Con Law

Question 1

Advisory Opinions

Answer 1

Federal courts cannot issue advisory opinions, which are decisions that lack (1) an actual dispute between adverse parties, OR (2) any legally binding effect on the parties

Question 2

Ripeness

Answer 2

A plaintiff can establish before a law or policy is enforced by showing two things:

(1) issues are fit for a judicial decision (more legal than factual issues) AND
(2) the plaintiff would suffer substantial hardship in the absence of review

Question 3

Mootness

Answer 3

Plaintiff needs to be suffering from an ongoing injury

Live controversary + ongoing injury

Question 4

Mootness Exceptions

Answer 4

1. Controversies capable of repetition but evade review because of their inherently short duration
2. Defendant voluntarily stops the offending practice but is free to review it
3. Class actions in which the class representative’s controversy has become moot, but the claim of at least one other class member is still viable

Question 5

Standing Elements

Answer 5

(1) Injury in Fact - particularized and concrete
(2) Causation
(3) Redressability

Any concrete & particularized harm (injury in fact)
- Has occurred or imminent
- Pre-enforcement review: likelihood of future of harm

Question 6

Citizenship Standing?

Answer 6

People have no standing merely as “citizens” or “taxpayers” to claim the government action violates fed law or the constitution

Question 7

Standing Exceptions

Answer 7

A taxpayer has standing to challenge their tax bill

A person may have standing to allege that federal action violates the 10A by interfering with powers reserved to the states as along as the person has redressable injury

People have standing to challenge congressional spending measure on 1A establishment clause grounds (for example, congressionally approved federal expenditures to air parochial schools)

Question 8

Standing of Organizations

Answer 8

1. There is an injury in fact to the members
2. The members’ injury is related to the organization’s purpose AND
3. Individual member participation in the lawsuit is not required

Question 9

Standing for Free Speech Overbreadth Claims

Answer 9

A person has standing to bring a free speech claim alleging that the government restricted substantially more speech than necessary, even if that person’s own speech would not be protected under the 1A

Exception: does not apply to restrictions on commercial speech

Question 10

Sovereign Immunity

Answer 10

Reflected in 11A - bars a private party’s suit against a state in federal and state courts (CANNOT SUE THE STATE!)

Question 11

Sovereign Immunity Exceptions

Answer 11

• States can be sued if they consent to it (express/implied waiver)
• Local governments (city or county) are not protected by sovereign immunity
• States can be sued by other states, and the federal government can sue states
• Can sue state in relation to bankruptcy
• Can sue a state official
  1. For damages personally OR
  2. To enjoin the official from future conduct that violates the constitution or federal law
• Congress can remove a state’s immunity as to actions created under the 14A power to prevent discrimination

Question 12

SCOTUS Jurisdiction

Answer 12

OG jurisdiction in all cases affecting ambassadors, public ministers, consuls, and those in which a state is party, but congress has given concurrent jurisdiction to lower federal courts in all cases expect those between states

Question 13

SCOTUS Appellate Jurisdiction

Answer 13

Appellate jurisdiction in all cases to which federal judicial power extends Article 3

Question 14

Adequate and Independent State Grounds

Answer 14

No review of state court decision if adequate and independent state grounds!

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

Not based on federal case interpretations of identical federal provisions

If state court has not clearly indicated that its decision rests on state law, SCOTUS may hear the case

Question 15

Congress police powers?

Answer 15

Congress does not have general police powers

Exceptions:
- Federal lands, native American reservations, and D.C.

Question 16

Necessary and Proper Clause

Answer 16

Congress can use any rational, constitutional means to exercise an enumerated power

Question 17

Taxing and Spending Power

Answer 17

Congress may tax and spend to promote general welfare
o Taxing and spending may be for any public purpose not prohibited by Constitution

Taxes are generally valid
o Taxes will be upheld if they bear some reasonable relationship to revenue production or to promoting the general welfare

Question 18

Congress Spending Conditions

Answer 18

Spending conditions (“Strings”)
o Clearly stated
o Related to purpose
o Constitutional
o Not unduly coercive

Question 19

Congress Spending Conditions

Answer 19

Spending conditions (“Strings”)
o Clearly stated
o Related to purpose
o Constitutional
o Not unduly coercive

Question 20

Commerce Clause

Answer 20

Congress can regulate commerce with foreign nations, with native American tribes, and among states

CIA
Channels of interstate commerce (high-ways, waterways. Telephone lines)
Instrumentalities of interstate commerce (plans, trains, automobiles) and persons and things in interstate commerce OR
Activities that have a substantial effect on interstate commerce

When congress attempts to regulate intrastate commercial activity under the 3rd prong, the court will uphold the regulation if it can think of a rational basis on which Congress could conclude that the activity in the aggregate substantially affects interstate commerce
o Ex. Congress could regulate the growing of wheat (or marijuana) in one’s own backyard, even if it’s for personal consumption
o The rule detailed above applies only when the regulated intrastate activity is economic or commercial in nature!

If not commercial or economic, the Court generally will not aggregate the effects and will uphold the regulation only if Congress can show that it nonetheless has a direct substantial economic effect on interstate commerce, which Congress generally won’t be able to do
 Ex. Congress cannot mandate individuals to purchase health insurance!

Question 21

Additional Powers of Congress

Answer 21

Congress has power to declare war

Congress has abroad implied power to investigate to secure information for potential legislation or other official action

Congress can dispose of and make rules for territories and other properties of the United States

Congress has an exclusive postal power

Congress may establish uniform rules of naturalization

Congress’s admiralty power is plenary and exclusive unless Congress leaves maritime matters to state jurisdiction

Congress has power to coin money and fix standards for weights and measure

Congress has the power to control the issuance of patents and copyrights

Question 22

Congress’s Power to Delegate Legislative Authority

Answer 22

Congress can delegate power as long as intelligible standards are set AND the power is not something that is uniquely confined to Congress
o Usually, general standard suffices at intelligible

Question 23

Major Questions Doctrine

Answer 23

When an agency claims to be exercising broad power to adopt regulations that have extraordinary economic and political significance, court looks at 2 things:

1. Agency has history of asserting power
2. Clear congressional authorization

Question 24

Bicameralism

Answer 24

Passage of a bill by both houses of Congress and then followed by presentment to President for signature or veto

No line-item veto
- Means giving the president power to cancel parts of a bill while approving others is an unconstitutional delegation of legislative power
- President can only approve or reject a bill AS WHOLE

No legislative veto
o When congress gives itself the authority to amend or repeal an existing law without undergoing bicameralism or presentment

Question 25

President Implied Powers (Youngstown Test)

Answer 25

P acts with express will or implied authority of Congress = likely valid

P acts where Congress is silent -> Court will consider the circumstances and any relevant history… BUT the act is unlikely to be upheld if it usurps the power of another governmental branch or prevents another branch from carrying out its tasks

P acts against the express will of Congress and Congress had authority to act? -> action likely is invalid

Question 26

President Appointment Powers

Answer 26

Right to appoint, ambassadors, SCOTUS justices, and other officers of the USA

Congress can vest appointment of inferior officers

P can remove high level, purely executive officers at will. Congress cannot restrict this.

Congress remove executive officers only through impeachment process

Question 27

President Pardon Power

Answer 27

May grant pardons for all FEDERAL offenses, but not for impeachment or civil contempt!

Congress cannot limit this power!

Question 28

President Veto Power

Answer 28

President vetos but act may still become law if 2/3rd vote of each house

Pocket veto = P has 10 days to exercise the veto power - if P does fails to act within that time, bill is automatically vetoed if Congress not in session BUT if Congress is in session, Bill becomes law

Question 29

President War Power

Answer 29

President has NO power to declare war, but can act militarily in actual hostilities against the United States without a congressional declaration of war to protect American lives and property
o Send troops over to go fight!

Question 30

President Treaty Power

Answer 30

President has the power to enter into treaties with the consent of 2/3rds of the senate

Hierarchy of US Laws in order
- 1. Constitution
- 2. Treaties and federal statues
- 3. Executive Agreements
- 4. State Law

If treaties and federal law conflict -> last in time prevails which means the later enacted law trumps earlier enacted law

Executive Agreements
- Signed by the President and the head of a foreign country
- No senate approval

Question 31

President Executive Privilege

Answer 31

Privilege to keep certain presidential communications secret so that the president can receive candid advice and protect national security

Exception
o In criminal proceedings, president communiques will be available to the prosecution where a need for such information is demonstrated
o President is subject to state criminal subpoenas of the President’s personal records – such records do not fall under the executive privilege

Question 32

President Executive Immunity

Answer 32

President has absolute immunity from civil damages based on any action taken while exercising official responsibilities, but there is no immunity for acts that allegedly occurred before taking office

Question 33

President Impeachment

Answer 33

A majority vote in the house is necessary to bring impeachment charges and a 2/3rds vote in the senate is necessary to convict and remove from office

Grounds include treason, bribery, and high crimes and misdemeanors

Question 34

10th Amendment

Answer 34

Powers not granted to federal government are reserved to states or people
o State police powers: rational basis, legitimate purpose
 Can regulate the health, safety, and welfare of their people
o Anti-commandeering
 Congress cannot compel or “commandeer” the states to enact state laws or to enforce federal laws
o Non-coercive spending conditions do not violate the anti-commandeering principle

Question 35

Intergovernmental Immunity Doctrine

Answer 35

States cannot interfere with or control the operations of the federal government

State may not directly tax federal instrumentalities without consent of Congress

Nondiscriminatory indirect taxes are permissible if they do not unreasonably burden the federal government

Question 36

Article IV Privileges and Immunities Clause

Answer 36

If the state law burdens an important commercial activity or fundamental right on nonresidents, it will be invalid unless the law is necessary to achieve an important government purpose and there are no less restrictive means available

Question 37

Dormant Commerce Clause

Answer 37

State regulation of interstate commerce is valid if the regulation does not discriminate or unduly burden interstate commerce

If the regulation does discriminate against interstate commerce, it is valid if it is necessary to an important, noneconomic government interest and there are no reasonable nondiscriminatory alternatives available

If a non-discriminatory state law burdens interstate commerce, it will be valid unless the burden outweighs the promotion of a legitimate local interest

Question 38

DCC Exceptions

Answer 38

Congressional Approval
- Congress may permit state regulations that would otherwise violate the DCC

Market Participant
- State or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned business
 Can give discount for college students (in-state tuition)
 Can select local firms when awarding construction contracts

Question 39

Discriminatory State Taxes

Answer 39

Unless authorized by Congress, state taxes that discriminate against interstate commerce (for example, tax on out-of-state businesses higher than tax on in-state businesses) violate commerce clause

Question 40

Non-discriminatory State taxes

Answer 40

Tax will be valid if:
1. Substantial nexus to the taxing state (exists when a business avails itself of doing business in the state)
2. Fair Apportionment
3. Fair Relationship

Question 41

Government Action

Answer 41

Government action needed for Constitution to apply
o The constitution restricts the government/OR constitutional rights are owed by the government to individuals
o A private entity generally does not owe a duty to abide by the constitution
o A private entity that (1) undertakes a traditional and exclusive public function or (2) has the state being significantly involved in the action is limited by the constitution and will be deemed state action
 Example -> Running a company town is a traditional exclusive public function

SOTUS has found significant state involvement when: - Enforcement of private action involves use of courts
- Private entities are entwined with gov’t entities

SCOTUS has found that providing essential services such as police or fire protection does not make private action state action

SCOTUS has found that regulation of a private school does not make the school’s action state action.

Question 42

Strict Scrutiny

Answer 42

Law must be narrowly tailored to achieve a compelling governmental purpose
- Burden is on the government

**ALL Fundamental Rights and suspect classes
o Race, Alienage, and National origin
o Interstate traveling, voting, and 1A rights

Question 43

Intermediate Scrutiny

Answer 43

Law must be substantially related to an important governmental interest
- Burden is likely on the government

**Quasi-Suspect Classes
- Gender, legitimacy of children

Question 44

Rational Basis Review

Answer 44

Law must be rationally related to a legitimate governmental interest
- Burden is on the challenger!

**All other issues that do not include fundamental rights or suspect classifications
- Law will be upheld unless it is arbitrary or irrational

Question 45

The 14th Amendment

Answer 45

Prevents STATES from depriving any person of life, liberty, or property without due process

Question 46

Procedural Due Process

Answer 46

1. Notice
2. Hearing
   - Balancing Test -> Interest of individual and specific procedural safeguards to that interest vs. government interest in efficiency
3. Neutral Decision Maker

Question 47

Substantive Due Process

Answer 47

Law limits all rights of all persons to engage in some activity
- Substantive due process problem

Question 48

14A Equal Protection Clause

Answer 48

Prohibits states and state governments and entities from treating similarly situated people in a dissimilar manner without adequate justification

Law treats a person or class of person differently from others
- Equal protection problem

14A EP Clause generally does not apply to private action

Question 49

Proving Discriminatory Classification

Answer 49

• A law that is discriminatory on its face (that is, facial discrimination)
• A discriminatory application of a facially neutral law + discriminatory intent, or
• A facially neutral law with a disparate impact on a protected class + discriminatory intent (such as minorities)

Question 50

Alienage Classifications

Answer 50

Federal government: Rational basis
- Because the Constitution gives Congress plenary power over aliens, federal classifications based on alienage generally are tested under the rational basis test (i.e., valid unless the challenger can prove that the classifications are not rationally related to a legitimate government interest)

State/local government: Usually strict scrutiny -> upheld only if the state proves the discrimination is necessary to achieve a compelling government interest
o Exception: Rational basis review for positions and activities essential to self-government
 Voting, jury service, police officer, public school teacher

Question 51

Takings

Answer 51

Government may take property for (1) public use and (2) must pay just compensation

Question 52

Regulatory Takings

Answer 52

Regulation leaves no economically viable use = taking

Regulation decreases economic value -> apply balancing test and consider
o 1. Government interests sought to be promoted
o 2. The diminution in value to the owner
o 3. Whether the regulation substantially interferes with distinct, investment-backed expectations of the owner

Question 53

Contracts Clause

Answer 53

State/local law cannot retroactively impair contract rights

Private party contracts -> Intermediate
 Legislation that substantially impairs an existing private contract is invalid unless the legislation:
* 1. Serves an important and legitimate public interest AND
* 2. Is a reasonable and narrowly tailored means of promoting that interest

Public contracts -> Heightened scrutiny

Question 54

Bills of Attainder

Answer 54

Legislation that punishes individuals without trial is unconstitutional

Ex. -> SCOTUS struck down a as a bill of attainder a federal budget law that denied salary payments to federal employees that Congress determined to be subversive

Question 55

First Amendment

Answer 55

Generally, prohibits the government from restricting the content of speech unless the government can prove the restriction is necessary to achieve a compelling government interest

However, there are certain categories of speech that are not protected by the 1A such as fighting words and speech inciting imminent lawless action

Question 56

What is speech?

Answer 56

Words, symbols, and conduct that is (1) inherently expressive OR (ii) intended to convey a message and (ii) reasonably likely to be seen as conveying a message

Question 57

Incitement (Clear and present danger) TEST

Answer 57

Speech can be restricted when:
- (1) intended to produce imminent lawless action AND
- (2) likely to produce such action

Question 58

Fighting Words

Answer 58

Words that are likely to provoke physically action when addressed to an ordinary person

Examples
o Calling someone a motherfucker -> fighting word
o Wearing a jacket that says “fuck the draft” -> not a fighting word

These statutes are often struck down for over-broadness
o The overbreadth problem arises because of the difficulty in precisely describing what is or is not a “fighting word”
 “Abusive language” is overbroad

Question 59

True Threats

Answer 59

Words that are intended to convey to someone a serious threat of bodily harm

Question 60

Obscenity Test

Answer 60

Obscene work/speech can be regulated

1. Appeals to the prurient interest in sex, using a contemporary community standard
2. Is patently offensive under contemporary community standards AND
3. Lacks serious value (literary, artistic, political, or scientific), using a national, reasonable person standard

**A zoning ordinance prohibiting the location of adult bookstores and theaters in areas close to residential zones and restricting such theaters to a limited area of the city is permissible if it is designed to promote substantial government interests (e.g., property interests) and does not prohibit all such entertainment in the community

Question 61

Defamatory Speech of Public Official/Figure

Answer 61

1. Statements must relate to the individual specifically
2. Have the burden of proving falsity with clear evidence
3. Must prove the statement was done with actual malice (clear knowledge of falsity or reckless disregard)

Who are Public Figures?
People who have:
 1. Assumed roles of prominence in society
 2. Achieved pervasive fame and notoriety, or
 3. Thrust themselves into particular public controversies to influence their resolution

Examples -> Politicians and public employees

Question 62

Defamatory Speech of Private Citizens

Answer 62

1. Statements must relate to the individual specifically
2. Have the burden of proving falsity with clear evidence
3. Must prove the statement was done with actual malice (clear knowledge of falsity or reckless disregard)

AND

If public concern
 Actual damages -> negligence
 Punitive/statutory damages -> actual malice
If private concern
 Actual malice not needed

Question 63

Commercial Speech Test

Answer 63

Commercial speech is not protected if it is
o 1. False
o 2. Misleading OR
o 3. About illegal products or services

Any other regulation of commercial speech will be upheld only if it:
o Services a substantial government interest AND
o Directly advances that interest AND
o Is narrowly tailored to serve that interest

Question 64

Content Based Restrictions

Answer 64

• Subject to strict scrutiny and presumptively unconstitutional
• Restricts speech based on the subject matter or viewpoint of the speech

Ex. -> a ban on the sale of violent video games to minors is a content-based speech

Question 65

Content Neutral

Answer 65

Restrictions are both subject matter-neutral and viewpoint neutral

Intermediate scrutiny -> substantially related to an important government interest and must not burden substantially more speech than necessary

CANNOT BE overbroad -> cannot burden more speech than necessary to promote government interest

Question 66

Traditional Public Forums and Designated Public Forums

Answer 66

Regulation = Content-Based -> subject to strict scrutiny and presumed invalid
o Gov’t must show law is narrowly tailored to achieve a compelling gov’t purpose

Regulation = Content-Neutral -> subject to intermediate scrutiny
o Gov’t must show law is substantially related to an important gov’t interest and must leave open alternative channels of communication

Public forum
o Public property that historically has been open to speech-related activity
 Streets, sidewalks and public parks
o Government can limit rights of speech in this forum only when there is a serious and imminent threat to the public order

Designated public forum
o Public property that usually is not used for speech-related activity, but that government has opened for such activity at particular times
 Public schools gym that can be reserved the public for use when not being used by the school

Question 67

Limited Public Forums & Non-public Forums

Answer 67

Government can regulate speech in such forums to reserve the forum for its intended use -> regulation can be content-based or content-neutral…. DOES NOT MATTER HERE

Viewpoint Based -> Strict Scrutiny

Viewpoint Neutral -> Viewpoint Neutral AND rationally related to a legitimate government interest

Limited public forums
o Public property that usually is not used for speech-related activity, but that government has opened up for such activity for a particular purpose
 Ex. A school gym that has been opened up to host a political debate
 Courtroom
o To be valid, a time, place, and manner regulation of a limited public forum must be viewpoint neutral and rationally related to a legitimate government purpose

Nonpublic forum
o Government property not historically open generally for speech and assembly and not held open for specific speech activities
 Ex. Military bases or government workplaces
 The Supreme Court has held that curriculum-based public high school activities are not public forums – so they are nonpublic forums?

Question 68

Speech in Public Schools

Answer 68

School speech – restrictions must be reasonably related to educational objectives (rational-basis “school version” LOL)

Personal student speech on campus – cannot censor absent substantial disruption
- Can ban speech promoting illegal drugs

Personal student speech off campus -> limited restrictions
o Prevent bullying, cheating, and threats
o Safety or educational concerns outweigh speech interests

Examples
o Suspension of student wearing a black armband in class without incident to protest a war -> not valid
o Suspension of student for passing notes in class -> valid – substantial disruption
o Censorship of a newspaper article about a student pregnancy or about marijuana for a high school journalism class -> valid
o Suspension for posting “fuck cheer” on social media on the weekend after failing to get on the varsity cheerleader squad -> not valid

Question 69

Speech in Public Employment

Answer 69

Some speech is unprotected
- Workplace speech on matters of private concern if disruptive of the work environment
- Speech made on the job and is pursuant to employee’s official duties, even if the speech touches on a matter of public concern

Some speech is protected
- Speech as private citizen on matters of public concern -> balance value of speech with interest in efficient workplace
- Speech as private citizen on matters of private concern -> unclear, probably protected absent detrimental effect

Question 70

Vagueness Doctrine

Answer 70

Due Process Clause invalidates laws that do not give reasonable notice of what is prohibited
o Based on 1A applies more strictly in free speech context

Question 71

Overbreadth

Answer 71

Invalid if bans substantially more speech than necessary
o Ex. A regulation outlawing all 1A activity in an airport terminal

Question 72

Prior Restraints

Answer 72

Court orders or administrative systems that prevent speech before it occurs, rather than punish it afterwards

Types: Injunctions & licensing schemes

Disfavored but treated under standard free speech doctrine
o Content-based -> strict scrutiny
o Content-neutral -> intermediate scrutiny

To be valid it must be:
o Well-defined standards
o Prompt appeals and judicial determination
o No unfettered discretion

Question 73

Freedom of the Press

Answer 73

Generally, the press has no greater 1st Amendment freedom than does a private citizen

Generally, press has a right to publish truthful info regarding a matter of public concern

1A guarantee the public and press a right to attend criminal trials

Right may be outweighed by an overriding interest stated in the trial judge’s findings
- Example -> To protect children who are victims of sex offenses

Question 74

Government Speech

Answer 74

Government speech and government funding of speech will be upheld if it is rationally related to a legitimate state interest
Ex. President Speech and city placing a monument in state park

Question 75

Freedom of Association

Answer 75

Government may neither prohibit politically unpopular groups nor unduly burden a person’s right to belong to such groups

Question 76

Free Exercise Clause

Answer 76

Prohibits government from punishing someone on the basis of their religious beliefs or related religious status of conduct
o Religious beliefs covered based on role in believer’s life
o Court’s can question sincerity, not truth of religion

Law or other government conduct that discriminates on the basis of religion is subject to strict scrutiny -> narrowly tailored to achieve compel lining government purpose
o SCOTUS has NEVER found an interest so compelling that it justifies this action LOL

A law is discriminatory if it is either:
o Not neutral on its face (law expressly provides favored or disfavored treatment based on religious belief, conduct, or status) or
o Facially neutral but not generally applicable (that is, the law is silent with regard to religion but, by design, it targets religion generally or religion in particular)

Question 77

Establishment Clause

Answer 77

Prohibits government sponsorship of religion, meaning the government cannot aid or formally establish a religion -> compels the government to pursue a course of neutrality toward religion

Question 78

Establishment Clause Test

Answer 78

1. Neutrality
   o Government remains neutral
2. Coercion Prohibited
   o Government cannot directly/indirectly coerce people to exercise/not exercise religion
3. History and Tradition
   o Whether the government action (1) accords with history and (2) faithfully reflects the understanding of the Founding Fathers