Constitutional Law

Question 1

Standing (Person)

Answer 1

A federal court will not hear a case unless the party bringing the suit has standing. To have standing, a litigant must have a concrete stake in the outcome of the controversy.

A litigant will have a concrete stake if the litigant can show:

(i) that it has suffered an injury in fact that is caused by the conduct complained of and
(ii) that can be remedied by a decision in the litigant’s favor. The injury must be specific and more than theoretical, but it need not be economic.

Usually, injuries in fact involve a violation of a common law right, a constitutional right, or a statutory right.

Question 2

Standing (Organization)

Answer 2

An organization will have standing to challenge government action that injures the organization itself.

An organization will also have standing to challenge government action that causes injury to its members if the organization can show:

(i) an injury to individual members that would give the individuals a right to sue on their own behalf;
(ii) that the injury is related to the organization’s purpose; and
(iii) that neither the nature of the claim nor the relief requested requires participation of the individual members in the lawsuit.

Question 3

Federal Legislative Powers

Answer 3

The federal government is a government of limited power; it may exercise only those powers given to it by the Constitution.

Question 4

Powers of Congress

Answer 4

(i) Tax and Spend
(ii) Regulate Commerce and Currency
(iii) Declare War and raise armies, and
(iv) Make all law necessary and proper for executing powers granted to the federal government

Question 5

Necessary and Proper Clause

Answer 5

Congress may also make laws that are necessary and proper to carry on or execute the powers granted to any other branch of the federal government as well as to implement its own power.

Question 6

Commerce Clause

Answer 6

Federal commerce power includes the power to regulate

(i) the channels of interstate commerce,
(ii) the instrumentalities of interstate commerce, and
(iii) commercial activities that have a substantial economic effect on interstate commerce.

Congress’s power over interstate commerce is not exclusive – states may regulate local aspects of interstate commerce as well, unless preempted by federal law.

Question 7

Dormant Commerce Clause

Answer 7

When no federal law is on point, state laws that discriminate against interstate commerce will usually be held to violate the negative implications of the commerce clause (the “Dormant Commerce Clause”) unless the state can prove that the laws are necessary to achieve an important state interest.

State laws that do not discriminate against interstate commerce will be upheld unless they unduly burden interstate commerce. In determining whether there is an undue burden on interstate commerce, the courts will balance the legitimate state interest against the burden placed on interstate commerce. Courts may consider whether there are less restrictive means to accomplish the state’s goals and whether the state law conflicts with other state laws.

Question 8

Delegation of Power

Answer 8

Congress has broad power to delegate its power, except those powers that are uniquely confined to Congress. A delegation will be upheld only if it includes intelligible standards, but the Supreme Court has upheld very vague instructions.

Question 9

Spending Clause

Answer 9

The spending Clause of the United States Constitution gives Congress the power to spend for the general welfare. When exercising this power, Congress generally is free to condition its grants. A condition will be found to be valid if it:

(i) is clearly stated,
(ii) relates to the purpose of the spending program, and
(iii) is not unduly coercive.

Question 10

Limitation of Powers by the Tenth Amendment

Answer 10

The Tenth Amendment provides that powers not delegated to the United States by the Constitution nor prohibited to the states, are reserved to the states. The Tenth Amendment restricts federal regulation of states in certain respects.

The Tenth Amendment prohibits the federal government from commandeering state officials by requiring states to regulate their own citizens.

Question 11

The Supremacy Clause

Answer 11

The Supremacy Clause makes federal law the supreme law of the land. Under the Supremacy Clause, state laws can be preempted by federal law expressly or impliedly.

There are 3 ways a federal law may impliedly preempt a state law:

1. Conflict preemption: where a state law conflicts with the requirements of a valid federal law;
2. Object preemption: where a state law interferes with the objective of a valid federal law;
3. Field preemption: where Congress has evidenced an intent to occupy the entire field over which it has power.

Question 12

Freedom of Speech

Answer 12

The First Amendment guarantees the freedom of speech.

Generally, the government may regulate the content of speech if the regulation is necessary to achieve a compelling state interest. The government may regulate the conduct of speech - the time, place, and manner (“TPM”) in which the speech may take place.

Question 13

Freedom of Speech (Forums I)

Answer 13

Public forums are government properties historically open for speech activities, such as sidewalks and public parks.

Designated public forums are government properties not historically open for speech activities but which the government has thrown open for such activities generally.

Test: in public forums and designated public forums, TPM regulations must:

(i) be content neutral: a regulation is content neutral if it is subject matter neutral and viewpoint neutral;
(ii) be narrowly tailored to achieve an important government interest: a regulation is narrowly tailored if it does not burden substantially more speech than is necessary to achieve an important government interest ; and
(iii) leave open alternative channels of communications: a regulation will be deemed to leave open alternative channels of communication if other reasonable means for communicating the idea are available

The regulation need not be the least restrictive means for achieving the government’s goal

Question 14

Freedom of Speech (Forums II)

Answer 14

Limited public forums are government properties not historically open for speech activities but which the government has opened for a particular purpose.

Nonpublic forums are government properties not historically open for speech activities and not held open for speech activities in any way.

Test: In limited public forums and nonpublic forums, TPM regulations must be:

(i) viewpoint neutral and
(ii) reasonably related to a legitimate government purpose.

Question 15

Commercial Speech

Answer 15

In determining the validity of a regulation of commercial speech, the Court first determines whether the speech concerns a lawful activity and is not misleading or fraudulent. If the speech clears this hurdle, it may be limited by a regulation that:

(i) serves a substantial government interest;
(ii) directly advances that interest; and
(iii) is narrowly tailored to achieve that interest.

The mere fact that money is involved does not make the speech commercial.

Question 16

Associational Rights

Answer 16

There is no clear test for determining whether the freedom of association has been violated. Groups are generally held to have a right to limit their memberships as they see fit.

Question 17

Free Exercise Clause

Answer 17

The Free Exercise Clause provides that government shall not interfere with the free exercise of religion.

A belief does not have to be traditional to be protected under the Free Exercise Clause. A belief will be treated as religious if it occupies a place in the believer’s life parallel to that occupied by orthodox religious beliefs. The Free Exercise Clause prohibits the courts from determining the validity of a religious belief, but a court can assess the sincerity of the person asserting a belief.

The Free Exercise Clause does not prevent the government from adopting religiously neutral laws that incidentally interfere with a person’s religious belief. The Free Exercise Clause does not require the government to except from such religiously neutral action conduct motivated by religious belief.

Question 18

Establishment Clause

Answer 18

The Establishment Clause prohibits the government from respecting an establishment of religion.

The main test used to determine whether the Establishment Clause is violated by government’s action is the Lemon test.

Under the Lemon test, government action will be found to violate the First Amendment unless

(i) the action has a secular purpose,
(ii) the primary effect of the action of the action neither advances nor inhibits religion, and
(iii) the action does not produce excessive government entanglements between government and religion.

Question 19

Total taking

Answer 19

The Fifth Amendment to the United States Constitution applies to the states through the Due Process Clause of the Fourteenth Amendment.

The Fifth Amendment provides that government shall not take private property for public use without just compensation. The Fifth Amendment is not a grant of power, but a limitation on power.

Government traditionally have had the power to take private property through eminent domain. The Fifth Amendment limits the power by prohibiting a taking unless it is for a public purpose.

The clearest cases of taking arise when the government physically appropriates a person’s property, even where the appropriation is of only a part of a person’s property.

Question 20

Partial taking

Answer 20

Regulations that merely decrease the value of property do not constitute a taking if they leave an economically viable use for the property. The Supreme Court considers the economic impact of regulations and whether the regulations substantially interfere with distinct, investment backed expectations of claimants.

Question 21

Due Process

Answer 21

The Due Process Clause requires government action to be reasonable. The Fifth Amendment of the United States Constitution is applicable to the states through the Due Process Clause of the Fourteenth Amendment.

Question 22

Procedural Due Process

Answer 22

The Fifth Amendment prohibits the government from denying a person of life, liberty, or property without due process of law.

At a minimum, due process requires the opportunity to present objections to the proposed government action to a fair and neutral decisionmaker (need not be a judge).

Question 23

Substantial Due Process

Answer 23

A law affecting fundamental rights will be held to be reasonable only if it passes strict scrutiny = the government must prove that the action is necessary to achieve a compelling government interest.

In all other cases, the rational test applies = the challenger must prove that the governmental action is not reasonably related to a legitimate government interest.

Question 24

Equal Protection Clause

Answer 24

The Equal Protection Clause prohibits the government from unreasonably treating similarly situated persons in a dissimilar manner. Protects corporations as well as natural persons.

Whether discrimination is reasonable, depends on the basis for the discrimination and the interests involved:
1. If the government intentionally discriminates on the basis of race or national origin, or a fundamental right is involved, strict scrutiny applies and the discriminatory action will be struck down unless the government can prove that the discrimination is necessary to achieve a compelling government interest.

2. If a quasi-suspect classification (gender or legitimacy) is the basis for the discrimination, the discriminatory action will be struck down unless the government can prove that the discrimination is substantially related to a legitimate government interest.
3. If the discrimination is on any other basis, the challenger must prove that the discriminatory action is not reasonably related to a legitimate government interest.

Question 25

Privilege and Immunities Clause

Answer 25

The Privileges and Immunities Clause of Article IV provides that the citizen of each state shall be entitled to the privileges and immunities of citizens in the several states. This Clause has been held to prohibit a state from discriminating against citizens of other states when the discrimination involves commercial activities or civil liberties.