constitutional law

Question 1

Standing

Answer 1

In order for a plaintiff to assert their rights under the constitution, he has to prove standing and there is government action,

Standing is satisfied if plaintiff shows

(1) He had suffered injury caused by governmental action and favorable court decision will remedy the injury(redressability)

Cf The candidate will not suffer an injury until … Here, A would suffer great economic injury if forced to comply with this statute and this injury would be as a direct result of the regulation. The injury caused by such a regulation can be redressed if this statute is repealed. Cf Thus a has standing to bring suit AAO is harmed as it cannnot post its flyers in English only the city requirement directly causes its injury and a court decision in favor of AAO would remedy it

Question 2

Constitutional clause Article 1 to 7

Answer 2

Article 1 All legislative powers herein granted shall be vested in a Congress

Article 2 the executive power shall be vested in the president

Article 3 The judicial power of the US shall be vested in one supreme court and in such inferior courts as the congress ordain and establish

Article 4 1 Full faith and Credit shall be given in each state 2 the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states

Article 5 kaisei

Article 6 Supremacy Clause Article 7 Ratification

Question 3

the third party standing

Answer 3

Third party standing generally there is no third party standing. However, a third party can bring a case on behalf of a plaintiff including

1 where the plaintiff and the third party have a close relationship like a doctor patient

2 where the plaintiff is unable to assert their own rights

3 organizational standing

Question 4

Organizational standing

Answer 4

Organizational standing an organization may sue for its members if

1 the individual members would have standing to sue

2 the interest are related to the organization’s purpose

3 neither the claim nor relief requires participation of individual members.

Question 5

moot

Answer 5

If events after the filing of a lawsuit end the p’s injury

the case must be dismissed as moot

however, there are some exception

1) D voluntarily ceases to take certain action but can resume the action afterward at anytime
2) there is reasonable expectation that the same complaining party will be subjected to the same action and would again be unable to resolve the issue because of the short duration of the action

Question 6

ripeness

Answer 6

A court may only hear a case in controversy

Question 7

Political question

Answer 7

Political question Here, the Constitution vest the power to conduct (foreign relations)to the President therefore

Question 8

government action exceptin ###### doctrine ###### doctrine

Answer 8

In order to bring suit action based on Constitutional grounds, there must be government action. Government action is action by federal,state, or local government that government involvement is sufficient to constitute state action. #Here, State X legislature passed the law requiring’’’ public function doctrine state involvement doctrine

Question 9

public function doctrine

Answer 9

public function doctrine if a private individual is entrusted by the state to perform function that a governmental in nature the private individual become an agent of the state an his act constitute state action Cf primary election operation of park ,prison #shopping center

Question 10

state invonvement doctrine

Answer 10

The state may become responsible for the private party’s action because of it is heavily involved in his activities. 1 commandment, 2encouragement 3 symbiosis ( restaurant located in the complex city owns and runs) 4 entanglement or entwinement (preemptory challenge to exclude jurors on racial ground, private association of public high school) # government involvement with private conduct is so limited that no state action will be found

Question 11

what is the constitutional issue related to the regulation of religious activity

Answer 11

Free speech clause Free exercise clause Establishment Clause

Question 12

The free speech clauses

the speech of a public employee?

Answer 12

The first amendent of the US constitution is aplicable to the states through 14 th amendment , protects individuals free speech, freedom of religion and freedome of association

generaly, the speech of a public employee made in the course of their employment can be regulated by the government, however Employee’s speech outside the scope of their work and regarding public issues is protected.

Question 13

Prior restraint

Answer 13

P can also argue that the # is an prior restraint on speech.(pretty

A prior restraint is any governmental action that would prevent a communication from reaching the public.

Prior restraints are generally presumed unconstitutional except

when that the restriction is narrowly tailored to achieve a compelling government interest and

certain procedural safeguards are provided to speaker

Question 14

Vagueness

Answer 14

A law is unconstitutional on its face if a reasonable person could not tell what speech is prohibited.

Thus P likely succeed in challenging the policy on vagueness ground

Question 15

Overbroad

Answer 15

A law is unconstitutional on its face if it prohibits protected speech

Question 16

content based regulation

Answer 16

The regulation based on subject matter or viewpoint of speech

must meet strict scrutiny that requires government to prove that the regulation is necessary to achieve a compelling government purpose. #it is content based as the restriction is based on the subject matter or viewpoint of the speech

the means are not necessary because the state could have achieved the purpose in a less infringing way.

Question 17

Content-Neutral(T )regulation

Answer 17

Content-Neutral(Time place and manner )regulation Regulation by controlling the time, place and manner of the speech (not subject matter or viewpoint)) are put under less srutiny because they are not limiting what the people can say but rather how and where they can say it

Question 18

Content-Neutral(Time place and manner )regulation in public form or limited public forum

Answer 18

Content–neutral regulation of speech in public forum or limited that requires government to prove that

1 narrowly tailored to significant government interest,

2 leave open alternative channels of communication.

narrowly tailored doesn’t need to the least restrictive alternative but must be a reasonable fit between the purpose and the means

Question 19

2 Content-neutral regulation of speech in non public forum

Answer 19

2 Content-neutral regulation of speech in non public forum is valid if it is reasonably related to legitimate government purpose. traditional public forum —-street park sidewalks

Question 20

commercial speech TANSU

Answer 20

commercial speech TANSU

if it is truthful

will be valid

if it pass intermediate scrutiny that requires the government to prove directly

advances that interest and is

narrowly tailored to serve

substantial government interest

If it is false, the regulation is valid so long as neither overbroad nor unconstitutionaly vague.

Question 21

If expression falls in a unprotected category of speech?

Answer 21

Governement will be able to impose content based restrictions on it as long as the regulation is not overbroad or vague .

Question 22

Obscenity

Answer 22

Obscenity is defined as a sdescription or depiction of sexual conduct that an average person would find appeals to ther prurient interest in sex 2) portryas sex in a offensive way and does not have any serious literary artistic political or scientific value(LAPS) Prurient is material having a tendency to excite lutful thought(only provoke secsual desires)

Question 23

defamation

Answer 23

(3)defamation, public official required to show actual malice; statement was made with knowledge that it was false or with reckless disregard private figure negligence by defendant the public figure cannot recover for his intentional infliction of emotional distress unless

Question 24

(5)fighting word;

Answer 24

word might well provoke a reasonable person to whom they are addressed into physically attacking D #anger is not enough

Question 25

Simbol speech

Answer 25

The conduct intended to communicate a message, and the audiences was likely to understand the communication is protected as speech. If the goal of the law is unrelated to the suppression of free expression, and the goernment has a substantial intrest at stake.

Question 26

Hate speech

Answer 26

Hate speech protected and the statute will be strictly scrutinized # A state could ban all fighting word,but cannot select fighting words based only on certain types of hatred such as race regulation of hate speech A state ban true threats that is word or acts that communicate the speaker’s intent to commit unlawful violence to a particular individual fro

Question 27

Free exercise clause?

Answer 27

Under the 1st Amendment of the Constitution, every person has the right to the free exercise of his or her religion.

the free exercise clause

prohibit the government

from punishing a person or entity on the basis of religion.

This includes denying begnefits.

Any governent action that discriminates against religion or prefers one cect over another , is subject to strict scrutiny meaning the government will have a burdent of showing it is necessary to achieve a compelling interest.

While the regulation is neutral without its intent to discriminate is subject to the reational test

///meaning the P have to show it does not rationally related to achieve the legitimate government purpose

Question 28

Freedom of association

Answer 28

Freedom of association although it is not mentioned explicitly in the constitution it is clearly implied from the rights that are explicitly noted.

The government may not punish a citizen for his group association or require disclosure of group membership to chill association unless it meet strict scrutiny.

Preventing people from getting together to further illegal activities has long been considered a justification for restriction on freedom of association. Here, P join the association with the specific intent to further illegal action.

Question 29

Amendment 2 to 15

Answer 29

AMENDMENTS 1 2 right to keep and bear arms 3 no soldier shall be quartered in any house 4 criminal the 4th amendment protect people against unreasonable searches and seizures by the government without valid warrant unless a warrant exception applies 5 indictment of grand jury, shall not subject to be twice put in jeopardy of life or limb, witness against himself / due process / taking witout just compensation 6 right to a speedy ad public trial by an impartial jury /obtaining witness/ have the assistance of counsel 7 right of trial jury 8 excessive bail, fine 9 10 The powers not delegated to the United state by the constitution nor prohibited by it to the States are reserved to the States respectively or to the people 11 sovereign immunity 12 elector 13 slavery 14 all persons born or naturalized in the united states and subject to the jurisdiction thereof are citizens of the US and of the State wherein they reside No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US nor shall any state deprive any person of life liberty or property without due process of law nor deny to any person within its jurisdiction the equal protection of the laws 15 vote (MBE) federal question do

Question 30

Can the Congress change the cases the Supreme Court hear?

Answer 30

Congress has the feneral power to decide what types of cases the US Supreme Court may hear as long as it doesnot expand or reduce the original jurisdiction established by Article 3 section 3 of the Constitution. the Supreme court shall have appellate jurisdiction under such regulations as the Congress shall make. The statute at issue is …

Question 31

What is the issue where the government promote certain religions group’s activity.

Answer 31

P will argue that the promotion is establishment of religion since,,,, Under the establishment clause, the government is prohibited from the establishment of religion, unless the government shows it passes three facters of the Lemon test 1 has secular purpose 2 the action does not have the effect of inhibiting or advancing religion 3 does not involve further government entanglement in religion Cf while the tax may have secular purpose and the avancment of religion is not its primary effect, the tax is an excessive entanglement with reilgion.therefor

program that requires constant monitoring would be an excessive entanglement and .

Question 32

the 13th amendment

Answer 32

the 13th amendment

Congress has the power under the 13th amendment to prohibit slavery and the badges of servitude

the 13the amendment is directly applied to the states and prohibits states from subjecting any person to involuntary servitude.

here However the state will argue that The court may balance the interests of the state against the burden of the individual to determint ht constitutionality of making A work. The state interest don’t appear too outweigh the interests of A because

Question 33

Equal protection

Answer 33

The equal protection clause of 14th Amendment prohibit the state and local government from treating similarily situated persons differently based on classification among them.

It is applied to federal government through the due process of the 5th amendment 14th never applied to federal officer!!

There are 3 levels of scrutiny to analyze the constitutionality of government act under equal protection.

1) If a suspect classification or fundamental rights are involved The government must prove The mean is the least rescrictive to achieve a compelling objective
2) If quasi suspect classification is involved, Under intermediate scrutiny a law will be uphelded if the government prove that it is substantialy related to an important government purpose.

3)

Question 34

scrutiny to analyse under equal clause

if there is discriminatory intent of the government

Answer 34

If a suspect class is involverd and there is discriminatory intent ,

the court applies strict scrutiny .

Discriminatory intent can be shown when 1)the classification is discriminatory on its face or 2)discriminatory in its application or 3)has a discriminatory motive behind it.

1)facial discrimination is a law that is discriminatory on its face and language.

This type of law makes an explicit distinction between classes of persons.

2) Discriminatory application means that although a law may appear to be neutral on its face it will be applied in a different manner to different classes o persons.
3) A discriminatory motiev exists when action appears neutral on its face and in its application but will have disproportionate on a particular class of person

Question 35

does tha 14th Amendment apply to a private entity? h

Answer 35

he 14th Amendment does not apply to a private entity unless it perform some traditional governmental function or The government has become much envovlved. The grant of money itself is not enough involvement

Question 36

suspect classification

Answer 36

race, alienage race based classification will only be subjective to strict scrutiny if the legislature has intentionally discriminated against one race in favor of the other affirmative action will be strictly scrutinized government interest is compelling only if 1) in redressing past discrimination by government 2) a university’s interest in student body diversity event the purpose is compelling,

Question 37

exception for suspected class

Answer 37

classification based on alienage (non-citizen)

Alienatge is a suspect class however, if the classification relates to participation in self-government and domestic process

only rational basis review (rationally related to a legitimate government interest.) is applied (voting, serving on a jury, police officer,state trooper, public school teacher, juror , deputy probation officer or any other position with a direct effect on the functioning of government)

Question 38

affirmative action

Answer 38

will be strictly scruinized government interest is compelling only if 1) in redressing past discrimination by government 2)a university’s interest in student diversity

Question 39

Fundamental right for equal protection 1 2 3 4

Answer 39

1 right to vote 2 right to be a political candidate 3 access to courts 4 right to travel

Question 40

right to be political candidate

Answer 40

The Supreme court has not recognize right to a political candidate as fundamental right

However laws ragulated these right will be invalidated by the equal protection or 1st Amendment

Question 41

right to vote (equal protection)

Answer 41

2)Fundamental right (for equal protection) right to vote

The 15th Amendment provides that the right to vote shall not be denied by any states on the basis of race or color. LIMITED TO DISCRIMINATION OF THE RIGHT TO VOTE BASED ON RACE OR COLOR\

The 19th Amendment provides that the right to vote shall not be denied by any states on the basis of sex.

the 14th amendment prohibit a state from limiting access to the ballot to members of particular political parties.

different from fundamental right in the substantive due process context(right to related to privacy)

special purpose district willnot be strictly scrutinized as to restriction of vote right.

direct limit on right to vote(not right to a political candidate) violate 15th amendment

Question 42

right to political candidate(equal protection)

Answer 42

right to be a political candidate(ballot access) quasi fundamental except 1)restriction that substantially and unfairly limit the ballot access of minor parties or independent candidate 2)restrictions that are based on wealth access to courts strict scrutiny will be used for the access relates to a criminal cases the access to various family law proceeding right to change her state of residence or employment( so called right to travel) if state imposes a substantial waiting period on newly arrived residents before they can receive some vital government benefit. ——————————————————-

Question 43

gender and nonmartial children classification

Answer 43

If quasi suspect classification is involved,

plaintiff must show a discriminatory purpose behind the regulation in order to trigger intermediate scrutiny(not merely a disriminatory effects)which requires the government to prove that the action

is

substantially related to an important government interest.

Question 44

rational test (equal protection)

Answer 44

there must be rational relation between the classification and legitimate governmental objective statutes that are not based on h1)a suspect classification, 2)donot involve a quasi suspect category 3)donot impair a fundamental right Education (# except complete deprivation of publec education)

Question 45

@ In deciding whether to apply equal protection analysis versus process is whether the law in question create a classification.

Answer 45

It it more likely that political minorities will be less proficient in English so this requirements have been used in the past to disenfranchise minority voters as a class.

Question 46

In what case the right to publice employment protected? on what basis?

Answer 46

Procedeural Due process The Due Process Clause of the 5th 14th Amendment prohibit that the government from taking an individual’s life, liberty,or property without proper procedure. The issue here is whether the things being taken constitutes “property” There is property interest where a contract is in place or there is a practice or understanding that the employee may only be terminated for cause.

Question 47

The Due Process Clause of the 5th 14th Amendment prohibit that…

Under the procedural due process analysis,

1 the first issue is..

2

Answer 47

The Due Process Clause of the 5th 14th Amendment prohibit that the government from taking an individual’s life, liberty,or property without proper procedure. Typically , procedural safeguards include notice, a hearing, and /or the right to have an attorney.

Under the procedural due process analysis,

1 the first issue is whether the plaintiff had a constitutionally protected liberty or property interest.

Deprivation of liberty; if there is the loss of significant freedom provided by the Cons ## don’t forget if there is constitutional issue ,the procedure itself will be the reason for the 14th

Deprivation of property ; if a reasonable expectation to continue receipt of benefit is not fufilled

• Public employment will be a property interest when there is a state statute that creates a public employment contract or there is some clear practice that an emplyee can be terminatesd only for cause.*
• P would need to show that her termination was in relation for her speech*

2 If the plaintiff has a protected interest, then court will balance the following interest

in that the court will balance

1 the interest affected

2 the accuracy increased by the additional procedures,

3 the government interest in administrative efficiency.

balancing test the strength o the plaintiff’s interest in receiving the procedural safeguard

is weighed against the government’s interest in avoiding extra burdens.

Therefore P could successfully challenge the stattute under the procedural due process.

Question 48

property include

Answer 48

property includes not only personal belonging but legitimate claim or entitlement to the benefit

Question 49

Substantive due process requires

Answer 49

Substantive due process requires the government to have adequate reason (substantive basis )for taking life liberty or property.

Generally requires that state laws be reasonably related to legitimate state purpose,

Privacy is a fundamental right protected under substantive due process.

Therefore when government interfere with privacy generally

the strict scrutiny applies .

exceptions

right to abortion which is tested by undue burden test

right to engage in private consensual homosexual activity and right to refuse medical treatment

which the court did not articulate the level of scrutiny

Question 50

Fundamental right

substantive due process problem?

or equal protection problem

the law regulating process might impact what right?

Answer 50

If they are denied to everyone…

it is substantive due process problem

if they are denied to some individuals but not to others,..

it is an equal protection problem,

Ans,

There is no general right to be a candidate that the SC has een willing to recognize as fundamental and reviewed under rationality standard,

Specifically Restriction on the ability of persons to be candidates

must be examined to se if they violate either

the first (right to speech ,association)or 14 th amendment rights.

The stattute ingringes on the right of political association by completely barring and individual from assosiating themselves with a party , this triggers strict scrutiny,and the statute will be struck down unless the government proves that the statute is necessary to achieve a compelling interest.

Question 51

The recognized privacy rights are

Answer 51

The recognized privacy rights are

the right to marry

the right to use birth controlled

the right to live to live together with your family

the right to direct the upbringing and education of your children

Question 52

TAKING CLAUSE

Answer 52

the 5th amendment taking clause prohibits the government from taking a person’s property for public use without just compensation. This restriction is applicable to the states through the 14th amendment.

Question 53

1 taking total taking

partial taking\

balancing test

Answer 53

temporarily land use restrictions is not likely to be taking

TAKING per SE

A total taking is an actual physical occupation by the government (physical taking) or

where the owner has been denied all economical use of the property.

PARTIAL TAKING whether partial taking or regulation under its police power(doe not need to pay) depends on

whether the interference with use is significant enough to constitute a taking.

The courts apply a three factors balancing test

1) government interest
2) the nature of government regulation
3) the degree of interference with the landowner’s investment backed expectation
* #To avoid a taking challenge*
* the court would have been wise to issue a use variance just for the property or an amortization,*
* #the land is still valuable for residential uses. Further, the fact indicate that there are not investment backed expectations.*

Question 54

2 public use (taking)

Answer 54

if the government acted out of reasonable belief that the taking would benefit the public, it is for public use #the property is turned to some private user does not prevent public use

Question 55

3 just compensation

Answer 55

If there is taking, it can compensate the loss to the owner in the fair market value of property

Question 56

zoning

Answer 56

Generally, Local government has the police power to enact zoning ordinances so long as they are reasonably related to a legitimate government purpose,

it is clearly ordinance related to a legitmate government interest in..and would most likely be upheld unless it is taking.

Question 57

an amortization allows

Answer 57

An amortization allows a nonconforming use to persist until ownership of the property changes. To mitigate the impact of sudden zoning change.

Question 58

An variances allows

Answer 58

An variance allows a nonconforming use. The variance is granted, if the owner shows there is undue hardship and variance will not work to detriment toward surrounding property value.

zoo varia nonco undu detriment amotization

variance / not apply the regulation to the specific use

amortization/apply the regulation but permit till finish of amortization(償却）

Question 59

contract clause

Answer 59

CONTRACT CLAUSE(ARTICLE 1 sec.10) 1 public contract if the state is trying to escape from its own financial obligation test; reasonable and necessary to support an important public purpose > 2 private contract government interferes an existing private sector contract test ;mere rationaly test

Question 60

EX POST FACT LAW

Answer 60

prohibit both state and federal government from passing ex post facto law(a law which has retroactive punitive effect)

Question 61

BILLS OF ATTAINDER

Answer 61

A bill of attainder is a law that directs the punishment of a specific person or persons without trial # pure regulation without purpose of punishment

Question 62

distinguish between

10th amendment provides… the federal government has … Under the 10th amendment …

However , Congress may impose …

whether Congress may regulate or not (commerce power)

whether Congress may force the state(10th spending power) to regulate(enact specific laws.)

Answer 62

10th amendment provides

that the powers not delegated to the US by the constitution nore prohibited by it to the state,

are reserved to the states respectively or to the people.

the federal government has only limited enumerated powers that he US constitution gives.

The concept of federalism embedded in the 10th amendment

prevents Congress from requiring states to enact laws.

However , Congress may encourage state to enact certain laws via Congress spending power by imposing reasonable conditions 1)related to the public welfare on the grants of federal funds

2)as long as the state is free to accept or reject the grants.

Question 63

Congress power to enforce the Civil War Amendment.

Congress has power to enact legislation that is …

(federalism/judiciary power)

Answer 63

““congruence and proportionality to the

the 13rd Amendment (which outlaws slavery and badges of slavery,which applies to pro vate individuals )

*eliminating the power of states to enforce slavery within their borders.

the 14th Amendment (whic contains the equal protection and due process clause for states)

15th Amendment(which prohibits state from enacting racially discriminatory voting laws)

Limitation to the congress power

Congress may legislate only ageinst state action(not private action) to enfoece the rights guaranteed by the Amendment

# Congress may ban the use of literacy test in state and national elections even though they are not themselves always unconstitutional.

Question 64

Supreme court review The SC if

Answer 64

The Supreme Court has complete discretion to hear cases that come to it by writ of certio rari. The cases that may be heard by ceriorari include 1) cases frome highest state courts hwere the constitutionality of federal statute, federal treaty or state statute is called into question or a 2)state statute allegedly violate fedeal law and 3)all case from federal courts of appeals.

Even if there is a federal question in the state court case

the supreme court may not review the case if there is an independent and adequate state ground for the state court decision.

If a state court decision is not based on federal law(independent)

and the supreme court’s reversal of the federal law ground will not change the result in the case.(its opinion would in effect be an advisory one)(the ground is adequate)

if state court doesn’t judge the federal constitution (constitutionality) including if the state court interprete the state version of the clause is broader than that of federal version (it won’t effect on the interpretation of the federal constitution.

Question 65

Article 10 of the US constitution provides…

Answer 65

Article 6 of the US constitution , provides that

the State Laws that contradict Federal laws are void

1 if a state law is inconsistent with a valid federal law covering the same subject matter the state law is invalid.

2 if the states’ prohibition or allows thwart the federal intent the state action is invalid.

3 if the federal rule is intended to replace(preempt ) state common law, the state law is invalid.

Question 66

4th amendment make the bill of rights (first ten amendments) applicable to the states. except

Answer 66

the 5th amendment right not to be subject to a criminal trial without a grand jury indictment the 7th amendment’s right to a jury trial in civil cases the 8th amendment right against excessive fines

Question 67

Congress lawmaiking powers

For congress to act , there always muste be

Answer 67

The Necessary and proper clause gives Congres power to make all laws necessary and proper unless it is expressly prohibited by another provision of the Constitution and so long as the means is rationally related to constitutionally specified objective.

For congress to act , there always muste be

bicameralism(passage by both the House an the Senate) and presentment(giving the bill to the President to signe or veto)

Question 68

May Congress regulate for General welfare?

Answer 68

No

Under Article 1 Section8,

Congress has the power to spend for the general walfare

Congress has the power to lay and collect taxes for the general welfare

although it may not regulate for the general welfare.

Hoever, Congress may attach conditions on the receipt of federal funds.

under the Necessary and Proper Clause Congress has the power to make all laws necessary and proper

so long as the means is constitutional.

Question 69

Congress the taxing and spending power..

Answer 69

Congress has the power to lay and collect taxes provided for common defense and general welfare.

Even though the 50 %tax high , the means is constitutional so long as it is rationaly related to object.

no relation needed between activity taxed and how funds are spent

they must be uniform throughaout the US

Question 70

Under nacessary and proper clause, congress

Answer 70

Congress has power to make all laws necessary and proper for carrying into execution any power granted to any branch of the federal government,

Question 71

Article 1 section 8 Congress to regulate commece with

Answer 71

Article 1 section 8 Congress to regulate commece with

foreign nation and

among the several states

and with the Indian tribes.

A federal law must regulate under one of 4 categories,

1) channel of interstate commerce

2)instrumentalitiesa of interstate commerce and

persons anda things in interstate connerce,

3) articles moving in interstate bommerce
4) activities that when aggreagated that have a substantial effect on interstate commerce

Question 72

Congress power to regulate interstate commerce

how does it works as limit on each states lawmaking power?

Answer 72

Under the Commerce Clause in the US constitution,

Congress has the authority to regulate interstate commerce. It include

the channel of interstatecommerce(road,railways,waterways)

the instrumentalities of interstate commerce(trucks, boat, airplans, the internet)

and economic activities that when aggregated have a substantial effect on interstate commerce.

That power also creates a limitation on each state’s ability to pass laws that affect interstate commerce, which is called the Dormant Commerce Clause.

Question 73

Dormant Commerce clause

Does the state X’s act providing State X citizens priority choise is a violation of the Dormant Commerce Clause?

Answer 73

(1-8-3 Congress has power to regulate commerce with foreign nations and among the several states, and with Indian tribes.By negative implication, CC restricts states power to regulate interstate commerce(called Dormant CC))

A state may regulate interstate commerce if federal law does not preempt the state regulation.

And so long as its statutes do not discriminate against out of staters

if the state regulation discriminates on its face against out of staters,

it violates the DCC unless

1) the regulation is necessary to achieve an important state interest and that there is no less discriminatory option, or
2) A state is acting as market participant

If the regulation does not discriminate against out of staters it usually will be upheld so long as

it does not unduly burden interstate commerce,

Unduly Burden Interstate commerce A nondiscriminatory state law may be invalid if the burdens on interstate commerce outweigh the promotion of legitimate state interest. In balancing the state law purpose against the burden on interstate the court consider less restrictive alternative.

dont forget standing and smd Privileges and immunities of article 4 (PIA4) The 14th Amendment privileges or Immunities (14PI)

Question 74

PIA4

term!

Don’t forget equal protection

Answer 74

Privilege and immunities clause of Article 4 State may not discriminate against out ot state citizens with respect to fundamental rights unless there is a substantial justification and no less restrictive means(NIN).

court have found the right to earn a living to be an important commercial interest chgh as licence fee(not hobby such as hunting , golf)

* here there is no exception such as market participant

Don’t forget equal protection

• (short) The equal protection prohibit the state and local government from treating similarily situated persons differently based on classification among them.if the classification is based on race or national origin, then the state must meet strict scrutiny.if the classification based on gender , then intermidiat scrutiny will be usede.Any other classification will only need to meet a rational basis test.*
• Here P will be unagle to argue …*

Question 75

14Por

Answer 75

denying the privileges or immunities of national citizenship .

the privileges or immunities of national citizenship is fundamental right such as right to vote for federal officers ,right to interstate travel, right t opetition Congress for redress of grivances

the restriction will be subject to strict scrutiny

Cf state durational residency requirement

14 th Amendment Privilege s or immunities State may not restrict access to vital government service(cf welfare benegits ) to new comers because such laws would interfere with a citizen’s fundamental right to travel from state to state/

Question 76

May Congress regulate private action ?

Answer 76

Generally no. However the 13 Amendment ,which prohibits slavery and the badges of servitude, would be the sourdce of power for Congress to regulate private action.

congress shall have the power to enforce the 13th amendment, 14th amendment and 15th amendment

by passing the statute that relies on the amendment.

However cannot simply make a crime for one private person to practice ordinary racial discrimination against another.

Question 77

3 out of 5 board members are appointed by the President. Other two were designated by Congress. The bouard has power to issue rules with the force of law. Is this board unconstitutional?

Answer 77

Yes

Under the Article 2-2 the president has power to appoint all ambassadors, other public ministers and cousuls judges of the SC and all other officers of the US, with the advaice and consent of the Senate.

Congress may appoints its own officers to carry on internal legislative tasks, but it not appoint members of a body with administrative or enforcement powers.

*the Congress has power to appoint inferior officers

Question 78

Can the federal law be appplied to state legislators in a way that threatens state sovereignty and autonomy?

Answer 78

No The 10th Amendment provides that all powers not delegated to the federal government by the US Constiution are rsereved to the states. This federalism principles protect state governments from being commandeered by the federal government.

Question 79

Under Article 3

the US SC shall have

Original and exclusive jurisdiction for Supreme Court

Original and jurisdiction for Supreme Court

Applellate jurisdiction

Answer 79

original exclusive jurisdiction of the Supreme court

bases between statas

original jurisdiction of the Supreme court (Article 3 section 2 clause

2) all cases affecting Am mini con st o

ambassadors,

other public ministers and consuls(領事） of foreign countries.

and cases in which a state is a party.

congress cannot add or reduced original jurisdiction

3) shall have appellate jurisdiction , both as to law and fact

with such exceptions, and under such regulations as the congress shall make

Congress may place certain limits on both the SC’s appllate jurisdiction and on the jurisdiction of the lower federal courts.

Congress cannot take and add original jurisdiction.

Question 80

Advisory Opinion

Answer 80

Advisory Opinion

A federal court may not render advisory opinions on the constitutionality of proposed action or legislation, but may grant a declaratory judgment when the challenged action poses a real and immediate danger to a party’s interests.

Cf if the executive power is free not to follow the court judgement the judgement is nothing more than issuing adversary opinion

Question 81

Original jurisdicion of the Supreme Court?

Answer 81

Article 3 section 2 of the US Constitution state the Supreme Court has original jurisdiction over cases invonving foreign ambassadors , public ministers and consuls and those in which a state is a party.

Question 82

appellate jurisdiction of the supreme cout

https://www.law.cornell.edu/constitution/articleiii

Answer 82

the Congress has the general power to decide what types of cases the SC may hear as long as it doesn’t expand the court’s jurisdicttion beyond the federal judicial power as established by article 3,2.

in all case not falling within the SC’s original jurisdiction(but falling within the federal judicial power),

in all other cases before mentioned(i.e. arising under the Constitution, Act of Congress, or treaty)

the supreme court shall have appellate jurisdiction both as to Law and Fact

with such exceptions and under such Regulations as the Congress shall make.

Cf can eliminate diverse jurisdiction but cannot add jurisdiction to those citizens of the same state Under Article 3 of the constitutional federal courts shall have judicial power over all cases and controversies arising under the constitution, laws or treaties of the US The Supreme court has discretion to hear cases that come to it by writ of ceriorari including cases from the highest state courts where the constitutionality of a federal statute federal treaty or state statute is called into question or a state statute allegedly violates federal law.and 2all cases from federal courts of appeals

Question 83

11th amendment (principals of ***) bars any

except

1

2

3

4

5

Answer 83

11th amendment (principals of sovereign immunity) the 11th amendment bars

any federal suit to seek money damages against

any one of the states by citizens.

(distinguish from sovereign immunity that bars suit against states in state courts or federal agencies)

However the state may be suit if

1) state waives its sovereign immunity
2) the law suit is brought pursuant to federal laws adapted under 13th, 14th or 15th Amendment(civil war clause only)
* congress cana override state sovereign immunity by statute using its enforcement powers under 14-5*
3) lawsuit by federal government
4) bankruptcy proceeding
5) suits against local government(county, city) or state officers in their individual capacity

unless the state treasury will be paying

can suit in state court

declaratory judgment is not included # congress may pass the statute that allow suiting States pursuant to its remedial power under the 13 th ,14th or15th amendment (may not such as commerce clause)

Question 84

federal police power

Answer 84

There is no general federal police power, unless it involves (1) legislation for the military, (2) Indian tribes, (3) federal land and territories, or (4) legislation for the District of Columbia.

Question 85

the power vested in the President

1

2

3

exception

Answer 85

Congress can remove any officer and judges by impeachment house must vote by a majority and senate vote by a a two third vote

he entire federal executive power is vested in the president under article 2 section1

1 issue executive orders (will be valid unless it is inconsistent with constitution or statute)

• The president cannot direct people’s action(go outside the executive branch) without congressional authorization*
• @ falls within the president’s plenary executive power for the purpose of*

2 make treaties (only if two thirds of the senate approves)

the President and his subordinates alone has the authority to represent the US in foreign affairs.

3 can appoint or remove all federal officers

congress cannot appoint or remove(except impeachment) federal officers by itself, but can decide who appoint inferior officers.

Question 86

The president commission is constitutional as long as

Answer 86

the President has the power to appoint a temporary presidential commission

as long as

powers given to the commission are either advisory only or are limited to those powers properly exercesed by the executive branch

$ Commissions

The president is given the power to appoint federal executive officers.

the task performed by commissions are primarily executive and its members are officer of US

since enforcement is an executive power, the members must be appointed by the president.

Congress cannnot appoint members of a committee with administrative or enforcement power

the fact that some of the member is appointed by congress void that power,

Question 87

Congress to President

1 veto

2 deligation

Answer 87

1 there always must be bicameralism(passage by both the House and Senate)and presentment (giving the bill to the president to sign or veto)

legislative veto is unconstitutional (since Congress vote to cancel statute deprives the P of veto any newly passed statute)

President can’t be given a line item veto

President can’t make a law for example seizure order

2 constitutional delegation of legislative authority (Don’t forget!)

congress may delegate some of its power to the president or the executive branch

as long as

1) state objectives and
2) specify adequate criteria

**unlikely to be striken out

Cf federal agencies get the right to formulate regulations

Question 88

speech and debate clause applied to state legislators?

Answer 88

No!

Members of congress are given broad immunity by the speech or debate clause

that shield members from

civil or criminal suites relating to their legislative actions

and grand jury investigations relating to those actions.

Question 89

president veto

Answer 89

The president may vetoes the bill entirely.

(Line item veto are always unconstitutional.)

Neverthless, if Congress passed it over his veto by a two thied vote if each house, the bill will be enacted

Question 90

Executive privilege Presidents have

Answer 90

a qualified right to refuse to disclose

confidential information relating to their performance of their duties

Question 91

The full faith and credit clause applied to

Answer 91

only states

prohibits state courts from relitigating cases in which the courts of another state have

rendered final judgment.

Cf enforce the money judgement

the furst states judgment must be honored no matter what

Question 92

Is

Question 93

A public employee has a 1st amendment right?

Answer 93

Yes

A public employee has a 1st Amendment right to speak on a matter of public concern

unless the employer”s action interfere with the functions of the government,

Question 94

Article 1 section8

Article 2-2-1

Article 2 section 2 clause 2

Article 4 section3

Article 6 section 1 clause 2

Answer 94

Article 1 section8

congress has the right to lay and collect taxes to pay the debts and provide for the genral walfare

Article 2 section 2 clause 1

the President shall have the power to grant pardons except in cases of impeachment.

Article 2 section 2 clause 2

the treaty power

article 4 section 3

Congress has the power to make regulations to protect federal property

Article 6 section 1 clause 2 The Supremacy clause

Question 95

Why Congreational veto is unconstitutional?

Article I, Section 7, clause 2

Answer 95

Congressional veto is a statute reserving for Congress the ability to override, by simple majority vote,

legistlative veto on the part of one chamber of the legislature

violate both the principle

of bicameralism embodied in Article I, Section 1 and Section 7,

and the presentment provisions of Clauses 2 and 3 of Section 7 for the opportunity to exercise his veto.

Question 96

The power vested in Congress include

Congress has power to make the laws

Congress has power to lay tax and spend

Congress has power to regulate anything substantially affects intersate commece

commerce is defined as

Congress has the power to declare war

Congress has power to enforce the Civil War Amendments
t

Answer 96

commerce is defind as every species of commercial intercourse

Question 97

public forum

public formum is

limited public formum is

non publicforum

Answer 97

public forum

public formum is public property that has historically been open to speech related activities. (ex. park sidewalk)

limited public forum is public property that has not historically been open but government makes available for speech related activities. (ex. bulletin board)

the space on city buses used for the posting of placards qualifies as a designated public forum because it is public property that thte city has decided to open for an expressive use.

Non public forum

• Ex airport terminal, jails,military bases, the insides of courthouses,and governmental office buildings*
• private property such as shopping center​*

Question 98

tips

Answer 98

what arguments may the OWF reasonably raise in support of its claim? のときは誰もStanding に触れていない

＃2つ目以上の理由は、裁判所がそちらを支持する理由にする

The court will likely side with AA because

＃何も書くことがないときは何かを落としている

Standing など

＃Standing 以外の本当に主要な論点から書く

問に答えるところから始めると間違えない。

定型論点は後からできるだけ短く書く

＃STATEがアクターのときには１１条を必ず検討する

＃Due Process Clauseと聞かれたときはprocedure とsubstantive を必ず両方検討

Prosecural Due Process

Substantive Due Process

Fourteenth Amendment’s Equal Protection Clause

Age based classifiaction

Gender based classification

Answer 99

Economic of tax is non discriminatory because it will be passed on to both instate and out of state purchasers.

Tax

Question 100

5th Amendment

Answer 100

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger;

nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property, without due process of law;

nor shall private property be taken for public use, without just compensation.

Question 101

terms

Answer 101

state or muni cipality

literacy requirement

Question 102

require or prohibit

1th Amendment

5th Amendment

14th Amendment

Answer 102

The first amendent of the US constitution is aplicable to the states through 14 th amendment , protects individuals free speech, freedom of religion and freedome of association

the 5th amendment taking clause prohibits the government from taking a person’s property for public use without just compensation.

14 th Amendment prohibit government from treating

Substantive due process requires the government to have adequate reason (substantive basis )for taking life liberty or property.

Question 103

The state is forbidden from suing the United State without its consent.

Congress can pass legislation that permits the US tobe sued by a state in given situation

Federal officer may be sued only if

the officer acted beyond his statutory power

or the valid power was exercised in an unconstituitilnal manner.

Answer 103

Under the doctrine of soverign immunity and public policy

Question 104

establishment clause

Answer 104

The First Amendment

P will argue that the P is establishment of religion since,,,,

Under the establishment clause, the government is prohibited from the establishment of rprieligion,

unless the government shows it passes three facters of the Lemon test

1 has secular purpose

2 the action does not have the effect of inhibiting or advancing religion

3 does not involve further government entanglement in religion

• . Even if they do not intend to promote religion, the association of the ten commandments with the government action results in that entanglement.In sum*
• it is likely a court would conclude that posting those commandmentas aresulted in an excessive entanglement ,*

Question 105

The first issue is whthere a religion is protected under the Constitution

Answer 105

The court will look at whether the individual has a sincerely held religious belief