MEE

Question 1

11th Amendment

Answer 1

In fed court:

1) Citizens of one state cannot sue another state &
2) Citizens cannot sue their own state

Question 2

Abrogation

Answer 2

Congress may expressly repeal state immunity if acting to enforce rights under 13th, 14th, and 15th Amendments

Question 3

Standing

Answer 3

1. Injury in fact
2. Causation and
3. Redressability

Question 4

Organizational Standing

Answer 4

1. Individual members have standing
2. Claim is related to org’s purpose and
3. Individual members aren’t necessary to adjudicate the claim

Question 5

Mootness

Answer 5

Must have live controversy

Question 6

Ripeness

Answer 6

Injury must have occurred or not be speculative

Question 7

Commerce Clause

Answer 7

Congress has power to regulate interstate commerce:
1) Channels
2) Instrumentalities
3) Activities with a substantial effect on interstate commerce

Question 8

Substantial Effect

Answer 8

Economic activity is presumed to have a substantial effect

Question 9

Aggregation

Answer 9

Congress can regulate activity that, in the aggregate, has an effect on interstate commerce

Noneconomic activity can NOT be aggregated; activity itself must have a substantial impact on interstate commerce.

Question 10

Congressional spending power

Answer 10

Congress can condition fed funds to states and require states implement certain regulations as long as condition is related to purpose of funds and isn’t coercive

Question 11

Comandeering

Answer 11

States can claim Congress is violating the 10th Amendment by
forcing the state legislature to pass specific legislation.

A valid exercise of the Spending Power does not constitute commandeering

Question 12

Congressional Delegation of Legislative Power

Answer 12

Congress may delegate its powers to an agency as long as it provides reasonably intelligible standards

Question 13

Executive Orders for domestic affairs

Answer 13

President has appointment and removal powers, pardon power, is commander in chief, and the duty to execute the law

Question 14

Executive agreements for foreign affairs

Answer 14

President has power to conduct foreign negotiations, enter into treaties, to deploy troops overseas, and to make executive agreements

Question 15

Supremacy clause

Answer 15

If state law conflicts with federal law, the federal law governs.

Question 16

Express Preemption

Answer 16

When fed law explicitly states that it’s the only law allowed in that area. If there’s express preemption, any state law addressing that issue is invalid.

Question 17

Implied Preemption

Answer 17

1) Congress passes a fed law intending to “occupy the field”;
2) State law conflicts directly or indirectly with federal law

Question 18

Privileges and Immunities Clause

Answer 18

Prohibits states from discriminating against nonresidents, unless it’s necessary to achieve an important gov’t interest

Question 19

10th Amendment and Comandeering

Answer 19

All powers not expressly given to the fed gov’t are reserved to states.

Fed gov’t cannot “commandeer” state legislatures and force them to legislate

Question 20

Dormant Commerce Clause

Answer 20

Under the Commerce Clause, Congress can regulate interstate commerce

Under the Dormant Commerce Clause, a state can’t:
1) discriminate against or
2) unduly burden interstate commerce

Question 21

Discrimination under Dormant Commerce Clause

Answer 21

Must be discriminatory, either on its face or by its impact. If a state statute discriminates against OOS commerce, state must show:
a) An important state interest; and
b)no other non-discriminatory means to achieve that interest

Question 22

Market Participant Exception

Answer 22

If state is acting as a buyer or seller, it can favor local
business

Question 23

3 other exceptions to dormant commerce clause

Answer 23

1) traditional government function exception,
2) subsidy exception, and
3) congressionally permitted discrimination exception.

Question 24

What does it mean to unduly burden interstate commerce?

Answer 24

If a statute is not discriminatory, law may still be invalid if it causes an “undue burden” on interstate commerce.

Courts balance:
a) Purpose of the statute;
b) Burden on interstate commerce; and
c) If there are less restrictive alternatives

Question 25

State action

Answer 25

Constitution protects against wrongful gov’t conduct.

But a private entity may be treated as a state actor and subject to the constitution when:
- Carrying out acts traditionally performed by gov’t; or
- intertwined with state actor

Question 26

5th Amendment Takings clause

Answer 26

Gov’t may not take private property for public use without just compensation

Question 27

Government action under 5th Amendment takings clause

Answer 27

Protects from gov’t “taking” of private property. Includes physically taking land and regulatory takings by rezoning, prohibiting development, etc.

Question 28

Private Property element of 5th Amendment Takings Clause

Answer 28

Usually involves land or other real property. Can be other property such as K and patent rights or trade secrets

Question 29

Public use under 5th Amendment Takings clause

Answer 29

Must be rationally related to a conceivable public purpose. Includes health, safety, economic development, etc.

Question 30

Physical Taking

Answer 30

Government physically takes or occupies the land

Question 31

Regulatory Taking

Answer 31

A law has the effect of decreasing the value of the property

Can be total taking or partial taking

Question 32

Total Taking

Answer 32

regulation leaves no economically viable use of the property

Question 33

Partial Taking

Answer 33

Regulation affects some use of the land, but there is still some economic use available

Considers: economic impact, reasonable expectations, and impact on the character of the community

Question 34

Exaction

Answer 34

Local gov’t may exact (i.e., compel) promises from a developer in exchange for construction permits

• NOT a taking if there is:
  a) Nexus bw legit state interests and conditions imposed; and
  b) Proportionality bw the owner’s burden and
  community impact

Question 35

Just Compensation

Answer 35

Property owner is entitled to fair market value of the property at time of taking. If only a portion has been taken—owner entitled to compensation for land actually taken and any loss in value of the land still owned

Question 36

Zoning

Answer 36

Local gov’ts can pass zoning ordinances, so long as they are reasonably related to a legit gov’t purpose (health, safety, morals, and general welfare).

Question 37

Variance

Answer 37

May be granted to allow the owner to continue the nonconforming use of the land. Owner must show an undue burden if variance is not granted.

Question 38

Procedural due process

Answer 38

Gov’t shall not deprive a person of life, liberty, or property without due process of law. Process includes notice, a hearing, a neutral decisionmaker, and right to an appeal

Question 39

Procedural due process factors

Answer 39

1) Interest affected—life, liberty (including fundamental rights), or property;
2) Value of additional safeguards; and
3) Burden or cost of additional process

Question 40

Substantive Due Process

Answer 40

Does gov’t action impermissibly infringe on an individual’s rights?

Question 41

Fundamental rights

Answer 41

life, liberty, property, voting, privacy, child rearing. Gets strict scrutiny: valid if necessary to achieve a compelling gov’t interest

Question 42

What standard are non fundamental rights subject to?

Answer 42

Gets rational basis: valid if rationally related to legit gov’t interest

Question 43

2 types of discrimination under the Equal Protection Clause

Answer 43

Discriminatory intent—strict or intermediate scrutiny (depending on classification)

Disparate impact (no discriminatory intent)—rational basis review

Question 44

Strict Scrutiny under Equal Protection Clause

Answer 44

Applies to any law involving classifications based on race, ethnicity, and national origin or a law that implicates fundamental rights. Gov’t must show it is:
a) Least restrictive means
b) To achieve a compelling gov’t interest

Question 45

Intermediate Scrutiny under EPC

Answer 45

Applies to laws involving gender and non-marital children. Gov’t must show it is:
a) Substantially related
b) To an important gov’t interest

Question 46

Gender discrimination under EPC

Answer 46

Must also show an “exceedingly persuasive justification” (i.e.,
intermediate scrutiny with bite). Must also show that facilities are substantially equivalent

Question 47

Rational Basis

Answer 47

Applies to all other rights and classifications (e.g., age and wealth) Plaintiff must show the law is not:
a) Rationally related
b) To a legit gov’t interest

Question 48

Enabling Clause

Answer 48

Under the 14th Amendment, Section 5—Congress may pass legislation to enforce equal protection and
due process rights (overriding state statutes)

Question 49

Symbolic Speech - expressive conduct

Answer 49

A Regulation hindering symbolic speech is valid if:

1) Important gov’t interest;
2) Interest is unrelated to suppression of ideas; and
3) Burden on speech is no greater than necessary

Question 50

Overbreadth

Answer 50

A statute regulates more speech than necessary to protect a compelling government interest

Question 51

Vagueness

Answer 51

A statute fails to provide a person of ordinary intelligence with fair notice of what is prohibited

Question 52

Prior Restraints

Answer 52

A prior restraint prohibits speech before it occurs. Must seek to avoid a particular harm. Must have procedural safeguards in place: standards must be narrow, reasonable, and definite

Question 53

Right not to speak

Answer 53

Protected by 1st Amendment

ex) SCOTUS held kid in public school doesn’t have to say pledge

Question 54

Content Based Regulation

Answer 54

Gets Strict Scrutiny.

Gov’t must show the regulation is:
a) Necessary to achieve;
b) A compelling governmental interest; and
c) Narrowly tailored to meet that interest

Question 55

Content-neutral regulation

Answer 55

gets intermediate scrutiny

Question 56

When is a Content-Neutral Time, Place, and Manner Regulation valid?

Answer 56

It depends on the type of forum

Question 57

Commercial Speech

Answer 57

Commercial speech may be prohibited if is false, misleading, or unlawful.

Regulation must advance narrowly tailored substantial gov’t interest.

Question 58

Obscenity

Answer 58

An average person, applying contemporary community standards finds the speech:
* Appeals to prurient interests;
* Depicts sexual conduct in a patently offensive way; and
* Lacks cultural value

Question 59

Incitement to Violence

Answer 59

1) Likely incite or produce imminent lawless action and
2) creates a clear and present danger

Question 60

Fighting words

Answer 60

likely to incite an immediate breach of the peace

Question 61

Defamation

Answer 61

Constitutional limits on defamation when P is a public official or public figure, or the speech involves a matter of public concern.

Question 62

Traditional Public forum

Answer 62

Content-based regulations: strict scrutiny

Content-neutral regulations: time, place, and manner test; must be:
* Narrowly tailored;
* To serve a significant gov’t interest; and
* Leave open ample alternative channels for comms

Question 63

Examples of traditional public forum

Answer 63

sidewalks, streets, parks

Question 64

Designated public forum

Answer 64

Not historically used for speech-related activities but has been opened for such use

Content-based regulations: strict scrutiny.
Content-neutral regulations: time, place, and manner test; must be:
* Narrowly tailored;
* To serve a significant gov’t interest; and
* Leave open ample alternative channels for comms

ex) subway station with bulletin for public posting

Question 65

Non-Public Forum

Answer 65

Government can regulate speech/content if regulation is:
a) viewpoint-neutral; and
b) Reasonably related to;
c) A legitimate gov’t interest

ex) gov’t offices, schools, jails, military bases, airports

Question 66

Establishment Clause

Answer 66

Prohibits gov’t from establishing a religion, preferring a particular religion over another, or preferring religion over non-religion

Question 67

Facially Religious Preference

Answer 67

If statute shows a preference to one religion over another (or to religion over non-religion), strict scrutiny applies

Question 68

Facially Neutral Statute about religion

Answer 68

A statute may favor religion.

Consider:
* “historical practices and understandings” of environment in which the
preference is occurring
* Is gov’t establishing a religion, favoring one over
the other, or preferring religion over non-religion?

Question 69

Free Exercise Clause

Answer 69

The freedom to believe and the freedom to act. One must have a genuine belief in that religion (if so, then protected)

Question 70

What standard do laws related to the Free Exercise Clause get?

Answer 70

Laws that intentionally target religions conduct: strict scrutiny. Laws that are generally applicable, but happen to impact religion: rational basis test.