Con Law

Question 1

Justiciable Case or controversy defn

Answer 1

-CorC - facts developed such that actual & definite dispute exists between parties having adverse legal interests

• Ripeness – already harmed or Immediate threat of harm -
  (1) P will suffer some harm or immediate threat of harm,
  (2) issue fit for judicial review, and
  (3) there is a record for judicial review.

-Standing - concrete personal stake in outcome
1,2,3 (see below)

To get into federal court: go up the RAMPSE

• Ripeness – Immediate threat of harm
• Abstention – No standing for unsettled state law, Will not enjoin state criminal proceeding
• Mootness – Live CorC, Except: Class Action, Repetition evading review
• Political Question – Const delegates to another branch
• Standing: Injury, Causation, Redressability
• Eleventh Amendment – Sovereign States

Question 2

Standing

Answer 2

P must establish concrete personal stake in outcome. (MORE than just theoretical suffering from an Unconstitutional act in existence);

Constl. Standard:  
1. Injury - 
P has been or will imminently be PERSONALLY Injured (usually economic, but can be environmental or aesthetic)
and
2.  Causation 
betw injury/conduct
and
3. Redressability - 
favorable decision will eliminate the harm alleged (redressability)

Standing of ORGanizations -

1) injury in fact to its members that would give standing on their behalf
2) injury related to organization’s purpose; and
3) neither the nature of claim nor the the relief requires participation of the indiv. members

TP STANDING on behalf of another ok only if
1) claimant has own standing
2) Special relationship (doctor, family)
and 3) Vic unlikely/difficult to assert own rights
or
4) P has suffered injury that adversely affects her relationship w/ TPs (roller skates ex.Indirect Violation)

NO general standing to claim actions violate law or constitution if no personal standing; taxpayer has no genera l standing to challenge gov taxes or expenditures, but can sue for her own tax bill
EXCEPTION
suits attacking specific enactments of congressional spending/taxing on 1A Establishment clause grounds

Question 3

Redressability

Answer 3

relief sought must eliminate the harm alleged

Question 4

Plenary defn

Answer 4

exclusive

Question 5

Privileges OR Immunities Clause of 14th Amend:

I want to travel to 14 states….

Answer 5

Applies to STATES!! not Fed.
Applies to CITIZENS only, not aliens

Protects rights of NATIONAL Citizenship
(right to petition congress for redress, right to use navigable waters, right to travel, right to vote for fed officials)
-often wrong answer

-(waiting period for benefits) normally subject to strict scrutiny and will lose

Question 6

Sec 5 of 14th Amendment, Enforcement/Enabling Clause –

Answer 6

Enforcement/Enabling Clause –
• enabling sections giving Congress rights to enforce provisions using appropriate legislation in state/local action.
(CANNOT use to enforce against PRIVATE action which needs 13th A)

Question 7

General Welfare Clause –

Answer 7

only correct when used as LIMITATION on taxing/spending

NOT indie source of power

Question 8

Property Power -

Answer 8

Congress has power to make all needful rules and regulations re: territory or other property belonging to US

Question 9

supersession doctrine –

Answer 9

a federal law will supersede any state law in direct conflict

Question 10

11th Amend.

Answer 10

SOVERIGN IMMUNITY
states or fed agencies can’t be sued in Fed ct; by its OWN citizens or citizens of another state

exceptions - CONSENT; 1 state can sue other state, sue US, or congress can waive per sec 5 14th A.; bankruptcy
can sue official if state treasury is not one paying damages

Question 11

10th Amend violation

Answer 11

Congress cannot Commandeer states to enact/enforce federal regulatory statute.

All powers not reserved by Fed Gov are w/in state power.

Generally wrong answer on MBE. Ct has abandoned former holdings that 10th A precludes Congress from regulating areas involving tradl functions of state/local gov

Question 12

Affectation Doctrine

Answer 12

congress has broad power to regulate any activity local or interstate, which has substl econ effect on interstate commerce; (National Econ Significance)

-Congress can regulate wages/hours of local EEs under commerce power

Question 13

Dormant Commerce Clause:

Answer 13

“negative implications of CC”
STATE Reg of Interstate commerce – Must be
1. Non discriminatory (can’t favor out of stators)
2. Cannot create undue burden on Interstate commerce (burden must not outweigh benefits balance)
3. does not require nationally uniform regulation

test: State interest Must be necessary to achieve important gov purpose. IS

UNLESS congressional Consent/approval or Market participant

Question 14

Congressional authorization –

Answer 14

Congress has huge power to delegate

delegation by congress of its plenary commerce power to the president, w/ guidelines

Foreign affairs reg is SHARED Cong/Exec, Fed Exclusive power

Question 15

Contracts Clause

Answer 15

Art 1, sec 10 - only applies to STATE action;

prohibits states from retroactively impairing obligation of an existing public or private K
o unless important/legit gov interest exists AND is reasonable and narrowly tailored means

States impairing their own Ks are subject to SS.

Question 16

state police power regs…

Answer 16

regs any health safety morals welfare or aesthetic interests

Question 17

Fundamental Rights (4)

Answer 17

– Strict Scrutiny applies!
•	Protected 1st amend rights
•	Right to vote
•	Right to Travel
•	Right to Privacy (CAMPER)

Question 18

Suspect Classes – SS

Answer 18

Suspect Classes – SS (RAN)
R - Race
A - Alienage (exception for significant gov function - teacher, police, jury)
N – Natl Origin

Question 19

SS - Necessary

Answer 19

no Less restrictive alternative is available

Question 20

Equal Protection Analysis -

Answer 20

14th Amend - STATE only
(also protects against vote dilution, no significant variance permitted)!

DPC of 5th Amend - FED

USED when affects SOME persons, not all
• Trigger – persons similarly situated, but treated differently
• Protects fundamental rights

Question 21

Substantive due Process –

Answer 21

prohibits the government from infringing on fundamental constitutional liberties.

used where law affects ALL persons

Question 22

Intermediate scrutiny categories

Answer 22

• Gender discrim
• Illegitimacy
• Comm’l speech
• Content neutral TPM restrictions

Question 23

Alienage - -

Answer 23

WHO IS PASSING LAW?
• State discrim against alienage gets SS

EXCEPT when functioning of Gov is involved…(police, teachers, jury) – STATE MAY discrim here – RBR

• FED discrim against alienage ONLY gets RBR bc Federal plenary power over immigration/aliens

Undocumented Alien children - get IS

Question 24

Power to Pardon

Answer 24

Exclusive PRESIDENT power for FED CRIMINAL offenses only; Art II sec 2;

avail for all offenses against US, EXCEPT Impeachment. Not subject to control by Congress

Question 25

Art 1, sec 1

Answer 25

vests all legislative power in congress

Question 26

Bill of Attainder

Answer 26

(prohibited) legislative act that inflicts punishment w/o a judicial TRIAL upon person who is designated either by name or in terms of past conduct

Question 27

Establishment Clause Tests

Answer 27

Sect Preference? apply SS - "Narrowly Tailored" to promote Compelling Gov Purpose, often fails NO sect preference? Lemon Test - must have 1) have secular purpose (accommodation of relig ok) 2) have primary effect that neither advances nor inhibits religious, and 3) not produce excessive gov entanglement w/ religion. *long history of legislative prayer found OK!

Question 28

5th Amendment DPC applies to state or fed?

Answer 28

applies (equal protection ) to Federal government, not states

Question 29

Vague

Answer 29

so unclearly defined that persons of ordinary intelligence must guess at its meaning.

Question 30

inter-governmental immunity

Answer 30

STATE gov cannot tax or regulate activities of the FED gov w/o Congressional Consent; Thus instruments and agents of fed gov are immune to state regs

Question 31

inter-governmental immunity

Answer 31

STATE gov cannot tax or regulate activities of the FED gov w/o Congressional Consent; Thus instruments and agents of fed gov are immune to state regs BUT, STATE NON discriminatory INDIRECT taxes on FED Gov or its property: permissible if they do not unreasonably burden the federal government

Question 32

8th Amend

Answer 32

Right against cruel & unusual punishment

Question 33

TPM reg in public forum valid if

Answer 33

1. content neutral 2. narrowly tailored to important interest and 3. leaves open altv channels of communication * 1. Signif/impor gov interest * 2. Narrowly tailored * 3. Leaves open altv channels

Question 34

Property clause (art 4, sec 3)

Answer 34

grants Congress power to make all needful rules and regs respecting the territory or other prop belonging to the US (acquire/dispose of Prop, and protect prop w/ regs)

Question 35

TPM reg in public forum valid if

Answer 35

1. content neutral 2. narrowly tailored to IMPORTANT gov interest and 3. leaves open altv channels of communication

Question 36

for Cause gov EE fired, required response?

Answer 36

PRE termination hearing to respond required bc property interest (entitlement) (DPC)

Question 37

Congress may tax if:

Answer 37

Congress has plenary power to tax if: 1. bears some reasonable relationship to revenue production or 2. congress has power to regulate taxed activity

Question 38

at will EE fired, property interest?

Answer 38

no.

Question 39

Standard for Age Discrimination?

Answer 39

RBR

Question 40

commercial speech Regs

Answer 40

No right to: Unlawful, misleading, fraudulent - but But even true statements can be limited – IS IF - 1. Regulation serves a SUBSTANTIAL government interest, 2. directly advances the interest, and is 3. narrowly tailored to serve that substantial interest -does not require least restrictive means, but must be reasonable fit between ends/means

Question 41

Standard for Gender Discrimination?

Answer 41

IS

Question 42

The Free Exercise Clause:

Answer 42

prohibits government regulation that is specially designed to punish someone on the basis of their religious beliefs. Ex. cannot force religious oath, exclude clerics from public office, or declare belief to be false. If the INTENT of the law is to interfere with religion, or if the law PUNISHES conduct solely because it is religious, the law is invalid. invalid Unless survives SS, but it never has.... Exception - State cannot deny unemployment if person quit for religious reasons; Amish education exception until 16

Question 43

True threats—

Answer 43

statements meant to communicate an intent to place an individual or group in fear of bodily harm—may be sanctioned;

Question 44

Fighting words—

Answer 44

words or epithets that, when addressed to an ordinary citizen are inherently likely to incite immediate physical retaliation—may also be sanctioned; and FW statutes are often struck down for overbreadth.

Question 45

Incitement Test - clear and present danger test of Imminent Lawless Actions - TEST

Answer 45

invalid when it is directed to producing or inciting imminent lawless action and is likely to produce such action. a. Imminent Lawless Action . .i. Clear and present danger – imminent illegal conduct likely . .ii. Speaker intended to cause

Question 46

Requirements for Prior Restraint

Answer 46

Any governmental action that would prevent a communication from reaching the public. (not prior restraint if altv means) 1) Standards must be narrowly drawn and definite; 2) the restraining body must promptly seek an injunction; and 3) there must be a prompt and final judicial determination of the validity of the restraint. restriction on speech prior to publication • Usually struck down • Ex. Gag order on press

Question 47

Requirements for Prior Restraint

Answer 47

Any governmental action that would PREVENT a communication from reaching the public. (not prior restraint if altv means) 1) Standards must be narrowly drawn and definite; 2) the restraining body must promptly seek an injunction; and 3) there must be a prompt and final judicial determination of the validity of the restraint. To justify a prior restraint, the government must show that some special societal harm will otherwise result.

Question 48

For congress to act need:

Answer 48

bicameralism: passage by both house and the senate and presentment

Question 49

Deprivation of PROPERTY occurs when: (due process)

Answer 49

there is a legitimate claim or entitlement to benefit under law, and it is not fulfilled; mere expectancy or need is not enough. entitlement - reasonable expectation to continue receipt of benefit.

Question 50

presentment

Answer 50

giving bill to president to sign or veto

Question 51

Procedural Due Process Test

Answer 51

``` Has there been [intentional] deprivation of Life, liberty (Signif. Freedom), or property (entitlement not fulfilled)? notice and hearing ``` The courts consider: (i) The importance of the individual’s interest that is involved, (ii) The value of specific procedural safeguards of the individual’s interest, and (iii) The government’s interest in fiscal and administrative efficiency.

Question 52

deprivation of LIBERTY is (due process)

Answer 52

when there is a loss of a significant freedom provided by Constitution or statute

Question 53

ex post facto law

Answer 53

CRIMINALLY punishes conduct that was lawful when it was done or increases punishment after it was committed; legislation that retroactively alters the CRIM law in substantially prejudicial manner.

Question 54

Moot

Answer 54

``` no live controversy anymore; Exceptions: 1. wrong capable of being repeated to P; 2. D voluntarily gave up 3. class action ```

Question 55

validity state tax affecting Interstate commerce:

Answer 55

1. MUST BE NON Discriminatory or INVALID! state may impose taxes on companies doing interstate commerce as long as it does not discriminate against or unfairly burden interstate commerce. Factors - 1. substantial nexus between activity and taxing state; 2. fair apportionment based on extent of taxable property or activity in state and 3. fair relationship between tax and the services provided by state.

Question 56

Legislative Vetos and Line-item vetos are...

Answer 56

always unconstitutional! need bicameralism or presentment

Question 57

bill of attainder

Answer 57

A bill of attainder is a legislative act that punishes an individual, who is identified either by name or in terms of past conduct, without a judicial trial. Like ex post facto laws, bills of attainder are constitutionally prohibited. law directs punishment of person w/o a trial

Question 58

use tax

Answer 58

tax imposed on users of goods purchased OUT OF STATE; imposed by state in which buyer resides Permisslbe if: 1. non discriminatory 2. does not otherwise unfairly burden Interstate commerce. - USE tax burden on the goods purchased out of state is equivalent to the sales tax burden on goods purchased w/in the state.

Question 59

"private" Action attributed to Government IF:

Answer 59

14A makes provisions of Bill of Rights applicable to states, does NOT apply to purely PRIVATE conduct that interferes with these rights. 1) if the activity is an EXCLUSIVE and traditional public function OR Significant state involvement - 2) greatly intertwined or 3) if the government affirmatively facilitates the activities (e.g., court enforcement of a race-based restrictive covenant, Authorization/encouragement) vs NOT SUFFICIENT: state granted monopoly or state regulation, state grant of land

Question 60

ad valorem tax

Answer 60

tax based on % of assessed value of property in question; ok if at LAST destination of stream of commerce

Question 61

Contracts Clause

Answer 61

applies only to STATES, and only to legislation. Considerations-Whether the legislation (i) substantially impairs a party’s rights under an existing contract, (ii) serves an important and legitimate public interest, and (iii) is a reasonable and narrowly tailored means of promoting the public interest are factors courts will consider in determining whether legislation is valid under the Contract Clause.

Question 62

ex post facto law

Answer 62

An ex post facto law is a statute or ordinance that retroactively changes the criminal law in such a substantially prejudicial way that an individual is deprived of a right he previously had, for a punitive purpose. constitutionally prohibited.

Question 63

may Congress regulate local NON Economic/Commercial local activities?

Answer 63

Yes, under Commerce Power, IF Congress can factually show a Substantial Economic Effect on interstate commerce. However, if the activity regulated is economic or commercial, such a showing by Congress is not necessary. Only need to show a rational basis to believe it has aggreagte effect.

Question 64

Free Exercise Clause

Answer 64

Prevents government regulation that punishes conduct just because it is religious. NOT OK If 1. the INTENT of the law is to interfere with religion, or if 2. the law PUNISHES conduct solely because it is religious, the law is invalid. (Former test: balancing - wrong! answer)

Question 65

Ipso facto

Answer 65

Ipso facto is a Latin term that means "the fact itself." It usually is used to describe a situation when a fact itself has some legal consequence or effect.

Question 66

Pari delicto

Answer 66

Pari delicto also is a Latin term. It simply means "equal fault." It often is used in contracts, criminal law, and equity as a description of a defense—where parties are of equal fault one should not be given a remedy against the other.

Question 67

Enabling Laws

Answer 67

Laws enacted under the Enabling Clause of the Fourteenth Amendment must be congruent AND proportional to preventing or remedying the violation in question

Question 68

may Congress regulate local YES Economic or Commercial local activities?

Answer 68

Yes, only if the court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce

Question 69

Public Forum

Answer 69

TPM restriction in public forum must be 1) Content Neutral (if Not, SS) 2) narrowly tailored to serve an IMPORTANT government interest, and 3) leave open alternative channels of communication.

Question 70

overbroad

Answer 70

punishes a substantial amount of protected speech in relation to its plainly legitimate sweep - facially invalid. can't be enforced against anyone, -NOT even if person is doing act NOT constitutionally protected.

Question 71

Executive Power

Answer 71

Power to select ambassadors; broad power over treaties and foreign relations and executive agmts; Needs advice/consent to enter treaty, but not to void treaty -supersedes conflicting state laws

Question 72

Congress Exclusive powers

Answer 72

Postal Service; Regulation of foreign Commerce (Import/export)

Question 73

IS for 1A

Answer 73

advance important interests unrelated to the | suppression of speech and must not burden substantially more speech than necessary to further those interests

Question 74

SS for 1A

Answer 74

regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.

Question 75

Preemption, supremacy

Answer 75

State law may fail under the supremacy clause even if there is no direct conflict - Where Fed Gov intends to Occupy WHOLE field, Fed law is applied and state law is void. Congress will indicate INTENT through Statute's express language or through its structure and purpose (implied).

Question 76

Con Law Essay Approach

Answer 76

1. Justiciable Case or Controversy 2. Governmental Power/Act 3. Indiv Rights

Question 77

political Question

Answer 77

1. issue committed to political branch 2. or inherently incapable or judicial resolution Ex. Republican form of Gov Clause, Challenges to President's conduct in foreign policy, challenges to impeachment/removal, challenges to partisan gerrymandering

Question 78

Commerce power to reg:

Answer 78

1. channels of interstate commerce 2. Instrumentalities of IS commerce (persons/things) 3. Activities that have a substantial effect on interstate commerce Fed plenary power to reg IS power and commerce w/ foreign nations

Question 79

Supercession

Answer 79

Federal Law will supersede a conflicting state law that is directly in conflict (or if field is preempted) Exception - state police power for health, safety, welfare: state allowed to regulate things in even safer way than Fed unless CLEAR intent to preempt

Question 80

full faith and credit

Answer 80

every STATE must honor decision of other STATE decision IF: 1. orig ct had jurisdiction (pj and smj) 2. Judgment was on the merits and 3. Judgment was final

Question 81

Obscenity

Answer 81

little children saying "PPs!) Speech is obscene when the work, taken as a whole appeals to the prurient interest, as determined under contemporary community standards, depicts or describes, in a patently offensive way, sexual conduct, as defined specifically by state law, and the work as a whole lacks substantial scientific, literary, artistic, or political value. . .i. Appeals to the prurient interest – local . .ii. Patently offensive – local . .iii. Lacks serious (literary, artistic, political, scientific) – natn’l

Question 82

War powers

Answer 82

President orders/sends troops (Comm Chief) • broad emergency powers as commander and chief, humanitarian or war purpose Congress cannot make president send troops, but raises and supports armed forces, congress power to declare war Pres needs congressional approval for treaty or declaration of War NO Presidential PLENARY power… limited by checks/balances

Question 83

Taking

Answer 83

Taking of private property for PUBLIC use Possessory or Regulatory that Denies property owner of ALL or partial economic use requiring GOV pay JUST compensation; Reg taking - Deprives owner of any reasonable economically Viable use Partial Taking? Consider: Economic Impact on Claimant Interference with investment backed objectives Character of Gov Action (public interest)

Question 84

SS and IS - BOP on

Answer 84

State

Question 85

RBR - BOP on

Answer 85

Plaintiff

Question 86

Fundamental Rights - SS

Answer 86

Vote, Travel, Privacy (CAMPERS - Contraception, Abortion, Marriage, Procreation, Education (private choice), Relations of Family, Sexual Relations)

Question 87

Statute of Limitations

Answer 87

K obligation barred by SOL is enforceable when NEW promise to pay is 1. IN WRITING or 2. there has been Part Performance

Question 88

To impeach an officer

Answer 88

House impeaches w/ majority then senate conducts trial and convicts w/ 2/3 vote

Question 89

pass normal law

Answer 89

majority of the house

Question 90

Right to vote

Answer 90

fundamental right, BUT laws prohibiting NONresidents from voting are generally valid, provided they meet the minimal scrutiny or Rational Basis Test. Law upheld IF: rationally related to a legitimate gov interest. (efficiency, representation)

Question 91

Employee Speech

Answer 91

NO 1A protection for speech of Gov EES on the job w/in scope of duties, even if touches on a matter of public concern! gov EES = if say something NOT w/in scope of duties - weigh matter of public concern issue against gov interest in Efficiency

Question 92

Appointments Clause

Answer 92

permits Congress to vest appointments of inferior officers only in the President, courts, or heads of dept. Enforcement is an executive act, so Congress CANNOT appoint members of a commission that exercises enforcement powers.

Question 93

VIOLATION OF DUE PROCESS OF LAW

Answer 93

BY GOV ACTION, NOT PRIVATE ACTION

Question 94

SCOTUS Orignal Juris

Answer 94

Must take - - Appeals exist for decisions of 3 judge Fedderal District Courts - Suits between State Governments by cert - state sup ct case; US Ct of appeal case TO review State decision - must NOT be a decision on INDEPENDENT & Adequate state grounds

Question 95

treaty !!!!

Answer 95

amgt betw US and foreign country 1. negotiated by Pres 2. ratified by Senate 3. prevail over conflicting state laws BUT - if Treaty conflicts w/FED statute - Last adopted in time controls!!!! Executive Agmt - signed by PRes and head of foreign nation -no senate required -prevail over STATE laws, but NOT fed

Question 96

appointment

Answer 96

Congress may NOT give itself or officers appointment power may vest in inferior officers or Pres; or Pres appoints exec officers and senate confirms

Question 97

impeachment crimes

Answer 97

treason, bribery, high crimes and misedemeanors

Question 98

Privileges and I Clause Art 4 -

Answer 98

prohibits discrimination by state against nonresidents. Does NOT apply to aliens or corp. ONLY fundamental Rights commercial and civil liberties. Law valid if state has substantial justification for different treatment AND LRM (ie nonresidents cause or are part of problem state is trying to solve.)