Legislative Branch

Question 1

What are Congress’s sources of power to create laws?

Answer 1

Commerce Clause
Spending Clause
Amendments to Constitution
Other

COAST

Question 2

What is a limit on Congress’s Power?

Answer 2

The 10th amendment: No commandeering
Messing with individual rights

Question 3

Congress may impose conditions on federal funding if

Answer 3

1. Clearly stated
2. Program conditioned is related to the law or action sought to be followed by the state
3. Condition is not unduly coercive

Question 4

What is the difference between the commerce clause and the dormant commerce clause?

Answer 4

The CC is a source of congress’s power

DCC is a limitation to states

Question 5

How can a discriminatory state law be valid?

Answer 5

1. It meets the scrutiny test (Necessary to achieve an important non-economic interest)
2. Market Participant
3. Congressional Approval
4. Traditional Public Function (Lower tuition for in state students)

Discriminatory state laws are nasty like SPAM

Question 6

Taxing and Spending Clause

Answer 6

Gives congress the power to spend for the general welfare (any public purpose).

Ex: Spending $ to figure out ways to cut the cost of water and decide water shortages is a proper use of Congress’s power to spend for the general welfare)

Question 7

Substantive Due Process

Answer 7

Prohibits state and federal government from regulating certain areas of life involving areas of human life that are considered fundamental or highly valued.

1. ID the fundamental right (or lack thereof)
2. Select appropriate level of scrutiny
3. Apply the scrutiny

Question 8

Nonfundamental rights (For substantive due process)

Answer 8

Education
Physician assisted suicide
Education
Social welfare
Economic

Question 9

Rational Basis

Answer 9

Challenger must show there is no rational relation to a legitimate government state interest

Question 10

Equal Protection Clause

Answer 10

A state statute that treats similarly situated persons differently can be in violation of the equal protection clause.

Ex: In state v. Out of state citizen paying taxes, only legitimate children from two parents qualifying to receive from a will

Question 11

Equal protection intermediate scrutiny classes

Answer 11

Gender, nonmarital children, education rights of alien children

Question 12

Intermediate Scrutiny

Answer 12

State must show the law is substantially related to an important state interest

Question 13

Content based regulation scrutiny test

Answer 13

Content based regulations must meet strict scrutiny

Necessary to achieve a compelling govt. interest

Question 14

Speech and debate clause

Answer 14

Members of congress are immune from civil and criminal liability for any official legislative activity.

Extends to legislative aids.

Question 15

Section 5 of the Fourteenth Amendment

Answer 15

Gives Congress power to enact appropriate legislation to enforce rights guaranteed by the 14th amendment. Appropriate when

1. Seeks to remedy or prevent state action that violates the 14th amendment AND
2. Narrowly tailored

Question 16

Ministerial Exception to Discrimination Laws

Answer 16

Religious institutions can rely on “ministerial exception” to federal and state employment discrimination laws in their decision to hire or fire minisrers.

In Con Law bc although there is no govt. action, it protects them from being sued under federal or state law!! Call will say they are being sued under federal law that prohibits discrimination.

Question 17

Presidents Power to Issue Pardons

Answer 17

President my grant pardons for FEDERAL (not civil) offenses

EXCEPT: Cases of impeachment

Question 18

What is section 2 of the Fourteenth Amendment?

Answer 18

Permits states to prohibit felons from voting in elections

This is like an exception to the 14th amendment equal protection clause

Question 19

Fundamental rights being imapired triggers what analysis?

Answer 19

Substantive Due Process.

SDP prevents states from depriving individuals of fundamental rights (First amendment rights, voting, travel, privacy) unless strict scrutiny is shown

If an ordinary right is at issue, then use rational basis.

Question 20

Eleventh Amendment

Answer 20

Provides immunity to states from any FEDERAL suit bought by private parties against a state.

• Extends to suits against state officials for a violation of state law. Even if the remedy that is sought is injunctive relief.

Except:
No immunity if suit by US, local government, or bakruptcy proceedings

EX: Resident sues an official in FEDERAL court for violation of a state law. The state official can move to dismiss under the 11th amendment because resident bought it in federal court against an official.

Question 20

Eleventh Amendment

Answer 20

Provides immunity to states from any FEDERAL suit bought by private parties against a state.

• Extends to suits against state officials for a violation of state law. Even if the remedy that is sought is injunctive relief.

Except:
No immunity if suit by US, local government, or bakruptcy proceedings

EX: Resident sues an official in FEDERAL court for violation of a state law. The state official can move to dismiss under the 11th amendment because resident bought it in federal court against an official.

Question 21

Abstention Doctrine

Answer 21

Requires federal courts abstain from issuing delcaratory judgement or injunction if doing so would interfere with a pending state criminal, or civil proceeding that
1. Involves important state interest
2. Provides adequate opportunity to litigate federal issues

Question 22

Framework for Individual Rights

Answer 22

1. First Amendment (SAR)
2. Equal Protection
3. Due Process (SDP + PDP)
4. Takings

Question 23

When is strict scrutriny triggered under the Equal Protection clause?

Answer 23

When the law classifies on race, alienage, or involves a fundamental right

Question 24

What is the proper scrutiny test for speech in a public/designated public forum?

Answer 24

1. Must be content neutral
2. Narrowly tailored to important government interest
3. Leaves open alternatives

Question 25

What is the appropriate scrutiny for regulation of speech in nonpublic forums/Limited?

Answer 25

1. Viewpoint neutral
2. Rational basis

Question 26

First Amendment Freedom of Religion approach

Answer 26

No lemon test; consideration of “historical practices + understandings”

Lemon test is GONE.

Question 27

First Amendment Freedom of Speech Approach

Answer 27

Question 28

Equal Protection Approach

Answer 28