Constitutional Law

Question 1

Federal judicial power extends to cases involving

Answer 1

(1) interpretation of the Constitution, federal laws, treaties, and admiralty and maritime laws; and (2) disputes between states, states and foreign citizens, and citizens of diverse citizenship; Supreme Court may review constitutionality of acts of other branches of federal government and may review state acts pursuant to Supremacy Clause

Question 2

Jurisdiction of Supreme Court

Answer 2

original jurisdiction in all cases affecting ambassadors, public ministers, consuls, and those in which state is a party, but Congress has given concurrent jurisdiction to lower fed courts except those between states; has appellate jurisdiction in all cases to which fed power extends – can come by writ of cert [complete discretion to hear cases that come to it by cert (1) cases from state courts where the (a) constitutionality of federal statute, federal treaty, or state statute is in issue, or (b) a state statute allegedly violates fed law’ (2) all cases from fed cts of appeal]; must hear cases that come to it by appeal – rare

Question 3

Limitations on Federal Jurisdiction

Answer 3

Advisory Opinions: No advisory opinions [present harm or threat of specific future harm]

Ripeness [immediate threat of harm]

Mootness [real controversy must exist; exceptions: controversies capable of repetition, but evading review; class rep may continue to pursue class action after reps claim becoming moot if class’s claim still viable

Standing [injury, causation, redressability]

Question 4

Ripeness

Answer 4

[immediate threat of harm]

Question 5

Mootness

Answer 5

real controversy must exist; exceptions: controversies capable of repetition, but evading review;

Question 6

Standing

Answer 6

injury, causation, redressability

Question 7

Third party standing

Answer 7

one cannot constitutional rights of others to obtain standing, but a claimant within standing in her own right may also assert rights of third party is (1) it is difficult for third party to assert her own rights OR (2) special relationship exists between claimant and third party

Question 8

Standing of organizations

Answer 8

has standing if (1) there is an injury in fact to members that gives them a right to sue on their own behalf, (2) injury is related to organization’s purpose, and (3) individual member participation in lawsuit is not required

Question 9

Taxpayer standing

Answer 9

standing to litigate tax bill but no standing to challenge government expenditures; suits attacking congressional spending measures on 1st Am
Establishment Clause grounds – exception [spending
power involved]

Question 10

Independent State Law Grounds

Answer 10

No jurisdiction if state court judgment is based on adequate and independent state law grounds [fully dispositive of case]

Question 11

Abstention

Answer 11

disposition rests on unsettled question of state law; will not enjoin pending criminal proceedings except where harassment & bad faith

Question 12

Political Questions

Answer 12

will not be decided – (1) constitutionally committed to another branch of gov or (2) inherently incapable of judicial resolution

Question 13

11th Amendment

Answer 13

bars suits against state govs in federal court – cannot hear claims from a private party or foreign gov against state gov

Exceptions: (1) state waives sovereign immunity or consents; (2) suit involves enforcement of laws under 14th Amendment; (3) federal gov brings suit; (4) bankruptcy proceedings | state officers: can be brought in fed ct if suit involves (1) claim for injunctive relief for violation of Con or fed law; (2) claim for money damages to be paid by state officer personally

Question 14

Necessary and Proper Clause

Answer 14

to make all laws necessary and proper (appropriate) for executing any power granted to any branch of fed gov – not an independent source of power

Question 15

Taxing Power

Answer 15

power to tax – will be upheld if bear some reasonable relationship to revenue production or if Congress has power to regulate the activity taxed

Question 16

Spending Power

Answer 16

may spend to provide for common defense and general welfare – may be for any public purpose

Question 17

Commerce Power

Answer 17

regulate all foreign and interstate commerce – fed law regulating interstate commerce must either: (1) regulate channels of interstate commerce; (2) regulate instrumentalities of interstate commerce and persons or things in interstate commerce; or (3) regulate activities that have substantial effect on interstate commerce

Question 18

Intrastate commerce

Answer 18

court will uphold reg if it is economic or commercial activity and ct can conceive rational basis on which Congress can conclude in aggregate substantially affects interstate commerce; Congress may only regulate noneconomic activities if it individually and substantially affects interstate commerce as matter of fact

Question 19

War Powers (Congress)

Answer 19

declare war, raise and support armies, and provide for and maintain navy; economic regulation assert during wartime upheld; Congress authorized to make rules for government and regulation of armed forces

Question 20

Investigatory Power

Answer 20

implied – investigation must be expressly or impliedly authorized by appropriate congressional house

Question 21

Property Power (Congress)

Answer 21

to dispose and make rules for territories and other properties of US; federal takings must be for purpose of effectuating an enumerated power

No federal police power [ex: DC, federal lands, military bases, Indian reserves]

Question 22

Plenary power over aliens – (Congress)

Answer 22

no right to enter US; resident aliens entitled to notice & hearing before deportation; exclusive power over naturalization

Question 23

Delegation (Congress)

Answer 23

legislative power may be delegated to executive or judicial - intelligible standards are set and power is not uniquely confined to Congress

Question 24

Fed Legislative Process

Answer 24

Conduct that occurs in regular course of fed leg process and motivation behind conduct are immune from prosecution [doesn’t cover bribes, speeches outside of Congress, or republication in a press release or newsletter of defamatory statement originally made in Congress]

Question 25

Legislative vetoes of executive actions

Answer 25

are invalid

Question 26

Appointment (Executive Powers)

Answer 26

Power to appoint ambassadors, federal judges, and other high-level officers; Congress cannot give itself appointment powers – can vest the power to appoint inferior officers in the President, fed cts, or heads of depts.

Question 27

Removal (Executive Powers)

Answer 27

can remove any high-level executive officer [good cause is required to fire those in positions that Congress has decided should be independent]; Congress can only remove executive officers through impeachment power

Question 28

Pardons (Executive Powers)

Answer 28

grant for all fed offenses but not for impeachment or civil contempt; cannot be limited by Congress

Question 29

Veto (Executive Powers)

Answer 29

if Pres disproves, can still become law with 2/3 vote of each house; has 10 days to exercise power & if fails he automatically vetoed if Congress not in session and if is in session bill becomes law; line-item veto unconstitutional

Question 30

Chief Executive (Executive Powers)

Answer 30

if Pres acts with express/implied authority of Congress, his authority is max; acts where Congress is silent, upheld unless it usurps power of another governmental branch; against express will of Congress, he has little authority and action likely invalid
Pres has no power to refuse to spend appropriated funds when Congress expressly mandated, they be spent

Question 31

War (Executive Powers)

Answer 31

no power to declare war but may act militarily in hostilities against US without congressional declaration of war

Question 32

Foreign Relations (Executive Powers)

Answer 32

paramount power to represent US

Question 33

Treaties (Executive Powers)

Answer 33

power to enter into treaties with consent of 2/3 senate – state laws that conflict are invalid; conflict between congressional act and treaty = last in time prevails; may not be inconsistent with Constitution

Question 34

Executive Agreements

Answer 34

no consent of Senate; in conflict with state law, agreement prevails; if contact with fed law, fed law prevails

Question 35

Executive Privilege/Immunity

Answer 35

Pres has privilege to keep certain communications secret [ex: criminal proceedings: will be available to protection where need for info is demonstrated]; Pres has absolute immunity from civil damages based on any action he took within official responsibilities but no immunity for acts that occurred before taking office

Question 36

Impeachment

Answer 36

treason, bribery, high crimes, and misdemeanors majority vote in House necessary and 2/3 vote in Senate to convict

Question 37

Supremacy Clause

Answer 37

Express Preemption [fed law expressly provides that states may not adopt laws concerning subject matter of fed leg]; Implied Preemption [if state law conflicts with fed law; if state law prevents achievement of fed objective; fed statute occupies entire field]

Question 38

Full Faith & Credit

Answer 38

if judgment entitled to it, will be recognized in sister states; applies only if (1) ct that rendered judgment had jurisdiction over parties and subject matter, (2) judgment was on merits, (3) judgment is final

Question 39

Federal Suits

Answer 39

US may sue a state without its consent; public policy forbids state from suing US without its consent suit against fed officer is against US itself if judgment sought would be satisfied out of public treasury or would interfere with public administration and is not permitted; against officer as individual is permitted

Question 40

Regulation (Federal System)

Answer 40

Congress may subject state activities to regulation or taxation if law or tax applies to BOTH public sector and private sector; a fed tax regulation that is not applicable to private business and merely taxes/regulates a purely state gov activity may be limited by 10th Amendment [ex: activities that violate civil rights; spending power conditions – imposing conditions on grant of money to state or local govs – (1) clearly stated, (2) relate to purpose of program, (3) not unduly coercive]

Question 41

Taxing the Federal Government

Answer 41

State may not directly tax fed instrumentalities without consent of Congress; nondiscriminatory, indirect taxes are permissible if they do not unreasonably burden fed gov

Question 42

Article IV (PRIVILEGES & IMMUNITIES)

Answer 42

prohibits discrimination by a state against nonresidents when discrimination concerns fundamental rights [rights relating to commercial activities such as pursuit of livelihood or civil liberties]; applies only if discrimination is intentionally protectionist in nature [may be valid if state has substantial justification for different treatment – state must show nonresidents either cause or are part of problem that state is attempting to sold and there are no less restrictive means to solve problem]

Question 43

14th Amendment (PRIVILEGES & IMMUNITIES)

Answer 43

States may not deny their citizens privileges or immunities of national citizenship [right to petition Congress for redress, right to vote for fed officers, right to interstate travel] – corporations not protected

*Power to regulate foreign commerce lies directly with Congress

Question 44

Discrimination of Interstate Commerce

Answer 44

State regs that discriminate against interstate commerce to protect local economic interests are almost always invalid [ex: will be valid if it furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives available

Question 45

Market Participant

Answer 45

state may prefer its own citizens when acting as market participant (buying or selling, hiring, labor or giving subsidies)
● Favoring gov performing traditional gov functions [waste disposal]
● If nondiscriminatory state law burdens interstate commerce, it will be valid unless
burden outweighs the promotion of a legitimate local interest

Question 46

21st Amendment

Answer 46

state govs have wide latitude over importation of liquor and conditions under which it is sold or used within state; subject to commerce clause

Question 47

State Taxation

Answer 47

Congress has complete power to authorize or forbid state taxation that affects interstate commerce; state taxes that discriminate against interstate commerce violate CC; nondiscriminatory tax will be valid if (a) tax must apply to an activity having substantial nexus to taxing state; (b) fairly apportioned according to a rational formula; (c) fairly related to services or benefits provided by state

Question 48

Use Taxes

Answer 48

imposed on goods purchased outside state but used in it; valid

Question 49

Ad valorem property taxes

Answer 49

based on assessed value of property in question – interstate transportation begins when cargo is delivered to interstate carrier OR actually starts in interstate journey

Question 50

Privilege, license, franchise, or occupational taxes

Answer 50

generally permitted

Question 51

13th Amendment

Answer 51

prohibits slavery and involuntary servitude – Enabling Clause – Congress can prohibit racially discriminatory action by ANYONE

Question 52

14th and 5th Amendments

Answer 52

14th prevents states from depriving person of life, liberty or property without due process and equal protection of law ; 5th prevent both federal and state govs from denying citizen right to vote on account or race or color; private conduct NOT prohibited by these amendments – only where some state action is involved

Question 53

State Action

Answer 53

Constitution generally applies only to gov action; activities that are so traditionally the exclusive prerogative of state are state action; state action also exists wherever a state affirmatively facilitates, encourages or authorizes acts of discrimination by its citizens

Question 54

Contracts Clause

Answer 54

limits ability of states to enact laws that retroactively impair K rights; does not affects Ks not yet made – not applicable to Fed Gov Private Ks [intermediate scrutiny]; Public Ks [stricter scrutiny]

Question 55

Ex Post Facto Laws

Answer 55

law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for purpose of punishing person for past activity; (1) makes criminal act that was innocent when done; (2) prescribes greater punishment for an act that was prescribed for the act when it was done; (3) reduces the evidence required to convict person of a crime from what was required when was committed applies only to CRIMINAL CASES

Question 56

Bills of Attainder

Answer 56

legislative acts that inflict punishment on individuals without judicial trial – fed and state govs are prohibited from passing these

Question 57

Procedural Due Process

Answer 57

*Fair process (notice + hearing) is required for a gov agency to individually take person’s life, liberty or property – only intentional deprivation

Question 58

Liberty

Answer 58

Person loses significant freedom of action OR is denied a freedom provided by Constitution or statute

Question 59

Property

Answer 59

Legitimate claim or entitlement to benefit under state or fed law [attendance at public school, welfare benefits, & gov employment]

Question 60

Procedural Due Process - Process Required

Answer 60

What process is required: (1) important of interest to individual; (2) value of procedural safeguards to that interest; against (3) government interest in fiscal and administrative efficiency
● Due process rights are subject to waiver if waiver is voluntary and made knowingly
● Government fees must be waived when imposition of fee would deny a fundamental right to indigent

Question 61

The Takings Clause

Answer 61

*5th Am provides that private property may not be taken for public use without just compensation – physical appropriations & SOME government action that damages property or impairs its use

Question 62

Rationally Related

Answer 62

If gov action is rationally related to legitimate public purpose, public use requirement is satisfied

Question 63

Taking v. reg

Answer 63

actual or physical appropriation of property will almost always amount to taking and temporary appropriation or physical invasion is a taking [ex: emergency situations]; denial of all economic value of land is a taking; temporarily denying owner of all economic use of property not taking per se; regs that merely decrease value of property do not amount to taking if they leave an economically viable use for property

Question 64

Development permit dedication requirements

Answer 64

constitute taking unless (1) gov can show condition
relates to a legitimate gov interest and (2) adverse impact of proposed development is roughly proportional to loss caused to property owner from forced transfer

Question 65

Just compensation

Answer 65

(1) pay property owner just compensation for property; or (2) terminate regulation and pay owner for damages that occurred while reg was in effect measured by FMV of property taken at time of taking; measured by loss to owner, not by gain to taker

Question 66

Substantive due process v. Equal protection

Answer 66

if law limits liberty of ALL persons to engage in some activity, due process; if law treats a person or class of persons differently from others, equal protection

Question 67

Strict Scrutiny

Answer 67

regs affecting fundamental rights or involving suspect classifications law is upheld if it is necessary to achieve a compelling gov purpose gov has burden of proof

Question 68

Intermediate Scrutiny

Answer 68

regs involving quasi suspect classes law upheld if it is substantially related to an important gov purpose gov has burden

Question 69

Rational Basis

Answer 69

All other things law is upheld if it is rationally related to a legitimate gov purpose usually valid unless arbitrary/irrational – challenger has burden

Question 70

Equal Protection Classification

Answer 70

If fundamental right or suspect class is involved = strict scrutiny; if quasi-suspect class is involved = intermediate scrutiny; rational basis for the rest

Question 71

Intent to Discriminate

Answer 71

For strict/intermediate scrutiny to be applied, there must be INTENT on part of gov to discriminate – (1) law that is discriminatory on its face, (2) discriminatory application of facially neutral law, (3) discriminatory motive behind law

Question 72

Suspect Classification

Answer 72

RACE, NATIONAL ORIGIN, ALIENAGE

Undocumented aliens are NOT suspect classifications – rational basis [ex: denial of free public education to their children is invalid]

Question 73

Quasi-Suspect Classification

Answer 73

GENDER & LEGITIMACY

● Intentional discrimination against women is generally invalid; classifications benefiting women have been found to be substantially related
● Intentional discrimination against men is invalid [ex: statutory rape laws]
● Discriminatory regs to punish nonmarital children are invalid

Question 74

Rational Basis

Answer 74

OTHER CLASSIFICATIONS

● Age, disability, wealth

Question 75

Right to Vote

Answer 75

Restrictions on right other than on basis of residence, age, and citizenship are INVALID unless can pass strict scrutiny
● Reasonable time periods for residency valid
● Conditioning right on ownership of property
invalid [ex: special purpose elections]
● Poll taxes are unconstitutional
● One person one vote – applies whenever gov
or state decides to select reps to a gov body by
popular election from individual districts
● States must use almost exact mathematical equality when creating congressional districts
within state
● Apportionment requirement is inapplicable to
officials who are appointed or elected at large
● Gerrymandering: race cannot be predominant factor in drawing boundaries of voting districts
unless can pass strict scrutiny
● States may not charge candidates fee that
results in making it impossible for indigents to run for office; ballot access must be reasonable, nondiscriminatory means of promoting important state interests

Question 76

Right of Privacy

Answer 76

Marriage
● Use of contraceptives
● Abortion [pre-viability: state may adopt a reg
protecting mother’s health and life of fetus if reg does not place an undue burden on or substantial obstacle to woman’s right to obtain abortion] [post-viability: may prohibit abortion unless woman’s health threatened] gov has no obligation to pay for abortions
● Freedom to read obscene material in one’s home [not child porn]
● Keeping extended family together
● Rights of parents [decisions concerning care, custody, and control of children – private
school or visit with grandparents]
● Intimate sexual conduct
● No privacy right in collection and distribution
of personal data

Question 77

Right to Travel

Answer 77

fundamental right to migrate from state to state and be treated equally after moving into new state is fundamental; international travel NOT fundamental

Question 78

Freedom of Speech and Assembly

Answer 78

• Restricts gov regulation of private speech; gov speech and gov funding of speech will be upheld if rationally related to a legitimate state interest
• Does speech at issue fall within a lesser-protected category of speech? If yes, apply the appropriate test for that category; if no, identify whether speech restriction is content-based or content-neutral to determine applicable scrutiny

Question 79

Content-Based

Answer 79

restrict speech based on its subject matter or viewpoint

Question 80

Content-Neutral

Answer 80

analyze under public forum doctrine; restrict time, place, or manner of delivery of speech, not its content [public forum = intermediate-type scrutiny; non-public forum = rational basis-type scrutiny]

Question 81

Overbroad reg invalid

Answer 81

punishes a substantial amount of protected speech in relation to its plainly legitimate sweep is facially invalid

Question 82

Void for Vagueness

Answer 82

if criminal law or reg fails to give persons reasonable notice of what is prohibited; reg cannot give officials broad discretion over speech issues – must be defined standards for applying law – void on its face if gives too much discretion

Question 83

Time, Place, Manner Restrictions

Answer 83

gov has power to regulate conduct associated with speech and assembly

Question 84

Public Forums & Designated Public Forums

Answer 84

Public property that has been historically open to speech-related activities [streets, sidewalks, public parks]; or property which is historically not open but which gov has thrown open for such activities on permanent or limited basis may regulate speech with reasonable regs that (1) are content neutral; (2) are narrowly tailored to serve an important gov interest; (3) leave open alternative channels of communication

Question 85

Limited Public Forums & Nonpublic Forums

Answer 85

not held open for speech activities [schools while classes are in session, gov workplaces, military basis] gov can regulate speech in a forum to reserve forum for its intended use and regs are valid if they are (1) viewpoint neutral and (2) reasonably related to a legitimate gov purpose

Question 86

Unprotected Speech

Answer 86

gov has compelling interest in following
● Inciting imminent lawless action – imminent legal conduct is likely, and speaker intended to cause it [July 2009]
● Fighting Words: true threats – personally abusive words that are likely to incite immediate physical retaliation in an average person [July 2009]
● Obscenity: (1) appeals to prurient interest in sex, using a community standard; (2) is patently offensive and an affront to contemporary community standards; and (3) lacks serious value (literary, artistic, political, or scientific) using a national reasonable person standard
● Defamatory Speech: if about a public official or public figure or involves public concern, P prove all elements plus falsity and some degree of fault
● Some Commercial Speech: afforded protection if it is truthful; speech that proposes unlawful activity or that is misleading or fraudulent may be burdened; any other reg will be upheld only if it (1) serves a substantial gov interest; (2) directly advances that interest; and (3) is narrowly tailored to serve that interest

Question 87

Prior Restraints

Answer 87

court orders that prevent speech before it occurs – rarely allowed – must show some societal harm will otherwise result – to be valid must have following safeguards: (1) standards must be narrowly drawn, reasonable, and definite; (2) injunction must promptly be sought; and (3) must be prompt and final determination of validity of restraint

Question 88

Freedom of Press

Answer 88

no greater 1st Am freedom than does private citizen; right to publish truthful info regarding matter of public concern; guarantees press right to attend criminal trials – right may be outweighed by an overriding interest stated in trial judge’s findings

Question 89

Freedom of Association & Belief

Answer 89

*Gov may neither prohibit politically unpopular groups nor unduly burden person’s right to belong to such group; infringement will be justified by compelling gov interest unrelated to suppression of ideas, if infringements are least restrictive means of protecting gov interests involved

Question 90

Electoral Process

Answer 90

CONTRIBUTIONS – intermediate scrutiny – laws may limit amount of money that person gives to political candidate but gov may NOT limit amount of money that may be spent to support or oppose ballot referendum – gov may not limit aggregate amount one person or entity contributes to political candidates or committees during election;

EXPENDITURES – laws may NOT limit amount that a candidate spends on political campaign

Question 91

Regulation of “core political speech”

Answer 91

(electioneering, distributing campaign literature) will be upheld only if passes strict scrutiny

Question 92

Government employees

Answer 92

gov employer may punish employee speech whenever speech is made on job and pursuant to employee’s official duties; if speech not made pursuant to official duties (1) if does not involve a matter of public concern, courts give gov employer a wide degree of deference and allow employer to punish if speech was disruptive to work environment; (2) if matter of public concern is involved, courts balance employee’s rights as a citizen to comment against govs interest as employer in efficient performance of public service

***Public employee may not be hired, fired, promoted based on party affiliation or political views

Question 93

Loyalty oaths

Answer 93

oath cannot prohibit membership in Communist Party or require abstention from advocating overthrow of gov as an abstract doctrine; oath requiring employees to support Constitution and to oppose unlawful overthrow of Gov is valid; oath requiring public employees to support flag is invalid

Question 94

Disclosure

Answer 94

gov may not force disclosure of every organizational membership in exchange for a gov employment or other benefit; may only inquire into activities that are relevant to employment or benefit sought

Question 95

Free Exercise Clause

Answer 95

Free Exercise Clause: prohibits gov from punishing someone on basis of her religious beliefs [clause forbids (1) state gov from requiring office holders or employees to take religious oath; (2) states from excluding clerics
from holding public office; and (3) courts from declaring a religious belief to be false]

● Cannot be used to challenge gov reg unless reg was specifically designed to interfere with religion; does not require religious exemptions from generally applicable gov regs that happen to burden religious conduct [ex: ministers, unemployment compensation cases, right of Amish not to educate kids]

Question 96

Establishment Clause

Answer 96

will be found invalid unless action (a) has secular purpose, (2) has a primary effect that neither advances nor inhibits religion; and (3) does not produce excessive gov entanglement with religion
● Gov action that prefers one religious sect over another violates clause
● Law favoring or burdening religion or specific religious group will be invalid but law favoring or burdening a large segment of society that happens to include religious groups will be upheld