MBE Con Law

Question 1

If an electoral regulation is challenged under either constitutional provision, the standard for evaluating that regulation depends on the severity of the burden imposed.

A court will apply either:

Answer 1

rational basis review – applies to reasonable, nondiscriminatory burdens and requires the challenger to prove that the regulation is not rationally related to a legitimate state interest or

strict scrutiny – applies to severe or discriminatory burdens and requires the state to prove that its regulation is the least restrictive means of achieving a compelling state interest.

Question 2

Inferior Officers (Independent Counsel, Judicial Clerk, Administrative Law Judge),

can be Appointed by President (with Senate approval) unless Congress delegates appointment to:

Answer 2

(1) the President alone;
(2) Federal Courts; or
(3) Heads of Executive Departments

Question 3

a five-member commission whose work is supervised by the Secretary of Homeland Security, a principal federal officer, constitutes what type of officers?

Answer 3

INFERIOR federal officers because their work is supervised by a Principal Federal Officer

Question 4

The commerce clause grants Congress broad power to regulate interstate commerce—including activities (even in-state activities) that substantially affect interstate commerce.

When determining if activities have a substantial effect on interstate commerce that warrants regulation by Congress, courts consider whether:

Answer 4

“Every Jurisdiction Finds Links”

• • the activities are ECONOMIC in nature (if so, a substantial effect is presumed);
• the regulation has a JURISDICTIONAL ELEMENT that LIMITS ITS REACH to activities with a DIRECT CONNECTION/or EFFECT on I/C;
• there’s CONGRESSIONAL FINDINGS concerning the activities’ effect on I/C;

and

• a strong LINK between REGULATED activity <–> and the EFFECT

Question 5

Constitutional requirements (excluding the Thirteenth Amendment) only apply to government conduct. But under the state-action doctrine, a private actor is considered a government actor (and bound by the Constitution) when:

Answer 5

• the private actor PERFORMS a TRADITIONAL + EXCLUSIVE GOVERNMENT function

OR

• the government is SIGNIFICANTLY INVOLVED in private actor’s ACTIVITIES (more than just funding or licensing)

Question 6

The Dormant Commerce Clause would be an argument under

Answer 6

Article I Commerce Clause

The Article I commerce clause empowers Congress to regulate interstate commerce. It also carries a negative implication (i.e., the dormant commerce clause), which prohibits states from (1) discriminating against out-of-state commerce or (2) otherwise unduly burdening interstate commerce.

Question 7

Even when Congress authorized conduct that would otherwise violate the Dormant Commerce Clause (DCC), states must comply with other constitutional provisions which includes

Answer 7

The 14th Amendment EP clause, which subjects discriminatory state taxes to RATIONAL BASIS REVIEW—i.e., the state tax must be RATIONALLY RELATED to a legitimate state interest.

And in Metropolitan Life Ins. Co. v. Ward, SCOTUS held that promoting in-state business by discriminating against out-of-state business is NOT a legitimate government interest. (Failed RBR)

Discriminatory STATE taxes –> subject to RBR (EP Clause of 14th Amendm

Question 8

All federal officers must be appointed by

Answer 8

the President or in a manner otherwise consistent with the Article II appointments clause

Under this clause, Congress cannot appoint federal officers because Congress’s participation in this executive function would violate the separation of powers doctrine.

Question 9

SCOTUS has stated that certain government restrictions on firearms are permissible, including:

Answer 9

– banning unusually dangerous firearms (e.g., grenades)

– imposing conditions and qualifications on commercial sales of firearms

– forbidding the possession of firearms by felons and mentally ill individuals and

– prohibiting the open carry of firearms in certain areas (e.g., schools) or concealed carry of firearms in public.

**Don’t apply Rational Basis review or Strict Scrutiny to 2nd amendment analysis

Question 10

Every constitutional right applies to states and municipalities except

Answer 10

(1) the 3rd Amendment ban on quartering soldiers in homes,

(2) the 5th Amendment requirement of a grand jury indictment for capital charges, and

(3) the 7th Amendment guarantee of a civil jury trial

Question 11

The Federal Government enjoys sovereign immunity from being sued as a party in

Answer 11

suits seeking COMPENSATORY MONETARY RELIEF $

but NOT from suits seeking prospective INJUNCTIVE relief

Question 12

Does an “at-will” government employee have a property interest in employment (procedural due process rights)?

Answer 12

No;

The employee would have a property interest in his or her employment if the employee could only be fired for cause.

Hypo/question: City charter saying “all employees of the city work at the pleasure of the mayor” –> City employee did not have property interest b/c this made him an at-will employee

Question 13

An at-will government employee cannot be fired for his political views or affiliations unless

Answer 13

they are relevant to the employee’s job

Question 14

When a state regulation affects interstate commerce (and is not otherwise authorized by a Federal law), it must satisfy the following (3) elements to avoid violating the Dormant Commerce Clause

Answer 14

1) the regulate must pursue a LEGITIMATE state interest/end;
2) the regulation must be RATIONALLY RELATED to that legitimate state interest/end
3) the regulatory BURDEN imposed by the state on interstate commerce must be OUTWEIGHED by the state’s interest in enforcing its regulation

*Courts frown on intentional discrimination against out-of-staters… HOWEVER, a discriminatory state or local law may be valid if:
1) it furthers an important, non-economic state interest (e.g. health or safety); and
2) there are NO reasonable alternatives available

Question 15

Courts frown on intentional discrimination against out-of-staters… HOWEVER, a discriminatory state or local law may be valid if:

Answer 15

1) it furthers an important, non-economic state interest (e.g. health or safety); and
2) there are NO reasonable alternatives available

(Dormant Commerce Clause analysis–don’t forget Rational Basis Review included too)

Question 16

A company wanted to expand the size of the building it owned that housed the company’s supermarket by adding space for a coffeehouse. The company’s building was located in the center of five acres of land owned by the company and devoted wholly to parking for its supermarket customers.

City officials refused to grant a required building permit for the coffeehouse addition unless the company established in its store a child care center that would take up space at least equal to the size of the proposed coffeehouse addition, which was to be 20% of the existing building. This action of the city officials was authorized by provisions of the applicable zoning ordinance.

In a suit filed in state court against appropriate officials of the city, the company challenged this child care center requirement solely on constitutional grounds. The lower court upheld the requirement even though the city officials presented no evidence and made no findings to justify it other than a general assertion that there was a shortage of child care facilities in the city. The company appealed.

The court hearing the appeal should hold that the requirement imposed by the city on the issuance of this building permit is

Answer 16

“ROUGH PROPORTIONALITY TEST” (5th Amendment Takings Clause)

Burden –> On the City

Standard –> Rough Proportionality

UNCONSTITUTIONAL –> Burden was on the CITY to demonstrate a ROUGH PROPORTIONALITY between this REQUIREMENT and the IMPACT of the COMPANY’s PROPOSED ACTION on the community,

and the city failed to do so

Question 17

Congress passed a statute providing that parties could no longer seek review in the U.S. Supreme Court of final judgments in criminal matters made by the highest court in each state.

What is the best argument supporting the constitutionality of the statute?

A: Congress has the power to make exceptions to the appellate jurisdiction of the Supreme Court.
B: Criminal matters are traditionally governed by state law.
C: The proper means of federal judicial review of state criminal matters is by habeas corpus.
D: The review of state court judgments is not within the original jurisdiction of the Supreme Court.

Answer 17

A: Congress has the power to make exceptions to the appellate jurisdiction of the Supreme Court.

Congress has the power to make exceptions to SCOTUS’s Appellate Jx… as is the case here, just cannot EXPAND it beyond the federal judicial power in Article III, Section 2

Question 18

Under the Eleventh Amendment, is a suit against a State OFFICER (Not a State) for declaratory and INJUNCTIVE relief (Not compensatory monetary relief $) barred?

Answer 18

NO. This type of claim is not barred.

Question 19

Under the Eleventh Amendment, what are the exceptions to a suit by a private party or foreign gov’t, or against a State for violation of State law?

Answer 19

Exceptions:

– State CONSENTS to the suit

– IMMUNITY REMOVED by 13th, 14th, or 15th Amendment

– State OFFICIAL sued for INJUNCTIVE/
DECLARATORY relief for CONSTITUTIONAL violation

– State OFFICIAL sued for PROSPECTIVE MONEY (not retroactive) damages to be Paid by State Treasury

– Damages to be paid by State OFFICER PERSONALLY (not the State Treasury)

Question 20

Under the Eleventh Amendment, there is no immunity for:

Answer 20

“BSSS–Booooo U.S./State Seeks Local Congressional Exit”

– Bankruptcy proceedings

– Suit brought by U.S. or other STATE

– Suit AGAINST LOCAL GOV’T (eg, counties, municipalities)

– Suits permitted by Congress (pursuant c’s powers over war & armed forces)

– EMINENT DOMAIN proceedings

Question 21

When a tax or fee penalty is imposed on the use of out-of-state business entities, in service of protecting local economic interests, the regulation is presumptively invalid.

To be upheld, a regulation that intentionally discriminates against out-of-state businesses must serve an important, __________ interest without any reasonable alternatives available

Answer 21

NON-ECONOMIC

Question 22

Is there a lack of an “independent ground” under AISG for Judicial Review of a case under a Writ of Certiorari if the State Supreme Court in its state court’s decision EXPLICITLY discussed SCOTUS cases but held that it would NOT resolve how SCOTUS would have adjudicated the matter based on federal law, but rather, it would give the state constitutional provision “the broadest possible interpretation” and it “does not permit this conviction for incitement to riot to stand.”

Answer 22

Nope. That is sufficient for independent purposes of “AISG” –> Scotus should dismiss the writ

Question 23

What does it mean for a lower court’s decision to rest on “adequate and independent grounds” (AISG)?

Answer 23

1) The state law grounds fully resolve the matter (i.e. adequate)

AND

2) The decision does not incorporate a federal standard by reference (i.e. be independent)

SCOTUS may not review a final court judgment that rests on adequate & independent state grounds (AISG)

Question 24

What 3 areas can Congress regulate under their Commerce Power?

Answer 24

1) The CHANNELS of interstate commerce;
2) The INSTRUMENTALITIES of interstate commerce;
AND
3) INTRASTATE and INTERSTATE activity (economic or commercial) that has a SUBSTANTIAL EFFECT on interstate commerce
*doesn’t need to be direct effect as long as there is a RB for concluding that the “total incidence” of the activity in the aggregate does

Question 25

Congress cannot directly command (either by compelling a state to enact legislation or prohibiting a state from enacting new laws) it can use

Answer 25

it can use its TAXING and SPENDING powers to encourage state action

Question 26

When discussing third-party standing, what are the two requirements for an organization to bring an action on behalf of its members?

Answer 26

“You could have your OWN RIGHTS, or you can LEASE INTERESTS AT STAKE at GERMANE”

(mental image: steak being served at gemane dealership, you can own a car on your own)

1) members would have standing to sue in their own rights;
AND
2) the INTERESTS AT STAKE are GERMANE to the organization’s purpose

Question 27

When can the states tax the federal government?

Answer 27

When the tax is

1) INDIRECT;
2) does not UNREASONABLY BURDEN the feds;

(e.g. state income taxes on federal employees)

Question 28

Constitution vs. a Treaties

Treaties vs. an act of Congress

which controls?

Answer 28

Constitution superior to a treaty > Treaties

Most recently adopted will control between Treaty and act of Congress

Question 29

What are the elements to have standing?

Answer 29

1) Injury in fact (must be actual or imminent, cannot be conjectural, ripe, moot, etc.)

2) Causation (injury must have been caused by defendant’s violation of constitutional or other federal right)

3) Redressability (relief requested must prevent or redress the injury)

Question 30

What does it mean in terms of mootness for a case to be capable of repetition, yet evading review? (A case will not be dismissed as moot if)

Answer 30

if REASONABLE EXPECTATION that the SAME PARTY will be subject to SAME ACTION again (i.e. capable of repetition)

but that action will NOT LAST LONG enough to work its way through the judicial system (i.e. evading review)

Example: Roe v. Wade; 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 find herself in a similar situation, and would be again without judicial recourse

Question 31

When is there a property interest in continued public employment?

Answer 31

1) If there’s an employment K
OR
2) A clear understanding the employee can only be fired for cause

*Even employees who lack entitlement for continued employment cannot be fired for reasons that violate the Constitution

Question 32

What does the Federal Property Clause give Congress the power to do?

Answer 32

Gives Congress power to dispose of and make rules necessary to protect property and territory of the U.S. (i.e. federal lands)

No express limit on this power, but in doing so, Congress can only take property for public use with JUST COMPENSATION

Question 33

How is the President’s veto power exercised?

Answer 33

Within 10 days of presentment Pres can veto (send it back) w/ objections

Congress can override this w/ a 2/3rds vote in each house

Question 34

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

Answer 34

(1) President CAN’T be sued for CIVIL DAMAGES for acts performed as President’s official responsibilities

(2) No IMMUNITY for civil actions based on conduct that occurred BEFORE the President took office or UNRELATED to carrying out the job

Question 35

Are line item vetos constitutional?

Answer 35

NO; violates the Presentment Clause

President cannot approve part of a bill and reject the rest

Question 36

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

Answer 36

Needs to be RATIONALLY RELATED (or have a reasonable relationship) to REVENUE PRODUCTION

Question 37

In what three circumstances is federal preemption implied?

Answer 37

1) Congress intends for federal law to occupy the field;
2) State law DIRECTLY conflicts w/ Federal law
3) State law INDIRECTLY conflicts w/ federal law by creating OBSTACLE/FRUSTRATING accomplishment of that law’s purpose

Question 38

What is a pocket veto?

Answer 38

If Congress adjourns within the 10-day period after presenting a bill to the President,

and

the President had not yet acted on the bill,
–> Pocket Veto

–> and the bill does not become law

***This cannot be overridden

Question 39

what are the (2) means for establishing appellate jx for Supreme Court for review?

Answer 39

1. Certiorari (discretionary review)
2. Direct appeal (mandatory)

Question 40

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

Answer 40

1) when PRIVATE person carries on activities that are traditionally performed EXCLUSIVELY by the state;
AND
2) when the gov’t is SIGNIFICANTLY involved in private DISCRIMINATION

Question 41

What is the scope of the President’s power to remove executive officials?

Answer 41

Constitution is silent on this

But generally accepted that President can remove any executive appointee WITHOUT CAUSE (and WITHOUT SENATE APPROVAL)

Note: Federal Judges are excepted and hold offices during good behavior and until impeached

Question 42

Judges are excepted from

Answer 42

Rule that President can fire any executive officer without cause and without senate approval

They hold position indefinitely unless removed for cause

Question 43

A state court ruling is not independent if the state court relied on an “identical”

Answer 43

federal provision to rule on the state provision

Question 44

Prior restraints are laws that forbid certain speech before it occurs.

Although these laws are highly disfavored, they are not unconstitutional per se.

Instead, they are permitted when

Answer 44

STRICT SCRUTINY

gov’t meets its heavy burden of showing the law is necessary and narrowly tailored to achieve a compelling gov’t interest

Question 45

Congress’s taxing power has to be

Answer 45

“Direct Taxes wear a Portion, InDirect Taxes wear a Uniform”

REASONABLY RELATED to revenue raising

and

if DIRECT (i.e. tax on person/or property)
–> APPORTIONED EVENLY among states

if INDIRECT (e.g. sales, excise, income tax)
–> UNIFORMLY APPLIED in every State

Question 46

The property clause of Article IV gives Congress the power to DISPOSE of and REGULATE federally owned lands

Answer 46

But this clause does not give Congress the power to acquire those lands.

Question 47

Once an appropriations bill becomes law,

Congress can require that the appropriated funds be spent as explicitly directed in the law—and the President

Answer 47

must “take care” to faithfully follow Congress’s directive and spend it as told

Question 48

The First Amendment—applicable to the states through the 14th Amendment—SHIELDS the media from CRIMINAL AND CIVIL liability for

Answer 48

1) Publishing LAWFULLY obtained PRIVATE facts

and

2) other TRUTHFUL information involving matters of PUBLIC concern (i.e., newsworthy events)

Question 49

A State may prohibit CONDUCT in certain instances, if the:

(E.g. the burning of the Tax Code in an IRS office as a protest)

Answer 49

1) if the statute is marginally related to First Amendment expression
2) the goal of the statute is unrelated to the suppression of free expression;
AND
3) the government has a SUBSTANTIAL interest at stake;

Question 50

True or False:

Congress has denied the Supreme Court exclusive original jurisdiction over a controversy involving only one state

Answer 50

True

Question 51

Does Congress’s war and defense powers allow it to impose wage, price, and rent controls on the private civilian economy?

Answer 51

Yes.

Question 52

State or local laws that substantially impact the fundamental right to vote are usually subject to strict scrutiny.

But courts will depart from this test and apply RATIONAL BASIS when a state or local law limits the right to vote in a governmental unit’s election (i.e. city council election) to:

Answer 52

STATE RESIDENCY

*Unless it’s DURATIONAL –> Which is still STRICT SCRUTINY

Question 53

When a PUBLIC employee is speaking pursuant to official duties, the government has great discretion to regulate that speech

But when the employee is speaking as a PRIVATE citizen (i.e. outside the scope of his/her job duties), the government can restrict that speech ONLY IF

Answer 53

its interest in EFFICIENT gov’t function OUTWEIGHS the employee’s right to free speech

Question 54

If FL Supreme Court found a law unconstitutional under BOTH State and Federal constitutions, with no indication that the constitutional interpretations were co-extensive… Is there AISG to preclude SCOTUS from granting Writ?

Answer 54

Yes,
b/c even if the SCOTUS were to reverse as to the federal claim, the outcome of the state court decision would be the same b/c the lower court found the law “violated the due process provisions of both the U.S. and the state constitutions”

Question 55

TAXPAYER STANDING

There’s a very narrow exception for a taxpayer suit challenging specific legislative appropriation made under taxing and spending powers for violation of the Establishment Clause,

BUT, this exception does not apply when the government

Answer 55

provides benefit in the form of TAX CREDIT rather than an appropriation

Question 56

May Congress exercise its power to tax for ANY public purpose

Answer 56

Yes. As long as a tax has a REASONABLE RELATIONSHIP to REVENUE PRODUCTION

*Congress’s power to tax is NOT LIMITED TO activities it otherwise has the power to regulate such as Interstate Commerce

Question 57

Is Congress’s power to tax limited to activities it otherwise has the power to regulate such as Interstate Commerce?

Answer 57

No.

As long as a tax has a REASONABLE RELATIONSHIP to REVENUE PRODUCTION, Congress can tax on it.

Question 58

Congress does not have an express power to investigate, but the N&P clause allows Congress BROAD authority to conduct INVESTIGATIONS incident to its power to legislate (legislative functions)

A subpoenaed witness who fails to appear before Congress or refuses to answer questions may be cited for contempt, BUT the witness is entitled to

Answer 58

certain PROCEDURAL DUE PROCESS RIGHTS,
including the PRESENCE of COUNSEL

Question 59

Does the property power under Article IV, Section 3, (i.e. Federal Property Clause) enable Congress to lease federal property to whomsoever it wishes?

Answer 59

Yes.

Question 60

The Section 5 Enabling Clause of the 14th Amendment permits Congress to pass legislation to enforce the EP + DP rights guaranteed by the 14th Amendment,
as long as there is

Answer 60

“CONGRUENCE AND PROPORTIONALITY” between the injury to be prevented or remedied——and——-the means adopted to achieve that end

Congress may OVERRIDE STATE Gov’t action that infringes upon 14th Amendment rights if the “congruence and proportionality” test is satisfied,

but Congress may NOT regulate WHOLLY PRIVATE CONDUCT under this amendment

Question 61

Congress may NOT regulate WHOLLY PRIVATE CONDUCT under

Answer 61

the Section 5 Enabling Clause of the 14th Amendment

Question 62

A recently enacted state statute permits a taxpayer to pay state taxes with electronic currency, known as crypto currency.

Of the following, which provides the strongest basis on which to challenge the constitutionality of the statute?

Answers:

A. The Supremacy Clause of Article VI of the U.S. Constitution
B. The Contract Clause of Article I, Section 10 of the U.S. Constitution
C. The Dormant Commerce Clause of Article I, Section 8 of the U.S. Constitution
D. The Tenth Amendment to the U.S. Constitution

Answer 62

A. The Supremacy Clause of Article VI of the U.S. Constitution

Why?

The Supremacy Clause makes the U.S. Constitution, as well as federal laws and treaties, the “supreme law of the land.”

Under Article I, Section 10, a state is PROHIBITED from coining money or MAKING ANYTHING but gold and silver coin a tender in payment of debts

Answer choice B is incorrect because the state statute NEITHER IMPAIRS the STATE’S CONTRACTUAL OBLIGATIONS NOR REQUIRES that crypto currency be USED BY A TAXPAYER in PAYING STATE TAXES

Question 63

While a STATE must give 1) NOTICE and 2) hold a HEARING….PRIOR TO terminating WELFARE benefits, in cases of terminating DISABILITY benefits, the state must give

Answer 63

1) prior NOTICE

but only a 2) POST-termination evidentiary hearing

“Disabled people POST-up later”

Question 64

A court cannot impose a remedy that involves multiple school districts UNLESS there is evidence of intentional segregation in each district (only INTENTIONAL (de jure) SEGREGATION in schools violates the EP Clause)

If NO SUCH EVIDENCE, federal district court can only remedy constitutional violations (i.e., race discrimination) that occurred WITHIN a particular school district

So the court cannot seek to attract (e.g. specific race/etc.) students from

Answer 64

SURROUNDING SUBURBS into the district w/o evidence of discrimination in the suburbs

(can only issue orders aimed at students WITHIN THAT city school district)

Question 65

Statutes LIMITING CAMPAIGN CONTRIBUTIONS to INDIVIDUAL CANDIDATES are subject to

Answer 65

INTERMEDIATE SCRUTINY

they must be “closely drawn” to correspond with a sufficiently IMPORTANT interest

*Laws may limit contributions to individual candidates, but NOT to BALLOT MEASURES

Question 66

Laws may limit contributions to INDIVIDUAL CANDIDATES, but not to

Answer 66

BALLOT MEASURES

Question 67

Could a private school sue on behalf of a group of parents and students who are arguing DP and EP violations?

Answer 67

Yes.

THIRD PARTY STANDING

1) parties share INEXTRICABLY CLOSE RELATIONSHIP (eg, doctor/patient, private school and its parents/students)

AND

2) OBSTACLE PREVENTS actual party from SUING (eg, privacy/retaliation concern)

Question 68

What is the content-neutral restrictions analysis, such a time, place, manner restriction imposed by the government?

Answer 68

1) What Type of Forum

IF Traditional PUBLIC forum (e.g. street, sidewalk, park)
–> Intermediate scrutiny; restriction IMPERMISSIBLE unless 1) narrowly tailored to 2) substantial government interest and 2) alternative channels open

IF DESIGNATED PUBLIC forum (e.g. school, civic auditorium) same test as above

IF NONPublic forum (all other public property)
–> Rational Basis; Restriction permissible if 1) rationally related to 2) a legitimate government interest

Question 69

What are the (4) types of UNPROTECTED speech?

Answer 69

“FIDO”

Fighting words/threats
Inciting crime
Defamation
Obscenity

Question 70

After a female politician is injured in a riot following a heated public debate, a state enacts the following statute: “Any words targeting women or minorities likely to produce violence or rioting are prohibited on any public property.”

Is the statute constitutional?

Answers:

A) No, because the statute punishes only speech targeting specific groups
B) No, because the state cannot restrict speech in public forums
C) You Selected: Yes, because the state can prohibit fighting words
D) Yes, because laws affecting women and minorities receive heightened scrutiny

Answer 70

A) No, because the statute punishes only speech targeting specific groups

Here, the statute prohibits words likely to produce imminent violence or rioting (i.e., fighting words)—but ONLY WHEN they target WOMEN OR MINORITIES

Since the statute only punishes speech that targets specific groups, it is a viewpoint-based regulation

Therefore, the statute is unconstitutional

Question 71

If a regulation bans all solicitation in the airport terminals, is that viewpoint-neutral?

Answer 71

Yes, b/c it bans all solicitation, not just solicitation for a particular cause.

Question 72

FREE SPEECH

Is an airport a NONPUBLIC forum?

Answer 72

Yes.

*Regulations in nonpublic forum subject to RB review

Question 73

FREE SPEECH

The government may regulate speech-related activities in NONPUBLIC forums as long as the regulation is

Answer 73

(i) viewpoint-neutral
and
(ii) reasonably related to a legitimate governmental interest.

(RATIONAL BASIS REVIEW)

Question 74

PROCEDURAL DUE PROCESS

When an individual’s protected interest is threatened by governmental action, a court considers three factors in determining the amount of process that is due:

Answer 74

(i) the PRIVATE INTEREST affected by the GOV’T ACTIONN

(ii) the risk of ERRONEOUS DEPRIVATION of that INTEREST using CURRENT PROCEDURES and the PROBABLE VALUE of ADDITIONAL or SUBSTITUE SAFEGUARDS;

and

(iii) the BURDEN involved in PROVIDING THE ADDITIONAL PROCESS

Question 75

A prior restraint is a regulation of speech that occurs in advance of its expression (e.g., publication or utterance)

In prior restraint cases, the burden is on

Answer 75

the government to prove that the material to be censored is NOT protected speech

Question 76

Does the media have greater First Amendment protection than other citizens?

Answer 76

No

Question 77

Content-based regulation is generally only found constitutional when the speech to be regulated falls into one of the following categories:

Answer 77

“F CODS”

Fighting words

Commercial Speech
Obscentiy
Defamation
Subversive speech (i.e. speech that represents a danger to national security or threat to public officials–no 1st amend protection for giving away national secrets)

Question 78

State legislators are immune from liability for

Answer 78

actions within the sphere of legitimate legislative activity

*Includes speech that would otherwise be defamatory if stated outside legislative meetings/conferences

Question 79

True or False:

Foreign policy resolutions fall within the implied congressional power to conduct foreign affairs.

Answer 79

TRUE.

Question 80

B/c of the Supremacy Clause, only a __________ can order a Writ of Habeas Corpus to challenge a person’s detention when that person is held in FEDERAL custody

Answer 80

FEDERAL COURT

NO state court can issue

*A writ of Habeas Corpus is a court order that a person held in detention be brought before the court to determine if his/her detention is legal

Question 81

What is a writ of Habeas Corpus?

Answer 81

a court order that a person held in detention be brought before the court to determine if his/her detention is legal

Question 82

A reporter writing an article about a politician offered the politician’s estranged daughter $10,000 for information about the politician. The daughter agreed and provided the reporter with the information he sought. Subsequently, the daughter’s information appeared in a newspaper article by the reporter, but the reporter refused to pay the daughter.

The daughter sued the reporter in state court for breach of contract on the basis of generally applicable state contract law. The reporter has moved to dismiss the action solely on the ground that the daughter’s lawsuit violates the freedom of the press clause of the First Amendment.

Is the court likely to grant the reporter’s motion to dismiss?

A) No, b/c daughter is not a state actor
B) No, b/c the First Amendment does not shield reporters from generally applicable state-law claims.
C) Yes, because state contract law as applied to the report inhibits freedom of the press w/o a compelling gov’t interest
D) Yes, b/c the politician is a public figure and any information about him is in the public domain

Answer 82

B) No, b/c the First Amendment does not shield reporters from generally applicable state-law claims.

Why not A? State law being applied in court = State action

The First Amendment applies only to state action.

Although the daughter is not a state actor, the First Amendment applies to her lawsuit because it requires a state court to apply STATE LAW—which is a state action.

Question 83

A federal officer is someone who

Answer 83

(1) holds a continuing public office

and

(2) has significant discretionary authority to administer or enforce laws (ie, executive powers)

Question 84

When should an objection to jury instructions be made?

Answer 84

BEFORE the court instructs the jury

Question 85

(Dormant Commerce Clause)

A state law is not discriminatory when ____________________________

Under the Pike balancing test, a NONDISCRIMINATORY law will be upheld UNLESS __________________________

Answer 85

it treats in-state and out-of-state economic activities equally;

the challenger shows that the law’s burden on interstate commerce clearly exceeds its local benefits.

Question 86

The commerce clause gives Congress broad power to regulate interstate commerce.

The negative implication of this clause (ie, the dormant commerce clause) is that

Answer 86

STATES CANNOT DISCRIMINATE against

OR

otherwise UNDULY BURDEN interstate commerce

*They will apply Pike Balancing test to NONdiscriminatory laws to uphold the law unless local benefits are outweighed by the burden

Question 87

True or False.

Under Detrimental Reliance theory,

A subcontractor’s bid is irrevocable for a reasonable time, b/c they are promises that can reasonably be expected to induce reliance by the firm/contractors. Once the contractor accepts, a valid contract is formed and the contractor can collect EXPECTATION damages for breach by the subcontractor (nonperformance)

Answer 87

TRUE.

*Reliance damages are only for when there is no valid contract.

Question 88

A federal prosecutor is absolutely immune from civil liability for damages resulting from his prosecutorial acts unless

Answer 88

it is clear that the prosecutor did not have jurisdiction.

Question 89

Federal law vs. State law (Supremacy Clause)

True or False:

A state law may INDIRECTLY conflict with federal law by creating an OBSTACLE TO OR FRUSTRATING THE ACCOMPLISHMENT of that law’s purpose.

Answer 89

True

Question 90

Restrictions on Commercial speech are evaluated under what 4-part test?

Answer 90

1) must concern LAWFUL activity + be neither FALSE nor MISLEADING

2) the asserted governmental interest must be SUBSTANTIAL

3) the regulation MUST DIRECTLY ADVANCE the ASSERTED interest

4) the regulation must be NARROWLY TAILORED; must be a “REASONABLE FIT” between government’s ENDS and MEANS USED TO accomplish the ends/interest

Question 91

Is there a First (or Fourteenth) Amendment right of access to government-generated or government- controlled records, including those kept by the executive branch?

Answer 91

No. Courts have held there is not.
(e.g. Lawful if States want to create a law that seals records of people acquitted/discharged/etc.)

Question 92

An environmental organization’s stated mission is to support environmental causes. The organization’s membership is generally open to the public, but its bylaws permit its officers to refuse membership to anyone who does not adhere to the organization’s mission statement.

In a recent state administrative proceeding, the organization opposed plans to begin mining operations in the mountains surrounding a small town. Its opposition prevented the mine from being opened on schedule. In an effort to force the organization to withdraw its opposition, certain residents of the town attended a meeting of the organization and tried to become members, but the officers refused to admit them. The residents sued the organization, claiming that the refusal to admit them was discriminatory and violated a local ordinance that prohibits any organization from discriminating on the basis of an individual’s political views. The organization responded that the ordinance is unconstitutional as applied to its membership decisions.

Are the residents likely to prevail in their claim?

A) No b/c the membership policies of a private organization are not state action.

B) No b/c the organization’s right to freedom of association allows it to refuse potential members who do not adhere to its mission statement.

C) Yes, b/c the officers actions in refusing to admit the residents as members violates equal protection of the laws.

D) Yes, because the ordinance serves the compelling interest of protecting the residents’ free speech rights

Answer 92

B) No b/c the organization’s right to freedom of association allows it to refuse potential members who do not adhere to its mission statement.

Why not A?
A) No b/c the membership policies of a private organization are not state action.

The First Amendment freedom of association allows persons to form groups to express certain viewpoints. The government interferes with this right when it forces a group to accept members who would significantly burden the group’s ability to express its views or carry out its mission—eg, forced inclusion of a homophobe in a gay-rights organization. Such interference is only justified if it is necessary to achieve a compelling government interest unrelated to the suppression of ideas.

Here, residents allege that an environmental organization violated an ordinance prohibiting political-viewpoint discrimination when the organization refused to admit them. But the ordinance is unconstitutional as applied to the organization because it significantly burdens the organization’s right to oppose the mining operation. And the ordinance is not necessary to achieve the government’s compelling interest in protecting free speech (Choice D). Therefore, the residents’ claim against the organization will likely fail.

Question 93

President does NOT have Absolute immunity for

Answer 93

No immunity for actions that occurred BEFORE taking office
No immunity for actions UNRELATED to EXECUTIVE functions
No immunity from CRIMINAL SUBPOENA

Question 94

The Fifth Amendment due process clause requires the government to provide persons with notice and a meaningful opportunity to be heard before depriving them of a life, liberty, or property interest.

Public employment is a property interest when the employee

Answer 94

(1) has an ongoing employment contract,
(2) can only be fired for cause, or
(3) receives assurances of continued employment—none of which apply here.

Question 95

Does Congress have power to provide uniform rules of bankruptcy?

Answer 95

Yes.

Article I, Section 8 establishes the congressional power to establish laws governing bankruptcy. Congress also has the right to “regulate” the jurisdiction of the lower federal courts and to make “exceptions” to that jurisdiction. In fact, lower federal courts do not even exist until Congress creates them under Article III, Section 1.

Question 96

Commerce Clause supports regulations on the sale or ownership of commerce

But if a Federal Statutes only regulates theft from federal property, such as making it a crime to pick endangered mushrooms from a National Park, is arguing there is a National black market for these mushrooms (a/k/a a Commerce Clause argument) necessary to support that the statute constitutional?

Answer 96

No… It is unnecessary for there to be a national market for these mushrooms for this statute to be constitutional.

Because it there is no need to apply the Commerce Clause to find that the statute is a valid exercise of congressional power.

Article IV, Section 3 gives Congress the power to make rules and regulate the territory and property belonging to the U.S. Here, the mushrooms are the property of the U.S., and can be properly regulated by federal law.

Question 97

A special tax levied by a State against receipts of sales from magazines within the state, that exempts Religious, Professional, and Trade magazines, but not other Magazine Publishes, e.g. general-interest Magazines, constitutional?

Answer 97

No. It is the selective application of a tax that is a content-based (based on content of the Magazines) restriction on free speech, it must instead satisfy the strict scrutiny test, which it likely won’t.

(First Amendment)

Question 98

Can Congress generally regulate the states?

Answer 98

Yes, As long as Congress is exercising one of its enumerated powers, Congress generally may regulate the states.

Question 99

The government can place content-based restrictions on unprotected speech “FIDO”, as long as they are

Answer 99

Not OVERBROAD or VAGUE

Question 100

“Obscenity” is Description or Depiction of sexual conduct that the average person would find:

Answer 100

1) appeals to PRURIENT INTEREST in sex (material having a tendency to incite lustful thoughts–but excludes those thoughts that lead to normal healthy sexual desires);
2) portrays sex in a PATENTLY OFFENSIVE way;
3) does not have any serious ARTISTIC, POLITICAL, or SCIENTIFIC VALUE

*Mere nudity by itself does not constitute obscenity

Question 101

Commercial Speech is protected.
Regulations on Commercial Speech may be valid if:

Answer 101

4-Step test

1) whether the comm. speech. concerns a LAWFUL activity that is NOT FALSE/MISLEADING;
2) regulation must serve a SUBSTANTIAL GOVERNMENT INTEREST (Interm.Scrutiny)
3) it must DIRECTLY ADVANCE THAT INTEREST;
and 4) MUST be NARROWLY TAILORED to SERVE THAT INTEREST

Question 102

True or False:

8th amendment prohibits mandatory life imprisonment w/o possibility of parole on a defendant who was a minor at the time of the crime.

Answer 102

TRUE

Question 103

Although Congress may use its legislative powers to regulate executive agencies, in order to properly take such legislative action, it must also present the RESOLUTION (i.e. facts say theres a state passed properly but also requires a concurrent resolution, etc.) to the

Answer 103

President for the opportunity to either exercise his veto power or sign off on it

Same requirements for a bill to become law, otherwise interfering with executive functions

Question 104

Which of the following, if raised at trial, would NOT factor into the court’s determination of whether a taking has occurred?

A. The degree to which the law benefits the public.
B. The owner’s ability to sell the property to a third party.
C. The owner’s reasonable investment-backed expectations.
D. Whether the law substantially advances a legitimate government interest..

Answer 104

D. Whether the law substantially advances a legitimate government interest..

Question 105

Procedural Due Process requires PUBLIC colleges/universities to give NOTICE and a HEARING before the college/university’s decision making body before they intentionally deprive students of their education by dismissing them for

Answer 105

DISCIPLINARY reasons (e.g. misconduct)

NOT for academic reasons (e.g. failure to attain passing grades) which only requires NOTICE

Question 106

The federal government can tax state government affiliates—i.e., persons doing business with state governments—so long as

Answer 106

the taxes do not DISCRIMINATE against States or their Affiliates (e.g. State bondholders)

OR

UNDULY INTERFERE w/ essential State functions

(10th Amendment)

Question 107

The Fourteenth Amendment prohibits Congress from revoking the U.S. citizenship of any U.S. citizen without his/her consent unless

Answer 107

that citizenship was obtained by fraud or in bad faith

Congress has plenary (i.e., exclusive) power to regulate naturalization—i.e., the process through which noncitizens obtain U.S. citizenship. But the Fourteenth Amendment limits this power by prohibiting Congress from revoking the citizenship of any U.S. citizen without his/her consent unless that citizenship was obtained by fraud or in bad faith.

Question 108

A federal officer is someone who

Answer 108

(1) holds a continuing public office and

(2) has significant discretionary authority to administer or enforce laws (i.e., executive powers).

Question 109

The Article IV privileges and immunities clause prohibits states from discriminating against citizens of other states by denying them a right of state citizenship.

Who does not qualify under this Article?

Answer 109

Corporations (like cruise lines) b/c they are not considered citizens