Constitutional Law MBE

Question 1

FILL IN THE BLANKS. In order for a case to be ripe, the controversy must involve BLANK ________ ________. Mootness generally results in the dismissal of a case unless the controversy is _BLANK _______ ________.

Answer 1

actual harm or the threat of immediate harm; capable of repetition yet evading review

Question 2

UNDER AISG limitation on the Supreme Court from reviewing a state court, will the Supreme Court review a state court decision when the party claiming a federal right is successful under state law?

Answer 2

No

Question 3

Does the Comity Clause of Article IV, which deals with privileges and immunities of state citizenship prevent a state from imposing a residency requirement on private employment?

Answer 3

YES

Question 4

The Fourteenth Amendment protects ________________ from infringement by the states upon the privileges or immunities of —— citizenship.

Answer 4

Citizens; national

Question 5

Which claims are barred by the 11th amendment?

Answer 5

(i) Citizens of one state suing another state in federal court;
(ii) Suits in federal court against state officials for violating state law; and
(iii) Citizens suing their own state in federal court.

Note: These are subject to exceptions.

Question 6

What does it mean for a judgment to rest on “adequate and independent state grounds”?

Answer 6

The state law grounds fully resolve the matter (i.e., be adequate) and do not incorporate a federal standard by reference (i.e., be independent). The U.S. Supreme Court may not review a final state-court judgment that rests on adequate and independent state grounds.

Question 7

What standard is used to determine whether a tax by Congress should be upheld?

Answer 7

The tax only need be rationally related (or have a reasonable relationship) to revenue production

Question 8

A political question not subject to judicial review arises when: [Name the two possibilities.]

Answer 8

(i) The Constitution has assigned decision making on this subject to a different branch of the government; or
(ii) The matter is inherently not one that the judiciary can decide.

Question 9

When does a taxpayer have standing to file a federal lawsuit?

Answer 9

1. when the taxpayer challenges governmental expenditures as violating the Establishment Clause
2. to litigate whether and how much they owe on their own tax bill

Question 10

Who impeaches and who tries the president?

Answer 10

IMPEACH
* The House of Representatives determines what constitutes “high crimes and misdemeanors” and may impeach by a majority vote.
TRIAL
* The Senate tries the impeached official, and a 2/3 vote is necessary for conviction

Question 11

How does injunctive relief operate as an exception to the application of the Eleventh Amendment?

Answer 11

When a state official is named as the defendant –> may be enjoined from enforcing a state law that violates federal law or may be compelled to act in accord with federal law despite state law to the contrary.
* However, federal courts generally may not issue injunctions against state court judges or clerks because they generally do not enforce state laws but resolve disputes between parties.

Question 12

Over what types of cases does the Supreme Court have original jurisdiction?

Answer 12

The Supreme Court has original jurisdiction over:
(i) All cases affecting ambassadors
(ii) Other public ministers and consuls
(iii) Those in which a state is a party

Question 13

When is Congress able to regulate purely private conduct?

Answer 13

When it adopts legislation rationally related to eliminating racial discrimination (i.e., “badges or incidents” of slavery) pursuant to the Thirteenth Amendment.

Question 14

What four requirements must be met in order for government regulation of expressive conduct to be upheld?

Answer 14

(i) The regulation is within the government’s power to enact;
(ii) The regulation furthers an important governmental interest;
(iii) The governmental interest is unrelated to the suppression of ideas; and
(iv) The burden on speech is no greater than necessary

Question 15

There is a general rule that states cannot enact legislation that discriminates against out-of-state commerce. What are the five exceptions to this rule?

Answer 15

(i) Necessary to important state interest and no other nondiscriminatory means are available
(ii) State as a Market Participant
(iii) Traditional government function exception
(iv) Subsidies
(v) Federal/Congressional Approval

Question 16

How does consent come into play as an exception to the application of the Eleventh Amendment?

Answer 16

A state may consent to suit by waiving its Eleventh Amendment protection.

Question 17

For what types of offenses can the President exercise the Pardon Power?

Answer 17

federal cases

Question 18

In what three circumstances is federal preemption implied?

Answer 18

(i) Congress intended for federal law to occupy the field;
(ii) The state law directly conflicts with federal law; or
(iii) The state law indirectly conflicts with federal law by creating an obstacle or frustrating the accomplishment of that law’s purpose.

Question 19

What is a pocket veto?

Answer 19

If Congress has adjourned within the 10-day period after presenting a bill to the President, and the President had not yet acted on the bill, this is known as a “pocket veto” and the bill does not become law. This cannot be overridden.

Question 20

Name three actions not barred by the Eleventh Amendment.

Answer 20

The Eleventh Amendment does not bar:
(i) Actions against local governments
(ii) Actions by the United States government or other state governments
(iii) Bankruptcy proceedings that impact state finances

Question 21

What is a line item veto?

Answer 21

A line item veto is where the President refuses only part of a bill and approves the rest. They are UNCONSTITUTIONAL

Question 22

What is a legislative veto, and is it constitutional?

Answer 22

Legislative vetoes arise when Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution. UNCONSTITUTIONAL

Question 23

What type of immunity does a judge have for judicial acts resulting in civil liability?

Answer 23

ABSOLUTE

Question 24

Name the five categories where the government is permitted to restrict speech on the basis of content.

Answer 24

1. Obscenity
2. Incitement to violence
3. Fighting words
4. Defamation
5. Commercial speech

Question 25

In the absence of federal regulation, state regulation of commerce is valid so long as: (Name the three rules)

Answer 25

(i) There is no discrimination against out-of-state interests;
(ii) The regulation does not unduly burden interstate commerce; and
(iii) The regulation does not purposefully and deliberately apply to wholly extraterritorial activity.

Only one need to be proven for it to be invalid

Question 26

In what two scenarios does private conduct amount to state action?

Answer 26

(i) When a private person carries on activities that are traditionally performed exclusively by the state; and
(ii) When the government is significantly involved in private discrimination.

Question 27

How is the President’s veto power exercised?

Answer 27

The President can, within 10 days of presentment, veto (or reject) a bill and send it back, with objections, to the house in which it originated. Once a bill is vetoed, Congress can override the President’s veto with a 2/3rds vote in each house.

Question 28

When may a state tax instrumentalities of commerce?

Answer 28

Only when:
(i) The instrumentality has a taxable situs within (or sufficient contacts with) the taxing state; and
(ii) The tax is fairly apportioned to the amount of time the instrumentality is in the state

Question 29

Under Equal Protection, in what two instances does the court apply the strict scrutiny test?

Answer 29

When the state action in question involves a fundamental right or suspect classification
- race, ethnicity, national origin

Question 30

What requirements must be met for a government to be permitted to regulate speech-related activities in nonpublic forums?

Answer 30

The regulation must be:
(i) Viewpoint-neutral; and
(ii) Reasonably related to a legitimate governmental interest.

Question 31

A state may impose a nondiscriminatory tax on interstate commerce, as long as the following three requirements are met:

Answer 31

(i) There is a substantial nexus between the taxing state and the property or activity to be taxed;
(ii) There must be fair apportionment of tax liability among states; and
(iii) The tax must be **fairly related **to the services provided by the taxing state.

Question 32

Strict or intermediate scrutiny is triggered when

Answer 32

Discriminatory intent, which can be shown facially, as applied, or when there is a discriminatory motive

Question 33

What is a political question that cannot be heard by the supreme court?

Answer 33

issues that (1) the Constitution reserves to the executive or legislative branch or (2) lack judicially discoverable and manageable standards for resolution.

Question 34

When does a tax payer have standing?

Answer 34

A taxpayer has standing when the taxpayer’s suit (1) challenges legislation enacted under Congress’s taxing and spending power and (2) alleges a violation of a specific constitutional limitation on that power (i.e., the establishment clause).

Question 35

The taxing and spending clause permits Congress to tax and spend

Answer 35

for the general welfare

Spend NOT legislate for the general welfare

Question 36

Substantive due process challenges involving the deprivation of ordinary rights (e.g., employment) are subject to which test?

Answer 36

rational basis; under which a law is presumed valid until the challenger shows that the law has no rational relation to any legitimate government interest

Question 37

Under the establishment clause, the government may determine whether religous beliefs are ________________ but not __________

Answer 37

Sincere but not reasonable or true

Question 38

Gov programs that provide financial aid to religious and secular institutions are constitutional if

Answer 38

they comport with the** historic purpose **of the establishment clause—preventing government preference for a particular religion (or for religion over nonreligion).

Question 39

Regulations based on the content of speech (i.e., its message, subject, or ideas) are presumptively invalid and will be upheld only if they survive

Answer 39

strict scrutiny; if the government proves that the restriction is necessary and narrowly tailored to achieve a compelling government interest.

Question 40

Can a state state affect contractual relations between private parties?

Answer 40

Yes so long as rationally related to legitimate government purpose

Question 41

What does the fifth amendment provide?

Answer 41

That the right to vote shall not be abridged on the basis of race or color
applies to state and federal

Question 42

Under the commerce clause congress can regulate activities that have

Answer 42

a SUBSTANTIAL effect on interstate commerce in the AGGREGATE

Question 43

Under what amendment are citizens protected from infringement by the states upon the privileges or immunities of national citizenship?

Answer 43

14th amendment

Question 44

When will a civil law will be deemed to be an ex post facto law?

Answer 44

when its retroactive effect is so** punitive** that it **clearly overrides its nonpunitive purpose **

If rationally related to nonpunitive purpose –> the punitive effect will NOT clearly override –> constitutional

Question 45

Judges and prosecutors possess absolute immunity from civil liability for official judicial actions—including rulings that are grave procedural errors—unless

Answer 45

the court clearly lacked subject-matter jurisdiction at the time the action was taken.

Question 46

Anti-Commandeering

Congress has broad power to regulate interstate commerce. But the Tenth Amendment limits this power by prohibiting Congress from

Answer 46

requiring state or local governments to (1) enforce a federal law or (2) enact a state or local law

Question 47

A government action that abridges the freedom of the press is presumtively ——– and must survive ——

Answer 47

UNCONSTITUTIONAL; must survive strict scrutiny

Question 48

First Amendment generally guarantees the press and the public the right to attend every stage of what type of trial? If this is interfered with by the government, what standard must be met?

Answer 48

a criminal trial; strict scrutiny

Question 49

Laws that retroactively impair an ordinary right—e.g., the right to raise the statute of limitations as a defense—can be challenged on substantive due process grounds. What standard are they reviewed under?

Answer 49

rational basis scrutiny (because right to raise statute of limitations is NOT a fundamental right so no strict scurtiny) and therefore are generally constitutional

Question 50

Under the militia clauses, Congress has the power to call state militia units into action for what purposes? Does it need the approval of the state governors?

Answer 50

to execute federal laws, suppress insurrections, or repel invasions; it DOES NOT need the approval of state governors

Remember that any congressional power can be delegated to the executive branch

Question 51

Freedom of Association/ Subversive organization

The government can interfere with the First Amendment freedom of association by punishing member of subversive organization permitted if person:

Answer 51

is active member
knows of organization’s illegal objectives and
specifically intends to further them

Question 52

Is a generalized grievance shared by many or all citizens sufficient for injury in fact under standing?

Answer 52

NO

Question 53

Free Exercise

What is the ministerial exception?

Answer 53

protects religious organizations from civil liability for employment discrimination when they hire or fire employees who serve in ministerial roles.
- This exception applies to any employee whose primary function is to advance the organization’s religious mission

Question 54

Under the Fourteenth Amendment equal protection clause, a discriminatory law that substantially impacts the fundamental right to vote is only justified if

Answer 54

it survives strict scrutiny

Question 55

May States prohibit felons—even those unconditionally released from prison—from voting in elections?

Answer 55

Yes under Section 2 of the Fourteenth Amendment

Question 56

The Eleventh Amendment prohibits foreign governments and private parties from suing a state in federal court without the state’s consent. Does this extend to suits against state officials for a violation of state law?

Answer 56

YES
unless the remedy that is sought is injunctive relief against that official instead of monetary damages

Question 57

When does the younger absention doctrine apply? When does it allow absention to hear the case in federal court?

Answer 57

applies when declaratory or injunctive relief is sought in federal court
requires abstention when such relief would interfere with a pending state proceeding on any criminal matter or a particular civil matter (termination of parental rights, contempt) that:

1. involves an important state interest and
2. provides an adequate opportunity to litigate the federal issues

Exceptions
- Bad faith prosecution
- Patently unconstitutional law
- State consents
- Immediate and irreperable harm

Question 58

State laws that discriminate against individuals based on wealth are generally subject to rational basis scrutiny. But strict scrutiny will be used when a state law

Answer 58

prohibits the exercise of a fundamental right based on an individual’s wealth.

Question 59

Is the right to appeal a fundamental right?

Answer 59

Yes

Question 60

The Fourteenth Amendment due process clause requires that the government provide an opportunity to be heard before a neutral decision-maker. A judge must therefore recuse him/herself from a case when

Answer 60

(1) the judge has a direct, personal, substantial, pecuniary interest in it or (2) a serious, objective risk of actual bias exists

Question 61

SCOTUS can only exercise its appellate jurisdiction and grant a writ of certiorari to review a state court judgment when

Answer 61

the judgment is based on federal law and the state court’s decision is FINAL
- if the state’s highest court refuses to hear the case on appeal, it is final

Question 62

A federal court with subject-matter jurisdiction may refrain from hearing a case if an abstention doctrine applies. What are the absention doctrines?

Answer 62

Pullman abstention: state law is not settled
Burford abstention: may abstain from hearing a case seeking declaratory or injunctive relief when such relief would interfere with a complex state regulatory scheme that
- (i) serves an important state policy and
- (ii) provides for timely and adequate judicial review by the state’s courts.
Colorado River and Younger abstention apply where there is a pending state proceeding.

Question 63

What does the enclave clause gives Congress the power to do?

Answer 63

The plenary (i.e., exclusive) legislative power to govern the District of Columbia

Question 64

Does Congress have the power to impose an income tax without apportioning it among the states on the basis of population?

Answer 64

Yes under the 16th amendment

Question 65

The taxing and spending clause gives Congress the power to impose indirect taxes (e.g., sales tax), so long as they are

Answer 65

uniformly applied in every state (i.e., geographically uniform) and reasonably related to revenue production

Question 66

discriminatory programs such as affirmative action can only survive strict scrutiny if the government proves that:

Answer 66

• it has a compelling interest in remedying its own history of discrimination against the favored group and
• the discriminatory program is necessary because race-neutral methods are unavailable or insufficient to further that interest.

If a state is addressing society’s history of discrimination, and not its own specific history –> fails

Question 67

if Congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate, so long as the state or local action does not

Answer 67

(i) discriminate against out-of-state commerce, (ii) unduly burden interstate commerce, or (iii) regulate extraterritorial activity.

Question 68

First Amendment/ Free Speech

What level of scrutiny applies to commercial speech?

Answer 68

INTERMDIATE
(i) the commercial speech must concern lawful activity and be neither false nor misleading (fraudulent speech or speech which proposes an illegal transaction may be prohibited),
(ii) the asserted governmental interest must be substantial,
(iii) the regulation must directly advance the asserted interest, and
(iv) the regulation must be narrowly tailored to serve that interest.
- In this context, narrowly tailored means a “reasonable fit” between the government’s ends and the means chosen to accomplish those ends.

Question 69

Due Process/ Civil Forfeiture

Procedural due process generally requires that the government provide reasonable notice of the seizure and a meaningful opportunity to be heard before a neutral decision-maker. However, personal property may be seized prior to providing notice and a hearing when:

Answer 69

• the seizure serves a significant government interest
• that interest would be frustrated by advance notice of the seizure and
• the seizure is performed by the government

Question 70

To determine whether real property may be seized by the government prior to providing notice and a hearing, the court must balance three factors (see image above):

Answer 70

• the private interest affected by the deprivation
• the risk of erroneous deprivation of that interest through current procedures and the probable value of additional or substitute procedural safeguards and
• the government’s interest, including the fiscal and administrative burdens that other safeguards would entail

Question 71

A taking occurs when the government destroys private property or property rights, does this include possessory and nonpossessory interests in land (e.g., easements, liens)?

Answer 71

Yes, BOTH

Question 72

Taxing and Spending/ Incentivizing states to adopt federal policies

The taxing and spending clause gives Congress broad discretion to spend for the general welfare. Congress can use its spending power to incentivize states to adopt federal policies by placing appropriate conditions on the receipt of federal funds. A condition is appropriate when it:

Answer 72

• is clear and unambiguous
• is reasonably related to the purpose for which the funds will be expended
• does not require recipients to engage in unconstitutional activity and
• is not unduly coercive.

Question 73

Congress can delegate incidental legislative powers to federal agencies if it provides

Answer 73

an intelligible principle to guide the agencydefining
(1) the policy Congress seeks to advance,
(2) the agency to carry out that policy, and
(3) the scope of that agency’s authority.

Incidental legislative powers include rule making authortiy, enforcing regulations, carrying out legislation

Question 74

The federal government, its agencies, and its instrumentalities are immune from direct taxation by the states unless

Answer 74

Congress expressly consents
BUT employees and contractors generally are not immune unless congress consents or discrimination or sub interference w fed gov

Question 75

The Twenty-first Amendment grants states broad authority to regulate alcohol within their borders. This authority includes

Answer 75

the ability to prohibit the importation, transportation, or sale of alcohol within the state and to delegate such authority to local governments (e.g., municipalities).

Question 76

Under the elections clause, state legislatures have the power to enact laws that regulate the time, place, and manner of congressional elections (e.g., by establishing voting sites). But the clause also grants Congress the power to

Answer 76

override those state laws by supplanting them with federal law.

Question 77

If an electoral regulation is challenged under either constitutional provision, the standard for evaluating that regulation depends on the severity of the burden imposed. A court will apply either:

Answer 77

RB
* Voter registration
* Photo-ID requirement
* Disallowing write-in voting

SS
* Poll tax
* Disallowing third-party candidacies
* Property-ownership requirement

Question 78

The appointments clause grants Congress the power to delegate the appointment of inferior federal officers to

Answer 78

the President alone (i.e., without Senate approval), the heads of executive-branch agencies, or the federal courts.

Question 79

The Fourteenth Amendment due process clause generally prohibits states from enacting laws that substantially impair parents’ right to control their children’s upbringing and education. However, this right

Answer 79

is not absolute, states may impose** reasonable educational standards** on schools without violating the due process clause.

Question 80

Is promoting in-state business by discriminating against out-of-state business a legitimate government interest?

Answer 80

No

Question 81

the Fourteenth Amendment equal protection clause, subjects discriminatory state taxes to

Answer 81

rational basis review

Question 82

Free Exercise and Establishment/ Ministerial Exception

ministerial exception protects religious organizations from liability for

Answer 82

employment discrimination when they hire or fire employees who serve in ministerial roles.

Question 83

Under which article is the dormant commerce clause?

Answer 83

The Article I commerce clause

Question 84

May Congress revoke US citizenship without his/her consent?

Answer 84

NO unless that citizenship was obtained by fraud or in bad faith.

Question 85

Federal law can preempt state law either

Answer 85

expressly or impliedly

Question 86

To who does the privilege and immunities clause of article 4

Answer 86

to out-of-state citizens who are being denied an in-state-privilege

Question 87

May a state sue the federal government without its consent?

Answer 87

No. Fed gov is immune from state regulations

Only applies to suits seeking compensatory relief

Question 88

How does the president’s veto work?

Answer 88

The President can, within 10 days of presentment, veto (or reject) a bill and send it back, with objections, to the house in which it originated. Once a bill is vetoed, Congress can override the President’s veto with a 2/3rds vote in each house.

Question 89

(1) When can the President invoke executive immunity; and
(2) When is the President not protected by executive immunity?

Answer 89

(1) The President may not be sued for civil damages with regard to any acts performed as part of the President’s official responsibilities.
(2) The President has no immunity for civil actions based on conduct that occurred before the President took office or completely unrelated to carrying out the job.

Question 90

What standard is used to determine whether a tax by Congress should be upheld?

Answer 90

The tax only need be rationally related (or have a reasonable relationship) to revenue production.

Question 91

What is provided under the Tenth Amendment?

Answer 91

The Tenth Amendment provides that all powers not assigned by the Constitution to the federal government are reserved to the states, or to the people.

Question 92

What powers does Congress use to encourage state action that it cannot directly compel?

Answer 92

The Taxing and Spending Power

Note: Congressional encouragement may not exceed the point at which pressure turns into compulsion.

Question 93

In what three circumstances is federal preemption implied?

Answer 93

(i) Congress intended for federal law to occupy the field;
(ii) The state law directly conflicts with federal law; or
(iii) The state law indirectly conflicts with federal law by creating an obstacle or frustrating the accomplishment of that law’s purpose.

Question 94

What is a pocket-veto?

Answer 94

If Congress has adjourned within the 10-day period after presenting a bill to the President, and the President had not yet acted on the bill, this is known as a “pocket veto” and the bill does not become law. This cannot be overridden.

Question 95

What are the two means for establishing appellate jurisdiction in the Supreme Court?

Answer 95

1. Certiorari (discretionary review)
2. Direct appeal (mandatory)

Question 96

What is the scope of the President’s power to remove executive officials?

Answer 96

it is generally accepted that the President may remove any executive appointee without cause (and without Senate approval).
Note: federal judges are excepted, and hold their offices during good behavior and until impeached.

Question 97

When does a taxpayer have standing to file a federal lawsuit?

Answer 97

A taxpayer has standing when the taxpayer challenges governmental expenditures as violating the Establishment Clause.
A taxpayer also has standing to litigate whether, or how much, she owes on her tax bill.

Question 98

Under the Article I suspension clause, persons in federal custody can challenge their detention by filing a writ of habeas corpus in federal courts unless

Answer 98

Congress has suspended the writ

This clause applies to noncitizens classified and detained as enemy combatants in territories over which the United States has sovereign control.

Question 99

Can Congress deny courts federal jurisdiction under habeas corpus proceedings?

Answer 99

No that would violate the suspension clause unless congress EXPLICITLY suspended the writ

Question 100

An assignee has standing to sue to enforce the rights of the assignor provided that

Answer 100

(1) the requirements for standing (injury-in-fact, causation, redressability) are met and (2) the assignment was made for ordinary business purposes and in good faith.

Question 101

Does Article I necessary and proper clause gives Congress the power to enact laws that are reasonably appropriate to carry out the President’s express powers?

Answer 101

Yes, such as enacting legislation to fund a treaty the president entered into

Question 102

Congress can impose a direct federal tax (e.g., a tax on real property) only if it is:

Answer 102

1. apportioned evenly among the states based on each state’s population and
2. reasonably related to revenue production

Question 103

Under the Tenth Amendment, the federal government cannot impose federal taxes directly on states that unduly interfere with their essential functions. But it can impose taxes if . . .

Answer 103

the taxes on the states are imposed indirectly through their affiliates—i.e., persons doing business with state governments—so long as the taxes are nondiscriminatory

Question 104

14th amendment equal protection clause ensures that each citizen is given equal voting power (i.e., one person, one vote) by requiring state legislative districts (e.g., state senate districts) to have largely equal populations and means that the populations in each voting district must be approximately equal. What deviation of legislative districts is considered minor and thus non-violative of the EQ clause?

Answer 104

Absent evidence of discrimination, a deviation of 10% or less between the populations of legislative districts is considered minor

Question 105

Dormant Commerce Clause

A state or local action (e.g., county ordinance) that discriminates against interstate commerce—i.e., an action that protects in-state over out-of-state economic interests—is invalid unless:

Answer 105

The state shows that it

(i) an important local interest is being served, and
* Ex: it furthers a legitimate, noneconomic state or local interest (e.g., protecting natural resources) and

(ii) no other nondiscriminatory means are available to achieve that purpose.

Question 106

U.S. Supreme Court (SCOTUS) has original jurisdiction over

Answer 106

(1) cases involving foreign ambassadors, public ministers, or consuls (concurrent with lower federal courts) and
(2) cases in which a state is a party.

Question 107

Over which cases does SCOTUS NOT have exclusive jurisdiction?

Answer 107

Both SCOTUS and lower federal courts have concurrent jurisdiction over:

1. cases involving foreign ambassadors, public ministers, or consuls
2. cases between the United States and a state and
3. cases between a state and citizens of another state or noncitizens

Question 108

Although the fundamental right to vote normally triggers strict scrutiny under both DP and EQ, it will trigger rational basis when:

Answer 108

a state or local law limits the right to vote in a governmental unit’s election to its residents (those who reside within the governmental unit’s borders)

Question 109

Which types of speech are unprotected? (FIDO)

Answer 109

Fighting words/threats
* the government cannot regulate or prohibit fighting words based on the speaker’s viewpoint

Inciting crime
Defamation
Obscenity

Question 110

What does the eleventh amendment say regarding retroactive damages against the state?

Answer 110

The Court has interpreted the Eleventh Amendment as barring unconsented private suits ** against a state** for retroactive money damages

However, Congress may expressly abrogate state immunity (and thus this bar) if it is clearly acting under Section Five of the Fourteenth Amendment to enforce rights created by Section One (or to enforce rights created by the remedial provisions of the other Civil War Amendments).

So if Congress passes a statute to prevent equal protection violation, even of a non-suspect class, and expressly abrogrates state immunity, it will be a proper statute

Question 111

The First Amendment Free Speech Clause does not protect child pornography. Is prohibiting the sale, distribution, and even private possession of child pornography, even if the material would not be obscene if it involved adults, a constitutuonal?

Answer 111

YES Because of the government’s compelling interest in protecting minor children from the exploitation, the sale, distribution, and even private possession of child pornography. Free Speech does NOT protect child pornography. it does not matter that the material would not be obscene if it involved adults.

Question 112

Commercial speech is entitled to intermediate First Amendment protection when it concerns lawful activity and is neither false nor misleading.

Restrictions on such speech are valid if the regulation is narrowly tailored to serve a substantial governmental interest, what does narrowly tailored mean in this context as opposed to its regular meaning within the first amendment?

Answer 112

In this context, narrowly tailored does not mean the least restrictive means available; rather, there must be a “reasonable fit” between the government’s ends and the means chosen to accomplish those ends.

Question 113

Describe the difference between the immunity member of congress have vs. the president regarding statements made.

Answer 113

Although members of Congress enjoy immunity for statements made in the regular course of the legislative process (i.e., during legislative hearings on a bill), the immunity will not protect statements made outside of Congress.

Accordingly, the immunity will not extend to a “re-publication” of a defamatory statement, even if that statement was originally made in Congress.

On the other hand, the president enjoys absolute executive immunity to civil suits for money damages for actions while he is in office.

Question 114

Governmental financial assistance to religious institutions does not run afoul of the Establishment Clause if

Answer 114

the aid is secular in nature, used only for secular purposes, and, when the aid is distributed among secular and religious institutions, the distribution criteria are religiously neutral.

Question 115

What is the test for whether a state tax on foreign commerce is constitutional under the commerce clause?

Answer 115

BASELINE TEST

A state tax imposed on interstate commerce must satisfy the Complete Auto test. Under this test, (i) the activity taxed must have a substantial nexus to the taxing state, (ii) the tax must be fairly apportioned, (iii) the tax may not discriminate against interstate commerce, and (iv) the tax must be fairly related to the services provided by the state.

For FOREIGN COMMERCE
In addition to meeting the same requirements above, must not (i) create a substantial risk of international multiple taxation or (ii) prevent the federal government from “speaking with one voice” regarding international trade or foreign affairs issues.

Question 116

If a state ordinance protects a local interest at the expense of an out-of-state competitor, is it discriminatory?

Answer 116

Yes

Question 117

Classifications based on citizenship are subject to Strict scrutiny, however

Classifications based on status as a lawful resident of the United States (as opposed to a citizen) are subject to a variety of different standards, depending on the level of government and the nature of the classification. What standards do courts generally apply?

Answer 117

Courts will generally apply the strict scrutiny test and strike down state laws that discriminate against noncitizens
* such as laws prohibiting noncitizens from owning land, obtaining commercial fishing licenses, or being eligible for welfare benefits or civil service jobs.

EXCEPTION
state laws that restrict or prohibit a noncitizen’s participation in government functions need only have a rational relationship to a legitimate state interest , and are generally upheld as preventing noncitizens from having a direct effect on the functioning of the government.

Question 118

What is congress’s power to investigate?

Answer 118

Congress does not have an express power to investigate, but the Necessary and Proper Clause allows Congress broad authority to conduct investigations incident to its power to legislate
* This includes subpoenas

Look at whether Congress is investigating any matter within a “legitimate legislative sphere” , if so —> proper

Question 119

Can a state law retroactively impair the obligation of contracts?

Answer 119

NO.
Impairment by the state of a public contract (one to which the state or local government is a party) must be
* reasonable and
* necessary

Furthermore, the state must show that its important interest cannot be served by a less-restrictive alternative and that the impairment it seeks is necessary because of** unforeseeable circumstances**.

Question 120

Lay out the four elements for protection of commercial speech under the fourth amendment

Answer 120

Commercial speech is entitled to an intermediate level of First Amendment protection. Restrictions on commercial speech are reviewed by the following
1. commercial speech must concern lawful activity and be neither false nor misleading
2. the asserted governmental interest must be substantial.
3. The regulation must directly advance the asserted interest
4. The regulation must be narrowly tailored to serve that interest; this means there must be a “reasonable fit” between the government’s ends and the means chosen to accomplish those ends.

Question 121

What does the Speech or Debate Clause of Article I do?

Answer 121

It protects members of Congress from statements and conduct made in the regular course of the legislative process

Question 122

speech in a nonpublic forum may be subject to content-based governmental regulation provided that the regulation is

Answer 122

viewpoint-neutral and reasonably related to a legitimate governmental purpose

ex: ordering a person to not wear a shirt with a political symbol in the court room

Question 123

What does the fifteenth amendment do?

Answer 123

The Fifteenth Amendment prohibits both the state and federal governments from denying any citizen the right to vote on the basis of race, color, or previous condition of servitude. The courts have interpreted the right to vote to include the right to have that vote meaningfully counted.

Question 124

Can a nondenominational prayer led by a cleric at public school graduation ceremonies be constitutional?

Answer 124

No this has been held invalid as clearly promoting religion

Question 125

What are the first amendment implications regarding restricting speech in a non-public forum?

Answer 125

the government may regulate speech-related activities in nonpublic forums as long as the regulation is
(i) viewpoint-neutral and
(ii) reasonably related to a legitimate governmental interest.

Apply rational basis

An airport terminal is considered a nonpublic forum

Question 126

first amendment

When is prior restraint at issue?

Answer 126

When approval of a government official is required

Question 127

When is a prosecutor immune from civil liability?

Answer 127

A prosecutor is absolutely immune from civil liability for damages resulting from his prosecutorial acts unless it is clear that the prosecutor did not have jurisdiction.

Question 128

Is life without parole a permissible sentence for someone convicted of a nonhomicide offense?

Answer 128

Not for a JUVENILLE (person who was a juvenille at time offense was committed)

Question 129

Who cannot be sentenced to the death penalty?

Answer 129

Juveniles
Intellectually deficient persons
Adults convicted of nonhomicide offenses

Question 130

If a defendant was a juvenile at the time the crime was commited, what does the eight amendment prohibit the imposition of?

Answer 130

1. death penalty
2. mandatory life without parole for any offense
3. life without parole for nonhomicide offense

Question 131

For public displays or monuments under the establishment clause, what is the test that applies?

Answer 131

The endorsement test: if the overall context of a government display would cause a reasonable observer to conclude that the display endorses (or dissaproves) of religion –> it is PROHIBITED

is it located on gov property? does it include secular items that would negate the endorsement?

Question 132

There is a legitimate property interest in continued public employment only if there is

Answer 132

an employment contract or
a clear understanding that the employee may be fired only for cause

Question 133

Even if original subject matter jurisdiction is met, if jurisdiction of the federal court is based on diversity only, the claim may be removed only if no defendant is a citizen of

Answer 133

the state where the claim was filed

Question 134

With regard to federal agencies, congress may establish them and create their duties, but when Congress passes legislation to monitor a federal agency, including regulating its funding, this legislative action must be

Answer 134

voted on by both houses as well as be presented to the President (the same requirements for a bill to become a law).

Question 135

Congress can condition the grant of federal funds to public bodies in compliance with measures related to public welfare so long as the body is

Answer 135

free to accept or reject the grant

Question 136

Do federal courts have federal question jurisdiction over cases arising under a treaty of the US?

Answer 136

YES

Question 137

Can congress introduce a statute that authorizes states to impose a durational residency requirement?

Answer 137

No, it is unconstitutional bc of privileges and immunities clause of 14th amendment: violates the right to travel