Con Law

Question 1

Compact clause

Answer 1

Requires states to obtain congress’s consent for agreements between the states that increase the political power of the compacting states at the expense of the federal government

Question 2

Political question doctrine

Answer 2

Prevents federal courts from hearing the merits of suits that present issues that (1) are reserved to the executive or legislative branch or (2) lack judicially manageable standards for resolution

Question 3

11th amendment

Answer 3

Bars suits in federal court against state governments

Question 4

Preemption

Answer 4

A federal law impliedly preempts a conflicting state law that makes it impossible to comply with both laws OR frustrates the accomplishment of the federal purpose

Question 5

Historical test

Answer 5

Allows the government to pass through the first amendment establishment clause wall separating church and state when the government action has historically been permitted

Question 6

Commercial speech

Answer 6

For an economic purpose
May be prohibited if false or misleading

Question 7

Protection of commercial speech test

Answer 7

Government interest is substantial
Regulation directly advances the interest
Regulation is narrowly tailored

Question 8

Content neutral restriction test

Answer 8

1) narrowly tailored to serve a substantial government interest
2) leave open ample alternative channels of communication

Question 9

Organizational standing

Answer 9

Individual members have standing
Claim is related to the purpose of the organization
Individual members are not necessary to adjudicate

Question 10

Spending power

Answer 10

Congress can condition federal funds to states and require states to implement certain regulations
Condition must be related to purpose of the funds
Condition must not be coercive

Question 11

Delegation allowed if…

Answer 11

Congress provides reasonably intelligible standards

Question 12

Types of preemption

Answer 12

Express
Implied

Question 13

Implied preemption

Answer 13

1) congress passes a federal law intending to occupy the field
2) the state law conflicts directly
3) state law conflicts indirectly

Question 14

Privileges and immunities clause

Answer 14

Prohibits states from discrimination against non residents unless necessary to achieve an important interest

Question 15

10th amendment

Answer 15

All powers not given to the federal government reserved for the states

Question 16

Dormant commerce clause

Answer 16

A state can’t discriminate against out of state commerce or unduly burden interstate commerce

Question 17

If a state statute discriminates against interstate commerce it must show…

Answer 17

1) important state interest
2) no other non-discriminatory means available to achieve the interest

Question 18

Market participant exception

Answer 18

If a state is acting as a buyer or seller it can favor local business

Question 19

Exceptions to discrimination

Answer 19

1) state as market participant
2) traditional government function
3) subsidy exception
4) congressional permitted discrimination

Question 20

How does a court determine if a state statute is an undue burden on interstate commerce?

Answer 20

1) purpose
2) burden
3) whether less restrictive alternatives are available

Question 21

Public use in a governmental taking

Answer 21

Must be rationally related to a conceivable government purpose

Question 22

Exaction

Answer 22

A local government may compel promises from a developer in exchange for construction permits

Question 23

Exaction does not constitute a taking if there is…

Answer 23

1) essential nexus between legitimate state interests and the conditions imposed
2) rough proportionality between the burden on the owner and the impact on the community

Question 24

Zoning requirement test

Answer 24

Reasonably related to a legitimate government purpose

Question 25

Procedural DP

Answer 25

Government shall not deprive a person of life, liberty or property without due process Includes notice, a hearing, a neutral decisionmaker, and the right to appeal

Question 26

Due process factors

Answer 26

1) interest affected 2) value of additional safeguards 3) burden or cost of additional process

Question 27

Substantive DP

Answer 27

Whether the governments action impermissible infringes in an individuals rights

Question 28

Substantive DP standard of review

Answer 28

Fundamental rights- strict scrutiny Non fundamental rights- rational basis

Question 29

Discriminatory intent requirement

Answer 29

Statute must meet strict scrutiny

Question 30

Disparate impact requirement

Answer 30

Statute must meet rational basis review

Question 31

Gender discrimination must show

Answer 31

Exceedingly persuasive justification (Intermediate scrutiny with a bite) Facilities are substantially equivalent

Question 32

Enabling clause

Answer 32

Congress can pass legislation to enforce EP and DP

Question 33

Expressive conduct regulation is valid if

Answer 33

1) furthers an important government interest 2) interest is unrelated to suppression of ideas 3) burden on speech is no greater than necessary

Question 34

Prior restraints

Answer 34

Prohibits speech before it occurs Must seek to avoid a particular harm Must have procedural safeguards (narrowly drawn, reasonable, definite)

Question 35

Content based regulations

Answer 35

1) necessary to achieve 2) a compelling governmental interest 3) narrowly tailored to meet that interest

Question 36

Content neutral regulation standard

Answer 36

Intermediate scrutiny

Question 37

Content neutral TPM standard

Answer 37

Validity depends on type of forum

Question 38

Obscenity

Answer 38

Average person, applying community standards finds: Appeals to the prurient interest Patently offensive Lacks literary, artistic, political or social value

Question 39

Incitement

Answer 39

Advocates force or unlawful action and is likely to incite such action

Question 40

Traditional public forum standard

Answer 40

Strict scrutiny- Narrowly tailored to a significant government interest and Leaves open ample alternative channels for communication

Question 41

Non public forum

Answer 41

Government can regulate if: Regulation is viewpoint neutral Reasonably related to a legitimate government interest

Question 42

Facially neutral statute that favors religion

Answer 42

Look to historical practices and understandings of environment