Con Law

Question 1

Federal Courts can hear a matter only if there is a “case or controversy.” Whether there is a “case or controversy” (i.e., Justiciable) depends on:

Answer 1

1) What the case is requesting (is it an advisory opinion?)
2) When it is brought (is it ripe or moot?)
3) Who is bringing it (does the plaintiff have standing?)

Question 2

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

Answer 2

1) The issues are fit for a judicial decisions AND
2) The plaintiff would suffer substantial hardship in the absence of review

Question 3

Standing has three major components:

Answer 3

1) Injury in fact (affects the plaintiff and actually exists);
2) Causation; and
3) Redressability (outcome is capable of eliminating their harm).

Question 4

Generally, plaintiffs may not assert third-party rights in lawsuits to achieve standing. However, there is an exception. What is it?

Answer 4

1) A vender may have third party standing to challenge a law that adversely affects the rights of her customers (i.e., 1st Amendment). [Must show a nexus between the plaintiff and the third party - Economic nexus is prominent here]

Question 5

Congress has the power to regulate all foreign and interstate commerce. To be within Congress’ Commerce Clause power, a federal law regulating interstate commerce must either:

Answer 5

1) Regulate the channels of interstate commerce (i.e., highways, waterways, telephone lines, the internet)
2) Regulate the instrumentalities of interstate commerce (i.e., planes, trains, automobiles) and persons and things in interstate commerce; OR
3) Regulate activities that have a substantial effect on interstate commerce.

Question 6

Congress may delegate rulemaking or regulatory power to the executive branch or judicial branch so long as ________ __________ are set and the power isn’t something that is uniquely confined to Congress.

Answer 6

Intelligible Standards

Question 7

When an agency claims to be exercising broad power to adopt regulations that have extraordinary economic and political significance, the Court will look at both:

Answer 7

1) Whether the agency has historically asserted such power AND
2) Whether there is clear congressional authorization for the claimed power.

Question 8

What is the hierarchy of U.S. Law?

Answer 8

1) U.S. Constitution
2) Treaties and Federal Statutes (in a conflict between these two, the last in time prevails)
3) Executive Agreements
4) State Law

Question 9

Under the ________ Amendment, all powers not granted to the federal govt or prohibited to the States are reserved to the States or the people.

Answer 9

Tenth

Question 10

The Article IV Interstate Privileges and Immunities Clause prohibits discrimination by a State against:

Answer 10

Nonresidents (corporations and aliens are NOT protected by this Clause; in contrast, corporations and aliens ARE protected by the Equal Protection and Due Process Clauses of the 14th Amendment and the Dormant Commerce Clause)

Question 11

14th Amendment Privileges of National Citizenship - States may not deny their citizens the privileges or immunities of ________ citizenship.

Answer 11

National (for example, the right to petition Congress for redress of grievances, the right to vote for federal officers, and the right to interstate travel).

Corporations are not protected by this Clause.

Question 12

When Congress regulates interstate commerce, conflicting State laws are _________ and even nonconflicting State or local laws in the same field may be __________.

Answer 12

Superseded; Preempted

Question 13

If Congress has not enacted laws regarding the subject, a State or local govt may regulate local aspects of interstate commerce. To do so, however, the State or local govt must:

Answer 13

Not discriminate against or unduly burden interstate commerce. If it does, the State or local regulation will violate the Commerce Clause. [Dormant Commerce Clause]

Question 14

A State or local law that discriminates against interstate commerce may be valid if:

Answer 14

1) It is necessary to achieve an important, noneconomic State interest; and (2) there are no reasonable nondiscriminatory alternatives available.

Question 15

If a nondiscriminatory State law burdens interstate commerce, it will be valid unless:

Answer 15

the burden outweighs the promotion of a legitimate local interest. [Balancing Test]

Question 16

A State or local govt may prefer its own citizens in receiving benefits from govt programs or in dealing with govt owned businesses. This is when the State acts as a:

Answer 16

Market Participant

Question 17

Definition and Validity under Commerce Clause: Use Tax

Answer 17

Definition: Tax on goods purchased outside of the State, but used within it.

Validity: Valid unless higher than sales tax

Question 18

Definition and Validity under CC: Sales Tax

Answer 18

Definition: Tax on the sale of goods consummated within the State.

Validity: Generally valid if there is a substantial nexus to the taxing State and the tax is properly apportioned (if more than one State can tax the sale).

Question 19

Definition and Validity under CC: Ad Valorem Tax

Answer 19

Definition: Tax on the assessed value of some property.

Validity (Commodities): Valid only if property is no longer in interstate commerce.

Validity (Instrumentalities): Valid if instrumentality has “taxable situs” in the State and tax is fairly apportioned. Full tax by domiciliary State valid unless taxpayer can prove a defined part has acquired taxable situs elsewhere.

Question 20

Definition and Validity under CC: Privilege, License, Franchise, and Occupational Tax

Answer 20

Definition: Tax placed on some activity (“doing business” tax)

Validity: Valid if (1) substantial nexus to taxing State; (2) fairly apportioned; (3) does not discriminate against interstate commerce; and (4) fairly relates to services provided by the State.

Question 21

The ________ Amendment prevents States from depriving any person of life, liberty, or property without due process and equal protection of law.

Answer 21

14th Amendment.

Question 22

The ________ Amendment prevents both the Federal and State governments from denying a citizen the right to vote on account of race or color.

Answer 22

15th Amendment.

Question 23

What standards of review are used by the Court when reviewing challenges to governmental acts under the guarantees of substantive due process and equal protection, as well as the First Amendment rights:

Answer 23

1) Strict Scrutiny
2) Intermediate Scrutiny
3) Rational Basis

Question 24

Regulations that do not affect fundamental rights or involve suspect or quasi-suspect classifications are reviewed under the rational basis standard. The law is upheld if:

Answer 24

It is rationally related to a legitimate government purpose. This is a very easy standard to meet; therefore the law is usually valid - unless it is arbitrary or irrational.

Burden of Proof: The person challenging the Law

Question 25

Regulations involving quasi-suspect classifications (i.e., gender and child legitimacy) are reviewed under the intermediate scrutiny standard. The law is upheld if

Answer 25

It is substantially related to an important government purpose.

Burden of Proof: On the government

Question 26

Regulations affecting fundamental rights (i.e., interstate travel, voting, and the First Amendment rights) or suspect classifications (i.e., race, national origin, and alienage) are reviewed under the strict scrutiny standard. The law is upheld if

Answer 26

It is necessary (the least restrictive means) to achieve a compelling government purpose. This is a difficult test to meet, and so a law examined under a SS standard will often be invalidated - especially if there is a less burdensome alternative to achieve the government’s goal.

Burden of Proof: On the government

Question 27

The Procedural Due Process Clause of the 5th Amendment (applicable to the federal govt) and the 14th Amendment (applicable to the States) provide that

Answer 27

A person has a right to a fair process when the government deprives the person of life, liberty, or property.

Government negligence is insufficient to state a procedural due process claim.

Instead, there generally must be an intentional or reckless government action.

Question 28

Procedural Due Process requires:

Answer 28

1) Notice;
2) An opportunity to be heard; AND
3) A neutral decisionmaker.

Question 29

Substantive due process guarantees that laws will be reasonable and not arbitrary. Fundamental rights can be enumerated in the Const. or unenumerated. Whether an unenumerated right is fundamental depends on

Answer 29

Whether it is deeply rooted in the nation’s history and tradition and essential to the concept of ordered liberty.

Question 30

An equal protection claim arises whenever the government treats people differently from others. For strict or intermediate scrutiny to be applied, there must be an intent on the part of the government to discriminate. Intent may be shown by:

Answer 30

1) A law that is discriminatory on its face (facial discrimination);
2) A discriminatory application of a facially neutral law; or
3) A facially neutral law with a disparate impact on a protected class of people.

A discriminatory application or effect alone is NOT sufficient. The legislature’s discriminatory intent must be shown.

Question 31

Classifications are suspect if they are based on:

Answer 31

Race
National origin
Alienage (undocumented aliens are NOT a suspect classification)

Question 32

The Taking Clause (5th and 14th Amendments) provides that private property may only be taken:

Answer 32

(1) for public use and (2) the govt must pay just compensation.

Note that the Taking Clause is not a source of power for taking, but rather is a limitation.

Question 33

A physical taking will be found if there is

Answer 33

1) A confiscation of a person’s property; or
2) A permanent or regular physical occupation of a person’s property by the government.

Question 34

A regulatory Taking will be found if

Answer 34

A government regulation denies a landowner of all economically viable use of their land.

Question 35

The Contract Clause limits the ability of State and local governments to enact laws that

Answer 35

Retroactively impair contract rights.

It doesn’t affect contract not yet made.

There is no comparable clause applicable to the fed govt, but contract impairment may violate the 5th Amendment Due Process Clause.

Question 36

Legislation that substantially impairs an existing private contract is invalid unless the legislation:

Answer 36

1) Serves an important and legitimate public interest; and
2) Is a reasonable and narrowly tailored means of promoting that interest.

[Intermediate Scrutiny] for private contracts

[Heightened Scrutiny] for public contracts (same test)

Question 37

Neither the States nor the Federal govt may pass an Ex Post Facto Law, which is a law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purpose of punishing a person for some past activity. A statute retroactively alters a law in a substantially prejudicial manner if it:

Answer 37

1) Makes criminal an act that was innocent when done;
2) Imposes a greater punishment for an act than was imposed for the act when it was done; or
3) Reduces the evidence required to convict a person of a crime from what was required when the act was committed.

Note that Due Process Clauses Amendments similarly prohibit courts from retroactively interpreting criminal laws in an unexpected and indefensible way.

Question 38

What are Bills of Attainder?

Answer 38

Legislative acts that inflict punishment on individuals without a judicial trial.

Question 39

What is the 1st Amendment?

Answer 39

The First Amendment prohibits Congress from abridging the freedoms of speech and press, or interfering with the right of assembly, or from establishing a religion or interfering with the free exercise of religion.

These prohibitions are applicable to the States through the 14th Amendment.

Question 40

What is Speech?

Answer 40

Speech includes words, symbols, and expressive conduct.

Express conduct is any kind of conduct that is either inherently expressive, or conduct that is:

1) Intended to convey a message, and
2) Reasonably likely to be perceived as conveying a message.

Question 41

What are the unprotected speech that may be censored:

Answer 41

1) Incitement;
2) Fighting Words;
3) Obscenity;
4) Defamatory Speech; and
5) Some Commercial Speech.

Question 42

Speech can be censored as incitement if it is:

Answer 42

1) Intended to produce imminent lawless action and
2) likely to produce such action.

Question 43

Speech can be censored if it constitutes fighting words. Fighting words are:

Answer 43

Personally abusive words that are likely to incite immediate physical retaliation in an average person. Also, true threats are intended to convey to someone a serious threat of bodily harm.

Words that are merely annoying won’t suffice.

Question 44

Speech is obscene if it describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person:

Answer 44

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

Question 45

Defamatory statements can be subject to tort liability. If the defamatory statement is about a public official or public figure or involves a matter of public concern, the First Amendment requires the plaintiff to:

Answer 45

Prove all the elements of defamation plus falsity and some degree of fault in order to recover.

Question 46

Commercial speech is not protected by 1st Amendment if it is:

Answer 46

1) False;
2) Misleading; or
3) About illegal products or services.

Any other regulation of commercial speech will be upheld only if it:
1) Serves a substantial government interest, directly advances that interest; and
2) Is narrowly tailored to serve that interest.

Question 47

A regulation is content-based if it restricts speech based on the subject matter or viewpoint of the speech. What standard of review are content-based regulations subject to?

Answer 47

Strict scrutiny and they are presumptively unconstitutional unless they fall within one of the categories of unprotected speech.

Question 48

A regulation is content-neutral if it is both subject matter-neutral and viewpoint-neutral. What standard of review are content-neutral regulations subject to?

Answer 48

Intermediate scrutiny. They must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary to further those interests.

Question 49

What is a Public Forum?

Answer 49

Public property that has historically been open to speech-related activities (i.e., streets, sidewalks, and public parks).

Question 50

What is a Designated Public Forum?

Answer 50

Public property that has not historically been open to speech-related activities, but which the govt has thrown open for such activities on a permanent or limited basis, by practice or policy (i.e., a town hall open for use by social, civic, or recreation groups).

Question 51

If the regulation on a traditional public forum or designated public forum is content-neutral, it only needs to meet intermediate scrutiny, which in this context means it must:

Answer 51

1) Be narrowly tailored to serve an important government interest (however, it need NOT be the least restrictive means for accomplishing the interest); and
2) Leave open alternative channels of communication.

Question 52

What are Limited Public Forums?

Answer 52

Government forums not historically open generally for speech and assembly but opened for specific speech activity, like a school gym opened to host a debate on a particular community issue.

Question 53

What are Nonpublic Forums?

Answer 53

Government property not historically open generally for speech and assembly and not held open for specific speech activities, such as military bases or government workplaces.

Question 54

The govt may regulate speech in Limited Public Forums and Nonpublic Forums to reserve the forum for its intended use. In such locations, regulations are valid if they are:

Answer 54

1) Viewpoint neutral; and
2) Reasonably related to a legitimate government purpose.

If the regulation is viewpoint based, it will be subject to strict scrutiny.

Question 55

A regulation of speech or speech-related conduct will be invalidated as overbroad if:

Answer 55

It punishes substantially more speech than is necessary.

Question 56

What does the Free Exercise Clause do?

Answer 56

It prohibits government from punishing someone on the basis of their religious belief or related religious status or conduct.

Question 57

A law or other govt conduct that discriminates on the basis of religion is subject to strict scrutiny. A law is discriminatory if it is either:

Answer 57

1) Not neutral on its face (the law expressly provides favored or disfavored treatment based on religious belief, conduct, or status); or
2) Facially neutral but not generally applicable (the law is silent with regard to religion but, by design, it targets religion generally or a religion in particular).

Question 58

The Free Exercise Clause cannot be used to challenge government action unless:

Answer 58

The action was specifically designed to interfere with religion.

Question 59

What does the Establishment Clause do?

Answer 59

The Establishment Clause prohibits govt sponsorship of religion, meaning the govt cannot aid or formally establish a religion.

Question 60

Congress’ spending power in Article I, Section 8 provides that Congress may spend to “provide for the common defense and the general welfare.”

Congress may regulate States by imposing explicit conditions on the grant of money to State or local govt.

Such conditions will not violate the 10th Amendment so long as they are:

Answer 60

1) Clearly stated;

2) Related to the purpose of the program; AND

3) Not unduly coercive.

Question 61

What standard of review do we use for analyzing Congress’s taxing and spending power?

Answer 61

Rational basis test.

Question 62

What are the two exceptions where a State may directly discriminate against out-of-state business?

Answer 62

1) Where Congress authorizes it; AND

2) Market participation exception, city or state owned business they can do business with whomever they want.

Question 63

A State may regulate local aspects of interstate commerce if such regulation is not in conflict with federal regulations AND if:

Answer 63

1) The subject matter of the regulation does not require nationally uniform regulation;

2) The regulation does not discriminate against out-of-State competition to benefit local economic interests; AND

3) Any incidental burden on interstate commerce of the nondiscriminatory regulation does not outweigh the legitimate local benefits produced by the regulation.

Question 64

State law may be preempted by federal law.

Implied preemption will be found where:

Answer 64

1) It was the intent of the federal govt to occupy the entire field with its regulation;

2) The State law directly conflicts with the federal law; OR

3) The State provisions prevent achievement of federal objectives.

Question 65

True or False:

For regulations involving health, safety, and welfare, the Court will presume that State police powers are not preempted unless that was the clear and manifest purpose of Congress when it enacted the federal law.

Answer 65

True

Question 66

The Supreme Court’s appellate JDX extends to reviewing the decision of the highest court of a State where:

Answer 66

The validity of State legislation is called into question on the ground that it is unconstitutional or contrary to federal statutes.

Question 66

Generally, plaintiffs may not assert third-party rights in lawsuits to achieve standing. However, there is an exception. What is it?

Answer 66

1) A vender may have third party standing to challenge a law that adversely affects the rights of her customers (i.e., 1st Amendment). [Must show a nexus between the plaintiff and the third party - Economic nexus is prominent here]

Question 67

The Supreme Court will refuse JDX of a State court decision if:

Answer 67

It finds adequate and independent nonfederal grounds to support the State decision, because a different interpretation of the federal statutes would have no effect on the judgment rendered by the State court, so that the Supreme Court, in effect, would be rendering an advisory opinion.

Question 68

What is the scope of the President’s pardoning power?

Answer 68

Only to federal offenders.

The president may NOT issue a presidential party to a State offender.

Question 69

What is the standard of review if Congress is discriminating against resident aliens?

Answer 69

Rational Basis

Question 70

What is the standard of review if State is discriminating against resident aliens?

Answer 70

Strict scrutiny under Equal Protection Clause (14th Amendment)

If it is an important govt function, then State may discriminate. Strict scrutiny review dropped down to rational basis review!

Question 71

When dealing with procedural due process, we use a balancing test. What is it?

Answer 71

We look at the interest being taken away and balance it with the risk of error if no hearing is granted.

Question 72

What does the Contracts Clause prohibit?

Answer 72

It prohibits States from retroactively and substantially impairing contract rights unless the governmental act serves an important government interest and is narrowly tailored means of promoting that interest.