Con law

Question 1

Standard for constitutionality of a tax passed by Congress

Answer 1

1) Bears some reasonable relationship to revenue production; OR
2) Congress has power to regulate the taxed activity

Question 2

Congress may spend:

Answer 2

For any public purpose, pursuant to General Welfare Clause

Question 3

When is a state tax on companies engaged in interstate commerce valid under the Commerce Clause?

Answer 3

A state “doing business” tax is valid as long as it does not discriminate against nonresidents or unduly burden interstate commerce
–> states can’t use tax to help in-state businesses

A state tax will be valid if:

ii) Activity taxed has a substantial nexus to the taxing state
iii) Tax must be fairly apportioned (based on the extent of taxable activity/property in the state)
iv) tax fairly relates to services or benefits provided by the state

Question 4

What is the Import-Export Clause?

Answer 4

Authority of a STATE to tax foreign commerce on imported or exported goods

Question 5

What can the court consider in determining whether one can claim protection for their religious beliefs under the Free Exercise Clause?

Answer 5

• only the sincerity of their beliefs

Court CANNOT consider:

• the truth of the beliefs
• whether the religion is “established” or traditional”
• whether religion is derived from a supreme being

Question 6

Can one claim an exemption from a law because it imposes a burden on his religious practice?

Answer 6

No - if the statute is a neutral law that incidentally burdens one’s religious practice, and the law is constitutionally applied to everyone else.

*State does NOT have to establish a substantial and important interest or lack of alternative means if the law is neutral – the law will apply to this individual.

Question 7

If a law has a preference for one religious sect over another, is the law unconstitutional? Which 1st Amendment clause?

Answer 7

Strict Scrutiny – Law is invalid under the Establishment Clause unless it is necessary to promote a compelling interest

Question 8

If a law/program does not have a religious sect preference but involves religion in some way, what standard to review constitutionality?

Answer 8

Lemon test - To be upheld under Establishment Clause:

i) primary purpose of the law is secular
ii) its primary effect neither advances nor inhibits religion; and
iii) it does not produce excessive government entanglement with religion

– to invalidate a law under Establishment Clause, would argue that one of these 3 requirements is not met, so this is a law respecting the establishment of religion

Question 9

When will SCOTUS decline certiorari to review a case that is decided on both state and federal issues?

Answer 9

Only if the case has an independent state ground to decide the case, and the state ground is adequate BY ITSELF to support the decision – so that SCOTUS’s review of the federal ground would have NO effect on the outcome of the case

Question 10

Can Congress put conditions on giving grants to states? What is the standard?

Answer 10

Congress may condition grants as long as the conditions are:

• clearly stated
• related to the purpose of the program
• not unduly coercive

Question 11

How does Congress have the power to legislate under the 13th Amendment?

Answer 11

The Enabling Clause of 13th A. gives Congress the power to proscribe almost any private racially discriminatory action that can be characterized as a badge or incident of slavery

Remember that 14th A (EP clause) only applies to state action!

Question 12

What must the state show to have a valid durational residency requirement for dispensing benefits?

Answer 12

Strict scrutiny because it limits the fundamental right to travel, which includes being treated equally if they become residents of a state.
– the requirement must be tailored to promote a compelling interest (definitely NOT rational basis)

Examples:

• • one year waiting period to receive welfare payments = INVALID
• • one year waiting period to get state-subsidized medical care = invalid
• • one year waiting period to get divorce = valid
• • 30 day residency requirement to vote in state elections = valid

Question 13

What is the standard for durational residency requirements for free education?

Answer 13

Only rational basis review because education is not a fundamental right

Question 14

Can a state discriminate against aliens?

Answer 14

No, not without a compelling state interest

Areas where SCOTUS has upheld discrim against aliens: voting, jury duty, elective office, police officers, primary & secondary school teachers (rational basis applies)

Question 15

When is a regulation of speech in a limited public form or nonpublic forum constitutional under the 1st A?

Answer 15

As long as regulation is:

• viewpoint neutral; and
• reasonably related to the purpose served by the property & not designed merely to suppress a particular point of view

Regulation CAN be based on the subject matter (content) of the speech

Question 16

Clear and present danger test

Answer 16

Govt CAN regulate and punish speech if:

i) it is directed to producing or inciting imminent lawless action; and
ii) there is a substantial likelihood of imminent illegal activity
- -> if so, then the state can restrict and punish such speech

Question 17

What is the standard for upholding state statute regulating foreign commerce?

Answer 17

ALWAYS INVALID!
Congress has EXCLUSIVE power over foreign commerce
– State CANNOT restrict or burden goods in the stream of foreign commerce

Question 18

A state may regulate local aspects of interstate commerce if the law…

Answer 18

Under Commerce Clause -
1) must not discriminate against interstate commerce (i.e., favors in-state businesses or discriminates against nonstate residents) - unless it is necessary to achieve an important govt purpose
and
2) must not unduly burden interstate commerce – balancing test: the benefits produced by the state legislation must outweigh the incidental burden on interstate commerce

Two exceptions:

• Congressional approval of discrimination
• Market participant exception

Question 19

Free Exercise Clause vs. Establishment Clause

Answer 19

Establishment Clause: Does the statute/program impermissibly advance religion?

Question 20

Can Congress pass a statute limiting federal courts’ ability to hear a case?

Answer 20

Yes - Congress is explicitly authorized to restrict the jurisdiction of the federal courts under Article III

Question 21

Can Congress pass legislation defining certain conduct as a violation of rights protected under the 14th Amendment?

Answer 21

No - Congress can only enact laws to prevent or remedy violations of rights already recognized by the courts

• Only the courts have authority to define the scope of rights protected
• Congress cannot interfere with judicial remedies

Question 22

Spending power

Answer 22

• • Tax and spend for the general welfare
• • can put conditions on receiving grants
• Congress can indirectly regulate where it cannot directly legislate

Question 23

Argument: “statute is an undue burden upon interstate commerce” - what does this apply to?

Answer 23

Test for validity of STATE regulation of interstate commerce

Question 24

Congress’s commerce power - which test do you use to determine whether activity has a “substantial effect” on interstate commerce?

Answer 24

Commercial (economic) activity - may be regulated if there is a conceivable rational basis that the activity in aggregate substantially affects interstate commerce

Non-commercial activity – govt must show a factual finding that this non-economic activity has a substantial economic effect on interstate commerce

Question 25

Supremacy clause

Answer 25

a) Supercession – a fed law will supercede an inconsistent state law, but in certain areas, state can give greater protection than required by federal law b) Preemption – a fed law will preempt a state law where Congress fully intends to occupy the field - - Implied preemption will be found where: i) it was the intent of Congress to occupy the entire field (legislative history) ii) state law directly conflicts w. the federal law; OR iii) state law interferes/prevents achievement of federal objectives * If a federal law is comprehensive and Congress created an agency to oversee the field, preemption will often be found. * Ex. federal regulation of advertising for health + safety has nothing to do with state's regulatory interest in preventing fraudulent advertising = no preemption.

Question 26

What must ∏ show to have standing?

Answer 26

To assert standing, the ∏ must establish a concrete personal stake in the outcome. To do that, plaintiff must establish: injury in fact and causation (or redressability), meaning that relief sought would eliminate the harm alleged

Question 27

Does a person have standing to challenge the validity of a statute if she has not yet been prosecuted for it?

Answer 27

Yes - there is injury in fact if there is a clear threat of prosecution if she fails to comply with the statute -- she does not need to violate it and await prosecution before seeking relief (e.g., seeking injunction against state officials to not enforce the statute)

Question 28

When can a plaintiff assert third-party rights?

Answer 28

i) Close relationship btwn ∏ and 3rd party’s rights ii) Special need to adjudicate -- i.e., ∏ has suffered injury and that injury adversely affects her relationship with third parties, resulting in an indirect violation of their rights

Question 29

What are the requirements for a state to give full faith and credit to a judgment rendered in another state?

Answer 29

i) Court that renders decision must have personal jurisdiction and subject matter jurisdiction ii) There must be final judgment rendered on the merits

Question 30

What is the president's pardon power?

Answer 30

President has power to grant pardon or reprieve for FEDERAL offenses - NEVER state crimes

Question 31

What is the standard for passing a law that discriminates against aliens?

Answer 31

Depends on state vs. federal 1) State discrimination against aliens is subject to strict scrutiny - the state must prove that the law discriminating against aliens is necessary to achieve a compelling govt interest EXCEPTION: participation in govt is involved – police, teacher, jurors – RB review 2) FEDERAL discrimination against aliens is subject only to rational basis scrutiny - - B/C Congress has plenary power over aliens Applies ONLY to documented aliens (not illegal aliens)

Question 32

What is the standard for regulating illegal aliens?

Answer 32

``` Illegal aliens = NOT suspect class EXCEPTION: children of illegal aliens have right of free publication to 12th grade – intermediate scrutiny ```

Question 33

Areas that receive intermediate scrutiny - and what is the standard?

Answer 33

State must show that law is substantially related to an important interest (exceedingly persuasive justification) Gender - Intermediate scrutiny + "exceedingly persuasive justification" Other categories: illegitimacy, content-neutral time place manner regulations, commercial speech, regulation of symbolic speech, regulations on cable TV

Question 34

Procedural Due Process - Define what this means

Answer 34

The procedural safeguards of notice and a hearing are available whenever there is a serious deprivation of any life, liberty, or property interest - - if you are *entitled to some interest and it is cut off - - usually a right to a post-termination hearing Important examples: i) Disability benefits - post-termination ii) Welfare benefits – pre-termination is required iii) Driver’s license – hearing must be provided BEFORE suspending a driver’s license UNLESS a prior evidentiary proceeding has occurred [convictions for driving violations are evidentiary proceedings]

Question 35

When is a prior hearing required before depriving one of some liberty or property interest?

Answer 35

- welfare benefits - suspending a driver's license - UNLESS a prior evidentiary proceeding has occurred [convictions for driving violations are evidentiary proceedings]

Question 36

One person-one vote principle

Answer 36

- - EP clause prohibits state dilution of right to vote by malapportionment of electoral districts - If state/local govt sets up voting districts, # of persons in each district may not vary significantly – - - It is a violation of EP clause to suppress voting power of minorities

Question 37

Freedom of the press - taxing regulations valid?

Answer 37

- can be subject to general business regulations and taxes, but the press cannot be singled out for a special tax - a tax impacting the press (or exemption from a tax) cannot be based on the content of the publication absent a compelling justification (strict scrutiny)

Question 38

"Taxpayers do not have standing" - what does this apply to?

Answer 38

Only where a taxpayer is challenging the way her tax money is spent - a taxpayer has standing to challenge whether she owes a particular tax (she suffered an injury in fact if the tax is unconstitutional b/c she was required to pay the tax)

Question 39

Laws that favor a minority over others - what standard of review?

Answer 39

same strict scrutiny as laws that discriminate against a minority -- need to show that state has a compelling interest -- remedying past discrimination against a minority group is a compelling interest (look for facts about specific past discrimination)

Question 40

Standard for content-neutral, time, place, manner regulations of public forums and designated public forums (and all content-neutral regulations generally)

Answer 40

1) content-neutral 2) narrowly tailored to further a significant or important govt interest 3) regulation must leave open alternative channels * *City officials CANNOT have discretion to set permit fees - - ability to grant/deny a permit cannot be completely discretionary

Question 41

Regulation of commercial speech - what standard?

Answer 41

i) False/misleading advertising or Illegal transactions – can be completely prohibited ii) Lawful or truthful information – even if product is harmful – 3 part test [pretty much intermediate scrutiny] (1) Narrowly tailored (not least restrictive means) (2) Directly advance (3) A substantial/government govt interest

Question 42

Designated public forum

Answer 42

Property that the government opens up for expressive activity, for limited public purposes, or specific speech activity Ex. school or library rooms opened for social, civic, recreation groups

Question 43

Limited public forum

Answer 43

Not open for public use, but open for very specific limited purposes/uses Ex. opening a school gym to host a debate, library room specifically for certain groups

Question 44

Standard for speech regulation of a nonpublic forum or limited public forum

Answer 44

1) viewpoint neutral | 2) reasonably related to the intended purpose of the nonpublic forum (a legitimate govt purpose)

Question 45

Free exercise clause - when will a law be upheld?

Answer 45

Prevents government from imposing burdens on individuals on the basis of their religious beliefs - cannot punish religious practices Test: 1) If law "purposely interferes" with one's right to freely exercise religion -- strict scrutiny applies - - a law that is motivated by desire to interfere with religion - - Not generally applicable if it specifically targets religious practices 2) If law is religiously neutral + generally applicable, but creates an incidental burden on one's exercise of religion, this law will routinely be upheld (rational basis review)

Question 46

Congress's commerce power - Congress can regulate:

Answer 46

1) channels of interstate commerce 2) instrumentalities of interstate commerce, and persons and things in interstate commerce 3) Activities that have a substantial effect on interstate commerce * *Commercial transactions don't come within Congress's Commerce Power just because they involve "commerce" - it must determine that the transactions have a substantial impact on interstate commerce - - Economic/commercial activity - regulation upheld if there is any rational basis that this activity in the aggregate substantially affects interstate commerce - - Noneconomic activity - regulation upheld only if Congress can show that this intrastate activity alone has a direct substantial effect on interstate commerce

Question 47

Congress's enumerated powers

Answer 47

- Taxing and Spending power - Commerce power - War powers (declare war, raise + support armies, provide for and maintain navy) - Property power - Police power over DC, military bases, federal lands, Indian reservations - Investigatory Power - Bankruptcy power (nonexclusive) - Postal power (exclusive) - Power over citizenship -- plenary power over aliens; exclusive power over naturalization - Admiralty power - Power to coin money, fix weights and measures - Patent + copyright power

Question 48

President's veto power

Answer 48

- if president vetoes an act of Congress, act may still become law if veto is override by 2/3 vote of each house - NO line item veto

Question 49

Requirements for executive agreements

Answer 49

- can be used for any purpose that treaties can be used for - does NOT require content of the Senate - federal law prevails over executive agreements

Question 50

When has there been a deprivation of property (Requiring procedural due process)?

Answer 50

Loss of an entitlement - P had reasonable expectation to continue receipt of a benefit

Question 51

What procedures are required under due process to terminate welfare benefits?

Answer 51

Notice and a hearing BEFORE termination

Question 52

What procedures are required under due process to terminate social security disability benefits?

Answer 52

Only a post-termination hearing

Question 53

What procedures are required under due process before a school can discipline a student?

Answer 53

Notice of the charges and an opportunity to explain

Question 54

What procedures are required under due process to permanently terminate parent's right to custody of a child?

Answer 54

Notice and a hearing BEFORE termination to award punitive damages?

Question 55

What procedures are required under due process to terminate welfare benefits?

Answer 55

Instructions to the jury and judicial review to ensure reasonableness -- grossly excessive punitive damages violates DP

Question 56

What procedures are required under due process for an American citizen detained as an enemy combatant?

Answer 56

Must receive full Due Process - notice, meaningful hearing, representation by lawyer

Question 57

Are parental notice and consent laws for minors to get an abortion constitutional?

Answer 57

Yes - state may require parental notice and/or consent for an unmarried minor's abortion as long as it creates an alternative procedures where a minor can get an abortion by going before a judge who can approve the abortion -- approval by judge if it's in the minor's best interests or that she is mature enough to decide for herself

Question 58

What gets strict scrutiny?

Answer 58

- Protected 1st A rights - Suspect classes - RAN - Fundamental rights Right to vote Right to travel Right to privacy: CAMPERS

Question 59

How are gender classifications benefiting women treated?

Answer 59

- - Gender classifications based on gender stereotypes will be invalid - - Gender classifications that are designed to remedy past discrimination and differences in opportunity will be valid * *Intermediate scrutiny

Question 60

Alienage classifications - what is the standard?

Answer 60

For state classifications: Generally, strict scrutiny But alienage classifications involving self-government and the democratic process will use rational basis review But Congress (federal law) can discriminate against aliens

Question 61

When will a prior restraint on speech be upheld?

Answer 61

Prior restraint - prohibiting dissemination of speech before it is being made Ex. court orders, injunctions 1) Court orders suppressing speech must meet strict scrutiny - -> Govt must prove that prior restraint is narrowly tailored to achieve a compelling govt interest (presumption that a prior restraint is unconstitutional) - - procedurally proper court orders must be complied with until they are vacated/overturned. Person CANNOT violate it first and then challenge it later 2) Licenses - Govt can require a license for speech only if: a) there is an important reason for licensing, and b) clear criteria so that person issuing licenses have almost NO discretion

Question 62

Symbolic speech

Answer 62

Symbolic speech = Conduct that communicates a message is protected speech Govt can regulate symbolic speech if it: 1) there is an important interest unrelated to suppression of that message, and 2) impact on communication is no greater than necessary to achieve govt's purpose Protected speech: - - Flag burning - - Burning a cross, unless done with intent to threaten Unprotected speech: - - Burning draft card - - Nude dancing

Question 63

P+I Clause of Art IV vs. Dormant Commerce Clause - when would the P+I clause apply?

Answer 63

The P+I Clause of Art IV = discrimination against out-of-staters that substantially interferes with important commercial activities or civil liberties **RIGHT TO PURSUE A LIVELIHOOD Standard: Statute that results in this discrimination is invalid unless the state can show show that it has a substantial justification for the discriminatory treatment - - that nonresidents either cause or are part of the problem it is attempting to solve AND - there are no less restrictive means to solve the problem Ex. SCOTUS has held that a requirement that private contractors on CITY projects employ only city residents substantially interferes with this right

Question 64

Congress's Property Power

Answer 64

Power to make all needful rules and regulations respecting the territory or other property belonging to the United States Incl. military bases

Question 65

14th Amendment does NOT protect against of:

Answer 65

- the federal govt - private actors/institutions * *Unless the state is significantly involved with this private institution such that these actions constitute state action

Question 66

When is a state "use tax" permissible?

Answer 66

Use tax: tax on users of goods purchased out of state Permissible as long as it is nondiscriminatory and does not burden interstate commerce -- permissible if it is equivalent to the sales tax burden on goods purchased within the state

Question 67

First Amendment Rights with regard to government speech

Answer 67

- Govt can choose what messages it will and will not convey - As long as the display has various religious messages, it will not violate the Establishment clause Ex. Display on a govt building is govt speech

Question 68

Can legislative bodies begin sessions with a prayer?

Answer 68

Yes - because of a long history of legislative prayer in America, a legislative body is allowed to begin sessions with a prayer from members of the clergy Includes legislative bodies of municipalities

Question 69

1st Amendment: What is the effect of a statute prohibiting speech that is overbroad?

Answer 69

Overbroad regulation: the regulation of speech punishes a substantial amount of protected speech, judged in relation to the regulation's plainly legitimate sweep Result: the regulation is facially invalid, and cannot be enforced against ANYONE - not even against someone who is engaging in unprotected speech

Question 70

Appointments Clause

Answer 70

Permits Congress to vest appointments of inferior officers ONLY in the President, courts, or heads of departments - - Enforcement is an executive act - Congress itself cannot appoint members to a commission that exercises enforcement powers - - Congress can only delegate its legislative power