Constitutional Law

Question 1

Interstate Commerce

Answer 1

Congress generally has the power to regulate the channels, instrumentalities, and any activities that substantially affect interstate commerce.

Question 2

Dormant Commerce Clause

Answer 2

Where Congress has not regulated on a particular subject matter, states are free to regulate interstate commerce on that matter so long as they do not (1) directly discriminate against out-of-state commerce; or (2) unduly burden interstate commerce.

Question 3

Dormant Commerce Clause - Direct Discrimination, aka the “facially discriminatory” test

Answer 3

A law that discriminates against out-of-state commerce on its face by preferring local interests is presumed to be invalid. However, a facially discriminatory low will be upheld if: (1) it furthers an important non-economic interest; and (2) there are no less discriminatory alternatives available. Such laws will also be presumed valid where the state is acting as a market participant.

Question 4

Dormant Commerce Clause - Direct Discrimination - Important Non-Economic Interest

Answer 4

[Think health, safety, welfare, environmental conservation, pollution, traffic, etc. Saving money is economic and won’t count!]

Question 5

Dormant Commerce Clause - Direct Discrimination - No Less Discriminatory Alternatives

Answer 5

[Creative ways to have less restrictive alternative.]

Question 6

Dormant Commerce Clause - Direct Discrimination - Market Participant

Answer 6

[If gov’t is acting like a corporation and/or engaging in traditionally private enterprise, it is being a market participant.]

Question 7

Dormant Commerce Clause - Undue Burden, aka the “discriminatory effect” test

Answer 7

Even where a law does not facially discriminate it may be unconstitutional if it unduly burdens interstate commerce. A law unduly burdens interstate commerce when the burden on commerce outweighs the local interests protected or benefited by the legislation. This is known as the burden balancing test.

If the law unduly burdens interstate commerce, it may still be valid if the state is acting to further an important interest and there are no less discriminatory alternatives. It will also be valid if the state is acting as a market participant.

Question 8

Dormant Commerce Clause - Undue Burden - Balancing Test

Answer 8

[Does the burden on interstate commerce substantially outweigh the local benefit? Debate thoroughly!]

Question 9

Dormant Commerce Clause - Undue Burden - Balancing Test - Important State Interest

Answer 9

[MONEY can be valid, along with health, safety, welfare, pollution, traffic, environment, etc.]

Question 10

Dormant Commerce Clause - Undue Burden - Balancing Test - No Less Discriminatory Alternatives

Answer 10

[Creative ways to have less restrictive alternative.]

Question 11

Dormant Commerce Clause - Undue Burden - Market Participant Exception

Answer 11

[Might be able to say “see above” if analysis is identical to what was in the discrimination issue. But be careful if two states are involved.]

Question 12

Supremacy Clause

Answer 12

The Supremacy Clause mandates that the U.S. Constitution, U.S. treaties, and federal statutes are the supreme law of the land. This means that when states and the federal government pass legislation on the same matter, federal law trumps, and any conflicting state laws are automatically void.

There are three ways in which state laws can be invalidated under the Supremacy Clause: (1) when the state law is in direct conflict with the federal law; (2) when the state law interferes with the achievement of a federal objective; or (3) when states interfere with a field that Congress intended to regulate or occupy exclusively.

[Valid executive orders that are not the result of an abuse of power also qualify as federal law. Thus, executive orders are supreme vis-a-vis state law unless Congress or the U.S. Supreme Court take formal actions to invalidate or overturn those orders.]

Question 13

Supremacy Clause - Direct Conflict

Answer 13

A direct conflict occurs when states prohibit something that is allowed under federal law, such that compliance with both regulations is a physical impossibility.

Question 14

Supremacy Clause - Impedes Federal Objective

Answer 14

Even if the state law was not enacted for the sole purpose of frustrating federal law, if it interferes with the achievement of a federal objective, even accidentally, it is void.

[Reminder, there are certain areas of law reserved to federal government exclusively. States can’t regulate on the topic period (e.g., foreign relations). Supremacy Clause analysis is not even necessary.]

Question 15

Supremacy Clause - Preemption

Answer 15

Preemption occurs when a state or local law doesn’t conflict with federal law or impede an objective, but it still appears that Congress intended to occupy the entire field, thus precluding any state or local regulation. There are two types of preemption: express and implied.

Question 16

Supremacy Clause - Preemption - Express Preemption

Answer 16

A federal law expressly preempts state law when the language of the federal law specifically provides for it.

Question 17

Supremacy Clause - Preemption - Implied Preemption

Answer 17

Absent express language, courts will look to Congressional intent to determine whether the implied objective was to occupy the entire field.

[Courts are hesitant to find implied preemption when a state is regulating on the subject of health, safety, or welfare, out of respect to the states’ police powers. State police powers are not considered superseded by federal law unless expressly stated.]

[Certain topics like marijuana use, have good crossover with the Commerce Clause. (Intrastate) market for marijuana is still regulable under Commerce Clause as economic activity in the aggregate. Also need to consider Preemption, as the federal Controlled Substances Act prohibits any cultivation/distribution/possession of marijuana. But on this front, courts hesitant to find implied preemption as marijuana has medical (health) and criminal drug use (safety) ramifications, which are both issues that have traditionally been considered within the realm of state regulation.]

Question 18

Supremacy Clause - Preemption - Implied Preemption - Intent

Answer 18

To determine federal intent, courts will consider a number of factors, including (1) the comprehensiveness of the federal scheme and (2) whether a federal agency was created exclusively to oversee the area.

Question 19

Supremacy Clause - Preemption - Implied Preemption - Intent - Comprehensiveness

Answer 19

The more a federal scheme leaves uncovered, the less likely a finding of implied preemption.

[In other words, by leaving an area uncovered, the federal government demonstrates a lack of intent to occupy the entire field. What it intended to do, rather, was leave space for other entities such as state and local governments to step in.

Question 20

Supremacy Clause - Preemption - Implied Preemption - Intent - Agency to Administer

Answer 20

When the federal government creates an agency specifically to enforce the law or oversee the area, all matters remotely in the agency’s jurisdiction are ordinarily deemed preempted.

Question 21

First Amendment - Free Speech

Answer 21

The First Amendment provide that Congress shall make no law abridging the freedom of speech.

When determining whether or not this protection has been violated, courts generally look to whether the regulation of speech is content-based or content-neutral. When looking at content-based speech regulations, courts distinguish between protected speech and unprotected speech.

Question 22

First Amendment - Free Speech - Content Based - Protected Speech

Answer 22

A content-based regulation seeks to prohibit the expression of certain ideas or information. Any speech not within the category of unprotected speech (see below) is by default protected speech. When content-based regulations impact protected speech, they are subject to the highest standard of review: strict scrutiny. Under the strict scrutiny test for speech, the government has the burden of showing that its regulation is necessary to serve a compelling state interest and that its regulation is narrowly drawn to achieve that end.

Question 23

First Amendment - Free Speech - Content Based - Protected Speech - Compelling Interest

Answer 23

[Compelling is a very high standard. Wrestle with the facts.]

Question 24

First Amendment - Free Speech - Content Based - Protected Speech - Necessary

Answer 24

[How does the regulation serve the compelling state interest? And why is it necessary (i.e., why are there no other options?)]

Question 25

First Amendment - Free Speech - Content Based - Protected Speech - Narrowly Drawn

Answer 25

[If it seems like the regulation will end up targeting more speech than just the speech that is counter to the compelling state interest, it is not narrowly drawn.]

Question 26

First Amendment - Free Speech - Content Based - Unprotected Speech

Answer 26

Courts have determined that the government has a per se compelling interest in prohibiting certain types of speech, now commonly referred to as the unprotected categories of speech. Those are: speech that incites imminent unlawful action, fighting words, obscenity, defamation, and many forms of commercial speech.

Question 27

First Amendment - Free Speech - Content Based - Unprotected Speech - Incites Imminent Unlawful Action

Answer 27

For speech to be considered as inciting imminent unlawful action, it must: (1) create a clear and present danger of (2) immediate lawless action (3) that is likely to occur.

Question 28

First Amendment - Free Speech - Content Based - Unprotected Speech - Obscenity

Answer 28

For speech to be considered as obscenity, it must: (1) appeal to the prurient interest (this is a community-based standard); (2) depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable state law (this is a community-based standard); and (3) lack redeeming serious literary, artistic, political, or scientific value (this is a national standard).

Question 29

First Amendment - Free Speech - Content Based - Unprotected Speech - Defamation

Answer 29

[From torts] Common law defamation requires a showing of (1) a defamatory statement, (2) of or concerning plaintiff, (3) publication, and (4) damages.

Question 30

First Amendment - Free Speech - Content Based - Unprotected Speech - Commercial Speech

Answer 30

Within the category of commercial speech, there is (1) unprotected commercial speech and (2) protected commercial speech.

Question 31

First Amendment - Free Speech - Content Based - Unprotected Speech - Commercial Speech - Unprotected Commercial Speech

Answer 31

Government may freely regulate unprotected commercial speech. Commercial speech is unprotected if it is either (1) false, misleading, or deceptive, or (2) illegal or concerns illegal activity.

Question 32

First Amendment - Free Speech - Content Based - Unprotected Speech - Commercial Speech - Protected Commercial Speech

Answer 32

All commercial speech that falls outside the scope of unprotected commercial speech is considered, by default, protected commercial speech. Government can only regulate protected commercial speech if (1) the government asserts a substantial interest in its regulation, (2) the regulation directly advances the government interest, and (3) the regulation is no more extensive than necessary to advance the government’s substantial interest.

[For third prong, this means reasonably tailored, NOT least restrictive alternative.]

Question 33

First Amendment - Free Speech - Content Based - Unprotected Speech - Fighting Words

Answer 33

Government may punish speech if it likely to cause immediate violent response against the speaker. However, in practice, most fighting words statutes will be overturned because they are overbroad, vague, or deemed content-based.

Question 34

First Amendment - Free Speech - Content Neutral

Answer 34

Content-neutral regulations are those that do not prohibit the expression of certain ideas, but prohibit speech in its entirety based on the time, place, and manner of the expression. Content-neutral regulations must generally be narrowly tailored to serve a significant government interest and must leave open alternative channels of communication of the information.

[(1) Must regulate only T, P, and M of expression.

(2) Mus be narrowly tailored to a significant gov’t interest.
(3) Must leave open alternative channels of communication of the information.]

Question 35

First Amendment - The Regulation of Conduct

Answer 35

Whether the government can regulate conduct depends on whether the forum in which the conduct occurs is a public, non-public, or limited public forum.

Question 36

First Amendment - The Regulation of Conduct - Designated Public Forum

Answer 36

A public forum is a place where speech has traditionally been permitted, such as a public park. The government may regulate certain conduct in public forums provided: (1) the regulation is content-neutral, (2) is narrowly tailored to serve a significant government interest, and (3) there are alternative channels of communication left open.

Question 37

First Amendment - The Regulation of Conduct - Limited Public Forum

Answer 37

A limited public forum is one that was not historically open to speech but has been designated for such purposes by the government, such as a school. Regulations in limited public forums must satisfy the same standards as those in public forums, but ONLY at those times when the government property has been opened for speech.

Question 38

First Amendment - The Regulation of Conduct - Non-Public Forum

Answer 38

Non-public forums are government owned property that are not open to speech. The government may regulate conduct and speech in non-public forums if: (1) the regulation is viewpoint neutral, and (2) the regulation is reasonably related to a legitimate government purpose.

[Non-public != private. There is no constitutionally protected right to engage in speech in a private forum!]

Question 39

First Amendment - Prior Restraints

Answer 39

Prior restraints, which are regulations that prohibit speech before it occurs, are generally not permitted. In order for a prior restraint to pass constitutional muster, the government has the burden of showing that the prior restraint is necessary in order to prevent some special societal harm. In addition, any system in place for prior restraints must contain certain procedural safeguards.

[Distinct from prior restraints are permits or licensing schemes for speech. Such schemes are constitutional if: (1) there is a reasonable justification for requiring permits or licensing; (2) the license/permit requirements and approval process are similar to a “rubber stamp” process; and (3) there are procedural safeguards or judicial review for denied permits/licenses. Violation of the license/permit scheme does not remove plaintiff’s standing to challenge a license/permit denial.]

Question 40

First Amendment - Prior Restraints - Procedural Safeguards for Prior Restraints

Answer 40

Any system in place for prior restraints must contain certain procedural safeguards, including: (1) standards that are narrowly drawn, reasonable and definite; (2) an injunction that must be promptly sought; and (3) there must be a prompt and final determination of the validity of the restraint.

Question 41

First Amendment - Vague

Answer 41

A statute is unconstitutionally vague if the conduct forbidden by it is so unclearly defined that a reasonable person would have to guess at its meaning, or if the regulation fails to give notice of what speech is prohibited.

[Make suggestions for how the regulation could be clearer.]

Question 42

First Amendment - Overbroad

Answer 42

A statute is overbroad if it bans speech that could constitutionally be foribdden but also bans speech which is protected by the First Amendment. Overbroad statutes are almost always per se unconstitutional.

[Make suggestions for how it could be narrowed.]

Question 43

First Amendment - Unfettered Discretion

Answer 43

Under the First Amendment, a regulation that gives government officials unfettered discretion to determine what speech is prohibited is void on its face, and the speaker can challenge the regulation BEFORE applying for a permit. If there are some guidelines or standards for the government official, however, the speaker must apply for and get rejected for a permit before challenging the regulation on First Amendment grounds.

Question 44

Substantive Due Process - Fundamental Rights

Answer 44

The Due Process Clause of the 14th Amendment provides that no state shall deprive any person of life, liberty, or property without due process of law. The substantive due process prong of the Due Process Clause is judge-made law that provides that some rights are so fundamental to our existence as citizens and humans that mere deprivation of them (no matter how much process is provided) is a Constitutional violation.

Here, the state is denying [plaintiff] the right to [do something]. The question is whether plaintiff has a fundamental right to [do something]. If so, the deprivation is per se unconstitutional.

Question 45

Substantive Due Process - List of Fundamental Rights

Answer 45

• STRICT SCRUTINY*
  (1) Right to Privacy: An inferred right that encompasses:

(a) right to marry,
(b) right to procreate,

(c) rights related to family and children, including,
(i) right to custody of one’s children,
(ii) right to keep family together (zoning/housing)
(iii) right to control children’s upbringing (school)

(d) right to contraceptives.

• *ABORTION**
  (1) Abortion as a fundamental privacy right turns on viability of the fetus. Pre-viability, regulation must not unduly burden abortions. Post-viability, all abortions may be prohibited unless medically necessary to protect the mother’s health.

(a) Parental notice/consent laws for minors:
Are considered an undue burden unless:

(i) law creates an alternative procedure for minor to obtain an abortion by going before a judge, and

(ii) the judge can approve abortion by finding either:
(A) abortion is in the minor’s best interest, or
(B) minor is mature enough to decide for herself.

*Government does not have a duty to subsidize abortions or affirmatively provide them in public hospitals. Failing to do either is not a violation of a fundamental right.

Question 46

Standing

Answer 46

Article III requires that an actual case or controversy exist before a Constitutional challenge can be made. Part of that requirement is a plaintiff must have standing to sue. Standing means the individual has suffered: (1) an injury-in-fact or can show a likelihood of iminent injury, (2) that is redressable by a favorable court decision; and (3) was caused by the act being challenged.

Question 47

Standing - Organizational Standing

Answer 47

An organization has standing when: (1) there is injury in fact or likelihood of imminent injury to members which gives them a right to sue on their own behalf; (2) the injury is germane to the purpose of the organization; and (3) participation of individual members of the organization is not required.

Question 48

Standing - Taxpayer Standing

Answer 48

Taxpayers have standing if: (1) the Constitutional challenge relates to a tax bill; or (2) the Constitutional challenge is based on the Establishment Clause of the First Amendment.

Question 49

Standing - Third Party Standing

Answer 49

A claimant may have standing to assert the rights of a third party if: (1) it is difficult for the third party to assert his or her own rights, or (2) a special relationship exists between the claimant and the third party.

[Best example of (1) is if there is a patient in a persistent vegetative state.]

[Most common examples of (2) are doctor-patient and parent-child.]

Question 50

Standing - State Action

Answer 50

The Constitution does not provide a means of redress for private wrongs. To that effect, state actions must be present in order for an individual to vindicate his or her constitutional rights.

Question 51

Ripeness

Answer 51

Under the ripeness doctrine, cases must be sufficiently developed in order to be justiciable. Generally, post-enforcement claims are considered sufficiently developed. Pre-enforcement claims, in contrast, are usually considered unripe and therefore not justiciable. Courts may grant pre-enforcement review, however, after balancing: (1) hardship suffered by the challenger without pre-enforcement review, with (2) the fitness of the issue and the record for judicial review.

Question 52

Mootness

Answer 52

Under the mootness doctrine, cases must still be live in order to be justiciable. If the circumstances causing the challenger’s asserted harm cease to exist after he files suit, the case must be dismissed as moot.

There are three exceptions to the mootness doctrine:

(1) The wrong is capable of repetition but evading review;
(2) The wrong was voluntarily ceased by the defendant, who can resume the wrong at any time
(3) Class action lawsuits, so long as at least one member has ongoing injury.

Question 53

Religion - The Establishment Clause

Answer 53

The First Amendment provides that the government shall not establish a religion. To determine whether the Establishment Clause has been violated, courts look first to whether a particular sect was preferred by the government. If not, the state action will stand if it passes the Lemon test, i.e.,: (1) it has a secular purpose; (2) it has a primary effect that neither advances nor inhibits religion, and (3) it does not create an excessive entanglement between church and state.

Question 54

Religion - The Establishment Clause - Sect Preference

Answer 54

Where the government directly prefers one religious sect over another, the action will be invalid unless it is narrowly tailored to serve a compelling state interest.

Question 55

Religion - The Establishment Clause - Secular Purpose

Answer 55

[DO NOT DISCUSS DISPROPORTIONATE IMPACT HERE! Should be straightforward analysis of the objective of the regulation.]

Question 56

Religion - The Establishment Clause - Effect of Advancing or Inhibiting Religion

Answer 56

[Talk about ANY potential effects that it may have on religion.]

[But ultimately, if the PRIMARY EFFECT is secular (i.e., it’s a law of general applicability), it’s OK]

[Any regulation that advances religion as a whole over non-religion is also a violation.]

Question 57

Religion - The Establishment Clause - Excessive Entanglement

Answer 57

Excessive entanglement occurs when the government has to provide continual oversight, monitoring, or regulation in order to ensure that the separation between church and state remains intact.

Question 58

Religion - Free Exercise Clause

Answer 58

The Free Exercise Clause contains both the freedom to believe in any religion and the freedom to conduct one’s self in accordance with any religion.

Question 59

Religion - Free Exercise Clause - Beliefs

Answer 59

The freedom to believe in any religion is technically absolute and any government action that directly punishes someone on the basis of his or her religious beliefs is per se unconstitutional. Nonetheless, government regulations that indirectly impose burdens on people of certain religions will be upheld if the government can show that the regulation is necessary to achieve a compelling state interest.

[Any belief, sincerely held, qualifies. A history of observance by a religious group may help establish sincerity. But converse is not true; i.e., lack of history does not render belief insincere.]

[Obscure and non-“organized” religions are supposed to be treated the same as major religions. Also, government should not be trying to evaluate if a belief is “reasonable”.]

Question 60

Religion - Free Exercise Clause - Conduct

Answer 60

The freedom to engage in certain religious activities or practices is not absolute and government regulations that prohibit certain religious activities will be upheld unless they specifically target religious practices. In other words, “laws of general applicability” will be upheld. When specific religious practices are targeted, the government has the burden of showing that its actions are narrowly tailored to advance a compelling state interest.

Question 61

Equal Protection - 14th Amendment

Answer 61

The Equal Protection Clause of the 14th Amendment provides that no person shall be denied equal protection of the laws. This generally means that an individuals can only be classified on the basis of a group characteristic in limited situations. In order to determine whether an Equal Protection Clause violation has occurred, the classification being used must be scrutinized.

Question 62

Equal Protection - 14th Amendment - Classification

Answer 62

Courts apply different levels of scrutiny for different classifications. Classifications that burden fundamental rights or are based on race, national origin, and alienage (unless it is the federal government which is classifying based on alienage) receive strict scrutiny. Classifications based on illegitimacy or gender receive intermediate scrutiny. All other classifications are subject to rational basis review.

[Watch out for non-suspect classifications which disproportionately AFFECT a suspect class. For example, geography can affect certain races more, but the classification itself is non-suspect and subject only to rational basis review.]

Question 63

Equal Protection - 14th Amendment - Discriminatory Intent

Answer 63

A non-suspect classification may still be subject to scrutiny under the Equal Protection Clause, however, if the plaintiff shows that there was discriminatory intent behind the classification. Mere discriminatory impact is insufficient to establish an Equal Protection violation. Discriminatory intent can be shown when the classification is (1) discriminatory on its face, (2) discriminatory in its application, or (3) has a discriminatory motive behind it.

Question 64

Equal Protection - 14th Amendment - Levels of Scrutiny

Answer 64

“Because the classification is A, the level of scrutiny to be applied is X.”

Question 65

Equal Protection - 14th Amendment - Levels of Scrutiny - Strict Scrutiny

Answer 65

Under the strict scrutiny test, the classification must be necessary to serve a compelling government interest, and the least restrictive means to achieve that interest. When the strict scrutiny test is applied, the government has the burden of proof.

[There can be multiple means which are equally the “least restrictive”.]

Question 66

Equal Protection - 14th Amendment - Levels of Scrutiny - Intermediate Scrutiny

Answer 66

Under the intermediate scrutiny test, the classification must be substantially related to an important government interest. In general, an exceedingly persuasive justification must exist in order to warrant the classification. When the intermediate scrutiny test is being applied, the government has the burden of proof.

Question 67

Equal Protection - 14th Amendment - Levels of Scrutiny - Rational Basis

Answer 67

Under the rational basis test, the classification must be rationally related to a legitimate state interest. When the rational test is being applied, the plaintiff has the burden of proof. Almost any legitimate state interest will pass muster.

Question 68

Equal Protection - 14th Amendment - Fundamental Rights

Answer 68

Under the Equal Protection Clause, a regulation that burdens a fundamental right is subject to strict scrutiny. Rights deemed fundamental under the Equal Protection Clause are the privacy rights, First Amendment rights, right to vote, right to be a candidate, right to interstate travel and right to access the courts (i.e., waiver of government fees) in cases involving fundamental rights.

[Gay “marriage” can be prohibited if marriage is defined as right for a man and woman to wed each other. Therefore, by definition, nobody has the right to “marry” someone of the same gender because such a union would not be marriage.]

Question 69

First Amendment - Free Speech - Content Based - Unprotected Speech - Symbolic Speech

Answer 69

The government can regulate symbolic speech if (1) the regulation furthers an important government interest, (2) the government interest is unrelated to the suppression of the message, and (3) the impact on speech is no greater than necessary to further the important government interest.

Question 70

Contracts Clause

Answer 70

The Contracts Clause generally prohibits states from enacting legislation that retroactively interferes with existing contractual relationships. Legislation that impairs a private contract is invalid unless the law: (1) serves an important and legitimate interest, and (2) is a reasonable and narrowly tailored means of promoting that interest.

Question 71

Privileges and Immunities Clause

Answer 71

Under the Privileges and Immunities Clause, a state cannot discriminate against residents of other states unless it can show a substantial justification for the differential treatment and that no less restrictive means were available.