Constitutional Law

Question 1

Constitutional Law - Exam Approach

Answer 1

1. State the test
2. Apply each part of the appropriate test
3. Discuss only those justiciability issues where the facts present a real issue.
4. Where the focus on is a plaintiff, discuss standing
5. The defendant has the burden to show mootness, lack of ripeness, advisory opinion, or political question to cause a case to be dismissed - these should only be addressed if sufficient facts suggest that the defendant is likely to raise them, not just automatically.

Question 2

Ripeness - Generally

Answer 2

A federal court will not hear a case unless plaintiff has been harmed, or there is an immediate or imminent threat of harm.

Only consider this issue if there is an imminent threat of possible prosecution or harm. If there is already actual harm, the case is clearly ripe.

Question 3

Mootness - Generally

Answer 3

If the relief that would be requested has been obtained, or it is no longer a realistic solution, the court will not hear the case.

But, where the same party likely will be subjected to the same action and again could not resolve the matter due to the short duration of the situation, the controversy is capable of repetition yet evading review, and will be heard.

Question 4

Standing - Generally

Answer 4

Standing refers to whether the plaintiff has a stake in the outcome of the case.

To establish standing, an individual plaintiff must show:

1. A specific injury, greater and different from the injury all persons suffer, because the government is engaged in unconstitutional action;
2. A causal connection between the injury and the conduct complained of; and
3. A ruling favorable to the plaintiff would eliminate the harm.

Question 5

Standing - Third-Party Standing

Answer 5

A plaintiff may assert the constitutional rights of others if:

1. The plaintiff has suffered injury; and
2. Third parties find it difficult to assert their own rights, or
3. The plaintiff’s injury adversely affects plaintiff’s relationship with third parties.

Whenever third party standing is asserted, first determine if the representative plaintiff has individual standing under the three-part test, as that is a required element of third-party standing.

Question 6

Standing - Organizational Standing

Answer 6

An organization has individual standing to challenge government action that directly injures the organization, established through the the individual standing test.

An organization can challenge action that injures its members if:

1. There is an injury in fact to members that would give individual members standing (through the individual standing test);
2. The injury is related to the organization’s purpose; and
3. Neither the nature of the claim nor the relief requires participation of the individual members in the lawsuit.

Question 7

Eleventh Amendement - Generally

Answer 7

The Eleventh Amendment bars suits against states in federal court. This arises when there is a lawsuit against a state government or a state government officer.

The Eleventh Amendment protects state, not local governments.

If the lawsuit claims a 14th Amendment Equal Protection or Due Process violation, §5 of the 14th Amendment overrides the 11th Amendment, and permits a lawsuit against the state or state officers for damages.

Question 8

Commerce Clause - Generally

Answer 8

Under the Commerce Clause, Congress has the power to regulate:

1. The channels (highways, waterways, airways, etc.) and
2. The instrumentalities (cars, trucks, ships, airplanes, etc.) of interstate commerce, as well as
3. Any activity that substantially affects interstate commerce, provided that the regulation does not infringe upon any other constitutional right.

“Substantial economic effect” is established by determining if the activity regulated by Congress is an economic one. This regulated activity may be local if it aggregates to have an effect on interstate commerce.

Question 9

Commerce Clause - Exceptions

Answer 9

If the activity is not economic in nature, and has historically been state regulated, then the Court will strike down the regulation or statute as not within the Congress’ enumerated Commerce power.

The Supreme Court has determined that the Commerce power does not extend to mandating that private persons must engage in commercial activity, even if the activity itself is economic in nature.

Question 10

Commerce Clause - 10th Amendment

Answer 10

The 10th Amendment prohibits Congress from requiring states to act in a certain way, or from coercing states to act in a certain way by over-penalizing them for refusing to do so.

Question 11

Dormant Commerce Clause - Generally

Answer 11

If Congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate, so long as the state or local action does not:

i) Discriminate against out-of-state commerce; or
ii) Unduly burden interstate commerce

Question 12

Dormant Commerce Clause - Exceptions

Answer 12

If your analysis suggests that a state or local law violates the Dormant Commerce Clause, discuss the four primary exceptions:

1. A discriminatory state or local law may be upheld if it furthers an important non-economic state interest (such as health or safety), and there are no reasonable nondiscriminatory alternatives.
2. If the state or local body is a market participant, it may prefer its own citizens, such as by charging reasonably higher fees. A market participant may only establish economic preferences, not an outright ban on interstate commerce if it has any external, downstream effects.
3. Congressional waiver or exemption from the effect of the clause by explicit permission to burden interstate commerce.
4. A traditional public function, such as waste disposal, permits differential treatment of the government’s constituents more favorably in the exercise of its traditional function. It does not permit an outright ban on interstate commerce.

Question 13

Interaction between the Dormant Commerce Clause & Privileges and Immunities Clause - Generally

Answer 13

After discussing whether a state or local law violates the Dormant Commerce Clause, discuss Article IV’s Privileges and Immunities Clause.

Question 14

Privileges and Immunities Clause - Generally

Answer 14

The Privileges and Immunities Clause prohibits discrimination by a state against noncitizens of that state.

Nonresident citizens are protected against discrimination with respect to “fundamental rights”, such as those in the 1st, 2nd, 4th, 5th, and 6th Amendments, and commercial activities, such as the right to earn a living.

Question 15

Privileges and Immunities Clause - Corporations

Answer 15

Corporations and aliens are not protected by the Privileges and Immunities Clause.

Sole proprietorships and partnerships are protected.

Question 16

Privileges and Immunities Clause - Exception

Answer 16

Discrimination against out-of-state citizens may be valid if the state can show a substantial justification for the difference in treatment. A substantial justification exists if:

i) The nonresidents either cause or are a part of the problem that the state is attempting to solve; and
ii) There are no less-restrictive means to solve the problem.

Question 17

Taxing Power - Generally

Answer 17

The taxing power is plenary, meaning Congress can tax any activity that it can otherwise regulate, or where there is a revenue raising purpose.

For all indirect taxes, there should be geographical uniformity such that the tax is imposed the same way wherever it is found.

MBE Only

Question 18

Thirteenth Amendment - Generally

Answer 18

The 13th Amendment authorizes Congress to pass laws prohibiting slavery, the badges of slavery, and involuntary servitude.

This means Congress has the power to prohibit racial discrimination in private and public transactions, such as housing sales and other commercial activities.

It has not been applied to authorize Congress to prohibit non-racial discrimination or to permit other claimed involuntary servitude such as the draft or mandatory national service.

Question 19

Contracts Clause - Generally

Answer 19

Generally, a state or local government may not substantially impair obligations under private contracts, unless:

1. it serves a legitimate and important state interest; and
2. the impairment is reasonable and narrowly tailored to promote that interest.

If it is a public contract, and either an authorizing statute or the contract itself reserves the right to amend, revoke or modify the contract, there is no substantial impairment, and a state cannot be obligated to refrain from exercising its police power.

Question 20

Legislative Veto - Generally

Answer 20

A legislative veto is an attempt by Congress to overturn an executive agency action without bicameralism or presentment.

This is unconstitutional because Congress’ veto is itself a form of legislative action, which needs to be authorized by both houses, and then presented back to the President for signature or veto.

Question 21

The Supremacy Clause - Generally

Answer 21

When governmental power belongs to both the federal government and the state, the Supremacy Clause renders any state law in conflict with the federal law as void.

A valid act of Congress or federal regulation supersedes any state or local action that actually conflicts with it.

Question 22

The Supremacy Clause - Express and Implied Preemption

Answer 22

Federal law expressly preempts state law where the Constitution makes the federal power exclusive, or when Congress has enacted legislation that explicitly prohibits state regulation in the same area

Implied preemption can occur when:

1. The federal law and state law actually conflict;
2. A state law interferes with a valid federal objective; or
3. It appears that Congress intended to occupy the entire field of regulation such that (a) it is federal regulation is comprehensive in scope, or (b) it creates an agency to administer to field.

Question 23

Presidential Authority - Generally

Answer 23

Where the President acts with the express or implied authority of Congress, his authority is at a maximum and his actions are valid.

Where Congress is silent, the President can act if they do not take over the powers of another branch or prevent another branch from carrying out its tasks.

Where the President acts against the express will of Congress, his actions are invalid.

Question 24

The Takings Clause - Generally

Answer 24

The Fifth Amendment prohibits governmental taking of private property for public use without just compensation.

An exaction is an uncompensated taking unless the government shows that:

1. The imposed condition relates to a legitimate government interest, and
2. The adverse impact of the proposed building or development on the area is roughly proportional to the loss caused to the property owner.

Question 25

The Takings Clause - Total vs. Partial Taking

Answer 25

If the government denies a landowner all economic use of the land—such as prohibiting erecting of any permanent structures—there is a per se total taking. All other regulatory takings are partial.

Question 26

The Takings Clause - Regulatory Taking

Answer 26

Regulations that decrease the value of property by denying its most beneficial use do not result in even a partial taking if they leave an economically viable use.

The Court balances the three Penn Central factors:

1. The social goals sought to be promoted;
2. The diminution in value to the owner; and
3. The owner’s reasonable expectations regarding use of the property.

Question 27

The Takings Clause - Zoning Test

Answer 27

Zoning ordinances are not a taking unless they:

1. Physically appropriate property;
2. Deny all economic use; or
3. Unreasonably interfere with distinct, investment-backed expectations.

Question 28

Procedural Due Process - Generally

Answer 28

Procedural Due Process ensures that the federal and state governments must follow certain procedures, such as notice an a hearing, before depriving any person of “life, liberty, or property.”

The deprivation must be intentional, not negligent.

Question 29

Procedural Due Process - Fair Procedural Hearing

Answer 29

The individual must have had notice of the proposed deprivation, and an opportunity to respond (hearing) before the deprivation occurred. The hearing must have fair procedures and an unbiased decision maker. The fairness of the hearing is determined by examining:

1. The importance of the individual interest involved which has been allegedly deprived;
2. The value of specific procedural safeguards to protecting that interest—including the proportionality of the punishment to the offense; and
3. The countervailing governmental interest in fiscal and administrative efficiency.

Question 30

The Takings Clause - Zoning Exceptions

Answer 30

A use that exists when the zoning ordinance is passed that does not conform cannot be eliminated at once—the non-conforming uses may be amortized over a reasonable period of time by grandfathering in existing uses.

A variance from the zoning ordinance may be granted on a showing of unique hardship to the property owner and that the variance will not be contrary to the public welfare.

Question 31

State Action - Generally

Answer 31

If there is a deprivation by a state or local government of Equal Protection or Substantive Due Process fundamental rights, there must first be state action.

The 14th Amendment bars state and local government deprivation of equal protection and substantive due process rights, including those rights that apply to the states through incorporation under the 14th Amendment.

Do not discuss state action if the challenged action is by the federal government, or by a state or local government that does not involve the deprivation of equal protection or due process.

Question 32

State Action - Types

Answer 32

There are four major types of state action:

1. A law, ordinance, or regulation;
2. A government actor (such as an agency or government employee);
3. A private actor engaged in traditional exclusive public functions; and
4. A private action with significant state involvement, encouraging or facilitating the private action.

Question 33

Equal Protection - Analysis Overview

Answer 33

1. Does the government intend to discriminate?
2. Which classes are being discriminated against?
3. State the appropriate test, (strict scrutiny, intermediate scrutiny, or rational basis) and who has the burden.
4. Apply the appropriate test to the facts.

Question 34

Equal Protection - Does the Government Intend to Discriminate?

Answer 34

There are three kinds of intent:

1. Facial discrimination;
2. A discriminatory purpose; or
3. The law is being discriminatorily applied.

Characterize and classify the groups being treated differently—is it by race, or gender, or residency, or something else? Often, there is more than one classification at issue.

Question 35

Equal Protection - Strict Scrutiny

Answer 35

The Court uses the strict scrutiny test when a suspect classification or fundamental liberty is involved.

For a law or classification to withstand strict scrutiny, the government has the burden of proving that the law is necessary to achieve a compelling state interest.

The term “necessary” generally means there is no less restrictive alternative, or that the law is narrowly tailored to achieve its purpose.

Question 36

Equal Protection - Intermediate Scrutiny

Answer 36

The Court uses the intermediate test when a classification is based on gender or legitimacy.

For a classification to withstand intermediate scrutiny, the government has the burden of proving that the law is substantially related to achieve an important state interest.

Question 37

Equal Protection - Rational Basis

Answer 37

Under the rational basis test, the challenger has the burden of proving that the law is not rationally related to a legitimate state interest.

The Court will generally defer to the legislative body in its judgment, unless the purpose is to target unpopular groups or if the basis of the purpose is some form of animus toward a group.

Question 38

Substantive Due Process - Generally

Answer 38

Substantive due process involves government infringement of liberty interests. If the infringed liberty interest is fundamental, the applicable test is strict scrutiny.

Fundamental rights have been held to include the right to travel, privacy, voting, and the First Amendment Rights

In all other cases, including business regulation, taxation, lifestyle, and zoning, the rational basis test is applied.

Question 39

First Amendment Speech - Generally

Answer 39

Analysis of speech issues depends on either the type of speech involved (is it protected speech or not) or on classifying the government’s role in regulating speech.

Question 40

First Amendment Speech - Government Roles

Answer 40

There are at least five types of government roles:

1. For protected speech, is the government acting as a regulator, banning certain types of speech?
2. Is the government regulating conduct?
3. Is the government regulating speech in prisons?
4. Is the government funding or not funding speech?
5. Is the government acting as property owner, regulating speech or conduct based on location?

Question 41

First Amendment Speech - Gov’t Ban Based on Content

Answer 41

If regulation of speech is content-based—it forbids, punishes, or burdens communication at all about a subject—the government has the burden of showing that its law is necessary to achieve a compelling state interest.

If the speech regulation is content neutral, then it is subject to intermediate scrutiny, and the regulation will be upheld if the government shows that it:

1. Advances important issues unrelated to the suppression of speech, and
2. Does not burden substantially more speech than is necessary to further those interests.

Question 42

First Amendment Speech - Vagueness and Breadth

Answer 42

A statute is vague if it is unclear what conduct or speech is prohibited.

A statute is overbroad if more speech than is targeted is made unlawful.

Always discuss vagueness and overbreadth immediately after discussing content based speech. Also consider whether the law gives government unfettered discretion to regulate speech.

Question 43

First Amendment Speech - Conduct as Speech

Answer 43

The freedom of speech includes symbolic conduct. A regulation of conduct is upheld if:

1. The regulation is within the constitutional power (such as police power) of the government;
2. It furthers an important government interest;
3. The government interest is unrelated to the suppression of speech; and
4. The incidental burden on speech is no greater than necessary.

Question 44

First Amendment Speech - Time, Place, or Manner, Generally

Answer 44

The extent to which government may regulate speech-related conduct based on the time, place, or manner of the speech depends on whether the location is:

1. a public forum, or a designated public forum;
2. a limited public forum; or
3. a nonpublic forum.

Question 45

First Amendment Speech - Public Forum or Designated Public Forum

Answer 45

A public forum is one that has been historically open to speech-related activities, such as sidewalks and public parks. A designated public forum is one that has not been historically open to speech-related activities, but that the government has opened to such activities on a permanent or limited basis.

The government may regulate speech in public forums and designated public forums with reasonable time, place and manner restrictions:

1. The restriction must be content-neutral;
2. It must be narrowly tailored to serve a significant government interest; and
3. It must leave open alternative channels of communication.

Question 46

First Amendment Speech - Limited Public Forums and Nonpublic Forums

Answer 46

A limited public forum includes all other public property other than a nonpublic forum, including courtrooms. A nonpublic forum includes places such as jails and government buildings.

The government can regulate speech in a limited or nonpublic forum to reserve it for its intended use. Regulations will be upheld if they are:

1. Viewpoint neutral; and
2. Reasonably related to a legitimate government purpose (rational basis test)

Question 47

Government Funding of Speech - Generally

Answer 47

When the government funds speech, it may do so on content-based criteria that reflect its own policies so long as the criteria are viewpoint neutral.

When the government funds speech to promote its own policy goals (such as family planning), it may do so on content-based criteria. If it funds private speech, however, it must do so on a viewpoint neutral basis.

Question 48

Commercial Speech - Rule

Answer 48

The commercial speech must concern a lawful activity, and the speech cannot be misleading or fraudulent. Any regulation of lawful, non-fraudulent speech is valid only if:

1. It serves a substantial government interest;
2. It directly advances the asserted interest; and
3. It is narrowly tailored to serve the substantial interest.

Question 49

Campaign Contributions and Spending - Generally

Answer 49

Campaign contribution limits must be closely drawn to match a sufficiently important interest—an intermediate scrutiny test.

Therefore, limits on contributions to candidates are valid, because of the interest in avoiding the appearance of corruption. However, limiting the aggregate amounts any one person can contribute during an election cycle is unconstitutional since it limits speech and is not related to the danger of contributing to a particular candidate.

Campaign spending limits imposed on candidates are unconstitutional as a restriction on speech. Third party contributions supporting a candidate, and not made directly to a candidate nor coordinated with the candidate, may not be limited, either.

Question 50

Obscenity - Generally

Answer 50

Obscenity is the description or depiction of sexual conduct that, taken as a whole, by the average person, applying contemporary community standards:

1. appeals to the prurient interest in sex;
2. portrays sex in a patently offensive way; and
3. does not have serious literary, artistic, political, or scientific value.

Question 51

Unprotected Speech - Types

Answer 51

There are several types of speech that are unprotected, including fighting words, defamation of private persons involved in nonpublic matters, and obscenity.

Attempts to regulate these types of speech are often by prior restraint.

Question 52

Prior Restraint - Generally

Answer 52

A prior restraint is any governmental action that would prevent a communication from reaching the public. This usually refers to a licensing system, an injunction, pre-publication rights, gag orders, or a judicial order prohibiting the press from publishing certain information.

A general law or ordinance is not a prior restraint—it is evaluated as regulatory conduct.

Question 53

Prior Restraint - Test

Answer 53

Generally, prior restraints are greatly disfavored. In order to allow prior restraint, the government has a heavy burden to show a special societal harm that justifies the restraint.

Even if the conduct is that which can be subject to prior restraint, the Court requires three procedural safeguards:

1. The standards must be narrowly drawn, reasonable, and definite so as to include only prohibitable speech;
2. The government must promptly seek an injunction;
3. There must be a prompt and final determination of the validity of the restraint—meaning the appeal must be expedited.

Question 54

Free Exercise Clause - Generally

Answer 54

The Free Exercise Clause prohibits the government from punishing someone, either by imposing burdens or denying benefits, because of their religious beliefs, absent it being necessary to achieve a compelling interest.

In the absence of direct punishment for religious belief, a state may prohibit and regulate general conduct that relates to the conduct of all persons, under laws of general application. The means must be reasonably related to achieving the secular purpose.

Question 55

Establishment Clause - Generally

Answer 55

If a law or ordinance establishes a preference for one sect or denomination over others, the law or ordinance will be examined using strict scrutiny.

If there is no sect preference, the Court uses the Lemon test, where a government law or program will be valid under the Establishment Clause if it:

1. Has a secular purpose;
2. Has a primary effect that neither advances nor inhibits religion; and
3. Does not produce excessive government entanglement with religion.

Question 56

Freedom of the Press - Generally

Answer 56

Generally, the press has no greater right to speech than anyone else.

The government cannot punish the publication of lawfully obtained truthful information absent compliance with strict scrutiny. The First Amendment right for the press and public to have access to trials, can be outweighed by an overriding interest articulated by the court, such as the right to a fair trial.

Reporters can be compelled to testify as to sources absent a federal or state shield law.

General business regulations can be imposed on press, but they cannot be based on content absent compelling justification (strict scrutiny).

Question 57

Freedom of Association - Generally

Answer 57

The right to join together for political or expressive activity is protected by the First Amendment, and may be infringed only if necessary to achieve a compelling government interest.

The first issue is whether the activity is political or expressive (membership in the Boy Scouts vs. going to a dance hall).