CONSTITUTIONAL LAW

Question 1

What are the requirements to satisfy the cases and controversies requirement?

Answer 1

1. standing
2. ripeness
3. mootness
4. political question

Question 2

What are the requirements to establish standing?

Answer 2

1. injury
2. causation
3. redressability
4. No 3rd party grievance–Except:
   • if close relationship
   • if 3rd party cannot assert rights on her own
   • organizational standing
5. No generalized grievance–Except
   • Taxpayer can challenge gov’t expenditures pursuant to federal statutes as violating the Establishment Clause
   • tax credits don’t count/ cant’ challenge them.

Question 3

What is needed for organizational standing?

Answer 3

1. members would have standing to sue
2. interests are germane to organization’s purpose
3. neither claim nor relief requires participation of the members

Question 4

To satisfy ripeness if seeking declaratory judgment (pre-enforcement review), determine:

Answer 4

1. the hardship that will be suffered without preenforcement review, AND
2. the fitness of the issues and the reocrd for judicial review (does the ct have before it all it needs to properly review? better to wait?)

Question 5

Mootness requires

Answer 5

a present, live controversy & ongoing injury.

Question 6

3 exceptions to general mootness rule:

Answer 6

1. wrong capable of repetition but evading review
2. voluntary cessation
3. class action (1 member has continuing)

Question 7

The political question doctrine refers to constitutional violations that the federal courts __________.

Answer 7

will not adjudicate

Question 8

Political Questions are:

Answer 8

1. issues committed by the C to another branch of gov’t; OR

2. those inherently incapable of resolution and enforcement by the judicial process

Question 9

Examples of cases that are dismissed as non-justiciable political questions:

Answer 9

1. “republican form of gov’t” clause
2. challenges to the Pres’s conduct of foreign policy
3. challenges to the impeachment and removal process
4. challenges to partisan gerrymandering

Question 10

The SCT has original (trial) jx over which cases?

Congress has given concurrent jx over which cases to lower federal courts?

Answer 10

1. those affecting Ambassadors, other public ministers, and Cosnsuls
2. those in which a state shall be a party

Concurrent jx for 1. SCT has original and exclusive jx over cases in which state shall be a party.

Question 11

Virtually all cases come to the SCT by __________.

Answer 11

writ of certiorari

Question 12

The SCT’s appellate jx is divided into certiori (discretionary) and appeal (mandatory). Which cases are mandatory?

Answer 12

decisions made by a three judge federal district court that grant or deny injunctive relief.

Question 13

Congress may eliminate ________ avenues for SCT review as long as it does not eliminate ________ avenues.

Answer 13

specific; all

Question 14

The SCT has _________ and _________ jurisdiction for suits between state governments.

Answer 14

original; exclusive

Question 15

What is the final judgment rule?

Answer 15

Generally the SCT may hear cases only after there has been a final judgment of the highest state, court, of a US Court of appeals, or of a 3-judge federal district court.

Question 16

For the SCT to review a state court decision, there must not be an ________ and __________ state law ground of decision. If a state court decision rests on 2 grounds, one state law and one federal law, if the SCT’s reversal of the federal law ground will not change the result in the case, ______________.

Answer 16

independent; adequate; the SCT cannot hear it.

SCT can’t overturn a decision based purely on state law. So even if you appeal your case all the way through the state system, can’t appeal to SCT unless there is a federal question.

Question 17

How to Sue States…

Answer 17

1. Suing State Directly: SSI will bar claim in state or federal court (or even administrative agency) unless state consents or unless claim arises under § 5 or Bankruptcy Clause.
2. Suing State Officer for Prospective Relief: For now, EPY authorizes any action alleging ongoing violation of federal law . . .
3. Suing State Officer for Damages: SSI will bar claim per above unless officer is sued in his individual/personal capacity (and then he may nevertheless have “official” immunity.
   Because of (1), probably go to (2) or (3) for relief. For (3), must sue in private capacity if you want damages. If you sue officer in official capacity, it is asi you were suing the state and 11th amendment will be a problem.

Question 18

Generally, there is no federal police power by which Congress can act. In what areas can congress act according to federal police power?

Answer 18

MILD

Military
Indian Reservations
federal Lands & territories
DC

Question 19

The Necessary and Proper clause grants Congress the power to make all laws necessary and proper for carrying into execution _______ power granted to ______ branch of gov’t.

Answer 19

any; any

Question 20

The N& P clause is not itself a basis of _____; it merely gives Congress the power to execute ___________.

Answer 20

power; specifically granted powers

Question 21

If a bar exam question asks what is the best source of power for aparticular act of Congress, the answer should not be the ___________ clause stading alone.

Answer 21

Necessary & Proper

Question 22

Congress has power to lay and collect taxes, imposts, and excises, but the must be _______ throughout the United STates.

Answer 22

uniform

Question 23

Absent a specific restriction, be very hestiant to rules against a tax measure on the exam. A tax measure will be upheld if it bears some ______________or if Congress has the __________ the taxed activity.

Answer 23

reasonably relationship to revenue production; power to regulate

Question 24

Congress may spend to

Answer 24

“provide for the common defense and general welfare.”

Question 25

Congress can use its ______ power to regulate areas, even where it otherwise ahs no power tor egulate the area by _____________.

Answer 25

spending; by requiring entities that accept government money to act in a certain manner.

Question 26

Under the commerce power, Congress can regulate:

Answer 26

1. the channels of interstate commerce (roads, waterways, etc)
2. the instrumentalities of commerce and persons or things in interstate commerce (electricity, phones, trucks, planes, radio waves, stock, people)
3. economic activities that have a substantial effect on interstate commerce. (can be based on cumulative activity)
   • if non-economic activity and intrastate then, substantial effect can’t be based on cumulative activity and must make a factual showing of substantial economic effect. (VAWA, Lopez)
   •If intrastate and economic activity, and court can conceive of rational basis on which Congress oculd conclude that activity in the aggregate substantially affects interstate commerce, then ok. (Raich)

Question 27

Article I, Section 8 gives Congress the power to:

Answer 27

1. declare war
2. raise and support armies
3. provide for and maintaina navy
4. make rules for the gov’t and regulation of the armed forces
5. organize, arm, discipline, and call up the militia

Question 28

Regulatory power of Congress, especially in economic mmaters and mobilization of troops, in support of war effort is _______.

Answer 28

pervasive

*Note, generally extended to post-war as well to remedy wartime disruptions and to cope iwth cold war exigencies.

Question 29

Congress does not have the power tod eny habeas corpus review to all aliens detained as enemy combatants absent ___________.

Answer 29

a meaningful substitute for habeas corpus review.

Question 30

Military courts have jurisdiction over all offenses, not just _________, committed by persons who are _____________, both when charged and at teh time of the offense.

Answer 30

service connected offenses; members of the armed services

Question 31

The SCT has denied Congress to power to authorize the court-martial trial of American civilians as long as actual warfare has not forced courts to shut down, even though:

Answer 31

1. martial law has been declared
2. civilians accused were members of armed forces when committing alleged offense
3. dependents of military personnel overseas
4. civilian EEs of the military forces at overseas bases and installations

Question 32

What is Congress’s investigatory power? What are its limitations?

Answer 32

1. power to investigate to secure information as a basis for potential legislation or other official action (imipeachments). Well-established implied power. It need not be directed toward a particular legislation.
2. •5th amendment right available to witnesses
   •information elicited must be pertinent to subject of the inquiry
   • procedural due process

Question 33

Individual Rights include:

Include level of scrutiny

Answer 33

1. Procedural Due Process= balancing test
2. Economic Rights= RB
   • Takings Clause (taking, pub.use, compens?)
   • Contracts Clause
3. Privacy–fundamental right protected by SDP
   • right to marry= SS
   • right to procreate= SS
   • right to custody of one’s children = SS
   • right to keep the family together= SS
   • right to control the ubringing of one’s kids=SS
   • right to purchase and use contraceptives=SS
   • right to abortion= UB
   • right to private consensual homosexual sex=?
   • right to refuse medical treatment=?
4. Second Amendent Right to Bear Arms= ?
5. Right to Travel
   • prevent moving = SS
   • durational req’ments = SS
   • Foreign travel = RB
6. Right to vote

Question 34

What is the approach for an EPC claim?

Answer 34

1. What is the classification/ How is the gov’t drawing a distinction between people?
2. What level of scrutiny applies?
3. Does this law meet the level of scrutiny?

Question 35

The EPC of the 14th amendment applies only to ______ and ______ governments. It never applies to the ____ government.

Answer 35

State and local; federal

• EP is applied to the federal gov’t through the DPC of the 5th amendment.

Question 36

Racial classifications by the governement receive what level of scrutiny under EP?

Answer 36

Scrict scrutiny

Question 37

Classifications based on national origin receive what level of scrutiny?

Answer 37

Strict

Question 38

How can the existence of a racial classification be proven?

Answer 38

1. Classificaiton exists on the face of the law

2. If facially neutral, requires demonstrating both discriminatory impact and discriminatory intent.

Question 39

What level of scrutiny is applied to racial classifications that benefit minorities?

Answer 39

Scrict scrutiny

Question 40

Can educational institutions use quotas or add points to applicants’ admissions scores based on race.

Answer 40

Nope.

Question 41

Public schools may not use race as a factor in assigning students to schools unless ___________.

Answer 41

strict scrutiny is met

Question 42

What level of scrutiny is used for gender classifications?

Answer 42

Intermediate scrutiny

Question 43

How is the existence of a gender classification proven?

Answer 43

1. classification exists on face of the law
2. If law is facially neutral, proving a gender classification requires demonstrating both discriminatory intent and discriminatory impact.

E.g., many cities have ordinances that say police officers must be 5’10” and 150 lbs. Only 2% of women meet those req’ments. Only RB review unless plaintiffs can show that intent was discriminatory.

Question 44

What level of scrutiny shoudl be applied to gender classifications that benefit women?

Answer 44

Same. IS

• gender classifications benefitting women that are based on role stereotypes will not be allowed.
• gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed.

Question 45

What is the level of scrutiny used for alienage classifications?

Answer 45

Generally, scrict scrutiny is used, BUT:

• If concerns self-government & the democratic process, then only RB.
(voting, jury, police officer, teacher, probation officer–not notary public)

• If Congressional discrimination, then RB. (Congress has plenary power to regulate immigration).

•If discrimination against undocumented alien children, then use something between RB & SS.
(Plyer v. Doe–SCT struck down law saying undocumented kids woudln’t get free public education. Ct didn’t articulate level of scrutiny)

Question 46

What level of scrutiny is used for discriminating against non-marital children?

Answer 46

Intermediate scrutiny.

*IS is still the test, but laws always fail when deny a benefit to all non-marital children, but grant it to all marital children.

Question 47

What are common classifications that receive only RB review?

Answer 47

age
disability
wealth
economic regulations
sexual orientation discrimination

Question 48

Ecomonic regulations can be challenged under DPC or under EPC (depending on the factual situation). Under either, the level of scrutiny is:

Answer 48

RB

Question 49

Content-based restrictions on speech generally must meet what level of scrutiny?

Answer 49

Strict.

2 types of content based laws:

1. subject matter restrictions: application of the law depends on the topic of the message.
2. viewpoint restrictions: application of the law depends on the ideology of the message

Question 50

What are the two types of content based laws?

Answer 50

1. subject matter restrictions: application of the law depends on the subject matter/ topic of the message.
2. Viewpoint restrictions: application of the law depends on the ideology of the message.

Question 51

Content-neutral laws burdening speech generally only need meet what level of scrutiny?

Answer 51

IS

E.g. City prohibits all parades in a particular city park. Content neutral, so will need to satisfy IS.

Question 52

What is a prior restraint?

Answer 52

judicial order or administrative system that stops speech before it occurs.

Question 53

Court orders suppressing speech must meet what level of scrutiny?

What is the qualification for this rule?

Answer 53

Prior Restraint Issue

1. strict scrutiny
2. qualification is that a court order must be complied with until it is vacated or overturned. Failure to comply will bar later challenges.

Question 54

The government can require a license for speech only if there is ___________ and ___________. Licensing schemes must contain ___________ such as prompt determination of requests for licenses and ___________.

Answer 54

an important reason for licensing; clear criteria leaving almost no discretion to the licensing authority; procedural safeguards; judicial review

Question 55

The categories of free speech methodology are:

Answer 55

1. content based (SS) v. content neutral (IS)
2. prior restraints (SS) (sp. rule for licenses)
3. vagueness & overbreadth (sp. definitions)
4. symbolic speech (sp. definition)
5. anonymous speech (protected)
6. government speaker (cannot be challenged under 1st amendment)

Question 56

Definition of vagueness:

Answer 56

A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.

E.g. city ordinance that banned the sale of books that corrupted the morals of youth. No reasonable bookseller could tell what was prohibited.

*Concerned with chilling speech.

Question 57

Definition of overbreadth:

Answer 57

A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.

E.g. city adopted law prohibiting all live entertainmnet. City used the ordinance to shut down nude dancing club. Law prohibits too much.

Question 58

Fighting words law are unconstitutional because they are ________ and ________.

*What’s the catch here?

Answer 58

vague and overbroad.

*The catch is that there is a SCT case, Chaplinsky that still says fighting words are not protected by the 1st amendment, but the SCT has never again upheld a fighting words conviction.

Watch out for an appealing victim and a nasty D. Correct answer will be law is unC vague and overbroad.

Question 59

Symbolic speech definition/ standard:

Answer 59

The gov’t can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government’s purpose.

1. important interest unrelated to the suppression of the message
2. impact on communication is no greater than necessary to achieve the gov’t purpose

E.g.: D is prosectuted for A&B. Says was only expressing his anger. State has 1) important interest unrelated to message and 2) impact on communication is no greater than necessary to achieve gov’t purpose.

E.g. flag burning is protected, cross burning is protected (unless intent to threaten), contribution limits in election campaigns are unC.

Question 60

Anonymous speech is ______.

Answer 60

Protected. 1st amendmetn right to speak without disclosing your identity.

Question 61

Can speech by the gov’t be challenged as violating the 1st amendment? Why?

Answer 61

No. When gov’t is regulating private speech is what the 1st amendment is for. When gov’t is the speaker, no basis for a 1st am. challenge.

Question 62

What speech is unprotected or less protected by the 1st amendment?

Answer 62

1. incitement of illegal activity
2. obscenity and sexually-oriented speech
3. commercial speech
4. defamation
5. privacy
6. Gov’t EEs on the job

Question 63

What is the definition/standard for incitement of illegal activity?

Answer 63

The government may punish speech if there is:

1. a substantial likelihood of imminent illegal activity, AND if
2. the speech is directed to causing imminent illegality

(substantial likelihood & cause)

Question 64

What is the test for obscenity and sexually-oriented speech?

Answer 64

1. Material must appeal to the prurient interest (community standard–shameful or morbid interest in sex)
2. Material must be patently offensive under the law prohibiting obscenity (law must delineate which depictions are banned)
3. Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value. (national standard, not local)

Question 65

For the obscenity test, __________ uses a community standard, and ___________ uses a national standard.

Answer 65

1. Whether the material appeals to the prurient interest

2. Whether the material has any redeeming artistic, literary, political, or scientific value.

Question 66

May the gov’t use zoning ordinances to regulate the location of adult bookstores and movie theaters?

Answer 66

Yup.

Question 67

Can child pornography be banned?

Answer 67

Yes, even if not obscene. To be child pornography, children must be used in production of the material.

*CGI children & adults dressed up as kids don’t count.

Question 68

The government may not punish private possession of obscene materials; but the government may prohibit _____________.

Answer 68

private possession of child pornography

Question 69

What can the government do to a business convicted of violating obscenity laws?

Answer 69

Seize all assets.

Even if convicted of selling 7 obscene items, gov’t can seize all $4 million in merchandise.

Question 70

Profane & indecdent speech is generally ________ by the 1st amendment. 2 exceptions:

Answer 70

protected.

1. over the broadcast media (cable & internet are different)
2. in schools (deference to schools)

Question 71

What is the standard for determining whether a regulation of commercial speech will be upheld?

Answer 71

If the speech concerned concerns lawful activitiy and is not misleading or fraudulent, the regulation will be valid only if:

1. it serves a substantial government interest
2. It directly advances the asserted interest, AND
3. is narrowly tailored to serve the substantial interest. (not least restrictive means, just reasonable fit between the legislation’s end and the means chosen).

Question 72

Two areas of commercial speech that can be regulated/ prohibited are:

Answer 72

1. advertising for illegal activity, and false & deceptive ads
2. true commercial speech that inherently risks deception
   E.g. gov’t can prevent professionals from advertising or practicing under a trade name

E.g. can prohibit attorney, in-person solicitation of clients for profit

E.g may not prohibit accountains from in-person solicitation of clients for profit

Question 73

What is actual malice for defamation purposes?

Answer 73

knew the statement was false or acted with reckless disregard of the truth

Question 74

If the plaintiff is a public official or running for public office, the plaintiff can recover for defamation by proving:

Answer 74

1. falsity of the statement

2. actual malice

Question 75

If the plaintiff is a public figure, the plaintiff can recover for defamation by proving:

Answer 75

1. falsity
2. actual malice

*court has never defined public figure. Someone who thrusts themself into the limelight–has access to the media to respond to any attack. Celebrities.

Question 76

If the plaintiff is a private figure and the matter is of public concern, that state may allow the plaintiff to recover for defamation by proving

Answer 76

1. falsity
2. negligence by the defendant.
   * 3. Plaintiff may recover presumed or punitive damages only by showing actual malice.

Question 77

If the plaintiff is a private figure and the matter is not of public concern, the plaintiff can recover:

Answer 77

presumed or punitive damages without showing actual malice.

Question 78

Liability for IIED for defamatory speech must meet the _______ standards and cannot exist for speech ________.

Answer 78

defamation; otherwise protected by the first amendment

Question 79

The government may not create liability for the truthful reporting of information that was _______.

Answer 79

lawfully obtained from the gov’t

Question 80

Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if ________.

Answer 80

the media did not participate in the illegality and it involves a matter of public importance.

Question 81

The government may limit its dissemination of information to ____________.

Answer 81

protect privacy.

Question 82

The rule from Garcetti is that:

Answer 82

speech by government employees on the job in the performance of their duties is not protected by the 1st amendment.

Question 83

What’s a public forum?

Answer 83

government properties taht the governernment is constitutionally required to make available for speech.

*Sidewalks and parks are classic public forums. Can regulate here only if it meets certain requirements.

Question 84

Standard for regulations attempting to limit/ prohibit speech in a public forum:

Answer 84

1. regulations must be subject matter and viewpoint neutral, or if not, must meet strict scrutiny. (If met, go to 2)
2. Regulations must be a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication. (This is IS)
   * Need not be the least restrictive means.
   * City officials cannot have discretion to set permit fees for public demonstrations.

Question 85

Definitition/ Standard for a designated public forum:

Answer 85

government properties that the gov’t could close to speech, but chooses to open to speech.

• Same rules as public forums:
  1. Regulation must be subject matter and viewpoint neutral, if not, SS.

2. REgulations must be time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication.
   •time/place/manner restriction
   •important govt purpose
   •leaves open adequate alternative places for communication.

Question 86

Definition/ Standard for limited public forums:

Answer 86

Government properties that are limited to certain groups or dedicated to the discussion of only some subjects.

Gov’t can regulate speech in limited public forums so long as the regulation is reasonable and viewpoint neutral.

Question 87

Definition/ Standard for non-public forums:

Answer 87

Gov’t properties that the government constitutionally can and does close to speech.

Gov’t can regulate speech in non-public forums so long as the regulation is reasonable & viewpoint neutral.

Question 88

There is no first amendment right of access to _______ __________ for speech purposes.

Answer 88

private property

E.g. a shopping center.

In CA, there is a constitutional right

Question 89

The freedom of association is protected as a ________ right under the ___________.

Answer 89

fundamental; first amendment

Question 90

Under the 1st amdnemtn freedom of assocaition, laws that prohibit or punish group membership must meet _______ ________. To punish membership in a group it must be proven that the person:

Answer 90

strict scrutiny

1. actively affiilated with the group
2. knowing of its illegal activities
3. with the specific intent of furthering those illegal activities.

Question 91

Laws that require disclosure of group membership, where such disclosure would chill association, must meet ________ __________.

(1st amendment, freedom of association)

Answer 91

strict scrutiny

Question 92

Laws that prohibit a group from discriminating (under 1st am. freedom of association) are constitutional unless they __________.

Answer 92

Interfere with intimate association or expressive activity.

E.g. can prohibit private clubs from discriminating against women.

E.g can’t prohibit nazis from discriminating against jews

Question 93

The freedom of religion is generally thought of in two clauses:

Answer 93

1. free exercise clause

2. establishment clause

Question 94

Rules we learned under the free exercise clause:

Answer 94

1. free exercise clause cannot be used to challenge a neutral law of general applicability.
2. the government may not deny benefits to individuals who quit their jobs for religious reasons.
   (can’t make someone choose between religion and income)

Question 95

1. free exercise clause cannot be used to challenge a ________________.
2. the government may not deny benefits (under free exercise clause) to _____________________.

Answer 95

1. neutral law of general applicability

2. individuals who quit their jobs for religious reasons

Question 96

The test for establishment clause for bar exam purposes is the ___ test. It states that:

Answer 96

Lemon test

1. Must be a secular purpose for the law
2. the effect must be neither to advance or inhibit religion
3. there must not be excessive entanglement with religion.

If gov’t violates any of 3 prongs, then violates the EC.

S: secular
E: effect
X: excessive entanglement

Question 97

According to the establishment clause, the government cannot discriminate against religious speech or among religions unless _______.

Answer 97

strict scrutiny is met.

• If favoring one religion over others = SS
• If favors secular over religious speech= SS

Question 98

Government sponsored religious activity in public schools is unconstitutional, but religious student and community groups must _________________.

Answer 98

Have the same access to school facilities as non-religious groups.

Question 99

The government may give assistance to parochial schools, so long as ___________. The government may provide parents with ____________.

Answer 99

it is not used for religious instruction

vouchers which they use in parochial schools

Question 100

Congress’s main enumerated/implied powers includes:

Answer 100

(necessary & proper is not a basis of power, gives, power to execute specifically granted powers)

1. taxing/spending
2. commerce clause
3. war power
4. investigatory power
5. property power
6. bankruptcy power
7. postal power
8. citizenship
9. admiralty
10. coin money/ fix weights/ measures
11. patent/ copyright power

Question 101

Congress has the power to (property power):

Answer 101

dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United STates.

Question 102

Congress has no general ________ _________.

Answer 102

police power

Question 103

The 10th amendment serves as a limit on Congressional power because

Answer 103

it states that all powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.

Question 104

Under the 10th amendment, Congress cannot _________, but can __________.

Answer 104

1. compel state regulatory or legislative action (but can induce state gov’t action by putting strings on grants)
2. can prohibit harmful commercial activity by state governments.

Question 105

What is Congress’s power under section 5 of the 14th amendment?

Answer 105

Congress may not create new rights or expand the scope of rights. Congress may act only to prevent or remedy violations of rights recognized by teh courts and such laws must be proportionate and congruent to remedying constitutional violations.

Question 106

The most important things to remember in regards to Congress’s legislative power are

Answer 106

1. the taxing/spending power
2. commerce clause power
3. § 5 of 14th am. cannot create new rights. Congruent & proportional to remedying constitutional violations.
4. 10th amendment limits Congressional power
5. necessary & proper clause is not a basis of power

Question 107

Is there any limit on Congress’ ability to delegate legislative power?

Answer 107

Not really. SCT has not struck down a delegation since 1937.

Question 108

Legislative vetos and line-item vetos are __________.

Answer 108

unconstitutional

Question 109

For Congress to act, there always must be ______ and _________.

Answer 109

bicameralism: passage by both House & Senate
presentment: giving the bill to Pres. to sign/veto

Question 110

The federal executive power stems from ___________.

Answer 110

Article II

Question 111

Treaty definition:

Answer 111

agreement between the United States and a foreign country that is negotiated by the President and becomes effective when ratified by the Senate.

Question 112

Executive Agreement definition:

Answer 112

an agreement between the US and a foreign country that is effective when signed by the President and the head of the foreign nation.

Question 113

Treaties and Executive agreements both prevail over ______________.

Answer 113

conflicting state laws

Question 114

Treaties prevail over conflicting federal law if __________. Executive agreements prevail over conflicting federal law if ____________.

Answer 114

• the treaty was adopted after the federal statute. (the one adopted last in time controls)
• never

Question 115

If a treaty or executive agreement conflicts with the US Constitution, they are both ___________.

Answer 115

invalid

Question 116

Treaties require ___________, but executive agreements do not.

Answer 116

senate approval

Question 117

The President’s foreign affairs power includes the power to (3)

Answer 117

1. make treaties
2. make executive agreements
3. use American troops in foreign countries as commander-in-chief

*Best answer if asked about 3 is political question. If not an option, then Pres. wins. Broad powers.

Question 118

The President’s domestic affairs power includes the power to:

Answer 118

1. appointment and removal power
2. impeachment & removal power
3. absolute immunity to civil suits for $ damages for any actions taken while in office (not for things that occurred prior to taking office)
4. executive privilege for presidential papers and conversations, but privilege must yield to other important gov’t interests
5. power to pardon those accused or convicted of federal crimes

Question 119

Under the appointment power, the President appoints:

Answer 119

ambassadors, federal judges, and officers of the US

Senate must approve

Question 120

While the President alone appoints officers, Congress has some say over the appointment of _______.

Answer 120

inferior officers

Question 121

Congress cannot give itself or its officers the __________ _________.

Answer 121

appointment power

E.g if Congress forms a new agency, can’t say some officers appointed by Congress, some by Pres.

Question 122

Unless removal is limited by statute, the President may ______________.

Answer 122

fire any executive branch office.

Question 123

Generally, unless removal is limited by statute, the President has removal power to fire any executive branch office. For Congress to limit removal :

Answer 123

1. it must be an office where independence from the President is desirable (ind. counsel, sp. prosecutor, who are supposed to check the Pres.)

AND

2. Congress cannot prohibit removal, it can limit removal to where ther is good cause.

Question 124

The President, VP federal judges, and officers of the US can be impeached and removed from office for ____, _____ or for _______.

Impeachment _____ remove a person from office.

Impeachment by the HoR requires a ____ vote; conviction in the Senate requires a _______ vote.

Answer 124

treason, bribery, high crimes & misdemeanors

does not

majority
2/3

Question 125

The President has absolute immunity for ______________ for actions ___________. However, the President does not have immunity for actions _________.

Answer 125

civil suits for money damages; taken while in office; that occurred prior to taking office

Question 126

What is executive privilege?

Answer 126

The President has executive privilege for presidential papers and conversations, but such privilege must yield to other important gov’t interests.

Question 127

The President has the power to pardon _____________. What is the one exception?

Answer 127

those accused or convicted of federal crimes

Exception: Impeachment. A person who has been impeached by the House can never be pardoned for those offenses.

Tip: Pres. cannot pardon for state crimes.

Tip: Pres. cannot pardon for civil liability. Only criminal.

Question 128

What is federalism?

Answer 128

Limits on state and local government power because of the existence of national government and other states.

Question 129

The 2 main federalism issues often tested are:

Answer 129

1. preemption

2. Dormant commerce clause & privileges and immunities clause of Article IV

Question 130

What is preemption?

Answer 130

The Supremacy Clause of Article IV provides that hte Constitution and laws and treaties made pursuant to it, are the supreme law of the land.

1. Express
2. Implied
3. Inter-governmental immunity

Question 131

What is express preemption?

Answer 131

If a federal statute explicitly states that fedearl law is exclusive in a field, then state and local laws are preempted.

Question 132

What is implied preemption? How can it be found?

Answer 132

Where the federal statute does not explicitly state that federal law is explicit in the field, but regardless, federal law preempts state law in the field.

1. If federal and state laws are mutually exclusive, federal law preempts state law. If it’s impossible to simultaneously comply with both, fed. wins.
2. If state law impedes the achievement of a federal objective, federal law preempts state law.
   (FL law interfered with objective of NLRA, thus preempted)
3. If Congress evidences a clear intent to preempt state law, federal law preempts state law.
   (legislative history & AZ immigration, e.g.)

Question 133

What is inter-governmental immunity?

Answer 133

States may not tax or regulate federal government activity. (part of preemption doctrine)

The power to tax is the power to destroy.

Tip: It is unconstitutional to pay a state tax from the federal treasury.

Question 134

What is the dormant commerce clause?

Answer 134

The dormant commerce clause refers to the negative implications that arise from the commerce clause. While the commerce clause grants the federal gov’t the power to act according to the commerce clause, the DCC limits state or local law activity if it places an undue burden on interstate commerce.

Question 135

What is the privileges or immunities clause of Article IV? What about privileges & immunities clause of the 14th am.?

Answer 135

1. states that no state may deprive citizens of other states of privileges and immunities it accords its own citizens. Anti-discrimination provision. *Applies when state/local gov’t is discriminating against out of staters. (part of federalism section)
2. The P&I of the 14th amendment protects the right to travel. That’s it. It was completely gutted by the Slaugherhouse cases. Generally this is a wrong answer choice unless the question refers to right to travel.

Question 136

How do you analyze a DCC / P&I clause question?

Answer 136

1. Does the state law discriminate against out-of-staters?
   • If it does not discriminate, then
   1. the P & I of Article IV does not apply.
   2. If the law burdens interstate commerce, it
   violates the DCC if its burdens exceeds
   its benefits.• If it does discrimiate against out-of-staters,
   1. If the law burdens interstate commerce, it
   violates the DCC unless it is necessary to
   achieve an important government
   purpose
   • Exception: Congressional approval
   • Excpetion: market participant: A
   state or local gov’t can prefer its
   own citizens in receiveing benefits
   from gov’t programs or in dealing
   with gov’t owned businesses.

      2.  If the law discriminates against out-of-
           staters with regard to their ability to earn 
           their livelihood, it violates teh P & I of 
           Article IV unless it is necessary to 
           achieve an important gov't purpose. 
   
               •(make sure important economic  
                 activity:  making a living, not a 
                 hobby)
               • Corporations & aliens cannot use 
                  the P& I clause.  If challenger is 
                  corporation, go to DCC.  If ind. 
                  citizen, consider both.

Question 137

X. POWER OF STATES TO TAX INTERSTATE COMMERCE

A. GENERAL CONSIDERATIONS
The same general considerations applicable to state regulation of commerce apply to taxation. Pursuant to the Commerce Clause, Congress has complete power to authorize or forbid state taxation affecting interstate commerce. If Congress has not acted, look to see whether the tax discriminates against interstate commerce. If it does, it is invalid. If it does not, assess whether the burden on interstate commerce outweighs the benefit to the state. Three tests must be met: (i) there must be a substantial nexus between the taxpayer and the state; (ii) the tax must be fairly apportioned; and (iii) there must be a fair relationship between the tax and the services or benefits provided by the state.

1. Discriminatory Taxes
   Unless authorized by Congress, state taxes that discriminate against interstate commerce violate the Commerce Clause. Such taxes may also be held to violate the Interstate Privileges and Immunities Clause if they also discriminate against nonresidents of the state [Austin v. New Hampshire, 420 U.S. 656 (1975)], as well as the Equal Protection Clause if the discrimination is not rationally related to a legitimate state purpose [WHYY, Inc. v. Borough of Glassboro, 393 U.S. 117 (1968)—denial of tax exemption solely because taxpayer was incorporated in another state is invalid.]

Answer 137

FYI