Constitutional Law Themis Set

Question 1

What suits are barred by the 11th Amendment?

Answer 1

(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 2

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

Answer 2

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 3

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

Answer 3

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

Question 4

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

Answer 4

(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 5

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

Answer 5

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 6

Who may impeach the president and who may convict the president?

Answer 6

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

Question 7

What does it mean for a claim to be ripe for litigation?

Answer 7

The plaintiff must have experienced a real injury (or imminent threat thereof). A federal court will not consider a claim before it has fully developed.

Question 8

What does it mean in terms of mootness when a case is capable of repetition, yet evading review?

Answer 8

A case will not be dismissed as moot if there is a reasonable expectation that the same complaining party will be subject to the same action again (capable of repetition) but that the action will not last long enough to work its way through the judicial system (yet evading review).

Note: Roe v Wade provides the classic constitutional example. By the time the woman seeking to terminate her pregnancy finally came before the Supreme Court, she was no longer pregnant, therefore the argument was made that her claim was moot. However, she could once again find herself in a similar situation, and would again be without judicial recourse.

Question 9

What is provided under the Tenth Amendment?

Answer 9

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 10

Generally, a person who is intentionally being deprived of life, liberty or property, is entitled to what two procedural due process rights?

Answer 10

The rights to notice and a hearing

Question 11

Name the three requirements that must be met in order for a restriction on the time, place, or manner of speech to be permissible.

Answer 11

The restriction must:
(i) Be content-neutral as to both subject matter and viewpoint;
(ii) Be narrowly tailored serve a significant state interest; and
(iii) Leave open ample alternative channels for communication of the information.

Question 12

How does aggregation come into play when considering the “substantial economic effect” of an activity for purposes of the Commerce Clause?

Answer 12

Congress has the power to regulate any activity that in and of itself, or in combination with other activities, has a substantial economic effect upon interstate commerce. Aggregation deals with the “in combination with other activities” part of the rule. While one farmer growing wheat on his farm with no intent to sell to anyone seems to be an isolated event, that can change when combined with other farmers who share that same intent. These isolated events can “in the aggregate” have a substantial effect on interstate commerce (or lack thereof) and be regulated by Congress.

Question 13

The federal government may not commandeer state legislators. What does this mean?

Answer 13

Congress cannot command state legislature to enact specific legislation or enforce a federal regulatory program, and it may not circumvent that restriction by conscripting a state executive officer directly.

Note: While Congress cannot directly command (either by compelling a state to enact legislation or prohibiting a state from enacting new laws), it can use its taxing and spending powers to encourage state action.

Question 14

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

Answer 14

When a state official, rather than the state itself, is named as the defendant, the state official 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 15

What is an advisory opinion and why do federal courts not render them?

Answer 15

An advisory opinion is an opinion issued by a court or a commission like an election commission that does not have the effect of adjudicating a specific legal case, but merely advises on the constitutionality or interpretation of a law. Federal courts do not render advisory opinions because federal courts only render decisions where an actual case or controversy exists.

Question 16

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

Answer 16

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 17

When is Congress able to regulate purely private conduct?

Answer 17

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

Question 18

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

Answer 18

(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 19

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 19

(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 20

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

Answer 20

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

Question 21

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

Answer 21

The Constitution grants the President the power to “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” This power only applies to federal cases- the President may not pardon anyone for state offenses.

Question 22

List three fundamental rights.

Answer 22

(i) The right to travel;
(ii) The right to vote; and
(iii) The right to privacy (including marriage, sexual relations, child rearing, and the right of related persons to live together).

Question 23

In what three circumstances is federal preemption implied?

Answer 23

(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 24

What is a pocket veto?

Answer 24

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 25

Name three actions not barred by the Eleventh Amendment.

Answer 25

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 26

What is a line item veto?

Answer 26

A line item veto is where the President refuses only part of a bill and approves the rest. Line item vetos violate the Presentment Clause and are therefore unconstitutional.

Question 27

What is a legislative veto, and is it constitutional?

Answer 27

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

Question 28

To have standing, a plaintiff bears the burden of establishing three elements. Name the elements.

Answer 28

(i) Injury in fact;
(ii) Causation (the injury must be caused by the defendant’s violation of a constitutional or other federal right); and
(iii) Redressability (the relief requested must prevent or redress the injury).

Note: The federal judiciary has also established a ““prudential standing”” requirement, i.e., that a plaintiff is a proper party to invoke a judicial resolution of the dispute.

Question 29

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

Answer 29

Absolute immunity

Question 30

What is are the four suspect classifications for whom strict scrutiny will apply in an Equal Protection claim?

Answer 30

(i) Race
(ii) Ethnicity
(iii) National origin
(iv) If the classification is by state law, citizenship status

Question 31

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

Answer 31

(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 32

Under Equal Protection, when is intermediate scrutiny applied?

Answer 32

When a classification is based on gender or status as a nonmarital child (legitimacy)

Note: In gender cases, there must be an ““exceedingly persuasive justification”” for the classification.

Question 33

When can the states tax the federal government?

Answer 33

When that tax is indirect and does not unreasonably burden the federal government (e.g., state income taxes on federal employees)

Question 34

When is there a legitimate property interest in continued public employment?

Answer 34

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

Note: Even those employees who lack any entitlement to continued employment cannot be discharged for reasons that in and of themselves violate the Constitution.

Question 35

Compare and contrast ripeness and mootness.

Answer 35

Ripeness and mootness both deal with the timeliness of an action for judicial review purposes. Ripeness is an action that is brought too soon, and mootness is an action that is brought too late, as there is no longer a case or controversy.

Question 36

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

Answer 36

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

Question 37

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

Answer 37

(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 apply to wholly extraterritorial activity.

Question 38

When does federal law expressly preempt state law?

Answer 38

When (i) the Constitution makes federal power exclusive (such as the powers to coin money or declare war), or (ii) when Congress has enacted legislation that explicitly prohibits state regulation in the same area

Question 39

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

Answer 39

(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 40

How is the President’s veto power exercised?

Answer 40

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 41

Define strict scrutiny.

Answer 41

The law must be the least restrictive means to achieve a compelling governmental interest.

Question 42

When may a state tax instrumentalities of commerce?

Answer 42

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 43

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

Answer 43

When the state action in question involves a fundamental right or suspect classification.

Question 44

What is required to trigger constitutional protections (with the exception of the Thirteenth Amendment)?

Answer 44

State action

Question 45

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

Answer 45

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

Question 46

Define rational basis.

Answer 46

A law meets the rational basis standard of review if it is rationally related to a legitimate state interest.

Note: This test generally results in the law being upheld.

Question 47

Define intermediate scrutiny.

Answer 47

To be constitutional, the law must be substantially related to an important governmental interest.

Question 48

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

Answer 48

(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 49

What must the plaintiff show in order to trigger strict or intermediate scrutiny under the Equal Protection Clause?

Answer 49

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

Question 50

The Supreme Court has sorted government property that is open for speech into three categories.

What are the three categories?

Answer 50

1. Traditional public forums
2. Designated public forums
3. Nonpublic/limited public forums