Con Law

Question 1

State action

Answer 1

Constitution generally protects against wrongful conduct by the government, not private parties.

In other words, state action is a necessary prerequisite to triggering constitutional protections

Question 2

11th Amendment

Answer 2

Sovereign Immunity.

Bars citizens from suing their own state w/o state’s consent.

Can sue state officials and municipalities

Question 3

10th Amendment

Answer 3

All powers not granted to the federal govt are reserved to the state.

Congress cannot commandeer states by requiring them to enact laws or administer federal law

Question 4

Standing

Answer 4

P must establish (1) injury in fact (2) causation and (3) redressability

Question 5

tax payer standing

Answer 5

generally no standing but taxpayer has standing to litigate how much is owed on tax bill and challenge govt expenditures as violating establishment clause

Question 6

third party standing

Answer 6

generally no standing.

Exceptions:
- when there’s a special relationship between P and 3P, when 3P is unable to assert his own rights or when there’s risk in disallowing 3P standing that will dilute 3P’s rights

Question 7

organizational standing

Answer 7

organization can sue on his own behalf or behalf of members if (1) its members would have standing to sue in their own right and (2) interests at stake are germane to organization’s purpose

Question 8

ripeness

Answer 8

P must have experienced real injury or imment thereof. An action brought too soon is “unripe”

Question 9

mootness

Answer 9

Must be live controversy at stage of review. Action brought too late is moot

Exceptions: Controversy is “capable of repetition” but is “evading review” OR D voluntarily ceases its illegal/wrongful action upon commencement of litigation

Question 10

political question doctrines

Answer 10

Not subject to judicial review when (1) Constitution has assigned decision making on subject to different branch of govt or (2) matter is inherently not one that judiciary can decide

Question 11

justiciability

Answer 11

Case must be justiciable to be heard in federal court which means there must be a case or controversy. To determine whether constrovery case exists, case must satisfy requirements for (1) standing (2) ripeness (3) mootness (4) political question doctrine

Question 12

commerce clause

Answer 12

Power to regulate (i) channels, (ii) instrumentalities of interstate commerce as well as any (iii) activity that substantially affects interstate commerce

Question 13

taxing power

Answer 13

Impose and collect taxes to pay debts and spend for the general welfare with purpose to raise revenue

Question 14

spending power

Answer 14

spend for any public purpose to provide for general welfare

Question 15

necessary and proper clause

Answer 15

Congress has power to enact legislation necessary and proper to execute any authority granted to any branch of federal govt

Question 16

13th amendment

Answer 16

prohibition of slavery and involuntary servitude

Question 17

14th amendment

Answer 17

Equal Protection Clause

permit congress to pass legislation to enforce equal protection and due process rights

o Strict Scrutiny (Race, National Origin, Aliens)

o Intermediate Scrutiny (Gender, Illegitimacy)

o Rational Basis

Question 18

15th amendment

Answer 18

prohibits both state and federal govt from denying any citizen the right to vote based on color, race, or previous condition of servitude

Question 19

appointment powers

Answer 19

President: Can appoint ambassadors, federal judges and other high level officials with the advice and consent of the Senate

Congress: cannot give itself appointment powers

Question 20

removal powers

Answer 20

President – can remove at will, high level, purely executive officers and some heads of independent agencies

Congress – can only remove executive officers through its impeachment process

Question 21

impeachment

Answer 21

House of representatives can impeach the president, VP, federal judges and federal officers for treason, bribery or high crimes and misdemeanors (requires majority votes)

Upon impeachment, trial in senate requires ⅔ vote for removal from office

Question 22

immunity of President

Answer 22

President has absolute immunity from civil suits arising from official actions taken while in office. No immunity for actions prior to taking office

Question 23

executive privilege

Answer 23

Protects against disclosure of presidential papers and conversations

Question 24

pardon power

Answer 24

President has powers to pardon those accused or convicted of federal crimes

Exceptions: president cannot pardon someone for convictions leading to impeachment. President can also commute sentences. Congress cannot limits president’s pardon powers.

Question 25

veto powers

Answer 25

President has 10 days to act on proposed legislation: Signed bill → becomes law Veto bill → congress can override by ⅔ vote Do nothing

Question 26

commander in chief

Answer 26

only Congress can declare war, but president can take military actions w/o declaration of war

Question 27

delegation of legislative powers

Answer 27

Congress has broad authority to delegate legislative powers to executive officers and administrative agencies Limitations: - Congress must provide intelligible standards to define scope of legislative authority it delegates - Congress may not delegate executive or judicial powers to itself or its officers

Question 28

dormant commerce clause

Answer 28

If congress hasn’t enacted legislation, the states can regulate interstate commerce so long as the regulation doesn’t (1) discriminate against out of state commerce (2) unduly burden interstate commerce or (3) purposefully regulate wholly out of state activity

Question 29

DCC: Test

Answer 29

Test: Discriminatory on its face → apply strict scrutiny Incidental discrimination → does it serve an important govt interest + burden is excessive on commerce

Question 30

DCC: Market Participant exception

Answer 30

states may pass law that discrimiantes against out of state business when its acting as a market participant (state runs the business/industry itself)

Question 31

interstate commerce taxation

Answer 31

States may tax interstate commerce only if Congress hasn’t already acted in a particular area and tax doesn’t discriminate or unuduly burden interstate commerce 4 Part Test: (1) Substantial nexus (2) fair apportionment (3) nondiscrimination (4) fair relationship

Question 32

supremacy clause

Answer 32

Under Supremacy Clause, federal law trumps conflicting state and local laws

Question 33

express preemption

Answer 33

When Constitution makes federal powers exclusive or Congress enacted legislation explicitly prohibiting state regulation in the same area

Question 34

implied preemption

Answer 34

occurs when Congress intended federal law to occupy, state law directly or indirectly conflicts with federal law

Question 35

full faith and credit clause

Answer 35

Certain states must recognize and enforce courts judgements in other states. 3 Requirements: (1) Court that rendered judgment had jurisdiction over parties and subject matter (2) Judgment was on the merit and (3) Judgement was final

Question 36

procedural due process

Answer 36

Govt cannot interfere with one's life, liberty and property rights w/o due process of law - Right to Notice and a Hearing

Question 37

Procedural due process - Balancing Test

Answer 37

(i) private interests (ii) risks of erroneous deprivation using current procedures and probable value of additional safeguards and (iii) govt interest

Question 38

substantive due process

Answer 38

guarantees fundamental rights to all persons Strict scrutiny – fundamental right Rational basis – nonfundamental

Question 39

strict scrutiny - substantive due process

Answer 39

If Govt Infringes on Fundamental Right. Least Restrictive means of achieving a compelling govt interest. Burden on the Govt

Question 40

rational basis - substantive due process

Answer 40

Not a fundamental right. Law must be rationally related to legitimate state interest. Burden on challenger.

Question 41

Fundamental rights

Answer 41

**FIRST VIP ** (First amendment freedoms, voting, interstate travel, privacy - marriage/family, parental rights, sexual acts, contraceptives) Travel, Right to Vote, Privacy, Free Speech

Question 42

Equal Protection Clause - Strict scrutiny

Answer 42

Least restrictive means of achieving a compelling govt interest. Burden on govt. Applies to race, alienage, national origin

Question 43

Equal protection clause - intermediate scrutiny

Answer 43

substantially related to important govt interest. Burden on govt. Applies to gender and legitimacy

Question 44

Equal protection clause - rational basis

Answer 44

rationally related to legitimate govt interest. Burden on challenger. Applies to age, wealth, height, etc.

Question 45

proving discrimination

Answer 45

to trigger Strict Scrutiny or intermediate scrutiny, there must be discriminatory intent on part of the govt Discrimination on the face, discrimination in application or discriminatory motive

Question 46

comity clause

Answer 46

State govt can’t discriminate against non-residents of the state if economic discrimination affects “fundamental rights” or “important economic activities” unless discrimination is closely related to substantial govt interest

Question 47

Takings clause

Answer 47

Govt can’t take private property for public use w/o just compensation Just compensation: fair market value of property at time of taking

Question 48

actual taking

Answer 48

govt takes ones property by actual or physical appropriations

Question 49

regulatory taking

Answer 49

regulation that adversely affects a person’s property

Question 50

per se taking

Answer 50

(i) permanent physical occupation and (ii) when the regulation results in permanent and total loss of property’s economic value

Question 51

bill of attainder

Answer 51

state/govt may not pass a legislative act that inflicts punitive punishment w/o trial on named individuals or easily ascertainable groups for past conduct

Question 52

Ex post facto law

Answer 52

state/federal govt may not retroactively alter criminal offense or punishment that puts D in worse position

Question 53

impairment of contracts

Answer 53

prohibits state legislation from substantially impairing obligations of existing K. Can’t make law expressly impairing ability to enter K.

Question 54

Establishment clause

Answer 54

Govt can’t make any laws respecting the establishment of religion and laws that discriminate against religious speech or conduct. Govt must remain neutral as to religion TEST: “Historical Practice and Understandings” which imposes presumption of constitutionality for longstanding monuments, symbols and practices

Question 55

Free exercise clause

Answer 55

1st amendment prohibits state action that interferes with the free exercise of religion, including both the freedom to believe and the freedom to act. Govt conduct that intentionally targets religious actions are subject to strict scrutiny. Incidental impact on religious practices, apply rational basis

Question 56

1st amendment

Answer 56

Freedom of speech. Restricts govt regulation of private speech

Question 57

symbolic speech

Answer 57

regulation of expressive conduct is upheld if regulation is within govt’s power to enact + furthers important govt interest + interest is unrelated to suppression of ideas + burden on speech is no greater than necessary

Question 58

Overbreadth

Answer 58

law that burdens substantial amount of speech/other conduct is constitutionally protected. “Overbroad”

Question 59

vagueness

Answer 59

Statute is void for vagueness if it fails to provide person of ordinary intelligence with fair notice of whats prohibited

Question 60

prior restraint

Answer 60

regulation of speech that occurs before its expression. Generally presumed unconstitutional with limited exceptions. Exceptions: Require that (i) there’s particular harm to be avoided and (ii) certain procedural safeguards are provided by speaker

Question 61

unfettered discretion

Answer 61

govt cant choose/allow one form of speech over another. law/regulation that permits govt official to restrict speech must provide definite standards as to how to apply law to prevent govt official from having unfettered discretion over its application

Question 62

content-based regulation

Answer 62

content based on its face or in its application or intent is generally subject to strict scrutiny except: Obscenity and child pornography, incitement of fear, fighting words, defamation and commercial speech

Question 63

content based regulation obscenity and child pornography

Answer 63

regulation only valid if the work (1) appeals to purient interest based on local community standards (2) depiction or description is offensive per local standards (3) lacks serious literary, artistic, political or scientific value to a reasonable person

Question 64

content based regulation: incitement of violence

Answer 64

state may forbid speech that advocates use of force or unlawful action if (1) speech is directed to inciting/producing imminent lawless action and (2) its likely to incite such action

Question 65

content based regulation: fighting words

Answer 65

words by their very nature are likely to incite immediate breach of peace. Must be genuine likelihood of imminent violence by hostile audience

Question 66

Defamation

Answer 66

defamatory statement of and concerning another publication to 3P and damages to reputation

Question 67

commercial speech

Answer 67

protected if (1) not false or deceptive and (2) doesn’t relate to unlawful activity. Govt can regulate if (1) serves substantial govt interest (2) directly advances that interest and (3) narrowly tailored to achieve that interest

Question 68

content-neutral regulation

Answer 68

regulation of the time, place and manner of expression

Question 69

content neutral - public forum

Answer 69

historically open to speech activities

Question 70

content neutral - designated public forums

Answer 70

not historically open for speech activities but govt has opened for such use

Question 71

content neutral - Restrictions on public and designated forums

Answer 71

(1) must be content neutral as to both subject matter and viewpoint neutral + (2) narrowly tailored to serve significant govt interest + (3) leave open alternative channels of communication

Question 72

content neutral -Nonpublic forum

Answer 72

not open to public. Govt may regulate speech related activities so long as its viewpoint neutral + reasonably related to legitimate govt interest

Question 73

21st amendment

Answer 73

Grants states broad authority to regulate alcohol within their borders. When doing so states can’t discriminate against interstate commerce unless (1) state statute furthers a legitimate non economic state interest and (2) no reasonable alternative exists to do so

Question 74

Unprotected speech (FIDO)

Answer 74

Fighting words, inciting crimes, defamation, obscenity

Question 75

8th amendment

Answer 75

Ban on excessive fines applies to states because its, been incorporated into the 14th amendment due process clause. Ban limits the amount of payment that may be imposed as punishment for an offense.

Question 76

declaratory relief

Answer 76

an official declaration of the status of a matter in a controversy. the challenged action must pose a real and imminent danger to party's interests for there to be an actual dispute

Question 77

TRO

Answer 77

purpose is to preserve the status quo pending a hearing for a preliminary injunction.

Question 78

Preliminary injunctions

Answer 78

can't issue unless D has been given notice and an opportunity to be heard. Requires (1) irreparable harm (2) likelihood of success and (3) balance of the equities

Question 79

dormant commerce clause exception

Answer 79

states cannot discriminate against interstate commerce unless (1) discrimination furthers a legitimate, noneconomic state interest AND (2) no reasonable alternative exists

Question 80

speech or debate clause

Answer 80

immunizes members of Congress from civil or criminal liability for official legislative activities -- e.g. giving speeches on the House or Senate floor

Question 81

Equal Protection (Citizenship)

Answer 81

Federal Law (5th amendment) --> Rational basis State Law (14th amendment) --> Strict scrutiny

Question 82

Article IV privileges and immunities clause

Answer 82

- generally prohibits states from discriminating against citizens of other states by denying them right of citizenship. - such discrimination is valid if: (1) there's substantial reason for difference in treatment and (2) discrimination against nonresident bears substantial relationship to state's objectives

Question 83

nondelegation doctrine

Answer 83

prohibits Congress from delegating its exclusive legislative powers (e.g., making or repealing laws) BUT Congress can delegate its incidental powers (e.g., rule-making authority) to agencies in the executive branch if it provides an intelligible principle to guide the agency—i.e., a clear statement defining: (1) the policy Congress seeks to advance, (2) the agency to carry out that policy, and (3) the scope of that agency's authority.

Question 84

immunity from state taxation

Answer 84

The federal government, its agencies, and its instrumentalities are immune from direct taxation by the states unless Congress expressly consents.

Question 85

2nd amendment

Answer 85

guarantees individuals the right to possess and use firearms for traditionally lawful purposes like self-defense in the home. However, this right is not absolute, so certain government restrictions are permissible—e.g., imposing conditions and qualifications on commercial sales of firearms.