Constitutional Law - Levels of Scrutiny and Procedural Due Process

Question 1

Congress can apply Constitutional norms to private conduct through

Answer 1

(1) the 13th amendment for prohibiting private race discrimination
(2) Commerce power

Question 2

Ordinarily, the Constitution’s protections only apply when there is

Answer 2

government/state action.

Question 3

The two exceptions where private conduct must comply with the Constitution are the

Answer 3

(1) public function exception

(2) entanglement exception

Question 4

Under the public function exception, the Constitution applies if

Answer 4

a private entity is performing a task traditionally, exclusively, done by the government (i.e. a company-owned town must comply with Free Speech rules)

Question 5

Under the entanglement exception, the Constitution applies if

Answer 5

the government affirmatively authorizes, encourages, or facilitates unconstitutional activity.

Question 6

Plaintiffs ask a court to enforce a racially restrictive covenant. State action?

Answer 6

Yes, state action.

Question 7

The government leases premises to a restaurant that racially discriminates. State action?

Answer 7

Yes, state action.

Question 8

Government provides books to schools that racially discriminate. State action?

Answer 8

Yes, state action.

Question 9

A private school that is over 99% funded by the government fires a teacher because of her speech. State action?

Answer 9

No, no state action.

Question 10

NCAA orders the suspension of a basketball coach at a state university. State action?

Answer 10

No, no state action.

Question 11

A private entity regulates interscholastic (high school) sports within a state.

Answer 11

Yes, state action.

Question 12

A private club with a liquor license from the state racially discriminates.

Answer 12

No, no state action.

Question 13

The Bill of Rights applies directly only to the

Answer 13

federal government.

Question 14

The Bill of Rights applies to the state and local governments through

Answer 14

the due process clause of the 14th Amendment.

Question 15

The four rights in the Bill of Rights that have not been applied to state and local governments are

Answer 15

(1) 3rd amendment right against soldier quartering in a person’s home
(2) 4th amendment right to a grand jury indictment in criminal cases
(3) 7th amendment right to a jury trial in CIVIL cases
(4) 8th amendment right against excessive fines

Question 16

The three levels of scrutiny are

Answer 16

(1) rational basis
(2) intermediate scrutiny
(3) strict scrutiny

Question 17

The rational basis test requires that the law be

Answer 17

RATIONALLY related to a LEGITIMATE/permissible government purpose.

**Government almost always wins under this test.

Question 18

Under the rational basis test, the government’s purpose can be

Answer 18

any conceivable purpose. The actual purpose is not relevant (except if its discriminatory under the disparate impact test).

Question 19

Under the rational basis test, the _____ has the burden of proof.

Answer 19

challenger

Question 20

In order to survive intermediate scrutiny, the law must be

Answer 20

SUBSTANTIALLY related to an IMPORTANT government purpose. The law must be narrowly tailored.

Question 21

Under intermediate scrutiny, the court looks at the government’s _____ purpose.

Answer 21

actual

Question 22

Under intermediate scrutiny, _____ has the burden of proof.

Answer 22

the government

Question 23

In order to survive strict scrutiny, the law must be

Answer 23

NECESSARY to achieve a COMPELLING government purpose and must be the LEAST RESTRICTIVE means of achieving that purpose.

Question 24

Under strict scrutiny, courts look at the government’s _____ purpose.

Answer 24

actual

Question 25

Under strict scrutiny, _____ has the burden of proof.

Answer 25

the government

Question 26

Strict scrutiny applies to laws regarding

Answer 26

(1) fundamental rights (interstate travel, privacy, voting, 1st Amendment) (2) suspect classifications (race, national origin, sometimes alienage)

Question 27

Intermediate scrutiny applies to laws regarding

Answer 27

quasi suspect classifications (gender, legitimacy, undocumented alien children)

Question 28

Rational basis applies to laws

Answer 28

that do not fall under strict scrutiny or intermediate scrutiny.

Question 29

The three sources of individual rights under the 14th Amendment are

Answer 29

(1) procedural due process (2) substantive due process (3) Equal protection

Question 30

Procedural due process applies when there has been

Answer 30

a deprivation of life, liberty, or property.

Question 31

A deprivation of liberty occurs if there is

Answer 31

the loss of a significant freedom provided by the Constitution or statute

Question 32

Under procedural due process, institutionalization of an adult absent an emergency requires

Answer 32

notice and a hearing

Question 33

Under procedural due process, institutionalization of a child requires

Answer 33

screening by a neutral fact finder

Question 34

Under procedural due process, harm to reputation itself

Answer 34

is not a loss of liberty

Question 35

Under procedural due process, prisoners

Answer 35

rarely have liberty rights

Question 36

A deprivation of property occurs if

Answer 36

there is an entitlement and that entitlement is not fulfilled

Question 37

Under procedural due process, the rights/privileges distinction

Answer 37

has been abandoned. This is the WRONG answer choice.

Question 38

For a deprivation of due process, the government action must be

Answer 38

intentional or at least reckless. Negligence is not sufficient.

Question 39

In emergency situations, the government is liable under due process only if its conduct

Answer 39

"shocks the conscience"

Question 40

Generally, the government only has a duty to protect people from privately inflicted harms if it

Answer 40

created the situation leading to the harm. (e.g, failing to remove a child from an abusive situation is NOT a DP violation)

Question 41

The procedural due process test requires the court to balance

Answer 41

(1) the importance of the interest to the individual (2) the ability of additional procedures to increase the accuracy of fact-finding (3) the government's interest

Question 42

Under procedural due process, termination of welfare benefits requires

Answer 42

notice and a hearing.

Question 43

Under procedural due process, termination of Social Security disability benefits requires

Answer 43

a post-termination hearing

Question 44

Under procedural due process, student discipline in public schools requires

Answer 44

notice of charges plus an opportunity to explain. Corporal punishment does not require DP.

Question 45

Under procedural due process, parental custody termination requires

Answer 45

notice and a hearing.

Question 46

Under procedural due process, punitive damage awards require

Answer 46

instruction to the jury plus judicial review. Grossly excessive awards violate DP.

Question 47

Under procedural due process, classification of an American as an enemy combatant requires

Answer 47

full DP: notice, meaningful factual hearing, represented by counsel

Question 48

Under procedural due process, prejudgment attachment or government seizure of assets requires

Answer 48

notice and a hearing, except in exigent circumstances (i.e. the person is likely to get rid of the property if we wait).

Question 49

Under procedural due process, the government ____ seize property used for illegal activity, even if ________.

Answer 49

can; the owner is innocent.

Question 50

Government may take private property

Answer 50

for public use if it provides just compensation

Question 51

The two types of governmental takings are

Answer 51

(1) possessory - requires confiscation or physical invasion (no matter how slight) (2) regulatory - regulation leaves no reasonable economically viable use

Question 52

Government conditions on development of property (i.e. permits) must be justified by

Answer 52

a benefit that is roughly proportionate to the burden imposed, otherwise it's a taking.

Question 53

A property owner may bring a takings challenge to regulations even if those regulations existed

Answer 53

at the time the property was acquired.

Question 54

Temporarily denying an owner use of property is not a taking so long as

Answer 54

the government's action was reasonable.

Question 55

A taking is for public use if the government

Answer 55

acts out of a reasonable belief that its action will benefit the public

Question 56

Just compensation is measured by

Answer 56

the FMV or loss to the owner. Gain by the taker is irrelevant.

Question 57

Under the Contracts Clause, no state shall

Answer 57

impair the obligations of existing contracts. Applies only to state or local interference with EXISTING contracts, feds can interfere.

Question 58

State or local government interference with private contracts must meet

Answer 58

intermediate scrutiny: (1) does the legislation substantially impair a party's rights under an existing contract? (2) if so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate government interest?

Question 59

State or local government interference with federal government contracts must meet

Answer 59

strict scrutiny

Question 60

The ex post facto clause does NOT apply in

Answer 60

civil cases. Retroactive civil liability need only meet rational basis.