CON LAW

Question 1

Justiciability

Answer 1

Case must be justiciable to be heard in fed. court, which means there must be a case or controversy presented

Must have:

• standing
• mootness
• ripeness
• collusive suits
• political question

Question 2

Standing

Answer 2

Party must have a concrete interest in the outcome of a claim to have the claim heard in fed. court

1. concrete and particularized injury
2. injury is fairly traceable tot he challenged conduct, and
3. favorable ruling will eliminate the harm

Question 3

Third Party Standing

Answer 3

1. Plaintiff has suffered individual injury, AND
2. third parties find it difficult to assert their own rights, OR
3. plaintiff’s injury adversely affects plaintiff’s relationship with the third parties

Question 4

Organizational Standing

Answer 4

1. individual members have injury sufficient to grant them standing
2. injury is related to the organization’s purpose AND
3. neither the nature of the claim nor the relief requires participation of the individual members

Question 5

Ripeness

Answer 5

Plaintiff asserts there is an immediate or imminent threat of harm (e.g., threat of prosecution if plaintiff sells particular publication without government approval)

Question 6

Mootness

Answer 6

Controversy is capable of repetition and yet evading review (pregnancy, elections, divorce)

a live controversy must exist at all stages of review. if circumstances causing P’s harm cease to exist after P files suit, the case must be dismissed as moot

Question 7

Political Question Doctrine

Answer 7

Fed. courts will not adjudicate certain constitutional issues that constitute political questions

i.e.,
constitution commits to another branch of govt or
are inherently incapable of judicial resolution or enforcement

Question 8

Supreme Court Review

Answer 8

Discretionary review:
- most cases get to the US Supreme Court by writ of certiorari; the Court then decides whether to grant review

Mandatory Review:
- the Court must take appeals from three-judge district court panels regarding injunctive relief

Original and exclusive jurisdiction:
- suits between states and must be filed in the Supreme Court

Question 9

11th Amendment

Answer 9

11th amendment and the related doctrine of sovereign immunity bar suits against state govts. in federal court

• under the 11th amendment, fed. courts cannot hear claims from a private party or foreign govt. against a state govt.
• sovereign immunity bars suits against states in state court

barred if:

• actions against state govt. for damages or injunctive/declaratory relief where the state is a party
• actions against state govt. officers where govt treasury has to pay or state land would be taken away
• actions against state govt. officers for violating state law
• actions contesting immunity of sister state under that state’s law

okay if:

• against state officer for injunctive relief claim for violation of the const. or fed. law or
• claim for money damages to be paid by the state officer personally

Question 10

Necessary and Proper Clause

Answer 10

Congress can exercise constitutionally-enumerated powers and all auxiliary powers that are necessary and proper to carry out those enumerated powers

• enables congress to take any action not constitutionally prohibited to carry out its express powers
• constitutes Congress’s implied powers

(usually not the right answer for MBE)

Question 11

Taxing and Spending Power

Answer 11

Congress may tax and spend in any way deemed necessary for the “general welfare”

• taxes must reasonably relate to revenue production
• tax is valid if reasonably related to revenue raising or Congress can regulate the taxed activity
  i. e., individual mandate in affordable care act

Question 12

Police Power

Answer 12

Congress has no general police power, except for legislation concerning:

1. military
2. indian reservations
3. land
4. district of columbia

Question 13

Commerce Clause

Answer 13

Commerce clause gives Congress exclusive authority to regulate interstate commerce
- power to regulate intrastate commerce depends ont he nature of the activity

*look for a federal law in the fact pattern

Question 14

Interstate Commerce

Answer 14

Between States
- congress may regulate channels, instrumentalities, or economic activities that have a substantial effect on interstate commerce

channels
instrumentalities
substantial economic effect on interstate commerce

Question 15

Intrastate Commerce

Answer 15

Within States

Economic activities: Congress may regulate commercial or economic activities if there is a rational basis to conclude that the activity, in aggregate, substantially affects interstate commerce

Non-economic activities: Congress may only regulate non-economic activity if it has a direct, substantial economic effect on interstate commerce

Question 16

10th Amendment Limits on Commerce Clause

Answer 16

Even if law is supported by Commerce Clause, is it barred by the 10th amendment?

coercion:
- requiring states to act in certain way
- imposition of substantial penalty for failing to act

commandeering:
- requiring state officials to act in aid of federal law without funding it

Question 17

Dormant Commerce CLause

Answer 17

Limits state laws burdening interstate commerce

IT IS INVALID IF State or Local economic/business regulation that either:
1. discriminates against out of state competition to benefit local economic interests;
or
2. is unduly burdensome - the legitimate local benefits do not outweigh the incidental burden on interstate commerce

• identify the benefit to local interests in prong 1
• discuss BOTH the legitimate benefits and the burden in prong 2

Question 18

Exceptions to Dormant Commerce Clause

Answer 18

1. a discriminatory state or local law may be upheld if it furthers an important non-economic state interest AND there are no reasonable nondiscriminatory alternatives
2. government agency is a market participant
3. congress exempts state/local law from DCC (applies to both prongs)
4. traditional public function

Question 19

Article IV Privileges and Immunities Clause

Answer 19

Discriminatory state law will be invalid if it

1. relates to civil liberties or commercial activities; and
2. is not necessary to achieve an important government interest

Discrimination requires substantial justification for different treatment

• non-residents part of the problem
• no less restrictive means to solve the problem
• Always consider P & I if there is a dormant commerce clause issue
• 14th amendment privileges or immunities clause - primarily applies to restrictions on rights to interstate travel; narrowly construed and unlikely to be an answer choice

Question 20

10th Amendment Limitations on Congressional Power

Answer 20

Under the 10th amendment, all powers not granted to the fed. govt., nor prohibited to the states, are reserved tot he states

limits congress’s ability to regulate and/or tax states alone
- exception: civil rights; congress may restrict state activities that violate civil liberties

Conditional Grants - congress can induce (but not compel) state regulatory or legislative action through the use of conditional grants
- e.g., fed highway funds conditioned on states maintaining a minimum drinking age of 21

requirements:

1. condition must be expressly stated
2. condition must relate to the purpose of the law at issue; and
3. condition cannot be unduly coercive

Question 21

Congressional Delegation of Powers

Answer 21

Congress may delegate legislative powers to executive officers and administrative agencies
- administrative agencies established by congressional enabling acts can create rules that have the status of law

2 STEPS:
Does Congress have authority to regulate?
- applies to any enumerated power
- requires intelligible standards
- cannot delegate executive or judicial powers to itself or its officers
Does the agency regulation conform to Congress’ legislation?

Question 22

Appointment and Removal Powers - President

Answer 22

Appointment powers:

Can appoint ambassadors, fed. judges, and other high level officers with advice and consent of Senate

Removal powers:

Can remove high-level executive offers
- Congress can statutorily limit President’s power to remove all other executive appointees

Question 23

Appointment and Removal Powers - Congress

Answer 23

Appointment powers:

Congress cannot give itself appointment powers

• can vest power to appoint inferior officers in President, courts, heads of departments or agencies
• inferior officers means: usually those working under presidentially appointed officers

Removal powers:

Can only remove executive officers through its impeachment power
Art. III Judges cannot be removed “during good behavior”

Question 24

Absolute Immunity

Answer 24

President has absolute immunity from civil suits arising from official actions taken while in office
- no immunity for actions occurring prior to taking office

Question 25

Executive Privilege

Answer 25

Protects against disclosure of presidential papers and conversations - important government interests in criminal cases can override the privilege (e. g., Watergate)

Question 26

Pardon Power

Answer 26

President has the power to pardon those accused or convicted of federal crimes (not state crimes) - exception: president cannot pardon someone for convictions leading to impeachment - president may also commute sentences - Congress CANNOT limit President's pardon power

Question 27

Treaties

Answer 27

Agreements between the US and foreign countries negotiated by the President - become effective upon ratification by 2/3 of the Senate - conflicts: if a treaty conflicts with other sources of law, these rules control: 1. conflicts with state law - treaty prevails 2. conflicts with fed. law - most recent prevails 3. conflicts with the Const. - Const. prevails

Question 28

Executive Agreements

Answer 28

Agreements reached between the President and foreign heads of state - can be used for any purpose - no congressional approval is required - conflicts: executive agreements only prevail over conflicting state laws

Question 29

Supremacy Clause

Answer 29

Under the Supremacy clause, fed. laws trump conflicting state and local laws

Question 30

Express Preemption

Answer 30

If a fed. law provides that it is the exclusive authority in a given area, it preempts state and local laws in that area - however, preemption provisions are narrowly construed

Question 31

Implied Preemption

Answer 31

If a fed. law is silent on preemption, it implicitly preempts state law in three situations: 1. actual conflict with state/local law 2. state/local law interferes with valid federal objective 3. federal law shows congressional intent to occupy the field - comprehensive in scope, and - creation of agency to administer

Question 32

Government Action Requirement

Answer 32

Const. applies only to govt. action (fed, state, or local) exceptions: const. will apply to private conduct where: 1. exclusive public function - a private entity performs a task traditionally performed by govt. 2. significant state involvement (entanglement) - govt. affirmatively authorizes or facilitates private conduct - state must affirmatively approve or validate private conduct - permitting it alone is insufficient

Question 33

Bill of rights: Application to Federal and State Governments

Answer 33

The BoR only applies directly to the fed. govt. - certain provisions of the BoR apply to state and local govts through the incorporation doctrine - incorporation: the SC has held specific BoR provisions applicable to the states through incorporation into the 14th Amendment Due Process Clause

Question 34

13th Amendment

Answer 34

Prohibition on slavery and involuntary servitude - Congress can adopt legislation prohibiting almost any private racial discrimination that constitutes a "badge or incident of slavery" - Congress can pass a law prohibiting employers from discriminating in hiring on the basis of race - no state action requirement - 13th amend. applies to private action by its terms

Question 35

14th Amendment

Answer 35

Prohibits STATE and LOCAL GOVT. from depriving any person of life, liberty, or property without due process and equal protection - congress can adopt legislation to enforce rights and guarantees, but may not expand existing, or create new, constitutional rights - requirements: law passed pursuant to 14th amend must: 1. point to a history and pattern of state violation of rights; and 2. be proportional and congruent to solving the violation

Question 36

15th Amendment

Answer 36

Prohibits state and fed. govts. from denying any citizen the right to vote on the basis of race or color *not likely to be on the bar exam

Question 37

Levels of Scrutiny

Answer 37

3 tests to analyze the constitutionality of govt. acts under substantive due process and equal protection *MEMORIZE VERBATIM Rational basis: a law will be upheld if it is rationally related to a legitimate govt. purpose - any conceivable legitimate purpose suffices, regardless of the actual purpose of the law - burden of proof (BoP): challenger Intermediate Scrutiny: a law will be upheld if it is substantially related to an important govt. purpose - govt. goal must be important; courts look at the actual reason the law was enacted - BoP: govt. Strict Scrutiny: a law will be upheld if it is necessary to achieve a compelling govt. interest - Govt. must show there are no less restrictive or burdensome means of achieving its goal - BoP: govt.

Question 38

Strict Scrutiny Examples

Answer 38

``` Right to: marry procreate custody of children keep family together control raising of children purchase and use contraceptives travel vote freedom of speech freedom of association free exercise of religion ```

Question 39

Undue Burden Test

Answer 39

The right to an abortion triggers the undue burden test

Question 40

Rational Basis Examples

Answer 40

``` Right to: practice a trade or profession physician-assisted death education Age discrimination Disability discrimination Wealth discrimination Economic regulations Sexual orientation discrimination ```

Question 41

Intermediate Scrutiny Examples

Answer 41

Gender classifications Illegitimacy Undocumented alien children

Question 42

Procedural Due Process

Answer 42

A fair process is required for govt. to take or deprive a person's life, liberty, or property - arise only if govt. acts to deprive an individual not when govt. acts generally 1. notice and opportunity to be heard before a neutral party 2. punishment is not excessively disproportionate to crime 3. only applies to individualized hearings, not to a general law 4. applies ONLY when govt. acts to deprive an individual of life, liberty, or property - life: death penalty - liberty: loss of freedom property: entitlements, development rights, continued right to public employment

Question 43

Procedural Due Process: When to Apply

Answer 43

Needs to be a notice and opportunity to respond 3-part balancing test 1. importance of individual interest deprived 2. risk of erroneous deprivation/value of procedural safeguards (include proportionality of punishment to offense) 3. importance of govt. interest

Question 44

Substantive Due Process

Answer 44

Involves the determination of whether govt. has adequate reasons for depriving life, liberty, or property - encompasses both fundamental and non-fundamental rights Levels of scrutiny: - non-fundamental rights: rational basis - fundamental rights: strict scrutiny

Question 45

Differences between Substantive DP vs. Equal Protection Clause

Answer 45

Substantive DP: usually involves laws affecting rights of all persons to engage in some conduct or activity EP: usually involves laws treating certain people or classes of people differently than others, often based on some trait

Question 46

Economic Rights

Answer 46

Rational basis test - Const. provides only minimal protection for economic liberties (laws affecting or amounting to a taking of one's economic rights)

Question 47

Contracts Clause

Answer 47

States cannot impair existing contractual duties UNLESS, 1. law serves a legitimate and important state interest and 2. is reasonable and narrowly tailored to promote that interest - applies against state/local law - govt. contracts have a stricter scrutiny - private contracts is intermediate scrutiny

Question 48

Ex Post Facto Clause

Answer 48

Prohibits ex post facto laws Ex post facto = law that retroactively changes the legal consequences of actions that were committed, or relationships that existed, before the enactment of the law Test: a law is an ex post facto law if it either: 1. criminally punishes conduct that was lawful when done, b. increases punishment for a crime after it has been committed, or 3. reduces the burden required to convict a person for a crime after it has been committed

Question 49

Bill of Attainder

Answer 49

Legislative acts that punish specific individuals without a judicial trial e.g., an order to imprison a person without judicial process Bills of attainder are prohibited under the Const.

Question 50

Takings Clause

Answer 50

5th Amend. prohibits govt. from taking private property without providing just compensation to the owner and/or occupant - Govt. may take private property for "public use" - applies to govt. action that significantly damages property or its use 3 Part analysis 1. has there been a taking? - possessory taking: govt. takes or occupies physical property (govt. may take private property for private development) - regulatory taking: govt. action that adversely affects property value * denial of all economic value: total taking * denial of nearly all value: partial taking 2. Is the taking for public use? taking is for public use if govt. has a reasonable belief the taking will benefit the public (low standard - good so long as it is rationally related to some legitimate public purpose) 3. is just compensation paid? measured in terms of loss to owner - FMV of property at time of taking

Question 51

Zoning Ordinances

Answer 51

May be a taking IF: - ordinance physically appropriates property - ordinance denies all economic use - ordinance unreasonably interferes with distinct, investment-backed expectations Existing non-conforming uses permitted and amortized by grandfathering provisions Zoning variance may be granted if: - showing of unique hardship to the property owner, AND - not contrary to the public welfare

Question 52

Fundamental Rights

Answer 52

Fundamental rights are treated under both 5th amendment substantive due process and 14th amendment equal protection - substantive dp: applies if a right is denied to all - EP: applies if a right is denied to some but not others

Question 53

Right to Abortion

Answer 53

Turns on viability of the fetus - viability: when a fetus can survive outside the womb - pre-viability: regulation must not UNDULY BURDEN abortion 1. states may not prohibit abortion, but may regulate as long as it does not create an undue burden 2. undue burden: spousal notification 3. no undue burden: 24 hr waiting period, partial-birth abortion bans; parental consent requirements - post-viability: prohibition on abortion is allowed unless medically necessary to protect the mother's health parental notice / consent laws for minors: no undue burden if the law creates an alternative procedure whereby a minor can obtain an abortion by going before a judge - the judge can approve the abortion by finding either: 1. abortion is in the minor's best interests, or 2. the minor is mature enough to decide for herself

Question 54

Equal Protection Clause

Answer 54

Is there intent to discriminate? 1. facial discrimination 2. discriminatory purpose, or 3. the law is being discriminatorily applied STEPS TO TAKE: 1. Define the classification (race, gender, etc.) 2. Define and apply the appropriate test - what test needs to be used: strict scrutiny, intermediate scrutiny, or rational basis?

Question 55

Equal Protection - Breaking Down the Test

Answer 55

1. identify the governmental purpose 2. characterize the purpose (compelling, legitimate, important) 3. is the classification or law [necessary/substantially related/rationally related] to achieving the government purpose? * NOTE who has the burden e. g., "under 18-year old boys" discuss both age and gender

Question 56

Alienage Classifications

Answer 56

Classifications based on alienage (citizenship status) are subject to strict scrutiny review, although certain exceptions apply rational basis applies if the classification is related to SELF-GOVT. and the democratic process: * often arises where job applicants are denied govt. employment based on their citizenship status * areas where alienage classifications have been upheld under rational basis review: - voting - serving on a jury - working as a police officer - working as a teacher - working as a probation officer *undocumented aliens are not considered a suspect classification

Question 57

1st Amendment

Answer 57

1st Amend. protects freedom of expression, including freedom of speech, of the press, of assembly, and of association analysis depends on: - type of speech OR - government role in regulating speech

Question 58

1st Amend. - Content Regulation

Answer 58

Content-based restriction is subject to STRICT scrutiny. - occurs where govt. seeks to restrict speech because of its content * when content-based discuss vagueness and overbreadth vagueness: unclear what conduct or speech is prohibited overbreadth: more speech than is targeted is made unlawful

Question 59

1st Amend. - Content-neutral

Answer 59

Content-netural restriction is subject to intermediate scrutiny regulation will be upheld if the govt shows that: 1. it advances important issues unrelated to the suppression of speech and 2. does not burden substantially more speech than is necessary to further those interests *usually arises in the context of time, place, or manner restrictions and/or speech on govt. property

Question 60

1st Amend. - Conduct/Symbolic Speech

Answer 60

Regulation of conduct is upheld if: 1. the regulation is within the constitutional powers (such as police power) of the govt, 2. it furthers an important govt interest, 3. the govt interest is unrelated to the suppression of speech, and 4. the incidental burden on speech is no greater than necessary

Question 61

1st Amend. - Time, Place, and Manner Restrictions

Answer 61

Government regulating location, time or manner of speech, not content: - public forum: historically open to speech-related activities - designated public forum: not historically open to speech-related activities, but govt has opened to such activities on a permanent or limited basis - limited public forum: all other public property other than a nonpublic forum - nonpublic forum: jails and government buildings

Question 62

1st Amend. - Forum Analysis

Answer 62

Public forum & designated public forum - reasonable time, place, and manner restriction - content neutral - narrowly tailored to serve significant interest - alternative channels of communication remain open Limited public forum and Non-public forum - viewpoint neutral - reasonably related to legitimate purpose

Question 63

1st Amend. - Prison Speech

Answer 63

restrictions on prisoners' speech will be upheld if reasonably related to a legitimate penological interest

Question 64

1st Amend. - Funding and Speech

Answer 64

when the govt funds speech to promote its own policy goals (such as family planning), it may do so on content-based criteria. If it funds private speech (such as legal aid), it must do so on a viewpoint neutral basis

Question 65

1st Amend. - Commercial Speech

Answer 65

Regulation of commercial speech involving lawful activity that is not misleading or fraudulent, is valid only if: 1. it serves a substantial govt interest 2. it directly advances that asserted interest, and 3. it is narrowly tailored to serve the substantial interest

Question 66

Campaign Contributions and Spending - Contributions

Answer 66

Campaign contributions: Test: whether they are closely drawn to match a sufficiently important interest - an intermediate scrutiny test Limiting campaign contributions to a particular candidate upheld: interest in avoiding the appearance of corruption

Question 67

Campaign Contributions and Spending - Expenditures

Answer 67

Campaign Expenditures Campaign spending limits imposed on candidates are unconstitutional limit on speech No limit on independent expenditures supporting a candidate if: 1. not contributed to the candidate/their campaign; and 2. no coordination with candidate

Question 68

1st. Amend - Incitement of imminent unlawful activity

Answer 68

This may be punished and restricted. Test: govt. may punish speech if: 1. there is a substantial likelihood the speech will bring about imminent illegal activity; and 2. the speech is aimed at causing imminent illegality Test is known as the "clear and present danger test" it is difficult to satisfy and any law aimed at restricting incitement must be narrowly tailored

Question 69

1st. Amend - Fighting Words

Answer 69

This may be punished and restricted Govt may punish speech if it is likely to cause an immediate violent response against the speaker *almost impossible for a fighting words statute to be upheld

Question 70

1st Amend. - Obscenity

Answer 70

Govt may regulate obscenity, which is a lesser-protected category of speech test: expression is obscene if: 1. it appeals to prurient interests (sexually stimulating) 2. it is patently offensive in its sexual portrayal 3. taken as a whole, the material lacks serious literary, artistic, political, or scientific value

Question 71

1st Amend. - Unprotected Commercial Speech

Answer 71

Commercial speech is not protected if it is either: 1. false, misleading, or deceptive, or 2. illegal or concerns illegal activity govt may regulate unprotected commercial speech

Question 72

1st Amend. - Defamation

Answer 72

1st Amend. considerations arise when defamation involves a public official and/or a matter of public concern If defamation involves a public figure, official, and/or public concern, P must prove: 1. falsity 2. fault (public figure requires actual malice and private figure requires negligence of the statement's veracity) *remember defamation for torts

Question 73

1st Amend. - Prior Restraint

Answer 73

Three procedural safeguards are required 1. the standards must be narrowly drawn, reasonable, and definite, 2. the government must promptly seek an injunction if required, 3. there must be a prompt and final determination of the validity of the restraint - prompt right of appeal `

Question 74

Freedom of Religion - Free Exercise Clause

Answer 74

DISCUSS BOTH FREE EXERCISE AND ESTABLISHMENT CLAUSE Prohibits govt. from punishing someone solely on the basis of that person's religious beliefs or conduct - govt action must be necessary to achieve a compelling interest, but court has never upheld religious punishment under this standard - limitation: only applies if the purpose of a law is to limit or interfere with religious practice or beliefs

Question 75

Freedom of Religion - Establishment Clause

Answer 75

DISCUSS BOTH FREE EXERCISE AND ESTABLISHMENT CLAUSE if govt discriminates against a specific religion or sect ( as opposed to religion generally) strict scrutiny applies if govt restricts or burdens religion without discriminating against a specific faith or group, apply the Lemon test Lemon Test: a govt act burdening religion will only be upheld if: 1. there is a secular purpose behind the act 2. Act's primary effect neither advances nor inhibits religion; and 3. Act does not create excessive govt entanglement with religion

Question 76

1st Amend. - Freedom of the Press

Answer 76

Publication of truthful information Access to trials Requirements to Testify Taxes and Regulation

Question 77

1st Amend. - Freedom of Association

Answer 77

The right to join together for political or expressive activity Limitation requires strict scrutiny analysis Focus on whether the activity is political or expressive