MBE Constitutional Law Flashcards
Acc to EP what level of scrutiny is applied when these groups are being singled out:
Race
Alienage
National Origin
Strict scrutiny (gov/necessary/compelling)
STRICT = government burden to prove law is necessary to achieve COMPELLING interest
Acc to EP what level of scrutiny is applied when these groups are being singled out:
Everyone else
Rational Basis (P/not rationally/legitimate)
RATIONAL: plaintiff has burden to show law
NOT RATIONALLY related to LEGITMATE interest
Acc to EP what level of scrutiny is applied when these groups are being singled out:
Gender
Illegitimacy
Intermediate Scrutiny (gov/substantially/important)
INTERIM = government burden to prove law (S)UBSTANTIALLY related to (I)MPORTANT interest
can federal courts give advisory opinions?
No, fed courts only empowered to decide cases and controversies
can a federal court opine on whether proposed legislation would be constitutional?
no, that’s advisory opinion
who does the Eleventh Amendment generally prohibits a suit against?
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
do local governments have sovereign immunity? (county, city etc)
No, just states and state agencies
(from money damages only)
do individual state officers have sovereign immunity?
no; if they can be sued in a personal capacity
can injunctive relief against state officers be sought in a lawsuit?
yes bc they only have immunity form money damages
exception to sovereign immunity
(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
can a SC hear a case that’s AISG?
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
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.
true
what is standing and what are the elements?
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
when is a case justiciable?
when it is subject to trial in court
Taxpayer standing
> 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
Organizational standing
An organization an sue for its members if:
> member would’ve had standing anyway
> interests are germane to the org’s purpose
Legislative standing
> Legislators never have standing to sue what what voted against
> Legislature may have standing if the claim has to do w its institutional functions
Third party standing
generally not allowed except for these special relationships:
- doctor
- school
- bartenders
- parents
ripeness
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”
Mootness
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
Political Question Doctrine
prohibits fed courts from adjudicating bc:
> diff branch has discretion
court lacks judicially discoverable/manageable standards to resolve the issue
4 types of Abstention Doctrines
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
3 forms of activities Congress can regulate through their commerce clause power
(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
limitations of the commerce clause
> 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)
The Taxing Clause
> 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
The Spending Clause
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
powers that rarely give congress the power to pass a law
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
who can enforce the civil war amendments and which are they
The 13th, 14th, and 15th amendments set out individual rights and congress can enforce them (section 5 power)
13th amendment
(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
14th amendment
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)
Other powers of Congress
> 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
15th amendment
> prohibits denying citizens the right to vote based on race
enforce through Voting Rights Act
If you see a Q w/ an Executive order that “enforces law” but conflicts w a statute is it constitutional?
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
Presidential Powers:
Domestic Affairs
> 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
Presidential Powers:
Pardon Power
President can pardon federal crimes
Doesn’t apply to impeachment
Presidential Powers:
Veto Power
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
Presidential Powers:
Appointments Power
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
President’s Power over
Foreign Affairs
(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
Presidential Powers:
Removal
> 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
Separation of Powers:
Impeachment
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
Separation of Powers:
Impoundment
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
Separation of Powers:
Legislative Veto
Congress can’t reserve for itself (or a sub-component of itself) the right to veto legislation.
Separation of Powers:
Delegation of Powers
Nondelegation doctrine
Congress is allowed to delegate may powers to admin agencies but they have to provide an intelligible principle to guide them
Separation of Powers:
Immunities of the 3 branches
(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
Separation of Powers:
Executive Privilege
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)
Federalism
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
The Supremacy Clause
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
Dormant Commerce Clause
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
Exceptions to violations of Dormant Commerce Clause
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
Dormant commerce clause:
Undue Burden on Interstate Commerce
Violation of DCC if:
burden imposed on interstate commerce clearly outweighs local benefits
Does State law that purposefully regulates conduct wholly outside state’s borders violates the dormant commerce clause?
yes
When can a state, tax interstate commerce?
~ 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
Ad Valorem Property Taxes
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
3 types of Federal Preemption
(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)
Interstate Compact Clause
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
Full Faith and Credit Clause
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
Can a state is ignore another state’s court judgment
No, that’s a violation of the Full Faith and Credit Clause
pocket veto
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.
What standard is used to determine whether a tax by Congress should be upheld?
The tax only has to be rationally related (or have a reasonable relationship) to revenue production.
3 reqs for standing
(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).
when can a state tax the gov?
When that tax is indirect and does not unreasonably burden the federal government (e.g., state income taxes on federal employees)
5 types of speech not protected by the First Amendment
- Obscenity
- Incitement to violence
- Fighting words
- Defamation
- Commercial speech
when does fed law preempt?
(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
how is a veto exercised
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.
What requirements must be met for a government to be permitted to regulate speech-related activities in nonpublic forums?
The regulation must be:
(i) Viewpoint-neutral; and
(ii) Reasonably related to a legitimate governmental interest.
when does a taxpayer have standing to sue?
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).
2 standards of review for Substantive Due Process
(1) Fundamental right = apply strict scrutiny
(2) Non fundamental right = apply rational basis
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.
standards of review for
content based
content neutral
content based:
> strict scrutiny
content neutral:
> Pick closest to intermediate scrutiny = significant, important, alternative means, another way
standard of review for non-public forum + viewpoint neutral
rational basis
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
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
privileges and immunities clause
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)
who does priv and immunities apply to, citizens or entities?
citizens only
what clause prevents a state from imposing a residency requirement for private employment.
priv and immunities
do ex post facto laws apply to civil laws?
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)
what type of P-DP is due to someone who can only be fired “for cause” like a tenured professor
(1) notice
(2) pre-termination hearing to respond to allegations
(3) post termination evidentiary hearing to determine if dismissal was warranted
Congress can only:
(1) ENACT state laws
(2) enforce federal laws
congress cant enact a statute that requires a state to do anything
cant make them enforce their laws either
that’s commandeering
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?
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.
when does a taking occur
(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.
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.
true
The government can interfere with the First Amendment freedom of association by punishing persons who do what 3 things?
(1) are active members of a subversive organization
(2) know of the org’s illegal objectives, and
(3) specifically intend to further those objectives.
what are the regulations for
> traditional public forums
(ex: streets, sidewalk, parks)
> designated (limited) public forums
(school classrooms, civic auditoriums)
Content based regulations in these are PROHIBITED
bc its public u should be able to say what u want
what is the regulation for non-public forums
(all other public property)
Content-based regulations permitted if viewpoint-neutral
which amendment permits states to prohibit felons—even those unconditionally released from prison—from voting in elections?
section 2 of the fourteenth amendment
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.
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.
true
does the undue burden test apply to statutes passed by the fed govt?
no the undue burden test is to prohibit states from enacting nondiscriminatory laws that unduly burden interstate commerce
(dormant commerce clause)
Acc to 14th amend DP clause, when must a judge recuse themselves?
(1) the judge has a direct, personal, substantial, pecuniary interest in it
or
(2) a serious, objective risk of actual bias exists.
when can SCOTUS use its discretionary appellate jurisdiction and grant a writ of certiorari to review a final state-court judgment?
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)
Can race be a factor in drawing district lines?
Only if its not the only/predominant factor
otherwise will be subject to strict scrutiny
the enclave clause
gives Congress plenary (i.e., exclusive) legislative power to govern the District of Columbia.
export clause
Congress can never impose taxes on exported goods or services or on services and activities closely related to the export process.
affirmative action only ok when…
> 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
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.
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.
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)
yes
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?
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.
what standard of review is applied for a statute that discriminates non-citizens from citizens
Strict scrutiny bc alienage
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.
Can Congress delegate incidental legislative powers to federal agencies?
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.
If Congress passes a statute that is awarding federal funds but is silent about how to spend it, will it be upheld?
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.
can states directly tax the fed govt?
No, the federal government, its agencies, and its instrumentalities are immune from direct taxation by the states unless Congress expressly consents.
Twenty-first Amendment
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).
what can States & Congress do under the Elections clause
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)
appointment of inferior officers
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
State electoral regulations must comply with the First Amendment freedom of association (applicable through the Fourteenth Amendment). What are the 2 standards of review?
> ordinary burdens (non-discriminatory): rational basis
> severe burdens (discriminatory): strict scrutiny
when is a private actor considered a government actor?
(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).
what is an unconstitutional legislative veto
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
when will a dormant commerce clause discrimination be ok?
when congress said the conduct was ok
Can Congress appoint?
no, the president can
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.
true
(A) If the Constitution and a treaty conflict, which controls?
(B) If a treaty and an act of Congress conflict, which controls?
> Constitution> treaty
> between treaty & act of congress = the most recently adopted will control
What does the Federal Property Clause give Congress the power to do?
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
standard of review for taxes
The tax only needs be rationally related (or have a reasonable relationship) to revenue production.
2 ways to get appellate SC jurisdiction
- Certiorari (discretionary review)
- Direct appeal (mandatory)
true or false:
the Constitution grants Congress the power to make exceptions to the Supreme Court’s appellate jurisdiction.
true
can the fed govt impose taxes directly in states if it unduly interferes with their essential functions?
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.
is a law that directly benefits or burdens a particular religion constitutional?
no unless govt proves the law is necessary to achieve a compelling govt interest
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.
Congress can impose indirect taxes so long as they are what
(1) uniformly applied in every state where the taxed goods are found and
(2) reasonably related to revenue production.
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?
for disciplinary reasons (not for academic ones)
An assignee has standing to sue to enforce the rights of the assignor provided that what
(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.
Can a court consider whether a challenged law or regulation substantially advances a legitimate state interest in determining whether the govt committed a taking?
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
When can Congress impose a direct federal tax (e.g., a tax on real property)?
> 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).
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).
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).
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.
ex: if a federal marshal shot an innocent bystander instead of an escaping inmate
property clause
gives Congress complete power to dispose of and regulate federally owned property, including the power to regulate the use of federally owned buildings
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 scrutiny when a state or local law only limits the right to vote in a governmental unit’s election to its residents.
Congress’ war and defense powers
to provide for the national defense—e.g., by imposing wage, price, and rent controls on the private civilian economy.
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.
When it is not clear whether the state court’s decision rests on state or federal law, can the Supreme Court hear the case?
Yes, the SC can decide the federal issue, and then remand to the state court for resolution of any question of state law
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.
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
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
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).
mail ads are commercial speech
Test applied to Restrictions on commercial speech
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”
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
~ 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
A state law may indirectly conflict with federal law by creating an obstacle to or frustrating the accomplishment of that law’s purpose
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.
Legislative immunity will not extend to a “re-publication” of a defamatory statement, even if that statement was originally made in the Senate
Federal government is exempt from direct taxation from the states
durational residency requirements burden the right to interstate travel when basic necessities of life are being denied to newcomers of the state
