Constitutional Law

Question 1

Case or Controversy

Answer 1

There must be an ongoing dispute across all review levels. To present a case or controversy, a dispute must satisfy the requirements of:

(1) standing,
(2) ripeness, and
(3) mootness.

The case must not present a political question.

Question 2

Standing

Answer 2

A party has standing if three requirements are met:
(1) an injury or imminent injury,
(2) caused by the defendant’s actions, and
(3) the court can provide a remedy.

Statutes create legal rights, not standing. Citizens can sue the government in Establishment Clause disputes.

Question 3

Third-Party Standing

Answer 3

A party cannot assert another’s claims without third party standing. Third party standing is granted if:
(1) a special relationship exists,
(2) the injured party cannot or will not assert their rights, or
(3) they have organizational standing.

Organizational standing: the organization has suffered, or
(a) members individually have standing,
(b) the injury is germane to the organization’s purpose, and
(c) neither claim nor relief requires individuals.

Question 4

Ripeness

Answer 4

A dispute has developed enough to:

1. Warrant a DECISION
2. Include concrete ISSUES
3. Potential ENFORCEMENT, and
4. Presence of HARM or immediate threat of harm.

Question 5

Commerce Clause

Answer 5

Congress has the authority to regulate Interstate commerce, including:
(1) channels,
(2) instrumentalities, and
(3) economic activities with substantial effects on commerce.

Congress can regulate intrastate non-economic activities, if it individually and substantially affects interstate commerce.

Question 6

Dormant Commerce Clause

Answer 6

State & local laws are unconstitutional if they put an undue burden on interstate commerce.

Facially discriminatory laws: burden interstate commerce, and are not necessary to achieve an important government purpose.

Hidden discrimination: the law violates the ICC, and the burdens of the law outweigh the benefits.

Such laws are valid if:
(1) they have express approval from Congress, or
(2) the state is a market participant in the regulated area.

Question 7

State Taxation and Intergovernmental Immunity

Answer 7

A tax imposed by a state imposes an unfair burden unless:

(1) the taxed activity has a substantial nexus to the state;
(2) the tax is fairly apportioned; and
(3) the tax fairly relates to services provided by the state.

NO taxing federal activity

Question 8

Appointments Clause

Answer 8

The President, with the advice and consent of the Senate, may appoint principal officers. Congress can empower the President, courts, or department heads to appoint minor officers.

Question 9

Police Power

Answer 9

Congress has no general police power. Congress can legislate for military bases, reservations, federal land, and Washington DC. States do retain the police power within their boundaries.

Question 10

Supremacy Clause

Answer 10

Federal law trumps conflicting state or local laws.

Express preemption: exclusive authority provision, narrowly construed, overrides the state law.

Implied preemption: courts presume the state law is valid unless Congress intended to supersede state law by:
(1) mutual exclusivity,
(2) the state law is impeding a federal objective, or
(3) there was a clear intent to legislate exclusively.

Question 11

Article IV Privileges & Immunities

Answer 11

No discrimination by states against “fundamental rights.” A state can show substantial justification by no less restrictive means to solve a problem. If the law is non-discriminatory, still check whether it violates the interstate commerce clause or the dormant commerce clause.

Question 12

State Action vs Private Action

Answer 12

Constitutional rights are enforceable against government entities. Private action can be considered government action if:
(1) the government is significantly involved in the private action, or
(2) the private action is traditionally and exclusively government action. Essential services are not state action.

Question 13

Equal Protection Clause

Answer 13

EPC protects against government discrimination. Facially discriminatory laws draw distinctions. Facially neutral laws are discriminatory only if there is discriminatory impact and intent.

Strict Scrutiny is used against racial & national origin discrimination.

Intermediate scrutiny: gender and illegitimate children.

Rational Basis: all other issues.

Question 14

Rational Basis Review

Answer 14

A law will be upheld if it is rationally related to a legitimate government purpose. “Legitimate” may be any conceivable, permissible purpose (needn’t be actual purpose).

Challenger has burden of proof.

Question 15

Intermediate Scrutiny

Answer 15

A law will be upheld only if the government shows it is substantially related to an important government purpose.

The government has the burden of proof. It must be the actual purpose, with means narrowly tailored to achieve the purpose.

Question 16

Strict scrutiny

Answer 16

The government must show that a law was:
(1) necessary,
(2) to achieve a compelling government purpose; and
(3) it was the least restrictive means of achieving the government’s goal. The government has the burden of proof.

Question 17

Alienage (Citizenship)

Answer 17

Discrimination based on citizenship is subject to strict scrutiny. Exceptions are:

(1) if there is a congressional law regarding immigration, or
(2) if the state law is related to self-government or democratic process.

Question 18

Right to Travel

Answer 18

Subject to Strict Scrutiny.

Durational residence requirements can be allowed in certain cases:
(1) right to vote = 30 days,
(2) get a divorce = 1 year.

Question 19

Substantive Due Process

Answer 19

Shields from government encroachment on fundamental rights. Subject to strict scrutiny.

Categories of fundamental rights include: marriage, procreation, custody and upbringing of children, contraceptives, homosexual activity, refuse medical treatment, bear arms, travel, or vote.

Education is NOT a fundamental right.

Question 20

Procedural Due Process

Answer 20

In order for the government to deprive someone of life, liberty, or property, there must be a fair process (notice & a hearing).

Balancing test, between:

1. The importance of the individual interest;
2. The value of procedural safeguards; and
3. The government’s interest.

Question 21

Takings Clause

Answer 21

Government can take private property for a public purpose, but it must provide fair compensation to the owners of that property.

Possessory taking = confiscation or occupation

Regulatory taking = NO reasonable economically viable use of the property remains.

Compensation is based on loss incurred by the owner in terms of reasonable market value.

Question 22

First Amendment: Prior Restraint

Answer 22

Prevents speech before it occurs. The government must show that the restraint is narrowly tailored to achieve a compelling or significant government interest.

Question 23

First Amendment: Vagueness

Answer 23

If a regulation fails to give people reasonable notice of what is permitted, it may violate the due process clause.

Question 24

First Amendment: Overbroad

Answer 24

Regulation is overbroad and facially invalid if it penalizes a significant portion of protected speech compared to legitimate applications.

Question 25

Content-Based Discrimination

Answer 25

Subject to strict scrutiny.

The government must show that the regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.

Question 26

Content-Neutral Discrimination

Answer 26

Subject to intermediate scrutiny.

Must:
(1) advance an important government interest unrelated to suppression of speech, and
(2) not unduly burden substantially more speech than necessary.

Question 27

Symbolic Speech

Answer 27

Government can regulate symbolic speech if:
(1) the regulation furthers an important government interest;
(2) the interest is unrelated to suppression, and
(3) the impact on speech is no greater than necessary.

Question 28

Commercial Speech

Answer 28

Commercial speech is not protected if false, misleading, deceptive, or illegal. The government can regulate protected commercial speech if:
(1) there is a substantial government interest,
(2) the regulation directly advances the interest, and
(3) the regulation is no more extensive than necessary.

Question 29

Obscenity

Answer 29

The government can regulate obscenity when:
(1) it appeals to a prurient interest, based on community standards,
(2) is patently offensive, and
(3) taken as a whole, the material lacks literary, artistic, political, or scientific value based on a national standard.

Question 30

Incitement

Answer 30

The government can regulate speech inciting imminent unlawful activity if:
(1) there is a substantial likelihood that the speech will bring about imminent illegal activity, and
(2) the speech is aimed at causing imminent illegality.

Question 31

Fighting Words

Answer 31

The government may regulate fighting words. Fighting words include direct personal insults to incite a breach of the peace, likely to cause immediate violent retaliation against the speaker.

Question 32

Time, Place, and Manner Restrictions

Answer 32

Speech conduct can be regulated by a content-neutral time, place, or manner restriction. In a public forum, the restriction must be content-neutral, narrowly tailored to support an important government interest, and leave alternate channels of speech open.

Question 33

Public Forum

Answer 33

Government property held for use by the public, constitutionally required to be open for purposes of exercising rights of speech and assembly. (sidewalks and parks).

Restrictions must be content-neutral, narrowly tailored to support an important government interest, and leave alternate channels of speech open.

Permit fees that vary depending on speech are content-based, unconstitutional.

Question 34

Limited/Designated Public Forum

Answer 34

Government properties open for speech, but can be closed at any time. Follows the same rules as public forum restrictions, but only when open for speech.

Question 35

Nonpublic Forum

Answer 35

Government property that can be closed to speech. Military bases and airports.

Government can regulate if the regulation is: (1) reasonably related to a legitimate purpose; and
(2) viewpoint neutral.

Question 36

Free Exercise Clause

Answer 36

Government cannot punish religious beliefs unless necessary to achieve a compelling interest. This applies only if the law’s purpose is to limit or interfere with religious practice. Laws of general applicability are valid.

Question 37

Establishment Clause

Answer 37

The government cannot:
(1) establish a national religion,
(2) show preference for one religion over another, or
(3) favor religion over non-religion (or vice versa). This is guided by “historical practices and understandings.”

Question 38

Executive Powers

Answer 38

The president has the power to:
(1) grant pardons (unqualified - Congress cannot limit) - Art II, sec. 2, cl. 1