Extras from Long Outline

Question 1

Parental Standing

Answer 1

Generally, a parent has standing to bring an action on behalf of the parent’s minor child. However, after a divorce, the right to bring such an action may be limited to only one of the child’s parents. Moreover, when the right to bring such an action is based on family-law rights that are in dispute, the federal courts should not entertain an action if prosecution of the lawsuit may have an adverse effect on the child.

Question 2

Assignee Standing

Answer 2

An assignee of a claim has standing to enforce the rights of an assignor, even when the assignee is contractually obligated to return any litigation proceeds to the assignor (e.g., an assignee for collection), provided the assignment was made for ordinary business purposes and in good faith.

Question 3

Citizenship Standing

Answer 3

Citizens do not have standing to assert a claim to enforce a constitutional provision merely because they are citizens, although a citizen may bring an action against the government to compel adherence to a specific federal statute. Even in such a case, the plaintiff must have directly suffered an injury in fact.

Question 4

Standing to assert a 10A Violation

Answer 4

A party has standing to challenge the constitutionality of a federal statute on the grounds that it exceeds Congress’s enumerated powers and intrudes upon the powers reserved to the states by the Tenth Amendment.

Question 5

Voluntary cessation exception to mootness

Answer 5

A court will not dismiss as moot a case in which the defendant voluntarily ceases its illegal or wrongful action once litigation has commenced. The court must be assured that “there is no reasonable expectation that the wrong will be repeated.”

Question 6

Class action exception to mootness

Answer 6

If the named plaintiff’s claim in a certified class action is resolved and becomes moot, that fact does not render the entire class action moot.

Question 7

Investigatory Power

Answer 7

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.

Question 8

Property Power

Answer 8

Article IV, Section 3 gives Congress the “power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” There is no express limit on Congress’s power to dispose of property owned by the United States. Under the Fifth Amendment, however, Congress may only take private property for public use (eminent domain) with just compensation and in order to effectuate an enumerated power.

Question 9

Postal Power

Answer 9

Congress has the exclusive power “to establish post offices and post roads” under Article I, Section 8, Clause 7. Congress may impose reasonable restrictions on the use of the mail (such as prohibiting obscene or fraudulent material to be mailed), but the postal power may not be used to abridge any right guaranteed by the Constitution (e.g., the First Amendment).

Question 10

Power over Aliens

Answer 10

Congress has plenary power over aliens. Aliens have no right to enter the United States and may be refused entry for reasons such as their political beliefs. However, this power is subject to the constraints of the Fifth Amendment Due Process Clause for an alien within the United States. An alien may generally be removed from the United States, but only after notice and a removal hearing.

Question 11

Naturalization Power

Answer 11

Congress has exclusive authority over naturalization. However, the right of national citizenship in the Fourteenth Amendment prevents Congress from taking away the citizenship of any citizen without her consent, unless that citizenship was obtained by fraud or in bad faith.

Question 12

President’s Authority as Chief Executive

Answer 12

When the President acts:

i) With the express or implied authorization of Congress, presidential authority is at its highest, and the action is strongly presumed to be valid;
ii) When Congress has not spoken, presidential authority is diminished, and the action is invalid if it interferes with the operations or power of another branch of government; and
iii) When Congress has spoken to the contrary, presidential authority is “at its lowest ebb,” and the action is likely invalid.

Question 13

Judicial limitation of Congressional power

Answer 13

Under the doctrine of separation of powers, Congress may not reinstate the right to bring a legal action after the Supreme Court has definitely rejected that right.

Question 14

Presidential advisor privilege/immunity

Answer 14

A senior presidential advisor (e.g., cabinet member) is not automatically entitled to enjoy derivatively the protection of absolute executive immunity. Although the Supreme Court has stated that such an advisor may be entitled to such
protection when performing special functions that are vital to national security or foreign policy, the Court has also held that an Attorney General did not qualify for absolute immunity with respect to the authorization of a warrantless wiretap for national security purposes. The burden for establishing such immunity rests with the advisor.

Question 15

Federal official immunity

Answer 15

A federal official, in performing a discretionary (as opposed to ministerial) act, is entitled to qualified immunity from liability for civil damages when the official’s conduct does not violate clearly established statutory and constitutional rights of which a reasonable person would have known. This is an objective standard; a plaintiff’s bare allegations of malice are insufficient to overcome this immunity.

Question 16

US-state litigation

Answer 16

In suits between a state and the United States, the United States must consent before the state can file suit against it; conversely, the United States does not need to obtain consent from a state to file suit against that state. As between states, no consent is needed for one state to file suit against another state.

Suits against federal officers are limited, and generally prohibited, because such suits are considered to be brought against the United States if payment of the award will be made from the public treasury. However, if the federal officer acted outside the scope of his professional capacity, then a suit may be instituted against the officer individually.

Question 17

“Doing Business” taxes

Answer 17

Taxes levied against companies for the privilege of doing business in a state (made up of privilege, license, franchise, or occupation taxes) are valid as long as they meet the basic taxation requirements:
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. Such a tax may be measured by a flat annual fee or by a graduated rate
proportional to the amount of revenue derived from the taxing state. The burden of showing that a tax is unfairly apportioned is on the taxpayer.

Question 18

Alcoholic Beverage Regulation

Answer 18

The Twenty-First Amendment repealed prohibition and gave the authority to regulate the distribution of alcoholic beverages within each state to the states. However, regulations that economically favor local liquor businesses over out-of- state liquor businesses can violate the Commerce Clause. In addition, Congress, under the spending power, can impose conditions on the grant of federal funds that affect state regulation of alcohol.

Question 19

Substantive Due Process - Retroactive Legislation

Answer 19

The retroactive application of a statute does not in and of itself violate substantive due process. Consequently, a law that is applied retroactively must merely meet the rational basis test. Similar treatment applies to a statutory change that is remedial in nature (i.e., affects a remedy but does not create or abolish a right). Note, however, that the extension of a criminal statute of limitations may violate the prohibition on an ex post facto law.

Question 20

Lawful exceptions to Second Amendment (guns)

Answer 20

Examples of lawful regulations include imposing conditions and qualifications on the commercial sale of arms, as well as prohibitions on (i) concealed weapons, (ii)possession of firearms by felons and the mentally ill, and (iii) carrying guns in schools, government buildings, and other sensitive places are presumed to be legitimate.

Question 21

Religion - Property Tax Exemptions

Answer 21

Property-tax exemptions for religious institutions have been held valid as being equivalent to exemptions given to other charitable organizations and therefore neither advancing nor inhibiting religion. Tax exemptions that are available only for religious activities or organizations, however, violate the Establishment Clause as an endorsement of religion. Similarly, tax deductions given to reimburse tuition expenses only for parents of students in religious schools are invalid. If such a deduction is available to all parents for actual educational expenses of attending any public or private school (including parochial schools), it is valid.

Question 22

Freedom of Speech - Unfettered Discretion

Answer 22

A law or regulation that permits a governmental official to restrict speech (e.g., requires an official to issue a permit before a rally can be held) must provide definite standards as to how to apply the law in order to prevent governmental officials from having unfettered discretion over its application. Such a law or regulation must be related to an important governmental interest and contain the procedural safeguards mentioned above. A statute that gives officials unfettered discretion is void on its face; speakers need not apply for a permit and may not be punished for violating the licensing statute.

Question 23

Freedom of Speech - Freedom to Not Speak

Answer 23

The First Amendment protects not only freedom of speech, but also the freedom not to speak. One such example is a child’s right not to recite the Pledge of Allegiance. Similarly, the private organizers of a parade cannot be compelled by the government to include in the parade a group that espouses a message with which the organizers disagree. Nor can the government mandate as a condition of federal funding that recipients explicitly agree with the government’s policy to oppose prostitution and sex trafficking. However, a state can compel a private entity (e.g., a shopping mall) to permit individuals to exercise their own free-speech rights when the private entity is open to the public and the message is not likely to be attributable to the private entity.

Question 24

Freedom of Speech - Compelled Financial Support

Answer 24

Although one can be compelled to join or financially support a group with respect to one’s employment, one cannot be forced to fund political speech by that group. A student, however, can be required to pay a university activity fee even though the fee may support groups that espouse messages with which the student disagrees, at least when the fee is allocated in accord with a viewpoint-neutral scheme.

Question 25

Freedom of Speech - Gov’t Speech

Answer 25

When the government itself speaks, it is not constrained by the First Amendment. Therefore, government speech (public service announcements, agricultural marketing campaigns, etc.) need not be viewpoint-neutral.

Question 26

Freedom of Speech - Gov’t Speech, Funding of Private Messages

Answer 26

The government may fund private messages. However, it must generally do so on a viewpoint-neutral basis. The exception to this is when the government decides to fund artists; the decision of which artist to fund is necessarily based on the content of the artist’s work.

Question 27

Freedom of Speech - Speech by Gov’t Employees

Answer 27

Attempts to fire or penalize a government employee for speech on matters of “public concern” will be strictly scrutinized. However, speech on matters of public concern made in furtherance of the public employee’s job functions receives less protection under the First Amendment than speech made by a person acting outside of his job. Courts balance the First Amendment interest of the employee against the interest of the state, as an employer, in promoting the efficiency of the public services it provides through its employees. Speech by a government employee, including a petition for redress related to the employee’s job, that does not relate to a matter of public concern, is not constitutionally protected.