Constitutional Law Flashcards
constitutional immunity
While the federal government and its agencies are immune from state taxation and state regulation, states may nevertheless collect a nondiscriminatory tax on persons who deal or contract with the federal government. The Supreme Court has ruled that a state property tax is valid when applies upon a building owned by the United States but used by a contractor.
substantial nexus
In determining the validity of a state tax affecting interstate commerce, courts will consider whether there is a substantial nexus between the activity taxed and the taxing state. Here, however, the facts do not indicate the taxes discriminate against or unduly burden interstate commerce. The manufacturer is based in New York and is working out of a building in New York. Because the manufacturer’s case is purely intrastate, this answer is not the best choice.
Tenth Amendment
The Tenth Amendment provides that powers not granted to the federal government by the Constitution, nor prohibited to the states, are reserved to the states or the people. Here, the facts do not indicate that Congress enacted the legislation with the intention of preempting state law. The states’ power to regulate was not restricted by some federal exclusivity in the subject matter. Therefore, the New Jersey regulation is a valid exercise of general police power pursuant to the Tenth Amendment’s principle of federalism.
If a state law discriminates on its face between in-state and out-of-state economic actors, the state must show that:
(1) the regulation serves a compelling state interest; and (2) the regulation is narrowly tailored to serve that interest.
If a state law merely incidentally burdens interstate commerce, the state must show that:
(1) the regulation serves an important state interest; and (2) the burden on interstate commerce is not excessive in relation to the interest served.
The doctrine of sovereign immunity.
Sovereign immunity precludes suits against the sovereign (here, the state) without its consent. However, state officials can be sued to enjoin them from enforcing unconstitutional statutes.
impairment of the obligations of public contracts by the state may be justified by …
a showing of necessity.
The Contract Clause provides that…
…no state shall pass a law impairing the obligation of contracts.
However, a state may impair the contractual rights of parties to public contracts if the state meets a high burden of proof.
When an important state interest is at stake and no less restrictive means exist to advance that interest, the state may exercise its police power in a manner that impairs contract rights if the state can show:
the impairment is necessary to serve an important and legitimate public interest, and
the regulation is a reasonable and narrowly tailored means of promoting that interest.
Where states act as market participants, meaning the states themselves are actually participating in the markets that they are regulating …
…then states do have the ability to discriminate between in-state and out-of-state actors.
i.e. Because the state owns the art college, it may charge more to out-of-state applicants without running afoul of the dormant Commerce Clause restrictions.
the field of international relations is under the power of …
….federal government
The legislative and executive branches have constitutionally mandated powers over foreign affairs.
Article I, Section 8 of the Constitution gives Congress the authority to declare war, raise and support armies, and maintain a navy. Congress is also empowered to give advice and consent to the president concerning treaties made by him with foreign nations; the Senate must approve all treaties by a two-thirds vote.
Under the president’s Article II powers, the executive branch is authorized to make treaties and to appoint and receive foreign ambassadors.
privileges and immunities rights under the Fourteenth Amendment
The Fourteenth Amendment prohibits the states from making or enforcing “any law which shall abridge the privileges or immunities of citizens of the United States.”
The clause’s scope is limited to the rights of federal citizenship, including the right to petition Congress, the right to vote in federal elections, and the right to interstate travel.
The clause does not extend to the right to employment.
The clause protects only citizens.
property right in public employment under the Fourteenth Amendment
The Fourteenth Amendment Due Process Clause protects only existing interests in public employment, not future rights.
A person has a protected property interest in public employment if the person is an employee who may only be terminated for cause.
An at-will public employee has no protected property interest in public employment.
If an employee has a protected property interest in continued public employment, the employee is entitled to procedural due process protections under the Fourteenth Amendment.
Supremacy Clause…
…prohibits a state from regulating the federal government or its agencies, except where the federal government consents to the state regulation or the state regulation is not inconsistent with existing federal policy.
Under federal property power of Article IV, Section 3…
…Congress can “dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”
While the Due Process Clause of the Fourteenth Amendment incorporated several of the provisions of the bill of rights and made them applicable to the states, there were some rights that remain unincorporated and not applicable to the states. Among these unincorporated rights is …
…the Seventh Amendment right to a jury trial in civil cases.
Therefore, a state is not obligated to provide a trial by jury in a civil case.
The Equal Protection Clause only applies to…
…actions of the federal government and the states. T
he company, a private citizen, cannot violate the Equal Protection Clause, even though the company sells most of its products to the federal government.
state action can be found in the actions of private actors
The Fourteenth Amendment provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. Generally, such constitutional rights can only be violated by government action. However, state action can be found in the actions of private actors where the government and private entity are so closely related that the action by the private party fairly can be treated as action by the government.
Here, the bookstore was interrelated to the government purpose of serving as a resource to the unemployed and attracting people to the Department’s Columbia office. Based on this interplay, the court may find the bookstore’s exclusion of the jobseeker was a violation, even though no government agency was directly discriminating.
Assistance to religion or religious groups in the form of tax exemptions …
…is scrutinized to determine whether the law has a secular purpose and effect and avoids excessive government entanglement (Establishment Clause - Lemon Test)
A tax exemption that applied to religious groups among other nonprofit organizations would be upheld, but a tax exemption that applied solely to religious groups would be invalidated.
Privileges and Immunities Clause under Article IV, Section II
vs.
Privileges and Immunities Clause of the Fourteenth Amendment
This clause prohibits states from discriminating against nonresidents (based upon the fact that they do not reside in the state) with respect to rights and activities that are fundamental to the national union.
The U.S. Supreme Court has held that state laws requiring employers to give hiring preferences to in-state employees over out-of-state employees are unconstitutional on this basis.
The Fourteenth Amendment provides that no state shall make or enforce any law which abridges the privileges or immunities of citizens of the United States, but the Supreme Court has found that the Privileges and Immunities Clause of the Fourteenth Amendment has very limited application. It does not apply to a state passing legislation disfavoring out-of-state employees.
intermediate scrutiny standard of review
state must prove that the measure is substantially related to the achievement of an important state interest
“Substantially related” means that an exceedingly persuasive justification must be shown.
Generally, the substantive due process doctrine is used to evaluate government regulations that affect fundamental rights of personhood. However, economic regulations may also be challenged as violative of substantive due process guarantees. What scrutiny?
The Supreme Court has held that challenges to economic regulations on substantive due process grounds are to be subjected to deferential rational basis scrutiny, with a challenger having the burden of proving that a regulation lacks a rational connection to a legitimate government interest.
The right to marry is a fundamental right under the U.S. Constitution, and thus laws that restrict that right will be subject to strict scrutiny. To pass strict scrutiny, a law must be …
…justified by a compelling government interest, be narrowly tailored to achieve that goal or interest, and be the least restrictive means for achieving that interest.
i.e.
The state determined that the cost and time involved with adjudicating domestic cases involving people who married prior to turning 22 to be so great that it threatened to completely disrupt the state’s domestic court system.
That state intended the law only to apply to citizens under the age of 22 due to the fact that citizens over the age of 22 have a significantly lower rate of divorce and of having children dependent on welfare programs than the rest of the population.
The state undertook an exhaustive study to determine that the six hours of counseling and interview with the magistrate was the minimum amount of time and resources necessary to create any significant impact on divorce rates among those who marry at a young age.
State laws discriminating against legal aliens are subject to strict scrutiny, and those discriminating against illegal aliens are subject to rational basis review. However, the Supreme Court has established a special in-between rule for the children of illegal aliens.
In Plyler v. Doe, the Court held that a stringent version of the rational basis test applies to evaluate a state law interfering with the right of illegal alien children to free public education. Under this test, the measure being challenged will not be upheld unless it furthers some substantial goal of the state.
While it is true that alienage is a suspect classification, federal laws that discriminate against aliens are…
…not subject to the strict scrutiny standard of review applicable to discriminatory state laws.
This is because Congress has broad plenary power to regulate immigration. Federal laws that discriminate on the basis of alienage are subject only to a rational basis analysis (i.e., the burden of persuasion is on the plaintiff to show that the measure being challenged serves no legitimate government interest or is not rationally related to any legitimate interest).
n order to trigger intermediate scrutiny in an equal protection case, the plaintiff must show that …
…there was a discriminatory motive to the challenged action.
While the creation of the charter schools appears to be neutral with regard to gender, the statement that they were created in order to lower the ratio of males in the classroom indicates that there was a discriminatory intent behind their creation.
Article IV Privileges and Immunities Clause
vs.
Commerce Clause
Discrimination against citizens or residents in regard to an essential economic right or liberty triggers Article IV Privileges and Immunities Clause analysis, whereas general economic discrimination against a business or entity is more often viewed using a Commerce Clause analysis.
i.e. The fisherman is being denied the right to pursue employment as a sea cucumber harvester because he is a nonresident of State A.
What is bill of attainder?
A bill of attainder is a legislative act that inflicts punishment without a judicial trial upon named individuals, or an easily ascertainable group, for past conduct.
The state statute here retroactively imposes criminal penalties on easily ascertainable members of a group (Libertarians). As such, the statute is an unconstitutional bill of attainder. The state statute here retroactively imposes criminal penalties on easily ascertainable members of a group (Libertarians).
The Speech and Debate Clause provides that…
…members of the U.S. Congress “shall not be questioned in any other place” for “any speech or debate in either house” [U.S. Const. Art. I, Sec. 6]. In other words, the senator’s statements on the floor of the Senate are privileged, so the suit will not succeed.
Enabling Clause of the Fourteenth Amendment
The U.S. Congress has authority to enact legislation to eliminate interferences with equal protection rights guaranteed by the Fourteenth Amendment. The Enabling Clause of the Fourteenth Amendment authorizes Congress to enact laws to enforce constitutionally guaranteed civil rights. While Congress cannot prohibit private conduct infringing Fourteenth Amendment equal protection and due process rights, it can prohibit state action and private action conducted in concert with state officials that rises to the level of state action.
The government may not punish an individual by denying benefits or imposing burdens based on religious belief. Thus…
…state cannot deny unemployment benefits to a person whose religious faith requires her not to work on her Sabbath [Sherbert v. Verner, 374 U.S. 398 (1963)].
This would infringe on the employee’s free exercise right.
The court hearing the employee’s case may only look into the sincerity of her beliefs, not the truthfulness of the beliefs. As long as the employee’s beliefs are sincere, she qualifies for unemployment benefits because she did have cause to refuse to work. Any interest the state may have in withholding benefits is outweighed by the infringement on the employee’s constitutional right.
As a general rule, federal taxpayers do not have standing to challenge allegedly unconstitutional federal expenditures. However, the Supreme Court created an exception to this rule in Flast v. Cohen [392 U.S. 83 (1968)], which held that a federal taxpayer has standing to challenge federal expenditures to aid parochial schools where:
(1) the taxpayer is challenging the expenditure of money by Congress under its taxing and spending power, and (2) the expenditure allegedly violates the Establishment Clause
i. e. the taxpayer’s suit alleges an unconstitutional governmental preference of one religion over another.
Where state criminal proceedings are pending, the federal court will abstain in a suit seeking an injunction against the state prosecution. This principle has been extended to cases:
(1) where state civil proceedings have commenced, and (2) where civil contempt hearings have begun.
Example of a case involving political question?
The Supreme Court has ruled that a claim that a state has redrawn electoral districts to benefit one political party is a political question and, therefore, is non-justiciable. This is because there are no manageable judicial standards for deciding when a political party has been unfairly advantaged when electoral districts are redrawn.
If a state court judgment can be supported on an adequate and independent state ground, the Supreme Court will not take jurisdiction. When adequate and independent state grounds will not apply?
Where a state court’s decision is based upon a federal interpretation of a similar federal law, adequate and independent state grounds will not apply, and the Supreme Court may review.
What is adequate and independent state ground?
Where a state court clearly states that a state law violates other state law or a provision of the state constitution, that decision will be an adequate and independent state ground (regardless of whether the opinion also decides that the state law violates a federal law as well).
The Commerce Clause has been used as the vehicle to uphold laws aimed at barring racial discrimination in activities connected with interstate commerce.
he Supreme Court has held that racial discrimination in private businesses has a significant impact on interstate commerce, and thus Congress has the power to regulate this conduct under the Commerce Clause.
Pursuant to its war and defense powers, Congress has broad authority to initiate whatever measures it deems necessary to provide for the national defense. This includes…
…the power to establish military courts and tribunals.
A congressional act purporting to be a tax should be upheld as a valid exercise of the taxing power provided that it does..
…raise revenue (the objective test) or that it was intended to raise revenue (the subjective test).
The commerce power authorizes Congress to regulate interstate commerce, even if…
…the regulation is discriminatory or imposes an undue burden. As long as the enacted regulation can be rationally construed as a regulation of the channels or facilities of interstate commerce or activities that may have a national economic effect in the aggregate, the regulation will be upheld as constitutional.
Congress has broad authority to regulate interstate commerce under the Commerce Clause [U.S. Const. art. I, Sec. 8]. Any enacted regulation that can be rationally construed as a regulation of the channels or facilities of interstate commerce or activities that may have a national economic effect in the aggregate will be upheld as constitutional.
loyalty qualifications differences
SC invalidated an Arkansas statute requiring teachers to file an affidavit listing “every organization to which they have belonged or regularly contributed within the preceding five years” as overbroad.
Similarly, SC invalidated a Florida statute requiring public employees to swear, “I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party” as vague and ambiguous.
On the other hand, an oath that public employees will “support the Constitution of the United States and will oppose the overthrow of the government of the United States by force, violence, or by any illegal or unconstitutional means” was held valid.
There is a constitutionally protected property interest in the entitlement to continued attendance at a public school. In Goss v. Lopez [419 U.S. 565 (1975)], the U.S. Supreme Court stated that …
…a significant suspension for disciplinary reasons (e.g., 10-day duration) cannot be imposed without at least a minimum form of hearing before the suspension is imposed.
However, a student is not entitled to a trial-type hearing when his dismissal or suspension is with just cause.
Congress enacted a statute, over the President’s
veto, that granted Congress the power to
compel the President to remove United States
troops from foreign territory when such troops
have for 60 days been engaged in hostilities and
there has been no formal declaration of war. The
statute also provided that Congress may force
the President to withdraw the troops before the
60 days have elapsed by a two-thirds majority
vote of the Senate Foreign Relations Committee
to that effect.
Which of the following statements best
describes the likely result of judicial review of
the constitutional validity of this statute?
(D) T he statute is constitutionally suspect.
Action having the purpose and effect of altering the legal rights, duties, and relations of persons, including executive branch officials, must be subjected to the possibility of presidential veto. [Immigration & Naturalization Service v. Chadha (1983)]
Although the President (or his predecessor) had the opportunity to veto the statute, the passage of a Senate committee decision that shortens the time that the President may use the troops would have the purpose and effect of altering the rights and duties of the President, which accrue to him by virtue of his rather extensive military powers, and would not be subject to a presidential veto.
For this reason the statutory provision may be an unconstitutional legislative veto of executive
action.
Congress’s property power
Article IV, Section 3 of the Constitution
gives Congress the power to dispose of all property belonging to
the federal government.
There are no express limits placed on this power, and a disposal has never been invalidated on the ground that it places a competitor of the purchaser at a disadvantage.
i.e.
selling US Navy vessels
The federal government may exercise its property powers to acquire control of free-roaming animals on public land. The federal government does not, however, have inherent
authority over or ownership of all “free-roaming wildlife.” A state may, in turn, assert some rights over animals within its borders. That power must, nevertheless, give way in the face of a valid exercise of federal power.
While the Equal Protection Clause is not applicable to the
federal government, …
..equal protection guarantees are applicable through the Fifth Amendment Due Process Clause.
The most likely method the United States could use to impose a uniform child custody law on all
the states is through …
…the taxing and spending power, making an allocation of funds available to each state that adopts the uniform law.
COMMERCE CLAUSE VS. ARTICLE IV
PRIVILEGES AND IMMUNITIES
Any conflict between an act of Congress and a treaty is resolved by
order of adoption;
i.e., the last in time prevails.
the balance of power between the President
and Congress over the Armed Forces
The Constitution makes the President the commander in
chief of the armed forces, but it gives Congress the power to declare war and raise an army and navy.
he power of Congress to investigate is coextensive with
the power to legislate created by Article I, Section 8 of the Constitution.
Can Congress regulate the rates that banks charge for interest?
Congress may regulate, under the Commerce Clause, anything that has a substantial economic effect upon interstate commerce. The rates that banks charge for interest certainly affect interstate
commerce or may simply constitute commerce in its broad sense. In either case, the regulation is clearly within Congress’s commerce power.
Under Article II , Section 2, Congress may (not) appoint members
of a body with administrative or enforcement powers.
may not
Such persons are “officers of the United States” and must be appointed by the President with senatorial confirmation unless Congress has vested their appointment in the President alone, in federal courts, or in heads of departments.
i.e., selection of two members of the commission by a committee of the House of Representatives
would violate the Appointments Clause because the commission has investigative and
administrative powers.
“cases and controversies”
v.
advisory opinions
The Supreme Court has interpreted the constitutional power of the federal courts to hear “cases and controversies” to mean that federal courts may not render advisory opinions.
i.e.
Congress has enacted a law providing that all disagreements between the United States and a state over federal grant-in-aid funds shall be settled by the filing of a suit in the federal
district court in the affected state. The law further provides: “The judgment of the federal court shall be transmitted to the head of the federal agency dispensing such funds, who, if
satisfied that the judgment is fair and lawful, shall execute the judgment according to its terms.”
Under
the law here, the district court’s decision is not binding on an agency dispensing funds, because the agency head is given discretion to decide whether the court’s judgment is fair. Therefore,
the judgment is merely advisory and so is not within the jurisdiction of the federal courts.
A man was arrested in a state for armed
robbery. A combined preliminary hearing to
determine probable cause and initial appearance
was held within 20 hours of his arrest. Probable
cause was found, and bail was properly denied
under the state’s Bail Reform Act. A state statute
provided that when a defendant is in custody,
his trial must begin within 50 days of his arrest.
After 50 days had passed since the man’s arrest
and no trial had been held, he filed a motion for
dismissal for violation of his right to a speedy
trial under the state constitution, which tracked
verbatim the speedy trial provision of the United
States Constitution. The trial judge held that
he was bound to follow federal interpretations
of the speedy trial provision and granted the
man’s motion on that basis. On appeal, the state
supreme court agreed with the trial judge. The
state prosecutor seeks to challenge the ruling in
the United States Supreme Court.
If the Supreme Court thinks that the state
court wrongly decided that the man was
denied his right to a speedy trial under federal
standards, how should it proceed?
(D) Reverse the decision and remand the case to be decided on the independent state grounds only.
The Supreme Court had jurisdiction to hear the case, because it has jurisdiction to hear appeals from a state’s highest court concerning the constitutionality of a state statute,
the state court’s decision was not based on independent state grounds (a federal court will not hear a case that can be based on adequate and independent state grounds; rather, it would dismiss the case or remand it to the state for clarification); the decision was based on federal case law interpreting an identical federal provision.
Thus, jurisdiction was proper and the Court could reverse the state court decision and hold that a 50-day delay does not violate the federal Constitution.
However, the case should be remanded so that the state
may decide whether the delay was too long under state law, since a state is free to provide its citizens with more civil protection than is required by the federal Constitution.
Woman who wants an abortion named her doctor as the only D in the case. Can a federal court hear this case?
The federal court should dismiss the action because there is no case or controversy. The federal courts will not issue advisory opinions and so will not hear collusive actions. The fear is that if
interested parties are not on both sides of an issue, the court will not have an opportunity to fairly address all of the sides to each issue.
Here, there is no interested party opposing the pregnant
woman, and so the federal court should dismiss.
SC’s original vs. appellate jx
The Supreme Court has original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. Congress may neither restrict nor enlarge the Supreme Court’s original jurisdiction.
In all other cases, such as maritime disputes, the Supreme Court has only appellate jurisdiction, which Congress has extensive power to regulate and limit.
The Supreme Court will hear a case from a state court only if…
…it turned on federal grounds. If it finds adequate and independent state grounds for the decision, it will refuse jurisdiction.
i.e. the facts state that the state decision was based on a provision of the state constitution. The fact that the state provision is similar to the federal Equal Protection Clause is irrelevant to determining whether the decision here was based on state law, since the state court did not base its decision
on interpretation of the federal provision, but rather interpreted the state provision.
ripe for review
Someone seeking a declaration that a statute is unconstitutional must demonstrate that she has engaged (or will engage) in specific conduct, and that the challenged statute poses a real and immediate danger to her interests.
The court will not determine the constitutionality of a statute when the statute has not been enforced and there is no immediate threat that it will be enforced. Thus, if the state statute is not likely to be enforced, it is not a substantial threat to the parents and so they will be unable to demonstrate any real and immediate harm (or threat thereof) to their interest.
i.e. The parents’ child is nine months old and the statute cannot be violated before the child turns age three. Therefore,
this case is not ripe, and this choice gives the state a chance to defeat the parents’ argument.
The leader of a controversial religious sect,
which had been characterized by the government
as a “religious cult,” sought to broaden his
influence by running for the state legislature.
The state had no provision barring members
of the clergy from serving as legislators. The
leader took advantage of the state’s liberal voter
registration laws by having many of his followers
move into the district a month before the
election. The leader’s subsequent victory in the
race prompted a citizens’ group to file a lawsuit
in federal district court. The suit, invoking the
Establishment Clause, sought to enjoin the state
legislature from seating the leader in the legislature
or expending any state funds to provide him
with legislative privileges. The legislature moved
to dismiss the lawsuit.
Should the court grant the legislature’s
motion?
The court should grant the legislature’s motion because the Eleventh Amendment generally prohibits a federal court from hearing a private party’s claim against its own or another state
government.
This jurisdictional bar includes actions against a state government for injunctive or declaratory relief where the state itself, rather than state officials, is named as a party.
Here,
the citizens’ group is seeking an injunction against the state legislature itself rather than a state
official. Thus, the action would be barred by the Eleventh Amendment.
Constitutional provisions applying only to fed/state gov.
- Equal protection claims are made against the federal government pursuant to the Fifth Amendment’s Due Process Clause. The Supreme Court has held that this provision implicitly includes a requirement for equal protection.
- Both constitutional provisions referring to privileges and immunities apply to state government conduct and are never used against the federal government. The Fourteenth Amendment provides that no state shall deny any citizen the privileges or immunities of national citizenship. Article IV provides that no state shall deny citizens of other states the privileges and immunities it accords its own citizens.
ARTICLE IV—PRIVILEGES OF STATE CITIZENSHIP
v.
FOURTEENTH AMENDMENT—PRIVILEGES OF NATIONAL CITIZENSHIP
ARTICLE IV—PRIVILEGES OF STATE CITIZENSHIP
The Interstate Privileges and Immunities Clause prohibits discrimination by a state against nonresidents.
Note: Corporations and aliens are not protected by this clause. (In contrast, corporations and aliens are protected by the Equal Protection and Due Process Clauses of the Fourteenth
Amendment, as well as the Dormant Commerce Clause.
- Only “Fundamental Rights” Protected
The Interstate Privileges and Immunities Clause of Article IV prohibits discrimination by a state against nonresidents of the state when the discrimination concerns “fundamental
rights”—i.e., rights relating to important commercial activities (such as pursuit of a livelihood) or civil liberties. However, the Clause applies only if the discrimination is intentionally
protectionist in nature. - Substantial Justification Exception
The state law may be valid if the state has a substantial justification for the different treatment.
In effect, the state must show that nonresidents either cause or are part of the problem that the state is attempting to solve and that there are no less restrictive means to solve the
problem. - Note—Relationship to Commerce Clause
Although the Article IV Privileges and Immunities Clause and the Dormant Commerce Clause may apply different standards and produce different results, they tend to mutually
reinforce each other. Consequently, they both have to be considered in analyzing bar exam questions
FOURTEENTH AMENDMENT—PRIVILEGES OF NATIONAL CITIZENSHIP
States may not deny their citizens the privileges or immunities of national citizenship (e.g., the right to petition Congress for redress of grievances, the right to vote for federal officers, and the right to interstate travel). Corporations are not protected by this Clause.
Under the Contract Clause, which limits the ability of states to enact laws impairing the obligation of contracts, there is no impairment unless…
….the law is retroactive.
A federal district court judge was accused of misconduct in office and was impeached by the House of Representatives. At trial in the United States Senate, the judge was convicted and
removed from office. Nevertheless, the President directed the Attorney General to institute criminal proceedings against the judge. After presentation to a federal grand jury, an indictment
was issued against the judge and signed by the Attorney General. At the opening of his trial, the judge moved to have the indictment dismissed.
How is the trial judge most likely to rule?
The trial judge will most likely deny the motion to dismiss the indictment.
The Fifth Amendment right to be free of double jeopardy for the same offense applies to subsequent criminal actions, but
not to civil actions or impeachment proceedings, which are distinct from criminal proceedings.
Article I, Section 3 of the Constitution specifically states that a conviction by impeachment does not prevent the party convicted from being subject to indictment, trial, judgment, and punishment according to the law.
When answering questions about individual rights, what question should I ask first?
Is there government action?
A state may not impose on candidates for office a fee that renders it impossible for … to run
for office.
indigents
Even as applied to nonindigent candidates, an unreasonably high filing fee that is not
tailored to promote a substantial or overriding state interest might be held invalid. However, even
a reasonable and otherwise valid fee would have to be waived for an indigent candidate unable to pay the fee.
The Equal Protection Clause and voting districts
The Equal Protection Clause of the Fourteenth Amendment prohibits state dilution of the right to vote by malapportionment of electoral districts.
This rule applies to electoral districts for local governmental bodies as well as for the state legislature.
When a local government establishes voting districts for the election of representatives, it must establish districts that do not have a significant variance in the number of persons in each district.
i.e., the large town districts have twice as many persons as the small town districts, creating an unconstitutional dilution of the large town citizens’ right to vote.
Under
the Full Faith and Credit Clause of the United States Constitution,
states must give full faith and credit to the judgment of another state if the judgment is
final,
on the merits,
and rendered by a court with jurisdiction.
Does a sales tax enacted by state apply to a purchase by a federal agency operating within the state?
As a direct tax on the federal government, the sales tax is invalid unless Congress has consented
to such a tax.
The Court has indicated that while the states may not directly tax or regulate the federal government, they may indirectly do so by adopting taxes or regulations on persons dealing with the federal government, as long as the tax or regulation does not unduly burden the federal government.
i.e. state will win a suit when it imposes tax on an owner of a restaurant located in a national park
When can one state sue another state?
A state can sue another state to protect its natural
resources for the benefit of its own citizens.
Under Article III,
the Supreme Court has original and exclusive jurisdiction over controversies between two states.
The United States Government, as well as its agencies and instrumentalities, is immune from state regulation that interferes with federal activities, functions, and programs.
To the extent
that state regulations substantially interfere with an authorized federal program, the state laws must yield.
i.e.
The director, as an agent of the federal government, was carrying out a duly authorized program of the Department of Agriculture by conducting sales of surplus government
food at a federally owned warehouse.
To sustain the power of the town to prosecute the director
for not having a retail food sale license would give the town overriding authority over the selection of personnel to administer a federal program, as well as over the means by which this program is to be implemented.
Thus, the licensing requirement would substantially interfere with the proper functioning of this federal program by directly interfering with a federal employee in the carrying
out of his orders.
May Congress constitutionally regulate wages and hours of state and local employees under its commerce power?
Yes.
The Commerce Clause of Article I, Section 8 vests in Congress broad powers to regulate any activity, local or interstate, which either in itself or in combination with other activities has a substantial economic effect upon, or effect on movement in, interstate commerce.
Under this approach, Congress clearly has the power to regulate wages and hours of those employed by private employers. This power has been held applicable to
state and local governments;
Congress can therefore require state or local governments to follow the provisions of federal legislation requiring a state or private employer to pay overtime wages to its employees.
A state passes a law allowing terminally ill
patients to use marijuana under limited circumstances.
Federal law, however, provides that
marijuana may not be used under any circumstances.
The state sues in federal district court,
arguing that marijuana is beneficial for the
terminally ill and should be permitted under
these circumstances, despite the federal prohibition
of marijuana use throughout the United
States.
How should the federal district court rule?
The court should rule that the federal statute preempts the state law. Under the Supremacy Clause, a valid federal regulation supersedes any state action that conflicts with it, as is the case here.
A state passed a law providing that legislative
staff members in the state legislature were
to receive an hourly wage that was less than
the federal minimum wage. A legislative staff
member filed suit in federal court challenging
this state law.
Which of the following is the strongest
argument in support of the staff member’s
constitutional challenge?
The strongest argument is that the minimum wage law applies to both private sector and state employees.
Generally, the Tenth Amendment provides that powers not delegated to the federal government are reserved to the states.
Under the Tenth Amendment, the court will usually uphold federal legislation that applies both to the private sector and to state governments,
but will generally not uphold attempts by Congress to regulate the states as states.
Here, the federal minimum
wage law applies to all private and government employers. Thus, it will be upheld.
The federal accounting office issued a call for
competitive bids for a contract to supply 3,000
four-wheel drive utility vehicles without antipollution
devices and with engines with a displacement
of 4,000 cubic centimeters. A supplier in a
state won the contract as low bidder and began
manufacture of the vehicles. However, the state’s
statutes require that automobiles manufactured
in that state be equipped with antipollution
devices and have a maximum displacement of
2,500 cubic centimeters. The supplier files suit in
state court, seeking a judicial declaration that the
state statute may not be enforced as to it.
How should the court rule?
Application of the statute would violate the Supremacy Clause. Because the state statute conflicts with the terms of the federal contract, the federal contract must take precedence, pursuant to the Supremacy Clause and principles of federal immunity from state regulation.
In response to a tremendous increase in
begging in the downtown area of a city, the
city council enacted an ordinance that required
anyone soliciting for charitable contributions of
any sort in any public place to wear an identity
card issued by the local police department.
Identity cards could be obtained by completing
an affidavit providing the applicant’s identification
and address information and further
affirming that the applicant was not soliciting
for personal use and belonged to a recognized
charitable organization.
A member of an anti-tobacco charitable
organization wishes to solicit contributions by
similarly minded persons for use in his organization’s
campaign against public smoking. He
does not want to comply with the identity card
ordinance. He comes to you for legal advice and
asks whether he should challenge the ordinance
in federal court.
Should you advise that the ordinance is constitutional?
The ordinance is probably unconstitutional because it violates free speech rights under the First Amendment.
The Supreme Court has held that a charitable appeal for funds involves a variety of speech interests protected by the First Amendment. In one case, an ordinance that prohibited
door-to-door solicitation by organizations that did not use at least 75% of their receipts for charitable purposes was struck down by the Court. The present ordinance would probably run afoul of the same rule, because in effect it prohibits all charitable solicitation absent relatively burdensome compliance with its registration provisions. The ordinance is also vulnerable because it limits the right of solicitation to those who belong to “a recognized charitable organization.”
A city ordinance prohibits the distribution of
pamphlets “on public sidewalks or other public
areas when foot traffic is sufficiently heavy and
the manner of distribution of the pamphlets
causes obstruction of the foot traffic so as to
result in spillover onto public streets where
vehicular traffic creates a danger to human
life.” The state fair is held at fairgrounds whose
entrances lie along a busy multilane street.
A demonstrator was distributing pamphlets
advocating repeal of the federal milk price
support program at the state fair. He attracted a
crowd of about 10 farmers and children outside
the fairgrounds entrance at which he stood, but
most of the few fairgoers entering the fair at
that late afternoon time simply ignored him.
When one of the dairy farmers became irate and
threatened to “knock his block off,” the demonstrator
was arrested by a fair security guard
and subsequently prosecuted under the city
ordinance.
Which of the following statements is correct
regarding the city ordinance and the demonstrator’s
prosecution?
Substantially overbroad or vague statutes regulating First Amendment rights are void on their face, and persons may not be prosecuted for their violation even if their conduct might otherwise be subject to valid regulation.
Conversely, statutes that reasonably regulate the time, place,
and manner of speech in public forums may be unconstitutional if applied in situations where the First Amendment activity is unreasonably infringed.
Here, the statute is a valid time, place, and manner restriction because it is content-neutral, it is narrowly tailored to serve an important government interest, and it leaves open alternative channels of communication.
It is not too vague when read as a whole, because pedestrian traffic is “sufficiently heavy” when the foot traffic spills
over into public streets because of the obstruction. However, it is being applied to circumstances that do not provide any reasonable basis for regulation of the speech.
Regulation of truthful advertising of a
lawful activity is valid only if it
serves a substantial government interest,
directly advances that interest, and
is narrowly tailored to achieve that interest.
i.e.
The consumption of alcohol is a valid activity and the ordinance here does not address deceptive advertising. While the city may argue that discouraging drinking is a substantial government interest, it might have a difficult time proving that the ordinance here advances that interest. More importantly, given that the ordinance amounts to a total ban on advertising outside of stores selling liquor, the city would have a difficult
time arguing that the ordinance is narrowly tailored.
Is there a basis a First Amendment claim against the bus
company operated under a franchise granted to it by the city council?
The Supreme Court has ruled that the grant of a franchise is not sufficient to create state action. [Jackson v. Metropolitan Edison (1974)] Thus, there is no basis for a First Amendment claim against the bus company.
Oath: “I solemnly swear (or affirm) that I am not now
a member of any organization that advocates
illegal acts, nor will I become a member of any
such organization while I am a licensed private
investigator in this state.”
Oaths similar to this membership oath have been struck down as overbroad. The state has a compelling interest only in preventing knowing membership with the specific intent to further unlawful aims. Persons cannot be denied a license because of mere membership in a particular group, and the state statute here addresses mere membership.
While the government may limit the amount of contributions
that an individual may contribute to a candidate’s campaign, it may not
limit contributions to groups that lobby for or against matters before the legislature, because the Supreme Court has
found that such a law does not serve a sufficiently important interest to outweigh the restraints that it puts on the First Amendment freedoms of speech and association.
The validity of a law that regulates elections is determined by a balancing test.
What is it?
If the law regulates “core political speech,” rather than the process surrounding elections, strict scrutiny is applied (i.e., the law must be narrowly tailored to achieve a compelling interest).
The Supreme Court has held that a state law prohibiting
campaigning on election day is invalid as applied to a newspaper editorial urging voters to vote a certain way, because the right to comment on political issues is an essential element of free speech. The state statute at issue here is similar to the law that was held invalid by the Court;
thus, its enforcement should be enjoined on free speech grounds.
A state legislature enacted an excise tax on
any automobile sold in the state that had not
been manufactured within the state. The tax
was intended to ease the desperate plight of the
thousands of auto workers suffering layoffs,
plant closures, and pay cuts from lost sales
to foreign competitors. The tax was graduated,
from 5% of the sales price of inexpensive
automobiles down to 1% for automobiles selling
for more than $100,000. A corporation that
manufactures automobiles in a neighboring state
brought an appropriate action in federal court to
enjoin enforcement of the automobile tax statute
as to its products.
Which of the following is the strongest constitutional argument supporting the invalidity of the special tax?
(A) It is an undue burden on interstate commerce.
(C) It violates the Fourteenth Amendment’s
protection of the privileges and immunities
of national citizenship.
(A) The strongest argument against the tax is that it burdens interstate commerce. The Commerce
Clause of the Constitution gives Congress very broad power to authorize or forbid state taxation that affects interstate commerce. Unless approved by Congress, state taxes that discriminate against interstate commerce are invalid. The special tax here does not pass muster because it directly discriminates against out-of-state competition. Thus, the tax violates the Commerce Clause and (A) is correct.
(C) is incorrect because the Fourteenth Amendment clause protecting the privileges and immunities of national citizenship does not apply here. The clause protects only those rights attributable to being a United States citizen, e.g., the right to petition Congress. The clause is inapplicable here.
The Appointment Clause of the Constitution
permits Congress to vest appointments of inferior officers only in
in the President,
the courts,
or the heads of departments.
Enforcement is an executive act; therefore, Congress cannot appoint its own members to the commission to exercise enforcement powers.
Executive privilege…
…is an inherent privilege necessary to protect the confidentiality of presidential communications. Under this privilege, presidential documents and conversations are presumptively privileged, but this privilege must yield to a demonstrated need for such materials as evidence in a criminal case in which they are relevant and otherwise admissible. [United States v.
Nixon (1974)] Although the Supreme Court has not expressly decided that the privilege must also yield to a demonstrated need for evidence in a pending legislative proceeding, such an extension of Nixon is likely.
Congress has the power to regulate alarm installation companies under the
Commerce Clause because the clause permits Congress to regulate any local or interstate activity
that, either in itself or in combination with other activities, has an effect on interstate commerce.
Burglar alarm companies use instrumentalities of interstate commerce such as phone lines and
have a cumulative effect on interstate commerce even though some may only do business locally.
Hence, their activities can be regulated by Congress.
Also
Congress has the right to prohibit completely the transportation of “harmful” substances in the channels of commerce. Congress could also otherwise regulate the manufacture and use of harmful drugs as part of its regulation of commerce.
Congress does not have the power to legislate for the general welfare—there is no federal police power—but rather Congress has the power to …
…spend for the general welfare.
The United States Surgeon General was cited
for contempt for refusing to answer questions as
part of a Senate investigation regarding an issue
in the Food and Drug Administration.
His contempt citation will be dismissed if he
can show which of the following?
His contempt citation will be dismissed if he can show that the questions do not relate to any
matter concerning which the Senate may legislate. Congress’s power to investigate is limited to matters on which it can legislate. Therefore, if the Surgeon General can demonstrate that the questions concerned matters upon which Congress could not legislate (not an enumerated power under Article I, Section 8), then this contempt citation must be dismissed.
The Necessary and Proper Clause is usually a wrong choice because…
the Necessary and Proper Clause only broadens
congressional power authorized under some other provision; it does not itself create the power to
act.
Article II , Section 2 provides that the President shall nominate, and with the advice and consent
of the Senate shall appoint, ambassadors and other officers of the United States.
The section also provides that Congress may vest the appointment of inferior officers in the President alone, in the courts of law, or in the heads of departments.
Under separation of powers principles, however,
Congress may not vest in itself any broader appointment powers than what is provided for by the Constitution. Where Congress has not vested the appointment power in courts of law or the heads of departments, it is not permitted to restrict the candidates that the President may nominate for appointment. Thus, the Senate’s attempt here to exert some control over the President’s choice of lower-level diplomatic representatives is an unconstitutional violation of the separation of powers.
Congress determined that zebra mussels posed a great threat to the economic
welfare of the Great Lakes region and passed a
statute requiring all Great Lakes water intakes
to be coated with a special chemical compound
that repels zebra mussels. Studies by biologists
at a major state university showed that while
the special chemical compound was toxic to other aquatic life. The biologists recommended that Great Lakes intake pipes be coated with a less toxic and less expensive copper-based paint. Great Lakes states adopted laws permitting municipal water districts to coat their intake pipes with copper paint.
Can municipalities using copper-based paint
on their intake pipes successfully be prosecuted
for violating the federal law?
(B) No, because the municipalities are taking
effective steps to combat zebra mussels in
compliance with the spirit and purpose of
the federal law.
(D) Yes, because Congress may adopt laws
regulating navigable waters.
(D) The cities can be prosecuted because state or local government action that conflicts with valid federal laws is invalid under the Supremacy Clause. The federal law here could be found valid as an exercise of the commerce power (Congress can regulate any activity that either in itself or in combination with other activities has a substantial economic effect on interstate commerce) or under the admiralty power (Congress can regulate all navigable waterways). The action of the municipalities directly conflicts with the directives of the federal law and can therefore be stopped.
(B) is incorrect because the fact that the copper paint may be as effective as the special
compound does not change the result. The action by the municipalities can be prohibited under the Supremacy Clause.
A town in a rural state facing financial difficulties
passed a variety of “sin taxes,” including
one aimed at electronic game arcades frequented
by local juveniles. The tax is a one cent per
game tax imposed on the manufacturers of
the games based on the estimated number of
plays over a machine’s lifetime. There are no
electronic game manufacturers in the state.
Which of the following constitutional provisions
would support the best argument against
enforcement of the tax?
(C) The Privileges and Immunities Clause of
Article IV.
(D) The Commerce Clause.
(D) The best argument against enforcement of the tax is that it violates the Commerce Clause.
_If Congress has not adopted laws regarding a subject, local governments are free to tax or
regulate local aspects of the subject area as long as the tax or regulation does not discriminate against interstate commerce *or* unduly burden it._
Here, the tax does not discriminate against
interstate commerce, since it does not single out interstate commerce for taxation in order to
benefit the local economy. However, it could be argued that the tax unduly burdens interstate
commerce. A local tax will be held to unduly burden interstate commerce if the locality’s need for the revenue does not outweigh the burden on interstate commerce.
The Supreme Court will consider whether there is a substantial nexus between the activity or property taxed and the taxing state, whether the tax is fairly apportioned, and whether there is a fair relationship between the tax and the benefit the taxed party receives from the state.
Here, there is little nexus between the manufacturer and the town. The facts indicate that out-of-state manufacturers’
machines are used in the town, but do not indicate whether the manufacturers conduct
any selling activity in the town. Similarly, nothing indicates that there is a relationship between the tax and any benefit that the manufacturers derive from the town. Thus, the tax would
probably be unconstitutional under the Commerce Clause.
(C) is not a good argument because the Privileges and Immunities Clause of Article IV prohibits states from discriminating against out-of-state residents when a fundamental right is involved, and the tax here does not differentiate between residents and nonresidents.
The power to regulate foreign commerce lies exclusively with…
…Congress.
i.e.
A state that adopts legislation requiring private vendors to favor United States products over foreign products may be acting outside the scope of its powers.
Due to a notable increase in prostitution
arrests in the state, the state legislature has
enacted new regulations for massage parlors.
The new law requires that all workers at any
massage parlor or similar business be licensed
by the state attorney general.
Is this requirement constitutional?
(A) Yes, because it is within the proper scope
of the exercise of the police powers of the
state.
(D) No, as a violation of the Privileges and
Immunities Clause of Article IV.
(A) The licensing requirement is constitutional. The state may “within the proper purpose of the exercise of its police powers” require licensing of anyone who deals with the public in general,
and the Supreme Court has been particularly liberal when the state is attempting legislation that is remedial in effect to cure a social evil that exists within the state.
(D) is wrong because there is no indication that the state is treating nonresidents differently than those residing in the state. (Note also that the Interstate Privileges and Immunities Clause does not protect corporations.)
