Themis Rules

Question 1

Name and define the two types of public forums.

Answer 1

(1) Traditional public forum: A forum historically associated with expression, such as sidewalks, streets, and parks
(2) Designated/Limited public forum: One that is not traditionally a public forum, but that the government chooses to open for such use

Question 2

(1) When can the President invoke executive immunity; and

(2) When is the President not protected by executive immunity?

Answer 2

(1) The President may not be sued for civil damages with regard to any acts performed as part of the President’s official responsibilities.
(2) The President has no immunity for civil actions based on conduct that occurred before the President took office or completely unrelated to carrying out the job.

Question 3

How does aggregation come into play when considering the “substantial economic effect” of an activity for purposes of the Commerce Clause?

Answer 3

Congress has the power to regulate any activity that in and of itself, or in combination with other activities, has a substantial economic effect upon interstate commerce. Aggregation deals with the “in combination with other activities” part of the rule. While one farmer growing wheat on his farm with no intent to sell to anyone seems to be an isolated event, that can change when combined with other farmers who share that same intent. These isolated events can “in the aggregate” have a substantial effect on interstate commerce (or lack thereof) and be regulated by Congress.

Question 4

What is a legislative veto, and is it constitutional?

Answer 4

Legislative vetoes arise when Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution. Such acts are unconstitutional.

Question 5

Under Equal Protection, when is intermediate scrutiny applied?

Answer 5

When a classification is based on gender or status as a nonmarital child (legitimacy)

Note: In gender cases, there must be an “exceedingly persuasive justification” for the classification.

Question 6

Name the four situations where a federal or state statute will be struck down as being ex post facto.

Answer 6

If the law:

(i) Creates a new crime and applies retroactively;
(ii) Increases the penalty for past conduct;
(iii) Deprives the defendant of a defense available at the time the act was committed; or
(iv) Decreases the prosecution’s burden of proof required for a conviction below what was required when the alleged offense was committed.

Question 7

For what types of offenses can the President exercise the Pardon Power?

Answer 7

The Constitution grants the President the power to “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” This power only applies to federal cases- the President may not pardon anyone for state offenses.

Question 8

In what two scenarios does private conduct amount to state action?

Answer 8

(i) When a private person carries on activities that are traditionally performed exclusively by the state; and
(ii) When the government is significantly involved in private discrimination.

Question 9

What is required for a governmental affirmative action program based on race to be constitutional?

Answer 9

To pass strict scrutiny:

(i) The government must itself be guilty of specific past discrimination against the group it is seeking to favor; and
(ii) The remedy must be narrowly tailored to end that discrimination and eliminate its effects.

Question 10

What suits are barred by the 11th Amendment?

Answer 10

(i) Citizens of one state suing another state in federal court;
(ii) Suits in federal court against state officials for violating state law; and
(iii) Citizens suing their own state in federal court.

Note: These are subject to exceptions.

Question 11

What standard applies to laws dealing with a fundamental right?

Answer 11

Strict scrutiny

Question 12

What level of scrutiny applies in the following situations:

(1) State law intentionally targets religious conduct
(2) Neutral law that has an impact on religious conduct

Answer 12

(1) Strict scrutiny

(2) Rational basis

Question 13

What must the plaintiff show in order to trigger strict or intermediate scrutiny under the Equal Protection Clause?

Answer 13

Discriminatory intent, which can be shown facially, as applied, or when there is a discriminatory motive

Question 14

What is the difference between the Privileges and Immunities Clause of Article IV and the Privileges or Immunities Clause of the Fourteenth Amendment?

Answer 14

Article IV applies to state citizenship and the Fourteenth Amendment applies to national citizenship.

Note: The Fourteenth Amendment’s Privileges or Immunities Clause applies, in practice, only to the right to travel.

Question 15

Name the three requirements that must be met in order for a restriction on the time, place, or manner of speech to be permissible.

Answer 15

The restriction must:

(i) Be content-neutral as to both subject matter and viewpoint;
(ii) Be narrowly tailored serve a significant state interest; and
(iii) Leave open ample alternative channels for communication of the information.

Question 16

What is a pocket veto?

Answer 16

If 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, this is known as a “pocket veto” and the bill does not become law. This cannot be overridden.

Question 17

What four requirements must be met in order for government regulation of expressive conduct to be upheld?

Answer 17

(i) The regulation is within the government’s power to enact;
(ii) The regulation furthers an important governmental interest;
(iii) The governmental interest is unrelated to the suppression of ideas; and
(iv) The burden on speech is no greater than necessary.

Question 18

What clause of the US Constitution grants Congress the power to enact legislation to execute authority granted to a branch of the federal government?

Answer 18

The Necessary and Proper Clause grants Congress the power to enact any legislation necessary and proper to execute any authority granted to any branch of the federal government.

Note: The Necessary and Proper clause is not an independent source of power. It simply permits Congress to use otherwise designated authority to be exercised fully.

Question 19

What is the difference between the Due Process Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment?

Answer 19

The Due Process Clause of the Fifth Amendment applies against the federal government, and the Due Process Clause of the Fourteenth Amendment applies against the states.

Question 20

What standard is used to determine whether a tax by Congress should be upheld?

Answer 20

The tax only need be rationally related (or have a reasonable relationship) to revenue production.

Question 21

Define rational basis.

Answer 21

A law meets the rational basis standard of review if it is rationally related to a legitimate state interest.

Note: This test generally results in the law being upheld.

Question 22

Name the five categories where the government is permitted to restrict speech on the basis of content.

Answer 22

(i) Obscenity;
(ii) Subversive speech;
(iii) Fighting Words;
(iv) Defamation; and
(v) Commercial speech.

Question 23

In what three circumstances is federal preemption implied

Answer 23

(i) Congress intended for federal law to occupy the field;
(ii) The state law directly conflicts with federal law; or
(iii) The state law indirectly conflicts with federal law by creating an obstacle or frustrating the accomplishment of that law’s purpose.

Question 24

When is congress able to regulate purely private conduct?

Answer 24

When it adopts legislation rationally related to eliminating racial discrimination (i.e., “badges or incidents” of slavery) pursuant to the Thirteenth Amendment.

Question 25

Compare and contrast ripeness and mootness.

Answer 25

Ripeness and mootness both deal with the timeliness of an action for judicial review purposes. Ripeness is an action that is brought too soon, and mootness is an action that is brought too late, as there is no longer a case or controversy.

Question 26

What is an advisory opinion and why do federal courts not render them?

Answer 26

An advisory opinion is an opinion issued by a court or a commission (like an election commission) that does not have the effect of adjudicating a specific legal case, but merely advises on the constitutionality or interpretation of a law.

Federal courts do not render advisory opinions because federal courts only render decisions where an actual case or controversy exists.

Question 27

Over what types of cases does the Supreme Court have original jurisdiction?

Answer 27

The Supreme Court has original jurisdiction over:

(i) All cases affecting ambassadors
(ii) Other public ministers and consuls
(iii) Those in which a state is a party

Question 28

What powers does Congress use to encourage state action that it cannot directly compel?

Answer 28

The Taxing and Spending Power

Note: Congressional encouragement may not exceed the point at which pressure turns into compulsion.

Question 29

Define strict scrutiny.

Answer 29

The law must be the least restrictive means to achieve a compelling governmental interest.

Question 30

Generally, a person who is intentionally being deprived of life, liberty or property, is entitled to what two procedural due process rights?

Answer 30

The rights to notice and a hearing

Question 31

When is there a legit property interest in continued public employment?

Answer 31

When there is an employment contract or a clear understanding that the employee may be fired only for cause

Note: Even those employees who lack any entitlement to continued employment cannot be discharged for reasons that in and of themselves violate the Constitution.

Question 32

What requirements must be met for a government to be permitted to regulate speech-related activities in nonpublic forums?

Answer 32

The regulation must be:

(i) Viewpoint-neutral; and
(ii) Reasonably related to a legitimate governmental interest.

Question 33

What does the Federal Property Clause give Congress the power to do?

Answer 33

The Federal Property Clause gives Congress the power to dispose of and make all necessary rules and regulations respecting the territory or other property of the United States.

There is no express limit on Congress’s power to dispose of property, but Congress may only take property for public use with just compensation.

Question 34

Define intermediate scrutiny

Answer 34

To be constitutional, the law must be substantially related to an important governmental interest.

Question 35

In the absence of federal regulation, state regulation of commerce is valid so long as:

Answer 35

(i) There is no discrimination against out-of-state interests;
(ii) The regulation does not unduly burden interstate commerce; and
(iii) The regulation does not apply to wholly extraterritorial activity.

Question 36

What are the two means for establishing appellate jurisdiction in the Supreme Court?

Answer 36

1. Certiorari (discretionary review)

2. Direct appeal (mandatory)

Question 37

What is the “nondelegation doctrine,” and in what circumstances is an exception to the doctrine made?

Answer 37

A principle that states Congress may not delegate legislative power to any other branch of government. However, Congress can delegate some of its authority to the executive branch, so long as Congress specifies an “intelligible principle.”

Note: The power of impeachment and the power to declare war are nondelegable.

Question 38

What does it mean in terms of mootness when a case is capable of repetition, yet evading review?

Answer 38

Toggle the navigation
Themis Bar Review
MBE CONSTITUTIONAL LAW
The correct answer is

A case will not be dismissed as moot if there is a reasonable expectation that the same complaining party will be subject to the same action again (capable of repetition) but that the action will not last long enough to work its way through the judicial system (yet evading review).

Note: Roe v. Wade provides the classic constitutional example. By the time the woman seeking to terminate her pregnancy finally came before the Supreme Court, she was no longer pregnant, therefore the argument was made that her claim was moot. However, she could once again find herself in a similar situation, and would again be without judicial recourse.

Question 39

When may a state impose an ad valorem tax on personal property?

Answer 39

Once the goods are stopped for a business purpose (i.e., obtain a “taxable situs”)

Note: A state may not levy ad valorem taxes on goods in the course of transit.

Question 40

When can states tax the federal government?

Answer 40

When that tax is indirect and does not unreasonably burden the federal government (e.g., state income taxes on federal employees)

Question 41

Name three actions not barred by the Eleventh Amendment

Answer 41

The Eleventh Amendment does not bar:

(i) Actions against local governments
(ii) Actions by the United States government or other state governments
(iii) Bankruptcy proceedings that impact state finances

Question 42

When discussing third party standing, what are the two requirements for an organization to bring an action on behalf of its members?

Answer 42

In order for an organization to bring an action on behalf of its members, the organization needs to show:

(i) Its members would have standing to sue in their own right; and
(ii) The interests at stake are germane to the organization’s purpose.

Question 43

When does federal law expressly preempt state law?

Answer 43

When (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

Question 44

When does a taxpayer have standing to file a federal lawsuit?

Answer 44

A taxpayer has standing when the taxpayer challenges governmental expenditures as violating the Establishment Clause. A taxpayer also has standing to litigate whether, or how much, she owes on her tax bill.

Question 45

How is the President’s veto power exercised?

Answer 45

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

Question 46

What is are the four suspect classifications for whom strict scrutiny will apply in an Equal Protection claim?

Answer 46

(i) Race
(ii) Ethnicity
(iii) National origin
(iv) If the classification is by state law, alienage

Question 47

What is the scope of the President’s power to remove executive officials?

Answer 47

The Constitution says nothing about the President’s power to remove executive officers, but it is generally accepted that the President may remove any executive appointee without cause (and without Senate approval).

Note: federal judges are excepted and hold their offices during good behavior and until impeached.

Question 48

What is required to trigger constitutional protections (with the exception of the Thirteenth Amendment)?

Answer 48

State action

Question 49

A political question not subject to judicial review arises when: [Name the two possibilities.]

Answer 49

(i) The Constitution has assigned decision making on this subject to a different branch of the government; or
(ii) The matter is inherently not one that the judiciary can decide.

Question 50

The federal government may not commandeer state legislators. What does this mean?

Answer 50

Congress cannot command state legislature to enact specific legislation or enforce a federal regulatory program, and it may not circumvent that restriction by conscripting a state executive officer directly.

Note: While Congress cannot directly command (either by compelling a state to enact legislation or prohibiting a state from enacting new laws), it can use its taxing and spending powers to encourage state action.

Question 51

What is provided under the Tenth Amendment?

Answer 51

The Tenth Amendment provides that all powers not assigned by the Constitution to the federal government are reserved to the states, or to the people.

Question 52

Under the Lemon v. Kurtzman test, what three requirements must be met for a governmental action that benefits religion to be found valid?

Answer 52

(i) It has a secular purpose;
(ii) Its principal or primary effect neither advances nor inhibits religion; and
(iii) It does not result in excessive government entanglement with religion.

Question 53

(A) If the Constitution and a treaty conflict, which controls?

(B) If a treaty and an act of Congress conflict, which controls?

Answer 53

(A) The Constitution is superior to a treaty.

(B) The most recently adopted will control.

Question 54

What is a line item veto?

Answer 54

A line item veto is where the President refuses only part of a bill and approves the rest. Line item vetos violate the Presentment Clause and are therefore unconstitutional.

Question 55

List three fundamental rights?

Answer 55

(i) The right to travel;
(ii) The right to vote; and
(iii) The right to privacy (including marriage, sexual relations, abortion, child rearing, and the right of related persons to live together).

Question 56

A state may impose a nondiscriminatory tax on interstate commerce, as long as the following three requirements are met:

Answer 56

(i) There is a substantial nexus between the taxing state and the property or activity to be taxed;
(ii) There must be fair apportionment of tax liability among states; and
(iii) The tax must be fairly related to the services provided by the taxing state.

Question 57

What does it mean for a judgment to rest on “adequate and independent state grounds”?

Answer 57

The state law grounds fully resolve the matter (i.e., be adequate) and do not incorporate a federal standard by reference (i.e., be independent). The U.S. Supreme Court may not review a final state-court judgment that rests on adequate and independent state grounds.

Question 58

Define the Takings Clause of the Fifth Amendment.

Answer 58

Private property may not “be taken for public use, without just compensation.”

Question 59

How does injunctive relief operate as an exception to the application of the Eleventh Amendment?

Answer 59

When a state official, rather than the state itself, is named as the defendant, the state official may be enjoined from enforcing a state law that violates federal law, or may be compelled to act in accord with federal law despite state law to the contrary.

Question 60

What type of immunity does a judge have for judicial acts resulting in civil liability?

Answer 60

Absolute immunity

Question 61

There is a general rule that states cannot enact legislation that discriminates against out-of-state commerce. What are the five exceptions to this rule?

Answer 61

(i) Necessary to important state interest and no other nondiscriminatory means are available
(ii) State as a Market Participant
(iii) Traditional government function exception
(iv) Subsidies
(v) Federal/Congressional Approval

Question 62

When may a state tax instrumentalities of commerce?

Answer 62

Only when:

(i) The instrumentality has a taxable situs within (or sufficient contacts with) the taxing state; and
(ii) The tax is fairly apportioned to the amount of time the instrumentality is in the state.

Question 63

Who may impeach the president and who may convict the president?

Answer 63

The House of Representatives determines what constitutes “high crimes and misdemeanors” and may impeach by a majority vote. The Senate tries the impeached official, and a 2/3 vote is necessary for conviction.

Question 64

Under the commerce power, what three areas can Congress regulate as interstate commerce?

Answer 64

(i) The channels of interstate commerce;
(ii) The instrumentalities of interstate commerce; and
(iii) Intrastate and interstate activity (economic or commercial) that has a substantial effect on interstate commerce.

Note: Remember that Congress may regulate intrastate activity that does not have a direct economic impact on interstate commerce as long as there is a rational basis for concluding that the “total incidence” of the activity in the aggregate substantially affects interstate commerce.

Question 65

Under equal protection, what are the two instances in which the court will apply strict scrutiny?

Answer 65

When the state action in question involves a fundamental right or suspect classification

Question 66

How does consent come into play as an exception to the application of the Eleventh Amendment?

Answer 66

A state may consent to suit by waiving its Eleventh Amendment protection.

Question 67

What does it mean for a claim to be ripe for litigation?

Answer 67

The plaintiff must have experienced a real injury (or imminent threat thereof). A federal court will not consider a claim before it has fully developed.