states from denying their citizens the privileges or immunities of national citizenship, including the right to interstate travel. The right to travel includes the right of newly arrived citizens of a state to enjoy the same privileges and immunities as are enjoyed by other citizens of the state. In Saenz v. Roe (1999), the Supreme Court held that the Clause was violated by a state statute limiting the welfare benefits of those who had resided in the state for less than a year. Hence, that Clause is an appropriate basis for challenging the provision. (A) is incorrect because the Privileges and Immunities Clause of Article IV prohibits discrimination against nonresidents, and here, the discrimination is against a new resident rather than a nonresident. (B) is incorrect because the Contract Clause prohibits states from enacting any law that retroactively impairs contract rights. It does not affect contracts not yet entered into, and here the state law was in place before the practitioner contracted with the local business. (D) is incorrect because the Commerce Clause generally is not violated by licensure requirements. There is an exception to the Commerce Clause (which prohibits state discrimination against interstate commerce) for state action that furthers an important, noneconomic state interest (e.g., health or safety). Generally, state professional licensing laws fall within the exception.
280
To stabilize state corn prices, a state purchased large quantities of corn from resident farmers and converted the corn into biodegradable plastics. The state then sold the plastics to state residents at cost and to out-of-state residents at cost plus 25%. An out-of-state corporation purchased biodegradable plastics from the state at a cost substantially below the price other companies charge. Nevertheless, the corporation believes that it is unconstitutional for the state to charge out-of-state purchasers more than resident purchasers. The out-of-state corporation, therefore, brings suit in federal court challenging the state pricing scheme.
Assuming that the court has jurisdiction, should it uphold the constitutionality of the pricing scheme?
A Yes, because as a market participant the state is free to charge nonresidents more than residents.
B Yes, because the state is selling plastics to nonresidents at prices substantially below that of other companies.
C No, because the scheme discriminates against nonresidents in violation of the Commerce Clause.
D No, because charging nonresidents more for plastics than residents pay violates the Privileges and Immunities Clause guaranteeing benefits of state citizenship.
A Yes, because as a market participant the state is free to charge nonresidents more than residents.
281
As an aide to a member of the Congress of the United States, you are expected to provide an analysis of the constitutionality of proposed legislation that your employer is called to vote on. A bill has been proposed that would create a mandatory price schedule for every motor vehicle sold in the United States.
Which of the following should you tell your employer is the strongest constitutional basis for the proposed legislation?
A All motor vehicle transactions in the United States, taken as a whole, have a significant impact upon interstate commerce.
B Because the purchase or sale of a motor vehicle, by definition, involves commerce, the federal government may regulate such transactions under the commerce power.
C Congress has the power to regulate transportation in the United States.
D Congress has the power to legislate for the general welfare of the people of the United States.
A All motor vehicle transactions in the United States, taken as a whole, have a significant impact upon interstate commerce.
282
The federal Food Safety Act provides for sporadic inspections of produce in order to prevent illness among consumers. After several widespread outbreaks of illness involving escarole, a new and more accurate procedure for determining the presence of harmful bacteria was developed. The new procedure was used in a limited area on escarole shipped locally within a large escarole-producing state to determine its effectiveness. Subsequently, Congress enacted an additional provision to the Act, levying a one cent tax on each crate of escarole so inspected.
Is this provision constitutional?
A Yes, under the Supremacy Clause.
B Yes, because it is a proper exercise of congressional power to raise revenue.
C No, because the escarole subject to the inspection is not being sold in interstate commerce.
D No, because it interferes with state sovereignty.
B Yes, because it is a proper exercise of congressional power to raise revenue.
283
The President of the United States and the king of a foreign nation entered into a treaty agreeing that citizens of the foreign nation who reside in the United States would not be taxed by the United States and that United States citizens who reside in the foreign nation would not be taxed by it. The treaty was ratified by the United States Senate and the royal council of the foreign nation. One year after the treaty became effective, the foreign nation began to tax United States citizens within its borders. The President immediately declared the tax treaty to be void and ordered the Internal Revenue Service to tax citizens of the foreign nation living in the United States.
Is the President’s action constitutional?
A Yes, because the President has emergency powers to protect United States citizens.
B Yes, under the foreign policy powers of the President.
C No, because the treaty is the supreme law of the land, on par with federal legislation, and the President is not free to ignore it.
D No, unless the President receives the advice and consent of the United States Senate.
B Yes, under the foreign policy powers of the President.
The President’s action is constitutional pursuant to his power over treaties and foreign relations.The power to enter into treaties is vested in the President, and his power to act for the United States in day-to-day foreign affairs is paramount. Even as to foreign relations that require congressional consent, the President’s powers are much broader than in the realm of internal affairs. No significant judicial control has been exercised over such declarations. Thus, this action is allowable under these broad powers. (A) is incorrect because the President’s emergency power to protect United States citizens is unclear. While he has power to act concerning foreign nations, it is unclear whether he could “legislate” concerning the internal affairs involved here (e.g., tax collection) merely because he thought that United States citizens needed protection. In any case, the power to act here more properly arises from the President’s power over foreign affairs and not from a power to protect United States citizens. (C) is incorrect because while it is true that properly ratified treaties are the supreme law of the land, that only means that conflicting state or local laws must yield. If the President has power to override the treaty (which he does have, as explained above), the Supremacy Clause is not controlling. (D) is incorrect because the Constitution only requires the President to obtain the advice and consent of the Senate to enter into treaties; it does not require him to obtain Senate consent to void a treaty.
284
A plaintiff brought an action in federal court against a state government, seeking monetary damages. The state moved to have the case dismissed for lack of jurisdiction, citing the Eleventh Amendment of the United States Constitution.
Which of the following facts would support a denial of the state’s motion?
A The plaintiff is a private citizen of the defendant state.
B The plaintiff is a Native American tribe.
C The plaintiff is a neighboring state.
D The plaintiff is a foreign government.
C The plaintiff is a neighboring state.
The state’s motion should be denied if the plaintiff is a neighboring state. The Eleventh Amendment does not bar actions by one state government against another state government. (A) is incorrect. As a general rule, under the Eleventh Amendment, a federal court may not hear a private party’s or a foreign government’s claims against a state government. A private state citizen is a private party. As such, the Eleventh Amendment generally bars a private citizen from suing a state government in federal court. (B) is incorrect because the Supreme Court has held that, for Eleventh Amendment purposes, a Native American tribe is treated as a private party, and so it is barred from bringing an action against a state government in federal court. (D) is incorrect because the Eleventh Amendment bars actions brought by a foreign government against a state government.
285
T or F: Gov't may erect a statue w/o restriction because of the Free Speech Clause.
False.
Government placement of a permanent monument in a public park is not protected speech within the First Amendment. The First Amendment restricts government regulation of private speech; it does not address or limit government speech. A permanent monument on public land is considered government speech and thus does not give rise to First Amendment concerns.
286
A variety of tests are used to determine whether a regulation of speech is valid. The test to be applied in a particular case depends on a number of factors.
Certain regulations of speech will be upheld only if the regulation: (i) furthers important interests that are not related to the suppression of speech, and (ii) does not burden more speech than is necessary to advance such interests.
Which regulation is judged under this standard?
A content neutral speech reg.
287
Which of the following government interests is least likely to be found sufficient to justify a prior restraint on speech
(A) Maintaining discipline among troops and efficiency of operations on a military base
(B) Preventing possible negative effects on the government’s war efforts
(C) Obscenity
(D) A contractually agreed-to restraint between the government and an employee
(B) Preventing possible negative effects on the government’s war efforts
Preventing possible negative effects on the government’s war efforts is too theoretical to justify a prior restraint. A prior restraint is any regulatory system, injunction, or other action by the government that serves to stop speech from reaching the public. Courts are reluctant to allow prior restraints but may do so if the action is “narrowly drawn, reasonable, and definite.” There must be some special societal harm justifying the restraint; otherwise our Constitution favors allowing the speech to join the marketplace of ideas.
288
What are the procedural safeguards required by the Supreme Court in all prior restraint cases?
Narrowly drawn, reasonable, and definite standards; prompt action in seeking an injunction; and a prompt and final judicial determination of the validity of the restraint
289
The government interest that is least likely to be found sufficient to justify a prior restraint on speech is ________.
(A) Maintaining troop discipline
(B) Preventing a grand jury witness from ever disclosing the testimony he gave the grand jury
(C) Enforcing a contract between a government employer and an employee providing for prior restraints
(D) Enforcing a contract between a government employer and an employee providing for prior restraints
(B) Preventing a grand jury witness from ever disclosing the testimony he gave the grand jury
Preventing a grand jury witness from ever disclosing the testimony he gave the grand jury is least likely to be found sufficient to justify a prior restraint. A prior restraint is a court order or an administrative system that keeps speech from occurring. Courts are reluctant to allow prior restraints but may do so if the action is “narrowly drawn, reasonable, and definite.” There must be some special societal harm justifying the restraint; otherwise our Constitution favors allowing the speech to join the marketplace of ideas. A special societal harm could arise from disclosure of grand jury testimony while the grand jury is still in session, but that interest can be protected by a nonpermanent injunction—a permanent injunction is not narrowly tailored to the possible harm.
Maintaining troop discipline is a sufficient interest on which to base a prior restraint. The Supreme Court, therefore, found that a base commander could require pre-approval of petitions to be circulated on the base.
Enforcing a contractually agreed-to prior restraint between the government employer and an employee has also been found to be sufficient to justify the government’s requirement that a CIA agent allow the CIA to review a book he wrote regarding his job before it goes to print.
Preventing obscenity is probably the most common justification for prior restraints.
290
What is the test for a regulation of speech targets truthful commercial advertisement concerning lawful activities?
The test to determine whether regulation of truthful and lawful commercial speech is valid requires that the regulation serve a substantial government interest, be narrowly tailored to serve that interest, and directly advance the interest. This is a form of intermediate scrutiny. Review of commercial speech regulation is a two-step process: The court will first determine whether false speech or speech pertaining to unlawful activity is involved. Such speech has no First Amendment protection and may be banned altogether. If false speech or speech pertaining to unlawful activity is not involved, the courts use the intermediate standard.
291
What is the standard for limiting symbolic conduct?
The interest need only be an important government interest to justify a limitation on symbolic conduct. The test employed is:
(i) The regulation is within the constitutional power of the government;
(ii) It furthers an important governmental interest;
(iii) The governmental interest is unrelated to suppression of speech; and
(iv) The incidental burden on speech is no greater than necessary.
292
To help reduce a rising crime rate among teenage boys in a city, a scout leader decided to organize an overnight jamboree to get teens interested in scouting. The scout leader met with the city’s parks commissioner and requested a permit to camp at a large city park located on the oceanfront. The parks commissioner told the scout leader that a city ordinance prohibited large organized use of the park during the evening and all overnight camping. The commissioner explained that the city wished to keep the park open for general use during the evening, when most people were off work, and the park was cleaned overnight. The scout leader brought an action in federal district court, seeking to compel the city to allow overnight camping for this one special occasion.If the court determines that the ordinance is valid, what will be the basis for its decision?
A The ordinance is rationally related to a legitimate government interest and burdens the First Amendment rights involved no more than is reasonable under the circumstances.
B The ordinance is narrowly tailored to serve an important government interest and does not unreasonably limit alternative channels of communication.
C The ordinance is substantially related to a legitimate government interest and burdens the First Amendment rights involved no more than is reasonable under the circumstances.
D The ordinance is rationally related to a legitimate government interest and does not unreasonably limit alternative channels of communication.
B The ordinance is narrowly tailored to serve an important government interest and does not unreasonably limit alternative channels of communication.
293
A state statute makes criminal “all speechmaking, picketing, or public gathering of any sort on the steps of the supreme courthouse Monday through Friday, between the hours of 8:30 a.m. and 4:30 p.m., when court is in session.” A citizen is upset about a supreme court decision that was just released and stands on the steps of the courthouse at noon, while court is in session, handing out leaflets and exhorting passersby to vote the state supreme court justices out of office.
If the citizen is prosecuted for violation of the statute, which of the following best describes the applicable burden of proof?
A The state will have to show that there was a compelling need for the statute and that no less restrictive alternatives existed to meet that need.
B The state will have to show that the statute was narrowly tailored to serve an important
government interest and leaves open alternative channels of communication.
C The citizen will have to show that there was no compelling need for the statute and that less restrictive alternatives were available to accomplish the same goals.
D The citizen will have to show that there was no reasonable basis for enacting the statute.
D The citizen will have to show that there was no reasonable basis for enacting the statute.
The courthouse is a limited public forum.
294
Legislation permitting states to completely ban the sale of cigarettes and other tobacco products was passed by Congress and upheld by the United States Supreme Court. Following the lead of other states, a state legislature declined to enact a complete ban on tobacco products. However, it passed a compromise measure that banned all ads for cigarettes and tobacco products by any print or broadcast media located in the state. A state tobacco distributor that wished to advertise in local newspapers brings an action in federal court to challenge the state statute.
How is the court likely to rule?
A The statute is unconstitutional, because by choosing not to exercise its right to impose a complete ban on the sale of tobacco products, the state can no longer claim that the regulation of advertising serves a substantial government interest.
B The statute is unconstitutional, because the right to ban all truthful advertising for a product is not automatically justified by the right to ban the sale of a product entirely.
C The statute is constitutional, because the state’s power to ban advertising for a product is implicit in its power to ban the product altogether.
D the statute is constitutional, because the ban on advertising constitutes a restriction on commercial speech that is rationally related to the legitimate state interest in reducing the use of tobacco products.
B The statute is unconstitutional, because the right to ban all truthful advertising for a product is not automatically justified by the right to ban the sale of a product entirely.
295
If a court wants to close a hearing to the public, what must be shown?
While it is a prior restraint, it must be shown that closure is necessary to preserve an overriding interest and the closure is narrowly tailored to serve that overriding interest. Trials and pretrial hearing generally, must be open to the public.
296
One public employee may only be fired "for cause". One has no such protection. Does one, both, or neither have a property interest in her job?
Only the employee who may only be fired for cause.
297
Public Employee #1 was given a hearing after he was fired to contest his firing. If he wins, he gets back pay.
PE #2 was given a hearing before he was fired.
PE #3 was not given a hearing at all.
All three could only be fired "for cause".
Which PE was given proper due process?
Only PE #2
298
May a state create its own postal service?
No, it is within Congres' enumerated powers so Congress must consent otherwise such a service would violate Congress' monopoly.
299
T or F: Congress has the exclusive power to tax imports and exports.
True, unless Congress consents, or the tax is absolutely necessary for executing its inspection laws.
