CONSTITUTIONAL LAW

Question 1

State Sovereign Immunity (11th Amendment)–In General

Answer 1

The Eleventh Amendment prohibits a party from suing a state or a state agency in federal court UNLESS:

(a) the state explicitly consents to waive its Eleventh Amendment protections;
(b) the suit pertains to federal laws adopted under Section 5 of the Fourteenth Amendment;
(c) the suit seeks only injunctive relief against a state official for conduct that violates the Constitution or federal law; OR
(d) the suit seeks money damages from a state official.

Question 2

State Sovereign Immunity (11th Amendment)–Situations the 11th Amendment doesn’t Apply To

Answer 2

The Eleventh Amendment DOES NOT apply to:

(a) local governments (counties, cities, towns);
(b) federal suits brought by one state against another state; and
(c) a suit by the federal government against a state.

Question 3

State Sovereign Immunity (11th Amendment)–Congress Abrogating State Sovereign Immunity

Answer 3

The Supreme Court has held that Congress CANNOT abrogate state sovereign immunity EXCEPT for federal laws adopted under Section 5 of the Fourteenth Amendment. To determine whether Congress validly abrogated State immunity, two issues must be resolved:

(1) whether Congress unequivocally expressed its intent to abrogate the immunity; AND
(2) if it did, whether Congress acted pursuant to a valid grant of constitutional authority.

Question 4

Standing

Answer 4

Article III of the Constitution limits federal courts to deciding actual cases or controversies. As such, a plaintiff MUST have standing to sue in federal court.

Standing exists when the plaintiff: (1) personally suffered an injury in fact (the plaintiff has been injured or injury is imminent); (2) the injury was caused by the defendant (a reasonable connection is sufficient); AND (3) the injury is redressable by a court order.

Question 5

Standing–Injunctive Relief

Answer 5

When a plaintiff is seeking injunctive or declaratory relief, he must show that there is a concrete, imminent threat of future injury that is neither conjectural nor speculative.

Question 6

Substantive Due Process

Answer 6

Substantive Due Process pertains to the government’s power to regulate certain activities under the Due Process Clause of the 14th Amendment (applicable to the states) and the 5th Amendment (applicable to the federal government).

Question 7

Substantive Due Process–Fundamental Rights Test

Answer 7

Fundamental Rights Test: When the government attempts to regulate fundamental rights, it must satisfy strict scrutiny (the government must show that the law is necessary to serve a compelling government interest).

Question 8

Substantive Due Process–NON-Fundamental Rights Test

Answer 8

Non-Fundamental Rights Test: The government may regulate activities that DO NOT constitute fundamental rights so long as it meets the rational basis test (plaintiff must show that the law is not rationally related to a legitimate government interest).

Question 9

Procedural Due Process–In General

Answer 9

The Due Process Clause of the 14th Amendment (applicable to the States) and the 5th Amendment (applicable to the federal government) guarantees that no person shall be denied life, liberty, or property without due process of law. Thus, certain procedures are required when the government deprives an individual of such rights.

Question 10

Procedural Due Process–Determining What Procedures are Required

Answer 10

In analyzing a procedural due process claim, the court first determines whether a person’s life, liberty, or property has been taken from her. Then, the court determines what process, if any, was due before or after depriving such right.

To determine what procedures are required, the court will balance the three Matthews v. Eldridge factors:

(1) the importance of the private interests being affected;
(2) the risk of error under current procedures and the value of additional procedures; AND
(3) the importance of state interests and the burdens on the government that would arise from the additional safeguards. Normally, procedural due process requires notice and a hearing.

Question 11

Procedural Due Process–“deprivation of liberty”

Answer 11

Deprivation of liberty occurs when the government deprives an individual of a freedom provided by the Constitution or statute.

Question 12

Procedural Due Process–“deprivation of property”

Answer 12

Deprivation of property occurs when an individual has an entitlement that is not fulfilled (i.e. welfare or social security benefits).

Question 13

Equal Protection–In General

Answer 13

The Equal Protection Clause of the 14th Amendment (applicable to the States) and the 5th Amendment (applicable to the federal government) prohibits the government from denying citizens equal protection of the laws.

To determine if a discriminatory classification against a group of people exists, one of the following must be shown:

(a) the law is discriminatory on its face;
(b) the law is facially neutral, but is applied in a discriminatory manner; OR
(c) a discriminatory motive, when the law is facially neutral but creates a disparate impact.

Question 14

Equal Protection Analysis–Levels of Scrutiny

Answer 14

When the government makes laws that classify people into groups, the constitutionality of the law will be considered using one of three different levels of scrutiny: (a) Rational Basis; (b) Intermediate Scrutiny; OR (c) Strict Scrutiny.

Question 15

Equal Protection Analysis–Applying Strict Scrutiny

Answer 15

The court will apply strict scrutiny when: (a) a classification is based on a suspect class (race, national origin, or alienage in some instances); OR (b) when the law infringes on a fundamental right for a class of people (i.e. right to vote, exercise of religion, have access to the courts, and interstate travel).

Under strict scrutiny, the government must show that the classification is necessary to serve a compelling government interest.

Question 16

Equal Protection Analysis–Applying Intermediate Scrutiny

Answer 16

When a classification is based on a quasi-suspect class (gender, non-marital children), the court will apply intermediate scrutiny.

o Under intermediate scrutiny, the government must show that the classification is substantially related to an important government interest (the interest MUST be the government’s actual interest in passing the law).

Question 17

Equal Protection Analysis–Rational Basis

Answer 17

For all other classes (age, disability, wealth, undocumented aliens), the court will apply the rational basis test.

o Under rational basis, the plaintiff must show that the classification is NOT rationally related to any legitimate government interest (any conceivable interest is sufficient, even if it is not the government’s actual interest in passing the law).

Question 18

Takings (5th Amendment)–In General

Answer 18

Under the Takings Clause of the 5th Amendment, the government may take private property for public use if it provides just compensation. A taking is deemed for public use as long as there is a reasonable belief that it will benefit the public. Just compensation is measured by the fair market value of the property AT THE TIME OF the taking (relocation/moving costs are not included).

Question 19

Takings (5th Amendment)–Two Types of Takings

Answer 19

1. Possessory (Per se); and

2. Regulatory

Question 20

Takings (5th Amendment)–Possessory (Per se) Takings

Answer 20

Possessory (per se) takings occur when the government physically occupies the property, even if it is just a small portion of the property.

Question 21

Takings (5th Amendment)–Regulatory Takings

Answer 21

The government can take private property for purposes of the Takings Clause not only by physical seizure or invasion, but also by passing laws that affect property rights in certain ways. However, not every regulation that affects property is a taking. The government may pass laws that substantially advance or have a close nexus to a legitimate government interest, even if the laws affect the use or ownership of property. Nonetheless, a regulation will be treated as a taking if it (1) denies the owner all economically beneficial or productive use of land or (2) restricts the use of the property in a way that does not destroy its value but constitutes a taking under the totality of the circumstances. This second category of regulation is evaluated based on a balancing test that considers:

• the regulation’s effect on the property’s value;
• the owner’s reasonable, investment-backed expectations regarding use of the
property; and
• the character of the government action.

Question 22

First Amendment – Protections Provided

Answer 22

The First Amendment of the U.S. Constitution protects the following rights:

(1) freedom of speech and expressive activities that constitute speech;
(2) freedom to exercise religion;
(3) freedom of the press;
(4) freedom to peaceably assemble; and
(5) the right to petition the government for a redress of grievances.

In addition, the First Amendment provides that Congress shall make no law concerning the establishment of religion.

Question 23

Establishment Clause–In General

Answer 23

The Establishment Clause prohibits the government from establishing a religion or endorsing/supporting religion.

Laws that discriminate against a religion MUST satisfy strict scrutiny (the government must show that the law is narrowly tailored to achieve a compelling government interest, and that the least restrictive means was used).

Under the Lemon test, a law that has some relationship to religion but that DOES NOT discriminate against religion will be upheld if: (1) it has a secular purpose; (2) its primary effect does not advance or inhibit religion (incidental effects are allowed); AND (3) it does not excessively entangle the government with religion.

Question 24

Freedom of Religion: Free Exercise Clause

Answer 24

The Free Exercise Clause prohibits the government from interfering with the exercise of religion.

Laws designed to interfere with religion must meet strict scrutiny (the government must show that the law is narrowly tailored to achieve a compelling government interest, and that the least restrictive means was used). Religious beliefs are protected if they are genuine, sincere, and hold a place in one’s life similar to a traditional religion.

HOWEVER, laws of general applicability that cause unintentional burdens on religion ARE CONSTITUTIONAL and do not offend the Free Exercise Clause (i.e. prohibiting illegal drug use or human/animal sacrifice).

Question 25

Freedom of Speech: Content-Based

Answer 25

Government regulations regarding the content of protected speech (subject matter or viewpoint) must satisfy strict scrutiny.

Under strict scrutiny, the government must show:
(1) that the regulation is narrowly tailored to achieve
a compelling government interest; AND (2) it used the least restrictive means to accomplish its purpose.

Question 26

Freedom of Speech: Content-Neutral Restrictions

Answer 26

Content-Neutral Restrictions: Generally, the government MAY regulate the time, place, and manner of content- neutral speech if the regulation satisfies intermediate scrutiny.

Under intermediate scrutiny, the government must show that the regulation: (1) is narrowly tailored to achieve a significant government interest; AND (2) leaves open alternative channels of communication. The regulation DOES NOT need to be the least restrictive means.