Review

Question 1

What are the 5 main categories of congressional pwr?

Answer 1

1) Taxing/spending pwr: Congress may tax/spend for the “general welfare” (this is NOT the pwr to promote the general welfare, sans taxing)

2) Commerce pwr: can regulate commerce (i) w/ foreign nations, (ii) indian tribes; AND (iii) among the states; Congress may regulate…
(a) the channels of interstate commerce (e.g., highways, waterways, the Internet)
(b) the instrumentalities of interstate commerce (i.e. persons or things in interstate commerce, like trucks, planes or phones)
(c) economicINTRAstateactivities that have a substantial (cumulative) affect on interstate commerce

(NOTE: cumulative impact cannot be based on NON-economic activity)

Non-economic INTRAstate activities where Congress can FACTUALLY SHOW a substantial economic effect on interstate commerce

States - only ban harmful products; can’t protect local commerce

3) §5 of 14Am

4)Ltd police pwrs = re: “M-I-L-D” categories ONLY
Military (inc. laws governing policy on military land)
Indian reservations
Lands (federal)
District of Columbia (D.C.)

5) Necessary & Proper Cl: Congress can adopt all laws that are “necessary and proper” to exercise its EXPRESS/IMPLIED authority (as per above)

Question 2

How should Necessary and Proper Clause be used?

Answer 2

MUST be used with another law.

Question 3

What is justification for law’s distributing money?

Answer 3

ALWAYS tax and spend

Question 4

What state power is rarely upheld?

Answer 4

To invalidated a federal law under the 10A

Question 5

What is preemption?

Answer 5

The Supremacy Cl states that the Const AND the laws/treaties made p/t it are the SUPREME LAW OF THE LAND Bottom line: valid federal law/treaties OVERRIDES (preempts) inconsistent state law A state law that has a HIGHER std than the federal law is OK as you can comply with BOTH

Question 6

What are 3 key ways in which preemption can operate to override an inconsistent state law?

Answer 6

1) Express preemption: When Congress has authority to act, it can state that its pwr is EXCLUSIVE in a field; all state/local laws in that area are preempted
2) Implied preemption: nws silence in the statute, state/local laws can be preempted IF… it is impossible for someone to SIMULTANEOUSLY comply w/ both fed and state laws

NOTE: general rule is that states can grant their citizens GREATER PROTECTIONS(i.e. more strict), UNLESS Congress intended otherwise the state law impedes the achievement of a federal OBJECTIVE (i.e. “field preemption”) Congress evidences a clear INTENT to preempt state law (e.g. fed immigration law)

3) Intergovernmental immunity: States may not tax/regulate the fed gov’t for a federal activity

Question 7

When plaintiff files a state law violates Constitution in state, what is next?

Answer 7

State appeals court

Question 8

What are rules about advisory opinions?

Answer 8

1) Fed cts cannot issue advisory opinions
2) Cong can’t auth Fed Ct to do these
3) State ct may be able to provide these
4) If fed ct decision is subj to review by another branch, it is not final

Question 9

What are the 4 req’s for a π to have standing?

Answer 9

1) Injury: the π must allege and prove that she HAS been injured or IMMINENTLY will be injured

Injury is NOT mere ideological objection to a law (you need PERSONAL injury)

π’s seeking injunctive or declaratory relief must show likelihood of future harm

2) Causation & redressibility: π must allege and prove that the ∆ CAUSED the injury so that a favorable ct decn is likely to REMEDY the harm

If ct’s ruling would have no effect, then it’d be an advisory op (NOT ALLOWED)

NOTE: NO 3d party standing: π CANNOT assert claims of 3d party’s not before the ct

EXCEPTIONS: 3d party standing is allowed IF… (i) CLOSE relationship b/t the π and the injured 3d party (e.g. dr-patient relationship; custodial parents; BUT NOT non-custodial parent)

(ii) the injured party is unlikely to ASSERT THEIR OWN rights [e.g. if jurors are subject to systematic discrimination, they are unlikely to bring a claim as they don’t have an incentive to serve)
(ii) ORGANIZATION suing on behalf of its members, IF (a) members would have standing to sue; (b) interests are germane to the org’s purpose; AND (c) neither the claim nor relief req’s participation of individual member
4) NO generalized grievances: the π must not be suing solely “as a CITIZEN” or a TAX PAYER interested in having the gov’t follow/not follow the law OR spend tax money in a certain way

NOTE: If the gov’t law actually targets a specific person, then he could sue

NOTE: Congress can’t confer standing

EXCEPTION #1: taxpayers DO have standing to challenge gov’t expenditures p/t federal statutes as violating the Establishment Cl (i.e. sep of church and state)

EXCEPTION #2: a person has standing as a citizen to allege that a federal action violates the 10th Am by interfering w/ pwrs reserved to the state (as long as the person can show injury and redressability)

Question 10

When is Full Faith & Credit required?

Answer 10

(1) Jurisdiction
(2) Judgment final
(3) Judgment on the merits

Question 11

What 3 ways canPOTUS exercise his foreign policy pwr?

Answer 11

1) Treaties = agmts b/t the US and a foreign country

They are NEGOTIATED by POTUS, but RATIFIED by the Senate

State laws that conflict w/ treaties are INVALID

If treaty conflicts w/ a fed statute, the one adopted LAST IN TIME cntrls (over the earlier one)

If treaty conflicts w/ the US Const., the treaty is INVALID

2) Executive agmts = agmt b/t the US and a foreign country that’s effective when signed by POTUS (ALONE) and the head of the foriegn gov’t

Executive agmts can be used for any purpose (anything that can be done w/ a treaty)

Executive agmts prevail over conflicting state laws, BUT NOT conflicting federal laws OR the US Const

3) Commander-in-Chief pwrs = POTUS has BROAD pwrs as CIC to use American troops in foreign countries

NOTE: this is ALSO a political question that WON’T be heard by Art. III cts

Question 12

What is the scope of POTUS’s pardon pwr?

Answer 12

POTUS has the pwr to pardon anyone accued or convicted of FEDERAL (not state) CRIMES

EXCEPTION: POTUS may not pardon a person who has been impeached by the House (can NEVER be pardoned)

This pwr does NOT apply to CIVIL liability

Question 13

What is the standard req’d p/t the Takings Cl of the 5th Am?

Answer 13

The gov’t may take PRIVATE property for PUBLIC use but ONLY IF it provides JUST COMPENSATION or terminates the regulation Ask…

FIRST: has there been a “TAKING”?

Possessory taking = gov’t confiscation OR physical occupation of property

Regulatory taking = gov’t regulation is a taking IF it leaves NO REASONABLE economically viable use of the property

NOTE:Gov’t conditions on the development of property (exactions) must be justified by a benefit ROUGHLY proportional to the burden proposed

A property owner may bring a takings challenge to regulations that ALREADY EXISTED at the time the property was acquired

Temporarily denying an owner use of property is NOT a taking so long as the gov’ts action was reasonable

SECOND: is it for PUBLIC USE?

It’s a “public use” SO LONG AS the gov’t acts out of a reasonable belief that the taking will benefit the public

THIRD: is JUST COMPENSATION paid? Measured in terms of loss to owner in reasonable MKT value terms (NOTE: the GAIN to the gov’t is IRRELEVANT)

Question 14

What are the 3 levels of scrutiny re: individual liberties/equal protection?

Answer 14

1) Rational basis: a law is upheld IF it is RATIONALLY related to a LEGITIMATE gov’t purpose

Burden of proof = on the π

When: age; anytime there is no strict/ intermediate scrutiny

2) Intermediate scrutiny: a law is upheld IF it is SUBSTANTIALLY related to an IMPORTANT gov’t purpose

Burden of proof = on the gov’t

When: Gender, illegitimacy, children

When gender discrimination involved - “exceeding persuasive justification” necessary

3) Strict scrutiny: a law is upheld IF it is NECESSARY to achieve a COMPELLING gov’t purpose

Burden of proof = on the gov’t

When: race; religion; nat’l origin; most alienage classes; fundamental rights - travel/ vote

NOTE: Voting - law restricting voting from non-residents is usually good as long as RATIONALLY RELATED to a government interest

Question 15

Standards for alienage?

Answer 15

States - strict (unless for state gov’t position - judges, cops, teachers)

Federal - intermediate

Question 16

What is the State Action Doctrine?

Answer 16

Represents principle that the Const. applies ONLY to gov’t (“state”) action and NOT private conduct, UNLESS

EXCEPTIONS:

1) 13th Am (prohibiting slavery and involuntary servitude): Congress can prohibit private race discrimination and has broad pwrs to adopt laws to enforce this prvn

NOTE: Only slavery violates the 13th Am DIRECTLY; private discrimination can violate LAWS passed p/t the 13th Am

2) Commerce Cl: Can can apply Const. norms to private conduct if it affects interstate commerce (e.g. CRA of 1964) NOTE: Congress CANNOT use §5 of the 14th Am to regulate PRIVATE behavior; it can only regulate state/local gov’ts

Question 17

What are types of private action that don’t amount to state action?

Answer 17

Licensing; land; or gov’t funding

Question 18

Equal protection works how?

Answer 18

1) State - Equal Protection in 14A

2) Feds - Due Process of 5A

Question 19

What is the std for regulating speech in public OR designated public forums?

Answer 19

1) Public forums = gov’t properties that the gov’t is constitutionally req’dto make available for speech
2) Designated public forums = gov’t properties that the gov’t could close off to speech, but chooses VOLUNTARILY to open to speech

Std = Gov’t can pass “time, place or manner” regulations, IF they…

(i) CONTENT-NEUTRAL (subject matter OR viewpt);

If NOT content neutral, reg must meet STRICT SCRUTINY

(ii) NARROWLY TAILORED to serve an IMPORTANT gov’t interest; AND

Narrow tailoring does NOT mean that it has to be least restrictive alternative

E.g., Permit fee reqs for parades/demonstrations ARE unconst if city officials have DISCRETION in setting the amt of the fee

(iii) ALTERNATIVE CHANNELS of communication

Question 20

What is the Free Exercise Cl?

Answer 20

Prohibits gov’t from punishing someone on the basis of her religious beliefs

The gov’t may NOT deny benefits to individuals who quit their jobs for religious reasons

NOTE: CANNOT be used to challenge NEUTRAL laws of general appliccablity even if it condemns conduct the religion requires

Question 21

When is a law valid under the Establishment Cl?

Answer 21

Lemon Test: Gov’t action is valid under the Est. Cl, IF it… “S-E-X”

(i) has a SECULAR purpose
(ii) primary EFFECT must be NEITHER to advance nor prohibit religion the gov’t cannot discriminate AGAINST or AMONG religions
(iii) there must not be EXCESSIVE gov’t entanglement w/ religion

Otherwise it HAS to meet STRICT SCRUTINY

E.gs. Gov’t sponsored religious activity in public schools is unconst

Religious student and community groups MUST have the same access to school facilities as non-religious groups

School prayer (even if voluntary or silent) is unconst

The gov’t CAN give assistance to parochial schools, SO LONG AS it is NOT used for religious instruction (e.g. provide parents w/ vouchers, which they can use in parochial schools)

Question 22

What are always wrong answers?

Answer 22

1) Cong can’t delegate to admin agency
2) Priv & Immunities under 14A
3) Fed statute not applicable bc sm reserved to the states (except a few instances)
4) Cong has power to leg for gen welfare
5) Cong has power to act under its police power
6) Fed statute unconst under the 14A
7) 14A Due Process - prevails bc she has “right and not privilege”
8) Ex-post facto clause applied outside criminal context
9) Burden on interstate commerce
10) Upholds fed law under necessary and Proper clause without other law
11) Dismissal as political question
12) Inval under Const K clause
13) Pres viol duty to faithfully exec duties

Question 23

When are legislative vetos and line item vetos allowed?

Answer 23

NEVER! They are unconst.

Legislative veto: For Congress to act, there MUST be bicameralism (passage by both houses) AND presentment (veto/non-veto by POTUS)

Line-item veto: POTUS must sign or veto the bill in ITS ENTIRETY; NOT allowed to strike certain provisions

Question 24

How must federal taxes be instituted among states?

Answer 24

Uniformly

Question 25

When can Congress deny alien combatant habeas?

Answer 25

When there has been meaningful sub

Question 26

What legislative pwr can Congress delegate (to an ind. agency for e.g.)?

Answer 26

ALMOST ANYTHING!(as long there is an intelligible principle)

EXAM TIP: the non-delegation answer is almost ALWAYS wrong

Question 27

What is framework of Take Care clause under Youngstown?

Answer 27

(i) Where the President acts with the express or implied authority of Congress, his authority is at its maximum and his actions likely are valid;
(ii) Where the President acts where Congress is silent, his action will be upheld as long as the act does not take over the powers of another branch of the government or prevent another branch from carrying out its tasks; and
(iii) Where the President acts against the express will of Congress, he has little authority and his action likely is invalid, at least if Congress has acted constitutionally.

Question 28

How can Pres veto be overturned?

Answer 28

Two-thirds vote of both houses

Question 29

What is the scope of executive privilege?

Answer 29

POTUS has executive privilege for presidential papers and conversations, BUT such privilege MUST YIELD to other important gov’t interests (e.g. a criminal trial)

Question 30

How can POTUS appoint Cabinet members?

Answer 30

With advice and consent of Congress

Question 31

What factors do courts consider regarding whether fed law preempts state law?

Answer 31

(i) Was preemption clear and manifest purpose of Congress;
(ii) Comprehensiveness of fed program or existence of fed agency; and
(iii) Whether field traditionally within power of states.

Question 32

What is the Privileges and Immunities Cl of Art. IV?

Answer 32

No state or municipality may deny CITIZENS OF OTHER STATES the privileges and immunities it affords ITS OWN CITIZENS w/o a substantial justification

NOTE: corporations and aliens CANNOT sue under P&I of Art. IV (CITIZENS only)

E.g. can regulate that police officers have to live in state

Question 33

What is the Privileges and Immunities cl of the 14th Am?

Answer 33

Preserves a person’s RIGHT TO TRAVEL from one state to another

NOTE: Durational residence requirements often fails under STRICT SCRUTINY (e.g. must be in state 1 year

Question 34

What is the std for regulating speech in ltd public OR non-public forums?

Answer 34

Ltd public forums = gov’t properties that are ltd to certain groupsORdedicated to discussion of only some subjects

Non-public forums = gov’t properties that the gov’t can constitutionally close off to speech;
Examples:
(1) Military bases
(2) Areas outside prisons
(3) Public schools
(4) Sidewalks in front of POST OFFICE
(5) Airports (but can’t prohibit distribution of literature)

Std = Gov’t CAN regulate speech to reserve the forum for its intended use, BUT regs must be…

(i) viewpt neutral (don’t have to be subject matter neutral!); AND
(ii) reasonably related to a legitimate gov’t purpose (rational basis)

Question 35

When can the gov’t regulate symbolic speech?

Answer 35

The gov’t may regulate CONDUCT that communicates (symbolic speech) IF:

1) it has an IMPORTANT interest UNRELATED to the suppression of the msg; AND
2) the impact on communication is NO greater than NECESSARY to achieve the gov’t goal

Gov’t ALLOWED to regulate…

(i) Draft card burning (b/c of potential for national emergency)
(ii) Nude dancing
(iii) Contribution ltds to individual candidate campaigns

Gov’t NOT ALLOWED to regulate…
(i) Flag burning

(ii) Cross burning (AS LONG AS not done to threaten/intimidate)
(iii) Overall EXPENDITURE limits in campaigns (gov’t cannot ltd the amt a person/corp/union spends to get a candidate elected, SO LONG AS the expenditures are independent of the candidate and are not disguised)

Question 36

The Commerce Clause allows Congress to regulate what?

Answer 36

Activities that have a substantial economic effect on, or effect on movement in, interstate commerce

Question 37

What are limits on Congress’s investigative powers?

Answer 37

Must be limited to matter on which Congress can legislate.

Question 38

When can a state tax interstate commerce?

Answer 38

A state may ONLY tax activities IF:

1) A subtl nexus b/t the product or activity to be taxed AND the state
2) It’s not based solely on interstate commerce AND
3) it is fairly apportioned

States may NOT use their tax systems to help in-state businesses (e.g. a tax credit IF purchase ethanol from an in-state business)

Question 39

(Only) If there HAS been a deprivation (of liberty/ property), how can we tell if in-place procedures are sufficient?

Answer 39

1) The IMPORTANCE of the interest to the individual

Greater importance = more procedural protection needed

2) The ability of ADDITIONAL procedures to increase the accuracy of the fact-finding Will more procedures reduce erroneous deprivation?
3) The gov’ts interest in EFFICIENCY and SAVING $$

EXAMPLES w/ adequate process:

(i) Welfare benefits (notice; hearing)
(ii) Termination of parental custody rights (notice; hearing)
(iii) Non-emergency institutionalization (notice; hearing)
(iv) Social Security disability benefits termination (post-termination hearing)
(v) Reputational harm (NOT A LOSS of liberty)
(vi) Prisoners liberty interest (OFTEN not a loss of liberty)
(vii) Punitive damage awards (jury instruction; judicial review)
(viii) Non-citizen held as enemy combatant (ability to challenge continued detention)
(ix) US citizens facing charges abroad by US military (Habeas Corpus)
(x) Actual bias in a ct proceeding (recusal by the judge is necessary)
(xi) Firing gov’t employee (pretermination hearing)

Question 40

What ismootness?

Answer 40

Events after filing of suit end π’s injury; NO good b/c cases require a live controversy

3 EXCEPTIONS where the case is will NOT be dismissed…

1) Wrong capable of repetition BUT avoiding review b/c of it’s ltd time duration (e.g. an abortion claim as π will likely NOT be preg at time of trial)
2) Wrong is s/t voluntary cessation, but ∆ can freely resume (e.g. emp who gives a discrim test can easily stop/start whenever)
3) for class action suits: mootness of named π does NOT moot action, if injury still exits for AT LEAST one other class member

Question 41

What is the proper analysis if a state/local law DOES discriminate against out-of-staters?

Answer 41

FIRST: If law discriminates vs. out-of-staters w/ regard to important economic activities(e.g. earning a wage) OR civil liberties, the law violates the P&I Cl of Art. IV

Test - NECESSARY to achieve an important gov’t purpose

SECOND: If the law discriminatory law burdens interstate commerce, it violates the Dormant Commerce Cl

Test - (i) NECESSARY to achieve an important gov’t purpose; AND

(ii) Gov’t has shown there is NO LESS discriminatory alternative

Discriminatory - residentiary requirements for certain employees (pursuit of a livelihood)

TWO EXCEPTIONS where law would be upheld NWS:
(i) If Congress approves the law then it’s OK

(ii) State is a market participant (where the state/local gov’t CAN prefer its own citizens in receiving benefits form gov’t programs OR dealing w/ gov’t owned businesses)