Module 1

Question 1

Types of cases Art 3 judges can hear

Answer 1

interpretation + disputes
must be case or controversy

Question 2

What determines whether there is a “case or controversy”?

Answer 2

-Whether it’s an advisory opinion
-If its moot/ripe
-Standing

Question 3

what do you need for pre-enforcement review

Answer 3

fit for judicial decision + substantial hardship for plaintiff if not decided

Question 4

mootness exceptions

Answer 4

-capable of repeating itself and evading review due to the inherently short nature of the event/issue
-class action where class rep claim becomes moot but another can bring in class
-defendant voluntarily stops the conduct but can restart at any time [strip club]

Question 5

taxpayer/citizen standing exceptions

Answer 5

-ur own tax bill
-10th Am [feds impinging on state law arena; must be redressable injury]
-Establishment Clause [must be CONGRESSIONAL spending]
-overbreadth 1st Am
-enforce fed statutes (if within zone of interest)

Question 6

rule on 3d party standing

Answer 6

-generally none
-unless difficult for 3d party to assert own rights or close relationship exists

Question 7

org standing

Answer 7

Can sue on behalf of its members if:
–injury in fact to members
–members injury is related to orgs purpose AND
–individual member participation in lawsuit not required (e.g., not seeking indiviidualized damages)

Question 8

sovereign immunity exceptions

Answer 8

-express waiver [consent]
-structural waiver
-local gov actions
-suit by other states or feds
-bankruptcy
-some actions against state officers
-cong removes immunity

Question 9

adequate and independent state grounds doctrine

Answer 9

If a state court deci
sion
rests on two grounds, one that’s state law and one
that’s federal law, and if the Supreme Court’s reversal of
the federal law ground will not change the result in the case, then
the Supreme Court can’t hear the case. [4th am example]

Question 10

congress powers

Answer 10

Art. 1 Sec 8 enumerated powers plus powers necessary and proper to carry out enumerated powers
Enum powerS: to lay and collect taxes; pay debts and borrow money; regulate commerce; coin money; establish post offices; protect patents and copyrights; establish lower courts; declare war; and raise and support an Army and Navy.

NO FEDERAL POLICE POWER

Question 11

TAXING AND SPENDING POWER

Answer 11

General rule: can tax and spend for any public purpose not prohibited by Const.

Spending power conditions:
Can impose strings on grant of money to local or state govs if: (1) clearly stated; (2) relate to purpose of program; (3) are not unduly coercive; and (4) do not otherwise violate the Const.

Taxes generally invalid. Must bear some rational relationship to gov production or promting the general welfare. Cannot simply PENALIZE to COMPEL.

Question 12

what can regulate under commerce power

Answer 12

channels, instrumentalities (planes, traints, auto; people, things); OR activities w substantial effect

Question 13

intrastate activity

Answer 13

if COMMERCIAL and in aggregate has substantial effect

Question 14

delegation of leg power

Answer 14

-can do as long as intelligble standards are set and power not specifically confined to congress
-major questions doctrine exception
–look to whether agency has historically asserted such power and whether there is clear congressional auth for the claimed power

Question 15

inherent/implied exec powers

Answer 15

-when p acts w express or implied auth from Congress, pres auth at MAX and actions likely valid
-when p acts where Cong silent, const is uncertain, courts will consider circ and relevant history. unlikely to be upheld if it usurps power of another branch.
-if p acts against express will of Cong and Cong had auth to act, action likely invalid.

Question 16

when can’t the president grant pardons

Answer 16

-non-federal offenses
-those for impeachment or civil contempt

Question 17

how to override a veto

Answer 17

2/3 of both chambers

Question 18

Treaty power

Answer 18

-pres + 2/3 of Senate
-supreme law of land if self-executing (effective w/o any implementation by Cong.). State laws that conflict generally invalid.
-when conflicts w fed law; last in time prevails

Question 19

exec agrmts

Answer 19

-signed by pres and head of foreign country
-do not require consent of senate
-prevails over state law.
-federal law prevails over

Question 20

federal taxation of states or local govs

Answer 20

must apply to both state and private entities generally to be valid (like minimum wage laws)
-can invalidate under 10th if not

Question 21

intergovernmental immunity doctrine

Answer 21

states cannot interfere with or

Question 22

Preemption/Supremacy Clause stuff

Answer 22

Start with presumption against preemption.
-express preemption (narrowly construed)
-implied preemption
—conflict by the way state and fed law req
—state prevents achievement of federal objective [frustrates]
—field preemption [even if nonconflicting – fed laws must be so comprehensive]

Question 23

Art IV Privileges and Immunities

Answer 23

-prohibits discrim against nonresidents concerning COMMERCIAL activities (like pursuit of livelihood) or FUNDAMENTAL RIGHTS [not corps]
-applies only if intentionally protectionist
-strict scrutiny

Question 24

14th Am P or I

Answer 24

right to petition Congress for redress of grievances, the right to vote for federal officers, and the right to interstate travel

Question 25

dormant Commerce clause

Answer 25

-in the absence of Congress regulation, can do so but must not discriminate or unduly burden
-state or local regs that discrim against interstate commerce to protect local econ interests are almost always invalid
-may be upheld if passes SS tho

if NONDISCRIM [treats local and out-of-state interests alike], use balancing test : VALID unless burden outweighs promotion of legit local interest

diff standard for state control of corporations/incorporation [generally upheld]

Question 26

Dormant commerce clause exceptiions

Answer 26

-Congressional approval (but not if violates Const.)
-when the state is a “market participant” (seller or buyer of goods, like when awarding construction kx)
-when involves traditional gov functions (like waste disposal) - more lenient standard

Question 27

general powers of states to tax commerce [for discrim]

Answer 27

-Congress has complete power to authorize or forbid state taxation that affects interstate commerce.
-Unless auth by Cong., state taxes that discrim against interstate commerce violate CC

Question 28

nondiscriminatory taxes on interstate commerce

Answer 28

will be held as VALID if:
-tax has substantial nexus to the taxing state [exists when a business avails itself of the privilege of doing business in the state. phys presence not necessary]
-fairly apportioned according to a rational formula
-fairly related to the services or benefits provided by the state

Question 29

ad valorem property taxes

Answer 29

tax on assessed value of some prop

Commodities: Valid only if property is no longer in interstate commerce.
Instrumentalities: Valid if instrumentality has “taxable situs” in state and tax is fairly apportioned. Full tax by domiciliary state valid unless taxpayer can prove a defined part has acquired taxable situs elsewhere.

Question 30

USE TAXES

Answer 30

-tax on goods purchased outside of state but used within
-valid unless higher than sales tax

Question 31

privilege, license, franchise, occupational tax

Answer 31

tax placed on some activity like doing business

Valid if (i) substantial nexus to taxing state, (ii) fairly apportioned, (iii) does not discriminate against interstate commerce, and (iv) fairly relates to services provided by the state.

Question 32

Sec 5 if 14th Am

Answer 32

Congressional enforcement power. Can adopt appropriate legislation to enforce the rights and guarantees of the 14th Am. Cannot expand existing con rights or create new ones - can only enact laws to prevent or remedy violations of rights already recognized by the Courts. to adopt a valid law, Cong must point to history or pattern of state violation and adopt leg that is CONGRUENT AND PROPORTIONAL to solving the identified violation. [can enforce DP, EP, citizenship rights through Sec 5]

Question 33

due process mens rea requirement

Answer 33

mere negligence insufficient. must be intentional or reckless gov action.

Question 34

dp liberty definition

Answer 34

gov deprivation of SIGNIFICANT FREEDOM OF ACTION or FREEDOM PROVIDED BY CONST OR STATUTE.

does not include mere injury to rep

Question 35

dp definition property

Answer 35

personal and real prop (whether tangible or intangible) but also gov benefits to which there is an ENTITLEMENT (a reasonable expectation of continued receipt) under state or fed law.
An abstract need or desire for a benefit is not enough.
includes welfare benefits, pub edu, gov licenses, and tenured gov employment or term employment for duration of the term, but NOT ATWILL

Question 36

dp owed for welfare benefits

Answer 36

prior notice and prior evidentiary hearing

Question 37

dp owed for public employment (tenured or termination for cause)

Answer 37

generally, prior notice and opp to respond, and subsequent evidentiary hearing

Question 38

dp owed for termination of parental custody

Answer 38

prior notice and prior evid hearing. clear and convincing evid req.

Question 39

publlic edu disciplinary suspension or academic dismissal dp

Answer 39

prior notice and opp to respond; no formal evid hearing req

Question 40

general DP requirements

Answer 40

notice [reasonably calc. to inform person]
opp to be heard [balancing]
neutral decisionmaker

Question 41

balancing test to determine hearing type

Answer 41

WEIGHS:
-importance of interest to individual AND
-value of specific PROCEDURAL SAFEGUARDS to that interest (i.e., the risk of ERROR from current procedures used and benefits of addtl proceudres) AGAINST
-gov interest in fiscal and admin efficiency

typically should be given pre-deprivation hearing unless this would be impracticable

Question 42

dp neutral decisionmaker req

Answer 42

no ACTUAL bias (like financial interest or relative party to case)
no SERIOUS RISK of actual bias

Question 43

test for determining whether right is fundamental for SDP

Answer 43

whether it is deeply rooted in the nation’s history of tradition and essential to the concept of ordered liberty

Question 44

2d Am test

Answer 44

regulation must be consistent w the country’s historical tradition of firearm regulation
pay close attention to history when 2d and 14th Ams adopted

Question 45

when can states discriminate against aliens

Answer 45

voting, jury service, elective office
some non-elective offices involving important pub policy (like popo, probation, primary and secondary school teachers)

Question 46

when could a law fall under RB

Answer 46

racial animus (not rational)

Question 47

general law on takings

Answer 47

must be for PUBLIC use and must provide JUST compensation
includes easements, personal prop, intangibles (but not welfare benefits)
physical or regulatory

Question 48

physical taking law

Answer 48

confiscation of person’s prop OR permanent or regular phys occupation of personal prop

Question 49

temporary occupations

Answer 49

Consider factors like degree of invasion, the duration, the government’s intention, the foreseeability of the result, the character of the property, and the interference with the use of the property

TWO EXCEPTIONS: development + emergency

Question 50

development exception

Answer 50

Municipalities often attempt to condition building or development permits on a landowner’s (1) conveying title to part of the property to the government (for example, to be used as streets), or (2) granting the public an easement to access the property.
These conditions constitute a taking unless (1) the government can show there is an essential nexus between the condition and the proposed development (that is, the condition relates to a legitimate government interest) and (2) the adverse impact of the proposed development is roughly proportional to the loss caused to the property owner from the forced transfer.

Question 51

regulatory takings

Answer 51

TAKING IF denial of all econ value of land [unless nuisance applies]

Temporary denial of all econ use not per se taking. Will weigh: planner’s good faith, reasonable investment-backed expectations, delay length, delay’s actuall effect, etc. to determine whether “fairness and justice” req just compensation

Decreasing econ value - use balancing test
-Generally, regs that merely decrease the prop value (such as by prohibiitng the most beneficial use) do not constitute a taking. But consider:
-gov interests
-dimunition in value to owner
-whether reg substantially interferes w distinct, investment-backed expectations of owner

Question 52

KX Clause

Answer 52

-Private kx - must subtantially impair existing private kx -(use intermed. scrutiny)
-public kx (SS)

Question 53

ex post facto laws

Answer 53

crim. can’t do where makes someone criminal after or imposes greater punishment or reduces evidence re

Question 54

Free Exercise Clause

Answer 54

prohibits government from punishing someone on the basis of their religious belief or related religious status or conduct

gov can consider sincerity but not truthfulness of belief

doesnt require religious exemptions. but can grant
EXCEPTIONS:
-ministers
-unemployment compensation [good cause]
-Amish dont have to eductae

Question 55

scrutiny level for FE Clause

Answer 55

discriminatory -> SS

discriminatory if:
-not neutral
-facially neutral (silent on face but by design targets general religion or a specific religion)

if generally applicable, not covered by FE

Question 56

FE gov benefits exclusion

Answer 56

A state may not limit eligibility for a generally available govern mental benefit to nonreligious organizations

so if gov provides textbooks to secular private schools, must provide to otherwise-eligible religious private schools

Question 57

Establishment Clause definition

Answer 57

The Establishment Clause prohibits government sponsorship of religion, meaning the government cannot aid or formally establish a religion. Like the Free Exercise Clause, it compels the government to pursue a course of neutrality toward religion.

Question 58

key concepts for Establishment Clause

Answer 58

-Neutrality principle
-no coercion (directly or indirectly) to coerce individuals to exercise or refrain from exercising
-history and tradition approach

Question 59

types of Establishment Clause cases

Answer 59

-sect preference (SS)
-cases unconnected to fin aid or edu(if it burdens small sect, generally invalid, but if burdens large segment of society that includes relig groups, gen valid) [Sunday closing law]
-fin benefits to relig institutions (must be neutral)
-relig activity in pub schools (neutral)