Constitutional Law

Question 1

When does a state tax unduly burden interstate commerce?

Answer 1

A state tax does NOT unduly burden interstate commerce if:

(1) There is a substantial nexus between the activity taxed and the taxing state;
- –Note: A “substantial nexus” exists when a business avails itself of the privilege of doing business in the state. (physical presence in the state is not necessary)

(2) The tax is fairly apportioned; and
- -Note: There is “fair apportionment” if a tax is based on the extent of the taxable activity or property in the state.

(3) The tax fairly relates to services or benefits provided by the state.

Question 2

Obscenity

Answer 2

Is not protected speech under the 1st Amendment.

It is defined by the Supreme Court as a description or depiction of sexual conduct that, taken as a whole, by the average person, applying contemporary standards, appeals to the prurient interest in sex, portrays sex in a patently offensive way, and - using a national reasonable person standard - does not have serious literary, artistic, political, or scientific value.

Question 3

Confession made by Co-Defendant

Answer 3

When two persons are tried together and one has given a confession implicating the other, the general rule is that the 6th Amendment right to confront the adverse witnesses prohibits the use of such a statement.

-This problem arises because of the inability of the non-confessing D to compel the confessing co-defendant to take the stand for cross-examination at their joint trial.

Question 4

Exception(s) to General Rule for Confession made by Co-Defendant

Answer 4

The statement may be admitted if: (1) all portions of the statement referring to the other D can be eliminated (so that there’s no indication of D’s involvement), (2) the confessing D takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts, or (3) the confession of the non-testifying co-D is being used to rebut D’s claim that his confession was obtained coercively, in which case the jury must be instructed as to the purpose of the admission.

Question 5

Does the Free Exercise Clause afford a right to religious exemption from a neutral law?

Answer 5

No. The Free Exercise Clause does not afford a right to a religious exemption from a neutral law that happens to impose a substantial burden on a religious practice, if the law is otherwise constitutionally applied to persons who engage (or fail to engage) in the particular conduct for non-religious reasons.

Question 6

The Enabling Clause

Answer 6

The Thirteenth Amendment prohibits slavery. The Enabling Clause of the amendment has been held to confer on Congress the authority to proscribe almost any private racially discriminatory action that can be characterized as a badge or incident of slavery.

Question 7

Adequate and Independent State Grounds

Answer 7

The Supreme Court will not exercise jurisdiction if the state court judgement is based on adequate and independent state grounds - even if federal issues are involved.

—State law grounds are adequate if they are fully dispositive of the case.

—They are independent if the decision is not based on federal case interpretations of identical federal provisions.

Question 8

No Police Power

Answer 8

Congress has no general police power (that is, it has no general power to legislate for the health, safety, and welfare of the nation).

However, Congress has police type powers over the District of Columbia, federal lands, military bases, and Indian reservations.

—If an answer choice attempts to support federal action on the basis of the police power, see whether the facts state that the action pertains to the D.O.C. or other federal possessions. If not, it’s a wrong choice.

Question 9

Enumerated and Implied Powers

Answer 9

Congress can exercise the powers enumerated in the Constitution plus any powers necessary and proper to carry out any of its enumerated powers.

Question 10

Necessary and Proper Clause

Answer 10

Congress has the power to make all laws necessary and proper (appropriate and rational) to carry out any of legislative powers enumerated in Article I, as long as that law does not violate another provision of the Constitution.

—Note: The Necessary and Proper Clause standing alone can’t support federal law. It must work in conjunction w/ another federal power.

—So, an answer choice that states a law is supported by the Necessary and Proper Clause will be incorrect unless another federal power is linked to it in the question.

Question 11

Taxing and Spending Power

Answer 11

Congress has the power to tax and spend to provide for the general welfare. (But Congress has no general police power to legislate for health, safety, and welfare — it must be connected to tax + spending power)

—Taxing and spending may be for any public purpose not prohibited by the Constitution. (Can use this power indirectly in many ways)

—This is Congress’ strongest power (even stronger than the Commerce Clause)

—An answer choice that states “under the federal government’s power to tax and spend for the general welfare” is a great option.

Question 12

Spending Power Conditions

Answer 12

Congress can impose conditions on the grant of money to state or local governments.

Such conditions are valid if they: (1) are clearly stated; (2) relate to the purpose of the program; (3) are not unduly coercive; and (4) do not otherwise violate the Constitution.

—Note: It was held unduly coercive for the federal government to threaten to withhold current Medicaid funding to the states (over 10% of state budgets) if the states refused to participate in a Medicaid expansion program.

—A threat to withhold all federal funding given to states is unduly coercive.

Question 13

Congress Power to Prohibit Private Discrimination

Answer 13

Under the commerce power, Congress may prohibit private discrimination in activities that might have a substantial effect on interstate commerce.

—E.g., Congress bars racial discrimination at places of public accommodation.

—E.g., Congress requires all employers, including state governments, to comply w/ federal minimum wage and overtime provisions.

Question 14

Pardon Power

Answer 14

The United States Constitution grants the President the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. This pardon power is not subject to control by Congress, and it includes the power to commute a sentence on any conditions the President chooses (as long as the conditions do not offend some other constitutional provision).

–Even if the action of issuing the pardon amounted to the crime of obstruction of justice (a questionable assumption), the pardon itself would not be invalidated. The power to pardon is a constitutional power, superior to laws found in statutes.

Question 15

Limited or Non-Public Forums

Answer 15

Other than streets, sidewalks, parks, and designated public forums, most public property (including a court building and its grounds) is considered to be a limited public forum or a nonpublic forum.

The government can regulate speech in such a forum to reserve the forum for its intended use. Regulations will be upheld as long as they are (i) viewpoint neutral, and (ii) reasonably related to a legitimate government purpose.

Question 16

Can Congress subpoena the President’s personal records?

Answer 16

Yes. Congress can subpoena the President’s personal records, but it needs to establish that the subpoena advances a legitimate legislative purpose.

Question 17

The Contract Clause

Answer 17

The Contract Clause prevents only SUBSTANTIAL impairments of existing contracts by state legislation, and only if the legislation does not serve an important and legitimate public interest or is not a reasonable and narrowly tailored means of promoting that interest.

Question 18

Age Discrimination

Answer 18

Because age is neither a suspect classification nor the type of discrimination entitled to an intermediate level of constitutional scrutiny, the rational basis test applies in an equal protection analysis.

Under that test, the challenger must show that the law has no rational basis, and the statute will be presumed constitutional unless a clear showing of arbitrariness and irrationality is made.

Question 19

What is the analysis for commercial speech cases?

Answer 19

There is a four-part analysis for commercial speech cases:

1) whether the commercial speech concerns lawful activity and is not misleading;
2) whether the asserted government interest is substantial;
3) whether the regulation directly advances the government interest; and
4) whether the regulation is no more restrictive than necessary.

–The regulation need not be the least restrictive alternative means available, rather there must be a reasonable “fit” between the goal and the means chosen

–The four-part test is best described as a form of intermediate scrutiny.

Question 20

Can the President unilaterally cancel appropriations measure passed by Congress?

Answer 20

No. The President may not unilaterally cancel the legislation. Under Article 2, Section 3, the President has an obligation to take care that the laws are faithfully executed.

Neither the President’s foreign affairs powers— nor the President’s power as commander-in-chief— justify the termination of an appropriations measure passed under Congress’ spending power.

–Note: Where Congress passes a measure to appropriate federal funding, the taxing and spending power is implicated rather than the federal commerce power.

Question 21

Is a municipal ordinance that prohibits the door-to-door solicitation of contributions by charitable organizations that does not use at least 75% of their receipts for charitable purposes constitutional?

Answer 21

No. The Court should declare the ordinance unconstitutional, because charitable solicitations for funds in residential areas are within the protection of the First Amendment.

In this case, the Supreme Court stated that the precedent of earlier decisions established clearly that the charitable appeal for funds involves a variety of speech interests that are within the protection of the First Amendment.

The Court concluded that the ordinance unduly intruded on the rights to free speech because the justifications for the restriction were not sufficiently compelling.

Question 22

Can the manner of speech in public forums be restricted?

Answer 22

Yes. The government can place reasonable restrictions on time, place, and manner of speech in public forums and the regulation must not be applied in a discriminatory manner.

Question 23

Does the First Amendment allow the press to print any information that it legally obtains?

Answer 23

No. That is too broad of a statement. The freedom of the press is not absolute. For example, the press would not be allowed to reprint copyrighted material regardless of whether it was legally obtained.

Question 24

Can the media be punished for publishing a true fact once it is either lawfully obtained from the public records or is otherwise released to the public inadvertently?

Answer 24

No. The media may not be punished for publishing a true fact once it is lawfully obtained from the public records or is otherwise released to the public.

The Constitution prohibits Congress or the states from abridging freedom of the press. While this freedom is no greater than the freedom of speech granted to all citizens, the information printed by the paper here is protected.

Question 25

Does Congress have the power to regulate the Supreme Court’s jurisdiction to hear cases?

Answer 25

Congress has the power to regulate the appellate jurisdiction of the Supreme Court, and since the Supreme Court’s primary role as an appellate court is to determine constitutional issues, it follows that Congress can eliminate from the Supreme Court’s review the determination of certain cases involving constitutional issues, as long as jurisdiction remains in some lower federal courts.

–Note: Congress may not, however, eliminate all avenues for Supreme Court review of issues vested within the federal judicial power.

Furthermore, Congress’s power is limited to regulating the Supreme Court’s appellate jurisdiction; it has no power to restrict or enlarge the Court’s original jurisdiction.

–Modification of the Court’s original jurisdiction would require a constitutional amendment.

Question 26

Congress’ Power to Regulate Intrastate Activities

Answer 26

Congress’s power to regulate commerce is very broad and includes the power to regulate activities that have a substantial effect on interstate commerce. A regulation on intrastate activity will be upheld if it regulates an economic or commercial activity and the court can conceive of a rational basis on which Congress could conclude that the activity, in aggregate, substantially affects interstate commerce.

Question 27

What is the Full Faith and Credit Clause?

Answer 27

Under the Full Faith and Credit Clause of the United States Constitution, states must give full faith and credit to the judgment of another state if the judgment is final, on the merits, and rendered by a court with jurisdiction.

Question 28

What is the doctrine of adequate and independent grounds?

Answer 28

The doctrine of adequate and independent grounds comes into play when the United States Supreme Court is asked to review a state court ruling in a case that might have constitutional dimensions, but has been disposed of on state law grounds that are adequate to support the judgment and independent of any federal law.

Question 29

Content-Based Regulations

Answer 29

Content-based regulations are subject to strict scrutiny. These regulations are presumptively unconstitutional and thus invalid (unless they are regulations on unprotected speech).

A regulation is content-based if it restricts speech based on its subject matter OR its viewpoint.

–E.g., a ban on the sale of violent video games to minors

Question 30

Content-Neutral Regulations

Answer 30

Content-neutral restrictions on speech are restrictions that are BOTH subject-matter neutral and viewpoint-neutral.

These are generally subject to intermediate scrutiny (they must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary (or must be narrowly tailored) to further those interests.

–Oftentimes, content-neutral restrictions are found in the form of time, place, and manner restrictions (they are restrictions on the conduct related to speech)

Question 31

Traditional Public Forums and Designated Public Forums

Answer 31

If the regulation on a traditional public forum or designated public forum is CONTENT-BASED, it will be subject to STRICT SCRUTINY.

–But if it’s CONTENT-NEUTRAL (that is, both subject matter-neutral + viewpoint-neutral, usually going to be a time, place, or manner restriction), it only needs to meet INTERMEDIATE SCRUTINY.

INTERMEDIATE SCRUTINY in this context means it must:

(1) Be narrowly tailored to serve an important government interest; and
(2) Leave open alternative channels of communication.

Question 32

Public Forum

Answer 32

Public property (that is, government-owned property) that has historically been open to speech-related activities (e.g., streets, sidewalks, and public parks) is called a PUBLIC FORUM.

Question 33

Designated Public Forum

Answer 33

Public property that has not historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent or limited basis, by practice or policy (e.g., a town hall open for use by social, civic, or recreation groups), is called a DESIGNATED PUBLIC FORUM.

Question 34

Injunctions Against Speech in Public Forums

Answer 34

Are treated the same as other speech restrictions.

–If the injunction is content-based, then it’s subject to strict scrutiny (must be necessary to achieve a compelling government interest).

–If the injunction is content-neutral, then it’s subject to intermediate scrutiny (it must burden no more speech than is necessary [or must be narrowly tailored] to achieve an important government interest).

Question 35

Limited Public Forum

Answer 35

Limited public forums are government forums not historically open generally for speech and assembly but opened for specific speech activity, like a school gym opened to host a debate on a particular community issue, or a public university’s funding of student publications.

Question 36

Nonpublic Forums

Answer 36

Nonpublic forums are government property not historically open generally for speech and assembly and not held open for specific speech activities, such as military bases or government workplaces.

Question 37

When may a writ of certiorari be granted?

Answer 37

The Supreme Court may grant certiorari to review a case from the highest court in a state that can render an opinion on the matter if a state statute’s validity is called into question under the federal Constitution.

–The Court may decide the federal issues, but cannot rule on the state law issues.

Question 38

Article IV - Interstate Privileges and Immunities Clause

Answer 38

The Interstate Privileges and Immunities Clause of Article IV prohibits discrimination by a state against out-of-state citizens when the discrimination concerns either: (1) important commercial activities (such as the pursuit of a livelihood); or (2) fundamental rights. However, the Clause applies only if the discrimination is intentionally protectionist in nature.

–Note: If the state law burdens an important commercial activity or fundamental right, it will be invalid UNLESS: (1) the law is necessary to achieve an important government purpose, and (2) there are no less restrictive means available.

[In effect, the state must show that nonresidents either cause or are part of the problem that the state is attempting to solve and that there are no less restrictive means to solve the problem]

–Corporations and aliens are NOT protected by this Clause.

–Recall: The Article IV Privileges and Immunities Clause and the Dormant Commerce Clause tend to mutually reinforce each other. Be sure to consider both in analyzing bar exam questions.

Question 39

The 14th Amendment Privileges and Immunities Clause

Answer 39

States may not deny their citizens the privileges and immunities of national citizenship (e.g., the right to petition Congress for redress of grievances, the right to vote for federal officers, and the right to interstate travel).

–Corporations are NOT protected by this Clause.

–Remember: Congress uses the 14th Amendment as a means of regulating state restrictions on individual liberties.

Question 40

The Dormant Commerce Clause (“Negative Commerce Clause”)

Answer 40

If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce.

However, state or local governments CANNOT pass laws that either: (1) discriminate against interstate commerce (by favoring local interests), or (2) unduly burden interstate commerce.

–If it does, the state or local regulation will violate the Commerce Clause.

Question 41

Dormant Commerce Clause: State Discriminatory Regulations

Answer 41

State or local regulations that discriminate against interstate commerce to protect local economic interests are ALMOST ALWAYS invalid. (e.g., NY can’t ban CA wines or tax them at a higher rate than local wines)

–However, a discriminatory state or local law may be valid if: (1) it is necessary to achieve an important, noneconomic state interest and (2) there are no reasonable non-discriminatory alternatives available.

–Remember: Discriminatory laws may also violate the Privileges and Immunities Clause of Article IV or the Equal Protection Clause.

Exceptions:

(1) The state is acting as a market participant;
(2) Congress has approved that kind of discrimination; or
(3) It involves government action regarding the performance of a traditional government function.

Question 42

Dormant Commerce Clause: Non-discriminatory State Laws

Answer 42

If a non-discriminatory state law (that is, a law that treats local and out-of-state interests alike) burdens interstate commerce, it will be valid UNLESS the burden outweighs the promotion of a legitimate local interest.

–The court will consider whether less restrictive alternatives are available.

–Note: A different standard may apply to statutes adopted by the state of incorporation regulating the INTERNAL governance of a corporation (b/c state’s long history of regulating the internal governance of corps + their strong interest in doing so). Thus, even a statute that heavily impacts interstate commerce may be upheld.

Question 43

Full Analysis of a State Regulation of Interstate Commerce

Answer 43

Step #1 (Preemption): Does the state regulation affect an activity addressed by federal regulation?

• –If yes:
  (i) Invalid state regulation if federal law preempts the field or the state law conflicts w/ the federal law.
  (ii) Valid state regulation if the federal law authorizes the state law.
• –If no, move on to Step #2

Step #2 (Discrimination): Does the state regulation discriminate against interstate commerce?

• –If yes, invalid unless:
  (i) It furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives;
  (ii) The state is acting as a market participant;
  (iii) Congress has approved that kind of discrimination; or
  (iv) It involves govt. action regarding the performance of a traditional govt. function.
  - –If no, move on to Step #3

Step #3 (Burden): Does the state regulation unduly burden interstate commerce?

• –If yes, invalid unless the state’s interest in the regulation outweighs the burden on interstate commerce.
• –If no, its a VALID state regulation.

Question 44

Doctrine of Sovereign Immunity

Answer 44

The Supreme Court has held that the doctrine of sovereign immunity reflected in the 11th Amendment bars a private party’s suit against a state in federal and state courts.

Exceptions: States can be sued if they consent to it (that is, by waiver). The prohibition also does not extend to actions against local governments, actions by the United States or other states, or proceedings in federal bankruptcy courts.

–Note: Certain actions can be brought against state officers; Congress can also remove a state’s immunity as to actions created under the 14th Amendment power to prevent discrimination, but it must be unmistakenly clear that Congress intended to remove the immunity.

Question 45

Certain Actions That May Be Brought Against State Officers

Answer 45

The following actions can be brought against state officers:

(1) Actions to enjoin an officer from future conduct that violates the Constitution or federal law, even if this will require prospective payment from the state (the state cannot be made to pay retroactive damages); and
(2) Actions for damages against an officer personally.

Question 46

Standing

Answer 46

A person must have standing at all stages of litigation, including on appeal. Standing has three components:

(1) Injury in Fact: This requires both (i) a particularized injury (an injury that affects P in a personal and individual way), and (ii) a concrete injury (one that actually exists - not hypothetical);
(2) Causation: There must be a causal connection between the injury and the conduct complained of.
(3) Redressability: A decision in the litigant’s favor must be capable of eliminating their harm (e.g., through money damages or an injunction)

Notes:

• People have no standing merely as “citizens” or “taxpayers” to claim that govt. action violates federal law or the Constitution (for a taxpayer to have standing as such, Congress’ spending power must be involved)
• BUT a taxpayer has standing to challenge his tax bill
• A person may have standing to allege that federal action violates the 10th Amendment by interfering w/ powers reserved to the states as long as the person has a redressable injury in fact
• People have standing to challenge congressional spending measures on 1st Amendment Establishment Clause grounds

Question 47

Justiciability

Answer 47

Federal courts can hear a matter only if there is a “case or controversy.” Whether there is a case or controversy (that is, whether the a case is “justiciable”) depends on:

(1) No Advisory Opinions - These are decisions that lack (i) an actual dispute between adverse parties, or (ii) any legally binding effect on the parties.
(2) Ripe, Not Moot - P can establish ripeness before a law or policy is enforced by showing: (i) the issues are fit for a judicial decision, and (ii) P would suffer substantial hardship in the absence of review. Otherwise, not pre-enforcement review of a law is allowed.
(3) P must have standing

Question 48

The Supremacy Clause and Preemption

Answer 48

B/c of the Supremacy Clause, a federal law may supersede or preempt state (or local) laws. Federal law includes the Constitution, federal statutes and regulations, treaties, and executive agreements.

There are two kinds of preemption: (1) Express Preemption; and (2) Implied Preemption.

Question 49

Express Preemption

Answer 49

A federal law may expressly say that the states may not adopt laws concerning the subject matter of the federal legislation. Express preemption clauses will be narrowly construed.

Question 50

Implied Preemption

Answer 50

There are three kinds of implied preemption:

(1) Conflict Between State and Federal Law Requirements: If a law conflicts w/ federal law requirements, such that it would be impossible to follow both laws, the state will be held to be impliedly preempted.
(2) State Prevents Achievement of Federal Objective: If a state or local law prevents the achievement of a federal objective, it will also be to be impliedly preempted. (this is true even if the state law was enacted for some valid purpose and not to frustrate the federal law)
(3) Field Preemption: A valid federal law may impliedly “occupy” the entire field, thus barring any state or local law even if the state or local law is nonconflicting. The courts will look at the regulatory scheme to determine whether Congress intended to preempt the entire field (e.g., if federal laws are comprehensive or an agency was created to oversee the area, preemption will be found)

–Note: In all preemption cases, but especially in cases involving a field traditionally within the power of the states (e.g., regulations involving health, safety, or welfare), courts will start w/ the presumption that the historic state police powers are NOT to be superseded unless that was the clear and manifest purpose of Congress.

Question 51

Full Analysis on State Taxation of Interstate Commerce

Answer 51

Step #1 (Preemption): Does the state tax affect an activity addressed by federal legislation?

• –If yes:
  - -Invalid state tax if federal law preempts the field or the state tax conflicts w/ the federal law.
  - -Valid state tax if the federal law authorizes the state tax.
  - –If no, proceed to Step #2

Step #2 (Discrimination): Does the state tax discriminate against interstate commerce?

• –If yes, then the state tax is invalid.
• –If no, proceed to Step #3

Step #3: Does the state tax unduly burden interstate commerce – i.e., no substantial nexus, unfair apportionment, or no fair relationship between the tax and benefits?

• –If yes, then the state tax is invalid.
• –If no, then the state tax is VALID.

Question 52

Under the Eighth Amendment, is paddling students as a disciplinary measure a cruel and unusual punishment?

Answer 52

No. There is no Eighth Amendment violation here because paddling students as a disciplinary measure has not been found to be cruel and unusual punishment.

Question 53

What is Congress’ power to investigate limited to?

Answer 53

Congress’s power to investigate is limited to matters on which it can legislate.

Question 54

Can Congress enact a federal law that requires states to adopt a certain law pursuant to its powers under the Commerce Clause

Answer 54

No. The Commerce Clause does NOT give Congress the power to violate other provisions of the Constitution. Under Tenth Amendment principles, Congress does not have power to order states to adopt laws.

However, Congress may “regulate” states through the spending power by imposing conditions on the grant of money to state or local governments. Such conditions will not violate the Tenth Amendment merely because Congress lacked the power to directly regulate the activity that is the subject of the spending program if the conditions (i) are clearly stated; (ii) relate to the purpose of the program; and (iii) are not unduly coercive.