Constitutional Law Flashcards
1
Q
Which clause of the Constitution protects members of Congress from statements and conduct made in the regular course of the legislative Process?
A
The Speech or Debate Clause of Article I
2
Q
T/F - Because Congress has exclusive authority over interstate commerce, it may explicitly permit states to act in ways that would otherwise violate the Dormant Commerce Clause.
A
True
3
Q
Is there a right to travel internationally? If so, is it a fundamental right triggering strict scrutiny?
A
Although there is a right to travel internationally, it is not a fundamental right. The federal government may limit travel to foreign countries as long as it has a rational basis for doing so.
4
Q
Is there a federal equal protection clause?
A
Technically no. However, the Supreme Court has held that the Due Process Clause of the Fifth Amendment (which applies to the federal government) incorporates the Equal Protection Clause of the Fourteenth Amendment (which applies to the states).
5
Q
What is the Comity Clause also known as? What does it do? Who does it apply to?
A
The Privileges and Immunities Clause. It prohibits a state from discriminating against the citizens of another state. It does not apply to the federal government.
6
Q
Which type of violations of the Equal Protection Clause trigger intermediate scrutiny?
A
Discrimination based on gender or legitimacy.
7
Q
What is the order of importance given to these types of legislation from top to bottom: executive agreements, congressional legislation, state statutes, treaties?
A
1) Congressional Legislation
2) Treaties
3) Executive Agreements
4) State Statutes
8
Q
What level of scrutiny is triggered when state action discriminates against the poor? Are there exceptions?
A
Generally, this type of discrimination is only subject to rational basis scrutiny. However, denying an indigent person a fundamental right (such as divorce or appeal of imprisonment) through the imposition of a court fee that they are unable to pay violates the Due Process and Equal Protection Clauses of the Fourteenth Amendments.
9
Q
T/F - The right to assert a Tenth Amendment challenge to a federal statute belongs only to the states.
A
False. An individual, as well as a state, may have standing to challenge a federal statute on Tenth Amendment grounds.
10
Q
Does an assignee of a claim have standing under Article III to bring the claim even though they aren’t the ones suffering injury on the original claim?
A
Yes, even if the claim is mature at the time of assignment and the assignment is made for collection only. Although the assignor is the one who suffered injury, an assignee may sue on the basis of the assignor’s injuries.
11
Q
What does Section 5, the Enabling Clause, of the Fourteenth Amendment do?
A
Permits Congress to pass legislation to enforce the EP and DP rights guaranteed by the Fourteenth Amendment, AS LONG AS there is “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end.
12
Q
What type of conduct can Congress not override state government action under the Enabling Clause of the Fourteenth Amendment to prevent?
A
Wholly private conduct.
13
Q
T/F - A president enjoys immunity from an action for civil liability that stems from conduct before and after the president took office.
A
False. A president does not enjoy immunity from an action for civil liability that stems from conduct before the president took office. This includes remarks made during presidential debate.
14
Q
What does the Tenth Amendment do? What is its effect on federally compelled state legislation?
A
It specifies that all powers not specifically assigned to the federal government are reserved to the states and the people. The ability to enact state legislation is an exclusive state power, and the federal government cannot directly compel a state to enact legislation.
15
Q
What is Article III of the Constitution the source of?
A
The Judicial Power. Article III lists the kinds of cases that come within the judicial power of the United States. The most important are diversity jurisdiction and federal question jurisdiction.
16
Q
What is the major exception to the judicial power?
A
The 11th Amendment. This enforces the preexisting concept of state sovereign immunity.
17
Q
What is State Sovereign Immunity? Are there any exceptions?
A
You cannot sue a state for money damages in either in that state’s own court or in federal court UNLESS the state consents OR the U.S. Congress expressly says so to enforce 14th Amendment rights.
Note: You may sue a state for money damages in a sister state’s court.
18
Q
What levels of government does the 11th Amendment protect?
A
States and state agencies. The 11th Amendment sovereign immunity does NOT protect local governments (no protection for cities, counties or towns).
19
Q
If a state government is protected by the 11th Amendment, then who is left to sue? What kind of damages can you seek?
A
You can sue a state officer. You can always get injunctive relief simply by enjoining the appropriate state officer (e.g., the attorney general). Money damages are also available, but ONLY from the officer personally.
Note: Damages from the state treasury are barred unless Congress expressly says so to enforce individual rights.
20
Q
What are the types of Jurisdiction of the U.S. Supreme Court? Explain them.
A
Original Jurisdiction and Appellate Jurisdiction. Original Jurisdiction is when a case may first be filed in the Supreme Court (these are mostly controversies between states. Appellate Jurisdiction is established by either Certiorari or by direct appeal.
21
Q
What is a Writ of Certiorari? Why is it important?
A
Almost all cases come to the Supreme Court by way of writ of certiorari. The key factor is that certiorari is discretionary with the Supreme Court (making it the only court with discretionary jurisdiction.
22
Q
Who can control the Supreme Court’s appellate jurisdiction? How?
A
Congress can effectively control the Supreme Court’s docket by legislating exceptions to its appellate jurisdiction.
23
Q
What does AISG stand for? Why is it important?
A
Adequate and Independent State Grounds. This arises only in the U.S. Supreme Court when reviewing a state court decision. It means that the court has no jurisdiction if the judgment below rested on an adequate and independent state ground. In other words, the SC can only review a state court judgment ONLY if it turned on federal grounds.
Note: If the claimant (party claiming a federal right) wins under state law anyways, then you have AISG.
24
Q
T/F - The U.S. Constitution is the ceiling, not the floor. Explain.
A
False. The U.S. Constitution is the floor, not the ceiling. This means that a state court construing a state constitution can always give more protection than the U.S. Constitution. However, it cannot give less protection.
25
Do you have Adequate and Independent State Grounds if state law adopts or follows a federal law directly?
No. This would not be "Independent."
26
If a state court decision involves similar state and federal statutes, but is unclear on whether it relies on state law or federal law in its determination, can the U.S. Supreme Court review for a federal issue? Is there AISG?
Yes, the Supreme Court can review the decision. Only have Adequate Independent State Grounds if it is clear that the claimant won under the state statute. If the Supreme Court disagrees with the state court's understanding of the federal issue, it remands the case back to state court so that the state court can reconsider the case under state law.
27
What must be shown to have standing to sue under Constitutional grounds? Explain each element.
1) Injury - Almost anything can be injury (past or future), especially if Congress says so. The injury must be concrete (not abstract), but it doesn't have to be economic. Mere ideological objection is not injury.
2) Causation - Defendant's act must have caused or will cause the injury.
3) Redressability - The court must be able to remedy or redress the injury. Injuries in the past usually are redressed by damages, whereas injuries in the future are redressed with an injunction.
28
T/F - Past injury gives automatic standing to seek an injunction for future injury.
False. You must show that the injury will happen again. Past injury is not enough to seek an injunction to redress future injury.
29
Does an organization have standing to sue on behalf of its members?
Yes as long as its members have standing.
30
Is the injury element of standing satisfied if you merely have your freedom of movement or enjoyment of public space impaired?
Yes.
31
Hypo - If Corporation A is wrongfully denied a business license, and Corporation B receives a license, can Corp. A sue to enjoin the government from licensing Corp B? Why or Why not?
No. This type of relief would not redress the wrong to Corp. A. A has to sue for its own license.
32
T/F - Tax payers always have standing to challenge their own tax liability and to challenge government expenditures.
False. Taxpayers do always have standing to challenge their tax liability. However, they may only challenge government expenditures in very rare situations arising under the Establishment Clause (dealing with religion).
Note: State courts often allow municipal taxpayers to challenge a municipality's expenditures.
33
Do legislators have standing to challenge laws that they voted against?
No.
34
Can a third party have standing to raise the rights of someone else? Explain.
Generally, the answer is no. However, parties to an exchange or transaction can raise the rights of other parties to that exchange or transaction.
Example: Doctor not compensated for providing abortion services can raise the rights of women who wanted to have abortions. The doctor and patient are involved in an exchange or transaction.
35
Describe the timeliness requirement for a claim under Constitutional law.
Ripeness - concerns the prematurity of a case. Here, you must show actual harm or an immediate threat of harm.
Mootness - concerns cases that are overripe and are dismissed. Cases can become moot during trial or on appeal. There is an exception for controversies capable of repetition, yet evading review, even if they appear to be moot (e.g., pregnancies and abortion - the case will last much longer than the pregnancy, and these type's of claims will always become moot without the exception).
36
Can federal courts issue advisory opinions? Can they rule on the constitutionality of propose legislation?
No and no. This is commonly tested. The federal courts decide cases; they do not make recommendations to executive officers.
37
Can the courts decide political questions?
No, these are non-justiciable questions (no manageable standards for judicial decision-making).
Types of non-justiciable political questions include: Guarantee Clause (protecting the republican form of government); Foreign affairs; Impeachment procedures; and Political gerrymandering.
38
General limits to the Legislative Power.
Federal government can do almost anything it likes, so long as it does not violate individual rights.
39
On the Bar Exam, what are the three answers that will ALWAYS be wrong when deciding which argument is "in favor of congressional power" for passing a certain type of legislation?
1) "Promoting" the General Welfare - This is NOT a power of Congress.
2) Police Power - The federal government does NOT have a police power (belongs to the states).
3) Necessary and Proper - this is NOT a free-standing power of congress. This only works as an add-on to some other legislative power.
40
What are the three big powers of Congress that the Bar Exam likes as answers?
1) Taxing Power - pick this when the law involves a tax.
2) Spending Power - pick this whenever federal money (not state) is being spent or disbursed.
3) Commerce Power - pick this when in doubt. This is a very broad power.
41
What is the Commerce Power, and what does it regulate?
The Commerce Power allows Congress to regulate almost anything as interstate commerce. Congress can regulate the following:
1) The "channels" of interstate commerce (highways, seaways, airways, etc.);
2) The "instrumentalities" of interstate commerce (cars, trucks, ships, railroads, etc.); and
3) Any "intrastate and interstate activity (economical or commercial) that has a substantial effect on interstate commerce.
42
How is substantial effect on interstate commerce measured?
In the aggregate. Question is "whether the aggregate activity of everyone doing the same thing has a substantial effect on interstate commerce." The answer is almost always yes.
43
How does the Taxing Power of Congress work?
Congress has the power to tax an activity (even when used as a preventative) as long as the tax is "rationally related to raising revenue."
44
How does the Spending Power of Congress work?
Congress can use its funds to bribe states to pass certain laws (example: conditioning federal highway funds to have state's raise their drinking age to a minimum of 21).
Congress can use the Spending Power to accomplish things it could not do by direct regulation under the Commerce clause. The Spending Power includes "spending for the general welfare." Note that this is different than "promoting the general welfare," which is not a power of Congress.
45
What does Anti-Commandeering mean? What is its effect on Congress? What are Congress's alternatives?
This means that Congress cannot force states to adopt or enforce federal regulatory programs. In other words, it cannot commandeer state and local officers to carry out federal programs. Congress can still use the Spending Power to bribe the state OR it can use its own federal officers to carry out the regulatory program.
Example - cannot require state and local law enforcement to carry out a federal act that requires background checks for people purchasing firearms.
46
T/F - The President has the power to declare war.
False. Congress has the power to declare war.
47
Who has the power to provide for military discipline of US armed forces members? What are the limitations?
Congress has this power. Congress CANNOT provide for military trial of U.S. civilians. Thus, it is limited to armed forces and enemies.
48
Who has the power to maintain the Army and the Navy?
Congress.
49
Which Amendments are the Civil War Amendments? What do they do?
13th - Congress has the broad power to legislate against racial discrimination, whether public OR private. This includes purely private racial discrimination!
14th - Congress has the power to remedy violations of individual rights by the government as defined by the courts. Thus, Congress cannot redefine constitutional rights by legislation.
15th - Congress has the power to ensure no racial discrimination in voting
50
T/F - The 13th Amendment allows Congress to legislate against purely private racial discrimination.
True.
51
What are the requirements for remedial, congressional legislation under the 14th Amendment?
To be properly remedial, the legislation must have "congruence" and "proportionality." That is there must be a reasonable fit between the remedial law enacted by Congress and the constitutional right as declared by the Supreme Court.
52
T/F - Congress has the power to overrule the Supreme Court's decisions and define new rights.
False! Congress is only allowed to enact legislation protecting rights as they are defined by the Supreme Court.
53
What is the RFRA? Does it apply to the states?
The Religious Freedom Restoration Act stated that religious believers have a right not to obey otherwise valid laws, unless the government can show a "compelling interest in enforcing the law against them."
This was struck down by the Supreme court as it made any law (whether aimed at religion or merely incidental) illegal if religious practices were affected. HOWEVER, it is only unconstitutional as it applies to the states. RFRA is valid as it applies to federal laws. These laws must accommodate religious beliefs.
54
What are the Powers of the President domestically? Can anything enhance this power? Any restrictions?
The domestic Executive Power gives the President the power to enforce the law, not to make it or break it. The power is greatest when authorized by statute. The President's powers are subject to control by statute.
55
What Executive Powers are exclusive to the President (not subject to statutory control or Congressional limits)?
1) Pardon Power - President can pardon or commute punishment for all FEDERAL offenses. (Governors have a similar power for state offenses).
2) Veto Power - President has 10 days to veto legislation (with or without reason). He cannot cherry pick and veto specific items in the legislation while accepting others. This veto can be overridden by a 2/3 majority vote of both houses (HoR and Senate).
3) Appointment and Removal of Executive Officers - ONLY the President (or his appointees) can hire or fire executive officers. Some senior officers require the advice and consent of the Senate. The Senate has the power of rejection here. This does not mean the Senate has the power of appointment.
56
Who are executive officers?
Anyone who takes action on behalf of the U.S.
Note: Just as Congress cannot hire or fire an executive officer, it cannot give executive power to anyone it can hire or fire.
57
What are the powers of the President in Foreign Affairs?
The Executive Power labels the President as Commander in Chief meaning he or she has control over military decisions (this is not the power to declare war--that belongs to Congress).
The Executive Power in Foreign Affairs also gives the President the power to make Treaties and Executive Agreements.
58
How and by who are Treaties created? What are their authority?
The President has the Executive Power to negotiate Treaties. They require approval by a two-thirds vote of the Senate. Once approved, it has the same authority as a statute.
59
How and by who are Executive Agreements created? What are their authority?
Executive Agreements are negotiated by the President and are NOT submitted for approval by the Senate (unlike Treaties). They can be authorized, precluded, or overridden by statute, but they take precedence over conflicting state statutes. They do not have binding status like a treaty does.
60
What is Impeachment? Who does it apply to? How is it carried out?
Impeachment is an accusation that applies to executive officers of high crimes or misdemeanors requiring a 2/3 majority vote of the House of Representatives.
Trial is in the Senate, and conviction requires a 2/3 majority vote of the Senate.
Remedy - Removal from office. No other penalties apply.
61
What is Impoundment of funds? Is it allowed?
Impoundment is the withholding of funds. If a statute gives the President discretion to spend or withhold funds, he may do so.
However, if a statute unambiguously requires that funds be spend, the President has no power to impound funds and not do so.
62
What is a Legislative Veto? Is it constitutional?
A legislative veto is unconstitutional. This happens when Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution. This has the effect of evading the President's guaranteed veto opportunity by passing a law saying that in the future it plans to govern by resolution.
63
What does Delegation of Powers mean with respect to Congress? When can they do this?
Congress can delegate its power to administrative agencies so long as there are "intelligible standards" governing the exercise of that delegated power. Almost all delegations of legislative powers are upheld.
64
T/F - The President have absolute immunity for official acts and acts done prior to taking office.
False. The President only has absolute immunity with regard to official acts. There is NO immunity for acts done prior to taking office (none whatsoever).
65
T/F - The President has an executive privilege not to reveal confidential communications with presidential advisers. This privilege cannot be overridden.
False. The privilege can be outweighed by a "specifically demonstrated need" in a CRIMINAL prosecution.
66
T/F - Judges have absolute immunity for ALL judicial acts.
True. However, they may be liable for non-judicial activities.
67
Do legislators (federal and state) have immunity for anything? If so, what gives them that immunity?
United States Senators and Representatives (NOT STATE LEGISLATORS) are protected by the Speech or Debate Clause. Senators and Congressman and their aides cannot be prosecuted or punished in relation to their official acts.
Note: The official acts of a federal legislator CANNOT be introduced into evidence.
68
In the Federal System, can federal powers exist in concurrence with state powers?
Yes. Most federal powers are concurrent with state powers. If there is a conflict between Congress and state powers, Congress wins.
69
What powers are exclusively federal?
The power over foreign relations and the power to coin money.
70
T/F - The federal government is generally immune from direct state regulation or taxation. However, states are not immune from direct federal regulation.
True. However, states can tax indirectly, such as taxing the income of federal employees.
71
T/F - States generally can use their laws to shield state officers from federal liability.
What is the exception to this answer?
False. The exception being the anti-commandeering principle. States cannot be forced to implement federal programs.
Remember: Federal government can always use the Spending Power to bring states to comply, or the federal government can implement and enforce their regulatory programs using their own people.
72
What does the Privileges and Immunities Clause do? What else is it known as? Where is it located?
Located in Article IV, also known as the Comity Clause, the P&I Clause forbids serious discrimination against out-of-state individuals, absent a substantial justification.
"Serious Discrimination" - usually that which involves private employment.
"Non-Serious Discrimination" - States can discriminate with regard to recreational opportunities, such as hunting licenses.
Rule: There can be NO legal requirement of residency for PRIVATE employment.
73
Does the Privileges and Immunities Clause protect out-of-state corporations?
No. Only individuals.
74
T/F - A state can legally discriminate against out-of-state citizens by requiring in-state residency to be publicly employed in that state.
True. Residential requirements for public employment (such as city construction jobs) do not violate the Privileges and Immunities Clause.
75
What is the Dormant Commerce Clause?
Broader version of the Privileges and Immunities Clause in that it protects both out-of-state corporations AND out-of-state individuals.
"Dormant" describes what the Commerce Clause means in the absence of federal regulation (when the federal commerce power is unexercised.
This is commonly tested on the Bar.
76
When does the Dormant Commerce Clause apply? What is its effect?
In the absence of federal regulation on commerce, state regulation of commerce is valid so long as:
1) There is no discrimination against out-of-state interests (with exceptions);
2) The regulation does not unduly burden interstate commerce; and
3) The regulation does not apply to wholly extraterritorial activity (meaning a state cannot regulate conduct occurring wholly beyond its borders).
Effect: Allows for the states to regulate interstate commerce.
77
T/F - State actions affecting interstate commerce in the absence of federal regulation under the Dormant Commerce clause absolutely can never discriminate against out-of-state interests (individual or corporate). Explain.
False. There are three exceptions that allow states to discriminate against out-of-state interests under the Dormant Commerce Clause.
1) State is a Market Participant - When a state is buying or selling goods or services, it can choose to deal with only in-state persons (example 1 - garbage stored in state-owned landfill can be limited to in-state garbage / example 2 - sale of cement produced by state-owned plant only to in-state purchasers.)
2) State Subsidies - A state can always choose to subsidize only its own citizens (example - in-state college tuition benefits).
3) Federal Approval - Congress can approve the action, and the state will never violate the Commerce Clause, even if it discriminates against out-of-state interests.
78
Dormant Commerce Clause - What does unduly burdensome mean?
Only when state regulation of commerce is "so outrageously costly relative to the benefits of the regulation" is a non-discriminatory state regulation struck down as an undue burden on interstate commerce.
Note - Non-discriminatory state regulations of commerce are rarely struck down because the "unduly burdensome" balancing test is fairly easy to pass.
79
Can States tax Interstate Commerce? If so, are there limitations?
Yes. Generally, the requirements for taxation are the same as for any regulation of interstate commerce. Discriminatory taxation will be struck down unless Congress consents. Further, non-discriminatory taxation will be upheld unless it is unduly burdensome.
80
Non-discriminatory state taxation of interstate commerce is valid if two requirements are met. What are they?
1) Must be a substantial nexus between the taxing state and the property or activity to be taxed, AND
2) Must be a fair apportionment of tax liability among states.
81
T/F - Despite not having a substantial nexus with an out-of-state seller, a state can still tax the in-state purchaser at the same sales tax that would have applied if the item would have been purchased from an in-state seller.
True.
82
T/F - A state may tax the entire world-wide value of a corporation doing business in-state.
False. There must be "fair apportionment." A state may only tax the in-state portion of a corporations revenue.
83
What are Ad Valorem property taxes? How do they operate?
These are "value-based property taxes." These are levied on personal property or commodities that move through the state from state to state. States tax all commodities within their borders on a specified date called "Tax Day." The instrumentalities that move the goods through commerce can also be taxed based on their value.
The goods must actually come to rest in the state. They cannot merely be in transit.
Rule: Pay the full tax to every state where goods are stopped for a "business purpose" on tax day.
Note: Every state through which an instrumentality passes through can tax the instrumentality only to a portion of its value which is proportionate to the portion of in-state use.
84
What does it mean when a federal law preempts state law? When does it happen?
This is where Federal law overrides state law. It happens when state law and federal are inconsistent with each other. There must be incompatibility or conflict. State laws that simply provide more protection that federal laws do not "conflict" with federal laws.
85
What does it mean when Congress preempts the field? Is this legal?
This is where Congress determines that there should be no state law of any sort in a particular field. Thus, any state law in that area is automatically inconsistent with the federal statute and is automatically preempted. This is allowed but very rare.
86
What are interstate compacts? What is the rule when they conflict with federal rights?
Interstate compacts are agreements among states. If the agreement affects federal rights, Congress must approve.
87
Define the Full Faith and Credit Clause.
States don't have to follow other states' laws, but they do have to give full faith and credit to judgments rendered by other states' courts, so long as the rendering court had jurisdiction to render a final judgment on the merits.
88
The 13th Amendment v.s. the 14th Amendment. Differences in how they are applied.
13th - The outlawing of slavery and involuntary servitude applies directly to private parties and individuals, but it is narrow in its focus.
14th - Other individual rights apply to states and localities through the 14th Amendment. This requires STATE ACTION.
89
Define State Action. When is it needed to bring a claim under the Constitution?
Needed in order to bring a claim against the state under the 14th Amendment. A state cannot be significantly involved in private discrimination (cannot facilitate, profit, or enforce). A state does not, however, have a duty to prevent private discrimination.
"State Action" means government action, whether STATE OR LOCAL.
90
What is constitutionally allowed in state action?
Generally, the government acts constitutionally so long as its own conduct is NEUTRAL and EVEN-HANDED.
91
What is the effect of an Anti-Discrimination Statute?
State action is generally required to show a violation of the Constitution. However, with an Anti-Discrimination statute, state action is irrelevant.
92
What is Procedural Due Process?
The right to Notice and a Hearing.
93
What is the analysis in determining what procedural due process rights are due?
Two Questions:
1) Is life, liberty, or property being taken?
2) If life, liberty, or property is being taken, what process is due? (MUST BE INTENTIONAL / no accidents).
Life - Death Penalty
Liberty - physical confinement, probation and parole, physical injury (school spanking), any restriction on legal rights (including punishment for free speech). INJURY TO REPUTATION IS NOT A LOSS OF LIBERTY.
Property - MOST HEAVILY TESTED ON THE BAR (of life, liberty, and property). Government job or benefit when you have a "legitimate entitlement" to continued enjoyment of the job or benefit. Mere expectation of employment is not enough.
94
How can you tell if a government job is merely an expectation of employment or an entitlement?
Government jobs are entitlements only when the government says so. Look at the employment contract.
"At-will" - mere expectation
"Discharge only for cause" - Entitlement
95
If life, liberty, or property are taken by the government (must be intentional), how does the court decide what process is due? Additionally, what are the timing requirements of the hearing.
This is a balancing test. Three factors:
1) The individual interests at stake,
2) The value of the procedure in protecting that interest, and
3) The government's interest in efficiency and cost.
Timing Requirements: Sometimes, a hearing must occur before the deprivation (ex: terminating welfare benefits / non-emergency revocations of driver's licenses). Sometimes the hearing can occur after the action so long as the hearing is PROMPT and FAIR (terminating disability benefits / dismissing students for academic reasons).
96
T/F - Public employees who can only be fired "for cause" must always be given some opportunity to be heard PRIOR to discharge.
False. An opportunity to be heard prior to discharge is a right of the employee unless there is a significant reason for not keeping the employee on the job. In this type of situation, the discharge will come first with a subsequent hearing that is PROMPT and FAIR (fair meaning reinstatement with back pay if discharged wrongfully)
97
What are the Standards of Review under Due Process violations? When does each apply?
There are three Standards of Review in Substantive Due Process.
1) Strict Scrutiny - Applies when there is a SUSPECT CLASSIFICATION or a FUNDAMENTAL RIGHT involved.
2) Intermediate Scrutiny - Applies to classifications based on GENDER and LEGITIMACY.
3) Rational Basis - Applies to all other cases (residual test).
98
How can a law comply with Strict Scrutiny? Who bears the burden of proof?
The law must be NECESSARY for a COMPELLING interest. Further, the law must accomplish its goals by the LEAST RESTRICTIVE MEANS.
The government bears the burden of proof when strict scrutiny is the standard.
99
How can a law comply with Intermediate Scrutiny?
The law must be SUBSTANTIALLY RELATED to an IMPORTANT government interest.
100
How can a law comply with Rational Basis? Who bears the burden of proof?
The law need only be RATIONALLY RELATED to a LEGITIMATE interest.
The challenger bears the burden of proof.
101
What does the denial of a fundamental right violate?
It depends. If a law denies a fundamental right to everyone, it violates Substantive Due Process. If a law denies a fundamental right to only some, then it violates Equal Protection.
102
T/F - We have a fundamental right to interstate travel and settlement.
True! Remember, however, that the right to travel internationally is not fundamental.
103
T/F - States can impose residency requirements for political participation (voting) and government benefits.
Yes IF REASONABLE.
Most are 30 - 90 day requirements. One year is going to be too long for everything except in-state tuition and jurisdiction to divorce.
104
Can a state have a tax scheme that favors long-term residents over recently arrived residents? If so, why?
No, absolutely not.
105
T/F - Voting is a fundamental right to ALL citizens.
True (provided that they are at least 18).
106
Are Poll Taxes constitutional?
NO! They burden the fundamental right to vote.
107
T/F - The states control the residency requirements for presidential elections.
False. Congress does.
108
T/F - States can impose residency, filing fees, and nomination petition requirements for candidates to be listed on a ballot.
True, as long as serious candidates can reasonably comply.
If the requirements become so onerous that they effectively bar access to the ballot, then they are unconstitutional.
109
What rights of privacy fall within the fundamental rights?
1) Marriage - Substantial interference with the marriage of an age-qualified man and woman is unconstitutional. There are reasonable interferences allowed (age or restriction on marrying close relatives.
2) Contraception - Fundamental right for everyone, whether married or not, to purchase contraceptives.
3) Sexual Intimacy - Not technically a fundamental right, but the Supreme Court found that the government has no legitimate interest in regulating non-commercial (not prostitution) sexual intimacy between consenting adults, including same-sex couples.
4) Abortion - A woman has a right to terminate her pregnancy until viability of the fetus. Can have restrictions so long as there are exceptions to preserve the health and life of the mother. Cannot impose an undue burden on the woman's right. Informed consent requirements are allowed. 24-hour waiting periods are allowed. Parental notification for minors is allowed. Spousal consent is NOT allowed. The government is not required to finance abortion.
5) Parental Rights - Fundamental right to raise your children as you see fit, including choice of religious or private schools. This right can be lost through abandonment, abuse, or neglect.
6) Family Relations - Right to live together with close relatives.
7) Obscene Material - Right to read obscene material in the privacy of one's own home. However, NO RIGHT to purchase, sell, import, or distribute such material. Absolutely no right to child pornography.
8) Refusal of Medical Treatment - Not clear whether this is a fundamental right, but there is a liberty interest in refusing medical treatment. NO RIGHT TO COMMIT SUICIDE.
110
What is the effect of the Privileges and Immunities of National Citizenship under the 14th Amendment?
Means nothing anymore. THIS IS NEVER A CORRECT ANSWER ON THE BAR EXAM!
111
What are the two due process clauses under Equal Protection (race, ethnicity, national origin)?
1) The 5th Amendment - applies to the federal government.
2) The 14th Amendment - applies to localities and states.
Though no EP Clause guarantee technicall applies to the federal government, EP concepts are applied to the federal government via the Due Process Clase of the 5th Amendment. Therefore, states and localities have both equal protection and due process; for the federal government, equal protection and due process are called Fifth Amendment Due Process.
112
What are the Standards of Review for Equal Protection violations?
Same as for Due Process violations:
1) Strict Scrutiny - is the law NECESSARY for a COMPELLING interest?
2) Intermediate Scrutiny - Is the law SUBSTANTIALLY RELATED to an IMPORTANT government interest?
3) Rational Basis - Is the law RATIONALLY RELATED to a LEGITIMATE government interest.
Note: Though Rational Basis is generally always passed, the Supreme Court said that laws criminalizing homosexual sodomy do not pass Rational Basis. They reflect prejudice or animus, and states do not have a legitimate government interest in such matters.
113
What are "suspect classifications," and what level of scrutiny do they trigger?
In addition to having a suspect class, what else is required to show a violation of Equal Protection rights?
Suspect classifications trigger strict scrutiny. These are classifications based on RACE, ETHNICITY, or NATIONAL ORIGIN. Laws that disadvantage minorities will be struck down.
In addition to having a suspect class, a law is ONLY a racial classification if the plaintiffs show that the law has a DISCRIMINATORY PURPOSE. It is not enough to simply show a disproportionate impact.
114
How can one bringing an Equal Protection claim prove "discriminatory purpose?"
May be shown to be explicit on the face of a statute, or may be proved by a history of discriminatory application of the statute. Also, extrinsic evidence about the purposes of those who passed the law may be used to show discriminatory purpose.
115
What is "affirmative action?" Is this constitutional?
A racial classification used in an effort to benefit a racial or ethnic minority. This triggers strict scrutiny and requires a compelling government interest. Some affirmative action plans are constitutional and upheld.
Affirmative action is valid when it specifically corrects past discrimination by the specific department or agency now engaged in affirmative action. General societal discrimination does not justify affirmative action. Affirmative action is used in the context of preferential admissions to colleges and universities.
116
Can Universities use race as a factor in the admissions process?
Yes if NECESSARY to achieve a DIVERSE student body AND diversity is ESSENTIAL TO EDUCATION. Must be strong showing that racial preferences are in fact necessary to achieving a diverse class.
Racial preferences must be "holistic" and flexible (can be built into evaluation if every student is evaluated individually in a holistic way).
117
T/F - Preferential admissions are allowed for secondary schools.
False. Though schools may be located in attendance zones created to maximize diversity.
118
What is "alienage," and where is it protected under the Constitution? Is it a suspect class? What level of scrutiny does it trigger? Are there exceptions to the level of scrutiny?
Alienage is the requirement of U.S. citizenship. Issues involving this fall under the Equal Protection Clause of the U.S. Constitution.
Classifications based upon U.S. citizenship are generally suspect classifications that require a compelling interest (strict scrutiny). However, there are TWO EXCEPTIONS to strict scrutiny and alienage:
1) Federal Government - Congress has plenary power over citizenship and naturalization. Federal classifications based on U.S. citizenship do NOT trigger strict scrutiny. Federal classifications of based on alienage are VALID UNLESS ARBITRARY and UNREASONABLE.
2) State and Local Participation in Government Functions - Non-U.S. citizens CAN be barred from jobs that have a particular relevance to the role of government. Further, States and Localities can require U.S. citizenship for participation in governmental functions (voting, jury duty, law enforcement (including probation and parole officers), or as a public school teacher.
119
T/F - States and localities can require U.S. citizenship for access to private employment or for government benefits.
False.
120
Do illegal aliens have any Constitutional rights? Are they a suspect class?
Undocumented aliens are not a suspect class. However, states cannot deny their CHILDREN public education.
121
Are Gender and Legitimacy classifications "suspect classes?" If not, then what are they? What level of scrutiny do they trigger?
These are "Quasi-Suspect Classifications" that trigger intermediate scrutiny. If the law creating this classification is substantially related to an important government interest, then it is constitutional.
Gender classifications are almost always invalid. However there are some exceptions (statutory rape can be gender specific, and the draft can be gender specific).
Legitimacy classifications are also almost always invalid, especially if punitive in nature (we don't want to punish children for their parents' actions).
122
Are "age" and "wealth" classifications suspect classifications? What is the scrutiny for such classifications.
No. These are "non-suspect" classifications that trigger rational basis.
NOTE: Age discrimination is protected by the ADEA, but it is not going to ever be a suspect class under the Equal Protection Clause. However, the Bar Exam is about the CONSTITUTION. Don't get tricked by an answer saying the defendant violated a federal statute!
NOTE: Though wealth is not a suspect class, the government has to waive fees for indigents when charging fees would deny a fundamental right (ex: divorce, appeal of conviction, termination of parental rights).
123
T/F - When electing representatives by district, districts are required to be of approximately equal size with approximately the same number of voters in each.
True.
This includes: U.S. House of Representatives; both houses of the state legislature; and local governments when they elect by district.
EXCEPTION: Special purpose governments - A highly specialized government (ex: distribution of water rights) can have a franchise based on that special purpose (ex: more weighted vote based on acreage held or water entitlements.)
124
What is "Gerrymandering?" Is there more than one type? Is it constitutional?
Gerrymandering is the drawing of district lines to affect the way an election comes out based on districts. There are two types:
1) Racial Gerrymandering - Drawing districts to scatter minorities so that they are not crucial in any one district. UNCONSTITUTIONAL IF DONE WITH A DISCRIMINATORY PURPOSE. Rule - Race may be a factor in drawing district lines, but not the predominant or only factor. Evidence of this might be a "bizarrely shaped district."
2) Political Gerrymandering - Can, in theory violate Equal Protection. However, in practice, it is never struck down. The Supreme Court has not found any judicially manageable standards for implementing that guarantee.
125
What was the Bar Exam tip you are supposed to remember about the Privileges and Immunities Clauses.
The P&I Clause in Article IV can be a good answer in the right situation. However, the P&I Clause of National Citizenship under the 14th Amendment is NEVER a strong answer to something that is unconstitutional on the Bar Exam.
126
Can the Government just take your land? If so, how and why? What happens to the property owner?
Yes. The government has the power of eminent domain. Private property can be taken for any PUBLIC USE. This is called a "taking."
"Public Use" basically means anything the government wants to do with the property. It need only be RATIONALLY RELATED to a CONCEIVABLE PUBLIC PURPOSE.
Private property shall not be taken for public use without JUST COMPENSATION.
"Just Compensation" means Fair Market Value at the TIME OF THE TAKING.
127
When has a "taking" occurred?
Physical possession of private property (partially or wholly) by the government is always a taking as to that land. Thus, just compensation is required.
Merely regulating private property is NOT a taking, and just compensation is not generally required even if the value of the property is reduced.
HOWEVER, a zoning regulation can be considered a REGULATORY TAKING when it leaves NO ECONOMICALLY VIABLE USE for the property (extremely rare).
Regulatory Taking Example - After lots are purchased, zoning law prohibits any permanent structure from being built on the property and there is no economically viable use left to the land owner.
128
Is Zoning considered to be a taking?
Zoning is not a taking and no compensation is required, so long as the zoning advances a LEGITIMATE interest and does not extinguish a fundamental attribute of ownership.
129
What are Development Permits? Are they constitutional?
Development is often conditioned on "concessions" by the developer, such as building an access road or donating land to a park. Such extractions are valid so long as they can be seen as offsetting the adverse impact of the development.
130
What is a Bill of Attainder? Is it allowed?
A legislative punishment imposed without judicial trial. This is UNCONSTITUTIONAL.
131
What are Ex Post Facto Laws? Are they Constitutional?
Laws that retroactively, either by creating a new crime that applies retroactively to past conduct or by increasing the penalty for past conduct. UNCONSTITUTIONAL.
132
What is the Contract Clause?
This clause bars STATES from legislative impairment of existing contracts, UNLESS there is an overriding need (an emergency / like the great depression).
133
What does the Establishment Clause address? Also, what is the Lemon Test? Is it still used?
Establishment of Religion. Under the Lemon Test, you want to ask three questions:
1) Does the law have a SECULAR purpose (something other than religion)?
2) Does the law have a NEUTRAL PRIMARY EFFECT that neither advances nor inhibits religion?
3) Does the law AVOID EXCESSIVE GOVERNMENTAL ENTANGLEMENT with religion?
This is still used. However, the Lemon Test is exceedingly difficult to apply. It was once interpreted to condemn aid to religious primary and secondary schools, but neutral aid is now allowed (goes to everyone).
134
Is government endorsement of religion allowed? If not, what does it violate?
No! This is a violation of the Establishment Clause. The government cannot endorse one religion over another (including non-religion).
However, some endorsements are upheld ("In God We Trust" on currency).
135
What classifies as a violation of the Establishment Clause? What are some examples?
Governmental, coercive endorsement of religion over other or non-religions. Coercive meaning "one that might override individual choice."
Question to ask is "does the government endorsement of religion prove coercive on an individual's conscience?
Examples are:
1) Officially sponsored school/graduation prayer
2) Bible reading that is inspirational (reading for historical purposes is ok)
3) Display of the Ten Commandments year round (ok if it is for secular purposes (historical)). Cannot inspire religious belief.
4) Cannot display Ten Commandments in a courthouse if the context makes plain that the purpose is to endorse religious belief.
5) Teaching about evolution is ok
6) Legislative prayer is ok for historical practices.
7) Nativity scenes are ok on public property if there is something else there to dilute the religious message (ex: menorah / rudolph).
136
What does "Free Exercise of Religion" mean. What are its limits?
This means that religious BELIEF is absolutely protected. You are entitled to hold any belief.
However, religious CONDUCT is protected qualifiedly. This means the following:
1) Laws regulating religious conduct because of its religious significance are unconstitutional.
2) Neutral regulation of conduct (generally applicable laws) can be enforced despite religious objections. There is no right to accommodation here. Again, NO RIGHT to be exempted from neutral, generally applicable regulations of conduct.
NOTE: States and localities can require a religious accommodation for themselves.
137
What is the ministerial exception? What part of the Constitution is it in? Also, who is a minister?
The 1st Amendment requires a ministerial exception to employment laws. Non-discrimination employment laws cannot be applied to ministers. Basically, the Supreme Court has held that the 1st Amendment precludes claims concerning the employment relation between a religious institution and its ministers.
The federal government CANNOT regulate employment relations between a religious institution and its ministers.
"Minister" is broadly construed. A commissioned minister working as a teacher in a religious school would be a "minister."
138
T/F - A state university that allows student groups to meet on campus must allow student religious groups equal access.
True.
139
What is the freedom of expression? How is it regulated? Does it trigger strict scrutiny?
This is the freedom to express ideas through speech, conduct, etc. CONTENT-BASED regulations trigger strict scrutiny and are usually struck down.
140
Are laws regulating expressive conduct (a.k.a. symbolic speech) constitutional? What is the analysis?
Laws regulating expressive conduct are upheld if:
1) They further an IMPORTANT interest;
2) That interest is UNRELATED to the suppression of expression; AND
3) The BURDEN on the expression is no greater than necessary.
KEY QUESTION: Is the government trying to suppress a message? If so, the interest will only be upheld if the government is trying to pursue an interest unrelated to the suppression of expression.
Example 1 - Laws against flag desecration are unconstitutional because they suppress an expressive type of speech to show disapproval.
Example 2 - Laws against public nudity are constitutional because public order must be kept, which is unrelated to speech.
141
Explain Vagueness and Overbreadth. What do laws that are vague or overbroad violate?
Vagueness - Vague laws are ones that give no clear notice of what is prohibited and thus violate due process.
Overbreadth - Overbroad laws are ones that go too far in regulating speech. These laws burden SUBSTANTIALLY more speech than is necessary to protect a COMPELLING interest and thus violate the 1st Amendment.
These two are normally seen together on the bar exam.
142
T/F - Injunctions against speech are almost impossible to get.
True
143
T/F - Prior restraints on speech are especially disfavored and will be struck down even when other forms of regulation might be upheld.
True
144
What is a public forum? Can speech be regulated in a public forum? If so, to what extent?
A public forum is a place traditionally reserved for speech activities. These places include a street, park, and sidewalk around public buildings (not airports).
ONLY TIME, PLACE, AND MANNER may be regulated in a public forum. There are three requirements that these regulations must comply with:
1) The regulations must be CONTENT NEUTRAL ON ITS FACE and AS APPLIED (also must not allow executive discretion)
2) ALTERNATIVE CHANNELS must be left open. Time, place, and manner must be a guideline for speech, not a flat prohibition of speech
3) Must NARROWLY SERVE A SIGNIFICANT STATE INTEREST. (notice this does not require a "compelling" interest).
145
What classifies as a non-public forum? What are the limitations on government regulation on expression in a non-public forum? What about a limited public forum?
These types of forums include all kinds of government property that is not a public forum (government offices, jails, power plants, military bases, etc.). Here the GOVERNMENT HAS GREAT POWER.
Basically, any REASONABLE REGULATION of speech will be upheld.
Viewpoint discrimination is invalid (based on political parties).
A Limited Public Forum is one that is not a traditional public forum, but that the government chooses to open to all comers (ex: municipal theater that anyone can rent). In such areas only time, place, or manner regulations are allowed. This is a narrow category.
146
T/F - There are some categories of speech that can be regulated because of content. If true, what are they?
True
1) Obscenity - must be "sexy" (erotic / gore and violence are normally not obscene); must be "patently offensive" to the average person. Must be defined by the proper standards for determining what is obscene (cannot be vague or overbroad). Must LACK SERIOUS VALUE determined by the COURT based on a national standard. A lesser legal standard applies to minors, but speech cannot be banned simply because it would be inappropriate for minors. Child pornography is always prohibited (even in the privacy of your own home).
2) Incitement
3) Sometimes "fighting words."
4) Defamation
5) Sometimes Commercial Speech
6) Governmental Speech
147
Freedom of Expression - Incitement and Fighting Words. Protected or not protected?
2) Incitement - Speech is NOT PROTECTED if it is an INCITEMENT TO IMMEDIATE VIOLENCE.
3) Fighting Words - These are words likely to provoke an immediate breach of the peace. Must be AIMED/TARGETED AT SOMEONE. General vulgarity is not enough. On the BAR EXAM, statutes on fightning words are normally unconstitutionally vague and/or overbroad (laws against "hate speech."
148
Freedom of Expression: Defamation. Protected or not protected? What is the required mens rea for the defamation of public figures, public officials, and private citizens?
False statements of fact (not opinion) damagingto a person's reputation can be prohibited (thus NOT PROTECTED).
Public Officials and Public Figures can recover for defamation only on proof of knowing or reckless falsity.
Private plaintiffs can recover on proof of negligent falsity.
149
Freedom of Expression: Commercial Speech. Protected or not protected? What is the test?
Most regulations of commercial speech are struck down. So long as the advertising is TRUTHFUL and INFORMATIONAL, it must be allowed.
Test: Regulation of commercial speech must directly advance a SUBSTANTIAL government interest and be NARROWLY TAILORED to that interest.
MISLEADING COMMERCIAL SPEECH MAY BE PROHIBITED (unlike political speech).
150
Freedom of Expression: Government Speech. Is it protected?
The 1st Amendment restrictions basically don't apply to the government as a speaker. The government as a speaker is free to express a point of view. When the government is controlling the message, it is entitled to say what it wants.
151
Freedom of Expression: What are Corporations' rights?
Corporations have the same 1st Amendment right to speak as individuals.
152
T/F - The Media has special privileges when it comes to free speech.
False. The press/media have no special privileges (same rights as everyone else).
The only special case is broadcasters because of early limits on the broadcast spectrum when the government had greater regulatory authority over broadcasters.
153
What is the Freedom of Association?
You cannot be punished because of political associations.
Loyalty Oaths - Public employees can be required to take a loyalty oath to the Constitution, but most loyalty oaths are struck down as VAGUE and/or OVERBROAD.
Bar Membership: States can investigate good character, but they CANNOT DENY ADMISSION BASED ON POLITICAL AFFILIATIONS.
154
T/F - States are allowed to require open primaries.
False
155
What is the general rule with regard to regulating the speech of government employees? Is there an exception?
Government employees cannot be hired or fired based on political party, political philosophy, or any act of expression (unless they are disrupting the workplace or not doing their jobs).
EXCEPTION - The general rule does not apply to confidential advisors or policy-making employees (ex: the President's cabinet officers).
156
Is the government allowed to regulate campaign finances? Is the use of money to support a political campaign political speech? If so, to what extent?
The use of money to support a political campaign is political speech, and the regulation of that money raises First Amendment issues.
CONTRIBUTIONS to political candidates CAN BE REGULATED provided that the limits are not unreasonably low. The rationale is to prevent corruption.
DIRECT EXPENDITURES in support of a candidate, a campaign, or a political issue CANNOT BE REGULATED. Applies to those made by corporations as well.
157
Campaign Finance Regulations: What are coordinated expenditures? Are they allowed?
Unlike direct expenditures, coordinated expenditures that are DISGUISED CONTRIBUTIONS that CAN BE REGULATED the same as contributions can be regulated.
158
T/F - The Supreme Court has consistently rejected equalization of campaign resources as a valid rationale for restricting campaign expenditures.
True
159
Explain regulations on commercial speech.
A restriction on commercial speech is subject to a form of intermediate judicial scrutiny, requiring the government to show that the restriction directly advances an important or substantial government interest and that the restriction is not substantially more extensive than necessary to protect that interest.
160
T/F - The Thirteenth Amendment eliminated racial discrimination in both public and private conduct. This is the only Amendment that authorizes Congress to regulate purely private conduct, including racial discrimination by private housing sellers, private schools, and private employers.
True
