Con Law

Question 1

Standing

Answer 1

Part of Case and Controversy Requirement
P must show:
1. injury
2. causation and redressability

no generalized grievances- no injury as citizen or taxpayer, unless alleging violation of establsihment clause

third party can assert standing if special relationship with plaintiff or they also have standing they can assert the rights of another whoul would have difficulty asserting their own rights

organizational: if members have standing, injury relates to organizations purpose; and participation of members is not required

Question 2

Political question Doc

Answer 2

Courts will not review:
Repbulican form of Gov’t
Challenges to president’s conduct of foreign policy
Challenges to impeachment or removal process
Challenges to partisan gerrymandering

Question 3

The commerce Power

Answer 3

Congress mar regulate:

1. chanels of interstate commerce
2. instrumentalites of interstate commerce
3. economic activites that have a substantial effect on interstate commerce (consider cumulative effect) also, non economic activities that have a substnatial effect

Question 4

Congress and 14th am, sec 5

Answer 4

Congress may not expand the scope of rights, only prevent or remedy violations that are proportionate and congruent

Question 5

Instruments of Foreign policy (executive power)

Answer 5

1. Treaties- must be ratified by senate
2. Executive agreements- effective when signed by pres.

Both subject to constitution and prevail over state law, but only treaties prevail over federal law if they were neacted after the statute

Question 6

Appointment and Removal Power

Answer 6

President appoints ambassadors, federal judges, and officers
Congress may vest the appointment of interior officers in the president, heads of departents or lower federal courts (but can’t give itself appointment power)
Congress can only limit the removal power where independence form the president is desireable

Question 7

Impeachment and Removal

Answer 7

Impeachment brings charges (for treason, bribery, or for high crimes and misdemeanors) - requires majority vote in House
Conviction- removal- Requires 2/3 vote in senate

Question 8

Executive Privilege

Answer 8

President has executive privilege for pres. papers and conversations but must yield to other important gov’t interests

Question 9

Pardon Power

Answer 9

For Federal Crimes only (not civil or state)

Question 10

Preemption

Answer 10

Concept of Federalism; supremacy clause makes constitution and federal laws supreme

1. express
2. implied- fed and state laws mutually exclusive; state law impedes federal object or ; clear intent by congress to preempt.

Question 11

State Taxation/Regulation of the federal Government

Answer 11

States may not tax or regulate federal government activity because of inter-governmental immunity

Question 12

Dormant Commerce Clause

Answer 12

State and Local laws are unconstitutional if they place an undue burden on interstate commerce

1. does law discriminate against out of staters?
   if No, subject to balancing (burden v interests)
   if Yes, violates DCC unless necessary to achieve an important government purpose

Question 13

privileges and Immunities Clause of Article IV

Answer 13

No state may deprive citizens of other states the rights afforded to its own citizens

1. law must discriminate against out of staters
2. if it impacts the ability to earn a liveliehood or fundamental rights, it violates P&I art IV unless necessary to achieve an important gov’t purpose

Question 14

State Taxation of Interstate Commerce

Answer 14

1. states cannot use their tax systems to help in state business, at the expense of out of state business
2. states may only tax activiites if there is a substantial nexus with the state
3. state tax must be fairly apportioned

Question 15

Full faith and Credit

Answer 15

Courts in one state must give full faith and credit to judgments of other state courts as long as

1. court had jurisdiction
2. judgment was on the merits
3. judgment was final

Question 16

Government Action Requirement for Protection of Individual Liberties

Answer 16

1. constitution only applies to gov’t action(not private conduct)
2. but, congress may regulate private conduct through staute by 13th am, commerce poewr, but not 14th am sec 5

Exceptions: public funtion exception, entaglement exception (especially race related)

Question 17

Selective incorporation of Bill of Rights to States

Answer 17

Through DPC of 14th am, all incorporated except
3rd am not to quarter soldiers
5th am right to grand jury indictment
7th am right to jury trial in civil cases
8th am right against excessive fines

Question 18

Rational Basis Test

Answer 18

Rationally related to a legitimate Government purpose (burden on challenger)

Question 19

Intermediate Scrutiny

Answer 19

Substantially related to an important government purpose (gov’t has burden)

Question 20

Strict Scrutiny

Answer 20

Ncecessary to achieve a compelling gov’t interest (burden on govt)

Question 21

Procedural Due Process

Answer 21

Procedures that must be followed in taking of Life, liberty, or property (notice and hearing)

Balance importance of interest to individual, ability of additional procedures to increase the accuracey of the fact finding, and the gov’t interest (often efficiency and cost)

Question 22

Economic Liberties and takings

Answer 22

Rational BAsis test used

TAkigns can be possessory or regulatory, depriving substantially all reasonable economic value; must be for public use and just compensation must be paid

Government conditions on development of property must be justified by a benefit that is rougly proportionate to the duty imposed

Question 23

Contract Clause

Answer 23

No STATE shall impair the obligations of existing contracts

• private contracts; intermediate scrutiny
• gov’t contracts: strict scrutiny

Question 24

Substantive Due Process

Answer 24

Does the gov’t have adequate reason to take away life, liberty, and prop?

Protects the right to privacy (to marry, procreate, custody of children, keep family together, contraceptives, abortion, homo activity) right to bear arms, to travel, to vote

Question 25

Right to Aboriton

Answer 25

Part of privacy right protected by SDPC

• previability; states may not prohibit abortion, but can regulate if no undue burden
• after-viability: state may prohibit abortion unless necesary to protect women’s life or health

Question 26

Right to Travel

Answer 26

Protected by P&I of 14 am and Art IV

laws that prevent people from moving into a state must met strict scrutiny (including durational residency requirements)

Question 27

Equal Protection

Answer 27

whether the government distinctions drawn between people are sufficiently justified

Question 28

EPC Classifications

Answer 28

Consider the law on its face and in application (discriminatory intent/impact)

Strict Scrutiny:

• race or national origin
• alienage
• travel
• voting

Intermediate Scrutiny

• gender class
• non marital children

Rational Basis- everything else

Question 29

First Amendment (forums)

Answer 29

Public Forums: historically open

• regulation must be subject matter/viewpoint neutral, or suvive strict scrutiny
• TPM must met intermediate scrutiny and leave open adequate alternative channels

Designated Public Forum: gov. chooses to open
- smae rules as public forums

Limited Public forums: limited to certain groups or subjects
- can regulate as long as reasoanble and viewpoint neutral

Non-public forums: closed to speech
- same as limited public forums

Question 30

Commercial Speech Test

Answer 30

Commercial Speech regulation must meet intermediate scrutiny unless it inherently risks deception or is false

Question 31

Obscenity Test

Answer 31

Obscenity outside 1 Am Protection

1. appeals to prurient interest
2. patently offensive under the law prohibiting obscenity
3. as a whole lacks serious redeeming artistic, literary, political, or scientific value

Question 32

incitement

Answer 32

Outside 1 am protection

Substnatial likeliehood of imminent illegal activity and if the speech is directed at causing imminent illegality

Question 33

Symbolic Speech

Answer 33

The Gov’t can regulate conduct that communicates if it has an important interest unrelated to suppression of the message an if the impact on the communication is no greater than necessary to achieve the gov’ts purpose (intermediate scrutiny)

Question 34

Free Speech (general principles)

Answer 34

• content based regulations subject to strict scrutiny
• content neutral laws must meet intermediate scrutiny (and leave open alternative channels of comm)
• Prior Restraints must meet strict Scrutiny
• Vague or overbroad laws are unconstitutional

Question 35

Freedom of Association

Answer 35

Laws that prohibit or punish group membership must meet strict scrutiny

laws that require disclosure of group membership must meet strict scrutiny

laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity

Question 36

Free Exercise

Answer 36

Cannot be used to challenge a neutral law of general applicability

gov’t may not deny benefits to those who quit job for religious reasons

Question 37

Establishment Clause

Answer 37

Lemon Test

1. there must be a secular purpose for the law
2. the primary effect must be neither to advance or inhibit religion
3. must not be excessive entaglement with religion

gov’t may not discriminate against religious speech or among religions unless strict scrutiny is met
School sponsored prayer not allowed