MBE Constitutional Law

Question 1

Acc to EP what level of scrutiny is applied when these groups are being singled out:

Race
Alienage
National Origin

Answer 1

Strict scrutiny (gov/necessary/compelling)

STRICT = government burden to prove law is necessary to achieve COMPELLING interest

Question 2

Acc to EP what level of scrutiny is applied when these groups are being singled out:

Everyone else

Answer 2

Rational Basis (P/not rationally/legitimate)

RATIONAL: plaintiff has burden to show law
NOT RATIONALLY related to LEGITMATE interest

Question 3

Acc to EP what level of scrutiny is applied when these groups are being singled out:

Gender
Illegitimacy

Answer 3

Intermediate Scrutiny (gov/substantially/important)

INTERIM = government burden to prove law (S)UBSTANTIALLY related to (I)MPORTANT interest

Question 4

can federal courts give advisory opinions?

Answer 4

No, fed courts only empowered to decide cases and controversies

Question 5

can a federal court opine on whether proposed legislation would be constitutional?

Answer 5

no, that’s advisory opinion

Question 6

who does the Eleventh Amendment generally prohibits a suit against?

Answer 6

suits are prohibited against the states for money damages

unless:
> state consents to the suit; or
> congress chose to abrogate the sovereign immunity through an enumerated power

Question 7

do local governments have sovereign immunity? (county, city etc)

Answer 7

No, just states and state agencies
(from money damages only)

Question 8

do individual state officers have sovereign immunity?

Answer 8

no; if they can be sued in a personal capacity

Question 9

can injunctive relief against state officers be sought in a lawsuit?

Answer 9

yes bc they only have immunity form money damages

Question 10

exception to sovereign immunity

Answer 10

(1) Congress can abrogate state sovereign immunity to
enforce certain individual rights

Reqs:
> intent must be clear
> they have to be exercising a power under civil war amends. aka 13th, 14th, 15th
> can’t abrogate through Article 1

(2) state can consent to suit

*The US govt is allowed to sue states bc consent is implied in the Constitution

Question 11

can a SC hear a case that’s AISG?

Answer 11

No, bc its grounds are:

> Adequate:
state law would end up controlling anyways so why grant cert

> Independent:
state’s ruling doesn’t dependent on an interpretation of federal law

Question 12

true or false:
The U.S. Supreme Court will not review a state court decision when the party claiming a federal right is successful under state law.

Answer 12

true

Question 13

what is standing and what are the elements?

Answer 13

Standing is about who can sue.

Elements:
(1) Injury in fact:
concrete (actual/imminent) + particularized (not common to all members of public)

(2) Causation: injury is caused by D

(3) Redressability: relief requested must be able to prevent or remedy the injury

Question 14

when is a case justiciable?

Answer 14

when it is subject to trial in court

Question 15

Taxpayer standing

Answer 15

> taxpayers have standing to challenge their own tax assessment

> no standing to challenge govt expenditures (our tax money that govt spends)
* unless its within the establishment clause

Question 16

Organizational standing

Answer 16

An organization an sue for its members if:
> member would’ve had standing anyway
> interests are germane to the org’s purpose

Question 17

Legislative standing

Answer 17

> Legislators never have standing to sue what what voted against

> Legislature may have standing if the claim has to do w its institutional functions

Question 18

Third party standing

Answer 18

generally not allowed except for these special relationships:
- doctor
- school
- bartenders
- parents

Question 19

ripeness

Answer 19

case not ready for trial bc nothing has happened yet; law hasn’t been enacted/passed yet so it cant be unconstitutional

“no case or controversy”

Question 20

Mootness

Answer 20

case is over, nothing left to litigate
“no case or controversy”

exception:
> wont be dismissed if: person will be subjected to the same action but the action wont last long enough to get through the judicial system

Question 21

Political Question Doctrine

Answer 21

prohibits fed courts from adjudicating bc:

> diff branch has discretion
court lacks judicially discoverable/manageable standards to resolve the issue

Question 23

4 types of Abstention Doctrines

Answer 23

These doctrines abstain from deciding claims when there are strong state interests

(1) Pullman:
Unsettled law

(2) Younger:
Pending criminal case

(3) Burford:
Complex state regulatory scheme

(4) Colorado River:
Simultaneous similar state/federal cases

Question 24

3 forms of activities Congress can regulate through their commerce clause power

Answer 24

(1) channels of interstate comm.
- highways, railroads, seaways

(2) instrumentalities of interstate comm.
- cars, boats, trains

(3) any behavior that has a substantial effect on interstate commerce
~ Anything about passing law about a good/widget is const
- Behaviors can be judged in the aggregate
- congress only needs a rational basis to conclude the aggregate of something substantially affect interstate commerce

Question 25

limitations of the commerce clause

Answer 25

> limited power to regulate non-economic intrastate activity
- cant aggregate
- requires detailed findings of substantial effect on interstate commerce
(ex: guns near schools; gender motivated violence)

> doesn’t allow Congress to require ppl engage in commerce
(ex: Afford. care act)

Question 26

The Taxing Clause

Answer 26

> congress can tax even if its to regulate behavior
(ex: tax on ciggs to discourage it, health care tax to encourage)

> tax only needs to be rationally related to raising money
can be for any purpose

Question 27

The Spending Clause

Answer 27

Permitted to spend for the general welfare aka any public purpose
> can be used to incentivize states to do something by imposing conditions on their federal funds

• cant be unconstitutional conditions
  *can’t enforce conditions that are ambiguous/unrelated to the program
• coerce state behavior w its spending conditions

Question 28

powers that rarely give congress the power to pass a law

Answer 28

General Welfare Clause
> congress cant LEGISLATE for general welfare; only TAX and SPEND for it

Police Power
> congress cant commandeer states to do anything

Necessary and Proper Clause
> if used needs to be paired w another legislative power

Question 29

who can enforce the civil war amendments and which are they

Answer 29

The 13th, 14th, and 15th amendments set out individual rights and congress can enforce them (section 5 power)

Question 30

13th amendment

Answer 30

(against slavery)
> congress can pass laws rationally related to ending the badges or incidents of slavery

> Congress here can regulate both public and PRIVATE action

Question 31

14th amendment

Answer 31

Equal Protection & Due Process Clause

> Congress can enforce these rights through legislation but cant expand them

> Congruence and proportionality test:
- requires a reasonable fit between the right constitutional right and the means of enforcement
- if enforcement too broad that it expands the right = unconstitutional
(ex: a statute that creates a right)

Question 32

Other powers of Congress

Answer 32

> declare war
establish post office
plenary power over non-citizens
control naturalization process
power over federal elections
power to enact any legislation necessary and property to execute an enumerated power
federal lands

Question 33

15th amendment

Answer 33

> prohibits denying citizens the right to vote based on race
enforce through Voting Rights Act

Question 34

If you see a Q w/ an Executive order that “enforces law” but conflicts w a statute is it constitutional?

Answer 34

No, its unconstitutional bc even though agencies can enforce law that they cant be in conflict w a statute bc their powers are subject to control by Congressional statute

Question 35

Presidential Powers:
Domestic Affairs

Answer 35

> can enforce the law but cant make it
power over administrative agencies that enforce law
- can issue exec orders saying how to enforce the law
- can set enforcement/rule-making priorities
- cant tell them to enforce the law in a way that exceeds their statutory mandate given by congress though

Question 36

Presidential Powers:
Pardon Power

Answer 36

President can pardon federal crimes

Doesn’t apply to impeachment

Question 37

Presidential Powers:
Veto Power

Answer 37

After a bill passes both houses fo Congress, it must be presented to President for signature

President has 10 days to:
> sign (making it a law) or
> veto (rejecting, sends back to congress)

~ Doesn’t need to give a reason for a veto.
~ Cant veto some parts and not others (aka line-item veto= unconst.)
~ Congress can override Veto w 2/3 vote from each house

*Only President can Veto, if Congress veto’ing then its wrong

Question 38

Presidential Powers:
Appointments Power

Answer 38

Appointment:
> Only President can appoint ambassadors, judges, and anyone w executive power meaning its someone who can make rules, issue regulations, or prosecute

> Both Pres and congress can appoint when entity they’re creating/appointing members has no executive power then BOTH can cus its not labeled exec but when it is then ONLY the president can do it

> Inferior officers:
appointed by Dept. head, Pres alone, or Ct of law

Congress can create offices; cannot appoint officers

Question 39

President’s Power over
Foreign Affairs

Answer 39

(1) Commander in Chief:
~ controls military; can do whatever for welfare of armed forces
~ CANNOT DECLARE WAR

(2) Chief Diplomat Power:
> president can negotiate treaties; they must be ratified by supermajority of senate to have force of law
> if conflict, Const. trumps treaty
> can negotiate Exec agreements w other countries but they don’t bind successor Presidents

Question 40

Presidential Powers:
Removal

Answer 40

> Pres. can remove federal officers
Congress can pass a law that:
(i) creates an agency and
(ii) protects the head of that agency from being fired by the President
~ but congress can’t create multiple layers of protection

Question 41

Separation of Powers:
Impeachment

Answer 41

President, VP, civil officers, Justices, can be removed from officer on impeachment for treason, bribery, other high crimes/misdemeanors
> House of rep impeaches by majority vote
> Senate convicts by 2/3 vote
> If Pres. is on trial then Chief Justice presides
~Consequences:
- removal
- cant holf future office
- but no criminal penalties attach

Question 42

Separation of Powers:
Impoundment

Answer 42

Congress can pass a statute that gives the President discretion to withhold funds

But there’s a separation of powers violation if the President doesn’t spend the money (aka impounds) when Congress has mandated to spend the funds a certain way

Question 43

Separation of Powers:
Legislative Veto

Answer 43

Congress can’t reserve for itself (or a sub-component of itself) the right to veto legislation.

Question 44

Separation of Powers:
Delegation of Powers

Nondelegation doctrine

Answer 44

Congress is allowed to delegate may powers to admin agencies but they have to provide an intelligible principle to guide them

Question 45

Separation of Powers:
Immunities of the 3 branches

Answer 45

(1) Executive Immunity
~ Pres. immune from civil liability for official acts
~ Not immune from things done in their private capacity or before they became Pres

(2) Judicial Immunity
~ immune from all judicial acts unless they didn’t have jurisdiction
~ May be liable for non-judicial acts (e.g., employment discrimination)

(3) Legislative Immunity
~ Speech and Debate clause protects them from liability for anything said during legislative process
~ those statements can’t be used as evidence against them + extends to their aides

Question 46

Separation of Powers:
Executive Privilege

Answer 46

Certain confidential info can be privileged (President can withhold it from courts or Congress)

But the privilege can be outweighed by a demonstrated need (Ex: crim prosecution)

Question 47

Federalism

Answer 47

there’s is a national govt (fed) and state government
4 categories of power distribution:

(1) Neither state nor federal government can act
(2) Only Fed govt can act
(3) Only States can act
(4) Concurrent jurisdiction

Question 48

The Supremacy Clause

Answer 48

States can’t:
> pass a law to regulate the Fed govt unless Congress allows it

> directly tax the Fed govt (taxing fed employees ok)

> shield officers from Fed liability

Federal govt can:
> tax a state
> federally regulate a state; but CANT commandeer it tho

Question 49

Dormant Commerce Clause

Answer 49

the STATE, not congress, has passed a law that discriminates against out of state businesses so now those states are suing

States can only make laws on interstate commerce if they don’t either:
~ Discriminate other states’ commerce
~ Unduly burden it
~ Purposely regulate out-of-state activity

Question 50

Exceptions to violations of Dormant Commerce Clause

Answer 50

A discriminatory state law will survive if:
(1) its necessary to serve an important state interest
(2) the state is acting as a market participant
(3) congress authorized it

Question 51

Dormant commerce clause:
Undue Burden on Interstate Commerce

Answer 51

Violation of DCC if:
burden imposed on interstate commerce clearly outweighs local benefits

Question 52

Does State law that purposefully regulates conduct wholly outside state’s borders violates the dormant commerce clause?

Answer 52

yes

Question 53

When can a state, tax interstate commerce?

Answer 53

~ when congress is silent

~ the tax doesn’t discriminate or unduly burden interstate comm

~ there’s a substantial nexus btween the taxing state and the activity getting taxed

~ there’s a fair apportionment of tax liability among the states

Question 54

Ad Valorem Property Taxes

Answer 54

based on real or personal property

States can tax movable commodities that are within their borders on a specific date (ex: cars)
* unless merely in transit

Can tax instrumentalities of commerce if it has a taxable situs or sufficient contacts w/in the taxing state

Question 55

3 types of Federal Preemption

Answer 55

(1) Express Preemption:
~ congress explicitly said fed law preempts state law

(2) Conflict Preemption
~ impossible to comply w both fed and state law at the same time

(3) Field Preemption:
~ when fed regulation so thick that there cant be concurrent state law (immigration)

Question 56

Interstate Compact Clause

Answer 56

States can enter into agreements w/ each other when Congress consents

Consent only required for times that alter the power balance btween state and fed govt

Question 57

Full Faith and Credit Clause

Answer 57

Full faith and credit shall be given in each state to acts of other states

> States must honor out-of-state judgments that are final + w/ proper jurisdiction + on the merits

Question 58

Can a state is ignore another state’s court judgment

Answer 58

No, that’s a violation of the Full Faith and Credit Clause

Question 59

pocket veto

Answer 59

when Congress has adjourned within the 10-day period after presenting a bill to the President, and the President had not yet acted on the bill
the bill does not become law. This cannot be overridden.

Question 60

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

Answer 60

The tax only has to be rationally related (or have a reasonable relationship) to revenue production.

Question 61

3 reqs for standing

Answer 61

(i) Injury in fact;
(ii) Causation (the injury must be caused by the defendant’s violation of a constitutional or other federal right); and
(iii) Redressability (the relief requested must prevent or redress the injury).

Question 62

when can a state tax the gov?

Answer 62

When that tax is indirect and does not unreasonably burden the federal government (e.g., state income taxes on federal employees)

Question 63

5 types of speech not protected by the First Amendment

Answer 63

1. Obscenity
2. Incitement to violence
3. Fighting words
4. Defamation
5. Commercial speech

Question 64

when does fed law preempt?

Answer 64

(i) the Constitution makes federal power exclusive
(such as the powers to coin money or declare war)
or
(ii) when Congress has enacted legislation that explicitly prohibits state regulation in the same area

Question 65

how is a veto exercised

Answer 65

The President can, within 10 days of presentment, veto (or reject) a bill and send it back, with objections, to the house in which it originated.
Once a bill is vetoed, Congress can override the President’s veto with a 2/3rds vote in each house.

Question 66

What requirements must be met for a government to be permitted to regulate speech-related activities in nonpublic forums?

Answer 66

The regulation must be:
(i) Viewpoint-neutral; and
(ii) Reasonably related to a legitimate governmental interest.

Question 67

when does a taxpayer have standing to sue?

Answer 67

when the taxpayer’s suit:
(1) challenges legislation enacted under Congress’s taxing and spending power
and
(2) alleges a violation of a specific constitutional limitation on that power (i.e., the establishment clause).

Question 68

2 standards of review for Substantive Due Process

Answer 68

(1) Fundamental right = apply strict scrutiny

(2) Non fundamental right = apply rational basis

Question 69

The government can provide indirect funding to religious institutions if the funding program comports with historical practices and understandings of the establishment clause—i.e., when funding flows to religious schools through individual, not government, choice.

Question 70

standards of review for
content based
content neutral

Answer 70

content based:
> strict scrutiny

content neutral:
> Pick closest to intermediate scrutiny = significant, important, alternative means, another way

Question 71

standard of review for non-public forum + viewpoint neutral

Answer 71

rational basis

Question 72

if the govt is limiting just a specific type of sign, billboard, etc and not others then it is content based

content SPECIFIC = strict scrutiny

Question 73

Similar to a permit fee, a requirement to obtain insurance before engaging in speech is a prior restraint

An ordinance that charges more than a nominal fee for using a public forum to engage in protected speech violates the First Amendment

Question 74

privileges and immunities clause

Answer 74

When a STATE passes a law that discriminates (economically) against POEPLE who are not residents of that state

prevents one state from discriminating against citizens of another state; it does not apply to the federal government.

*not residents of the state = priv & immunities
(recreational ok)

Question 75

who does priv and immunities apply to, citizens or entities?

Answer 75

citizens only

Question 76

what clause prevents a state from imposing a residency requirement for private employment.

Answer 76

priv and immunities

Question 77

do ex post facto laws apply to civil laws?

Answer 77

generally no bc they are non-punitive, unless:

its retroactive effect is so punitive that it clearly overrides its nonpunitive purpose.
(reviewed under rational basis scrutiny if non-fundamental right)

Question 78

what type of P-DP is due to someone who can only be fired “for cause” like a tenured professor

Answer 78

(1) notice
(2) pre-termination hearing to respond to allegations
(3) post termination evidentiary hearing to determine if dismissal was warranted

Question 79

Congress can only:
(1) ENACT state laws
(2) enforce federal laws

Answer 79

congress cant enact a statute that requires a state to do anything

cant make them enforce their laws either

that’s commandeering

Question 80

The First Amendment protects the right to publish lawfully obtained, truthful information about matters of public significance and the right to attend a criminal trial.

Can the govt abridge those rights?

Answer 80

Abridging those rights are presumptively unconstitutional so abridgement must survive strict scrutiny—
i.e., they must be the least restrictive means to achieve a compelling government interest.

Question 81

when does a taking occur

Answer 81

(1) govt substantially restricts the use of private property
(2) deprives an owner of all economically beneficial use of the property but the owner retains possession.

Question 82

True or false:
Congress has the power to authorize the President to call state National Guard units into action without the approval of the state governor to execute federal laws, suppress insurrections, or repel invasions.

Answer 82

true

Question 83

The government can interfere with the First Amendment freedom of association by punishing persons who do what 3 things?

Answer 83

(1) are active members of a subversive organization
(2) know of the org’s illegal objectives, and
(3) specifically intend to further those objectives.

Question 84

what are the regulations for
> traditional public forums
(ex: streets, sidewalk, parks)

> designated (limited) public forums
(school classrooms, civic auditoriums)

Answer 84

Content based regulations in these are PROHIBITED

bc its public u should be able to say what u want

Question 85

what is the regulation for non-public forums
(all other public property)

Answer 85

Content-based regulations permitted if viewpoint-neutral

Question 86

which amendment permits states to prohibit felons—even those unconditionally released from prison—from voting in elections?

Answer 86

section 2 of the fourteenth amendment

Question 87

The Eleventh Amendment bars private parties and foreign governments from suing a state in federal court without the state’s consent. This immunity extends to suits against state officials for a violation of state law, regardless of the type of remedy that is sought.

Question 88

true or false:
The commerce clause gives Congress plenary (i.e., exclusive) authority to regulate foreign commerce—including the power to impose tariffs (i.e., taxes) on imported goods.

Answer 88

true

Question 89

does the undue burden test apply to statutes passed by the fed govt?

Answer 89

no the undue burden test is to prohibit states from enacting nondiscriminatory laws that unduly burden interstate commerce

(dormant commerce clause)

Question 90

Acc to 14th amend DP clause, when must a judge recuse themselves?

Answer 90

(1) the judge has a direct, personal, substantial, pecuniary interest in it
or
(2) a serious, objective risk of actual bias exists.

Question 91

when can SCOTUS use its discretionary appellate jurisdiction and grant a writ of certiorari to review a final state-court judgment?

Answer 91

The U.S. Supreme Court can choose to review final state-court decisions by certiorari unless the decision rests on:
> adequate (state law fully resolves the matter)
and
> independent (no federal precedent used) state grounds.
(bc if only state law then SC cant speak on their fed law)

Question 92

Can race be a factor in drawing district lines?

Answer 92

Only if its not the only/predominant factor

otherwise will be subject to strict scrutiny

Question 93

the enclave clause

Answer 93

gives Congress plenary (i.e., exclusive) legislative power to govern the District of Columbia.

Question 94

export clause

Answer 94

Congress can never impose taxes on exported goods or services or on services and activities closely related to the export process.

Question 95

affirmative action only ok when…

Answer 95

> the state is trying to remedy their OWN racial discrimination history not that of society’s
it is necessary (bc race-neutral methods are unavailable or insufficient to further that interest) strict scrutiny

Question 96

In civil forfeiture actions, procedural due process requires that the government satisfy certain conditions when it seizes real or personal property PRIOR to providing notice and a hearing.

Answer 96

3 factors balanced:

Real Property
~ the private interest affected by the deprivation
~ the risk of erroneous deprivation of that interest through current procedures and the probable value of additional or substitute procedural safeguards and
~ the government’s interest, including the fiscal and administrative burdens that other safeguards would entail.

Personal Property:
~the seizure serves a significant government interest
~ that interest would be frustrated by advance notice of the seizure and
~ the seizure is performed by the government.

Question 97

A Fifth Amendment taking occurs when the government destroys private property or property rights.

Does this include possessory and nonpossessory interests in land? (e.g., easements, liens)

Answer 97

yes

Question 98

President as the official U.S. representative in foreign affairs has the authority to recognize foreign governments.

The President can exercise this power directly or through agents—including executive-branch agencies (e.g., Department of State).

Can Congress override any of the President’s decisions?

Answer 98

No,

When the President does not share power with Congress over a particular area—e.g., recognizing foreign governments—the President can exercise that exclusive Article II power WITHOUT congressional interference.

Question 99

what standard of review is applied for a statute that discriminates non-citizens from citizens

Answer 99

Strict scrutiny bc alienage

Question 100

The First Amendment shields the media from liability for publishing truthful information that was unlawfully obtained by a third party if (1) the information involves a matter of public concern and (2) the publisher neither obtained it unlawfully nor knows who did.

Question 101

Can Congress delegate incidental legislative powers to federal agencies?

Answer 101

Yes, if it provides an intelligible principle to guide the agency.
A clear statement defining
(1) the policy Congress seeks to advance
(2) the agency that will carry it out;
(3) the scope of that agency’s authority.

Question 102

If Congress passes a statute that is awarding federal funds but is silent about how to spend it, will it be upheld?

Answer 102

No,
Conditional federal funding is binding ONLY if the conditions are clearly stated and unambiguous

This is so potential recipients of federal funds (ex: local governments) may make an informed decision.

Question 103

can states directly tax the fed govt?

Answer 103

No, the federal government, its agencies, and its instrumentalities are immune from direct taxation by the states unless Congress expressly consents.

Question 104

Twenty-first Amendment

Answer 104

The Twenty-first Amendment grants states broad authority to regulate alcohol within their borders.

This authority includes the ability to prohibit the importation, transportation, or sale of alcohol within the state and to delegate such authority to local governments (e.g., municipalities).

Question 105

what can States & Congress do under the Elections clause

Answer 105

States:
state legislatures have the power to enact laws that regulate the time, place, and manner of congressional elections (e.g., by establishing voting sites)

Congress:
Congress can override state laws that regulate congressional elections
(but cant override state laws that only regulate state or local election)

Question 106

appointment of inferior officers

Answer 106

inferior officers can be appointed by:
> a department head
> the President alone
(w/out senate consent)
> a court of law if Congress so chooses

this power is delegated by Congress bc they cant choose themsevles

Question 107

State electoral regulations must comply with the First Amendment freedom of association (applicable through the Fourteenth Amendment). What are the 2 standards of review?

Answer 107

> ordinary burdens (non-discriminatory): rational basis

> severe burdens (discriminatory): strict scrutiny

Question 108

when is a private actor considered a government actor?

Answer 108

(1) when the private actor performs a traditional and exclusive government function
or
(2) the government is significantly involved in the private actor’s activities (more than funding or licensing).

Question 109

what is an unconstitutional legislative veto

Answer 109

Legislative action has to be:
(1) approved by both houses of Congress (bicameralism)
AND
(2) presented to the President for approval or disapproval (presentment)

Through this process, Congress can delegate some of its powers (e.g., rulemaking) to federal executive agencies.

Once they do so, Congress CANNOT interfere w the agencies’ functions unless it complies again w/ the legislative-action process.

Any attempt to bypass this process = unconstitutional legislative veto

Question 110

when will a dormant commerce clause discrimination be ok?

Answer 110

when congress said the conduct was ok

Question 111

Can Congress appoint?

Answer 111

no, the president can

Question 112

true or false:
Under the property clause, Congress has the power to regulate private property that affects federal public lands when such regulation is necessary to protect those lands.

Answer 112

true

Question 113

(A) If the Constitution and a treaty conflict, which controls?

(B) If a treaty and an act of Congress conflict, which controls?

Answer 113

> Constitution> treaty

> between treaty & act of congress = the most recently adopted will control

Question 114

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

Answer 114

gives Congress the power to dispose of and make all necessary rules and regulations respecting the territory or other property of the United States

*if they’re acquiring land its probs under the tax and spending clause

Question 115

standard of review for taxes

Answer 115

The tax only needs be rationally related (or have a reasonable relationship) to revenue production.

Question 116

2 ways to get appellate SC jurisdiction

Answer 116

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

Question 117

true or false:
the Constitution grants Congress the power to make exceptions to the Supreme Court’s appellate jurisdiction.

Answer 117

true

Question 118

can the fed govt impose taxes directly in states if it unduly interferes with their essential functions?

Answer 118

No, BUT

they can tax state government affiliates—i.e., persons doing business with state governments—so long as the taxes do not discriminate against states or their affiliates.

Question 119

is a law that directly benefits or burdens a particular religion constitutional?

Answer 119

no unless govt proves the law is necessary to achieve a compelling govt interest

Question 120

The Fourteenth Amendment equal protection clause “one person, one vote” principle requires the populations in state legislative districts to be approximately equal. A deviation of 10% or less between the populations of legislative districts is minor and does not violate the equal protection clause absent evidence of discrimination.

Question 121

Congress can impose indirect taxes so long as they are what

Answer 121

(1) uniformly applied in every state where the taxed goods are found and
(2) reasonably related to revenue production.

Question 122

Due process requires public colleges and universities to provide notice and a meaningful opportunity to be heard before dismissing a student for what type of reasons?

Answer 122

for disciplinary reasons (not for academic ones)

Question 123

An assignee has standing to sue to enforce the rights of the assignor provided that what

Answer 123

(1) the requirements for standing (injury-in-fact, causation, redressability) are met
and
(2) the assignment was made for ordinary business purposes and in good faith.

Question 124

Can a court consider whether a challenged law or regulation substantially advances a legitimate state interest in determining whether the govt committed a taking?

Answer 124

no; they can only consider:
(1) the character or nature of the government action (like the degree of benefit vs. degree of violation of the owner’s property rights)

(2) the economic impact on the property

(3) the interference with the owner’s reasonable investment-backed expectations regarding the use of the property

Question 125

When can Congress impose a direct federal tax (e.g., a tax on real property)?

Answer 125

> apportioned evenly
(i.e., proportionately) among the states based on each state’s population

and

> reasonably related to revenue production
(i.e., no provision extraneous to tax purposes).

Question 126

A federal law will impliedly preempt a conflicting state law that makes it impossible or nearly impossible to comply with both laws (i.e., direct conflict) OR frustrates the accomplishment of the federal law’s purpose (i.e., indirect conflict).

Question 127

A federal court has subject-matter jurisdiction when a case or controversy arises under the Constitution, a federal law, or a treaty (i.e., federal-question jurisdiction).

Question 128

The doctrine of sovereign immunity shields the federal government from suits by private parties (or states or foreign governments) in federal court without Congressional consent. This immunity extends to suits against federal officers for actions taken in their official capacities.

Answer 128

ex: if a federal marshal shot an innocent bystander instead of an escaping inmate

Question 129

property clause

Answer 129

gives Congress complete power to dispose of and regulate federally owned property, including the power to regulate the use of federally owned buildings

Question 130

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

Answer 130

But courts will depart from this test and apply rational basis scrutiny when a state or local law only limits the right to vote in a governmental unit’s election to its residents.

Question 131

Congress’ war and defense powers

Answer 131

to provide for the national defense—e.g., by imposing wage, price, and rent controls on the private civilian economy.

Question 132

A state can require a semi-closed primary system, in which only registered party members and independents can vote in the party’s primary, even if the party wants to permit anyone to vote.

Question 133

When it is not clear whether the state court’s decision rests on state or federal law, can the Supreme Court hear the case?

Answer 133

Yes, the SC can decide the federal issue, and then remand to the state court for resolution of any question of state law

Question 134

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 135

Can the SC hear a case where the state court made a decision but its unclear whether they did so on fed or state law so unclear if its AISG

Answer 135

yes, although a final state-court judgment that’s AISG can’t be reviewed by SC, it can constitutionally review a state court decision to determine whether such grounds exist.

Here, bc it’s unclear whether the state court opinion relied on definitions in the federal law, the SC may review the state court decision to make that determination

Question 136

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 can’t be used to abridge any right guaranteed by the Constitution (e.g., the First Amendment).

Answer 136

mail ads are commercial speech

Question 137

Test applied to Restrictions on commercial speech

Answer 137

i) The commercial speech concerns lawful activity that isn’t false nor misleading

ii) the asserted government interest must be substantial;

iii) the regulation must directly advance the asserted interest; and

iv) the regulation must be narrowly tailored to serve that interest
(aka must be a “reasonable fit” between the government’s ends and the means chosen to accomplish those ends)

*intermediate level scrutiny
` aka no words like: “compelling”

Question 138

you cant be fired for exercising you free speech > proven by showing that you were speaking as a citizen on a matter of public concern

Answer 138

~ ask whether the speech was ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties

~ then balance the 1st amend interest of the employee vs. the interest of the employer in effective management of its internal affairs

Question 139

A state law may indirectly conflict with federal law by creating an obstacle to or frustrating the accomplishment of that law’s purpose

Question 140

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 141

Legislative immunity will not extend to a “re-publication” of a defamatory statement, even if that statement was originally made in the Senate

Question 142

Federal government is exempt from direct taxation from the states

Question 143

durational residency requirements burden the right to interstate travel when basic necessities of life are being denied to newcomers of the state