Key things

Question 1

Original jurisdiction of SCOTUS

Answer 1

Congress can’t expand original juris

Controversies with at least 1 state as party, ambassadors/public minister/consul

Question 2

Public forum

Answer 2

A place that has been devoted to PUBLIC DISCOURSE either traditionally or by governmental designation

Does not matter if in general it’s freely accessible; needs to be for discourse

Question 3

Due process challenge

Answer 3

Challenging party has initial burden

Question 4

Supremacy clause

Answer 4

US constitution, federal laws, and treaties are the supreme law of the land

Federal gov, including agencies and instrumentalities need not comply with local tax or regulation unless congress consents

Question 5

Establishment of religion

Answer 5

School-sponsored prayer must be reviewed under coercion test, which considers whether gov forced participation in a religious exercise

Question 6

Public employees due process

Answer 6

Have a property interest in employment if they have an ongoing employment contract, can only be fired for cause, or receive assurances of continued employment

Question 7

Privileges and immunities clause

Answer 7

Prohibits states from improperly discriminating against citizens of other states
DOES NOT APPLY TO FED GOV

Question 8

Property clause

Answer 8

Gives congress absolute power to dispose of and regulate federally owned land and territories

Question 9

Equal voting rights

Answer 9

14th and 15th amendment
14 - equal voting power, 1 person 1 vote
15 - ensures right to vote is not abridged on account of race

Question 10

Taxing and spending clause

Answer 10

Grants congress extensive power to appropriate federal funds

Can require president and federal agencies to spend funds as explicitly directed in federal statute

Valid if uniformly imposed in every state where taxed good is found and reasonably related to revenue raising on its face

Question 11

Freedom of association

Answer 11

Strict scrutiny of gov if they try to interfere and significantly burden group’s ability to express its views or carry out its mission

Question 12

Electoral regulation

Answer 12

1st and 14th amendments
Standard for evaluating electoral regulation depends on whether burden imposed is ordinary (rational basis) or severe (strict scrutiny)

Question 13

Appellate jurisdiction of SC

Answer 13

Congress can abridge it

Case filed after decision by either lower federal court or high state court

Question 14

14th amendment

Answer 14

Right to procedural due process
Challenging party has initial burden of showing they have a protected life, liberty, or property interest at stake
Public employees have protected property interest in employment if they have an ongoing employment contract, can only be fired for cause, or receive assurances of continued employment

Question 15

Freedom of association

Answer 15

Strict scrutiny of gov if they try to interfere and significantly burden group’s ability to express its views or carry out its mission

Right to freely associate, so gov cannot inquire about a person’s associations for sole purpose of withholding a right or benefit because of that person’s beliefs
Must show that inquiry is necessary to protect legitimate state interest

Question 16

5th amendment

Answer 16

Law that treats similarly situated persons differently may violate equal protection through due process
Suspect class- strict scrutiny

Question 17

Import export clause

Answer 17

Prohibits states from imposing any tax on any imported or exported goods or any commercial activity connected with imported goods
Congress has exclusive power to regulate foreign commerce

Question 18

SCOTUS exclusive jurisdiction

Answer 18

Controversies between 2 or more states

Question 19

Lower federal court jurisdiction

Answer 19

Congress has denied SCOTUS exclusive jurisdiction over

• cases involving foreign ambassadors, public ministers, or consuls
• cases between US and a state
• cases between state and citizens of another state or noncitizens

Question 20

Fighting words

Answer 20

true threats are statements that a reasonable person would interpret as communicating a serious intent to commit unlawful violence toward a specific group or individual. Facially valid law can still be unconstitutional as applied to challenging party - “strangle every one of them” was not a trust threat, it was merely political hyperbole that amused the crowd

Question 21

Presidential powers

Answer 21

Power to negotiate with foreign nations impliedly authorizes pres to make executive agreements with them that prevail over state law

Question 22

Immunity

Answer 22

Federal prosecutor has absolute civil immunity resulting from prosecutorial acts unless it is clear they did not have jurisdiction

Judges - Absolute immunity from civil liability for damages resulting from judicial acts unless clear that judge did not have jurisdiction

State legislators - generally possess absolute immunity from STATE civil or criminal liability for actions taken pursuant to official legislative functions. BUT only extends to federal civil, NOT federal criminal.

Speech or debate clause - members of congress are immune from criminal and civil liability for any official legislative activity, like speech given on House or Senate floor.
HOWEVER - Although members of Congress, such as senators, enjoy immunity for statements made in the regular course of the legislative process (e.g., during legislative hearings on a bill), immunity will not protect statements made outside of Congress. Accordingly, immunity will not extend to a “re-publication” of a defamatory statement, even if that statement was originally made in the Senate

Question 23

Contracts clause

Answer 23

Restricts state laws, not federal legislation or court decisions, from substantially impairing current contracts, not future ones

Question 24

Bill of attainder

Answer 24

Prohibit federal and state legislative acts that inflict civil or criminal punishment on named persons, or those easily identifiable, without judicial trial

Question 25

11th amendment

Answer 25

Bars unconsented private suits against state for retroactive money damages
Prohibits foreign govs and private parties from suing state in fed court without state’s consent
Immunity extends to suits against state officials for violation of state law

DOES NOT extend to local governments

Better: The Eleventh Amendment is a jurisdictional bar that prohibits the citizens of one state from suing another state in federal court. It immunizes the state from suits in federal court for money damages or equitable relief when the state is a defendant in an action brought by a citizen of another state. There are a few notable exceptions, including when a state waives its immunity under the Eleventh Amendment.

Question 26

Exaction

Answer 26

When local gov conditions issuance of a building or development permit on landowner’s promise to dedicate part of the property for public use
Amounts to a 5th amendment taking requiring just compensation unless gov establishes
-an essential nexus - substantially advances a legitimate government interest and
- rough proportionality

Question 27

1st amendment

Answer 27

Actual threats of violence are outside the protection of the First Amendment.

Question 28

Religion

Answer 28

Free exercise clause prohibits government from punishing an individual for any sincerely held religious belief
Any government inquiry is limited to where a professed belief is sincere, not where that belief is reasonable or true

Question 29

Coining money

Answer 29

Under Article I, Section 10 of the U.S. Constitution, a state is prohibited from coining money or making anything but gold and silver coin a tender in payment of debts.

Question 30

Speech or debate clause

Answer 30

Protects members of Congress from civil and criminal liability for statements and conduct made in the regular course of the legislative process, including a speech given on the floor of Congress, committee hearings, and reports.

However, this protection does not foreclose prosecution for a crime, including the taking of bribes, when the crime does not require proof of legislative acts or inquiring into the motive behind those acts

The Speech or Debate Clause does not apply to state legislators, but under the principles of federalism, state legislators are immune from liability for actions within the sphere of legitimate legislative activity

Question 31

Abortion

Answer 31

Once the fetus reaches viability, the state may regulate, and even prohibit, abortion, as long as there is an exception to preserve the health or life of the mother. The failure of this statute to provide for an exception from the ban on all post-viable abortions for preservation of the life or health of the woman is the most likely grounds for invalidating this statute

Question 32

Citizenship exception

Answer 32

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

A growing exception exists, however, for state laws that restrict or prohibit a noncitizen’s participation in government functions. Such laws 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 33

Contracts clause

Answer 33

The Contracts Clause of Article I, Section 10 prohibits state legislation from retroactively impairing the obligation of contracts. This clause does not apply to federal action or court decisions.

Question 34

Appointment of ambassadors

Answer 34

Appointments clause grants president power to appoint ambassadors, SC justices, and other principal federal officers with the senate’s advice and consent
gives president plenary nomination power that cannot be limited by congress

Question 35

Gender

Answer 35

intermediate scrutiny

Question 36

State tax on imported goods

Answer 36

import-export clause generally prohibits state taxation of imported goods unless congress consents or the tax is absolutely necessary for state to execute its inspection laws

Question 37

Abrogation

Answer 37

The Court has interpreted the Eleventh Amendment as barring unconsented private suits against a state for retroactive money damages. Congress may abrogate state immunity from liability if it is clearly acting to enforce rights created by the remedial provisions of the Thirteenth, Fourteenth, and Fifteenth Amendments (i.e., the Civil War Amendments), and does so expressly

Question 38

Necessary and proper clause

Answer 38

Article IV, Section 3 gives Congress the power to make rules and regulate the territory and property belonging to the U.S

Necessary and Proper Clause only enables Congress to act in furtherance of another enumerated power

Question 39

State tax on interstate commerce

Answer 39

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.

Question 40

State tax on foreign commerce

Answer 40

In addition to meeting the same requirements as a tax on interstate commerce, a state tax on foreign commerce 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 41

State action

Answer 41

State action is found when a private person carries on activities that are traditionally performed exclusively by the state, such as running primary elections or governing a “company town.”

Question 42

Public forum restriction validity

Answer 42

In a traditional public forum, the government may only regulate speech if the restrictions: (i) are content-neutral as to both subject matter and viewpoint, (ii) are narrowly tailored to serve a significant governmental interest, and (iii) leave open ample alternative channels for communication

Question 43

Section 5, 14th amendment

Answer 43

Section 5- gives congress power to enact appropriate legislation to enforce the rights guaranteed by the amendment, legislation is appropriate when it seeks to remedy or prevent state action that violates 14th amendment, narrowly tailored

but congress can’t expand those rights or create new ones

In enforcing such rights, there must be a “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end. Accordingly, though Congress may override state government action that infringes upon Fourteenth Amendment rights if the “congruence and proportionality” test is satisfied, its enforcement power would not stretch to prohibit a law that does not violate the Constitution

Question 44

Dormant commerce clause

Answer 44

The Dormant Commerce Clause is a doctrine that limits the power of states to legislate in ways that impact interstate commerce. 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: (i) discriminate against out-of-state commerce, (ii) unduly burden interstate commerce, or (iii) regulate extraterritorial (wholly out-of-state) activity.

OUT OF STATE discrimination means that in-state commerce is being treated differently. If out of state and in-state are treated the same, then it is not discriminatory but could be unduly burdensome.

Question 45

State commerce regulation discriminatory on face

Answer 45

If a state or local regulation, on its face or in practice, is discriminatory, then the regulation may be upheld if the state or local government can establish that: (i) an important local interest is being served, and (ii) no other nondiscriminatory means are available to achieve that purpose.

Question 46

State as market participant

Answer 46

A state may behave in a discriminatory fashion if it is acting as a market participant (buyer or seller), as opposed to a market regulator. If the state is a market participant, it may favor local commerce or discriminate against nonresident commerce as could any private business.

Question 47

State official as defendant

Answer 47

When a state official, rather than the state itself, is named as the defendant in an action brought in federal court, the state official may be enjoined from enforcing a state law that violates federal law.

Question 48

Per se taking

Answer 48

Generally, a governmental regulation that adversely affects a person’s property interest is not a taking. However, it is possible for a regulation to rise to the level of a taking, such as when a regulation results in a permanent physical occupation of the property by the government or a third party or when a regulation results in a permanent total loss of the property’s economic value.

Question 49

Regulatory taking

Answer 49

The following factors are considered: (i) the economic impact of the regulation on the property owner, (ii) the extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding use of the property, and (iii) the character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property.

Question 50

Promises to give gov land

Answer 50

A local government may exact promises from a developer, such as setting aside a portion of the land being developed for a park in exchange for issuing the necessary construction permits. Such exactions do not violate the Takings Clause if there is (i) an essential nexus between legitimate state interests and the conditions imposed on the property owner (i.e., the conditions substantially advance a legitimate state interest), and (ii) a rough proportionality between the burden imposed by the conditions on property owner and the impact of the proposed development

Question 51

Interstate compacts

Answer 51

States generally may enter into interstate compacts with each other without permission from the federal government

But the compact clause requires that states obtain congress’s consent for interstate compacts that increase compacting states’ political power at expense of federal government

Question 52

Bicameralism and presentment

Answer 52

Actions congress must use to take any action that alters the legal rights of people outside the legislative branch
Most legislative action must be
-approved by both houses (bicameralism) and
-presented to president for approval/disapproval (presentment)

But certain legislative powers don’t require this, such as power of senate with the house to decide disputes regarding ratification of amendments and power of senate to determine a person’s eligibility to serve as a senator

Question 53

Freedom not to speak

Answer 53

Government and subsidiaries (like public university) can’t compel individuals to endorse or include viewpoints with which they disagree

Question 54

10th amendment challenge

Answer 54

an individual, as well as a state, may have standing to challenge a federal statute on Tenth Amendment grounds

Question 55

Congressional investigation

Answer 55

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. While a subpoenaed witness who fails to appear before Congress or refuses to answer questions may be cited for contempt, the witness is entitled to certain procedural due process rights, including the presence of counsel

Question 56

Judge - impeachment

Answer 56

Congress is limited in its restraints on the independence of the judiciary, and in particular under Article III, Section 1, as to its ability to remove or impeach a federal judge. Federal judges may “hold their offices during good behavior” and may be removed only by impeachment.