MEE - Con Law

Question 1

*What is the Anti-Commandeering Doctrine?

Answer 1

The federal government is a government of limited power - it has only those powers granted to it by the constitution. Under the tenth amendment, those powers not granted to the federal government are reserved to the states. This reservation of power is often cited as a restriction on Congress’s power to regulate the states. More specifically, the SC has held that Congress lacks the power to require states to regulate their own citizens, such as by require state officials to take action under federal laws. In essence the Court prohibited the federal government from commandeering state officials to carry out federal law.

However, the SC has held that the Tenth Amendment does not bar enforcement of a regulation that applies to the states as well as to the private sector (such as a law that applies to all employers with more than 50 employees)

Question 2

*In reference to the Anti-Commandeering Doctrine, may the government attach strings to programs under the federal spending power?

Answer 2

The Constitution grants Congress the power to spend for the general welfare. This spending may be for any public purpose, it is not limited to the accomplishment of some other enumerated power. Moreover, the SC has held that Congress may put conditions on the grant of money so long as the conditions: (1) are clearly stated, (2) relate to the purpose of the program, and (3) are not unduly coercive. The SC has not set a bright line test for determining what is “unduly coercive.”

Question 3

*What powers does the Commerce Clause give congress?

Answer 3

The Constitution gives Congress broad power to regulate interstate commerce. The term “commerce” has been held to include all activities involving or affecting two or more states. More specifically, the Supreme Court has held that the Commerce Clause gives Congress the power to regulate (1) the channels of interstate commerce, (2) the instrumentalities of intestate commerce, and (3) activities that have a substantial effect on interstate commerce.

Question 4

*Under the Commerce Clause Power what activities have a substantial effect on interstate commerce?

Answer 4

Two tests determine the validity of a law under the third prong: if the activity regulated is economic or commercial, it will be upheld if Congress could rationally conclude that the activity in aggregate, substantially affects interstate commerce. However, if the activity is intrastate and noncommercial and not economic, it will be upheld under the Commerce Clause only if Congress can make a factual showing that the activity actually has a substantial economic effect on interstate commerce, without the aggregation of effects.

The SC has held that violence against women is not an economic activity.

The SC has held that inactivity may not be regulated under the Commerce clause. (the failure to do something)

Question 5

*What power does Congress have under the 14th Amendment?

Answer 5

The federal government is a government of limited powers. To pass a law, Congress must act pursuant to a power given to it by the Constitution. Congress has no general police power or power to legislate for the general welfare.

Section Five of the Fourteenth Amendment is an enabling clause giving Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the Fourteenth Amendment. Under Section Five, Congress may not expand existing constitutional rights or create new ones- it may only enact laws to prevent or remedy violations of rights already recognized by the courts. To be valid, laws must be congruent and proportional to solving a history or pattern of violations of such right.

Question 6

*What is strict Scrutiny?

Answer 6

It asks if the law is necessary for a compelling government interest, with the least restrictive means. The government bears the burden of proof.

Travel, Voting & Ballot Access, Privacy (Marriage, Contraception, Sexual Intimacy—Undue Burden Test, Parental rights, family relations, obscene materials—not child pornography, refusal of medical treatment), Race, Ethnicity, National Origin, Alienage (not undocumented aliens)—Arbitrary and unreasonable, establishment clause violations, content-based speech regulations

Question 7

*What is intermediate scrutiny? Who bears the burden of truth?

Answer 7

It asks if the law is substantially related to an important government interest, applying to legitimacy, gender, and possibly sexual orientation. The government bears the burden of proof.

Question 8

*What is rational basis review? Who bears the burden of truth and what rights do it apply to?

Answer 8

It asks if the law is rationally related to a legitimate interest. This is a difficult burden to meet because a court will uphold the government action if the court can conceive of any way the government action will help achieve any legitimate government purpose. The challenger bears the burden of proof, applies to age, wealth, taxation, etc.

Question 9

*What does the Equal Protection Clause of the 14th Amendment provide?

Answer 9

The Equal Protection Clause of the Fourteenth Amendment prevents states from unfairly treating similarly situation persons differently To determine whether a law violates the Equal Protection Clause, a court first considers whether a discriminatory classification exists. If so, the court determines what the standard of review to use by considering whether a suspect classification is involved. When no suspect or quasi-suspect classification is involved, a court will review the law under the rational basis test.

Question 10

*What justification is necessary to uphold government discrimination under the equal protection clause?

Answer 10

The justification needed to uphold government discrimination being challenged under the Equal Protection Clause depends on the circumstances. When a law discriminations on the basis of sex, the court applies intermediate scrutiny - the discrimination will be upheld only if the government can prove that the discrimination is substantially related to an important government interest. An exceedingly persuasive justification is needed. The interest must be genuine and not hypothesized for litigation, and the government may not rely on overbroad generalizations about males and females.

The Court decided long ago that separate but equal facilities were not valid under the Equal Protection Clause for race-based classifications which is also subject to strict scrutiny.

Question 11

**What does the Establishment Clause prohibit?

Answer 11

It prohibits the government from endorsing one religion over another or endorsing religion over non-religion. Examples include prohibiting officially sponsored school prayer and graduation prayer.

Question 12

**What does the Free Exercise Clause protect?

Answer 12

It protects religious beliefs absolutely but protects religious conduct qualifiedly, requiring obedience to neutral, generally applicable laws.

Question 13

*May a school prohibit religious clubs from using public property thrown open for public use?

Answer 13

School classrooms are not traditional public forums and generally are not available for the exercise of the First Amendment speech or assembly rights. However, if a school chooses to throw open its facilities for public use when the rooms are not being used for school purposes, the facilities become designated public forums. At the times designated public forums are open for speech activities, their use may be limited only by regulations that would be allowed in public forums: The regulation must be content neutral, be narrowly tailored to serve a significant government interest, and leave open alternative avenues of communication. If the regulation is content-based, it will be subject to strict scrutiny.

Additionally, the SC has held that a school that opens its facilities to religious speech or assembly under a content-neutral policy does not violate the Establishment clause.

Question 14

*How may content based speech restrictions be enforced in a traditional public forum?

Answer 14

The First Amendment to the US Constitution guarantees the freedom of speech and assembly. Under the First Amendment, regulations on the content of speech are subject to strict scrutiny and, therefore, are generally invalid. However, the government may regulate the conduct of speech a bit more with time, place, and manner regulations. A time, place, and manner regulation of speech in a public forum must (1) be content neutral; (2) be narrowly tailored to serve a significant government interest; and (3) leave open alternative avenues of communication. If, instead, the regulation is content-based, it will be subject to strict scrutiny.

Public forums are sidewalks, streets, and parks.

Question 15

*How does the first amendment protect content-based speech?

Answer 15

The first Amendment Generally prohibits the government from restricting the content of speech unless the government can prove the restriction is necessary to achieve a compelling governmental interest.

Question 16

**What is prior restraint?

Answer 16

Prior restraint regulates speech before it happens and is especially disfavored, making injunctions against speech almost impossible to get.

Question 17

*What is a Non-public forum?

Answer 17

This includes all kinds of government property that is not a public forum (e.g., government offices, jails, power plants, military bases, etc.). Here, only viewpoint discrimination is invalid (such as distinguishing between members of different political parties).

Question 18

**What is a Limited public forum?

Answer 18

Describes a place that is not a traditional public forum, but that the government chooses to open to all comers (e.g., a municipal theater that anyone can rent). In such areas, only time, place, or manner regulations are allowed, but this is a narrow category.

Question 19

*What speech is generally not protected under the first amendment

Answer 19

-Obscene speech: Obscenity must be erotic, patently offensive to the average person in society, defined by proper standards, and lack serious value.

-Speech that incites imminent lawless action: The Supreme Court has held that a statute may not constitutionally regulate mere advocacy of lawless action in the abstract; only speech that incites imminent lawless action can be regulation.

-Fighting words: The Supreme Court has held that fighting words are not protected speech. The term fighting words has been defined as personally abusive epithets that, when addressed to an ordinary person, are likely to incite immediate physical retaliation.

Question 20

*When is a speech regulation overbroad?

Answer 20

Generally a regulation of speech will not be upheld if it is over broad. Overbroad speech prohibits substantially more speech than is necessary. If a regulation punishes a substantial amount of protected speech judged in relation to its legitimate sweep, it is facially invalid and cannot be enforced against anyone, including a person engaging in constitutionally unprotected speech, unless a court has limited construction of the restriction so as to remove the threat to constitutionally protected speech.

Question 21

*When does the constitution allow for defamation suites against public figures?

Answer 21

At common law, a plaintiff may bring a defamation action against a defendant who makes a false statement about the plaintiff. However, the First Amendment limits common law suites brought by public figures. Such persons cannot recover for defamation unless he can show that the statement was made with actual malice. Actual malice will be found where the statement is made with knowledge that it is false or with reckless disregard of its truth or falsity.

Question 22

*Does the first amendment allow the press with special rights to trespass to report on a public figure?

Answer 22

Trespass is an intentional physical invasion of a plaintiff’s real property caused by the defendant. The First Amendment does not provide the press with any special right to trespass - even if the trespass was done in order to investigate a story about a public figure or a matter of public concern.

Question 23

*Would an invasion of privacy preclude publishing private information even if it is true?

Answer 23

Generally, it is a tort to publish private information about a person - even if it is true - if a reasonable person would object to having the information made public. However, if the matter is one of legitimate public interest, its publication is privileged if it is made without actual malice, especially if the information was obtained legitimately.

Question 24

**How does the First Amendment apply to the government?

Answer 24

The first amendment restrictions do not apply to the government as a speaker. For example, the government does not have to accept all monuments donated by a private person simply because it accepts one, when the government is controlling the message it is entitled to say what it wants, but specialty license plates bearing messages requested by purchasers are government speech, so the government can refuse to issue plates that would be offensive to other citizens.

Question 25

**How does the first amendment apply to government employees?

Answer 25

Government employees generally cannot be hired or fired based on political party, political philosophy, or any act of expression, but this rule does not apply to confidential advisors or policy making employees.

Question 26

**What is the government’s role in regulating commercial speech?

Answer 26

Most regulations of commercial speech are struck down, as truthful and informational advertising must be allowed, while misleading commercial speech can be prohibited.

Question 27

**What protections do corporations have regarding speech rights?

Answer 27

Corporations have the same speech rights as individuals, except for broadcasters who are subject to greater regulatory authority than print media or the internet.

Question 28

**What is the standard for laws regulating expressive conduct?

Answer 28

Laws regulating expressive conduct are upheld if they further an important interest, unrelated to the suppression of expression, and the burden on expression is no greater than necessary.

Question 29

**How can contributions to political campaigns be regulated?

Answer 29

Contributions can be regulated if limits are not unreasonably low. Direct expenditures in support of a candidate or issue cannot be regulated.

Question 30

*Under the Dormant Commerce Clause when does a state law discriminate against out of state commerce?

Answer 30

A state or local regulation discriminates against out-of-state commerce if it protects local economic interests at the expense of out-of-state competitors. However, the mere fact that the entire burden of a state’s regulation falls on an out-of-state business is not sufficient to constitute discrimination against interstate commerce. Discriminatory regulations are valid if they are necessary to achieve an important noneconomic state interest and there are no reasonable alternatives available. Regulations are discriminatory if they distinguish between in-state and out-of-state businesses or consumers.

The Commerce Clause does not prevent a state from preferring its own citizens when the state is buying and selling goods and services.

Question 31

*Under the Dormant Commerce Clause when may a state enact a law this is neutral on its face, but favors an in-state industry over an out-of-state industry?

Answer 31

Under the Dormant Commerce clause, if Congress has not enacted laws regarding a subject, a state or local government may regulate local aspects of interstate commerce if the regulation: (1) does note discriminate against out-of-state competition to benefit local economy interests, and (2) is not unduly burdensome (that is, the incidental burden on interstate commerce does not outweigh the legitimate local benefits produced by regulation.)

Question 32

*May federal courts hear private actions against state governments?

Answer 32

The Eleventh Amendment is a jurisdictional bar that prohibits the citizens of one state from suing another state in federal court. It immunizes the state from suits in federal court for money damages or equitable relief when the state is a defendant in an action brought by a citizen of another state. The 11th amendment also bars suites against state governmental employers from citizens of that state.

Congress can remove Eleventh Amendment immunity as to actions created under the Fourteenth Amendment (due process and equal protection). But Congress may not abrogate sovereign immunity under the commerce clause.

Private parties may bring actions to enjoin an officer from future conduct that violates the Constitution or federal law. This exception includes enjoining an appropriate state official from enforcing an unconstitutional state law.

Question 33

*When does the 14th amendment’s equal protection clause protect against the wrongful conduct of individuals (instead of conduct of the government)?

Answer 33

Private action will constitute state action when: (1) the private actor is performing a traditional and exclusive state function, or (2) the state is significantly involved in the private action. Thus far, the SC has found only running a town or an election to be a traditional and exclusive public function. The court has found significant state involvement when enforcement of the private action involves the use of the courts (Where a court were to enforce a restrictive covenant or a peremptory challenge) or where private entities are entwined with government entities (high school athletic association (1) to which most schools in a state belong, (2) made up mostly of state employees who meet during hours of their employment in school buildings, and (3) funded by ticket receipts from the school sporting events). On the other hand, the court has found that state regulation of an industry - even heavy regulation - does not make the industry’s action state action. Neither does licensing or providing essential services, such as police or fire protection. Indeed, the court has found that regulation of a private school does not make the school’s action state action.

Question 34

*Can a governmental regulation adversely affecting commercial property rights be considered a taking?

Answer 34

The Fifth amendment prohibits governmental taking of private property for public use without just compensation. While the government must fairly compensate an owner when her property is taken for public use, it need not pay compensation for mere regulation of property. A taking will almost always be found if there is an actual physical appropriation or destruction of a person’s property.

Nevertheless, a restriction on how real property is used may constitute a taking. Although cities may generally regulate the use of real property, a regulation will constitute a taking if it (1) amounts to a physical appropriation, (2) denies an owner of all economic use, or (3) unreasonably interferes with distinct investment-backed expectations of the owner.

Question 35

*What is a government exaction and when do they violate the takings clause?

Answer 35

Generally, a city may not force landowners to convey interests in their land to the city in exchange for permission to build improvements on the property. However, a city can impose such a requirement if (1) a close nexus (the government can show that the condition relates to a legitimate government interest), and 92) proportionality exists (the adverse impact of the proposed building/development on the area is roughly proportional to the loss caused to the property owner from the forced transfer of occupation rights).