Fed Con Law

Question 1

Federal Con Law Road Map - Judicial Review

Answer 1

1. Determine basis for jurisdiction (law-based or party-based?)
2. If party-based jurisdiction, Does 11th amendment state sovereign immunity apply?
3. If no sovereign immunity, move on to justifiability.
4. Justiciability (Do RAMPS analysis)

Question 2

1. Determine Basis for Jurisdiction

(judicial Review)

FL Con Law

Answer 2

Court has jurisdiction over:

1. Cases arising under the U.S. Constitution, or cases of admiralty and maritime law; OR
2. Party-Based Jurisdiction:

• U.S. is a party
• Two or more states are parties
• Citizens of different states AND AIC is < $75,000
• Cases involving ambassadors and consuls

Question 3

2. If party based jurisdiction, does 11th Amendment state sovereign immunity apply?

(Judicial Review)

Fed Con Law

Answer 3

11th Amendment state sovereignty = individual cannot sue their state or another state for $$$ damages without the state’s consent.

EXCEPTIONS:

1. One state suing another
2. Federal government suing a state
3. Cities, towns and counties do NOT have state sovereign immunity
4. Private citizen may sue a state requesting an injunction.
5. State can be sued if it expressly waves immunity
6. Congress can authorize suits my private citizens involving monetary damages to compensate for state violations of 13th, 14th, and 15th amendments (using its enforcement powers).

NOTE: Cities/municipalities do NOT have sovereign immunity under the 11th amendment.

NOTE: Courts are prohibited from adjudicating claims by private citizens against states.

NOTE: Congress

Question 4

3. If 11th amendment does not apply, move on to Justiciability

(Judicial Review)

Fed Con Law

Answer 4

Focus is on cases and controversies.

• Do RAMPS analysis:

1. Ripeness
2. Abstention & Adequate state grounds
3. Mootness
4. Political Question
5. Standing

Question 5

Justiciability: Standing

(Judicial Review)

Fed Con Law

Answer 5

Art. III requires a party to show standing.

1. Injury in fact
2. Causation
3. Redressability

EXCEPTIONS: 3rd parties with special relationships or organization/member can assert standing on behalf of a party.

Question 6

Justiciability: Ripeness

(Judicial Review)

Fed Con Law

Answer 6

1. Controversy must be ripe for judicial decision, or else court is deciding a constitutional issue before it is necessary.
2. Bars consideration of claims before the claim’s issue has fully developed.

NOTE: COURT CANNOT REVIEW A STATE LAW BEFORE IT IS ENFORCED OR WHEN THERE IS NO THREAT THAT IT WILL EVER BE ENFORCED.

Question 7

Justiciability: Mootness

(Judicial Review)

Fed Con Law

Answer 7

1. If the controversy has already been resolved, then the case will be dismissed as moot because there is no longer a controversy.
2. EXCEPTION: Case is capable of repetition yet Evading review (“CRYER”) Ex. Abortion rights cases after plaintiffs baby has been born.

Question 8

Justiciability: Political Question:

(Judicial Review)

Fed Con Law

Answer 8

1. Fed courts cannot hear cases that are political questions.
2. A political question is a matter that the constitution assigned to another branch of government.
3. Political, rather than legal in character.

Question 9

Justiciability: Abstention

(Judicial Review)

Fed Con Law

Answer 9

1. A court can abstain from or refuse to hear a case when the case includes undecided issues of state law.
2. Abstention doctrine permits a federal court to defer to the state to decides matters of state law.
3. Occurs when the meaning of the state law is unclear, or when a state court proceeding is still in action.

NOTE: Federal courts generally do not hear family law or probate claims.

Question 10

Justiciability: Adequate and Independent State Grounds

(Judicial Review)

Fed Con Law

Answer 10

1. Although a state court decision may involve a federal question, if the state court decision can be supported on adequate and independent state grounds, the Supreme Court will not take jurisdiction.
2. Would be equal to rendering an advisory opinion.

NOTE: Abstention applies to all fed courts; adequate state grounds applies ONLY to the Supreme Court.

Question 11

U.S. Supreme Court Jurisdiction

Answer 11

Original (Mandatory) Jurisdiction:

1. Cases affecting ambassadors
2. Other public ministers
3. Where a state is a party.

Appellate (Discretionary) Jurisdiction:

1. Hold acts of other gov. branches unconstitutional
2. Hold state statutes unconstitutional
3. Review state court decisions on federal statutes and constitutional questions.
4. Decide other state law questions.

• In cases of diversity jurisdiction, the SC will defer to an existing state court interpretation of state law. If it has not already been interpreted by the state, SC will try to predict how the state will interpret it.
• The SC will abstain from a decision if the state court’s interpretation of unsettled state law could end the dispute and the SC cannot predict how the state court will rule.

NOTE: Congress cannot change the U.S. Sup. Ct.’s original jurisdiction in ANY way.

Question 12

Congress’s Power over the Courts

Fed Con Law

Answer 12

1. Congress cannot enlarge or restrict the Supreme Court’s original jurisdiction (Cases and controversies involving states or ambassadors and diplomats.) (NOTE: Appellate jurisdiction = cases involving a federal or constitutional question)
2. Congress has power to create lower courts inferior to the Supreme Court and prescribe their powers (change jurisdiction, eliminate or create courts)
3. Congress cannot take an appellate case and transfer it to the Supreme Court.

Question 13

Federal Con Law Roadmap: Congress’s Power

(Separation of Powers)

Fed Con Law

Answer 13

1. Ask can Congress enact this law?
2. If yes, is the law constitutional?

Question 14

How Congress Enacts a Law

(Separation of Powers)

Fed Con Law

Answer 14

1. Both congressional houses (House of Representatives and Senate) pass the bill by majority vote.
2. President either signs into law or vetos it OR both houses repeal veto by ⅔’s vote of both houses.

Question 15

Three (3) Sources of Congressional Power

(Separation of Powers)

Fed Con Law

Answer 15

ENUMERATED POWERS:

1. To collect taxes and spend money for the general welfare
2. To borrow money on the credit of the United States
3. Regulate commerce
4. Declare war, and
5. Raise and support a military.

ENABLING CLAUSE OF THE 13TH, 14TH, AND 15TH AMENDMENTS:

• Gives congress the power to enact legislation to enforce these amendments through “appropriate legislation”

NECESSARY AND PROPER CLAUSE:

• Gives congress the power to enact any legislation which is “necessary and proper” to carry out an enumerated power (SEE ABOVE)

Question 16

Congressional Enumerated Power: Commerce Clause

(Separation of Powers)

Fed Con Law

Answer 16

Congress has the enumerated power to regulate:

1. Channels of interstate commerce;
2. Instrumentalities of interstate commerce; and
3. Intrastate activities which in the aggregate substantially affect interstate commerce

• NOTE: Congress cannot use commerce power to regulate non-economical activity (ex. possession of guns, violent crimes)

Question 17

Congressional Enumerated Powers: Taxing Power

(Separation of Powers)

Fed Con Law

Answer 17

Congress has power to impose and collect taxes to pay debts and spend for the general welfare.

A congressional act purporting to be a tax should be upheld as a valid exercise of taxing power if:

1. Raises revenue (objective test)
2. Was intended to raise revenue even if it does not (subjective test)
3. Congress has the power to regulate what is being taxed (regulatory test)

Question 18

Congressional Enumerated Powers: Spending Power

(Separation of Powers)

Fed Con Law

Answer 18

• Congress has the power to spend for the general welfare.
• Congress may place a condition of the receipt fo federal funds by a state if: (5 REQUIREMENTS)

1. Spending serves the general welfare
2. The condition is NOT ambiguous
3. The condition is related to the federal program
4. The state is not required to take unconstitutional action; AND
5. The amount in question is not so much that the state is coerced into accepting the funds.

Question 19

Congressional Enumerated Powers: War and Defense Powers

(Separation of Powers)

Fed Con Law

Answer 19

• Congress may declare war, raise and support armies and navies, and organize and arm militias.
• During wartime, congress has the power to:

1. Activate draft;
2. Initiate wage, price, and rent control of civilian economy; and
3. Exclude civilians from restricted areas

• Congress can also create military courts to gain jurisdiction over members of the armed forces, conduct court marshal proceedings, and try enemy combatants.

Question 20

Other Enumerated Congressional Powers

(Separation of Powers)

Fed Con Law

Answer 20

1. Immigration and Naturalization: Only congress can regulate.
2. Investigatory Power: Matters within its legitimate lawmaking functions.
3. Federal Property Power: Can regulate or dispose of federal lands
4. Admiral and Maritime Laws: Necessary and proper clause gives plenary power to fix and determine maritime laws.
5. Bankruptcy Power: Power to establish bankruptcy laws
6. Postal Power: Power to establish post offices
7. Copyright and Patent Law: Power to establish IP laws
8. Speech and Debate Clause: Congress can not be punished or prosecuted for anything said during debate on the floor.

Question 21

Congressional Powers: Civil War Amendments

(Separation of Powers)

Fed Con Law

Answer 21

1. 13th Amendment bans slavery
2. 14th Amendment prohibits states from enacting laws which violate Due Process (substantive and procedural), Equal Protection, and Privileges and Immunities

• Only apply to acts committed by states, NOT private individuals.
  3. 15th Amendment prevents states from discriminating with respect to race in voting laws.

NOTE: State Govs must have acted in widespread violations of the amendment

NOTE: Legislative remedy must be congruent and proper t the violated.

Question 22

Executive Power (List 5)

(Separation of Powers)

Fed Con Law

Answer 22

“VAPER”:

• Veto Power
• Appointment Power
• Pardon Power
• Enforcement Power
• Removal Power

Question 23

Executive Powers: Enforcement

(Separation of Powers)

Fed Con Law

Answer 23

1. President has the power to enforce, but not create, laws.

Question 24

Executive Powers: Appointment and Removal Powers

(Separation of Powers)

Fed Con Law

Answer 24

APPOINTMENT POWERS:

• President may appoint high-level officials with the advice and consent of senate.
• CONGRESS can delegate the appointment of inferior officers to president, judiciary, or head of an executory department.

REMOVAL POWERS:

1. Removal of Executive officials: President CAN remove WITHOUT CAUSE
2. Removal of Executive officials (with fixed terms): President CAN remove WITH CAUSE
3. Removal of Federal Judges: President CANNOT REMOVE - Can only be remove by impeachment.

Question 25

Executive Powers: Veto

(Separation of Powers)

Fed Con Law

Answer 25

1. Once Congress has passed legislation (a bill) by majority vote in both houses, President must sign to become law.
2. If President vetos it, congress must override veto.

• Congress can override veto by ⅔’s vote in both houses.
• Congress cannot line-item veto - must accept all or veto legislation as a whole.

3. If President takes no action within 10 days, the bill becomes law.

POCKET VETO:

If the bill is presented to president less than 10 days before the end of a legislative session, then the President can pocket veto it (to late to be health with during this legislative session).

Question 26

Executive Powers: Pardon

(Separation of Powers)

Fed Con Law

Answer 26

President may grant pardons.

• Can only issue for FEDERAL CRIMES, NOT STATE CRIMES.
• CANNOT UNDUE AN IMPEACHMENT because it is not a criminal conviction. Pardon cannot restore someone to office.

Question 27

Executive Privilege

(Separation of Powers)

Fed Con Law

Answer 27

1. President has absolute privilege to refuse to disclose information related to national security.
2. Other confidential communications between the president and his advisors are presumptively confidential and privileged. EXCEPTION: When confidential communications are subpoenaed as evidence in a criminal trial.

Question 28

Executive Power as Commander in Chief

(Separation of Powers)

Fed Con Law

Answer 28

MILITARY POWERS

1. Congress must first declare war. If congress has not declared war, President’s power is limited to using military force against surprise attacks.
2. If president and congress disagree, President prevails only is respect to tactical decisions.

INTERNATIONAL AFFAIRS

1. Treaty Power: can make treaties with consent of senate (⅔’s vote required)

• Treaties have the same status as federal law.
• Treaties take precedent over any conflicting state law.

EXECUTIVE AGREEMENTS

1. President has power to enter into executive agreements with foreign powers (no ratification required)
2. Executive agreements do not prevail over federal law, but d prevail over inconsistent state law.

Question 29

Checks and Balances

(Separation of Powers)

Fed Con Law

Answer 29

1. Legislative branch makes laws BUT judicial branch can declare those laws unconstitutional.
2. President in executive branch can veto a law BUT congress can override the veto by ⅔’s vote in both houses.
3. Executive branch can issue executive orders, which carry the force of law BUT the judicial branch can declare the orders unconstitutional.
4. The judicial branch interprets laws BUT the President in the executive branch nominates Supreme Court justices, court of appeals judges, and district court judges who make the evaluations.
5. The judicial branch interprets law BUT the senate in the legislative branch confirms the President’s nominations for judicial positions, and congress can impeach and removes judges from office.

Question 30

Federal Immunity

(Federal-State Relationship)

Fed Con Law

Answer 30

1. Sovereign Immunity
2. Supremacy Clause
3. Federal government is immune from state taxation and regulation that would interfere with performance of federal functions.

Question 31

State Immunity

(Federal-State Relationship)

Fed Con Law

Answer 31

1. 11th Amendment Sovereign Immunity: States are immune from suits for monetary damages by private citizens unless an exception applies)
2. States are immune from federal taxation IF tax is applied to unique state activities or essential government functions.

NOTE: Remember that federal law is supreme BUT DO NOT FORGET THE 10TH AMENDMENT! (Any power that is not granted to the fed government by the Constitution nor prohibited by the Const. to the states is reserved to the states.) Fed gov. cannot commander states!

Question 32

Authority Reserved for States: Dormant Commerce Clause

(Federal-State Relationship)

Fed Con Law

Answer 32

States may not discriminate against other state economic activity (interstate commerce) unless:

1. State regulation serves a compelling state interest
2. Regulation is necessary to serve that interest.
3. EXCEPTIONS:

• Congress authorizes states to legislate in areas that would violate the doormat commerce clause
• States acting as market participants may discriminate between in-state and out-of-state business.

NOTE: States can regulate interstate commerce to effectuate a legitimate, local public interest UNLESS the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.

Question 33

State-Action Requirements and Exceptions

(Federal-State Relationship)

Fed Con Law

Answer 33

Cannot sue state for a constitutional violation unless the state is an actor.

EXCEPTIONS:

1. Public Function Theory: When certain traditional functions of the state are turned over to private actors; OR
2. Significant State Involvement: Private actors who are entangled with the state.

Question 34

Due Process Clause (General)

Fed Con Law

Answer 34

• If suing the federal government → Use 5th Amendment DP Clause
• If suing state → Use 14th Amendment DP Clause

Two Types of Due Process:

1. Procedural Due Process: Government cannot take your life, liberty, or property without due process of the law (NOTICE AND HEARING REQUIREMENT)
2. Substantive Due Process: Government cannot deprive you of a right afforded under the Constitution

Question 35

Due Process: Substantive Due Process

(Due Process)

Fed Con Law

Answer 35

To figure out the standard of review for a substantive due process claims:

1. If we’re talking about an economic right → RATIONAL BASIS

• Regulation must be rationally related to achieving a legitimate gov. interest
• Plaintiff has burden to it isn’t.

2. If we’re talking about a fundamental right → STRICT SCRUTINY

• Regulation must be narrowly tailored to achieve a compelling gov. interest.
• Gov. has burden to show it is.
• FUNDAMENTAL RIGHTS:
  
  • Contraceptives
  • Marriage
  • Family relations (such as extended family members living in a single family home), private education of kids
  • Possession of obscene material (protected right to possess, but not protected right to buy for sell)
  • Right to travel (protected by 14th amend. Privileges and Immunities clause)
  • Right to vote

Question 36

Procedural Due Process

(Due Process)

Fed Con Law

Answer 36

Takings Clause (Under Procedural DP): Government cannot take property directly or indirectly without just compensation.

NOTE: Remember, nature of the regulation and its level of burden must be analyzed first.

FOUR TYPES OF TAKINGS

1. Direct Government Taking
2. Regulatory Taking (government doesn’t take it directly, but enacts a regulation that effectively acts as a taking.
3. Temporary Restrictions (does not permanently deprive owner oof all economic uses oof the property)
4. Conditional Permits (a condition on the grant of a permit for land development)

Question 37

Equal Protection (General)

(14th Amendment Equal Protection)

Fed Con Law

Answer 37

• 5th Amendment applies it to fed gov.
• 14th Amendment applies it to state govs.

NOTE: If the questions involves a violation of a right that applies to every, it is likely a substantive due process question instead of an EP question. If the violation applies to a specific group of people, it is likely a EP question.

NOTE:

DP Analysis = Economic right (Rational Basis) or Fundamental right (Strict Scrutiny)?;

EP Analysis = Standard of review based on what group classification is being used.

Question 38

Three Levels of Scrutiny

(14th Amendment Equal Protection)

Fed Con Law

Answer 38

1. Strict Scrutiny: Applies to suspect classifications.

• Regulation must be narrowly tailored too achieve a compelling government purpose
• Applies to classifications based on race, nationality, voting, alienage (state) or domestic travel.
• Gov must prove.

2. Intermediate Scrutiny: Applies to quasi-suspect classifications.

• Regulation must be necessary to achieve an important government interest
• Applies to classifications based on gender and illegitimacy
• Gov must prove.

3. Rational Basis: Applies to non-suspect classifications.

• Regulation must be rationally related to a legitimate government interest
• Applies to all other classifications (age, wealth, disability, *sexual orientation (rational basis but with teeth), undocumented alien children, etc.)
• Plaintiff must prove.

Question 39

Suspect Classifications: Race

(14th Amendment Equal Protection)

Fed Con Law

Answer 39

Race = suspect classification that gets strict scrutiny review.

• De jure segregation: Laws that deliberately segregate based on race.
• De facto segregation: Segregation in fact but not by law.
• School segregation: Court-

Question 40

Suspect Classifications: State Alienage

(14th Amendment Equal Protection)

Fed Con Law

Answer 40

Alienage discrimination by states = suspect classification that gets strict scrutiny

• Resident Aliens: When states discriminate against resident aliens (people not residents of the state), it gets SS review
• Public Function Exception: Some jobs may be withheld from resident aliens, including police officers and government officials, and school teachers.
• Undocumented US Aliens: Not a suspect class; rational basis applies (states cannot enact their own immigration policy)

Question 41

Quasi-Suspect Classifications: Illegitimacy and Sex Discrimination

(14th Amendment Equal Protection)

Fed Con Law

Answer 41

• Illegitimacy: Laws that treat people basically based on whether their parents were married.
• Sex discrimination: Laws that treat men and women differently.
• Gender-based affirmative action: Only needs to pass intermediate scrutiny.

Question 42

Privileges and Immunities (General)

(14th Amendment Privileges and Immunities)

Fed Con Law

Answer 42

• The 14th Amendment under the P&I clause protects citizens’ rights to travel freely over state lines and establish residency in a new state, petition congress, vote for federal offices, assemble, and enter public lands.
• No state can discriminate against residents of another state with respect to fundamental rights unless:

Standard of Review: Discriminatory law is substantially related to a substantial government interest.

Question 43

Establishment Clause (General)

(First Amendment Freedoms)

Fed Con Law

Answer 43

Prohibits the government from establishing a religion.

• If law favors one religion over another = strict scrutiny applies.
• If law is neutral on its face, LEMON TEST applies.

3-Prong Lemon Test:

1. Law must have a secular (non-religious) purpose;
2. Law’s primary effect must neither advances nor inhibits religion, and
3. No excessive government entanglement with religion

Question 44

Free Exercise Clause

(First Amendment Freedoms)

Fed Con Law

Answer 44

• A person’s religious beliefs are absolutely protected under the Constitution’s Free Exercise clause.
• Government cannot punish an individual by denying benefits or imposing burdens on the exercise of religion.
• When an individual’s conduct is motivated by his religious beliefs, the state MAY regulate or prohibit the activity if:
  
  • The regulation is neutral in respect to religion and
  • is of general applicability.

Question 45

Freedom of Expression (Three Types oof Regulations)

(First Amendment Freedoms)

Fed Con Law

Answer 45

The 1st Amendment prohibits congress from enacting any law abridging the freedom of speech, freedom of the press, or the right to peacefully assemble, or the right to petition the government for a redress of grievances.

1. Content-Based Regulation: Strict scrutiny applies.
   * Regulation must be necessary and the least-restrictive means to complete a compelling interest.
2. Content-Neutral Regulation: laws that apply to all expressing without regard to the message, viewpoint or substance of the expression. Restriction must not be greater than necessary to achieve substantial gov interest.
   * Time/Place/Manner: Public or non-public forum?
3. Unprotected Speech: Fighting words, obscenity, child porn, inciting violence, defamation.

Question 46

Freedom of Expression: Defamatory Speech

(First Amendment Freedoms)

Fed Con Law

Answer 46

NOTE: Also applies to tort cases for defamation

1. Private person, matter of private concern: May recover for defamation.
2. Private person, matter of public concern: Plaintiff must prove negligence or falsity of the statement. Not malice required.
3. Public official/figure, matter ofprivate or publicconcern: Plaintiff must prove state law requirements for defamation and actual malice.
4. Private person suing media for false light invasion of privacy, matter ofpublic interest: Plaintiff must prove actual malice.

Question 47

Freedom of Expression: Content-Neutral Time/Place/Manner Regulations

(First Amendment Freedoms)

Fed Con Law

Answer 47

Traditional Public Forums: A forum that has a long history or tradition of being used for the purpose of free speech, debate, and assembly. Ex. Parks, sidewalks, university meeting rooms, etc.

Limited/Designated Public Forum: Non-public forums (such as a municipal meeting room) that has been specifically designated by the gov as open to certain groups or topics. Same 1st Amend. protections as traditional public forums.

Strict Scrutiny Applies:

1. Content-neutral as to both subject matter and viewpoint
2. Narrowly tailored to further a compelling state interest, and
3. Leaves alternative channels open.

Non-Public Forums: Government can set restrictions. Ex. Airport terminals, a public school’s mail system. Must be reasonable related to a legitimate gov interest.

Question 48

Freedom of Expression: Low-Value Speech

(First Amendment Freedoms)

Fed Con Law

Answer 48

Low value speech gets very little protection.

Commercial Speech:

1. Directly advances a substantial government interest
2. No more extensive than necessary to serve that interest

Sexual or Indecent Speech:

Secondary effects regulations must serve a substantial gov interest and leave open reasonable alternative channels communication.

Question 49

Freedom of Expression: Prior Restraints

(First Amendment Freedoms)

Fed Con Law

Question 50

Freedom of Expression: Prior Restraints

(First Amendment Freedoms)

Fed Con Law

Answer 50

• The government cannot express or restrain speech in advance of its publication or utterance.
• Prior restraints are presumptively illegal.

EXCEPTION: Matters of national security.

Question 51

Freedom of Expression: Over-breadth and Vagueness

(First Amendment Freedoms)

Fed Con Law

Answer 51

Overbreadth: The regulation cannot be so overly broad as to have a chilling effect on protected speech.

Vagueness: The regulations must be drawn with specificity and not be vague.