fianl review

Question 1

when DOES actually a taxpayer have standing?

Answer 1

if the gov’t spending/taxing action exceeds a SPECIFIC limit on taxing and spending power, such as the establishment clause

Question 2

re: procedural DP, what is a business license?

Answer 2

a valid property right; notice and a hearing are req’d

Question 3

what process is req’d before depriving a gov’t employee of their employment?

Answer 3

notice and a pretermination “opportunity to respond”

Question 4

what is the negative commerce clause?

Answer 4

by implication; state or local regulations that discriminate against interstate commerce to protect local economic interests ARE ALMOST ALWAYS INVALID

***if Congress HN enacted laws regarding the subject, a state or local gov’t may regulate local aspects of interstate commerce; however, it must not discriminate against or unduly burden interstate commerce. if it does, the state or local regulation will violate the CC.

Question 5

what are the exceptions to the prohibitions of the dormant commerce clause/negative commerce clause?

Answer 5

1. important state interest – a discriminatory state or local law may be valid if it furthers an IMPORTANT, noneconomic state interest and there are NO R NONDISCRIMINATORY ALTERNATIVES available
2. state = mkt participant
3. gov’t f(x)’s

Question 6

what is the commerce clause?

Answer 6

congress’s power to regulate interstate commerce

• • conflicting state laws are superseded and
• • even nonconflicting state or local laws may be preempted

Question 7

On the MBE, if a law limits the liberty of ALL persons engaged in some activity, what does it relate to?

Answer 7

Substantive DP

Question 8

On the MBE, if a law treats a person or class of persons differently from others, it’s…

Answer 8

Equal Protection

Question 9

when is strict scrutiny triggered? what is the test? who has the burden?

Answer 9

for regulations ffecting FUNDAMENTAL RIGHTS; law is upheld if it NECESSARY to achieve a COMPELLING gov’t purpose; burden of proof on gov’t

Question 10

what are the fundamental rights?

Answer 10

interstate travel, privacy, voiting, and 1A rights

Question 11

when is intermediate scrutiny tirggered? waht is the test?

Answer 11

regulations involving QUASI-SUSPECT classifications. law is upheld if it is SUBSTANTIALLY RELATED to an IMPORTANT gov’t purpose.

Question 12

What does the Art. IV priviliges and immunities clause protect against? what does the 14A P + I Clause protect against?

Answer 12

Art. VI: discrimination by a state against nonresidents concerning “fundamental rights”
- commercial activities
- civil liberties
14A: protects citizens against states trying to deny the priviliges and immunities of national citizenship (right to petition Congress, voting, interstate travel) (right to interstate travel)

Question 13

when is a state law upheld that potentially violates the Art. IV P&I Clause?

Answer 13

if state has substantial justification for the different treatment –
- state must show that nonresidenrts either cause or are part of the problem that the state wants to solve and that there are NO LESS RESTRICTIVE MEANS

Question 14

re: regulation of content of speech, what is the presumption?

Answer 14

presumptively unconstitutional, apply intermediate scrutiny - advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary

Question 15

what does a regulation of conduct (time, place, and manner of speech) trigger?

Answer 15

analysis of type of public forum

Question 16

what are ex. of public forums?

Answer 16

streets, sidewalks, parks, internet

Question 17

what are ex of designated public forums

Answer 17

schools rooms that are open for after school use by social civic or recreation groups

Question 18

what is the test for public forums and designated public forums?

Answer 18

gov’t regulation on time, place, manner must be:

1. content neutral
2. narrowly tailored to serve an IMPORTANT gov’t interest (however, it need NOT be the least restrictive means)
3. Leave open alternative channels of communication

Question 19

test for limited public forums and onpublic forums?

Answer 19

1. viewpoint neutral

2. R related to a legitimate gov’t purpose

Question 20

ex of limited public forum:

Answer 20

gym opened to host a debate on a particular community issue, gov’t property not historically linked w/ speech and assembly but opened for specific speech related purpose

Question 21

nonpublic forum examples:

Answer 21

military base, school while class is in session, gov’t workplace

Question 22

gov’t action challenged under the establishment clause will be found invalid unless the action:

Answer 22

1. has a secular purpose
2. has a primary effect that neither advances nor inhibits religiton;
3. DN produce excessive gov’t entanglement w/ religion

Question 23

elements of obscenity?

Answer 23

1. appeals to the prurient interest in sex, using a community standard
2. is patently offensive and an affront to contem;porary community standards; and
3. lacks serious value using a nation’l RP standard (artistic, literary, political or scientific)

Question 24

when can a city limit voting to exclude nonresidents?

Answer 24

as long as it’s rationally related, even if those residents receive some benefit from the city

Question 25

voting reapportionment variance

Answer 25

The resident will not prevail because the reapportionment plan does not violate the Equal Protection Clause of the Fourteenth Amendment. That provision has been interpreted to prohibit state dilution of the right to vote, so that whenever a governmental body establishes voting districts for the election of representatives, the number of persons in each district may not vary significantly. However, for the purpose of electing representatives to a state or local governmental body, the variance in the number of persons included in each district can be greater than that permitted for congressional districts. If the deviation from mathematical equality between districts is reasonable and tailored to promote a legitimate state interest, the law establishing the districts will likely be upheld. The Court has held that maintaining the integrity of local political subdivision lines when establishing legislative districts is a legitimate state interest, as long as the final apportionment is substantially based on population. [See Mahan v. Howell (1973)-16% variance upheld] Here, the reapportionment attempted to conform legislative districts as nearly as possible to county borders and had a maximum variance of 12%. Thus, it will probably withstand the resident’s challenge.

Question 26

what does the 11A prohibit? Who does it not block?

Answer 26

blocks individuals and foreign gov’ts from bringing challenges against the state, but N neighboring states

Question 27

can a president unilaterally declare an approved treaty to be void?

Answer 27

yes, the president’s power over foreign affairs are king

Question 28

if a state tries to tax something that is connected to a plan of the federal gov’t’s, is it constitutional?

Answer 28

no, violates the intergovernmental immunities clause

Question 29

takings clause. review. if a gov’t regulation deprives a landowner of use of some of their land, are they entitled to just compensation?

Answer 29

no, b/c they can still use some of their land, not just compensation req’d

Question 30

what is a “taking”?

Answer 30

when a gov’t regulation deprives a landowner of the economic benefit of all of her land, which requires the payment of just compensation

Question 31

when does a public employee have a property interest in their job?

Answer 31

when they can only be fired “for cause,” if so entitled to notice and opportunity for hearing

Question 32

what kind of speech can a gov’t employee be fired for? what kind of speech can they not be fired for?

Answer 32

• • speech that disrupts the gov’t’s offices, disobeys the employer’s policies or undermines their authority
• • cannot be fired for speech related to a public issue, UNLESS it qualifies as the above

Question 33

is discriminatory effect enough to trigger strict scrutiny?

Answer 33

no, must show discriminatory intent

Question 34

what is a courtroom/court house considered?

Answer 34

streets, sidewalks, parks, and designated public forums, most public property (including a court building and its grounds) is considered to be a limited public forum or a nonpublic forum

Question 35

test for regulation of commercial speech?

Answer 35

If the speech regulated concerns a lawful activity and is not misleading or fraudulent, the regulation will be valid if it (i) serves a substantial government interest, (ii) directly advances the interest, and (iii) is narrowly tailored to serve the substantial interest. While this test does not require that the least restrictive means be used, there must be a reasonable fit between the legislation’s end and the means chosen. The greater the restriction on speech, the less likely it will be deemed to be reasonable. A complete ban on truthful advertising of a lawful product is very unlikely to be upheld because such a restriction is not narrowly tailored.