Con Law Flashcards
(136 cards)
1
Q
What is the test for state laws on alienage?
A
Strict Scrutiny-state must prove that this classification is necessary to advance a compelling state interest,
Exception: unless they discriminate against alien participation in state government (in which case only a rational basis review would be required).
2
Q
What does the due process clause require?
A
The Due Process Clause provides that the government shall not take a person’s life, liberty, or property
without due process of law.
There must be a fair process or procedure, which requires an opportunity to present
objections to the proposed action to a neutral decision-maker.
3
Q
If someone has a criminal trial on an exact issue that a board hearing would hear….
A
They would probably already have enough due process
4
Q
Who do the 1st and 14th amendments apply to?
A
generally apply only to the actions of governments and government officials, not to the actions of privately-owned companies such as the
insurance company.
5
Q
Steps to determine whether a regulation to commercial speech is valid:
A
: (i) initially, whether the commercial speech concerns a lawful activity that is not misleading or fraudulent;
(ii) the regulation must serve a substantial government interest;
(iii) it must
directly advance that interest; and
(iv) it must be narrowly tailored to serve the substantial interest.
This fourth part of the test does not require that the least restrictive means be used. Rather, it must be a reasonable fit between the government interest and the means chosen.
6
Q
What does strict scrutiny apply to?
A
Strict scrutiny applies to regulations involving either suspect classifications or fundamental rights, with the burden of persuasion on the government.
7
Q
What does intermediate scrutiny apply to?
A
Intermediate scrutiny applies when there is a classification
based on gender or legitimacy, with the burden of persuasion likely on the government.
8
Q
Is nudity alone enough for obscenity?
A
No
9
Q
Is false or misleading commercial speech constitutionally protected?
A
No, regardless of whether the speaker knew it was false or misleading
10
Q
What are examples where rational basis scrutiny is appropriate when alienage classifications restrict the right to participate in functions that are central to self-government?
A
voting, running for office, or serving on a jury, public school teacher
11
Q
What is the standard for rational basis?
A
the law should be upheld because if it is rationally related to a legitimate government interest
cannot be arbitrary or irrational
12
Q
What must the government demonstrate for eminent domain?
A
When the government takes property under eminent domain, it must demonstrate that the “taking” is for
public use, which has been construed broadly.
For a use to be “public,” it must only be rationally related to a legitimate public purpose.
The government may also take private property and turn it over to another private party, as long as
the public will derive some benefit.
the construction of the luxury hotel will boost tourism, it will benefit
the public and satisfy the “public use” requirement.
13
Q
What can a property owner challenge exercise of eminent domain on?
A
on multiple grounds, including that the taking is not for a valid public use
14
Q
How does a license relate to due process?
A
A license is a property right created by state law and cannot be revoked without due process of law.
Part of that process may include the ability to cross-examine accusers.
15
Q
If something has an explicit racial classification…?
A
Triggers strict scrutiny: A court would likely uphold these measures only if the government could prove that they are necessary to serve a compelling public interest
16
Q
Can a state force an organization violating a local ordinance be forced to accept the residents as members?
A
No - rhe U.S. Supreme Court has held that the forced inclusion of an unwanted person in a group
violates the group’s freedom of association if including that person would significantly affect the group’s ability to
express its viewpoints.
The freedom of expressive association entitles the environmental organization to refuse membership to the residents because admitting them would inhibit the organization’s expression regarding the mining
operations.
17
Q
Restricting ALL 1st amendment activities somewhere would be:
A
overly broad because prohibiting all First Amendment activities on the beach would restrict substantially more speech than the First Amendment allows to be restricted.
18
Q
When a general and neutral law affects the ability to practice religion
A
The court is likely to find the amendment constitutional because it is a law of general applicability, with no
evidence that it was motivated by the desire to interfere with religion.
Although the government may not punish
someone on the basis of their religious beliefs by denying benefits or imposing burdens because of those beliefs, that
is not what is happening here.
The city is not singling out a religious group or denying benefits on the basis of religion
19
Q
Time/place/manner restrictions on adult shops:
A
The for evaluating time, place, and manner restrictions is whether the restriction is designed
to serve a substantial governmental interest in a way that does not unreasonably limit alternative avenues of
communication.
Preventing adverse secondary effects associated with adult theaters and bookstores is a substantial governmental interest.
20
Q
Standard for government imposed conditions on the development of a property
A
Government-imposed conditions on the development of a property constitute a taking unless the
conditions are rationally related to preventing harms caused by the new development.
21
Q
What is required when one claims violation of a constitutional right?
A
When challenging the deprivation of a constitutionally-protected right without due process of law, a
plaintiff first must demonstrate that she has a constitutionally-protected right
22
Q
Prohibiting all of a certain type of commercial speech (all commercials on red meat)?
A
Not narrowly tailored enough
23
Q
When an individual makes a threat intended to intimidate the recipient, is this speech protected?
A
No
24
Q
Is nude dancing protected by the 1st amendment?
A
Nude dancing is expressive conduct protected by the First Amendment, but the Supreme Court has
nevertheless upheld bans on nude dancing and public nudity more generally.
The ordinance here is a content-neutral
prohibition because it does not target any message conveyed by public nudity, so it’s okay.
25
When will a regulation in a public forum be ok?
If it is narrowly tailored to further a significant government interest that is unrelated to the suppression of free expression, and individuals have other ways of communicating
their messages.
content-neutral
26
What does the 15th amendment provide?
The Fifteenth Amendment provides that the right to vote shall not be abridged on the basis of race or
color.
27
Can you take oil and gas rights without compensation?
No, because the law effects a taking of property without just compensation.
28
What are the restrictions on the ability of individuals to be candidates?
Restrictions on the ability of individuals to be candidates must be examined to determine whether they
violate the First Amendment freedoms regarding association and expression or the Fourteenth Amendment Equal Protection Clause.
29
What right if something infringes on the right of political association?
First amendment
30
For strict scrutiny a statute must be:
The state must demonstrate that the statute is the least restrictive means of achieving a compelling state
interest.
31
Conditioning building or development permits on a landowner
Municipalities often attempt to condition building or development permits on a landowner’s:
(i) conveying title to part,
or all, of the property to the government; or
(ii) granting the public access to the property.
Such exactions constitute an
uncompensated taking unless:
(i) the government can show that the condition relates to a legitimate government
interest (nexus); and
(ii) there is a “rough proportionality” between the size of the give-back demanded by the city and
the burden on the public caused by the proposed development.
32
Loyalty oaths will not be upheld if they are:
overbroad,
including prohibiting constitutionally-protected activities
or are so vague that they have a chilling effect on First Amendment activities
33
Balancing test for: Speech that is not made pursuant to an
employee’s official duties, and which is a matter of public concern, such as regarding policies of elected officials
Requires courts to balance the employee’s rights as a citizen to comment against the government’s interest as an
employer in the efficient performance of public service.
The U.S. Supreme Court has held that the government may
not fire an employee because of the employee's political views or affiliations unless certain political views or affiliations are required for the effective performance of the employee's job.
34
Can something redress historical discrimination generally, instead of remedy prior discrimination by this particular district.
Equal protection violation. This does not constitute
a compelling interest required to satisfy strict scrutiny.
35
When a neutral law of general applicability impacts a relgious practice?
.When a neutral law of general applicability impacts a religious practice, the law is subject to rational basis
review.
There is no inquiry into the extent of the impact or the sincerity of the religious beliefs.
The law must merely be
rationally related to a conceivable legitimate state interest.
36
To establish a violation of the Free Exercise Clause, the challenger must show what?
intent to target religion by
the government.
When such intent is established, courts will employ strict scrutiny over the government action, which
often invalidates the restriction in question.
37
Content-based restriction on free speech?
Because the statute is a content-based restriction, it is subject to strict judicial scrutiny. Speech restrictions
rarely survive strict scrutiny; the government must prove that the restriction is necessary to further a compelling
government interest. Even if the government's interest in preventing employees from revealing trade secrets was
deemed compelling, Congress could enact legislation utilizing less speech-restrictive means to protect trade secrets.
38
How to first amendment rights apply to government contractors and officials?
The First Amendment rights of free expression and free association apply to government contractors in
the same manner as they apply to government employees.
Government officials are prohibited from penalizing
employees and contractors because of their political beliefs or associations unless political beliefs or affiliations are
relevant to job performance.
Here, the government contract is for road construction, which does not involve political
policy-making.
39
Is a professor's discharge by a private university state action?
The protections afforded by the Fourteenth
Amendment apply only to conduct that is attributable to the state. Because the professor was discharged by a private university and not by a state actor, and the state was not significantly involved in the private university, nor did it take an affirmative act approving of the firing of the professor, the Fourteenth Amendment does not apply.
40
If someone is protesting the way that
the state government is treating her compared to people who are similarly situated, the most applicable and strongest
constitutional claim is?
Based in equal protection
41
Time, place, and manner
regulations on speech in public forums?
It must be content-neutral, narrowly tailored to serve an important/substantial government interest, and leave open alternative
channels of communication.
42
Can a dress code trigger heightened judicial scrutiny?
not without facts to suggest that the purpose of the code is to discriminate against female students. Without this, just rational basis
43
What is a bill of attainder?
a legislative act that inflicts punishment without a judicial trial upon individuals who are designated
either by name or in terms of past conduct
44
Standard for the custody of one' children - strict scrutiny
The Court uses the strict scrutiny standard when a suspect classification or fundamental right is involved.
Under this standard, a law will be upheld only if it is necessary to achieve a compelling or overriding government purpose.
The custody of one's children has been held to be a fundamental right, and therefore strict scrutiny will apply
Law it's DITCHED if it is not narrowly tailored to serve a compelling state interest
45
Easement Across a Portion of Private Land
The Takings Clause of the Fifth Amendment requires that
the government provide just compensation to owners for the land it takes. Just compensation is determined by the fair market value of the taken land.
even if the state law allows the owner to charge a fee to recover costs from hikers
who use the trail on the farm, the fee is not equivalent to the fair market value of an easement across the land.
46
Time, place, manner regulations in public forums
The government may regulate speech in public forums with reasonable time, place, and manner regulations.
The regulation must:
(i) becontent-neutral (regarding both subject matter and viewpoint);
(ii) be narrowly tailored to serve an important
governmental interest; and
(iii) leave open alternative avenues of expression.
47
Public employees speaking on a matter of public concern
public employee has a First Amendment right to speak on a matter of public concern, and may not be
discharged for that speech unless the employee's actions interfere with the functions of the government.
48
If an ordinance disproportionately affects women to men, when does it amount to sex discrimination?
Without any evidence that the city passed the ordinance in order to disproportionately affect women, it
does not amount to sex discrimination and must only satisfy mere rationality review, which it does, given its legitimate interest in protecting the health and safety of children through licensing regulation.
49
Time, place, manner restrictions on religiously-motivated conduct
The government may regulate the time, place, and manner of religiously-motivated conduct as long as
the regulation is neutral and serves an important public interest.
Here, the regulation is neutral on its face and in
application, the Superintendent's views notwithstanding. The interest in public safety is important. Therefore, the
denial of the permit would be valid.
50
Who does the 14th amendment apply to?
The Fourteenth Amendment only limits the power of states and state actors.
The baseball franchise is a
private entity, and this Amendment cannot reach it unless somehow it has become a state actor.
The franchise can
only be a state actor if it performs some traditional governmental function or if the government has become very involved in the management of the franchise.
51
Asking about association of bar applicants:
The freedom of association under the** First Amendment** prevents a state from inquiring about an
applicant’s associations for the purpose of withholding a right or benefit due to the individual's beliefs.
Despite the legitimate interest in determining the character and professional competence of bar applicants, the state may use other means to determine this, which are less restrictive of First Amendment freedoms.
52
Can race be the predominant factor in drawing boundaries of a voting district?
Race cannot be the predominant factor in drawing the boundaries of a voting district unless the district plan can
pass muster under strict scrutiny.
53
Residency or Citizenship requirements on non-residents of states
Under the Privileges and Immunities Clause of Article IV, a state may not impose residency or citizenship
requirements on non-residents without demonstrating a **substantial interest justifying the classification**.
54
Broadcasting a performance?
The U.S. Supreme Court has held that broadcasting a performance, and by extension appropriating the action by the performer, is not protected by the First Amendment.
Despite the fact that the television station has a First and Fourteenth Amendment right to publish information, it does not have any immunity under the Constitution for liability in tort if it deprives a person of the
commercial value of that person's performance.
55
If ordinance regulates who may sell food from vehicles on the streets, which implicates neither a
fundamental right nor a suspect class.....
Therefore, the ordinance would be subject to rational basis review, and the court will defer to any economic choice made by the city as long as it is plausibly justifiable.
56
What is designated public property?
Public property that the city has decided to open for an expressive use.
57
What is the decision to create a public forum?
The decision to create a public forum must
be made "by intentionally opening a non-traditional forum for public discourse."
58
A content-based speech restriction in a designated public forum?
In order to pass, would have to implicate compelling government interests that would justify a content-based speech restriction
59
What counts as a designated public forum?
public property that the city has decided to open for an expressive use. The decision to create a public forum must
be made "by intentionally opening a non-traditional forum for public discourse."
60
What happens to a content based restriction in a designated public forum?
The city administrator's denial of space to the organization was based on the content of the placard and therefore
triggered strict scrutiny, which requires that the denial be necessary to serve a compelling government interest. The
reasons cited for the city's denial of the organization's request do not implicate compelling government interests that
would justify a content-based speech restriction.
61
What power does Congress have over SCOTUS OG jx?
Congress has the general power to decide what types of cases the U.S. Supreme Court may hear, as long as it
doesn’t expand the Court’s original jurisdiction beyond the federal judicial power as established by Article III, Section 2
of the Constitution.
62
What original jx does SCOTUS have according to Art III?
Article III of the Constitution provides that the Court has original jurisdiction over cases involving foreign
ambassadors, cases involving other public ministers and consuls of foreign countries, and cases in which a state is a party. The Court has held that Congress cannot give the Court original jurisdiction over any other type of case.
63
Can a state court hear a case arising under a federal statute?
State courts have broad jurisdiction, including the power to hear cases involving federal causes of action.
Furthermore, a state court may not discriminate against a case solely because it arises under federal law. Nothing in
the facts indicates that the state court would be unable to hear this case.
64
What is the presumption of concurrency?
In deciding whether state courts may exercise jurisdiction over federal causes of action, the U.S. Supreme Court has
established a presumption of concurrency.
This presumption allows state courts to exercise jurisdiction over federal causes of action as long as
there has been no explicit or implied restriction by Congress that the jurisdiction be strictly federal.
State courts may not discriminate against a case solely because it arises
under federal law.
65
Can a claimant sue on behalf of his friend who died?
Generally no - The claimant must have suffered or may presently suffer a direct impairment with his own rights.
A plaintiff may, however, assert third-party rights where he himself has suffered injury and an additional factor is present,
including when a third party has difficulty asserting their own rights or the plaintiff’s injury adversely affects his
relationship with third parties.
66
What happens if the relief sought is no longer available (like injunctive relief)?
If the only relief sought by the company is no longer available and the case is moot.
67
Can somone sue over proposed standards that have not been announced?
The federal courts lack the power to entertain a suit that is not ripe for adjudication because such a suit
does not present a "case" or "controversy" within the meaning of Article III, Section 2, Clause 1 of the Constitution.
The district court should dismiss the suit because the Bureau has yet to announce the beer-quality standards, and
therefore the case is not ripe.
The court may not maintain jurisdiction over the suit by issuing a stay because it lacks
the constitutional authority to retain control over the suit.
68
Can SCOTUS review a case with federal and state issue if the lower court only decided it based on the state issue?
No - Even if there is a federal question in the state court case, the Court may not review it if there is an “independent and
adequate” state ground for the state court’s decision. That is, if the same result would be reached even had the state
court made a different decision on the federal question, the Court may not decide the case. This is because its opinion
would in effect be an “advisory” one.
69
What does it mean to have independent and adequate state law grounds?
The court will not hear a case if it finds adequate and independent non-federal grounds to support the
state decision.
The grounds must be adequate, meaning they are fully dispositive of the case, so even if the federal grounds are wrongly decided, it will not affect the outcome of the case. The state grounds must also be independent.
Meaning, it is not based on any federal law.
70
Are there independent and adequate state grounds when a state court interprets the state constitution and the US constitution together?
The U.S. Supreme Court may exercise jurisdiction over the state supreme court's interpretation of the
federal Constitution because it raises an important federal question.
When a state court interprets the state
constitution and the Constitution co-extensively, as it did here, the Court may find that independent and adequate
state grounds did not exist, which allows the Court to review it as to the federal issues. The state court maintains the
right to interpret the law under its own constitution.
71
Can Congress change SCOTUS appellate discretion?
Under Ex parte McCardle, 74 U.S. 506 (1868), Congress has full power to regulate and limit the Supreme Court’s appellate jurisdiction.
However, Congress does not have unlimited power to tamper with the Supreme Court’s
appellate jurisdiction.
Possible limitations on such congressional power have been suggested:
(i) Congress may
eliminate specific avenues for Supreme Court review as long as it does not eliminate all areas;
(ii) Congress may
eliminate Supreme Court review of certain cases within federal judicial power, but it must permit jurisdiction to remain
in some lower federal court;
(iii) if Congress were to deny all Supreme Court review of an alleged violation of
constitutional rights, or even go further and deny a hearing before any federal judge on such a claim, this would
violate due process of law.
72
What should SCOTUS do if a state court rests its decision on interpretation of federal law?
The Court may not review the state court's interpretation of its own state constitution, but here, the state
court rested its decision on interpretation of federal law. Its comment that the decision also comported with the same
provision in the state constitution, without any interpretation, was not an "independent and adequate" state ground that would require the Court to decline to review the case.
This is because when a state court interprets state and federal
provisions co-extensively, the Court may decide to hear the case as to the federal issues. Therefore, the Court should
accept the case for review and determine the validity and interpretation of the federal statute if it raises an important
federal question.
73
The power company files an action in the federal district court in the state requesting a declaratory judgment that this
new state statute forbidding public utility rate increases more often than once every two years is unconstitutional. What should the court do?
Dismiss the complaint, because this action is not ripe for decision.
There is no injury yet to the power company. It has not yet been denied a rate increase, and it does not
even know whether it will need to seek a rate increase before the statute will allow it to. Therefore, there is not yet an
actual or imminent injury, and the claim is not yet ripe for decision.
74
When is an issue not fit for judicial decision?
Generally, an issue is not fit for judicial decision if it relies on uncertain or contingent future events that may not occur as anticipated.
However, a court will hold that an issue is fit for judicial decision, even if it relies on uncertain or
contingent future events, when the future events have an immediate impact.
75
What if a situation relies on an uncertain or contingent future event that may not even occur?
Matter is not yet ripe and court should dismiss the action
76
If a state court says it would not resolve how the Supreme Court would have adjudicated the matter based on federal law, but
rather, it would give the state constitutional provision "the broadest possible interpretation"....can SCOTUS take it?
The state court's decision rested on an independent and adequate state-law ground because it explicitly
held that it would not resolve how the Supreme Court would have adjudicated the matter based on federal law, but
rather, it would give the state constitutional provision "the broadest possible interpretation" and it "does not permit this
conviction for incitement to riot to stand." (emphasis added). The Court should, therefore, dismiss the writ as
improvidently granted.
77
Are disputes involving foreign affairs always political questions?
Interbranch disputes involving foreign affairs are not subject to the political question doctrine when they
concern the validity of a federal statute
78
When can SCOTUS not review a judgment by the highest state court?
The Supreme Court may not review a judgment by the highest court of a state if that judgment is supported entirely by state law and is wholly independent of the interpretation and application of federal law.
Although the defendant claimed a violation of the Sixth Amendment of the U.S. Constitution, the state supreme
court based its decision entirely on the state constitution without addressing the federal constitutional issue.
79
What are clues that something might be a nonjusticiable political question when it involves foreign governments?
* The President's Article II power to receive foreign ambassadors is likely a textually demonstrable
commitment by the Constitution of exclusive authority to recognize foreign governments.
* Moreover, Article II provides
no judicially manageable standards by which a court could review the constitutionality of a President's decision on
whether to recognize a foreign government.
* Finally, because the action involves the President's administration of
foreign affairs, the prudential elements of the political question doctrine also indicate that the court should dismiss the
action as nonjusticiable.
80
The members of an association of law school professors that is dedicated to increasing the clarity of the
language used in criminal statutes believe that this statute is unconstitutionally vague. Neither the association nor any
of its members is currently engaged in, or intends in the future to engage in, trading in the stock market. The
association and its members bring suit against the Attorney General of the United States in a federal district court,
seeking an injunction against the enforcement of this statute on the ground that it is unconstitutional. May the federal
court determine the merits of this suit?
In order to have standing, a party must have an imminent or actual injury. Here, because the plaintiffs do
not trade in the stock market and do not plan to, they have no injury. Accordingly, they lack the standing required to
create a case or controversy under Article III.
81
Can the United States sue a state under the 11th amendment?
The Eleventh Amendment modifies judicial power by prohibiting a federal court from hearing a private party or foreign government's claims against a state government. The Eleventh Amendment does not bar actions by the United States government.
Moreover, the Eleventh Amendment typically only bars suits for damages, not suits involving injunctive relief. Therefore, the court will not dismiss the action.
82
Who has jx for questions under a US treaty?
federal courts have federal question jurisdiction
over cases arising under a treaty of the United States, as is the case here.
83
Who can issue habeas writs for individuals in federal custody?
Only federal courts can issue habeas writs for individuals in federal custody
The Supremacy Clause prohibits states from issuing habeas writs that interfere with federal detention.
See Tarble’s Case, 80 U.S. 397 (1871). When there is a conflict between state and federal law, the federal law will be
supreme.
84
Congress power over SCOTUS original jx
Article III defines the scope of the Supreme Court's original jurisdiction, and although Congress may regulate the
appellate jurisdictional scope of the Court, it may not expand the Court's original jurisdiction as outlined by Article III.
85
Can something be an appellate jx issue if no lower court has decided it?
This argument properly recognizes that it is not an appellate jurisdictional issue because no lower court has decided it,
so it's not coming up on appeal.
86
When does SCOTUS have original jx?
in cases
involving ambassadors, ministers and consuls, and cases in which a state is a party
87
Is the president's power to recieve foreign ambassadors a justiciable question?
The President's Article II power to receive foreign ambassadors is likely a textually demonstrable commitment by the Constitution of exclusive authority to recognize foreign governments.
Moreover, Article II provides
no judicially manageable standards by which a court could review the constitutionality of a President's decision on whether to recognize a foreign government.
Finally, because the action involves the President's administration of
foreign affairs, the prudential elements of the political question doctrine also indicate that the court should dismiss the
action as nonjusticiable.
88
Is deportation of citizens in Art III?
No, Granting the U.S. Supreme Court original jurisdiction over actions brought under the statute, which
involves deportation of foreign citizens, is not permitted because those issues do not fall within any of the designated
categories under Article III establishing the Court's original jurisdiction.
89
What if a state court relies on an interpretation of federal law?
The state court decision relied on an interpretation of federal law, and without any additional discussion,
also found the statute inconsistent "with the identical provisions of our state constitution." Therefore, this co-extensive
interpretation did not provide an independent adequate state ground, which means the Court may review the case if it
finds that it raises an important federal question.
90
When is a state tax on the federal gov ok?
A state tax is valid if it is nondiscriminatory and does not apply directly to the federal government.
91
Can a state collect this tax on the lease of office space in the state by the United States Social Security
Administration?
A state cannot impose a tax directly on the federal government or any of its agencies.
Taxes imposed by a state directly on the federal government are invalid, even where those taxes are
nondiscriminatory.
92
When can a state tax the federal government?
A state tax levied directly against the property or operation of the federal government without the consent of Congress is invalid.
Non-discriminatory, indirect taxes on the federal government or its property are permissible if they do not
unreasonably burden the federal government.
For example, state income taxes on the salaries of federal employees
are valid unless taxes imposed are higher on federal employees than on state or local employees
93
Can Congress make a state pass laws?
Congress is not permitted to force states into passing specific laws.
It may condition the receipt of funding
upon passing certain laws, but that is not what occurred here. This is plainly an attempt by Congress to force states to
enact certain legislation, which is unconstitutional.
94
When does something violate the dormant commerce clause?
if it discriminates against interstate commerce, or if its undue burden on interstate commerce, if any, does not outweighs legitimate benefit the law will bring to the state.
95
Full Faith and Credit Clause
The Full Faith and Credit Clause of the Constitution (Article IV, Section 1) prohibits state courts from relitigating cases in which the courts of another state have rendered final judgment.
96
When can a state have more rigorous standards?
The federal statute is very general and does not regulate radon testers to the extent of licensing them.
Therefore, the general federal statute does not conflict with the more rigorous state licensing standards, and those
licensing standards are not superseded by the federal law under the Supremacy Clause. Furthermore, the state's
licensing requirement is constitutional because it is reasonably related to a legitimate public interest.
97
Can a local government ever supersde federal gov?
Under the Supremacy Clause, the federal agency's activities supersede any inconsistent local law.
A local body may not regulate any part of the federal government. Thus, as long as the federal agency is involved in a
lawful federal function, which it is, the city may not prohibit it from performing that function without the consent of
Congress.
98
How is a state treated under federal law?
A state is treated as a person for purposes of federal law and must comply with validly enacted federal
laws.
99
Do states have plenary authority to
construct their tax system in any manner they choose?
NO
100
Can a state sue the federal government?
A state may not sue the federal government without its consent, absent some other exception, such as a
federal officer acting beyond the scope of his powers or in an unconstitutional manner.
101
Facially discriminatory commerce law?
On its face the ordinance discriminates against commerce from outside the city and, by doing so, it
necessarily excludes commerce from outside the state.
Even though the ordinance also excludes some commerce
from within the state, it is still considered facially discriminatory against interstate commerce.
Facially discriminatory
laws are only allowed in the absence of any nondiscriminatory means to promote the government’s interest.
102
Does federal law have to expressly pre-empt state law?
However, even if federal law
does not expressly prohibit state action, state laws will be held impliedly preempted if they conflict with federal
requirements. Therefore, the best argument that the state can make would be that the purpose of the law is consistent
with the federal statute, and enforcement would not interfere with the full execution of the statute.
103
When is a nondiscriminatory state law on commerce unconstitutional?
A nondiscriminatory state law may be unconstitutional if the burden on interstate commerce clearly
outweighs the state’s interest in regulation.
Here, the burden on interstate commerce is minimal compared with the
state’s interest in applying its police, welfare, and safety regulations
104
To combat these problems,
Congress enacted a comprehensive statute that regulates the manufacture, distribution, and sale of all
nonprescription drugs in the United States.
Which of the following sources of constitutional authority can most easily be used to justify the authority of Congress
to enact this statute?
The power granted to Congress to regulate commerce has been interpreted so broadly that it encompasses almost any economic act that could conceivably have some kind of impact, even secondarily, on the
stream of commerce.
Because the sale of these drugs was widespread throughout the country, and the statute
targeted the sale, manufacturing, and distribution of the drugs, it is properly authorized by the Commerce Clause.
A is incorrect. This is not an action linked with federal spending. These products are not regulated as a condition of
105
Can congress regulate noncommercial activity with no link to interstate commerce?
Congress does not have the power under the Commerce Clause to regulate a noncommercial activity
with no link to interstate commerce.
See United States v. Lopez, 514 U.S. 549 (1995). The facts here do not involve a
comprehensive regulation of commerce that incidentally covers some intrastate activities, as was the case in
Gonzales v. Raich, 545 U.S. 1 (2005).
106
A new federal statute establishes a five-member commission on cultural heritage sites. The statute directs the
commission to develop regulations to protect such sites on federal public lands and to implement the regulations
through specified fact-finding and adjudicatory functions. The commission is not under the supervision or control of
any federal agency.
Which, if any, of the following methods of appointing the commission members would be constitutional?
Members are appointed by the President, with the advice and consent of the Senate
The commission exercises significant legal authority; namely, the authority to adopt and enforce regulations. For that reason, the commissioners are officers of the United States.
They are not under any other federal
agency, so they are not considered inferior officers and must therefore, pursuant to the Appointments Clause, be
appointed by the President with the advice and consent of the Senate
107
Can a congressional commitee overturn agecy's designations of federal lands without bicameral approval and presidential signature?
By authorizing a congressional committee to overturn the agency's designations of federal lands by a majority vote, without seeking bicameral approval or presidential signature, this provision of the statute amounts to an unconstitutional legislative veto of an executive decision.
108
What does the take care clause require?
The Take Care Clause requires the President to take care that the laws be faithfully executed.
109
What does the appropriation clause of Article 1 provide?
the Appropriations
Clause of Article I provides that federal spending must be authorized by Congress
110
What article II, section 2 power does the president have?
Under Article II, Section 2, the President is empowered “with the advice and consent of the Senate” to appoint “all
ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United
States, whose appointments are not herein otherwise provided for . . . but the Congress may by law vest the
appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads
of departments.”
111
Can Congress appoint members of a body with administrative or enforcement powers?
Alhough Congress may appoint its own officers to carry on internal legislative tasks (i.e., its staff), it may not appoint members of a body with administrative or enforcement powers; such persons are “officers of the United States” and must, pursuant to Article II, Section 2, be appointed by the President with senatorial confirmation unless Congress has vested their appointment in the President alone, in federal courts, or in heads of departments.
112
Who has the power to govern bankruptcy proceedings?
authority established by Article I, Section 8, allowing Congress to govern
bankruptcy proceedings.
113
Can the president direct federal executive agencies?
The President may direct federal executive agencies, as he is doing here, as long as Congress is silent on the matter and the direction does not interfere with other branches.
114
What does the speech and debate clause do?
it immunizes members of Congress from conduct that occurs during the normal course of the legislative process. The
Clause, therefore, shields the U.S. Senator from liability for defamation as a result of making the speech on the floor of the Senate
115
Can Congress remove executive officers?
The Supreme Court has repeatedly held that Congress shall not play any role in the removal of executive
officers.
Myers v. United States, 272 U.S. 52 (1926); Bowsher v. Synar, 478 U.S. 714 (1986). Therefore, the President
may constitutionally remove the director—a presidential appointee—without the consent of the Senate.
116
Can Congress make exceptions to appellate jx?
Article III gives Congress broad power to restrict the U.S. Supreme Court’s appellate jurisdiction.
Some limits on this power have been suggested, but Congress nevertheless has the authority to strip the Court of its
appellate jurisdiction to hear particular types of cases.
117
The vaccination of children against childhood contagious diseases (such as measles, diphtheria and whooping cough)
has traditionally been a function of private doctors and local and state health departments. Because vaccination rates
have declined in recent years, especially in urban areas, the President proposes to appoint a Presidential Advisory
Commission on Vaccination which would be charged with conducting a national publicity campaign to encourage
vaccination as a public health measure. No federal statute authorizes or prohibits this action by the President. The
activities of the Presidential Advisory Commission on Vaccination would be financed entirely from funds appropriated
by Congress to the Office of the President for "such other purposes as the President may think appropriate." May the
President constitutionally create such a commission for this purpose?
Yes, because this action is within the scope of executive authority vested in the President by the
Constitution, and no federal statute prohibits it.
The President may establish this commission because it falls within his constitutional authority as chief
executive. First, Congress is silent on this matter - there is no federal statute prohibiting the creation of this advisory
commission. Second, even though Congress shares the power to promote public health measures such as this
through taxing and spending legislation, the President may still establish the commission because Congress has
given him authority through the appropriation of funds for the commission and for "such other purposes as the
President may think appropriate."
118
What is the taxing and spending power?
Article I, Section 8, Clause 1 of the Constitution gives Congress broad power to tax and to spend for the
general welfare. Courts defer to reasonable congressional taxing measures, such as the statute at issue, as well as to
expenditures that reasonably further the general welfare
119
When a commerce question involves transportation or traffic
If the regulated intrastate activity is not commercial or economic, the Court generally will not aggregate the effects and
the regulation will be upheld only if Congress can show a direct substantial economic effect on interstate commerce,
which it generally will not be able to do
However, the Court
has consistently regarded transportation or traffic as commerce, whether or not a commercial activity is involved.
The court should not grant the injunction because the statute falls within the powers attributed to
Congress through Commerce Clause; it regulates a commercial activity (the purchase of cars) that, when aggregated,
has a substantial effect on interstate commerce. The statute does not violate the Tenth Amendment as applied to the
city because it does not commandeer the city to regulate the conduct of others pursuant to congressional direction.
Instead, it directly regulates the city on the same terms as other entities engaged in the same conduct, which is
permissible under the Tenth Amendment.
120
Can congress regulate a commerce activity that the court previously struck down?
Congress has an extremely broad power to regulate under the Commerce Clause and may have the authority to pass legislation that regulates an activity the Court previously struck down.
See, e.g., United States v.
Darby, 312 U.S. 100 (1941). The Court has consistently regarded transportation as commerce. Therefore, the statute
in this case, because it regulates trucks that are instrumentalities of interstate commerce, falls within Congress's
Commerce Clause powers.
121
Congress has broad power to ____ for the _______?
Although Congress is not permitted to regulate for the general welfare directly through legislation, it nevertheless has
broad power to spend in service of the general welfare.
This statute is a spending measure for the public purpose of
combating drug abuse in the U.S., which is a concrete objective, and has criteria for conducting the essay contest and
awarding the prize money, including input into the makeup of the decision-makers. Therefore, the statute is neither
beyond Congress's spending power, nor is it an unconstitutional delegation of legislative authority.
122
What is the Congressional taxing power?
Congress has the power to lay and collect taxes.
Specifically, the Tax Clause of Article I, Section 8 gives Congress plenary power to raise revenue through taxes, which includes the sale of newspapers
123
race as a predominant factor is redistricting
race cannot be the predominant factor in drawing the boundaries of a voting district unless the district plan can pass muster under strict scrutiny.
124
Can a state impose residency or citizenship requirements on non-residents?
Under the Privileges and Immunities Clause of Article IV, a state may not impose residency or citizenship
requirements on non-residents without demonstrating a substantial interest justifying the classification.
125
When does a television station lose immunity to publish information about commercial things?
Despite the fact that the television station has a First and Fourteenth Amendment right to publish information, it does not have any immunity under the Constitution for liability in tort if it deprives a person of the commercial value of that person's performance.
126
What level of scrutiny for an economci regulation?
The ordinance is constitutional because it is an economic regulation and does not implicate a suspect class or fundamental right, thus triggering the "mere-rationality" review.
This choice correctly indicates that courts will give extreme deference to the choices by local legislatures regarding economic laws, even if the justification is merely
plausible.
The city's interest in reducing its extreme traffic problem is conceivably legitimate and prohibiting direct food
sales on the streets is rationally related to that end.
127
public employees spaking on matter of public concern
Public employees have the right under the First Amendment to express their views on issues of public concern.
The statement made in this case regarding the merits of the governor was clearly on a matter of public
concern.
However, the court must weigh the interests of the employer in fulfilling its duties against the interests of the
employee speaking as a private citizen.
128
Can a law increase the punishment for a crime after it was commited?
A law that increases the punishment for a crime after the crime was committed violates the ex post facto
clause of Article I, Section 10, Clause 1, of the U.S. Constitution. The law here was passed after the woman
committed the crime, so the law may not be applied to her retroactively.
129
What level of scrutiny if something affect the right to procreate (sterilization)?
The state requirement of sterilization denies affected individuals the right to procreate, which the US
Supreme Court holds to be a fundamental right. See Skinner v. Oklahoma, 316 U.S. 535 (1942).
A state law that
burdens a fundamental right must satisfy strict judicial scrutiny, meaning it must be necessary to serve a compelling
governmental interest.
Therefore, an argument that the law does not pass strict scrutiny would be the strongest
argument.
130
level of scrutiny for gender classification
This means that the government, and not the individual, bears the burden of persuasion in
showing that the policy is substantially related to an important governmental interest.
131
Laws that require certain schools?
Parents have a fundamental right to make decisions regarding the care, custody, and control of their children. Troxel
v. Granville, 530 U.S. 57 (2000). Although the state may prescribe reasonable educational standards, it may not
require that all children be educated in public schools. Pierce v. Society of the Sisters of the Holy Names of Jesus and
Mary, 268 U.S. 510 (1925).
132
Can states require childre to attend public schools?
The court should strike the law because the U.S. Supreme Court has explicitly held that states may not require children to attend public schools.
133
Does freedom of press exempt press activies from other general application laws?
The Supreme Court has consistently rejected claims that the freedom of the press protected by the First
Amendment exempts press activities from laws of general application such as contract law. Here, there was a valid
and enforceable contract between the reporter and the daughter.
134
What makes something state action?
For the action of a private entity to satisfy the “state action” requirement, the state must be “significantly
involved” in the private entity.
The fact that the company supplies a very important good to the public and received a non-exclusive franchise from the city is insufficient to make it a state actor.
135
The most credible basis for congressional authority to enact a statute prohibiting discrimination in the sale
or rental of housing on the basis of sexual orientation, both public and private, is
The Commerce Clause. The
congressional commerce power is plenary and includes even purely intrastate activities, both public and private, that
have an aggregate substantial effect on interstate commerce. The sale and rental of nearly all housing nationwide
would likely be found to have a substantial effect on interstate commerce in the aggregate.
136
Who can resolve a conflict between states?
Article III vests the Supreme Court with the explicit power to resolve conflicts between two states.
The Senate may not, therefore, appoint a commission to adjudicate a boundary dispute between two states
