Barbri Con Law MC Review Flashcards
(93 cards)
1
Q
Justiciability doctrine
A
refers to the principles that determine whether a court can hear and decide a case
Fed courts limited to hearing “cases and controversies”
P must have standing, there must be ripeness, and no mootness
will not hear cases regarding legislative or executive power
art 3 constitution limits powers of fed courts using “cases and controversies” aka justiciability doctrines — standing, ripeness, mootness, political Q doctrine
“justiciable” means fed court may hear case
2
Q
Standing (fed court)
A
A person has standing if she can demonstrate a concrete stake in the outcome of the controversy shown by an injury in fact-caused by the government-that can be remedied by a ruling in the plaintiff’s favor (i.e., causation and redressability)
eco injury not required
required:
-An injury in fact is required for standing. A plaintiff must have a stake in the controversy. Some specific injury must be alleged, and it must be more than merely theoretical.
-Causation is required for standing. There must be a causal connection between the conduct complained of and the injury.
-Redressability is required for standing. A court asks whether a ruling favorable to the plaintiff will eliminate the harm
An impact on a person’s well-being or enjoyment of the environment has been found by the Supreme Court to be sufficient harm for standing.
3
Q
OG jx
A
SCOTUS has og & xclusive jx over suits btwn states & suits where just 1 party is a state
-cases affecting ambassadors, pub ministers and consuls
4
Q
can a P sue solely as a citizen or taxpayer interested in having the gov follow the law?
A
NO NO NO NO
5
Q
Do taxpayers have the right to sue the government for spending money under federal, state, or local laws in a way that might violate the Establishment Clause (like promoting religion)?
A
YES
6
Q
Political Q/justiciability doctrine
A
Fed courts will not hear cases regarding legislative or executive power
involve issues constitionally committed to another branch of gov or inherently incapable judicial resolution
e.g.: challenges to the impeachment and removal process, challenges to gerrymandering, POTUS conduct of foreign policy
7
Q
Adequate and Indep State Grounds
A
SCOTUS won’t review case resolved on independent & adequate state grounds
8
Q
Ripeness
A
-case isn’t ready to be brought to court
-nothing has happened yet,
-e.g. law is considering to be passed – can I bring case into court saying it’s unconstitutional? Can’t be done bc law hasn’t been passed yet
9
Q
Mootness
A
-the issue has already been resolved
-case is over, it’s in the past
-prevents case from coming into court again
10
Q
As part of a deal to raise the federal debt limit, Congress passed a statute by a greater than two-thirds vote in both houses giving the President authority to cancel particular spending provisions that are contained within legislation that he signs into law. The statute provided that Congress could override the President’s decisions only by a three-fourths vote. As soon as the statute went into effect, a Senator who had voted against the statute filed suit in federal district court, challenging its constitutionality.
Is the Senator likely to succeed in her lawsuit?
A
No, because the Senator lacks standing to challenge the statute.
SCOTUS held that members of Congress lack standing to challenge a law authorizing the President to exercise a line item veto (such as the statute here), reasoning that the injury is not concrete and personal, but rather is institutional in that it is shared by all members of Congress.
11
Q
A woman whose children attended a charter school learned that the children of the woman’s neighbor who attended a parochial school received a hot lunch paid for, in part, through federal expenditures enacted under Congress’s spending power. The charter school received no funding from the federal government and was not allowed to participate in the hot lunch program. The woman challenged this federal expenditure as a violation of the Establishment Clause.
For her to bring the suit, at the very least what must the woman allege?
A
She pays federal income taxes and the use of federal funds in this manner is an improper taxing and spending method.
In general, a taxpayer has no standing to challenge the expenditure of federal funds. The major exception to this rule is where the taxpayer alleges that the expenditure was enacted under Congress’s taxing and spending power and exceeds some specific limitation on that power, in particular the Establishment Clause.
Typically, neutral benefit programs that provide aid to private schools do not violate the Establishment Clause if they treat religious schools the same as other eligible private schools. This program, however, may be problematic because it provides a benefit to religious schools that isn’t available to other schools.
12
Q
In compliance with a federal statute that permits government agencies to sell or give away surplus government property, the Secretary of State directed that one of the State Department’s surplus airplanes be given to a church. The Secretary knew that the church planned to use the plane to fly medical supplies to its missions in Third World countries. These missions provide medical assistance, but they also attempt to evangelize residents of the countries in question, and the Secretary was aware that, in addition to medical supplies, the plane might transport Bibles and religious tracts translated into local languages. Had the Secretary not ordered the plane to be given to the church, it would have been sold at a very reasonable cost to a nonprofit organization that helps teach young people the fundamentals of piloting and maintaining aircraft.
Which of the following parties would be most likely to have standing to sue to prevent the Secretary of State from making the gift to the church?
A
A member of the nonprofit flying organization.
for standing, must have concrete stake in outcome of litigation — must show injury in facts cause by gov that is more than the theoretical injury that all ppl suffer when gov engages in unconstitutional acts & decision in favor will eliminate harm
assoc has suffered more than a theoretical injury, lost opp to purchase plane from fed gov at good price & decision
13
Q
no case or controversy
A
-must be an actual dispute
-synonym for mootness, ripeness, or standing
14
Q
11th A
A
citizens of one state CANNOT sue their own state or another state
15
Q
exceptions to 11th A
A
-state consents to the suit
-citizen can sue a Gov official
-individual municipalities within a state can be sued
MEE statements: The eleventh amendment prohibits federal courts from hearing most private actions against state governments. This prohibition includes actions in which the state is named as a party or in which the state will have to pay retroactive damages.
MEE statement: Although the 11thA prohibits most private actions against state governments, private parties may bring actions to enjoin an officer from future conduct that violates the Constitution or federal law. This exception includes enjoining an appropriate state official from enforcing an unconstitutional state law.
16
Q
does congress have any general police power?
A
NO — not to adopt laws for the health, safety & welfare of citizens
17
Q
does congress have the power to tax & spend for the general welfare?
A
YES — -they can tax “to raise revenue for the general welfare”
-for any public purpose not prohibited by constitution, bearing some reasonable relationship to revenue production or if congress has power to regulate activity taxed
-e.g. congress adds $1 tax on candy bars to fund construction of cancer rsrch buildings in US. Is tax constitutional? Yes
18
Q
does congress have power to regulate foreign and interstate commerce
A
YES
-congress has broad power (plenary authority) to regulate commerce — channels (roads, air traffic routes); instrumentalities (planes, trains, activities that have substantial effect on interstate commerce
-regulate the making, manufacturing, shipping of a widget or good
-e.g. how much cotton in kid’s pajamas, how much tint in car windows, how much rubber in tires, how much lead in a pencil
if regulated intrastate activity ain’t commercial or economic, regulation generally won’t be upheld
19
Q
Name all the congressional powers
A
TCCADFF
-Tax & spend
-Coin money (power to print $$)
-Commerce
-Aliens (power over non-citizens)
-Declare war
-Foreign affairs (primary authority over foreign affairs)
-Federal land
DELEGATION OF POWERS
-congress CAN delegate certain powers to prez
-MUST include guidelines & limitations
-broad discretion to delegate its leg power
-when an agency adopts regs that have extraordinary eco & poly significance, must be able to point to clear congressional authorization for xercise of such power
20
Q
Tenth Amendment
A
whatever power isn’t given to Congress reserved for states
21
Q
Anti-commandeering principle
A
Congress can’t compel state regulatory or legislative action
22
Q
Spending power conditions
A
congress can induce state & local gov action by placing conditions on grant of $$
-expressly state conditions, relate to purpose or program, not unduly coercive
23
Q
when does congress have police power?
A
MILD
Military
Indian tribes in indian land
federal Lands or territories
D.C.
24
Q
if you see an MBE answer choice that says a federal law is unconstitutional bc an excessive delegation of legislative powers, do you pick it
A
NO NO NO NO — always wrong answer
SCOTUS has nvr struck down law as excessive
25
The federal government has complete jurisdiction over certain parkland located within a state. To conserve the wildlife inhabiting that land, the federal government enacted a statute forbidding all hunting of animals in the federal park. That statute also forbids the hunting of animals that have left the federal park and have entered the state. A hunter has a state hunting license, authorizing him to hunt deer anywhere in the state. On land within the state located adjacent to the federal park, the hunter shot a deer he knew had recently left the federal land.
If the hunter is prosecuted for violating the federal hunting law, what is the strongest ground supporting the constitutionality of the federal law forbidding the hunting of wild animals that wander off of federal property?
This law is a necessary and proper means of protecting United States property.
Congress has the authority to legislate to protect federal parklands
The Necessary and Proper Clause allows Congress to choose any means to carry out its constitutional powers
26
A tire company is the manufacturer of, and owns the patent for, a new and unique type of truck tire. The company is the largest employer in the state in which it is located. That state enacted a law requiring all trucks using its highways to be equipped with the company's unique truck tires. An out-of-state trucking company filed suit against the state, and eventually the United States Supreme Court held that the state's statute violated the Commerce Clause. Subsequently, Congress enacted a law that required all trucks engaged in interstate commerce to use the company's unique tires.
Is this federal law constitutional?
Yes, because Congress's control over interstate commerce is very broad.
27
Under a state law, individuals who have been residents of the state for more than three years receive a substantial discount on tuition at state-owned colleges and universities. A woman who has lived in the state for two years applied to and was accepted by the most prestigious of the state-owned universities. When she learned that her tuition would be nearly double that of some classmates, she was furious and filed suit in federal court seeking a declaratory judgment requiring the university to allow her to pay the reduced rate. As a result of several unexpected and unusual delays, 15 months passed before the case came to trial. During that time, the woman remained in the same residence, and the school allowed her to defer enrollment. At the start of the trial, the state filed a proper motion to dismiss the case.
How should the court rule on the motion to dismiss?
The court should grant the motion because the case is now moot.
a real, live controversy must exist at all stages of review, not merely when the complaint is filed
Since the woman has now lived in the state for more than three years, she qualifies for the discounted tuition and her claim for relief is now moot
28
what does it mean when a controversy is capable or repetition yet evading review?
MOOTNESS EXCEPTION
NOT DEEMED MOOT
When there is a reasonable expectation that the same complaining party will be subjected to the same action again and would again be unable to resolve the issue because of the short duration of the action (that is, when the controversy is capable of repetition yet evading review), the controversy will not be deemed moot.
MUST HAVE:
1. "the same complaining party"; here, the woman has now been a resident for more than three years, so she is no longer subject to the higher tuition rate (that is, her claim isn't "capable of repetition" because she'd get the discounted rate).
2. "evades review"
the facts indicate that it took 15 months for the case to come to trial because of unexpected and unusual delays (that is, it doesn't ). If the woman moved away for a year, returned as a new resident, and again complained about the tuition law, her claim could be resolved before it became moot.
29
A husband and wife were both professors at the United States Naval Academy. The husband made a speech criticizing United States foreign policy with respect to a Middle Eastern country and was dismissed from his teaching position soon thereafter. Six months later, he accepted new employment in another state.
The man's wife has commenced suit in federal court claiming that the Naval Academy violated her husband's right to due process and his right of free speech when it fired him.
What is the most likely ground on which the court will dismiss the suit?
The plaintiff has no standing.
The husband is the injured party and must assert his own rights
a person has standing only to raise constitutional issues which affect her personally --- wife can't claim that a third person's constitutional rights were violated
30
What are the presidential powers?
-Veto
-Appointment: power to appoint ambassadors, judges, heads of agencies
-Pardon
-Commander in Chief
-Treaty
-Executive Order/Agreement
31
What is the joint presidential and congress appointment power?
-certain circumstances
-congress may appoint members when the agency has NO regulatory or rulemaking authority
e.g., after 9/11, prez created the 9/11 commission to investigate and make recs. Prez appointed Reps & Congress appoints Dems. This is ok bc commission had NO regulatory or rulemaking authority
32
if treaty & federal law conflict w/each other, which prevails?
Last in time, whichever was entered into the last in time
33
can a state law be tougher/more restrictive than fed law?
YES
34
can a state law be more lenient that fed law?
NO
35
Federal police power
SYKE, doesn't exist
congress can't pass a general law for the health, safety, welfare of citizens
36
express preemption
when a fed statute explicitly says that fed law is exclusive in a field
37
intergovernmental immunity doctrine
states can't interfere with or control the operations of the fed gov
38
anti-commandeering principle
congress CANNOT REQUIRE/COMMAND/OBLIGATE state to do anything
e.g.:
1. congress can't require states to enact enviro regs
2. congress can't require local law enforcement to conduct background checks for a fed handgun law
3. congress can't ban states from legalizing sports gambling
CAN hav grants w/strings attached
-e.g., incentive w/$$ for state & local officials to voluntarily assist in fed laws (backgr checks, imm enforcement)
DOESN'T apply when congress regulates activity that both states & private actors engage in, e.g., min wage laws
39
Full Faith & Credit Clause
certain state judgments must be recognized in other states
-court that rendered judgment has jx over parties & smj
-judgment on merits
-judgment final
40
Privileges or Immunities Clause
Orly in Oregon
denying rights to in-state residents (not fed, just states)
in-state
right to travel
right to nat'l citizenship
intermediate scrutiny --- *substantially* related to *important* gov purpose
41
Privileges and Immunities Clause
Andy from outta state
imposing regulations on out-of-state residents on their fundamental rights
“essential activities,” commercial in nature (essential activities have been found as “pursuing one’s livelihood” and “owning property”) and fundamental rights
intermediate scrutiny --- *substantially* related to *important* gov purpose
you can discriminate under P&I if the state has substantial justification: nonresidents either cause or are part of the problem that the state is trying to solve and there is no less-restrictive means to solve the problem
42
A state law prohibits physicians from practicing medicine within the state without a state license. Among other things, the grant of a state license requires a physician to have been a resident of the state for at least one year. A physician moved to the state from a nearby state and immediately applied for a license to practice medicine. Although otherwise qualified, the physician's request for a license was denied based on the residency requirement. The physician brought suit, alleging that the residency requirement violated the United States Constitution.
Will the physician likely succeed?
Yes, because the requirement violates the Privileges or Immunities Clause of the Fourteenth Amendment.
P or I prohibits states from denying their citizens the privileges and immunities of national citizenship.
This includes the right to travel, and the Court has held that the right to travel includes the right of newly arrived citizens to enjoy the same privileges and immunities as are enjoyed by other citizens of the state.
A state law that distinguishes between new residents solely on the length of their residency will serve no legitimate state interest.
43
A state statute provided that only residents of the state can be granted a license to practice medicine within the state. The statute was passed after a series of well-publicized mistakes by a nonresident physician led to a public consensus that nonresidents were less likely to be familiar with the medical standards followed in the state, making them more likely to commit malpractice. A respected surgeon who lived and was licensed in a neighboring state was offered and accepted the position of chief surgeon at a hospital in the state with the residency statute. Because he lived only 20 minutes away from the hospital, he did not wish to move. He filed an action in federal court challenging the residency requirement, alleging that the statute discriminated against nonresidents in violation of the Privileges and Immunities Clause of Article IV.
Is the federal court likely to find that the statute is constitutional?
No, because the statute is not necessary to achieve an important government purpose.
state doesn't have substantial justification for the statute
The reason offered by the state to justify the discrimination, i.e., that nonresident physicians are less likely to be familiar with the medical standards imposed by the state, does not meet the test of necessary to achieve an important government purpose. The state can find less restrictive means to ensure that all physicians are familiar with its medical standards
44
A state located in the southern half of the United States experienced a strong influx of retirees, due in part to its mild winters and in part to the generous health benefits that the state historically provided to its elderly residents who fell below the federal poverty line. The state's Office of Budget Management determined that the influx of retirees would bankrupt the state's health care benefit fund within five years. To preserve the fund and ensure the health of its citizens, the state revised its health care statute to make persons ineligible for coverage until they have lived in the state for at least one year.
If a retiree who was denied benefits because she just moved to the state challenges the constitutionality of the statute in federal court, is she likely to prevail?
Yes, because the requirement improperly burdens the right of interstate travel in violation of the Equal Protection Clause of the Fourteenth Amendment.
differentiating btwn residents = P or I (14thA), while P & I (Art 4) prohibits discrimination by a state against nonresidents when fundamental national rights are involved
When a state uses a durational residency requirement (a waiting period) for dispensing benefits, that requirement normally should be subject to the strict scrutiny test, and usually will be found not to have satisfied the test.
SCOTUS has specifically held that a state's interest in fiscal integrity is not sufficient to justify a one-year waiting period for welfare or health benefits.
45
The Federal Communications Commission ("FCC") issued a lengthy set of regulations regarding personal radar detectors. The regulations deal with the safety of such detectors and the frequencies on which they may operate, so as not to interfere with FCC-licensed radio and television stations or with radar used by commercial airliners and private aircraft.
May a state constitutionally ban the use of radar detectors on its roads?
Yes, because the state has a legitimate interest in regulating the use of radar detectors in order to promote safe driving.
the regulation is not discriminatory against out-of-state products (because it bans all radar detectors regardless of origin)
the ban clearly promotes the state's legitimate interest in highway safety by making it harder for speeding motorists to evade detection
Anything less than a ban would not be effective in preventing the use of the detectors, and their use makes radar, the state's best means of preventing speeding, much less effective
Balancing test for state regulation on commerce: (i) the regulation does not discriminate against out-of-state competition in order to benefit local economic interests, and (ii) the incidental burden on interstate commerce does not outweigh the local benefits of the regulation
46
What's the balance test for when a state enacts legislation on interstate commerce, aka dormant commerce clause?
🔑 (i) the regulation does not discriminate against out-of-state competition in order to benefit local economic interests, and (ii) the incidental burden on interstate commerce does not outweigh the local benefits of the regulation
“Fair & Worth It”
Fair = No Favoritism (no discrimination against out-of-state businesses)
Worth It = Local benefit is worth more than the burden on interstate commerce
🌉 "BALANCE the BURDEN with the BENEFIT."
To flesh that out:
Balance → You're weighing two sides.
BURDEN → Is the burden on interstate commerce too high?
BENEFIT → Is the local benefit significant?
Or, use this short mnemonic:
🔔 "BIG BURDEN? BAD LAW."
If the burden on interstate commerce is clearly excessive compared to the local benefit, the law is unconstitutional.
But if the burden is small or reasonable, and the law has a real local benefit, it’s okay.
47
are any of these allowed under the dormant commerce clause?
Prohibiting out-of-state wastes from being accepted in private
landfills
Requiring operations to occur in the state, such as requiring all milk sold within the state to be pasteurized in the state
Protecting local businesses, such as by placing a surcharge on out-of-state products
NO --- all discriminate against outta state businesses
48
On January 1, state legislation was enacted that prohibited private employers, under penalty of civil fines, from hiring any person who had not been a resident of that state for 10 years. The legislation also required private employers to immediately discharge any employee who had not resided in the state for a minimum of 10 years. The new statutes additionally provided that the applicable civil fines would be assessed by the state department of employment inspectors, at their sole discretion, any time they believed that an employer had hired or failed to discharge a person not meeting the residency requirements, and that the civil fines would be imposed on any employer who had hired or failed to discharge such persons on or after January 1. An employee within the state, who is a nonresident, brought suit challenging the state statute.
Which of the following arguments would most likely result in a favorable ruling for the challenger?
The statute violates the Privileges and Immunities Clause of Article IV.
duh
State laws that discriminate against out-of-state residents in terms of the right to earn a living trigger the Privileges and Immunities Clause of Article IV and are almost always unconstitutional
49
In order to protect its citizens from "loan sharks" and unscrupulous business practices, a state had an anti-usury statute that prohibited loans for an interest rate in excess of 12%. When interest rates rose throughout the nation and the federal reserve began lending money to banks at 11.5%, banks in that state could not profitably make mortgage loans. Consequently, only extremely wealthy persons who could afford to pay cash for a home were able to purchase homes or farms in the state.
If an appropriate party challenges the constitutionality of the anti-usury statute, how should the court rule?
The statute is constitutional, because the state acted properly under its police power in enacting the statute.
Fair = No Favoritism (no discrimination against out-of-state businesses) ✅
Worth It = Local benefit is worth more than the burden on interstate commerce ✅
A state has the right, under its police power, to enact legislation for the health, safety, and welfare of its citizens, provided that such legislation is not in areas reserved to the federal government or preempted by federal legislation, and provided that a state does not unduly restrain interstate commerce.
The legislation in question affects only that state's banks and does not discriminate against other banks. The political process is considered the adequate method for bringing such statutes as the anti-usury statute in line with contemporary conditions.
50
13thA
* Bans slavery
* PRIVATE individuals cannot racially discriminate
* Allows the gov to go after someone or private group if there’s racial discrimination
* Alleviates need for state action for any kind of race discrimination
51
15thA
prevents fed, state, local govs from denying citizen right to vote based on race
generally, gov dont touch private conduct here
52
5thA
fed law
53
14thA
state law
prevents states depriving anyone life, liberty, property w/o due process & eq protection
54
exaction
conditions attached to development permits, requiring developers to dedicate land, pay fees, or undertake certain improvements to offset the impact of their project on community.
MUST HAVE:
1. nexus: reasonable connex btwn gov's condition and legit gov interest
2. rough proportionality: condition must be roughly proportional to anticipated adverse impact of the development
55
Inverse condemnation
gov acts under power of eminent domain to take property for pub use
pays the owner just comp (fair market value of prop)
if property taken by occupation or regulation w/o condemnation proceedings, landowner can bring action for inverse condemnation
* Gov comes and puts nuclear power plant next to your house
* Denies you the economic benefit of the land
* Value left is WORTH NOTHING
56
Takings Clause
5thA
applies to states via 14thA
1. Gov taking private property
2. for public use
3. with just compensation
If gov regulation denies a landowner all economic use of his land, reg generally will constitute a “taking” requiring the payment of “just compensation” under the 5thA.
regs that merely decrease the value of property (for example, prohibit its most beneficial use) do not necessarily result in a taking, as long as they leave an economically viable use for the property
court will consider (i) the social goals sought to be promoted, (ii) the diminution in value to the owner, and (iii) whether the regulation substantially interferes with distinct, investment-backed objectives
57
Contracts Clause
state/local law can't impair existing contracts
- fed laws ---> rational basis
-private contracts ->intermediate scrutiny (special form)
-substantial impairment
-reasonably & narrowly tailored to legit & important gov interest
gov contracts ---> strict scrutiny
58
For many years, civil service rules have provided that any member of the city's police department must serve a one-year probationary period before he or she will be considered a permanent employee. However, because the rules were enacted before the city's police academy was established, a prospective police officer now spends six months in the academy before being hired by the city. A graduate of the police academy was with the city police department for eight months after graduation when she was terminated. There were no city ordinances or state laws that required that she be given either a reason for the termination or a hearing, and she was given neither. The graduate brought suit against the city in state court because of the termination of her employment, alleging a violation of her due process rights.
Which of the following would most likely give her a constitutional basis to require the city to give her a statement of reasons for the termination and an opportunity for a hearing?
No police officer had ever been terminated during probation except where there was actual cause.
The fact that no police officer has been terminated during probation except for cause may be enough for the graduate to show that she has a *right* to a hearing.
Continued public employment may be a *protected property interest* if there is a clear practice or mutual understanding that an employee can be terminated only for "cause." If the graduate can establish this, she will be able to force the city to give her a reason for her termination and a hearing
59
For due process purposes, a person will be deemed to have a property interest in continuation of a government benefit if the person has __________.
a legitimate claim or entitlement to the benefit
REMEMBER ENTITLEMENT
it's NOT a right or privilege
60
A state board considered two plans to reapportion state legislative districts. One plan provided for districts with less than a 3% difference in proportional representation between districts. The other plan was drawn up to conform state legislative districts as nearly as possible to county borders, resulting in differences in proportional representation between districts of up to 12%. The then-current apportionment resulted in differences of up to 15% between districts. The board ultimately selected the plan based on county borders, and this plan was approved by the state legislature.
After the plan was implemented, a registered voter challenged the reapportionment in federal court. He claims the plan unconstitutionally diminishes his vote because there are 10% more voters in his district than the average number in other districts throughout the state. The voter lives in a district in which 55% of the voters are members of a racial minority group.
In the absence of a federal statute applicable to the state, is the resident likely to prevail?
No, because preserving political subdivisions is a legitimate state interest that justifies the plan's variance in representation.
Why this is correct:
✅ Equal Protection Voting Rule for State/Local Districts:
State legislative districting does not have to be perfectly equal.
A population variance under 10–16% is presumptively constitutional if there's a legitimate state reason.
✅ Preserving county borders is a valid reason:
Courts allow slightly unequal districts if the state is trying to keep county or local boundaries intact.
❌ The existence of a “better” plan isn’t enough:
Just because a more equal plan was available doesn't make the chosen plan unconstitutional.
❌ No racial gerrymandering here:
There's no proof that race was the reason for the districting, so strict scrutiny doesn’t apply.
61
The police department of a small city has jurisdiction within the city limits and over a defined portion of the surrounding rural communities within the county. A farmer lives in one of the rural communities receiving police protection from the city. The farmer does not pay any tax to the city directly, but a portion of the farmer's county property tax is turned over by the county to the city in order to support the city's police department.
The farmer's property was vandalized several times over the past several months, and the farmer became unhappy with the police protection that the city was providing. After his complaints to the police department and city hall did not improve the situation, the farmer wanted to vote against the mayor in the next election, but a city ordinance provides that only residents of the city may vote in city elections.
If the farmer brings a suit to compel the city to allow him to vote in the city's mayoral election, is he likely to prevail?
No, because the resident voting limitation appears to be rationally related to a legitimate government interest.
right to vote is a fundamental right, but laws prohibiting nonresidents from voting are generally valid --- rational basis
Limiting the voters in a city's mayoral election to residents of the city serves the interests of efficiency and prevents persons with little personal interest in the city from voting
62
are laws prohibiting nonresidents of a city from voting valid?
Yes, just RB review
63
what test is applied to aliens participating in function of state gov? Illegal aliens?
RB RB RB RB RB!!!!
64
What are the exceptions to the strict scrutiny test for alienage?
RB for:
- voting
- serving on jury
- primary or 2ndary education ----- teacher
- probation officer
^all involved in democratic process
65
After a state supreme court overturned the conviction in a murder case for failure to give proper Miranda warnings, a reporter asked the murder victim's father to comment on the case as he exited the supreme court building. The father made the following statement: "Each one of the so-called supreme court justices is worse than a murderer, because they make it possible for more sons and daughters to be murdered. I'd like to see every one of them strung up, like they should have done to the creep who was set free, and if someone will give me a rope I'll go in there and do it myself."
A state statute proscribes, with criminal penalties, "the making of any threat to the life or safety of a public official for any act the official performed as part of the official's duties in office."
Which of the following is correct regarding the statute?
The victim's father could not be constitutionally punished under these circumstances, but the statute is constitutional on its face.
doubtful that father's words will be interpreted as a true threat of immediate harm. In context, the speech seems to be more a political commentary, which would be protected by the First Amendment. The father appeared to be merely venting his outrage. There was no indication that the father's words were inciting imminent lawless action or were likely to produce such action. Neither does it appear that the father was recklessly threatening the justices with harm or inciting anyone to storm into the court building. Thus, his speech was protected
66
After the failure of a state bill granting gay and lesbian couples the right to marry, 30 students from a local university marched on the state capitol to protest, carrying signs with slogans such as "let gays marry" and "no religious tyranny." As they marched, about 15 people began following them, shouting anti-gay remarks. At the capitol building, they were met by 50 officers in full riot gear. The leader of the students addressed his followers in the park across the street, vigorously denouncing the legislature's actions, which caused the counter-protestors to become more vocal. The officer in charge told the leader that he must end his speech because a riot was about to start. The leader refused and was arrested and convicted of disorderly conduct.
If the leader appeals his conviction on constitutional grounds, will the conviction be reversed?
Yes, because the leader's arrest constituted an interference with his First Amendment right to free speech.
park is public forum --- gov can limit speech rights in forum when there's serious & imminent threat to public order (when cops ABSOLUTELY can't control crowd)
conditions for cops to prevent speaker from continuing bc of unruly crowd haven't been met. 50 cops who would've been able to restrain or subdue anyone who appeared intent on committing violence
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Free Exercise Clause
*intent
* Citizens can practice religion any way they choose
* Gov must remain neutral on practice of religion
A law NEUTRAL to religion will be constitutional even if the EFFECT prohibits religion
prohibits government from punishing conduct just because it is religious
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Establishment Clause
* Gov. can’t pass a law that formally sponsors or establishes a religion
Establishment Clause inquiry focuses on neutrality, historical practice, and whether the Founding Fathers would have considered the action involved acceptable
Tests
1. History and Tradition: whether the challenged government action accords with historical practices and the Founding Fathers’ original intent (e.g., citizens shall not be coerced into participating in religious observance)
2. Whether the challenged government action is religiously neutral
69
To be valid, a time, place, and manner regulation of a limited public forum must be __________.
1. viewpoint neutral
2. rationally related to a legitimate government purpose
70
A church developed a sex education program for children of church members, ages 12 to 16. The program included lectures and slides, including some slides depicting explicit sexual activity between males and females. Parents would be required to give their consent before any child could participate. The program was conducted by the church board, consisting of the minister, a doctor, and a psychologist. The church board called the program "an integral part of involving the church in the real world of a teenager."
A state statute provides in relevant part, "It is unlawful to sell, give, or display to any person under the age of 17 any lewd or obscene article, picture, or depiction."
If the church board members are convicted of violating the above statute and they appeal, what is the likely outcome?
Their convictions will be reversed if it can be shown that the statute is being applied only to interfere with religion.
FE clause prohibits gov from punishing relig belief
FE clause prevents gov from punishing conduct merely bc it's religious & from regulating conduct for purpose of interfering w/religion
FE clause DOES NOT prohibit gov from regulating general conduct, even if reg happens interfere w/relig beliefs
NO BALANCING APPROACH w/these
71
A music show promoter was handing out leaflets at a county fair, advertising a commercial country and western music concert scheduled at the fairgrounds two weeks after the county fair was due to end. The fair manager approached the promoter and politely asked him to stop distributing leaflets because it was in contravention of the fair's rules. The promoter refused to stop, and the manager summoned a county police officer. In the officer's presence, the manager again told the promoter to stop handing out the leaflets. The promoter ignored the manager again and continued to hand out leaflets, at which point the promoter was arrested for criminal trespass and charged in municipal court. At trial, the promoter defended against the charges by claiming a violation of his First Amendment rights.
Which of the following, if true, is most damaging to the promoter's First Amendment claims?
The rules of the county fair clearly prohibit all leafleting or other solicitations on fair property, except at designated hours other than the time the promoter was engaged in distributing leaflets.
reasonable time, place & manner restriction ---> must be content neutral, narrowly tailored to serve important gov interest & leav open alt channels of communication
72
A city creates a program that provides a $5,000 annual grant to organizations offering free or low-cost adult day care if they meet certain requirements. A charity affiliated with a religious organization provides free adult day care that offers attendees the option of participating in religious activities. The head of the charity applied for a city grant. The grant was denied despite meeting all of the city's grant requirements. When the head of the charity asked the relevant city official why their grant application was denied, the official explained that the city could not provide direct financial aid to an organization affiliated with a religious institution. The charity brings a claim in federal court alleging that the denial violates the First Amendment.
How is the court likely to rule?
In favor of the charity, because the city may not limit eligibility for the grant to nonreligious organizations.
A state may not limit eligibility for a governmental benefit to nonreligious organizations
Even if a state has no obligation to create a benefit, once it has done so, it may not ban religious groups similarly situated to eligible secular parties from receiving the benefit merely because they are religious
Denying a generally available benefit to an otherwise eligible group based solely on their religious character violates the Free Exercise Clause because the program is not religiously neutral, as required under the Free Exercise Clause, and effectively penalizes the exercise of religion.
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limited public forum
gov property not historically linked w/speech & assembly but opened for specific speech activity
e.g., school gym open to host a debate on particular community issue
Test:
- viewpoint neutral
- reasonably related to legitimate government interests.
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designated public forum
public property space that's usually a non-public forum, but is opened for speech activities with no specific topic in mind.
e.g, schoolrooms open for after-school use by social, civic or recreation grps
CNL
test is the same as a public forum:
- content neutral
- narrowly tailored
- leaves open alternative forms of communication
75
A state's legislature passed a statute that required every used car sold in the state to be tested prior to sale to determine whether it was in compliance with a set of strict exhaust emission standards that were also included in the legislation. Used cars would have to be brought up to standard and pass the emissions test prior to sale. Certain persons in the state object to the legislation because one of its results will be to raise the average price of used cars in the state. Only cars to be sold for junk are exempt from the statute.
Among the following, who would be most likely to have standing to raise a constitutional challenge to the legislation?
An out-of-state dealer of used cars who had a contract to sell cars to a large dealer in the state.
P already has a contract to sell used cars to a state dealer, is immediately in danger of sustaining a direct economic injury as a result of the statute - i.e., costs associated with testing each car and bringing up to standard those cars found to be deficient.
Standing requires a concrete stake in the outcome of a controversy which includes an injury in fact.
Abstract injury not enough
P must show he's sustained or is immediately in danger of sustaining a particularized and concrete injury as the result of the challenged official conduct.
injury or threat of injury must be real and immediate, not conjectural or hypothetical
🚫 "thinking" "might"
76
A state statute was struck down by the supreme court of the state on the grounds that it was in conflict with the Supremacy Clause of the United States Constitution as well as the Equal Protection Clause of the state constitution.
Does the United States Supreme Court have jurisdiction to hear an appeal of the state supreme court's decision?
No, because of the "adequate and independent state ground" theory.
SCOTUS will hear case from state court only if state court judgment turned on fed grounds
judgment is based on a violation of the Equal Protection Clause of the state constitution, which is an adequate and independent state ground on which the decision would rest even if the federal issue were resolved (assuming that the state court's disposition of the state constitutional issue did not depend on federal doctrines)
77
As an aide to a member of the Congress of the United States, you are expected to provide an analysis of the constitutionality of proposed legislation that your employer is called to vote on. A bill has been proposed that would create a mandatory price schedule for every motor vehicle sold in the United States.
Which of the following should you tell your employer is the strongest constitutional basis for the proposed legislation?
All motor vehicle transactions in the United States, taken as a whole, have a significant impact upon interstate commerce.
Congress can make laws about things—even local ones—if they have a big impact on the national economy or on trade between states. Since car sales across the country affect interstate commerce as a whole, Congress can regulate them, like by setting prices.
78
The President of the United States and the king of a foreign nation entered into a treaty agreeing that citizens of the foreign nation who reside in the United States would not be taxed by the United States and that United States citizens who reside in the foreign nation would not be taxed by it. The treaty was ratified by the United States Senate and the royal council of the foreign nation. One year after the treaty became effective, the foreign nation began to tax United States citizens within its borders. The President immediately declared the tax treaty to be void and ordered the Internal Revenue Service to tax citizens of the foreign nation living in the United States.
Is the President's action constitutional?
Yes, under the foreign policy powers of the President.
Prez has power to enter into treaties & act for USA in day-to-day foreign affairs
Even for foreign relations that req Cong consent. Prez's powers way broader than internal affairs
If prez has power to override treaty, supremacy clause doesn't control
79
A state requires that persons holding a state license to practice a particular profession reside in the state for at least one year before engaging in that practice. A practitioner who held the state license moved into the state and shortly thereafter contracted with a local business to provide professional services. As soon as he began practicing his profession, the state licensing board sought to sanction him for violating the one-year waiting period.
Which of the following provides the strongest basis for the practitioner to challenge the waiting period?
The Privileges or Immunities Clause of the Fourteenth Amendment.
prohibits states from denying their citizens the privileges or immunities of national citizenship, including the right to interstate travel.
The right to travel includes the right of newly arrived citizens of a state to enjoy the same privileges and immunities as are enjoyed by other citizens of the state
Privileges and Immunities Clause of Article IV prohibits discrimination against nonresidents. Here, disc is against new rez, not nonres
80
To stabilize state corn prices, a state purchased large quantities of corn from resident farmers and converted the corn into biodegradable plastics. The state then sold the plastics to state residents at cost and to out-of-state residents at cost plus 25%. An out-of-state corporation purchased biodegradable plastics from the state at a cost substantially below the price other companies charge. Nevertheless, the corporation believes that it is unconstitutional for the state to charge out-of-state purchasers more than resident purchasers. The out-of-state corporation, therefore, brings suit in federal court challenging the state pricing scheme.
Assuming that the court has jurisdiction, should it uphold the constitutionality of the pricing scheme?
Yes, because as a market participant the state is free to charge nonresidents more than residents.
The Commerce Clause does not prevent a state from preferring its own citizens when the state is acting as a market participant (e.g., buying or selling products, hiring labor, giving subsidies, etc.).
Because the pricing scheme here involves the sale of goods, the state can constitutionally charge whatever prices it desires to whomever it desires
81
An accountant employed by a federal agency was offended by jokes and cartoons that employees would post in the office cafeteria. Although none of the material violated any agency policy, the accountant lodged a number of complaints with his supervisor that went unheeded. Finally, the accountant posted his own notice chastising the agency for allowing cartoons the employee found offensive. The notice prompted a great deal of disruption in the office, particularly after it was posted on another employee's blog and received some media attention. The accountant did not have an employment contract with the agency and was not covered by any policy entitling him to dismissal only for certain grounds.
Which of the following statements is most accurate regarding the agency's right to dismiss the accountant?
The accountant has a liberty interest in the exercise of his First Amendment rights that entitles him to a hearing to contest the grounds of his dismissal.
Under Due Process Clause of 5thA, a person has a liberty interest in the exercise of specific rights provided by the Constitution, including freedom of speech.
gov employee may not be fired for expressing his views regarding public issues, but can be fired for speech that disrupts the employer's policies or undermines the employer's authority
court would probz say accountant's statement is public issue
he can make enough of a showing that his termination violates his free speech rights to be entitled to a hearing on the issue under procedural due process principles
at-will employee has no property interest in job
82
To help reduce a rising crime rate among teenage boys in a city, a scout leader decided to organize an overnight jamboree to get teens interested in scouting. The scout leader met with the city's parks commissioner and requested a permit to camp at a large city park located on the oceanfront. The parks commissioner told the scout leader that a city ordinance prohibited large organized use of the park during the evening and all overnight camping. The commissioner explained that the city wished to keep the park open for general use during the evening, when most people were off work, and the park was cleaned overnight. The scout leader brought an action in federal district court, seeking to compel the city to allow overnight camping for this one special occasion.
If the court determines that the ordinance is valid, what will be the basis for its decision?
The ordinance is narrowly tailored to serve an important government interest and does not unreasonably limit alternative channels of communication.
1stA protects freedom of speech & assembly BUT gov can reasonably regulate speech-related conduct in public forums thru content-neutral time, place & manner regulation
public forum restrictions more restrictive
83
Legislation permitting states to completely ban the sale of cigarettes and other tobacco products was passed by Congress and upheld by the United States Supreme Court. Following the lead of other states, a state legislature declined to enact a complete ban on tobacco products. However, it passed a compromise measure that banned all advertisements for cigarettes and tobacco products by any print or broadcast media located in the state. A state tobacco distributor that wished to advertise in local newspapers brings an action in federal court to challenge the state statute.
How is the court likely to rule?
The statute is unconstitutional, because the right to ban all truthful advertising for a product is not automatically justified by the right to ban the sale of a product entirely.
standard for testing validity of commercial speech regs
If the speech regulated concerns a lawful activity and is not misleading or fraudulent, the regulation will be valid if it (i) serves a substantial government interest, (ii) directly advances the interest, and (iii) is narrowly tailored to serve the substantial interest
this test does not require that the least restrictive means be used, but there must be a reasonable fit between the legislation's end and the means chosen
A complete ban on truthful advertising of a lawful product is very unlikely to be upheld because such a restriction is not narrowly tailored
84
By state law, no movie theater may admit anyone under age 18 to any movie classified as "adult" by the state ratings board. In response to a survey on the effect of adult entertainment on people under age 21, the legislature proposed to amend the statute to prohibit admission of any male under age 20 and any female under age 19 to any theater playing adult-rated movies. A theater owner operates a theater showing only adult-rated movies. Because it is located next to a college campus, he stands to lose nearly half his patronage if this statute is enacted. The theater owner brought an action in federal court to restrain its enactment, arguing that it would amount to unconstitutional sex discrimination.
What should the court do?
Dismiss the action for want of a case or controversy.
Art 3 --- fed courts may only decide real "cases and controversies," and not issue advisory opinions.
state law is a proposed statute
therefore, a federal district court is without jurisdiction to decide its constitutionality
***Fed courts will abstain from deciding a federal constitutional issue if it is premised on an unsettled question of state law
85
Congress passed a statute requiring energy consumption be reduced by a specified percentage, to be set by a presidential executive order. The statute provided specific standards that the President must use in setting the percentage and detailed procedures to be followed.
Is this statute likely constitutional?
Yes, because it creates a limited administrative power to implement the statute.
Legislative power may be delegated to the executive or judicial branch as long as intelligible standards are set and the power is not uniquely confined to Congress.
While the Court is skeptical of claims that modest, vague, or subtle language amounts to a broad grant of authority, that is not the case here. Because the grant of power is limited by the "specific standards" set forth in the statute, the statute is sure to be upheld
86
Eighty-five percent of tobacco products sold in the United States originate in the tobacco fields of one state. Its legislature passed a law prohibiting cultivation of tobacco in the state, citing severe health risk concerns. In response, Congress enacted legislation specifically authorizing and encouraging cultivation of tobacco by providing tax incentives and federal subsidies for tobacco growers.
If a tobacco grower and state resident is prosecuted under the state statute, will the federal law compel the state court to dismiss the action?
Yes, because the commerce power authorizes Congress to regulate activities of national economic significance and the state statute is inconsistent with the federal legislation.
The federal law will compel the state court to dismiss the action. Congress's broad power to regulate interstate commerce includes the power to control production of items having a substantial impact on such commerce.
87
The President issued an executive order prohibiting exportation to certain countries of specific computer software that, although not usable directly to develop nuclear weapons, would facilitate nuclear weapons technology. Congress had previously passed a law authorizing the issuance of such orders. Prior to the issuance of the executive order, a computer software company contracted with one of those countries for software that is now banned for sale and distribution.
What effect does the executive order have on this contract?
The executive order is constitutional because Congress has plenary powers to regulate commerce with foreign nations and has used that power to authorize such orders.
The executive order is constitutional because it was authorized by Congress. The power to regulate foreign commerce lies exclusively with Congress, and Congress may delegate this power to the President. By authorizing the issuance of the Presidential executive order, Congress has constitutionally exercised this power.
88
The state capitol building had fallen into disrepair, so the state contracted with a company for remodeling. After the contract was signed but before remodeling work had started, the state repealed the statute authorizing money for remodeling and notified the company that it was cancelling the contract because of budgetary concerns.
If the company brings suit in federal court against an appropriate state official to enjoin cancellation of the contract, for which party should the court rule?
For the company, because it had a valid contract.
The court should hold for the company because it has a valid contract. A state violates the prohibition against impairing the obligation of a contract when it substantially impairs any contracts to which it is a party and the impairment does not meet the various exceptions recognized by the Court.
Here, the state is simply seeking to reduce its contractual financial obligations, and its decision would violate the prohibition.
89
To crack down on illegal immigration, Congress passed a law giving a federal agency the power to make rules to reduce crime related to illegal immigration. The agency passed a rule requiring state police officers to verify the identity of anyone who is arrested, determine whether they are legally in the country, and if proper documentation cannot be verified, detain them while alerting federal authorities, who will either deport or clear them.
The governor of a state held a press conference announcing that the state will not comply with this rule. Over the next several months, federal officials received no notifications from the state.
If the federal government files an action in federal court to force the state to comply with the rule, will the federal government prevail?
No, because the Tenth Amendment prevents the federal government from requiring state officers to act.
The federal government will not prevail. The Tenth Amendment prohibits the federal government from commandeering state officials by requiring state officials to act.
Here, the rule likely requires state officials to detain suspects even after they have been cleared of violating state laws. Thus, the rule violates the Tenth Amendment.
🔑 CAN'T COMMANDEER STATE OFFICIALS
90
A United States senator made a speech on the Senate floor asserting that the President has a swastika tattoo in a location usually covered by clothing. The assertion is demonstrably false, and the senator knew that it was either false or very unlikely to be true. The President has sued the senator for defamation.
Which of the following is the best reason for the court to dismiss the complaint?
The statement was made by a senator on the Senate floor.
protected by the Speech or Debate Clause
Senators who make statements on the Senate floor have immunity from defamation suits, even if the defamation suit could otherwise overcome the high standard for suits against public figures
91
A defendant stood accused of murdering a family of six in a small town. The judge, concerned not only about prejudice to the defendant's right to a fair trial but also about media attention and public opinion in such a small locale, issued an order forbidding the press from attending the trial or publishing any details of the testimony at trial.
If a local newspaper sues in federal court to have the judge's gag order overturned, will the newspaper prevail?
Yes, because the judge has attempted to impose a prior restraint in violation of the First Amendment.
The newspaper will prevail on First Amendment grounds.
SCOTUS made it clear that a prior restraint will be upheld if it is the ONLY sure way of preserving a fair trial for the defendant. Although prejudicial publicity can pose a serious problem, SCOTUS held that it virtually always should be dealt with by means other than prior restraints.
🚫 🚫 🚫 Prior restraints are tolerable only if no less restrictive alternative would work 🚫 🚫 🚫
92
Due to violence erupting against picketers advocating automatic deportation of foreign persons accused of a crime, a state enacted a law prohibiting all picketing "carried out for the purpose of deterring others from exercising their constitutional rights."
The strongest constitutional defense that can be asserted by those charged with violating this statute is which of the following?
First and Fourteenth Amendment rights of free expression and assembly, because the statute excessively restricts the marketplace of ideas.
The strongest defense is based on free expression and assembly grounds. It is presumptively unconstitutional for the government to place burdens on speech because of its content. Because the statute regulates content of the speech rather than conduct, the state would need to establish a compelling interest behind the legislation for the law to be valid. This puts the burden on the state to prove the need for the legislation.
93
A state Occupational Health and Safety Board recently issued regulations valid under its statutory mandate requiring that all employers in the state provide ionizing air purification systems for all employee work areas. These regulations replaced previous guidelines for employee air quality that were generally not mandatory and did not specify the method of air purification used.
The requirements regarding air purification systems are likely to be unconstitutional as applied to which of the following employers?
A United States Armed Forces Recruiting Center located adjacent to the state capitol building.
**state law ---> A state has no power to regulate activities of the federal government unless Congress consents to the regulation.**
