Constitutional Law

Question 1

Standing

Answer 1

Injury
Causation
Redressability

Question 2

3rd party Standing

Answer 2

A 3rd party may assert the rights of another person when the other person is unable to do so.

1. claimant suffered injury as well
2. Difficult for 3rd party to bring case
3. Special relationship between the two

(the injury affects their relationship, vendor of beer granted standing to assert rights for males under 21 but not woman under 21)

Question 3

Organizational Standing

Answer 3

Members have standing

Case related to organizations purpose

Question 4

Ripe

Answer 4

No live controversy yet

Question 5

Moot

Answer 5

No longer a problem unless capable of reputation

Question 6

11th Amendment

Answer 6

States are immune from lawsuits. Citizens cant sue states

Question 7

State Action

Answer 7

For there to be a violation of rights there must be a government action and not a private actor. A private actor can qualify as state action if they are participating in a public function (park, jail, elections). If the state is heavily involved with private actor by commanding, encouraging or being entangled in the activity then it is considered state action`

Ex: the 1st amendment does not require owners of private property that is open to the public (like a mall) to allow access for purposes of the public exercise free speech or protesting. A shopping mall is not a government entity but privately owned.

Question 8

Commerce Clause

Answer 8

Congress can regulate interstate commerce by regulating:

1. Instrumentalities (trucks, boats, internet)
2. Channels (roads/rivers)
3. Persons and things moving in interstate commerce

Activities with a substantial effect on interstate commerce (rational basis)

Congress cannot create laws regulating local matters, such as automobile accidents unless it involves interstate commerce

For a local matter, congress must show that the activity is economic. Even if the sell of an item is small, or just locally (i.e. a man selling milk to his neighbors) it has a substantial effect on interstate commerce when taken cumulatively throughout the nation. If the court allows one person to do it locally, they have to allow others which will have a substantial effect.

Question 9

Necessary & Proper Clause

Answer 9

Congress power to make laws to exercise their other enumerated powers by the constitution.

Question 10

Supremacy Clause

Answer 10

Constitution is supreme. Then federal law. State law that conflicts or federal law occupied the field is preempted

Question 11

Dormant Commerce Clause

Answer 11

States cannot pass laws that discriminate or unduly burdensome interstate commerce.

If discriminatory = must be necessary to an important government interest because there are no reasonable nondiscriminatory alternatives

If not discriminatory = rational basis

A state’s requirement that a barber must have graduated from a school inside the state discriminates against out of state commerce. Dormant commerce clause exceptions don’t apply

Question 12

Market Participate

Answer 12

Exception to Dormant Commerce Clause. If a state owns/operates a business, it can favor local interests and discriminate because they are buying & selling

Question 13

Privileges/Immunities Clause

Answer 13

State cannot discriminate against non citizens regarding fundamental rights. Doesn’t apply to corporations or aliens

citizens have a right to travel interstate which includes the right to be treated equally with other residents of the state in which they live, even if they are a new resident. Without a showing of a compelling government interest that is served by a waiting period then it will not be upheld. Therefore state durational residency requirements must meet strict scrutiny. There has to be more than just a goal of preserving state funds.

By limiting licenses to people who are residents of states interferes with the right to travel.

Question 14

Contracts Clause

Answer 14

Prevents state government from passing laws that retroactively and substantially impair existing contracts

Question 15

10th Amendment & States Police Power

Answer 15

Powers not delegated to the federal government are reserved for the states. Therefore, congress cannot compel a city or state to pass a law or enforce a federal regulatory program.

Where congress has not acted, states have police power to regulate any phase of local business as long as the regulation doesn’t discriminate against or burden interstate commerce.

General applicable federal laws that regulate the state do not violate the 10th amendment. Generally applicable federal laws that regulate state businesses and or employees do not violate the 10th amendment

Question 16

Rational Basis

Answer 16

Rationally Related to serving a legitimate state interest

Question 17

Intermediate Scrutiny

Answer 17

Government has to show that the regulation serves an important state interest, and the regulation is substantially related to serving that interest.

Question 18

Strict Scrutiny

Answer 18

The regulation serves a compelling state interest and it is necessary to serve that interest.

Question 19

Due Process

Answer 19

Prevents the government from denying any person “life, liberty or property” without due process of the law. Due process binds the states through the 14th amendment and federal government through the 5th amendment. There are two types of due process (1) procedural (2) substantial

Question 20

Procedural Due Process

Answer 20

Government must provide notice and a hearing if they deny a citizen life liberty or property of a right they have

Question 21

Substantive Due Process

Answer 21

Limits the government’s ability to regulate certain areas of human life, such as economic liberties and fundamental rights to privacy, such as marriage, living with one’s family, child bearing, and raising own child).

Economic Liberties = Rational

Right to Privacy = Strict

• marry
• procreate
• raise children
• control the upbringing of children
• contraceptives
• Abortion (undue burden test)
• Homosexual activity
• refuse medical treatment
• right to vote
• read obscene reading material

Ex: Parents have a fundamental right to make decisions and control their children. A state law requiring kids to attend a public school violates that right. The law infringes on the parents fundamental right to raise their children which triggers strict scrutiny

Question 22

Equal Protection

Answer 22

the government cannot treat people differently or distinguish among people. If the government does, there is an equal protection challenge. Equal Protection clause protects suspect group.

Race and National Origin = Strict
Gender = Intermediate
Alienage = generally strict

Illegal aliens/immigrants are not members of a suspect or quasi-suspect class. Only rational review applied

Question 23

Freedom of Speech

Answer 23

1st amendment protects right to free speech. This right is not absolute, there are limits.

2 types of speech
(1) Content Based= banning certain kind of speech and allowing others (strict)

(2) Content Neutral = bans all speech, not specific kinds of speech. Must leave open alternate channels (intermediate)

Question 24

Time Place AND Manner

Answer 24

The government may enact reasonable time, place and manner restrictions on speech. The extent the government may regulate speech depends on the forum.

Public Forums
Designated Public Forums
Non Public Forum

Question 25

Public forums

Answer 25

open to the public
intermediate review
leave open alternate channels

The 1st amendment does not require owners of private property that is open to the public (like a mall) to allow access for purposes of the public exercise free speech or protesting. A shopping mall is not a gov’t entity but privately owned.

Question 26

Designated Public Forums

Answer 26

Not traditionally open to the public, but open to the public for specific purpose

intermediate review

leave open alternate channels

Question 27

Non Public Forums

Answer 27

• Closed to the public
• Must be content neutral
• Serve legitimate government interest
• be a reasonably related interest
• leave open alternate channels

Question 28

Commercial Speech

Answer 28

Government can restrict commercial speech (advertisements)

intermediate scrutiny
least restrictive means

1. does the statute further a substantially government interest?
2. Is it the least restrictive means?

Congress cant prohibit people from receiving mail they find offensive. Prohibiting the mailing of unsolicited advertisements is invalid because it violates 1st amendment protection of commercial speech. Congress cant stop condoms in the mail

Question 29

Symbolic Speech

Answer 29

Government can restrict symbolic speech

Intermediate scrutiny
Must be content neutral

Question 30

Free Speech Regulations Cannot be…

Answer 30

Vague (Reasonable person wouldn’t know what is banned)

Overbroad (Bans too much speech)

Prior Restraints (can ban speech before it happens

Question 31

Unprotected Speech

Answer 31

(1) Obscenity
(2) Inciting Imminent Lawless Action
(3) Fighting Words

Question 32

Obscenity

Answer 32

Unprotected speech.

Sexual conduct that:

(1) appeals to the prurient interest in sex. Average person in the community would find the work as appealing to the prurient interest in sex.
(2) patently offensive
(3) lacks serious artistic or scientific value (national reasonable person standard)

Ex: Nudity alone is not considered obscene, to appeal to the prurient interest in sex, it must incite a morbid of shameful interest, not merely a normal interest

Question 33

Inciting Imminent Lawless Action

Answer 33

Unprotected Speech.

Government can ban speech intended to incite and product illegal action

Question 34

Fighting Words

Answer 34

Unprotected Speech.

Words that are likely to cause the listener to commit an act of violence. Anger is not enough

Question 35

Freedom of Religion

Answer 35

1st amendment protects ones right to practice religion. There are two types of freedom of religion

(1) Free Exercise Clause
(2) Establishment Clause

Question 36

Free Exercise Clause

Answer 36

Bans any law that prohibits or burdens a persons free exercise of religion. Except if the law is generally applicable and doesn’t intentionally burden religious beliefs and advances important public interest.

Question 37

Establishment Clause

Answer 37

Prohibits laws establishing religion. Government cant endorse or favor a specific religious group. Lemon Test is used

Lemon Test

• Secular Purpose
• Neither advances or inhibits religion
• no excessive government entanglement

Ex: SC held a statute unconstitutional for paying the salary of school teachers who taught solely secular subjects because the necessary surveillance to ensure that money would be restricted to teachers of secular subjects would entangle the gov’t excessively

Ex: If the government has a holiday-christmas display that does not appear to endorse religion, the display will survive the lemon test. But if the government holiday display includes religious symbols (nativity scene) as well as other holiday decorations (christmas trees, santa clause) the display must meet the lemon test. If the display includes ONLY religious symbols (only nativity scene) it will violate the establishment clause because it “endorses” religion.

Question 38

Lemon Test

Answer 38

(1) Secular Purpose
(2) Neither advances or inhibits religion
(3) No excessive government entanglement

Question 39

Freedom Of Association

Answer 39

1st amendment right for people to associate and be apart of any group they want as long as its not illegal. Government cant deny a public benefit or job based on who the person associates with. Strict Scrutiny is applied.

Question 40

Takings

Answer 40

5th Amendment states that private property cannot be taken for public use, without just compensation. A gov’t regulation eliminates the investment backed expectation and economic value of a person’s property as a taking.

Per se taking = permanent physical invasion, no economic value left

Not per se taking = economic impact, interference with investment backed exceptions.

Question 41

Appointing Officials

Answer 41

The president shall appoint all officials with the advice and consent of the senate. Congress can only appoint officials for investigative purposes. Congress can create agencies that can enforce the law, but only the president can appoint members to the agencies

Question 42

Congress Immigration Powers

Answer 42

Congress has broad powers over immigration and naturalization. States don’t have the right.

ex: senator can introduce a bill denying free medical benefits to aliens but allowing free benefits to U.S citizens

Question 43

Nonjusticiable Political Question Foreign Affairs (M)

Answer 43

Foreign affairs is a non justiciable political questions where federal courts don’t have jurisdiction. Determining “residency” for a candidate is not a question for federal courts. The house makes that decision

Questions about national defense, implementing a treaty with a foreign nations are problems for the executive and legislative branch and not a judicial problem so it cant be heard in federal courts. Political questions is when a matter assigned to another branch by the constitution or incapable of a judicial answer.

Question 44

Congress War Power (M)

Answer 44

Congress has broad authority to initiate whatever measures it deems necessary for national defense during wartime from regulating wages, price and rent control during wartime. congress can even prohibit a private business from striking during wartime.

Congress has the sole power to declare war, raise and support armies, Congress can make people register and take physical examinations for military service.

Question 45

Gov’t/state denies a person from getting a specific license to work in the state

Answer 45

If a gov’t/state terminates a person’s ability to engage in a profession, the person has the burden to show the denial of the license violates his due process rights. once shown, the burden shifts to the state to prove that it has a compelling state interest.

Question 46

Supreme Court Jurisidiction (M)

Answer 46

When it is unclear if state court made its decision based on state or federal interpretations the SC may take the case. I the state court decision was rooted at least in part in federal law they can take the case. Adequate and independent state grounds irrelevant when federal law was applied.

Question 47

13th Amendment

Answer 47

1. bans slavery. Applies to people and gov’t/state action
2. 13th amendment has an enforcement clause enabling congress to pass all necessary legislation to prevent racism in selling or buying property

Question 48

President Treaty Power (M)

Answer 48

For every treaty a president signs, in order for it to be valid it must be ratified by 2/3 of the senate. The president cant rely on his foreign affairs powers to pass a treaty even if the treaty is with a foreign country

Question 49

Ad valorem Tax (M)

Answer 49

Import = bring goods into country from abroad

export = send goods to another country for sell

No state without consent from congress can charge import or export fees except when necessary for inspection laws. No ad valorem taxes in interstate commerce. Commodities in interstate transit are entirely exempt from state taxation

Question 50

Excise Tax (M)

Answer 50

License Tax, privilege to use something, franchise and occupation tax. When applies to local activities are upheld and valid as long as its not a discriminatory tax

Question 51

Age Restriction Laws for A candidate (M)

Answer 51

Age = rational basis. States are free to create restrictions for candidates because the constitution has no express provision that guarantees the right to be a candidate. Not a fundamental right to run for office so rational basis.

Question 52

Prohibiting Unrelated People Living Together (M)

Answer 52

A city can enact a ordinance prohibiting unmarried people from living in the same house under its police power because the ordinance bears a substantial relationship to the health, safety and welfare of its citizens. However, recognizing “family” as people who are related violate the due process clause of the 14th amendment. There is a fundamental right to organize ones family. but “unrelated, unmarried” people are not protected by such rights

Question 53

15th Amendment

Answer 53

The right to vote cannot be denied or abridged. Nor is voting a “private club” where a group of people have to vote a particular way constitutional.

Question 54

Employee Knowingly Hiring an Unlawful Alien (M)

Answer 54

It is constitutional for a statute to prohibit an employer from knowingly hiring an alien who is not entitled to lawful residence in the U.S. if such employment would have an adverse effect on lawful resident workers. it is clearly within a states police power under the 10th amendment to regulate the employment relationship of illegal aliens.

Question 55

7th Amendment

Answer 55

Guarantees the right to a trial by jury in a civil suit where the amount exceeds $20. Doesn’t apply to actions committed by states.

Question 56

Involuntary Administration of Medication (M)

Answer 56

The federal government can administer antipsychotic drugs against a defendant’s will in order to render him competent to stand trial as long the treatment is medically appropriate, does not cause substantial side effects and necessary to significantly further important governmental trial related interest

Question 57

Licensing Adult Store - Sex Store (M)

Answer 57

1st amendment and due process require a prompt judicial determination when a license is denied.

Question 58

Due Process - Unbiased Judge (M)

Answer 58

Due process requires that a case be heard by a unbiased judge. Judge has remove themselves from the case. Has to be the largest donor to an election. Dont have to remove themselves just because a plaintiff or defendant donated money. has to be the largest donation

Question 59

Bankruptcy Laws (M)

Answer 59

States have no authority to enact bankruptcy laws. Congress has the power to enact bankruptcy laws and prohibit state laws that impair contracts. States cant have laws that relieve corporations of debt.

Question 60

Taking

Answer 60

A gov’t regulation that eliminates the investment backed expectation and economic value of a person’s property is a taking

Question 61

1st Amendment

Answer 61

The first Amendment Prohibits the federal government from interfering with the free exercise of religion and it also prohibits the federal government from establishing a religion. The 1st amendment protections are so important, laws are subject to strict scrutiny, which means they must be necessary to achieve a compelling state interest. There must be no less restrictive means

Question 62

Taxing and Spending Clause

Answer 62

Congress has the power to tax and spend to provide for the general welfare. Congress can spend money for any purpose related to the general welfare of the U.S. Congress can attach strings to money grants to make sure states act in a certain way. Congress can condition receipt of federal funds .

Question 63

Foreign Power (M)

Answer 63

Congress, under its enumerated powers can legislate to preserve the national govern over the U.S foreign affairs. Although foreign affairs are primarily in the president power, congress has the power to make laws necessary for the execution of all powers vested by the constitution.

Question 64

A contract violates a State Statute (M)

Answer 64

If a contract violates state statute it may be declared unenforceable but the contract can be enforceable to protect a class of people intended to be protected by the statute

Question 65

Supreme Court Original Jurisidiction

Answer 65

The constitution gives the SC original jurisdiction over cases in which a state is a party, that jurisdiction is not exclusive. Congress has given the lower federal courts concurrent jurisdiction over all cases in which the SC has original jurisdiction except those between two states. when there is a case U.S. and a state, a federal court can hear the case. SC jurisdiction is not exclusive and unless its state vs. state a lower court can hear the case.

Question 66

Congress Investigative Powers

Answer 66

Congress may establish legislative and investigative commissions, so long as the commission are appointed by congress.

Question 67

Bill of Attainder

Answer 67

Cant impose a punishment without a trial

Question 68

Ex Post Facto

Answer 68

Neither state or government may pass an ex post facto law, where a criminal statute punishes retroactively

Question 69

Independent and adequate state grounds

Answer 69

Supreme court can’t review a judgement if it is supported entirely by state law and independent of federal law.