Constitutional Law

Question 1

Constitutional Law: Freedom of Religion and No Establishment Laws Aimed at Religious Behavior or Conduct- Level of Scrutiny?

Answer 1

Unless the gov’t can prove that laws aimed at religious behavior are necessary to a compelling state interest (strict scrutiny) it may not single out, prohibit or punish religious behavior b/c it is religious or performed by a religious group.

Question 2

Constitutional Law: Equal Protection Name the 3 Standards of Review

Answer 2

1. Strict Scrutiny - the government must prove that the law is NECESSARY to achieve a COMPELLING interest 2. Intermediate Scrutiny - The government must prove that the law SUBSTANTIALLY SERVES an IMPORTANT interest 3. Minimum Scrutiny - The Plaintiff must prove that the law lacks a rational basis and is unrelated to any legitimate objective

Question 2

Constitutional Law: Fundamental Rights What is the Fundamental Right to Vote and Participate in the Political Process?

Answer 2

Right to vote: states have broad power to prescribe REASONABLE residence, age and citizenship qualifications. One-Person, One-Vote: In State and Local elections deviations of up to 16% have been permitted, Federal Elections- deviations of under 1% have been invalidated Ballot Access: A state may adopt reasonable ballot access requirements.

Question 3

Constitutional Law: The Judicial Power What does the 11th Amendment tell us about a private party’s ability to sue a state in federal court?

Answer 3

Under the 11th A, a private party cannot sue a state in federal court unless the state expressly consents, or Congress clearly says so to enforce 14th A rights.

Question 3

Constitutional Law: Legislative Powers How is it that Congress is able to actually carry out its express powers?

Answer 3

Congress’ express powers are supplemented by the Necessary and Proper Clause, which allows Congress to use all convenient and useful means to carry out their enumerated powers. N&PC not an independent Congressional power.

Question 4

Constitutional Law: The Judicial Power What are the definitions of independent and adequate state law grounds?

Answer 4

Independent: A case rests on independent state law grounds so long as state law does not depend on an interpretation of federal law or incorporate a federal standard. Adequate: A case rests on an adequate state law ground if, no matter how the federal issue is decided, the outcome will still be the same under the resolution of the state law issue.

Question 5

Constitutional Law: Freedom of Speech and Press Speech of Public Employees What can and can’t the gov’t regulate?

Answer 5

• Can’t be hired or fired based on party affiliation, political philosophy or any act of expression - Employees speaking as citizens about a matter of “public concern” can’t be fired or disciplined unless their speech disrupts the operation of the office, undermines authority or destroys close working relationships - Gov’t CAN limit the right of public employees to engage in partisan political activities relating to political management and campaigning

Question 6

Constitutional Law: Equal Protection Discrimination Based on Alienage (Non-U.S. Citizens) 1. Congressional Standard? 2. State Standard? 3. Exception

Answer 6

1. Rational basis 2. Strict scrutiny 3. States may require U.S. citizenship for government policymaking or policy implementing positions - cops and teachers

Question 6

Constitutional Law: Freedom of Religion and No Establishment Describe any Establishment Issues w/ Gov’t sponsored prayer or religious displays

Answer 6

• Gov’t sponsored religious exercises and prayers in public schools prohibited - Can’t sponsor religious displays if a reasonable observer would conclude that gov’t in endorsing religious messages.

Question 7

Constitutional Law: Freedom of Speech and Press What are the three factors for determining of a matter is obscene? When can gov’t regulate sexually explicit material even if not obscene?

Answer 7

Three S’s 1. SEXY: average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest 2. SICKENING: the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law. 3. Lacks SERIOUS value: the work, taken as a whole, lacks serious literary artistic, political, or scientific value Even if not obscene gov’t may: 1. Limit availability to minors and may prohibit use of minors in creating such materials 2. Use zoning powers to prescribe where places of adult entertainment may operate, as long as gov’t has a substantial interest in regulating and ample opportunities remain available for the operation of these businesses

Question 8

Constitutional Law: Fundamental Rights Level of Scrutiny? What rights are considered Fundamental?

Answer 8

Strict or heightened 1.Privacy Rights - Marriage and Divorce - Contraception - Abortion - Obscenity in the home - Certain Family Relationships - Right to refuse Medical Treatment - Protection for Private Consensual Sexual Activity Between Adults 2. Right to vote and participate in political process 3. Right to Interstate Travel 4. 2nd Amend right to have a gun in home for self-defense

Question 8

Constitutional Law: Freedom of Religion and No Establishment Describe any Establishment Issues w/ proving Gov’t aid to Religious Schools

Answer 8

• Can provide aid to religiously affiliated elementary and secondary schools under secular purpose of assisting the educational needs of students, but CAN’T have primary effect of advancing religion. Primary effect of advancing religion is likely to be found w/ aid that is not generally available but is specially designated for religious schools. - Cts. likely to uphold aid to religiously affiliated higher ed institutions b/c unlikely that such aid will be used to advance religious purposes.

Question 9

Constitutional Law: The Judicial Power When will a case be dismissed for mootness?

Answer 9

A case will be dismissed as moot unless an actual, live controversy exists between the parties at all states of the litigation (including on appeal).

Question 9

Constitutional Law: State Taxation of Interstate Commerce When is a tax on interstate commerce valid?

Answer 9

1. It must be non-discriminatory 2. The activity, person, or thing taxed must have a substantial nexus to the state. There must be an actual presence in the state. E.g. sales taxes, property taxes, doing business taxes 3. The tax must not be UNREASONABLY BURDENSOME in particular, it must be proportioned to the company’s business done in the state or benefits received in the state

Question 10

Constitutional Law: Fundamental Rights What is the Fundamental Right to Abortion?

Answer 10

Prior to viability the gov’t may not impose any undue burden on a woman’s choice to terminate. After viability gov’t can regulate substantially and even prohibit abortion.

Question 12

Constitutional Law: The Judicial Power What is a political question?

Answer 12

Questions which are constitutionally committed to another branch of gov’t to decide, or are beyond the competence/enforcement capability of the judicial branch.

Question 13

Constitutional Law: The Judicial Power What are the three requirements for an organization to sue on behalf of its members?

Answer 13

1. A member or members would have standing; 2. The member’s injury is related to the purpose of the organization 3. The claim does not require participation of the individual members (always an injunction or declaratory relief- no damages)

Question 13

Constitutional Law: Privileges and Immunities Clause of Art. IV What is the rule?

Answer 13

States may not discriminate against out-of-state citizens with respect to commercial activities (e.g. employment, dealings in property or contract) or the enjoyment of civil liberties States may, however, require in state residency for their own employees, may charge out-of-staters more for hunting licenses or tuition benefits, and may prefer their own citizens in giving state benefits, like welfare, or subsidies

Question 14

Constitutional Law: Legislative Powers What is the purpose of the 15th Amendment?

Answer 14

The 15th A protects the right to vote against any federal or state gov’t racial discrimination, and gives Congress the power to enforce it.

Question 15

Constitutional Law: Freedom of Speech and Press What are fighting words?

Answer 15

Words which, but their very utterance inflict injury or tend to incite an immediate breach of the peace. This speech is completely outside of 1st Amend protection and may be punished or prohibited.

Question 16

Constitutional Law: Freedom of Speech and Press What are the factors for determining if speech incites immediate lawless or violent behavior?

Answer 16

The Gov’t may punish and prohibit speech that: - is directed at inciting and, - which is in fact likely to incite imminent lawlessness

Question 17

Constitutional Law: The Judicial Power What are the four circumstances where a case is generally NOT considered moot?

Answer 17

1. Injury capable of repetition to THAT P, yet, b/c of its nature, will evade review (look for internal, independent time limits on events, like pregnancy) 2. Case is brought as a class action and the issues remain alive at least as to one member of the class. 3. Collateral or continuing issues exist between the parties despite appearing moot 4. “Voluntary Cessation of Illegal Activities”: D has ceased harm but is free to return to his old ways

Question 19

Constitutional Law: The Judicial Power What are the two requirements for third-party standing?

Answer 19

1. The party her/himself has suffered some actual injury 2. There is a special relationship between the party and a 3rd person, AND 3. There is some hindrance to 3rd party raising her/his own rights

Question 20

Constitutional Law: Freedom of Speech and Press What are three considerations for whether a law limiting speech is reasonable?

Answer 20

• Vaguness- will a person of common intelligence know what behavior is prohibited? - Overbreadth- Does the law prohibit substantially more expression than is necessary? - Prior Restraint- enjoins speech before it is uttered. Gov’t bears a heavy burden to show prior restraint is necessary to prevent direct, immediate, and irreparable harm.

Question 21

Constitutional Law: Equal Protection How is a law based on race, alienage, gender or illegitimacy judged to be discriminatory?

Answer 21

The law intentionally and purposefully discriminates based on: 1) Its face 2. The law is neutrally written but intentionally applied on an individious basis —-Mere disparate impact is not enough

Question 22

Constitutional Law: Freedom of Speech and Press What are the three requirements of valid time, place and manner controls?

Answer 22

1. Content Neutrality 2. Substantial Alternative Opportunities for the Speech to take place 3. Law Narrowly Serves a Significant State Interest

Question 23

Constitutional Law: Equal Protection Racial affirmative action based on: 1. Court-Ordered Race-Based Remedies 2. Voluntary Affirmative Action Plans

Answer 23

1. Courts are empowered to use race-based remedies to redress past de jure discrimination 2. Government agencies have a compelling interest in specifically correcting their prior discrimination against minorities —Can’t be for societal wrongs

Question 24

Constitutional Law: Legislative Powers What are the limits of congressional immunity?

Answer 24

Members of Congress may not be prosecuted or punished, either civilly or criminally, for their official or “legislative acts.” Legislative acts narrowly defined as that which is integral to the legislative process (actions on the floor, voting, committee work) and does not include communications with constituents, bribery, or redistribution of materials prepared in the legislative process.

Question 25

Constitutional Law: The Judicial Power What is the doctrine of abstention?

Answer 25

Under this doctrine, a federal court will decline to hear a case challenging state law if it involves a constitutional challenge to the state law but the meaning of the state law is unsettled or unclear, or if the matter is already pending before state judicial or administrative tribunals.

Question 26

Constitutional Law: Legislative Powers What is the substantial effects test?

Answer 26

Congress may regulate purely local and intrastate activities which, by themselves or repeated by others, substantially affect interstate commerce.

Question 26

Constitutional Law: Freedom of Speech and Press Freedom of the Press

Answer 26

1. Same rights as everyone else, no more or less 2. Rights belong to owner or publisher, not readers or persons who are criticized in the press

Question 27

Constitutional Law: Ex Post Facto Laws

Answer 27

Neither Congress nor the states may pass ex post facto laws. The ex post facto prohibition applies only to CRIMINAL statutes It’s ex post fact if: 1. Makes criminal today what you did yesterday 2. Increases the punishment after the crime was committed 3. Reduces the evidence for conviction after the crime was committed

Question 27

Constitutional Law: Freedom of Religion and No Establishment No Establishment of Religion 1. Basic Test?

Answer 27

1. Neutrality and No Endorsement- 3 part test: - Law must have a secular purpose - Primary effect must neither advance nor inhibit religion - Law must not involve an excessive entanglement w/ religion

Question 29

Constitutional Law: Procedural Due Process What two questions must you ask for a procedural due process question?

Answer 29

1. Was there a deprivation of a life, liberty, or property interest? 2. If so, what process is due? a). Minimal due process requires notice and some opportunity to be heard b). Courts determine the actual procedures by balancing: (i) Nature of the private interest (ii) Risk of a mistake, and (iii) Government’s interest in the procedures

Question 30

Constitutional Law: Equal Protection Discrimination Based on Gender 1. Level of Scrutiny? 2. Exceptions

Answer 30

1. Intermediate Scrutiny- applies to both women & men 2. Two Exceptions: - Bona Fide Affirmative Action (specific program must be aimed at, and actually operates to, make up for past discrimination against women) - “Real Differences” Between Men & Women (where men and women are not similarly situated like male only draft and statutory rape)

Question 32

Constitutional Law: Ban on Bills of Attainder

Answer 32

Neither States or the Feds may pass legislation that inflicts punishment, civil or criminal, on named individuals or ascertainable members of a group without a judicial trial

Question 33

Constitutional Law: Freedom of Religion and No Establishment Describe any Establishment Issues w/ providing Generalized Gov’t Benefits to religious institutions

Answer 33

• Generally these forms of assistance and interaction are regarded as benign. These practices are historically accepted or provide generally available gov’t benefits which do not primarily advance religion. - Gov’t can’t provide religious groups w/ benefits not generally available to the public.

Question 35

Constitutional Law: Dormant Commerce Power When may a state law be invalid even if it is non-discriminatory?

Answer 35

If it imposes an Unreasonable Burden on interstate commerce It is a balancing test, weighing the actual effects of the law on the free flow of commerce against the state’s interests served by the law

Question 36

Constitutional Law: Equal Protection Discrimination Based on Legitimacy 1. Level of Scrutiny? 2. Requirements for all laws 3. Exception

Answer 36

1. Intermediate Scrutiny 2. The illegitimate must have a reasonable time period within which to establish paternity. 3. When dealing w/ immigrants, Congress has greater latitude to treat illegitimates unequally

Question 38

Constitutional Law: The Judicial Power What are the basic requirements for SCOTUS review of state court judgments?

Answer 38

1. Case involves a matter of federal law; 2. Case has a final judgment from the highest state court authorized to hear the case, and 3. There are no independent and adequate state grounds on which the state court decision is based

Question 39

Constitutional Law: Dormant Commerce Power When don’t the limits of the DCC apply?

Answer 39

1. When Congress grants the state permission 2. DCC does not apply when the state is acting as a market participant, that is a buyer or seller of commodities or services - or provides own citizens with subsidies 3. 21st Amendment - States have more power to “burden” or regulate liquor than other articles of commerce

Question 40

Constitutional Law: Legislative Powers What are the three most testable limits on the Commerce Clause?

Answer 40

1. Congress may not tell states what laws to enact- would burden principle of political accountability 2. Congress may not commandeer state regulatory agencies and force them to enforce federal laws 3. Congress cannot criminalize behavior which does not in any way relate to commercial or economic activity

Question 40

Constitutional Law: Individual Rights When is there governmental action by the state?

Answer 40

1. Obvious State action - cops, bureaucrats take action 2. When a private entity performs a governmental function traditionally and exclusively performed by governments 3. When the state and the private actor are working together as partners or joint venturers or when the state actively, affirmatively, and significantly commands, encourages, or approves of the private actor’s challenged behavior However - the mere fact that the state licenses, regulates, funds, or confers significant benefits on a person or business, even if the licensing or regulation is not extensive and even if the funding or benefit is critical it is NOT enough to establish state action

Question 41

Constitutional Law: Contract Clause

Answer 41

States may not by legislation substantially impair pre-existing contracts unless the law serves an overriding public need, and the law is a reasonable and narrowly tailored means of meeting that need

Question 41

Constitutional Law: Freedom of Religion and No Establishment What is Free Exercise of Religious Belief?

Answer 41

Gov’t can’t require people to or punish people for professing a particular religious belief BUT in the proper context, gov’t may inquire into the sincerity of your beliefs but not the truth of them.

Question 42

Constitutional Law: Legislative Powers What is the process of impeachment?

Answer 42

Articles of impeachment drawn up by House, trial by Senate (2/3 vote for immediate removal), removal from office

Question 44

Constitutional Law: The Judicial Power What does the 11th Amendment tell us about the rights of a private party to a sue a state representative?

Answer 44

Under the 11th A, a person may sue state officers (i) in their individual capacities for damages, and (ii) may sue state officers for injunctions against future unconstitutional action by the state.

Question 45

Constitutional Law: Executive Powers Responsibilities for administrative/executive branch appointees: Congress or the President?

Answer 45

Principal Officers (ambassadors/judges/cabinet heads): The President, with the advice/consent of Senate Inferior Officers (those who have to answer to others/have limited duties/jurisdiction): Congress may vest appointment in President, Dep’t Heads, or the judiciary. NOTE: Congress may never directly appoint executive branch officials!

Question 46

Constitutional Law: The Judicial Power What is the definition of ripeness for purposes of seeking judicial review?

Answer 46

A P must allege actual harm or the immediate threat of harm. Generally, cases are not considered ripe where significant events necessary to sharpen the issues have not yet occured.

Question 48

Constitutional Law: Fundamental Rights What is the Fundamental Right to Refuse Medical Treatment?

Answer 48

Competent, adult person, has right to refuse unwanted medical treatment. - Cts. apply balancing test and weigh state’s reason for intervening against the individual’s liberty interests

Question 49

Constitutional Law: Legislative Powers What is the purpose of the 13th Amendment?

Answer 49

The 13th A outlaws slavery, and gives Congress the power to enforce the amendment against private citizens or the gov’t. Applies not only to slavery per se but to the “badges and incidents” of slavery, such as racial discrimination.

Question 51

Constitutional Law: Dormant Commerce Power What are the 2 kinds of state discriminatory laws?

Answer 51

1. Laws that discriminate for the purpose of favoring in-state commerce are always per se invalid 2. Laws that discriminate for the purpose of promoting health or safety. These types of laws are also invalid, unless the state shows that it had no reasonable, non-discriminatory means to achieve its police power objective

Question 52

Constitutional Law: Legislative Powers What is the test for delegation of legislative powers to administrative agencies?

Answer 52

Congress must set forth some *intelligible principle* to guide the exercise of delegated power.

Question 53

Constitutional Law: Freedom of Speech and Press Content Control 1. Level of Scrutiny? 2. Exceptions

Answer 53

1. Strict Scrutiny- a compelling state interest and no other way to achieve that interest. 2. 5 Exceptions to Content Control: -Speech Inciting Immediate Lawless or Violent Behavior - Fighting Words or Hate Speech; True Threats - Obscenity - Libel and Defamation and Invasions of Privacy - Commercial Speech

Question 54

Constitutional Law: Freedom of Speech and Press Speech of Students in Schools What can schools regulate?

Answer 54

• Schools may prescribe course content as long as there’s a reasonable pedagogical basis for the school’s decisions. - Schools may set standards of decency in discourse - In a non-curricular setting a school may prohibit or punish speech which materially disrupts school activities or which may reasonably be viewed as promoting illegal drug use.

Question 55

Constitutional Law: Takings Clause 1. State the Takings Clause 2. Two types of takings

Answer 55

1. Any taking of property must be for a public use, meaning any legitimate governmental goal, and just compensation must be paid, and just compensation must be paid 2. Physical invasion or occupation or regulatory taking that leaves the land void of any economic viability

Question 56

Constitutional Law: Freedom of Speech and Press Expression in a non-public forum 1. What is a non-public forum? 2. How can speech be regulated there?

Answer 56

1. Most gov’t property is a non-public forum, including public schools, military bases, telephone poles & postal service property 2. Gov’t may regulate access under far more lenient terms: - Content: Gov’t may limit speech to the subject to which the property has been dedicated as long as it is viewpoint neutral within the subject. - Time, Place and Manner: restrictions will be upheld as long as they are reasonable

Question 58

Constitutional Law: Equal Protection All Other Classifications 1. Level of Scrutiny? 2. Types of classifications that typical fail?

Answer 58

1. Rational Basis 2. Rare that a law fails rational basis test, but laws that discrim against people w/ mental disabilities, gay or lesbian persons based on fear, hatred or ill will have failed in past.

Question 59

Constitutional Law: The Judicial Power What is the exception to the general rule that taxpayers have no standing, as taxpayers, to challenge how the federal gov’t spends the taxed money it collects?

Answer 59

Taxpayers have standing, as taxpayers, to challenge: -Laws enacted under Congress’ taxing/spending powers that exceed a specific constitutional limit on taxing and spending (only thing ever recognized is violation of Establishment clause)

Question 60

Constitutional Law: Fundamental Rights What is the Fundamental Right to Interstate Travel?

Answer 60

Right to move from one state to another. Laws that try to prevent such migration or which burden it severly will require a STRONG GOV’T JUSTIFICATION. - Durational residency requirements: if gov’t benefits are critically important, waiting periods will be struck down. If benefits are less important or not permanently denied, or if the state has an expecially strong interest, waiting periods up to one year will be upheld. - not ok to have laws that create fixed or permanent distinctions among residents.

Question 61

Constitutional Law: The Judicial Power What are the three requirements for standing?

Answer 61

1. P must suffer actual concrete injury-in-fact- mere ideological harm won’t suffice 2. Causation- injury must be “fairly traceable” to gov’t action 3. Redressibility- can the court remedy the injury?

Question 62

Constitutional Law: Freedom of Speech and Press Commercial Speech 1. What may Gov’t regulate? 2. Level of Scrutiny?

Answer 62

1. The gov’t may regulate and prohibit false, misleading and deceitful advertising and ads that promote an unlawful transaction. 2. Any attempts at regulation beyond 3 justifications, gov’t must prove the regulation advances a substantial gov’t interest and is narrowly tailored