Con Law

Question 1

First Rule for Commerce Clause

Answer 1

Under the Commerce Clause, Congress may regulate commerce between the states thru regulation of the channels of interstate commerce (pathways of travel and communications), the people and instrumentalities of interstate commerce, and activities that substantially affect interstate commerce.

Question 2

Rule for the substantial affects requirement in an activity that substantially affects interstate commerce?

Answer 2

The key to satisfying the substantial effects requirement is the threshold determination of whether the regulated activity is economic or commercial in nature.

Courts will uphold the regulation of intrastate activities if Congress had a rational basis that the activities, in the aggregate, have a substantial effect on interstate commerce.

Question 3

Rule for 11A

Answer 3

The Eleventh Amendment bars lawsuits against a state by a citizen of its own state, a citizen of another state, or citizens of a foreign state. This immunity extends to state agencies.

Question 4

Rule for statute abrogating 11A immunity

Answer 4

A federal statute abrogating the Eleventh Amendment immunity must do so unambiguously and under the enforcement power of the Fourteenth Amendment.

Question 5

Rule for state action

Answer 5

Under the Constitution, individuals are protected against wrongful conduct by the government, not private parties. Thus, state action is required to trigger an individual’s constitutional protections. However, state action may exists in cases of private parties when the private party carries on activities that are traditionally public functions and there are sufficient mutual contacts between the conduct of the private party and the government.

Question 6

Rule when leafleting is involved

Answer 6

Although state actors can regulate speech in public forums on a content-neutral basis, they cannot extend punishment to a distributor of leaflets because of littering by a third party.

Question 7

1A rule for public schools

Answer 7

Under the First Amendment, children in public schools have some First Amendment rights.

Question 8

Rule for flag salute ceremony in public schools

Answer 8

The Supreme Court has held that public schools may not force their students to participate in a flag salute ceremony when it offends their political or religious beliefs.

Question 9

Rule for traditional public forum

Answer 9

Public streets and sidewalks have long been held to be a traditional public forum. Any state regulation of speech in a public forum must be narrowly tailored to achieve a compelling governmental interest (strict scrutiny) and leave open alternative channels of expression.

Question 10

Rule for suits against state officials in “official-capacity”

Answer 10

A suit against public officials in their official capacity seeking an injunction may be maintained.

Question 11

Rule for Dormant Commerce clause

Answer 11

A state law that discriminates against interstate commerce is subject to strict scrutiny. If the state law imposes an incidental burden on interstate commerce, it is unconstitutional.

Question 12

Rule for Equal Protection

Answer 12

Under the Equal Protection clause of the Fourteenth Amendment, the government shall not deny any person equal protection of the laws.

Question 13

Rule for state immunity from federal law

Answer 13

Under the Tenth Amendment, the federal government cannot require States to enact and enforce a federal regulation.

Under the federalism principle of the Tenth Amendment, federal government cannot commandeer state resources.

Question 14

Rule for federal government placing conditions on funds to states

Answer 14

Under Congress’ Spending power, Congress may use a threat to withhold federal money to induce a state to act in a certain manner, so long as it is not unduly coercive. (less than 10% of total state budge is not unduly coercive)

Question 15

Rule for congress’ Spending Power

Answer 15

Congress’s spending power must be used for the common defense or general welfare related to a federal interest.

Question 16

Rule for scrutiny of gender-based discrimination

Answer 16

Laws that make classification based on gender are reviewed under intermediate scrutiny. In intermediate scrutiny, the government has the burden of proving the regulation is substantially related to an important governmental interest.

Question 17

Rule for remedying past race and gender discrimination

Answer 17

Remedying past race and gender discrimination is an important governmental interest. The regulation must address the specific discrimination, not just general discrimination.

Question 18

Rule for separate but equal facilities

Answer 18

In certain cases, a state may provide separate facilities for woman and men, so long as there is an exceedingly persuasive justification and the separate facilities are substantially equivalent.

Question 19

Rule for EP when Race, Ethnicity, National Origin, or Alienage is involved

Answer 19

Under the Equal Protection clause of the Fourteenth amendment, no state shall deny any person the equal protection of the laws. The level of scrutiny for review of any alleged violation depends on the classification of discrimination.

When the classification is based on a suspect class, such as [R, E, NO, A] the strict scrutiny applies. Under strict scrutiny, the government has the burden of proving the the law is the least restrictive means necessary to achieve a compelling governmental interest for the discrimination.

Question 20

Rule for EP when Gender and Illegitimacy are involved

Answer 20

Under the Equal Protection clause of the Fourteenth amendment, no state shall deny any person the equal protection of the laws. The level of scrutiny for review of any alleged violation depends on the classification of discrimination.

When the classification is based on a quasi-suspect classification, such as [Gender/Illegitimacy], the intermediate scrutiny standard applies. Under intermediate scrutiny, the government has the burden of proving the law is substantially related to an important governmental interest.

Question 21

Rule for EP when Age or NOT RENOA/Gender/Illegitimacy is involved

Answer 21

Under the Equal Protection clause of the Fourteenth amendment, no state shall deny any person the equal protection of the laws. The level of scrutiny for review of any alleged violation depends on the classification of discrimination.

When the classification is based on a classification, such as [Age, NOT Suspect or Quasi-suspect], the rational basis standard applies. Under rational basis scrutiny, the challenger has the burden of proving the law is rationally related to a legitimate governmental interest.

Question 22

Rule for Takings Clause/Eminent Domain

Answer 22

Under the Fifth Amendment, neither the federal government nor the state may take private property for public use without just compensation.

An exaction exists when the government enacts a regulation that restricts the owner’s use of property as a condition to allowing the owner to develop the land. These are takings unless the government can show a legitimate government interest and a rough proportionality.

Question 23

Rule for Inciting imminent Lawless Action

Answer 23

Speech can be restricted if it creates a clear and present danger of imminent lawless action. It must be shown that imminent illegal conduct is likely and the speaker intended to cause it.

Question 24

Rule for True Threats and fighting Words

Answer 24

Speech can be restricted if it constitutes a true threat or fighting words so long as the regulation is not designed to punish only certain viewpoints.

Fighting words are personally abusive words that are likely to incite immediate physical retaliation in an average person. Words that are merely insulting or annoying are not enough.

Question 25

rule for Obscene speech

Answer 25

Obscene speech is not protected. Under the Miller test, speech is obscene if it describes or depicts sexual conduct that, taken as a whole, by the average person, appeals to the prurient interest in sex, is patiently offensive, and lacks serious, literary, artistic, political or scientific value.

Question 26

Rule for commercial speech

Answer 26

Generally, commercial speech is afforded First Amendment protections it is is truthful. If the commercial speech proposes unlawful activity or is false, misleading, or fraudulent, it may be restricted as unprotected speech.

Question 27

Rule for Congress’s power to enforce 13A, 14A, and 15A

Answer 27

Congress has the power to enforce the provisions of the:
-13th amendment’s abolition of slavery;
-14th amendment’s protection of privileges and immunities, due process, and equal protection;
-15th amendment’s right to vote regardless of face.
Congress can legislate under this enforcement power even if it prohibits unconstitutional conduct, so long as it is congruent and proportional to the injury to be prevented or remedied.

Question 28

Rule for vagueness and overbreadth

Answer 28

Laws that are unduly vague or overbroad are unconstitutional because they apply to constitutionally protected speech. A statute is unduly vague if it does not put the public on reasonable notice as to what is prohibited. A statute is overbroad if it regulates more speech than constitutionally permitted.

Question 29

General rule for Content-based restrictions of speech

Answer 29

Government regulations regarding the content of speech (subject matter or viewpoint) must satisfy strict scrutiny. Under strict scrutiny, the government must show that the regulation is narrowly tailored to achieve a compelling government interest in the least restrictive means necessary.

Question 30

General rule for Content-Neutral restrictions of speech

Answer 30

Government MAY regulate the time, place, and manner of content-neutral speech, if the regulation satisfies intermediate scrutiny. Under intermediate scrutiny, the government must show that the regulation is narrowly tailored to achieve an important government interest AND there are alternative channels of communication.