Con Law Flashcards

Question

US Constitution - 15th Amendment

Answer 1

Right to vote for all men, regardless of race or previous conditions of servitude

Answer 2

Right to vote for all genders

Answer 3

The United States Supreme Court Original Jurisdiction Allows limited cases to be filed directly to U.S. Supreme Court Typically limited to disputes between states Cases where Supreme Court has original jurisdiction (AMCS, Ambassadors, Ministers, Consuls, State) All cases affecting ambassadors Other public ministers and consuls Those in which a state is a party

Answer 4

Adequate and Independent State Grounds (AISG) Regularly tested on MBE AISG is relevant only if the case (SWD, Supreme, Writ, Decided): Is in U.S. Supreme Court; Arises through a writ of certiorari; and Has already been decided by a state Court Adequate: state law controls decisions, regardless of how the federal issue would be decided Independent: State court’s ruling does not depend on an interpretation of federal law U.S. Constitution sets floor, not ceiling, for individual rights States can always create additional rights

Answer 5

Constitutional Elements to Standing (RCI, Redressability, Causation, Injury) Injury in fact Must be concrete - i.e. either actual or imminent Must be particularized (not abstract) - i.e., it cannot be common to all members of the public Need not be economic or monetary

Answer 6

Taxpayer standing (OE, Own, Establishment) Taxpayers have standing to challenge their own tax assessment (i.e. that their tax is too much) No taxpayer standing to challenge government expenditures Narrow exception: Any federal taxpayer has standing to challenge government expenditures that potentially violate the Establishment Clause (religious expenditure)

Answer 7

Organizational standing An organization may sue on behalf of its members if (MG, Members, Germane): The members would have standing to sue in their own right, AND The interests at stake are germane to the organization’s purpose

Answer 8

Third Party Standing Generally not permitted Some exceptions apply for unique relationships between the third party and the person whose rights they are raising Third Party Standing examples (DSBP, Doctor, School, Bartender, Parent): A doctor can raise the injuries of her patients A school can raise the injuries of its students A bartender can raise the constitutional injuries of her customers A parent generally has standing to bring an action on behalf of her minor child (but may be limited to custodial parents)

Answer 9

Political Question Doctrine Does not simply refer to a politically divisive legal issue A political question arises when (BD, Branch, Discretion): The Constitution assigns decision making authority on this subject to a different branch of government; or The matter depends on that person’s discretion such that there is no law for the judge to apply Examples of political questions include: How Congress uses its impeachment power President’s power to negotiate a treaty Political questions are non-justiciable

Answer 10

Abstention Doctrines Abstention Doctrines are all about federalism - respecting state courts Federal courts may abstain from deciding claims when there are strong state interests at stake There are four kinds of abstention doctrine (PU YP BR CS, Pullman Unsettled, Younger Pending, Burford Regulatory, Colorado Similar): Pullman abstention: may abstain because there is unsettled state law Younger abstention: may abstain for pending state criminal cases (unless obviously unconstitutional) Burford abstention: may abstain if parties are seeking injunctive relief that would interfere with a complex state regulatory scheme Colorado River abstention: may abstain if case is substantially similar to another case being heard in state court May not abstain from a case just to avoid hearing the case Watch for specific facts that may trigger each type of abstention

Answer 11

The following powers rarely or never give Congress authority to pass a law (WPN, Welfare, Police, Necessary) The General Welfare Clause Congress has no general power to legislate for general welfare However, the General Welfare Clause does permit Congress to exercise its power to tax and spend for any public purpose, including general welfare Police Power Only states have general police power to enact laws to protect its citizens Congress cannot commandeer state legislatures by forcing states to adopt or enforce federal regulatory programs Necessary and Proper Clause An important power of Congress, but not a freestanding power Must be used in addition to another legislative power

Answer 12

Congress’s Authority (CTS, Commerce, Taxing, Spending) Commerce Clause (greatest source of power, usually the right answer on the bar) Taxing Clause Spending Clause

Answer 13

The Commerce Clause The most robust power Congress enjoys is its power to regulate commerce Empowers Congress to “regulate Commerce with the foreign Nations, and among the several States and with the Indian tribes” Almost anything can be regulated as interstate commerce Can regulate three forms of activities (BIC, Behavior, Instrumentalities, Channels): Channels of interstate commerce Instrumentalities of interstate commerce Any behavior that has a substantial economic effect on interstate commerce Behaviors can be judged in the aggregate - i.e., you accumulate individuals to make one big one Congress only needs a rational basis to conclude that the total incidence of the activity in the aggregate substantially affects interstate commerce If a behavior is economic in nature, a substantial effect on interstate commerce is presumed Rational Basis = a law meets the rational basis standard of review if it is rationally related to a legitimate state interest This test generally results in the law being upheld

Answer 14

under the Spending Clause, Congress cannot (UAC, Unconstitutional, Ambiguous, Coerce): Impose unconstitutional conditions Enforce conditions that are ambiguous or not related to the program Coerce state behavior with its spending conditions

Answer 15

Private Action can be regulated by Congress under the 13th Amendment when (REBI, Rationally, Eliminating, Badges, Incidents): Congress adopts legislation rationally related to Eliminating racial discrimination, aka “Badges or incidents” of slavery

Answer 16

Section 5 Gives Congress power to “enforce these provisions by appropriate legislation” Congress can enforce these individual rights as the courts have defined them, but cannot expand them The Congruence and Proportionality Test (RFRM, Reasonable Fit, Right, Means): Requires a reasonable fit between the constitutional right defined by the courts and the means of enforcement If the enforcement is so broad it effectively expands the right, the enforcement is unconstitutional under Section 5 In Smith, if there is a neutral, generally applicable laws that happen to burden religious conduct are constitutional. Because a law criminalization the use of peyote was not targeted at the members of a Native American church who used peyote in religious ceremonies, the law was not a 5th Amendment violation. Subsequently, Congress passed the Religious Freedom Restoration Act (RFRA) which gave religious believers an accommodation from otherwise valid laws. SCOTUS struct down RFRA as exceeding Congress’s Section 5 power because it effectively created a new right rather than enforcing an existing right.

Answer 17

Other Congressional Powers (PONCEN PWN, Post Office, Non-Citizens, Elections, Necessary Proper, War, Naturalization) Power to declare war, raise an army and navy, and regulate the armed forces Exclusive power to establish a post office Plenary power over non-citizens Exclusive power over the naturalization process Power over Federal Elections under Article I, Section 4 Power to enact any legislation necessary and proper to execute an enumerated power NOT a freestanding power. Rarely a correct answer on the bar exam unless it is carrying into effect a separate enumerated power

Answer 18

After bill passes both houses of Congress (i.e. bicameralism), bill must be presented to the President for signature The President then has 10 days to: Sign the bill (making it a law); OR Veto the bill (rejecting the bill and sending it back to the originating house Need not give a reason for the veto Cannot veto some parts of legislation and not others This is called a line-item veto and SCOTUS has ruled this as unconstitutional Congress may override veto with a supermajority (i.e. 2/3 vote in each house) Pocket Veto If Congress has adjourned within the 10-day period after presenting a bill to the President, and the President had not yet acted on the bill, this is known as a “pocket veto” and the bill does not become law. This cannot be overridden

Answer 19

Commander in Chief Power President is commander in chief of the military But Congress has the power to declare war Chief Diplomat Power President has the power to negotiate treaties Treaties must be ratified by a supermajority of the Senate to have force of law Supermajority is a 2/3 vote of the Senate A treaty cannot conflict with the Constitution; if it does, the Constitution trumps the treaty The President can also negotiate executive agreements (i.e. presidential agreements with other countries that do not require Senate approval) Because these agreements do not become law, they do not bind a successor President

Answer 20

Congress may pass a statute and give the President discretion to withhold the funds If a statute requires that certain funds be spent on certain purposes, the President has no discretion to withhold (impound) the money There is only a separation of powers violation if the President fails to spend the money when Congress has mandated that the funds are to be allocated in a certain way

Answer 21

The President is immune from civil liability for official acts, but not immune for acts done: In the President’s private capacity; or Before becoming President Breakdown The president may not be sued for civil damages with regard to any acts performed as part of the President’s official responsibilities The president has no immunity for civil actions based on conduct that occurred before the president took office or completely unrelated to carrying out the job

Answer 22

Absolute immune for all judicial acts that could result in civil liability May be liable for non-judicial acts (i.e. employment discrimination)

Answer 23

Speech and Debate Clause protects federal legislators from liability for anything said in the course of the regular legislative process Protected statements cannot be used as evidence against the legislator Protection extends to Congressional aides if conduct would have been protected had it been performed by a legislator

Answer 24

Federal Law preempts State Law when (CECP, Constitution Exclusive, Congress Prohibits): The Constitution makes federal power exclusive (such as the powers to coin money or declare war), OR When Congress has enacted legislation that explicitly prohibits state regulation in the same area

Answer 25

Dormant Commerce Clause (DCC) Limits the power of states to legislate in ways that impact interstate commerce Generally, states cannot enact legislation that discriminates against out-of-state commerce, except when (F SNAP, Function, Subsidies, Necessary, Approval, Participant) Necessary to important state interest and no other nondiscriminatory means are available State is acting as a market participant Traditional government function Subsidies Federal/Congressional Approval The DCC issues only arise when: States are acting in ways that disadvantage each other AND Congress is silent Implied because Congress has the power to regulate commerce among the states

Answer 26

A state can impose a nondiscriminatory tax on interstate commerce when (NAR, Nexus, Apportionment, Related): There is a substantial nexus between the taxing state and the property or activity to be taxed There must be fair apportionment of tax liability among the states; AND The tax must be fairly related to the services provided by the taxing state

Answer 27

A state can tax the instrumentalities of commerce when (SWAT, Situs Within, Apportioned Time): The instrumentality has a taxable situs within (or sufficient contacts with) the taxing state; and The tax is fairly apportioned to the amount of time the instrumentality is in the state

Answer 28

DCC Basic Rule: If Congress has not enacted legislation on a particular area of interstate commerce, then the states can regulate it as long as they do not (DBR, Discriminate, Burden, Regulate): Discriminate against out-of-state commerce Unduly burden interstate commerce, OR Purposely regulate whole out-of-state activity

Answer 29

Discrimination Against Out-of-State Commerce Includes state or local laws that protect local economic interests at the expense of out-of-state competitors A discriminatory state law will survive if one of several exceptions applies, including if (NPC, Necessary, Participant, Congress): It is necessary to serve an important state interest; The state is acting as a market participant; or Congress authorizes a state regulation of commerce

Answer 30

Federal Preemption (ECF, Express, Conflict, Field) Express Preemption Applies when Congress explicitly says that state regulation in an area is preempted by federal law Not triggered by merely regulating the same activity Conflict Preemption Applies when it is impossible to comply with federal and state law at the same time Field Preemption Rare form of preemption Applies when federal regulation is so thick that we imply that Congress has determined there cannot be a concurrent state law in an area (i.e., Congress has occupied the field)

Answer 31

The state action requirement is also satisfied by the following situations (TEA, Traditional, Entanglement, Affirmatively): Private actor carrying out a traditional government function When a private person or company carries on activities that are traditionally performed exclusively by the state, state action exists Merely providing a product or service that the government could offer is insufficient (e.g., schools) State entanglement of private actors State action may exist if there are sufficient mutually beneficial contacts between the conduct of the private party and the state Must be so intertwined that it is hard to see where the private action ends and the state action begins Just having a license from the state is not enough Look for joint ventures or situations where the government has management authority or is making money off the private conduct State affirmatively approves of private action State action exists if a state has facilitated or endorsed private behavior Must affirmatively facilitate the conduct, not just passively approve

Answer 32

Property (Due Process Protection) A cognizable property interest requires a (LEV SCoC, Legitimate, Entitlement, Virtue, Statute, Contract, Custom) Legitimate claim of Entitlement to the property interest by Virtue of a Statute, Contract, OR Custom

Answer 33

The Process Due To decide what process is due (e.g. hearing, notice, statement of reasons) under the Mathews v. Eldridge balance test, a court will weigh (IS VP GE, Interest Stake, Value Procedure, Government’s Efficiency): Individual interest at stake Value of the procedure that is protecting that interest; and Government’s interest in efficiency (i.e., cost to provide process)

Answer 34

Generally, person whose interest is being deprived is entitled to Procedural Due Process in the form of (NH, Notice, Hearing): Notice of the government’s action by unbiased decision maker; and An opportunity to be heard Notice must be reasonably calculated under the circumstances to apprise interested parties of the pendency of the action with enough time to present objections Timing of hearing varies between post-deprivation hearing and pre-deprivation hearing. For example… Termination of welfare benefits requires a hearing before the benefits are taken away Termination of disability benefits do not require a hearing before the benefits are taken away, so long as the hearing occurs promptly after the termination and retroactive relief is possible if appropriate Public employees who can be fired only for cause (e.g. tenured professor or police officer) must be given hearing before discharge unless there is significant reason not to keep them

Answer 35

Substantive Due Process is the idea that laws should (RAFP, Reasonable, [not] Arbitrary, Freedom, Possible) Be reasonable and not arbitrary; and Protect individual freedom to the extent possible

Answer 36

Standards of Review (SSRI, Strict Scrutiny, Rationality, Intermediate) Standards of review determine the amount of deference owed to a prior decision maker Strict Scrutiny Least deferential standard of review Strict Scrutiny definition - the law must be the (LeaR MACoI, think “Real McCoy”): Least Restrictive Means To achieve a Compelling Government Interest The government must show that the challenged law is (NCL, Necessary, Compelling, Least) Necessary to meet a Compelling government interest Using the least restrictive means to do so Compelling interests: include national security, preserving public health, or remedying past discrimination Necessary: must be the least restrictive means to achieve the government’s purpose Sometimes, this is also called the “narrowly tailored” prong Intermediate Scrutiny Between strict scrutiny and rationality review The government must show the law is (SI, Substantially, Important) substantially related To an important government interest Rationality Review Most deferential standard of review Rationality review places the burden on the challenger, not the government A challenger must show that the law is not (RL, Related, Legitimate) Rationally related To a legitimate state interest Legitimate interests: include redistributing wealth, protecting scalp safety, keeping highways safe Rationally related: the fit of the law to these interests can be loose Not satisfied by irrational laws animated by prejudice or animus towards a particular group

Answer 37

Strict Scrutiny definition - the law must be the (LeaR MACoI, think “Real McCoy”): Least Restrictive Means To achieve a Compelling Government Interest

Answer 38

The government must show that the challenged law is (NCL, Necessary, Compelling, Least) Necessary to meet a Compelling government interest Using the least restrictive means to do so

Answer 39

Intermediate Scrutiny Between strict scrutiny and rationality review The government must show the law is (SI, Substantially, Important) substantially related To an important government interest

Answer 40

Rationality Review Most deferential standard of review Rationality review places the burden on the challenger, not the government A challenger must show that the law is not (RL, Related, Legitimate) Rationally related To a legitimate state interest Legitimate interests: include redistributing wealth, protecting scalp safety, keeping highways safe Rationally related: the fit of the law to these interests can be loose Not satisfied by irrational laws animated by prejudice or animus towards a particular group

Answer 41

All a plaintiff needs to show for the court to apply intermediate or strict scrutiny is (D FAM, Discriminatory, Facially, Applied, Motive): Discriminatory intent, either Facially As Applied or By Motive

Answer 42

A violation of any of these rights gives rise to a strict scrutiny review Right to Travel Right to Vote Right to Privacy Right to Bear Arms Identifying Substantive Due Process Arises out of the word “liberty” in the 14th Amendment Substantive due process and the Equal Protection Clause overlap, but substantive due process claims do not require a comparative judgment

Answer 43

Right to Travel Includes right to travel from state to state or settle in another state States may impose reasonable residency restrictions before new residents are eligible for benefits Typically 30-90 days One year is too long for everything except (TD, Tuition, Divorce): In-state tuition; and Jurisdiction to issue a divorce Durational residence requirements cannot deny newcomers the basic necessities of life Although there is also a right to travel internationally, it is not a fundamental right invoking strict scrutiny

Answer 44

Right to Privacy Collection of several related rights that all have to do with family and procreation (I CAMP, Intimate, Contraception, Abortion, Marry, Parental) Right to marry Fundamental right State bans same-sex marriage and interracial marriage are unconstitutional States can still regulate this right (e.g. require proof that two people who want to marry are not related), but must meet strict scrutiny to do so Right to contraception Fundamental right of everyone to purchase contraceptives Right to intimate association Lawrence v. Texas held that we have a right to choose our intimate partners Not explicitly held to be fundamental right, but government has no legitimate interest in regulating noncommercial sexual intimacy between consenting adults Separate fundamental right recognized to read obscene material in the privacy of one’s own home Parental Rights Parents have a fundamental right to raise their children as they see fit, including the right to choose: Whether to send kids to private school To educate children in a language other than English Parents have the right to live with their children unless there is a finding of abuse or neglect Abortion rights In Dobbs, the U.S. Supreme Court overturned Roe v. Wade and held that access to abortion is not a fundamental right States can regulate or prohibit abortion outright, subject only to rationality review

Answer 45

Strict Scrutiny (REO S, Race, Ethnicity, Origin, Status) Applies to suspect classifications of race, ethnicity, or national origin; and when a state law is at issue, the added strict scrutiny classification is citizenship status Government decisions based on these classifications are automatically suspect and will be aggressively reviewed by the courts

Answer 46

The two triggers for a state action invoking strict scrutiny are when the state action involves a (FS, Fundamental, Suspect): Fundamental Right OR Suspect Classification

Answer 47

Proving discriminatory purpose (FCS, Face, Context, Statistics) Face of the law - i.e. explicit mention of race in the law Context or history - i.e. legislative history or a context behind the law Statistics - i.e., law is neutral on its face, but applied in a discriminatory fashion such that the results are so dramatic that the only explanation can be a racial purpose

Answer 48

Age Poverty Sexual Orientation Laws that burden members of LGBTQ community get “rationality review with teeth”

Answer 49

Takings Clause Comes from 5th Amendment The government has the power to (PPC, Private, Public, Compensation) Take private property for public purposes so long as it pays just compensation Definitions Private property = land, tangible property, and intangible property (e.g., patent rights and trade secrets) Public use = any conceivable public purpose The need for the private land only has to be rationally related to that purpose The government may take private property and resell it to another Just Compensation = fair market value at the time of the taking Types of Takings Takings include: Taking ownership of private property and modifying it for a public purpose Giving a third party the right to occupy even a small space on the property Destruction of private property But permitted to destroy private property in response to a public peril Compensation not necessarily owed when destruction is in response to public peril Taking vs. Regulation If the government merely regulates property (e.g., zoning regulation), just compensation is not required Zoning regulations are not takings unless the zoning law is so thorough that there is no economically viable use for the property If the government physically occupies private owner’s property, then that is a taking Economic impact on the property is not necessary a taking Regulatory Taking A government rule adversely affects a person’s property to such an extent that it rises to the level of a taking To Determine if it is a Regulatory Taking, Courts consider (CIG, Character, Investment, Gravity): Gravity of the economic impact Extent to which the regulation interferes with the owner’s reasonable investment-based expectations; and Character of the regulation - i.e. how much it will benefit society Permanent, physical occupation of property = taking Permanent total loss of property’s economic value = taking

Answer 50

To Determine if it is a Regulatory Taking, Courts consider (CIG, Character, Investment, Gravity): Gravity of the economic impact Extent to which the regulation interferes with the owner’s reasonable investment-based expectations; and Character of the regulation - i.e. how much it will benefit society Permanent, physical occupation of property = taking Permanent total loss of property’s economic value = taking

Answer 51

Ex Post Facto Laws Retroactive change to a criminal law are prohibited Law will be struck down as being ex post facto if the law (CDPB, Criminalizes, Defense, Penalty, Burden): Criminalizes an act that was not a crime when originally committed; Authorizes the imposition of more severe penalty after act was committed Deprives the defendant of a defense that used to be available when crime was committed Decreases prosecution’s burden of proof after crime was committed

Answer 52

Government property open for speech (TDL, Traditional, Designated, Limited): Traditional public forums Designated public forums Nonpublic/limited public forums

Answer 53

Content-Neutral Restrictions Requirements Government may restrict protected speech in a public forum, aka the time, place, or manner of the speech, if the restriction (FANA, Face Applied, Narrowly, Alternative): Is neutral both on its face and as applied Leaves open alternative channels of communication; and Narrowly serves a significant state interest These requirements only apply to public forums. Regulations in nonpublic forums need only be (VL, Viewpoint, Legitimate): Viewpoint-neutral and Reasonably related to a legitimate governmental interest

Answer 54

Regulations in nonpublic forums need only be (VL, Viewpoint, Legitimate): Viewpoint-neutral and Reasonably related to a legitimate governmental interest

Answer 55

Expressive Conduct Government can regulate expressive conduct as long as (PINU, Power, Important, Necessary, Unrelated) The regulation is within the government’s power to enact Regulation in question furthers an important interest Interest is unrelated to expression; and The burden on expression must be no greater than necessary If it seems like the government is trying to get an idea or trying to suppress the expression of a message, that is likely unconstitutional. If it seems like the government is trying to neutrally regulate conduct or the time, place, or manner of the speech, that is likely to be constitutional

Answer 56

Regulations on freedom of expression based on content are subject to STRICT SCRUTINY The types of content that Congress can regulate are (IF DOC, Incitement, Fighting, Defamation, Obscenity, Commercial): Obscenity Incitement to violence Fighting words Defamation Commercial speech

Answer 57

Obscenity Rule of 4 S’s (Sex, Society, Standards, Serious) Sex = must be erotic (i.e. appeal to the prurient interest); gore and violence are not legally obscene Society sick = must be patently offensive to the average person in society Standards = government must define obscenity clearly with precise standards (i.e. not vague or overbroad) Serious value = if material has serious artistic, scientific, or educational value, then it cannot be legally obscene Child pornography is unprotected speech and can be prohibited under all circumstances But merely establishing the speech as pornography is insufficient to show obscenity Material that appeals to the prurient interests of minors may be regulated as to the minors even if it would not be considered obscene to an adult audience

Answer 58

When states are impacting interstate commerce within the bounds of the Dormant Commerce Clause, they are not permitted to do so in a way that unduly burdens interstate commerce When the law is nondiscriminatory against out-of-state citizens/commerce, use the PIKE BALANCING TEST: a nondiscriminatory law will be upheld unless the challenger shows that the law's buden on interstate commerce clearly exceeds its local benefits

Answer 59

Under the state-action doctrine, a private actor qualifies as a government actor when: 1) the private actor performs a traditional government function OR 2) the government is significantly involved in the private actor's activities, including: a) has a mutually beneficial relationship with the private actor (i.e. joint venture) b) creates a nexus by affirmatively facilitating or authorizing private action (i.e. through a police officer acting under color of law), OR c) is pervasively intertwined in the private actor's management or control

Answer 60

Equal Protection: applies to discriminatory treatment of similarly situated people Substantive Due Process: applies to deprivation of life, liberty, or property without adequate JUSTIFICATION Procedural Due Process: applies to deprivation of life, liberty, or property without adequate PROCESS Privileges & Immunities: applies to interferences with rights of national citizenship

Answer 61

RRLI Rationally Related Legitimate Interest Burden is on the CHALLENGER to prove: Law is not rationally related to Legitimate state interest

Answer 62

QS / SRII Quasi Suspect / Substantially Related Important Interest Quasi-Suspect Classes: 1. Sex/Gender 2. Legitimacy (child of married couple) Intermediate Scrutiny is applied when a QUASI-SUSPECT class is allegedly impacted uneqally To uphold law, the burden is on the STATE to prove 1. Law is substantially related to 2. An important state interest

Answer 63

SC or FR / NNCI Suspect Class or Fundamental Right / Necessary Narrowly Compelling Interest Strict Scrutiny is applied when a law unequally impacts a Suspect Class or a Fundamental Right Suspect Classes: 1. Ethnicity 2. Citizenship 3. Race 4. Nationality Fundamental Rights: 1. Voting 2. Interstate Travel 3. Privacy 4. First Amendment Right To uphold the law, the burden is on the STATE to prove: 1. Law is necessary and narrowly tailored to achieve 2. A compelling state interest

Answer 64

CONTENT-BASED. Because only one type of speech (upcoming events) are targeted, this is content-based and therefore subject to strict scrutiny. Strict scrutiny will require that the state prove that the restriction is NECESSARY and NARROWLY TAILORED to achieve a COMPELLING governmental INTEREST

Answer 65

The fundamental right to privacy includes PARENTS' RIGHT TO CONTROL THEIR CHILDREN'S UPBRINGING AND EDUCATION. This fundamental right is part of substantive due process.

Answer 66

Substantive Due Process of the 14th Amendment Because a law that regulates truck drivers' on-the-job conduct does not impact a fundamental right (1st Amendment, Voting, Interstate Travel, Privacy), and because truck drivers are not a suspect or quasi-suspect class, only a rational basis review is required. Rational Basis Review: CHALLENGER (truck drivers) must show that the law has no rational relation to any legitimate interest.

Answer 67

RATIONAL BASIS TEST. Disabled persons are not a suspect or quasi-suspect class, their is no requirement for a heightened level of review.

Answer 68

When a law intentionally discriminates against a quasi-suspect class (gender/sex or legitimacy).

Answer 69

When, under a law, either A fundamental right is substantially impacted OR A suspect class is intentionally discriminated against

Answer 70

When the restriction is Narrowly tailored to serve a Substantial government interest AND Leaves open ample alternative channels of communication

Answer 71

1. The crime requires more than one participant 2. The criminal statute imposes liability on only one participant AND 3. The person acts as the nonliable participant

Answer 72

NO. If a person obtains possession of property by fraud, they were not in LAWFUL possession of the property. The initial intent preempts the lawful possession, and therefore they did not commit embezzlement, but rather Larceny by Trick, which requires fraudulent acquisition of the property.

Answer 73

NO. Defense of property is only applicable when the defendant was in possession of the property when it was taken.

Answer 74

PIST Power Important Suppression Tailored A government regulation of expressive conduct will be upheld if: 1. The regulation is within the government's power to enact 2. The regulation furthers an important government interest 3. The government interest is unrelated to the suppression of ideas AND 4. The burden on speech is no greater than necessary (narrowly-tailored)

Answer 75

YES. This is inherent in the time, place, and manner test; the "narrowly-tailored" aspect of the permissible restriction of expression requires that the government still leave alternative channels for the speech. An apparent all-out ban is unconstitutional.

Answer 76

CRUC Clearly Reasonably Unconstitutional Coerce Conditions on federal funding must meet the following criteria: 1. Clearly stated & unambiguous 2. Reasonably related to federal interest in funded program 3. Do not require states to engage in unconstitutional activity 4. Do not unduly coerce states into accepting Imposing conditions for federal funding is a valid and constitutional way that Congress can encourage the enactment of policies that the federal government wants the states to follow, but the conditions are binding only if they are clearly stated and unambiguous.

Answer 77

State: The Elections Clause grants state legislatures the power to enact laws that regulate the time, place, and manner of congressional elections. Congress: The Elections Clause grants Congress the power to override state laws that regulate congressional elections by replacing the state laws with federal law.

Answer 78

Prior restraint is censorship imposed, usually by the state or state actor, on expression that prohibits particular instances of expression. Prior restraint is almost always unconstitutional, except in extremely limited instances such as when national security is jeopardized by publication.

Answer 79

Principal Officers (such as ambassadors, SCOTUS justices, Cabinet officials) are appointed by the PRESIDENT with SENATE approval Inferior Officers (such as independent counsel, judicial clerks, administrative law judges) are appointed by PRESIDENT with SENATE approval UNLESS... Congress delegates appointment to: 1. President alone 2. Federal Courts, OR 3. Heads of executive departments

Answer 80

BP Bicameralism Presentment Once Congress delegates some of its rulemaking power to the Executive branch, it cannot interfere with these functions of the Executive unless it follows the guidelines of legislative action: 1. Approved by both houses of Congress (bicameralism), AND 2. Presented to the President for approval or disapproval (presentment)

Answer 81

WIL War Impeaching Laws Exclusive legislative powers include: 1. Making/repealing laws 2. Declaring war 3. Impeaching federal officers

Answer 82

SAP Scope Agency Policy When Congress delegates its INCIDENTAL legislative power to the Executive (or Judicial) branch, it must provide INTELLIGIBLE PRINCIPLE defining: 1. Policy it seeks to advance 2. Agency carrying out policy 3. Scope of agency's authority

Answer 83

ILNo ReNA Important Legitimate Noneconomic Reasonable Nondiscriminatory Alternative A discriminatory state law - i.e. one that favors in-state over out-of-state interests - will be deemed unconstitutional unless the state proves that: 1. The law furthers an important or legitimate noneconomic state interest (e.g. health, safety), AND 2. There is no reasonable, nondiscriminatory alternative to achieve that interest

Answer 84

NO. Rational basis review requires that state action be rationally related to a legitimate government interest, and according to the Supreme Court, discriminating against out-of-state business to promote in-state business is not a legitimate government interest.

Answer 85

Civil forfeiture involves the government depriving an individual of their property interest by seizing property allegedly used in criminal activity. Procedural due process requires that the government provide reasonable notice and an opportunity to be heard before a neutral decision-maker. SPF Significant Performed Frustrated Personal Property may be seized prior to providing notice and a hearing when: 1. the seizure serves a significant government interest 2. That seizure would be frustrated by advanced notice of the seizure, AND 3. The seizure is performed by the government AV RIB Affected Value Risk Interest Burden Real Property may be seized prior to providing notice and a hearing when the seizure is justified based on a balancing test: 1. The private interest affected by the deprivation 2. The risk of erroneous deprivation of that interest through current procedures and the probable value of additional or substitute procedural safeguards 3. The government's interest, including the fiscal and administrative burdens that other safeguards would entail

Answer 86

CHALLENGER must prove the restriction lacks a rational relationship to legitimate state interest. This application, then, is a Rational Basis Review, because these regulations are non-discriminatory regulations of a fundamental right (voting).

Answer 87

DSM FOC Dangerous Sales Mentally Felon Open Concealed 1. Banning unusually dangerous firearms 2. Imposing conditions and qualifications on commercial sales of firearms 3. Forbidding the possession of firearms by felons and mentally ill individuals, AND 4. Prohibiting the open carry of firearms in certain areas or concealed carry of firearms in public

Answer 88

NO. Disadvantaging a group of persons based solely on animus toward that group is NOT a legitimate government interest under the 14th Amendment Equal Protection Clause.

Answer 89

NO. Under the 1st Amendment ministerial exception, religious organizations are protected against liability for employment discrimination when they hire or fire employees who serve in ministerial roles. This exception applies to ANY employee whose primary function is to advance the organization's religious mission.

Answer 90

YES. Age discrimination is subject only to the rational basis review, so if the state can show a link between age discrimination and the government interest in promoting safety and efficiency, such a law would be deemed constitutional and survive a 14th Amendment challenge.

Answer 91

The federal government can only exercise those powers specifically enumerated by the Constitution, and cannot create or expand the rights of citizens not already guaranteed by the Constitution. To pass legislation, then, Congress is bound by linking a "congruence and proportionality" between an injury to be prevented and the means adopted to achieve that end. The congruence and proportionality must be directly related to a right already guaranteed by the Constitution, though, so Congress cannot pass legislation to bar state laws that do not violate the Constitution, as this would not be congruent and proportional.

Answer 92

NO. Reasonable residency requirements are subject to strict scrutiny because they impact the fundamental right to travel, and therefore residency restrictions are presumed invalid unless the state can show that the requirement is necessary to achieve a compelling interest. When the restriction denies a person access to the basic necessities of life, the restriction does not survive strict scrutiny.

Answer 93

NO. The 14th Amendment Privileges or Immunities Clause does not apply to corporations.

Answer 94

Dormant Commerce Clause (Art. I, Sec. 8).

Answer 95

NO. Congress cannot remove jurisdiction over habeas corpus from the federal courts except in cases where Congress has already suspended the writ of habeas corpus in those cases. Under the Article I suspension clause, persons in federal custody can challenge their detention by filing a writ of habeas corpus in federal courts unless Congress has suspended the writ. This clause applies to noncitizens classified and detained as enemy combatants in territories over which the United States has sovereign control. Article I, Section 9, Clause 2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Answer 96

The Article III Exceptions Clause gives Congress power to expand, regulate, or make exceptions to the Supreme Court's appellate jurisdiction, which generally extends to review of final judgment of lower federal courts and the highest state courts when the judgment turns on federal law.

Answer 97

GDI Granted Discriminates Interferes 1. Congress has granted the affiliate immunity 2. The tax discriminates against the federal government or the affiliate, OR 3. The tax substantially interferes with the affiliate's federal purpose or duties (such as when a high tax burden makes it impossible for the affiliate to accomplish its federal functions)

Answer 98

Under the 10th Amendment, the federal government cannot impose federal taxes directly on states that unduly interfere with their essential functions. But the 10th Amendment does not prohibit the federal government from imposing federal taxes on states INDIRECTLY through their affiliates, so long as the taxes are nondiscriminatory.

Answer 99

CHE Coercion - No forced conformity with religious belief or practice. Applies generally to public schools Historical - Longstanding tradition & historical foundation. This is the default test, but courts can choose to instead apply the strict scrutiny test in place of the historical test when the law EXPRESSLY impacts religion. Endorsement - No appearance that government endorses religion. Applies generally to public displays or monuments. Establishment clause challenges are generally reviewed under the historical test. But strict scrutiny can be used instead when a law directly benefits or burdens a particular relgion. In that case, the law is invalid unless the government proves that the law is necessary to achieve a compelling government interest. Strict Scrutiny: the law is invalid unless the government proves that the law is necessary to achieve a compelling government interest.

Answer 100

Article I, Section 2: governs Congressional Elections; demands almost exact equality (courts that less than a 0.7% variance is OK; other courts have ruled that less than a 3% variance is OK) Equal Protection Clase: governs State & Local Elections; prohibits unjustifiable large inequality (courts have ruled that a 10% or less variance is OK). However, even a variance less than 10% but that has evidence of discrimination can violate the Equal Protection Clause. The Fourteenth Amendment equal protection clause ensures that each citizen is given equal voting power by requiring state legislative districts to have largely equal populations

Answer 101

The government can regulate the content of that speech (speech of public concern made by off-duty government employees) if its interest in efficient government function outweighs the employee's free-speech right

Answer 102

OV Obroad Vague 1. Overbroad: When the law restricts a substantial amount of constitutionally protected expression, OR 2. Unduly Vague: the law fails to give persons of ordinary intelligence fair notice of prohibited expression

Answer 103

LA Legitimate Alternative The Strict Scrutiny Test of the Dormant Commerce Clause applies because of the discriminatory nature of the law. For a discriminatory state law made under the Dormant Commerce Clause to be constitutional, the state must prove that: 1. The law furthers a legitimate interest AND 2. There is no reasonable alternative

Answer 104

AEAS RRRR A direct tax (tax on person or property) enacted by Congress, in order to be constitutional, must be: 1. Apportioned evenly among states (based on each state's POPULATION) 2. Reasonably related to revenue raising

Answer 105

Sovereign immunity prohibits private parties (or states or foreign governments) from suing the federal government in state or federal court unless Congress consents. The 11th Amendment prohibits suits against the several state unless it is by another state, by the federal government, or Congress abrogates the immunity.

Answer 106

As long as a tax has a reasonable relationship to revenue production, Congress may exercise its power to tax for ANY PUBLIC PURPOSE.

Answer 107

Congress must draw this authority from the Civil War Amendments (13th, 14th, or 15th) and the standard of review that would be applied to see if a state action would constitutionally permissible would depend on the class affected: Rational Basis Review: Non-Suspect Class such as age Intermediate Scrutiny: Quasi-Suspect such as legitimacy or gender Strict Scrutiny: Race

Answer 108

YES. Although a final state-court judgment that rests on adequate and independent state grounds may not be reviewed by the US Supreme Court, the Supreme Court may constitutionally review a state court decision to determine whether such grounds exist. This would be the case if a state court made a decision based on the interpretation of a federal law, even if the federal law was only used as a model for the state law. Because the interpretation of the federal law is essential to the final judgment of the state court case, there are no INDEPENDENT state grounds.

Answer 109

NO. An individual who believes he has been harmed by a local zoning regulation does not have standing until he has applied for a special variance; until then, the case is not yet ripe.

Answer 110

A direct tax. Article I, Sec. 2 requires that all direct taxes be apportioned among the states based on their population. A direct tax is paid by the person or group that owes it directly to the government. An indirect tax can be shifted to any other person or group by the person or group that owes it, such as an airline that must pay a tax per ticket sold: the airline can add the tax to the cost of tickets charged to passengers.

Answer 111

The Dorman Commerce Clause is used to prohibit state legislation that discriminates against, or unduly burdens, interstate or international commerce. 1. Courts first determine whether a state regulation discriminates on its face against interstate commerce or whether it has the purpose or effect of discriminating against interestate commerce. 2. If the statute is discriminatory, the state has the burden to justify both the local benefits flowing from the statute and to show the state has no other means of advancing the legitimate local purpose.

Answer 112

Chances are, this is because the state law cause of action would create an obstacle to or frustate the accomplishment of the federal policy. Thus, the Supremacy Clause can help solve the competing aims of the federal policy and the state right of action, with the federal policy winning of course.

Answer 113

NO. Private companies cannot be the target of a due process challenge; due process violations can only be committed by state actors.

Answer 114

"Interference with a right" is an allegation of a substantive due process violation, not an equal protection violation. Thus, in order to raise the standard of review to strict scrutiny, the violation must be against a fundamental right (voting, travel, privacy, bear arms).

Answer 115

1. Generally strict scrutiny applies to laws such as these 2. Laws that require citizenship status to be a police officer is part of the growing list of exceptions to the strict scrutiny test application to state action that discriminates against noncitizens BEING DIRECTLY INVOLVED IN GOVERNMENT FUNCTIONS, and instead the standard applied is the RATIONAL BASIS REVIEW, because of the importance of efficiency in the enforcement of laws.

Answer 116

When the license or service does not constitute a fundamental right. Article IV's Privileges and Immunities Clause protects citizens of one state from discrimination by another state in their exercise of fundamental rights. But if the right is not a fundamental one, the state is permitted to discriminate against out-of-state citizens, provided the discrimination is not unconstitutional, such as being applied to a suspect class.

Answer 117

When the president acts pursuant to a Congressional authorization

Answer 118

ISE Important Separate Effectively An interlocutory order will be characterized as final and immediately appealable if three elements are met: 1. The order conclusively resolves an important issue; 2. The issue is separate from the merits of the underlying claim; AND 3. The order cannot be effectively reviewed on appeal from a final judgment -Denying state 11th Amendment immunity -Denying government official/employee immunity -Vacating attachment of vessel -Refusing to require security bond pursuant to state law -Remanding action to state court based on abstention

Answer 119

The Article IV Property Clause grants Congress complete power to dispose of and regulate federally owned property. As part of this property power, Congress may enact statutes regulating the use of buildings owned by the federal government.

Answer 120

POK Public Obtained Knows 1. The information involves a matter of public concern AND 2. The publisher neither obtained it unlawfuly nor knows who did it

Answer 121

NO. The Commerce Clause gives Congress concurrent authority to regulate in-state activities that, alone or in the aggregate, have a substantial impact on interstate commerce

Answer 122

This is the clause that enabled Congress to pass legislation to enforce the substantive clauses with the 14th Amendment. The Fourteenth Amendment Contains the Equal Protection Clause and the Due Process Clause Section 5 Gives Congress power to “enforce these provisions by appropriate legislation” Congress can enforce these individual rights as the courts have defined them, but cannot expand them

Answer 123

The Thirteenth Amendment Gave Congress authority to pass laws rationally related to ending the badges or incidents of slavery Allows Congress to regulate both public and private action

Answer 124

REBI Rationally, Eliminating, Badges, Incidents Private Action can be regulated by Congress under the 13th Amendment when (REBI, Rationally, Eliminating, Badges, Incidents): Congress adopts legislation rationally related to Eliminating racial discrimination, aka “Badges or incidents” of slavery

Answer 125

RFRM Reasonable Fit, Right, Means The Congruence and Proportionality Test (RFRM, Reasonable Fit, Right, Means): Requires a reasonable fit between the constitutional right defined by the courts and the means of enforcement If the enforcement is so broad it effectively expands the right, the enforcement is unconstitutional under Section 5 In Smith, if there is a neutral, generally applicable laws that happen to burden religious conduct are constitutional. Because a law criminalization the use of peyote was not targeted at the members of a Native American church who used peyote in religious ceremonies, the law was not a 5th Amendment violation. Subsequently, Congress passed the Religious Freedom Restoration Act (RFRA) which gave religious believers an accommodation from otherwise valid laws. SCOTUS struct down RFRA as exceeding Congress’s Section 5 power because it effectively created a new right rather than enforcing an existing right.

Answer 126

The Fifteenth Amendment Prohibits state and local governments from denying any citizen the right to vote based on race Enforced by Congress through the Voting Rights Act Congress held that the right to vote is the right to have the vote meaningfully counted

Answer 127

PONCEN PWN Post Office, Non-Citizens, Elections, Necessary Proper, War, Naturalization Other Congressional Powers Power to declare war, raise an army and navy, and regulate the armed forces Exclusive power to establish a post office Plenary power over non-citizens Exclusive power over the naturalization process Power over Federal Elections under Article I, Section 4 Power to enact any legislation necessary and proper to execute an enumerated power (NOT a freestanding power. Rarely a correct answer on the bar exam unless it is carrying into effect a separate enumerated power)

Answer 128

Includes the power to enforce the law, but not the power to make the law Includes significant power over administrative agencies that enforce the law Can issue executive orders telling agencies what to do (i.e. how to enforce the law) Can set enforcement and rulemaking priorities Enforcement powers are subject to control by Congressional statute

Answer 129

Can forgive crimes for federal offenses Explicitly does not apply to impeachment

Answer 130

Veto Power After bill passes both houses of Congress (i.e. bicameralism), bill must be presented to the President for signature The President then has 10 days to: Sign the bill (making it a law); OR Veto the bill (rejecting the bill and sending it back to the originating house) Need not give a reason for the veto Cannot veto some parts of legislation and not others This is called a line-item veto and SCOTUS has ruled this as unconstitutional Congress may override veto with a supermajority (i.e. 2/3 vote in each house) Pocket Veto If Congress has adjourned within the 10-day period after presenting a bill to the President, and the President had not yet acted on the bill, this is known as a “pocket veto” and the bill does not become law. This cannot be overridden

Answer 131

Appointment President authorized to appoint all officers of the United States (i.e. Supreme Court justices, ambassadors) with the “advice and consent of the Senate” Only federal employees who exercise significant authority on behalf of the United States must be appointed consistent with the appointments clause Inferior officers can be appointed by a department head, the President alone, or a court of law if Congress so chooses Congress cannot appoint officers of the United States Congress creates offices, not officers

Answer 132

President can remove federal officers, but this power is not explicitly in the Constitution Congress can pass a law that Creates an agency and Protects the head of that agency from being fired by the President (i.e. an independent agency) But Congress cannot create multiple layers of protection (i.e. by protecting an officer under the supervision of another protected officer)

Answer 133

President’s Power Over Foreign Affairs Commander in Chief Power President is commander in chief of the military But Congress has the power to declare war Chief Diplomat Power President has the power to negotiate treaties Treaties must be ratified by a supermajority of the Senate to have force of law Supermajority is a 2/3 vote of the Senate A treaty cannot conflict with the Constitution; if it does, the Constitution trumps the treaty The President can also negotiate executive agreements (i.e. presidential agreements with other countries that do not require Senate approval) Because these agreements do not become law, they do not bind a successor President

Answer 134

Impeachment The President, the Vice President, and all civil officers of the United States (including U.S. Supreme Court Justices) shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors The House of Representatives alone impeaches by majority vote. This is done by determining what constitutes “high crimes and misdemeanors” and then voting to determine if the president has committed such acts The Senate alone tries and convicts by supermajority (⅔) vote If the President is on trial, the Chief Justice of the Supreme Court presides Consequences of conviction: Removal from office Disqualification from holding future office No criminal penalties attach

Answer 135

The Legislative Veto - the (impermissible) act of Congress passing a law reserving the right for themselves to disapprove future executive actions by simple resolution Congress cannot reserve for itself (or a sub-component of itself) the right to veto legislation under their Constitutional powers

Answer 136

Impoundment Congress may pass a statute and give the President discretion to withhold the funds If a statute requires that certain funds be spent on certain purposes, the President has no discretion to withhold (impound) the money There is only a separation of powers violation if the President fails to spend the money when Congress has mandated that the funds are to be allocated in a certain way

Answer 137

Delegation of Powers Nondelegation doctrine: Congress is allowed to delegate many powers to administrative agencies, but must provide an intelligible principle to guide agency discretion Certain powers are nondelegable, such as the power of impeachment and the power to declare war Historically, the intelligible principle test has not been very hard to pass

Answer 138

Executive Immunity The President is immune from civil liability for official acts, but not immune for acts done: In the President’s private capacity; or Before becoming President Breakdown The president may not be sued for civil damages with regard to any acts performed as part of the President’s official responsibilities The president has no immunity for civil actions based on conduct that occurred before the president took office or completely unrelated to carrying out the job

Answer 139

Judicial Immunity Absolute immune for all judicial acts that could result in civil liability May be liable for non-judicial acts (i.e. employment discrimination)

Answer 140

Legislative Immunity Speech and Debate Clause protects federal legislators from liability for anything said in the course of the regular legislative process Protected statements cannot be used as evidence against the legislator Protection extends to Congressional aides if conduct would have been protected had it been performed by a legislator

Answer 141

Certain confidential information can be privileged (i.e. President can withhold it from courts or Congress) But the privilege can be outweighed by a demonstrated need (e.g. an ongoing criminal prosecution) Claimed of executive privilege based on national security are generally given enhanced deference from the courts

Answer 142

Neither state nor federal can act: Banning speech protected by the First Amendment Establishing a religion Conducting an unreasonable search and seizure

Answer 143

The Constitution forbids the states from certain acts, including: Coining their own money; AND Taxing imported or exported goods Sometimes, because Congress has the power to regulate something, we infer that the states cannot (e.g. Dormant Commerce Clause)

Answer 144

Includes anything outside Congress’ enumerated powers The Tenth Amendment provides that all powers not assigned by the Constitution to the federal government are reserved to the states or to the people These powers are limited by the expansive interpretation of the commerce clause

Answer 145

Whenever states and the federal government have concurrent jurisdiction to regulate something, remember to apply the Supremacy Clause

Answer 146

CECP Constitution Exclusive, Congress Prohibits Federal Law preempts State Law when: The Constitution makes federal power exclusive (such as the powers to coin money or declare war), OR When Congress has enacted legislation that explicitly prohibits state regulation in the same area

Answer 147

States are not immune from direct federal regulation Exception: The federal government cannot commandeer a state government to enact or enforce a federal regulatory program

Answer 148

F SNAP Function, Subsidies, Necessary, Approval, Participant Necessary to important state interest and no other nondiscriminatory means are available State is acting as a market participant Traditional government function Subsidies Federal/Congressional Approva

Answer 149

NAR Nexus, Apportionment, Related There is a substantial nexus between the taxing state and the property or activity to be taxed There must be fair apportionment of tax liability among the states; AND The tax must be fairly related to the services provided by the taxing state

Answer 150

SWAT Situs Within, Apportioned Time The instrumentality has a taxable situs within (or sufficient contacts with) the taxing state; and The tax is fairly apportioned to the amount of time the instrumentality is in the state

Answer 151

DBR Discriminate, Burden, Regulate Discriminate against out-of-state commerce Unduly burden interstate commerce, OR Purposely regulate whole out-of-state activity

Answer 152

NPC Necessary, Participant, Congress It is necessary to serve an important state interest; The state is acting as a market participant; or Congress authorizes a state regulation of commerce

Answer 153

Undue Burden on Interstate Commerce May violate DCC if burdens imposed on interstate commerce clearly outweigh local benefits This is called Pikes balancing

Answer 154

Extraterritoriality State law that purposefully regulates conduct wholly outside state’s borders violates the Dormant Commerce Clause

Answer 155

NO. A property owner shose nonconforming use predates a zoning ordinance may not, after the ordinance becomes effective, switch to another nonconforming use. The property owner's vested right in the nonconforming use does not extend to other nonconforming uses.

Answer 156

When applying the "undue burden" test when weighing the constitutionality of a state law passed under the dormant commerce clause, some state laws have been found wanting because there are less restrictive alternatives. It does not matter whether the state law predated OR followed other states' similar laws, it only matters if there is a less-restrictive alternative. Note: "less-restrictive alternative" is NOT dispositive to an undue burden constitutionality test under the dormant commerce clause, it is merely one of many possible factors.

Answer 157

14 days. Failure to do so authorizes the opposing party to issue a motion to compel on the non-disclosing party, who then has 21 days to correct the issue before the non-disclosing party can request the court to take action, such as issuing sanctions.

Answer 158

NO. VNRL Viewpoint Neutral Related Legitimate The courtroom is not a public forum. All public property that is not traditionally or designated public forum is a "nonpublic forum." Nonpublic forums include government offices, schools, jails, military bases, polling places, and courtrooms. The government (including the judge in her courtroom) may regulate speech-related activities in nonpublic forums as long as the regulation is 1. Viewpoint-Neutral (can still be content-based, so long as viewpoint-neutral) AND 2. Reasonably related to a legitimate governmental interest

Answer 159

Under the doctrine of abstention, a federal court may abstain from deciding a claim when strong state interests are at stake. Under the Younger Abstention Doctrine, a court will not enjoin a pending state criminal case in the absence of bad faith, harassment, or a patently invalid state statute. Under the Pullman Abstention Doctrine, a federal court may refrain from ruling on a federal constitutional claim that depends on resolving an unsettled issue of state law best left to the state courts.

Answer 160

CDBN Congress Discriminate Burden Nexus 1. Congress is silent on that type of commerce 2. The tax does not discriminate against or unduly burden interestate commerce 3. There is a substantial nexus between the taxing state and the property or activity to be taxed

Answer 161

States can tax property, real or personal, including movable commodites that are within their border on a particular date However, states may not levy an ad valorem tax on goods that are merely in transit between states States may tax instrumentalities of commerce if the instrumentality has a taxable situs or sufficient contacts within the taxing state, typically indicated by where the instrumentality receives benefits and protections from the taxing state

Answer 162

ECF Express, Conflict, Field Express Preemption Applies when Congress explicitly says that state regulation in an area is preempted by federal law Not triggered by merely regulating the same activity Conflict Preemption Applies when it is impossible to comply with federal and state law at the same time Field Preemption Rare form of preemption Applies when federal regulation is so thick that we imply that Congress has determined there cannot be a concurrent state law in an area (i.e., Congress has occupied the field)

Answer 163

Allows states to enter into agreements with each other when Congress consents Generally consent is only required for “compacts” that alter the power balance between the states and federal government

Answer 164

Requires that “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state” States must honor out-of-state judgments that are final and came from court with proper jurisdiction To be given full faith and credit, a judgment also must have been on the merits rather than on a procedural issue

Answer 165

1. Life -The imposition of the death penalty requires procedural due process 2. Liberty -Physical confinement requires due process -Any restriction of fundamental rights is a deprivation of liberty (e.g., being punished for free speech, committed to a mental institution, parole revocation, loss of parental rights) -Damage to your reputation does NOT implicate a liberty interest 3. Property (Due Process Protection) -A mere expectation of employment or benefit is not enough -If someone can only be fired “for cause,” then that person has a legitimate entitlement to continued employment -Even employees who lack any entitlement to continued employment cannot be discharged for reasons that in and of themselves violate the Constitution

Answer 166

TEA Traditional, Entanglement, Affirmatively The state action requirement is also satisfied by the following situations: 1. Private actor carrying out a traditional government function -When a private person or company carries on activities that are traditionally performed exclusively by the state, state action exists -Merely providing a product or service that the government could offer is insufficient (e.g., schools) 2. State entanglement of private actors -State action may exist if there are sufficient mutually beneficial contacts between the conduct of the private party and the state -Must be so intertwined that it is hard to see where the private action ends and the state action begins -Just having a license from the state is not enough -Look for joint ventures or situations where the government has management authority or is making money off the private conduct 3. State affirmatively approves of private action -State action exists if a state has facilitated or endorsed private behavior -Must affirmatively facilitate the conduct, not just passively approve

Answer 167

LEV SCoC Legitimate, Entitlement, Virtue, Statute, Contract, Custom Legitimate claim of Entitlement to the property interest by Virtue of a Statute, Contract, OR Custom

Answer 168

To decide what process is due (e.g. hearing, notice, statement of reasons) under the Mathews v. Eldridge balance test, a court will weigh: 1. Individual interest at stake 2. Value of the procedure that is protecting that interest; and 3. Government’s interest in efficiency (i.e., cost to provide process)

Answer 169

Termination of welfare benefits requires a hearing before the benefits are taken away Termination of disability benefits do not require a hearing before the benefits are taken away, so long as the hearing occurs promptly after the termination and retroactive relief is possible if appropriate Public employees who can be fired only for cause (e.g. tenured professor or police officer) must be given hearing before discharge unless there is significant reason not to keep them

Answer 170

RAFP Reasonable, [not] Arbitrary, Freedom, Possible Substantive Due Process is the idea that laws should Be reasonable and not arbitrary; and Protect individual freedom to the extent possible Substantive Due Process evolved from the word "liberty" in the 14th Amendment

Answer 171

LeaR MACoI Strict Scrutiny definition - the law must be the: Least Restrictive Means To achieve a Compelling Government Interest

Answer 172

NCL Necessary, Compelling, Least Necessary to meet a Compelling government interest Using the least restrictive means to do so Necessary is sometimes referred to as the "narrowly tailored prong"

Answer 173

Compelling interests: include national security, preserving public health, or remedying past discrimination

Answer 174

SI Substantially, Important Between strict scrutiny and rationality review The government must show the law is: substantially related To an important government interest

Answer 175

RL Related, Legitimate Rationality review places the burden on the challenger, not the government A challenger must show that the law is not Rationally related To a legitimate state interest

Answer 176

Legitimate interests: include redistributing wealth, protecting scalp safety, keeping highways safe Rationally related: the fit of the law to these interests can be loose

Answer 177

D FAM Discriminatory, Facially, Applied, Motive All a plaintiff needs to show for the court to apply intermediate or strict scrutiny is: Discriminatory intent, either Facially As Applied or By Motive

Answer 178

Strict scrutiny applies when a fundamental right is infringed Rationality review applies for everything else in the substantive due process context Intermediate scrutiny does not apply in the substantive due process context

Answer 179

TVPB Right to Travel Right to Vote Right to Privacy Right to Bear Arms All laws that infringe on fundamental rights are subject to strict scrutiny, including those like free speech that are not part of substantive due process because they are explicitly granted elsewhere

Answer 180

TD Tuition Divorce Right to Travel Includes right to travel from state to state or settle in another state States may impose reasonable residency restrictions before new residents are eligible for benefits Typically 30-90 days One year is too long for everything except (TD, Tuition, Divorce): In-state tuition; and Jurisdiction to issue a divorce Durational residence requirements cannot deny newcomers the basic necessities of life Although there is also a right to travel internationally, it is not a fundamental right invoking strict scrutiny

Answer 181

Fundamental right for every U.S. citizen who is at least 18 years old Applies to all elections Poll taxes are unconstitutional Short term residency requirements are permissible (e.g., 90 days or less) Person must be given chance to prove residency before being denied the right to vote because of lack of residency Congress controls the residency requirements for federal elections State governments control residency requirements for state elections The Constitution allows states to prohibit those with a felony conviction from voting Not infringed by a state law that requires people to show a photo ID Requires districts of approximately equal size and forbids racial gerrymandering in drawing district lines But partisan gerrymandering is permitted Challenges to racial gerrymandering require evidence of a discriminatory purpose Race may be a factor in drawing district lines but not the only or predominant factor

Answer 182

I CAMP Intimate, Contraception, Abortion, Marry, Parental Collection of several related rights that all have to do with family and procreation: 1. Right to marry Fundamental right State bans same-sex marriage and interracial marriage are unconstitutional States can still regulate this right (e.g. require proof that two people who want to marry are not related), but must meet strict scrutiny to do so 2. Right to contraception Fundamental right of everyone to purchase contraceptives 3. Right to intimate association Lawrence v. Texas held that we have a right to choose our intimate partners Not explicitly held to be fundamental right, but government has no legitimate interest in regulating noncommercial sexual intimacy between consenting adults Separate fundamental right recognized to read obscene material in the privacy of one’s own home 4. Parental Rights Parents have a fundamental right to raise their children as they see fit, including the right to choose: Whether to send kids to private school To educate children in a language other than English Parents have the right to live with their children unless there is a finding of abuse or neglect 5. Abortion rights In Dobbs, the U.S. Supreme Court overturned Roe v. Wade and held that access to abortion is not a fundamental right States can regulate or prohibit abortion outright, subject only to rationality review

Answer 183

Fundamental right applying to state and federal governments Not limited to service in a militia Firearm regulations are only valid if they are supported by a history and a tradition of firearms regulations of the sort being challenged

Answer 184

REO S Race, Ethnicity, Origin, Status Applies to suspect classifications of race, ethnicity, or national origin; and when a state law is at issue, the added strict scrutiny classification is citizenship status Government decisions based on these classifications are automatically suspect and will be aggressively reviewed by the courts

Answer 185

FS Fundamental Suspect The two triggers for a state action invoking strict scrutiny are when the state action involves a: Fundamental Right OR Suspect Classification

Answer 186

FCS Face, Context, Statistics 1. Face of the law - i.e. explicit mention of race in the law 2. Context or history - i.e. legislative history or a context behind the law 3. Statistics - i.e., law is neutral on its face, but applied in a discriminatory fashion such that the results are so dramatic that the only explanation can be a racial purpose

Answer 187

Standard of review differs for federal and state actors 1. State law: strict scrutiny applies Exception: state laws prohibiting a non-citizen’s participation in government functions (e.g. voting, serving on a jury or as a police officer) are subject to rationality review Exception: undocumented non-citizens are not a suspect class, but states cannot deny them primary or secondary education benefits 2. Federal law: because Congress has plenary power over noncitizens, federal classifications based on citizenship are likely valid (unless arbitrary and unreasonable)

Answer 188

Quasi-Suspect Classifications Gender & Illegitimate Children

Answer 189

Statutory rape laws Military draft Affirmative action in favor of women for tax exemptions or increased social security -Government is providing remedy for past gender-based discrimination (an important government interest)

Answer 190

Age Poverty Sexual Orientation (Laws that burden members of LGBTQ community get “rationality review with teeth”)

Answer 191

1. Fourteenth Amendment: protects citizens from infringement by the state upon the privileges or immunities of national citizenships -This is rarely a correct answer on the bar exam 2. Article IV (i.e. the Comity Clause): prohibits serious discrimination against out of state individuals in allowing access to the private job market -There is no market participant exception for the Comity Clause

Answer 192

PPC Private Public Compensation Comes from 5th Amendment The government has the power to: Take private property for public purposes so long as it pays just compensation Private property = land, tangible property, and intangible property (e.g., patent rights and trade secrets) Public use = any conceivable public purpose The need for the private land only has to be rationally related to that purpose The government may take private property and resell it to another Just Compensation = fair market value at the time of the taking

Answer 193

Permitted to destroy private property in response to a public peril Compensation not necessarily owed when destruction is in response to public peril

Answer 194

-If the government merely regulates property (e.g., zoning regulation), just compensation is not required -Zoning regulations are not takings unless the zoning law is so thorough that there is no economically viable use for the property -If the government physically occupies private owner’s property, then that is a taking -Economic impact on the property is not necessary a taking

Answer 195

CIG Character, Investment, Gravity -A government rule adversely affects a person’s property to such an extent that it rises to the level of a taking To Determine if it is a Regulatory Taking, Courts consider: 1. Gravity of the economic impact 2. Extent to which the regulation interferes with the owner’s reasonable investment-based expectations; and 3. Character of the regulation - i.e. how much it will benefit society Permanent, physical occupation of property = taking Permanent total loss of property’s economic value = taking

Answer 196

Legislative acts that declare person or group guilty of a crime and punish them without a trial are prohibited *Prohibition applies only to criminal measures and bars on government employment

Answer 197

CDPB Criminalizes, Defense, Penalty, Burden Ex Post Facto Laws Retroactive change to a criminal law are prohibited Law will be struck down as being ex post facto if the law: 1. Criminalizes an act that was not a crime when originally committed; 2. Authorizes the imposition of more severe penalty after act was committed 3. Deprives the defendant of a defense that used to be available when crime was committed 4. Decreases prosecution’s burden of proof after crime was committed

Answer 198

Legislative impairment of existing contracts between private parties are prohibited unless there is an overriding need for it, like an emergency Applies only to state legislation, not federal legislation or state court decisions Does not apply to future contracts

Answer 199

-Applies when government prefers one religion over other religions or over non-religion -Courts must apply strict scrutiny to the policy in question -The current test for Establishment Clause challenges considers the country’s “historical practices and understanding” about the role of religion in everyday life -Long standing practices (“In God We Trust” on money) are not establishments of religion if you consider the longstanding history and tradition of using them *Tax deductions available to all parents for educational expenses of private or public schools (including religious schools) are permissible May not give tax deductions only for tuition used at religious schools

Answer 200

Government may not: -Specifically create a school district to serve a particular religion -Require prayer in schools -Allow prayer at graduation -Post the 10 commandments on public school walls -Prohibit the teaching of Darwin and evolution or mandate that such instruction be accompanied by teaching of creationism and the Bible

Answer 201

Government may: -Permit voluntary prayers in school -Permit Bible reading so long as it is treated as literature or poetry but not if it is treated inspirationally -Allow a football coach to give a private prayer at halftime during a football game -Teach the Ten Commandments as an example of an early legal code

Answer 202

Religious Displays -Governments cannot display the Ten Commandments on public property if that display has a predominantly religious purpose --If the display also communicates a secular message, that is okay -Holiday displays that acknowledge religion, rather than endorse religion, are permissible --Displays including secular symbols alongside religious symbols are typically permissible Legislative Prayer -Prayers at the beginning of a legislative session are generally permissible because of the long history and tradition of such prayers

Answer 203

Protects: -Freedom to believe in any religion or no religion; and -Freedom to act on that belief Freedom of religious belief is absolute, but freedom to act may be limited

Answer 204

Laws Targeting Religious Conduct -Law purposely targets religious conduct = subject to strict scrutiny and likely going to fail -Generally applicable laws that are neutral and incidentally affect religious conduct = rationality review

Answer 205

-Religious institution can hire or fire a religious leader without complying with federal or state employment - e.g., it can discriminate based on gender -“Minister” has been invoked broadly to include an employee who had some religious instruction as part of the employee’s duties

Answer 206

Content-based restriction = law that prohibits speech because of the subject matter discussed or the idea expressed; trigger strict scrutiny and are generally struck down Content-neutral restriction = law that restricts the time, place, or manner of speech but not the subject matter or idea conveyed; level of scrutiny depends on forum

Answer 207

TDL Traditional, Designated, Limited -Traditional public forum = place that has been historically reserved for speech activities -Designated public forum = place that the government has opened for free-speech activities, even if it has not traditionally been open for speech activities -Nonpublic forum = government property that a reasonable observer would assume is not open to the public

Answer 208

FANA Face Applied, Narrowly, Alternative Government may restrict protected speech in a public forum, aka the time, place, or manner of the speech, if the restriction: Is neutral both on its face and as applied Leaves open alternative channels of communication; and Narrowly serves a significant state interest Note: These requirements only apply to public forums

Answer 209

VL Viewpoint, Legitimate Regulations in nonpublic forums need only be: Viewpoint-neutral and Reasonably related to a legitimate governmental interest

Answer 210

PINU Power, Important, Necessary, Unrelated Government can regulate expressive conduct as long as: The regulation is within the government’s power to enact Regulation in question furthers an important interest Interest is unrelated to expression; and The burden on expression must be no greater than necessary If it seems like the government is trying to get an idea or trying to suppress the expression of a message, that is likely unconstitutional. If it seems like the government is trying to neutrally regulate conduct or the time, place, or manner of the speech, that is likely to be constitutional

Answer 211

IF DOC Incitement, Fighting, Defamation, Obscenity, Commercial The types of content that Congress can regulate are: Obscenity Incitement to violence Fighting words Defamation Commercial speech

Answer 212

SSSS Sex, Society, Standards, Serious Sex = must be erotic (i.e. appeal to the prurient interest); gore and violence are not legally obscene Society sick = must be patently offensive to the average person in society Standards = government must define obscenity clearly with precise standards (i.e. not vague or overbroad) Serious value = if material has serious artistic, scientific, or educational value, then it cannot be legally obscene *Child pornography is unprotected speech and can be prohibited under all circumstances *Material that appeals to the prurient interests of minors may be regulated as to the minors even if it would not be considered obscene to an adult audience

Answer 213

Incitement State may forbid speech that advocates the use of force or illegal action Requirements: restricted speech must be: Directed to inciting or producing imminent unlawful behavior; and Likely to incite such behavior Abstract expression of ideas is not incitement Must be substantial evidence that a reasonable person would engage in the activity

Answer 214

May be punished for speech that is likely to incite an immediate breach of the peace or threaten violence Must be genuine likelihood of imminent violence from hostile listeners Words that are just annoying or offensive are still protected Viewpoint discrimination is still prohibited Most attempts by statute to carve out a particular type of fighting word that the government can punish are going to fail because the government is engaging in viewpoint discrimination

Answer 215

Defamation can be restricted, but additional requirements must be met to restrict speech about public figures or matters of public concern Plaintiff is public figure = speech must be spoken with actual malice towards the truth Actual malice = either knowledge that the statement is false or reckless disregard to the truth of the matter asserted Public figure = someone who is known to the general public or has voluntarily injected herself into the public eye Does not include scientists publishing in journals or spouses of public figures Plaintiff is private figure but speech involves a matter of public concern = speech must be spoken with at least negligence towards the truth

Answer 216

SAN Substantial Advance Narrowly Receives intermediate level of First Amendment protection Must concern lawful activity to be entitled any protection; cannot be false or misleading -False and misleading commercial speech is unprotected and can be prohibited altogether Requirements to restrict protected commercial speech: 1. Asserted government interest must be substantial 2. Regulation must directly advance that interest AND 3. Regulation must be narrowly tailored to serve that interest

Answer 217

Vague = ambiguous to such an extent that it gives no clear notice to a person of ordinary intelligence about what speech is prohibited Overbroad = burdens more speech than necessary for the government to achieve its interest Both are unconstitutional

Answer 218

Generally presumed unconstitutional Especially disfavored under the First Amendment If you see the government trying to get an injunction to prevent speech before it is uttered, that is likely unconstitutional as a prior restraint

Answer 219

When a government employee is speaking pursuant to official duties, the First Amendment cannot protect the employee if later disciplined by the state -Only applies if the speech is ordinarily within the scope of employee’s duties -If speaking on a matter of public concern, the First Amendment interest is balanced against the interest of the state in effective management of its affairs -Cannot be fired or hired based on their political party or any act of free speech -Exception: confidential advisors or policy makers

Answer 220

-The use of money on a political campaign is political speech -Campaign contributions can be regulated as long as the caps are not unreasonably low -Campaign expenditures are subject to strict scrutiny --As long as the source of the funding is disclosed, there is no legal limit to the amount that individuals and entities may spend on electioneering communications -The only rationale the U.S. Supreme Court has approved in restricting campaign finance is to help prevent quid pro quo corruption

Answer 221

Independent expenditures: Money spent on your own to campaign for a candidate cannot be regulated Coordinated expenditures: Money spent in coordination with the candidate or the campaign can be regulated just like contributions

Answer 222

NO, except to uphold the Constitution

Answer 223

A statute that criminalizes mere membership in any group is unconstitutional unless: The group is actively engaged in unlawful activity or inciting imminent violence; and The individual in question knows about it Can investigate good character as part of bar membership, but cannot deny admission based on affiliation with certain groups

Answer 224

NO. Only a federal court can challenge the constitutionality of a federal detention. Writs of habeas corpus can be issued by state courts, but not when the detainee is in federal custody.

Answer 225

NO. The President is constitutionally required to adhere to Congress's instructions regarding spending federal funds. Furthermore, the President may not spend federal funds for any purpose unless authorized by a Congressional act

Answer 226

YES. The 5th Amendment Takings Clause requires that a taking be for public use AND that the government justly compensate the owner for the fair market value A taking occurs even when the right to transfer property by will or intestate succession is taken/destroyed

Answer 227

YES. The government cannot condition hiring a government employee or contractor on his/her political views or affiliations unless such views are ESSENTIAL to effective performance of the applicable work.

Answer 228

FMIR Fraud Material Induce Relied The adversely affected party can rescind the contract (it is voidable) if: 1. The misrepresentation was intentional or reckless (fraud) OR 2. Material (likely to induce) 3. The misrepresentation did induce assent to the contract AND 4. The adversely affected party justifiably relied on the misrepresentation

Answer 229

EFA Expressly Furthers Alternatives The law is invalid based on "on its face" discrimination if: 1. The language of the regulation expressly favors in-state interests AND EITHER 2. It does NOT futher a legitimate, noneconomic state or local interest OR 3. It DOES further a legitimate, noneconomic state or local interest BUT 4. There are reasonable, nondiscriminatory alternatives that would promote this interest

Answer 230

TPMINSA Time Place Manner Intermediate Narrowly Substantial Alternative The standard of review is one of Intermediate Scrutiny. The government may impose: a) time b) place OR c) manner restrictions d) that satisfy intermediate scrutiny review, requiring that its content-neutral restrictions: e) are narrowly tailored to serve f) a substantial government interest AND g) leave open amble alternative channels of communication

Answer 231

YES. If the location of the easement is not specificed, the servient estate owner may fixthe easement to a reasonable location. For example, this can be done after continuous use of one location if the dominant estate wishes to move it, in which case the servient estate owner is permitted to prohibit its relocation.

Answer 232

NO. Article III has fixed the cases over which the US Supreme Court has original jurisdiction to those: 1) affecting ambassadors, public ministers, or consuls OR 2) in which a state is a party

Answer 233

YES. Public nudity is a form of expression and thus public nudity bans are subject to First Amendment limitations. These bans are generally upheld because they survive required INTERMEDIATE SCRUTINY tests.

Answer 234

Constitutional: the government must show that the inquiry is necessary to protect a legitimate state interest. Unconstitutional: the government cannot inquire about a person's associations for the sole purpose of withholding a right or benefit because of that person's belief. The First Amendment (and 14th Amendment as applied to the states) protects the right to freely associate with any group or organization, including subversive organizations.

Answer 235

Sometimes Rational Basis Review, sometimes Strict Scrutiny. Citizenship is a suspect class and are thus generally subject to strict scrutiny as a default. However, an exception exists for state laws that restrict a noncitizen's participation in government that would allow 1. Direct formulation, execution, or review of public policy OR 2. Exercise of broad discretion These types of participation are considered the POLITICAL FUNCTION EXCEPTION and are subject to Rational Basis Review.

Answer 236

The government may only impose time, place, or manner restrictions if they: 1. are narrowly tailored to serve a substantial government interest AND 2. leave open ample alternative channels of communication

Answer 237

The right to publicity, the right to control or commercially benefit from one's own name, likeness, or other intimately associated qualities. There is thus a First Amendment right to report on newsworthy events, but that does not extend to the right to publish an entertainer's entire act without his/her consent since that would infringe upon the entertainer's right to publicity.

Answer 238

SIEN Substantial Interest Extensive Necessary All non-false, non-misleading, and lawful commercial speech is protected by the First Amendment, and therefore can only be regulated if the government proves that its regulation: 1. Directly advances a substantial government interest AND 2. Is not more extensive than necessary to serve that interest (narrowly drawn)

Answer 239

The Export Clause prohibits federal taxation of: 1. Exported Goods AND 2. Services and activities closely related to the export process

Answer 240

Article IV's Privileges and Immunities Clauses protect against: 1. Discrimination against citizens of other states AND 2. Interference with a right of state citizenship

Answer 241

The 14th Amendment's Privileges and Immunities Clause protects against: Interference with a right of national citizenship

Answer 242

YES. Because public employees have a property interest when they can only be fired for cause, they are guaranteed notice and a hearing before being fired. If the job is a state job: Article IV Privileges and Immunities Clause applies If the job is a federal job: 14th Amendment Clause applies

Con Law Flashcards

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