Constitutional Law

Question 1

What is commercial speech?

Answer 1

Commercial speech includes advertisements, promotions of products and services and brand marketing.

Question 2

Does the 1st Amendment protect commercial speech?

Answer 2

It is partially protected.

Commercial speech that is false or misleading is NOT protected by the 1st Amendment, regardless of whether speaker knew it was/not.

BUT truthful protected speech about lawful products/services ARE protected by 1A and subject to intermediate scrutiny.

Question 3

When is a regulation on commercial speech upheld?

Answer 3

It serves a substantial govt interest (often consumer protection) AND directly advances that interest AND
is narrowly tailored to serve that interest (just needs to be a reasonable fit % goal and the means chosen)

Question 4

What are content based restrictions on speech? How are they interpreted?

Answer 4

A regulation is content based if restricts speech based on the subject matter or viewpoint of the speech.

These are presumptively unconstitutional (unless unprotected) and subject to strict scrutiny.

Rarely pass SS. Govt must prove the restriction is necessary to further a compelling govt interest.

Question 5

What are content-neutral speech regulations? How are they interpreted?

Answer 5

Means that it burdens all speech, no matter what the content, topic, or ideology.

Subject to intermediate scrutiny. They must advance important interests unrelated to the suppression of speech and must not burden more speech than necessary (or be narrowly tailored) to further those interests.

Question 6

What are the 3 levels of scrutiny and their thresholds?

Answer 6

Strict, intermediate and

Question 7

Are Congress’ spending powers disputable?

Answer 7

No, Congress has plenary authority to determine the objects of it its spending and the methods used to achieve them, so long as they may reasonably be deemed to serve the general welfare and do not violate any prohibition in the Constitution.

Question 8

What is procedural due process?

Answer 8

It is the requirement that the state act with adequate or fair procedures when it deprives a person of life, liberty or property.

Due process contemplates fair process/ procedure which requires at least an opportunity to present objections to the proposed action to a fair, neutral decision maker.

The thing taken away must constitute ‘property’ and there must be a legitimate claim or ‘entitlement’ to the benefit under state/federal law.

Question 9

What is included in ‘property’ under procedural due process?

Answer 9

Can be real or person, includes intangibles.
Govt benefits to which there is an entitlement.
Includes: welfare benefits, public education, government licenses, and tenured government employment or term employment for the duration of the term or employment for ‘cause’, but not at-will employment

Question 10

What kind of government action does there need to be to state a procedural due process claim?

Answer 10

There must be an intentional or reckless govt action

Negligence is NOT enough to be deprived of DP.

Question 11

What process is a person entitled to receive under the due process clause?

Answer 11

Proper process usually involves 2 requirements:
1. Notice; and
2. An opportunity to respond BEFORE termination of that interest.
(court may allow a post-termination hearing in situations where a pre-termination hearing is highly impracticable).

Due process requires an opportunity to present objections to the proposed termination to a fair, neutral decision-maker.

Question 12

Under the procedural due process clause, what constitutes a ‘fair process’?

Answer 12

In terms of timing and scope of the hearing, it depends on the circumstances of the deprivation. The court will weigh:
1. The importance of the individual interest involved
2. The value of specific procedural safeguards to that interest; and
3. The governmental interest in fiscal and administrative efficiency.

Question 13

What does the supremacy clause state?

Answer 13

A federal law may supersede or preempt state (or local) laws.

Question 14

What are the 3 ways in which preemption comes about?

Answer 14

Express =
If a fed statute says that a fed law is exclusive in a field, then state and local laws are preempted.
ANY state law – including any state criminal law, that conflicts with federal law, would be preempted (i.e. rendered invalid by superior federal law).

Implied =
(i) impossibility - impossible to comply with state + federal law, fed wins
(ii) federal objective - state law impedes the achievement of a fed objective, then state law is deemed preempted, even if no conflict

Field Preemption =
if Congress evidences a clear intent to preempt state law (i.e. occupy the field), then state law is deemed preempted, even if nonconflicting

Question 15

What is the presumption against preemption?

Answer 15

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

Question 16

What is a public forum? And a designated public forum?

Answer 16

Public forum: property that has historically been open to speech-related activities (streets, sidewalks, public parks, the internet).

Designated public forums: public property that has nto historically been open to speech-related activities but which govt has opened for such activities on a perm/temp basis by practice or policy.

Question 17

How does the govt regulate speech in public +designated public forums?

Answer 17

With reasonable time, place and manner regs.

To avoid strict scrutiny, govt regulations of speech and assembly in these forums must:
(i) be content neutral (subject and viewpoint neutral)
(ii) be narrowly tailored to serve an important govt interest; and
(iii) leave open alternative channels of communication

Question 18

Is there constitutional immunity from being liable in tort where someone deprives someone else of the commercial value of their performance because of their right to publish information (under 1A and 14A)?

Answer 18

NO! Even if you have a right under the constitution, it does not mean you have immunity in tort if you have deprived someone of something. The constitutional right is not absolute, the right does not provide immunity from any liability for exercising it.

E.g. constitutional protections fro freedom of the press - the privilege is limited and not absolute and soe not provide immunity from any liability for press coverage.

Question 19

What are suspect classifications?

Answer 19

Race, national origin or alienage

If govt actions classifies people based on exercise of a fundamental right or involves a suspect classification, strict scrutiny is applied.

Question 20

What are fundamental rights

Answer 20

Fundamental rights are the 1A rights:
The right to interstate travel
Privacy-related rights SUCH AS???
Voting

If govt actions classifies people based on exercise of a fundamental right or involves a suspect classification, strict scrutiny is applied.

Question 21

What is substantive due process? Where does it derive from?

Answer 21

This guarantees that laws will be reasonable and not arbitrary. Derives from the Due Process clause of 5A (applies to Federal) and Due Process Clause of 14A (applies to state and local govts).

Question 22

What is an equal protection claim - when does it arise?

Answer 22

An equal protection claim arises whenever the govt treats people differently from others. It is brought under the Equal Protection Clause of the 14A and is limited to state action (it does not apply to Federal govt).

BUT due process clause of 5A contains an equal protection component - applicable to Federal.

Question 23

Freedom of the press - what is the general rule around their rights

Answer 23

The press has a right to publish info about a matter of public concern and this applies even if the information has been unlawfully obtained in the first instance, as long as:
(1) the speech relates to a matter of public concern;
(2) the publisher did not obtain it unlawfully or know who did; and
(3) the original speaker’s privacy expectations are low

Question 24

What scrutiny are content based restrictions on the press subject to?

Answer 24

Strict scrutiny

Question 25

Does the press have a right to access trials?

Answer 25

Yes, under the 1A, BUT the right may be outweighed by an overriding interest stated in the trial judge’s findings (e.g. protecting children who are victims of offenses).

Question 26

Does freedom of the press, as protected by the 1A, protect the press activity from other laws, such as a claim in contract?

Answer 26

No! The freedom of the press protections to not exempt press activities from laws of general application such as contract law.

Question 27

What are the applicable standards for an equal protection claim (i.e. strict etc)

Answer 27

Fundamental right/suspect classification = strict scrutiny

Quasi-suspect classification = intermediate scrutiny

Classification does not affect a fundamental right or involve a suspect/quasi-suspect classification = rational basis standard

Question 28

What power doe the Commerce Clause grant Congress? What limitation does it also create?

Answer 28

The power to regulate commerce among the states. This power also creates a limitation on each state’s ability to pass laws that affect interstate commerce. This limit = the Dormant Commerce Clause.

Question 29

What test must a NONDISCRIMINATORY state regulation affecting interstate commerce satisfy, in order to avoid violating the DCC?

Answer 29

Sometimes a nondiscriminatory state/local law that regulates commerce may impose a burden on interstate commerce. The nondiscriminatory law will be invalidated only if the burden on interstate commerce outweighs the promotion of legitimate (nondiscriminatory) interests.

i.e.
1. The regulation must pursue a legitimate state end
2. The regulation must be rationally related to that legitimate state end
3. The regulatory burden imposed by the state on ISC must be outweighed by the state’s interest in enforcing its regulation

Question 30

What is a discriminatory state regulation for the purposes of ICC?

Answer 30

A state/local regulation that discriminates against interstate commerce to protect local interests = almost always invalid.

BUT there is an exception to this - see other card!

Question 31

When is a discriminatory state regulation (DCC) permissible?

Answer 31

A discriminatory state or local law may be valid if:
1. it furthers an important, noneconomic state interest (e.g. health or safety); AND
2. there are no reasonable alternatives available.

Question 32

Why are the powers of state govts sometimes called ‘inherent’?

Answer 32

State govt holds a general ‘police power’ i.e. the power to protect the health, safety, or general welfare of state residents.

An action by a state govt is valid under federal law unless it violates any specific limitation imposed by the US constitution.

Question 33

List the scenarios where a state statute may be unconstitutional under the federal constitution?

Answer 33

1. It discriminates against out-of-state entities (P&I clause)
2. It unduly burdens interstate commerce (DCC)
3. It conflicts with federal legislation/otherwise triggers preemption
4. It is taking property without due process

Question 34

What ‘property’ rights are protected under the procedural due process clause?

Answer 34

Typically include entitlements to certain benefits under the law, such as public employment, welfare benefits. and public education.

Question 35

Do the states have any power to regulate the activities of the federal govt?

Answer 35

No, not unless Congress consents to the regulation.

Al instrumentalities and agents of the federal govt are immune from state regs relating to the performance of their federal functions.

Question 36

What does the Supremacy Clause in Art 4 of the Constitution establish?

Answer 36

The Constitution, federal laws and treaties are the supreme law of the land. State laws that interfere with or are contrary to federal law are generally invalid.

States may not regulate the property or operations of the federal govt. This principle extends to taxation - means that states cannot directly tax the federal govt (i.e. the United States or its agencies) or its instrumentalities in a way that would interfere with their operations.

Question 37

Is a state tax levied directly against the property/operation of the federal govt valid?

Answer 37

NO - not without the consent of Congress!

Non discriminatory, indirect taxes taxes on the federal govt/its property are permissible if they do not unreasonably burden the federal govt e.g. state income taxes on the salaries of federal employees are valid unless taxes imposed are higher on federal employees than on state or local employees.

Question 38

What are the two exceptions to the Dormant Commerce Clause?

Answer 38

1. Congressional approval - congress can choose to give states permission to discriminate against or burden interstate commerce.
2. The state is a market participant - the DCC does not apply where the state is a buyer or seller of goods or services
   The state is allowed to favor local firms in awarding construction contracts or states can sell local tuition at a discount to in-state residents.

Question 39

What is the strict scrutiny threshold? Who has the burden of proof?

Answer 39

A law is upheld if it is necessary to achieve a compelling govt purpose (e.g. de-segreation, national security, diversity in higher education).

The burden of proof is on the government.

Question 40

What is the intermediate scrutiny threshold? Who has the burden of proof?

Answer 40

A law is upheld if it is substantially related or narrowly tailored to an important/significant govt purpose.

Burden of proof is usually placed on the govt by courts

Question 41

What is the rational basis threshold? Who has the burden of proof?

Answer 41

A law is upheld if it is rationally related to a legitimate govt purpose.

The burden of proof is on the challenger.

Question 42

What is the free exercise clause?

Answer 42

Provision in the 1A: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’

Question 43

What laws are not subject to the free exercise clause?

Answer 43

Neutral laws of general applicability, unless it can be shown that the law was motivated by a desire to interfere with religion.

Question 44

What must be shown to establish a violation of the Free Exercise Clause?

Answer 44

The challenger must show intent to target religion by the government. When such intent is established, courts will employ strict scrutiny over the government action, which often invalidates the restriction in question.

Question 45

What sort of govt conduct is needed to show there has been a procedural due process violation?

Answer 45

An intentional or reckless government action. Govt negligence is insufficient for a PDP claim.

NB: there is a right to PDP ONLY where govt has deprived an INDIVIDUAL of life/liberty/property - there is no right to individualized adjudication when the govt acts generally (even if the result is to burden an individual’s life/liberty/property interest).

Question 46

What does procedural due process require?

Answer 46

1. Notice;
2. An opportunity to be heard; AND
3. A neutral decision maker (i.e. no bias/financial interest)

Question 47

Under PDP, how is the type and extent of the hearing determined? i.e. what constitutes a ‘fair process’ for the purposes of the PDP clause?

Answer 47

This varies according to the circumstances of the deprivation. The court will weigh:
(1) the importance of the individual interest involved
(more important the interest to the person - the more procedural protection req’d by the court)
(2) the value of the specific procedural safeguards to that interest; and
(i.e. the risk of error from the current procedures used and the benefits of additional procedures - if great benefit, the more likely the court will require them)
(3) the governmental interest in fiscal and administrative efficiency
(i.e. the burden on the govt from using additional procedures).

Question 48

Does the PDP clause create property/liberty interests or does it protect them?

Answer 48

It does NOT create property/liberty interests - its purpose is to provide procedural safeguards against arbitrary deprivation.

Question 49

What is the difference between procedural due process and substantive due process?

Answer 49

While procedural due process focuses on the fairness of procedures and legal processes, substantive due process is concerned with the content or substance of laws and government actions.

Question 50

What is the relationship % substantive due process and equal protection? How to recognize the difference in a question?

Answer 50

Both substantive DP and equal protection guarantees require the court to review the substance of a law rather than the procedures employed.
SDP - where a law limits the liberty of ALL persons to engage in some activity (i.e. it infringes on a fundamental right)
EP - where a law treats a person or class of persons differently from others (i.e. it is discriminatory)

SO on an essay:
where govt denies a fundamental right to everyone - analyze under SDP
where govt gives a fundamental right only to some people - analyze under EP AND substantive DP(?)

MBE - unlikely to include both as alternatives in the same question.

Question 51

When might substantive due process and equal protection be applied together?

Answer 51

Discriminatory Impact on Fundamental Rights: When a law or government action impacts a fundamental right and also results in unequal treatment based on a suspect classification (such as race or gender), both substantive due process and equal protection may be invoked. The courts may assess whether the law infringes on a fundamental right (substantive due process) and whether it discriminates against a protected class (equal protection).

Laws Affecting Personal Autonomy: Cases involving laws that impact personal autonomy, privacy, or intimate personal decisions often invoke both substantive due process and equal protection. For example, if a law disproportionately targets a specific group based on a suspect classification and interferes with personal autonomy or fundamental rights, both principles may be considered in evaluating its constitutionality.

Question 52

What are the two clauses protecting substantive due process?

Answer 52

1. Due process clause of the 5th amendment (applies to federal govt)
2. due process clause of 14th amendment (applies to state and local govts)

Question 53

What tests does the court apply when reviewing laws under SDP and EP?

Answer 53

1. Strict scrutiny
2. Intermediate scrutiny
3. Rational basis review

Question 54

Does the equal protection clause apply to the state government?

Answer 54

NO! The Equal Protection clause of the 14th A has no counterpart in the constitution that applies to federal govt. It is limited to state action.

BUT grossly unreasonable discrimination by the federal govt will violate the Due Process CLause of the 5th A.

Question 55

List FUNDAMENTAL RIGHTS

Answer 55

• The First Amendment Rights
• The Right to Interstate Travel
• Privacy-related rights (marriage, procreation, use of contraceptives, rights of parents, keeping extended family together, obscene reading material.
• Voting

NB - State may reasonably gather and distribute information about its citizens, e.g. there is no privacy right to prohibit the accumulation of names and addresses of patients for whom dangerous drugs are prescribed.

Question 56

What has to be shown to establish discrimination on the part of the government, for the purposes of EP?

Answer 56

INTENT and EFFECT

The mere fact that legislation/govt action has a discriminatory effect is NOT sufficient to trigger strict/intermediate scrutiny - there must be INTENT! 3 ways to show govt intent (see other card)

Question 57

What are the 3 ways that the govt can be shown to have had INTENTION to discrimination and so trigger strict/intermediate scrutiny under EP clause?

Answer 57

1. Facial discrimination
2. Discriminatory application
3. Discriminatory motive

Question 58

What is facial discrimination for the purposes of EP?

Answer 58

A method of proving intent to discriminate on the part of the govt in order to trigger strict/intermediate scrutiny.

A law that makes an explicit distinction between classes of persons (e.g. race or gender). discriminatory by its very terms.

Question 59

What is discriminatory application for the pruposes of EP?

Answer 59

A method of proving intent to discriminate on the part of the govt in order to trigger strict/intermediate scrutiny.

A law that appears to be neutral on its face but is applied in a different manner to different classes of persons.

Persons challenging the govt action must show that govt officials applying law had discriminatory intent/purpose in order for law to be invalidated.

Question 60

what is discriminatory motive for the purposes of EP?

Answer 60

A method of proving intent to discriminate on the part of the govt in order to trigger strict/intermediate scrutiny.

Govt action that appears to be neutral on its fact and in its application but will have a disproportionate impact on a particular class of persons (e.g. racial minority or women).

Requires a showing of discriminatory intent/purpose on behalf of law making body that enacted or maintained law (as with discriminatory application)

Question 61

What is the SC’s review of state court judgements limited to?

Answer 61

Questions of federal law

So SC can determine whether a state court has reached a decision that is not in conformity with the US Constitution BUT it may NOT review a state court decision that merely adjudicates questions of state law.

Question 62

Via the 14th amendment, constitutional protections have been extended to state and local governments. What can state laws governing on these matters do?

Answer 62

State law can provide additional protections but CANNOT provide less protections - Bill of Rights = the baseline.

Question 63

In what case will the SC not exercise jursidiction over a state court judgment?

Answer 63

If the state court judgement is based on ADEQUATE and INDEPENDENT state law grounds - even if federal issues are involved.

They are adequate if they are fully dispositive of the case.

Independent - if the decision is NOT based on federal case interpretations of identical federal provosions.

IF the state court has NOT clearly indicated that its decision rests on state law, the SC may hear the case.

Question 64

If a state court decision rests on two grounds, one that’s state law and one that’s federal law, and if the Supreme Court’s reversal of the federal law ground will not change the result in the case, can the SC hear the case?

Answer 64

NO! because the result in the case is based on adequate and independent state grounds.

Question 65

In a question where a STATE supreme court judge has come to a judgment on a case and cites federal law but makes clear that it is not necessary to use it for the case (e.g. court states it need not resolve how, on the basis of these federal cases, the US SC would decide the case) and comes to a judgment based on state law. Where the US SC grants a writ of certiorari to review this decision, what should the court do?

Answer 65

Dismiss the writ as improvidently granted, because the state supreme court’s decision rests on an independent and adequate state law ground.

Question 66

Can the government require disclosure of group membership?

Answer 66

Yes, but if the disclosure would have chilling effect, restriction must meet strict scrutiny.

Question 67

What does the Freedom of Associaion prevent?

Answer 67

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

If the right to association is substantially
burdened by a content-based regulation, strict scrutiny is triggered.

But a content-neutral regulation that incidentally burdens association is only subject to intermediate scrutiny.

Question 68

Forcing disclosure of every membership as a condition of a membership (e.g. membership to the bar), is…?

Answer 68

Unconstitutional!

The freedom of association under the 1A prevents a state from inquiring about an applicant’s associations for the purpose of withhold a right or benefit due to the individual’s beliefs (might have a chilling effect). If needed to determine character/professional competence - there are other means to determine this which = less restrictive of 1A freedoms.

State may only inquire into those activities that are relevant to the position.

Question 69

When can states deny bar admission to individuals?

Answer 69

If they are active members of subversive organizations and ONLY if they have a specific intention to further the illegal activities of the organization.

Does NOT matter if they were a member in the PAST.

NB - an individual’s membership in an association may not be deemed as an endorsement of the illegal activities of the association unless the individual has a specific intention to further those illegal activities.

Question 70

In a takings question, does it matter that the govt is taking a very small part of an owner’s land that wouldn’t affect his use or enjoyment of his land at all?

Answer 70

NO! ANY permanent physical occupation by the govt of private property is a ‘taking’ for which just compensation to the property owner is required.

IT IS IRRELEVANT that land = unused or very small.

The permanent physical occupation by the govt of the owner’s land = sufficient by itself to constitute a taking.

Question 71

When there is a due process question, what is the INITIAL burden of persuasion that must be met?

Answer 71

For a proper DP claim, govt must first take a person’s life, liberty or property SO MUST ESTABLISH THIS FIRST! (There is no general interest in having the govt behave with fair procedures).

So initial burden of persuasion = that the state law created a constitutionally-protected interest either in the right (for example the job) or in the procedures for termination.

i.e. does the thing being taken constitute property? - there must be a legitimate claim or entitlement to the benefit under state or federal law.

Question 72

When might an employment constitute ‘property’ under DP clause and when might it not?

Answer 72

Property interest when = a continued public employment when there is a state statute or ordinance that creates a public employment contract, or there is some clear practice or mutual understanding that an employee can be terminated only for ‘cause’.

No property interest = at will employment

Question 73

What is Congress’ property power?

Answer 73

It allows Congress to make rules and regulations regarding property belonging to the United States.

A federal law re property will supersede a conflicting state or local law.

Question 74

When a time/place/manner restriction question comes up (e.g. speech being conducted in a certain space is being banned), what must you do first?

Answer 74

Make a threshold determination of whether the regulation is CONTENT BASED OR CONTENT NEUTRAL. This must be done BEFORE you look at what the forum is. SO LOOK AT THE SPEECH BEING RESTRICTED FIRST.

IF content based (govt is aiming at the communicative impact of the expression) it does NOT matter whether the expression takes place in a public forum or not - WHEREVER it takes place, it is subject to strict scrutiny and is presumptively invalid.

SS = the Govt bears the burden of showing that the regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve this end.

Question 75

Strict scrutiny = _______ state interest
Rational basis = _______ state interest

Answer 75

Strict scrutiny = compelling state interest
RBR = legitimate state interest

Question 76

What must Congress use to pass a law - define what it entails.

Answer 76

Bicameralism - passage of a bill by both houses of Congress, followed by presentment to the President for signature or veto.

Attempts by Congress to create laws or control the enforcement of laws without bicameralism and presentment are invalid.

The President can only approve or reject a bill as a whole. Line item vetoes = unconstitutional.

Congress can’t retain a legislative veto, which is when Congress gives itself the authority to amend or repeal an existing law without undergoing bicameralism and presentment.

Question 77

What is a legislative veto? Can Congress do it?

Answer 77

No, Congress can’t retain a legislative veto, which is when Congress gives itself the authority to amend or repeal an existing law without undergoing bicameralism and presentment.

Question 78

When Congress passes legislation in an effort to monitor federal agencies, what must the legislative action satisfy>

Answer 78

It must satisfy the Article I requirements of bicameral approval and presidential sign off. That statute AND the provision of the legislation must both do this. Congress may not adopt a concurrent resolution without approval by the President.

Question 79

What is the Take Care Clause

Answer 79

This requires the President to take care that all laws be faithfully executed. If a President takes an action in violation of the law, it will be unconstitutional.

Question 80

What does the Appropriations Clause of Article I state re Federal spending?

Answer 80

Federal spending must be authorized by Congress.

President must, under the take care clause, take care that all laws be faithfully executed.

Question 81

In order for a valid time/place/manner restriction to be valid, restricting speech in a PUBLIC forum (or designated public forum), what must the restriction be?

Answer 81

1. Content neutral (subject matter and viewpoint)
2. Leaves open ample alternative channels of communication, AND
3. Narrowly tailored to serve an import govt interest

= intermediate scrutiny

NB - remember, if a regulation is content based, it does not matter what forum it is in - it will ALWAYS be subject to strict scrutiny.

Question 82

What is a rule of thumb when assessing if a case is moot?

Answer 82

If the only relief sought by the P is no longer available (e.g. its already been resolved).

Question 83

What is the voluntary cessation exception to mootness?

Answer 83

A party’s voluntary cessation of an unlawful practice will usually not moot its opponent’s challenge to that practice - if a litigant could defeat a lawsuit simply by temporarily ceasing its unlawful activities, there would be nothing stopping the litigant from engaging in that unlawful conduct again after the court dismissed the case.

ONLY applies where = voluntary cessation by a party to the case. IF a third party does something, the VC doctrine will not usually save that case from dismissal.

NEEDS also to be evidence that the unlawful conduct will recur. E.g. if an ordinance is passed that specifically bans the action in question before the case goes to trial and now it is moot, it is unlikely to recur as the ordinance is passed.

Question 84

When is a suit ‘ripe’?

Answer 84

It presents a ‘case’ or ‘controversy’ = ripe for adjudication.

Question 85

When is a statute overbroad?

Answer 85

When the terms of the statute are not concrete enough to allow most people to understand what is prohibited.

e.g. ‘violent or sexually explicit material that may be harmful to minors because of its pictorial content’ - what about written material?

Question 86

What is an ex post facto law? Name the criteria that must be met.

Answer 86

Neither the states nor the federal government may pass an ex post
facto law, which is a law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purpose of punishing a person for some past activity.

A statute retroactively alters a law in a substantially prejudicial manner if it:
* Makes criminal an act that was innocent when done,
* Imposes a greater punishment for an act than was imposed for the act when it was done, or
* Reduces the evidence required to convict a person of a crime
from what was required when the act was committed

Question 87

Are restrictions on the following constitutional:

1. Flag burning
2. Public nudity
3. Leafleting
4. Cross burning

Answer 87

1. Unconstitutional
2. Constitutional b/c interest in harmful effects
3. Constitutional b/c interest in littering
4. Unconstitutional unless action is meant to threaten

Question 88

What does ‘speech’ include?

Answer 88

Words, symbols and expressive conduct. Expressive conduct is any conduct that is either inherently expressive or conduct that is:
- intended to convey as message, and
- reasonably likely to be perceived ad conveying a message

e.g. flag burning

Question 89

When you are being asked whether a someone will prevail when challenging a law, what steps do you take?

Answer 89

1. Is it a fundamental right or suspect class? In which case strict scrutiny must be met for the law to be upheld?
2. Is it a quasi suspect class? (Gender legitimacy)
3. Is it something else? Likely! = RBR

Question 90

Explain strict scrutiny and when it applies

Answer 90

Regulations affecting fundamental rights (for example, interstate travel, voting, and First Amendment rights) or involving suspect classifications (that is, race, national origin, and alienage) are
reviewed under the strict scrutiny standard: The law is upheld if it is
necessary (that is, the least restrictive means) to achieve a compelling government purpose. This is a difficult test to meet, and so a law examined under a strict scrutiny standard will often be invalidated—especially if there is a less burdensome alternative to achieve the
government’s goal.

Question 91

Explain rational basis review and when it applies?

Answer 91

Regulations that do not affect fundamental rights or involve suspect
or quasi-suspect classifications (most laws) are reviewed under the rational basis standard: The law is upheld if it is rationally related to a legitimate government purpose.

This is a very easy standard to meet;
therefore the law is usually valid—unless it is arbitrary or irrational.

The person challenging the law has the burden of proof.

The rational basis standard is used to review regulations involving classifications that are not suspect or quasi-suspect, such as age, disability, and poverty.

Question 92

Is there a 1A/14A right of access to government-generated or government-controlled records? Including those kept by the executive branch?

Answer 92

No! If a state is witholding document records that is OK and if they are only restricting ACCESS and not censoring the information

Question 93

Are zoning restrictions on adult entertainment establishments constitutional?

Answer 93

Yes, if zoning is to prevent adverse “secondary effects” caused by the business, such as increased neighborhood crime (“secondary effects doctrine”)

Question 94

Is the media protected by the First Amendment for publishing a lawfully obtained private fact? (e.g. identity of a rape victim)

Answer 94

Yes, as long as story is matter of public concern (i.e. newsworthy)

Question 95

Under Art III, which cases does the supreme court have jurisdiction over? Can Congress alter this?

Answer 95

In all cases affecting ambassadors, other public ministers and consuls and those in which a state shall be a party.

Congress has the general power to decide what types of cases the US supreme court may hear as long as it does not expand the court’s original jurisdiction beyond the federal judicial power as established by Art III.

Question 96

Alienage is a ‘suspect’ class under Equal Protection. What is the standard of review for federal govt classifications based on alienage?

Answer 96

Equal protection is LIMITED to STATE action.

The standard of review for federal govt classifications based on alienage is not clear but the do NOT seem to be subject to strict scrutiny.

Because of Congress’ plenary powers over aliens, these classification are valid if they are NOT arbitrary and unreasonable.

Federal alienage restrictions = subject to RBR.

Question 97

What does the Property Clause give Congress the power to regulate?

Answer 97

The power to regulate, buy and sell federal property. It gives Congress the power to make all necessary rules and regulations concerning the property of the US e.g. an act prohibiting the destruction or removal of any wild animals located on lands owned by the United States would be firmly within Congress’ power to regulate.

If a state has a conflicting law on this, the supremacy clause provides that validly enacted federal laws supersede conflicting state laws.

Question 98

What type of scrutiny to government affirmative action programs trigger? What has to be proven?

Answer 98

Strict scrutiny!

Is there a compelling interest?

Govt has a compelling interest in remedying PAST discrimination against a racial or ethnic minority. SO if govt agency has engaged in racial discrim, it may employ a race-concious remedy, tailored to end the discrimination and eliminate its effects. This is permitted under EPC because it is narrowly tailored to further a compelling interest.

BUT if there has been no past discrim by the Govt, it may have a compelling interest in affirmative action BUT it must be NARROWLY TAILORED.

E.g. discrimination within govt agencies = compelling interest BUT there is no compelling interest in remedying the general effects of societal discrimination. SO for a city to give preference to minority race applicants it must identify the past unconstitutional or illegal discrimination that it is now attempting to correct.

If set asides don’t meet a compelling interest, they are unconstitutional discrimination against members of the majority race, in violation of equal protection.

Question 99

What might be required for a due process of law?

Answer 99

Depends on the circumstances of the deprivation. Court will weigh:
- importance of the individual interest involved
- the value of the procedural safeguards to that interest
- the governmental interest in fiscal and administrative efficiency.

Such as:
- the ability to cross-examine accusers
- a fair, neutral, decision maker (judge)

Question 100

What does the Commerce Clause of the constitution give Congress the power to regulate? What criteria must the regulations meet?

Answer 100

It gives Congress the power to regulate commerce among the states and by negative implication (i.e. negative commerce clause), restricts the regulatory power of the states with respect to interstate commerce.

ANY law that has a SUBSTANTIAL effect on I-S-C must not be protectionist or otherwise impose an UNDUE burden on interstate commerce.

A protectionist law benefits in-state interests at the expense of out-of-state interests. What makes a law protectionist? A state law that discriminates against interstate commerce unless it serves a LEGITIMATE LOCAL INTEREST that cannot be served by non-discriminatory legislation.

Question 101

What is a protectionist law for the purposes of interstate commerce?

Answer 101

A protectionist law benefits in-state interests at the expense of out-of-state interests. What makes a law protectionist? A state law that discriminates against interstate commerce unless it serves a LEGITIMATE LOCAL INTEREST that cannot be served by non-discriminatory legislation.

Question 102

When are state regulations of local matters subject to the negative implications of the commerce clause?

Answer 102

State regulations of local matters are subject to the negative implications of the Commerce Clause IF they have a substantial effect on interstate commerce.

When Congress regulates interstate commerce, conflicting state laws are superseded and even nonconflicting state or local laws in the same field may be preempted.

If Congress has not enacted laws regarding the subject, a state or
local government may regulate local aspects of interstate commerce.
To do so, however, the state or local government must not discriminate
against or unduly burden interstate commerce. If it does, the state or local regulation will violate the Commerce Clause.

Question 103

What is a Bill of Attainder?

Answer 103

Bills of attainder are legislative acts that inflict punishment on individuals
without a judicial trial. Both federal and state/local governments are prohibited from passing bills of attainder.

BoA require criminalization of certain named individuals or past conduce without a trial - NOT proscribing specific conduct that anyone engages in going forward. It punishes illegal conduct that was NOT illegal at the time it was committed.

Question 104

Is the federal govt immune from state regulatory interference? Will a federal employee be free of state regulation while acting in the course of his federal duties?

Answer 104

Yes it is essentially.

Sometimes a federal employee will be free of state regulation while acting in the course of his federal duties. They are immune from state laws that interfere with their obligation to carry out an authorized function, e.g. US letter carriers.

An interfering state statute cannot be applied to US letter carriers as employees of a federal instrumentality carrying out an authorized function.

Question 105

What is the free exercise clause?

Answer 105

Prohibits the govt from punishing/denying benefits to or imposing burdens on someone on the basis of the person’s religious beliefs.

The Free exercise clause and the establishment clause are applicable to the state under the 14th amendment.

Laws that intentionally target religious beliefs = SS

Laws that incidentally impact religious beliefs = RBR

Question 106

How can states regulate religious laws?

Answer 106

States are free to adopt religiously neutral, generally applicable laws regulating conduct, and this is true even if the prohibition or regulation happens to interfere with a person’s religious practices.

When a neutral law of general applicability impacts a religious practice, the law is subject to rational basis review, There is no inquiry into the impact or the sincerity of the religious beliefs - the law must merely be rationally related to a conceivable legitimate state interest.

Question 107

How should you approach a bar question re interstate commerce

Answer 107

1. See if the question refers to any federal legislation that might be held either to:
   (i) supersede the state regulation or preempt the field, or
   (ii) authorize state regulation otherwise impermissible
2. If none of these possibilities is dispositive of the question, ask if the state legislation wither DISCRIMINATES against interstate or out-of-state commerce or places an UNDUE BURDEN on the free flow of interstate commerce.

If the legislation is discriminatory, it will be invalid unless:
(i) it furthers an important state interest AND there are no reasonable non-discriminator alternatives, or
(ii) the state is a market participant.

If the legislation does NOT discriminate but burdens ISC, it will invalid if the burden on commerce outweighs the state’s interest. Consider whether there are less restrictive alternatives.

Question 108

Can a state impose a tax directly on the federal govt or any of its agencies?

Answer 108

NO! A state may not directly impose a tax on the federal govt or its agencies, even if the tax is nondiscriminatory.

Question 109

What are the appointment powers vested in the president? Is Congress allowed to make appointments?

Answer 109

The President is empowered with the advice and consent of the senate (i.e. one of the 2 houses in Congress), to appoint all ambassadors, other public ministers, consuls, judges and other officers of the US.

Congress is NOT allowed to make appointments - it is only allowed to appoint its own officers to carry on internal, legislative tasks. It may NOT appoint members of a body with administrative enforcement powers - these people are ‘officers of the United States’ and MUST be appointed by the president with senatorial confirmation UNLESS Congress has vested their appointment in the President alone, in federal court or in the heads of depts.

Question 110

What is the difference between the Ex Post Facto Clause and a Bill of Attainder?

Answer 110

Ex Post Facto ONLY applies to criminal or penal measures. It is a legislation that retroactively alters the criminal (NOT civil) law in a substantially prejudicial manner so as to deprive the person of any right previously enjoyed for the purpose of punishing the person for some past activity.

SO where you see a hypo when people are being punished retoractively for something/a statute is punishing them for past conduct, if it is NOT criminal conduct - LOOK at Bills of Attainder.

Bill of Attainder is law or legislative action, federal or state, that punishes specifically-named individuals or groups for past or future conduct without a trial. E.g. a statute barring particular individuals from government employment qualifies as punishment within the meaning of the constitutional provision prohibiting bills of attainder.

Question 111

What does the 11th Amendment bar?

Answer 111

Prohibits a federal court from hearing a private party’s or foreign govts claims against a state govt.

Question 112

What is the full faith and credit clause?

Answer 112

Requires states to honor any rulings, decisions and public records from other states - requires federal court to only give full faith and credit to state laws that DO NOT conflict with federal laws.

Question 113

What are the 1A standard for govt restrictions on commercial speech?

Answer 113

Commercial speech incluldes advertisements.

Intermediate judicial scrutiny - requires the govt to show that the restriction directly advances an important govt interest and that the restriction is not substantially more extensive than necessary to protect the interest.

Question 114

What is the 15th Amendment? What is the enabling clause it contains?

Answer 114

It prohibits any government from denying any citizen the right to vote on account of race or color.

It contains an Enabling Clause that allows Congress to adopt legislation protecting the right to vote from discrimination e.g. where someone is claiming the right of minority groups to vote is being inhibited by a current system.

Question 115

Can a local body regulate any part of the federal govt e.g. a federal agency’s activities?

Answer 115

NO, under the supremacy clause, a local body may not regulatge any part of the federal govt. SO as long as the federal agency is involved in a lawful federal function, a state/city may not prohibit it from performing that function WITHOUT the consent of congress.

Question 116

Does Equal protection apply to corporations? How about due process?

Answer 116

NO - EP- applies to PEOPLE ONLY! It protects INDIVIDUALS from actions bt the state (14th Amendment) and the Federal govt (5th Amendment). EP only restricts private action in extremely specific circumstances.

Due Process does apply to corporations.

Question 117

What must content-based regulations satisfy?

Answer 117

Strict scrutiny - must be a compelling govt interest that the regulation must be narrowly tailored to achieve.

Question 118

Can Congress limit the president’s pardon power (e.g. by veto)

Answer 118

NO! The President has the power to grant pardons except in the case of impeachment. That power is NOT qualified in any way and Congress cannot qualify it –> unconstitutional.

Question 119

How can the President exercise a valid veto? Can Congress override and how?

Answer 119

If the President disapproves/vetoes an act of Congress, the act may still become law if the veto is overridden by 2/3 vote of each house.

Pres has 10 days to exercise veto power, if he fails to act within that time, the bill is automatically vetoed if Congress is not in session, if Congress is in session, the bill becomes law.

Line item vetoes = unconstitutional.

Question 120

HYPO: a company buys a tract of land with coal deposits which the co intended to mine. A regulation bans the mining activity the co planned. The co sold the tract of land to a farmer but the co still lost the cost of mining equipment and the profits it expected to earn.

Is this a taking? What should the co be able to recover?

Answer 120

NO! This is NOT a taking!

5th amendment prohibits governmental taking of private property for ‘public use without just compensation’.

Regulations (i.e. use restrictions) will also constitute a taking if there is a denial of all economic value of land because such a regulation is equivalent to a physical appropriation. IF the regulation merely decreases the value of the property (e.g. prohibits its most beneficial use) it will NOT necessarily result in a taking as long as an economically viable use for the property remains. Court considers:
(i) the social goals to be promoted;
(ii) the diminution in value to the owner; and
(iii) whether the regulation substantially interferes with distinct, investment-backed expectations of the owner.

Remember - future profits do not constitute a property interest under the takings clause.

Question 121

Where legislation is gender-neutral (even if it has a disparate effect on women), what level of scrutiny must it satisfy?

Answer 121

When a state law DOES intentionally discriminate on the basis of sex, it must satisfy intermediate scrutiny - requires govt to prove that the action is substantially related to an important govt interest.

In Sex discrimination cases, the P must show a discriminatory purpose behind the regulation in order to trigger a heightened judicial review, not merely a discriminatory effect. Where legislation is gender-neutral (even if it has a disparate effect on women) - it only needs to satisfy RBR.

Question 122

What does the Contract Clause prevent?

Answer 122

The Clause prevents only substantial impairments of contract (i.e. destruction of most or all of a party’s rights under a contract).

BUT - not all substantial impairments are invalid. 3 part tests to determine whether the legislation:
1. Substantially impairs a party’s rights under an existing contract
2. Serves an important and legitimate public interest; and
3. Is a reasonable and narrowly tailored means of protecting that interest

Question 123

What must be present for Congress to be able to regulate an interstate activity/commercial activity?

Answer 123

Congress can only regulate commercial activities with links to interstate commerce.

E.g. prohibiting the possession of something is a noncommercial activity with no link to interstate commerce.

Congress’ power under the Commerce Clause must regulate under one of four categories:
(i) channels of interstate commerce;
(ii) instrumentalities of interstate commerce and persons and things in interstate commerce;
(iii) articles moving in interstate commerce; or
(iv) activities that have a substantial effect on interstate commerce

Question 124

HYPO: in a case where a community is trying to prevent a state agency from carrying out of a law, can they sue the appropriate officials in federal court in order to get an injunction to prevent the agency from going ahead?

Answer 124

NO! The case is not ripe for adjudication -

Ripeness is established by showing 2 things:
- the issues are fit for a judicial decision AND
- the P would suffer substantial hardship in the absence of review

To avoid issuing advisory opinions, court wait until laws and policies have been formalized and can be felt in CONCRETE ways SO pre-enforcement reviews of laws or policies are generally not ripe.

Generally, an issue is NOT fit for judicial decision if it relies on uncertain or contingent future events that might not occur. A P would also need to show that they would have to risk SUBSTANTIAL HARDSHIP to provoke enforcement of law. More hardship a P can show, the more likely the court will find the case to be ripe.

In this question it depends what the agency is doing - if they are just inspecting an area to see if its appropriate for something, that is not a risk of harm. The residents would only face a risk of harm if the agency then went onto select their community as a site for their project SO depends on facts whether the risk of harm is there.

Question 125

What does the 11th Amendment bar?

Answer 125

11th Amendment = sovereign immunity. It bars a private party’s suit against a state in federal and state court.

EXCEPTIONS (be able to recognize these!) :
- express waiver (state consents)

-implicit consent/structural waiver (applies when (i) a federal power is complete in itself AND (ii) the states implicitly consented to the federal govt exercising that power as part of the constitution - the waiver extends to suits brought by the federal govt as well as to suits by private parties if Congress delegates its power.

• actions against local govts (a city or county) and police depts
• suits by other states or the federal govt
• bankruptcy (person can sue a state in bankruptcy proceeding)
• certain actions against state officers (person 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 - BUT cannot seek retroactive damages)
• congress removes the immunity

Question 126

What is the political question doctrine?

Answer 126

Political questions will not be decided. These are issues (1) constitutionally
committed to another branch of government or (2) inherently
incapable of judicial resolution.

Examples of political questions:

Challenges based on the “Republican Form of Government” Clause
of Article IV; challenges to congressional procedures for ratifying constitutional amendments; the President’s conduct of foreign policy; and partisan legislative apportionment (that is, political gerrymandering) are political questions.

Question 127

Is picketing a form of speech?

Answer 127

Yes it is conduct but considered ‘expressive conduct’ because:
(i) the picketer intends to communicate a message; and
(ii) the audience is likely to understand the message.

Expressive conduct = protected by the Free Speech Clause of the 1A.

Question 128

What are Congress’s powers in relation to bankruptcy?

Answer 128

Art 1, section 8 = Congressional power to establish laws governing bankruptcy. SO Congress can govern bankruptcy proceedings.

Congress also has the right to ‘regulate the jurisdiction of the lower federal courts and make ‘exceptions’ to that jurisdiction.

Question 129

Can Congress regulate ‘the general welfare’ of states?

Answer 129

NO - Congress may tax and spend for the general welfare it may NOT regulate for the general welfare.

Question 130

what does the 14th Amendment prohibit?

Answer 130

Prohibits STATES (not federal govt or private persons) from depriving any person of life, liberty, or property without due process and equal protection of the law.

14th Amendment ONLY applies if there is action by a state OR local govt, govt officer or private individual whose behavior meets the requirements for state action.

Question 131

The 14th Amendment (DP and EPC) only applies when there is a state action or state actor depriving someone from life/liberty/protection. BUT who is a state actor/what is state action and how is this determined?

Answer 131

14th Amendment ONLY applies if there is action by a state OR local govt, govt officer or private individual whose behavior meets the requirements for state action.

‘State action’ ALSO exists whenever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens. HOWEVER there MUST be some sort of affirmative act by the state approving the private action - it is NOT enough that the state permits the conduct to occur.

E.g. it is not enough that a state has provided partial funding, accreditations, or regulation of a private university to render the university’s conduct state action (the mere receipt of federal or state funds is not sufficient to make the recipient a federal or state actor).

SO for the actions of a private entity to satisfy the ‘state action’ requirement, the state must be significantly involved’ in the private entity. Merely granting a license or providing essential services is insufficient.

The state must affirmatively facilitate, encourage or authorize the discrimination. State must be significant involved and taken an affirmative act to support the private entity’s action.

Accreditation, regulation and partial finding of a university by the state does not render the uni’s conduct state action.

Question 132

What does the privileges and immunities clause under the 4th A protect?

Answer 132

Individuals have a fundamental right to travel from state to state which encompasses the right:
(i) to leave and enter another state’ and
(ii) be treated equally and enjoy the same privileges and immunities as other citizens of that state if they become permanent residents.

Question 133

When a state uses a durational residency requirement (waiting period) for dispensing benefits to a new citizen of a state, what must you look at?

Answer 133

Such a regulation would be subject to STRICT SCRUTINY - the govt must show that the waiting period requirement is tailored to promote a compelling interest.

Rights = under P&I clause of 14A

e.g. a one year waiting period before a person may receive state-subsidized medical care is invalid.

REMEMBER that where there is a breach and a law is NOT narrowly tailored and is imposing a waiting requirement on a new citizen of a state, the right that is being breached is there RIGHT TO TRAVEL - this is what is encompassed in the P&I clause - it is the right for an individual to interstate travel and part of that right is being entitled to benefits in the new state.

NB - there is NOT a fundamental right to healthcare, there is a fundamental right to travel.