Constitutional Law

Question 1

Justiciability Requirements

Answer 1

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

Question 2

Requirements for Standing

Answer 2

1. Injury
2. Causation and redressability
3. No 3rd Party Standing
4. No generalized grievances

Question 3

What does no generalized greivances mean and whats the exception to the rule?

Answer 3

The plaintiff must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law.

Exception: taxpayers have standing to challenge government expenditures pursuant to federal (or state and local) statutes as violating the Establishment Clause of the 1st Amendment

Question 4

Ripeness Factors

Answer 4

1. The hardship that will be suffered without preenforcement review
   
   • The greater the hardship the P will sufferer w/o the review, the greater the chance they will review.
2. The fitness of the issues and the record for judicial review
   
   • Is there a reason the court would be better off waiting to decide at a later time?

Question 5

Exceptions to Mootness (Exceptions for when the court will review despite the harm being over)

Answer 5

1. wrong capable of repetition but evading review
2. voluntary cessation.
   
   • If the defendant voluntarily halts the offending conduct, but is free to resume it at any time, the case will not be dismissed as moot.
3. class action suits
   
   • So long as 1 member of the class has an ongoing injury it will not moot

Question 6

Commerce Clause

Answer 6

Congress may regulate of interstate commerce:

1. channels
2. instrumentalities
3. activities w/ substantial effect

Question 7

Congress may regulate intrastate activity (not inacativity) when:

Answer 7

Congress has a rational basis to believe that in the aggregate, the activity has a substantial economic effect

Question 8

Rules and standard for privileges and

immunities clause of Article IV?

Answer 8

1. The law must discriminate against out-of-staters.
2. The discrimination must be with regard to fundamental rights or important economic activities.
   
   • Econ Activity = ability to earn a livelihood (not hobbies)
3. Corporations and aliens cannot use the privileges and immunities clause.
4. If a law discriminates against out-of-staters and the petitioner is a corporation, only use negative CC
5. The discrimination must be necessary to achieve an important government purpose.

Question 9

State taxation of interstate commerce

Answer 9

1. States may not use their tax systems to help in-state businesses
2. A state may only tax activities if there is a substantial nexus to the state
3. State taxation of interstate businesses must be fairly apportioned

Question 10

Rational Basis Test

Answer 10

1. Rationally related to a
2. legitimate government purpose
   
   • (conceivable legitimate purpose is enough, not the actual purpose)

Question 11

Rational Basis Test for Equal Protection applies to:

Answer 11

• Alienage classifications related to self government and the democratic process
• Congressional regulation of aliens
• Age
• Disability
• Wealth
• All other classifications

Question 12

Intermediate Scrutiny

Answer 12

1. Substantially related to an
2. important government purpose
   
   • (more than just a permissible goal - court will only look at the government’s actual objective)
   • (means must narrowly tailored, not necessary, be pretty good to achieve the objective)

Question 13

Intermediate Scrutiny Applied to Equal Protection

Answer 13

• Gender
• Illegitimacy
• Undocumented alien children

Question 14

Strict Scrutiny

Answer 14

1. Necessary to achieve a
2. compelling government purpose
   
   • Government must demonstrate there is no less-restrictive alternative to achieve objective
   • Means must also be narrowly tailored

Question 15

Strict Scrutiny for Equal Protections applies to:

Answer 15

• Race
• National origin
• Alienage - generally

Question 16

Rules for the Contracts Clause

Answer 16

1. Applies only to state or local interference with existing contracts
2. State or local interference with private contracts must meet intermediate scrutiny
   
   • Does the legislation substantially impair a party’s rights under an existing contract?
   • If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?
3. State or local interference with government contracts must meet strict scrutiny
4. The ex post facto clause does not apply in civil cases.
   
   • (An ex post facto law is a law that criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed).
   • Retroactive civil liability only need meet a rational basis test. (A bill of attainder is a law that directs the punishment of a specific person or persons without a trial.)

Question 17

Constitutional provisions concerning equal protection

Answer 17

• The equal protection clause of the Fourteenth Amendment applies only to state and local governments
• Never applies to the Federal Government
• Equal protection is applied to the federal government through the due process clause of the Fifth Amendment

Question 18

What types of Content-based restrictions are there and what standard of review is applied?

Answer 18

Content-based restrictions on speech generally must meet strict scrutiny.

Two type of content based laws:

1. subject matter restrictions (application of the law depends on the topic of the message)
2. viewpoint restrictions (application of the law depends on the ideology of the message)

Question 19

Standard for Content-Nuetral Laws

Answer 19

Content-neutral laws burdening speech generally need only meet intermediate scrutiny (law applies to all speech the same)

Question 20

Types of Commercial Speech that may be prohibited/limited

Answer 20

• Advertising for illegal activity, and false and deceptive ads are not protected by the First Amendment
• True commercial speech that inherently risks deception can be prohibited

Question 21

Types of True commercial speech that inherently risks deception can be prohibited

Answer 21

• The government may prevent professionals from advertising or practicing under a trade name
• The government may prohibit attorney, in-person solicitation of clients for profit
• The government may not prohibit accountants from in person solicitation of clients for profit

Question 22

What places are available for speech?

Answer 22

1. Public forums
2. Designated Public Forums
3. Limited public forums
4. Non-public forums

Question 23

Rules for Public Forums

Answer 23

• Regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met.
• Regulations must be a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication
• Government regulation of public forums need not use the least restrictive alternative, but must be narrowly tailored
• City officials cannot have discretion to set permit fees for public demonstrations

Question 24

Designated Public Forums

Answer 24

government properties that the government could close to speech, but chooses to open to speech. The same rules apply as for public forums aka school facilities

Question 25

Limited Public Forums

Answer 25

• government properties that are limited to certain groups or dedicated to the discussion of only some subjects.
• The government can regulate speech in limited public forums so long as the regulation is reasonable and viewpoint neutral.

Question 26

Non-Public Forums

Answer 26

• government properties that the government constitutionally can and does close to speech. (military bases, areas outside prisons and jails, sidewalks on post office property, airports)
• The government can regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral.
  
  • Exception: cannot prohibit distribution of literature at airports

Question 27

Purpose of Free Exercise and Establishment Clauses

Answer 27

• Free Exercise Clause - to challenege regulations that are specifically designed to target religion
• Establishment Clause - Compels government to maintain nuetrality towards religion

Question 28

Rules for Free Exercise Clause

Answer 28

1. The free exercise clause cannot be used to challenge a neutral law of general applicability, no matter how much it interferes with religion
2. The government may not deny benefits to individuals who quit their jobs for religious reasons
3. The government may not hold a religious institution liable for the choices it makes as to who will be its ministers.

Question 29

Test for Establishment Clause (lemon test)

Answer 29

i. there must be a secular purpose for the law
ii. the effect must be neither to advance nor inhibit religion
iii. there must not be excessive entanglement with religion
* govt cannot directly pay teacher salaries in parochial schools

Question 30

Establishment Clause Rules

Answer 30

1. The government cannot discriminate against religious speech or among religions unless strict scrutiny is met.
2. Government sponsored religious activity in public schools is unconstitutional.
   
   • But religious student and community groups must have the same access to school facilities as non-religious groups
3. The government may give assistance to parochial schools, so long as it is not used for religious instruction.
   
   • The government may provide parents vouchers which they use in parochial schools.