Con Law

Question 1

Equal protection Clause of the Fourteenth Amendment

Answer 1

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal protection of the laws

Question 2

Rational basis review

Answer 2

age, benefits, etc

P has to prove whether the State has a legitimate interest and whether the means used to achieve tis legitimate state interest are reasonably related or rationally related to that state interest.

Under the rational basis test, it is not necessary for the fit between ends and means to be perfect. The fit merely has to be reasonable or rational.

Question 3

Congress’s powers

Answer 3

are limited to those expressed in the Constitution. To enact a law on a particular topic, Congress must rely on some identified grant of legislative authority in the Constitution. Section Five of the Fourteenth Amendment is one such grant of authority.

“legislation which deters or remedies constitutional violations can fall within the sweep of Congress enforcement power even if in the process it prohibits conduct which is not itself unconstitutional…” Congress’s power, however, is remedial. It has been given the power “to enforce” not the power to determine what constitutes a constitutional violation.

Question 4

City of Boerne v. Flores

in drawing the line btwn measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law

Answer 4

the court in Boerne stated that the constitutional question is whether there is a “congruence and proportionality between the constitutional injury to be pre-vented or remedied and the means adopted to that end.” Lacking such a connection, legislation may become substantive in operation and effect.

Question 5

Proportionality requirement of Flores

Answer 5

allows Congress to outlaw conduct that courts likely would hold unconstitutional under existing judicial precedent.

Congress may also outlaw a broader range of conduct to prevent constitutional violations. But Congress cannot rely on its Fourteenth Amendment enforcement power to prohibit a kind of behavior that is unlikely to involve a constitutional violation at all.

Flores held that Congress cannot, under its Fourteenth Amendment power, legislate to prohibit constitutional behavior where there is no constitutional injury to be prevented or remedied.

Question 6

state laws that discriminate against out of state commerce in favor of in state commerce

Answer 6

either on their face or in practical effect ar subject to strict scrutiny and thus a nearly per se rule of invalidity.

Question 7

Even is state law is not discriminatory

Answer 7

state laws that affect interstate commerce can also be invalidated if the burden on interstate commerce is clearly excessive in relation to the putative in state benefits.

Question 8

In Exxon the court decided that under the discriminatory impact test

Answer 8

read the Hunt discriminatory impact test to apply to a direct impact on out of state firms in the primary market (apples) regulated by the state. In Exxon, the discriminatory impact was in a market (refining) different from the one regulated by the state (service stations), and so the state law was not found to be discriminatory.

Question 9

In City of Philadelphia, in regards to an environmental purpose

Answer 9

the Court made clear that it does not matter whether the law has a legitimate environmental purpose; the state may not use discriminatory means to accomplish it. Insofar as the law is discriminatory, it is invalid unless it is narrowly tailored to meet a legitimate, nonprotectionist purpose.

Question 10

In particular, a law is not narrowly tailored if

Answer 10

there are less discriminatory alternative means to accomplish the states purpose.

Question 11

State as a market participant

Answer 11

the state may discriminate in favor of residents when buying or selling good and services because the state is acting as a “market participant” rather than as a regulator of an economic activity.

Question 12

Thirteenth Amendment

Answer 12

addresses “private” discrimination

Question 13

Strict scrutiny also applies to

Answer 13

race-based affirmative action plans

must be “necessary” to achieve a “compelling governmental interest.

Minority set-aside programs enacted by city or state will be subjected to strict scrutiny and will usually be found unconstitutional on equal protection grounds.

Question 14

A fetus a viable

Answer 14

The fetus is not yet viable in many pregnancies that have gone beyond the first trimester. Typically viability occurs late in the second or early in the third trimester

Question 15

There are several limitations on the jurisdiction of federal courts

Answer 15

1. the P myst have standing to press his claim
2. there must be be some basis for federal court jurisdiction (diversity, federal question),
3. there must be a “case or controversy” (non political)

Question 16

A political question is one the that Constitution commits to another governmental branch, which the judicial process is inherently incapable of resolving and enforcing. There are three criteria for determining political questions:

Answer 16

1. a “textually demonstrable” constitutional commitment of the issue to the political branches;
2. lack of manageable standards for judicial resolution; and
3. difficulty or impossibility of devising effective judicial remedies

Question 17

Free exercise must yield to a rational and generally applicable law even if that law proscribes conduct required by religion

Answer 17

the court held that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes conduct that his religion prescribes.

Question 18

The General Welfare Clause, Article I, S8, states that Congress shall have power to

Answer 18

“lay and collect Taxes to pay the Debts and provide for the general Welfare of the United States.” This clause gives Congress the substantive power to tax and spend, limited only by the requirement that the taking and spend be for the general welfare. Congress may delegate its legislative power as Long as the person or body receiving the delegated power is directed to conform to an intelligible principal set forth by Congress.

Question 19

Police powers may not

Answer 19

improperly burden a persons constitutional rights, and it must not unduly burden interstate commerce

Question 20

Suspect classifications

Answer 20

are race and alienage

Question 21

Fundamental rights are

Answer 21

interstate travel, voting, and privacy.

Question 22

To be valid a state law must meet a three-part test

Answer 22

1. it must be enacted within the state’s police powers
2. it must not violate any person’s constitutional rights; and
3. it must not improperly burden interstate commerce

Question 23

Distribution of free text books by a state to a private racially-segregated school

Answer 23

would constitute state encouragement of racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment.

Question 24

Under procedural due process there need only be fair process if:

Answer 24

the right being deprived is a property right (or life or liberty.)

Question 25

Ordinance neutral on its face but has a disparate effect

Answer 25

Absent evidence that the (city) intended to discriminate against a class (eg women) , the scheme will not be subject to any heightened level or review. Accordingly, a court will assess the ordinance under rationality review and uphold it unless it is not rationally related to a legitimate government interest.

Question 26

For a congressional statute to be constitutional, it must be

Answer 26

enacted pursuant two one of Congress's enumerated powers under Article I of the Constitution.

Question 27

The Tenth Amendment effect is to prohibit the federal government from commandeering the lawmaking power of the states or local legislatures. However when the statute is applicable to both private and governmental entities

Answer 27

and it's a direct regulation that is generally applicable, and does not commandeer the legislative function of the local government, it does not violate the Tenth Amendment.

Question 28

Eleventh amendment

Answer 28

only bars federal court suits against a state brought by private citizens, not federal suits Brought against the state by the federal government

Question 29

Obscene material

Answer 29

material cannot be obscene unless the work is "patently offensive," something that requires portrayal of "hard core sexual conduct"

Question 30

Work is obscene when:

Answer 30

1. the average person, applying contemporary community standards would find that "the work, taken as a whole, appeals to the prurient interest; 2. the work must depict or describe, in a patently offensive way, sexual conduct "of a sort that is specifically defined by the obscenity law in question; and 3. the work "taken as a whole" must "lack serious literary, artistic, political, or scientific value

Question 31

Restrictions on commercial speech

Answer 31

must satisfy intermediate level scrutinyy, and a close fit between means and end is one of the requirements for that level of review

Question 32

Two types of speech that are unprotected

Answer 32

a. speech that is deceptive (false advertising); and | b. speech that relates to illegal activity

Question 33

Three part test that amounts to mid-level scrutiny

Answer 33

a. the interest the government is trying to further by speech restriction must be "substantialy" important b. the restriction must "directly advance" the governmental interest; and c. the restriction myst be no more extensive than is necessary to serve the governmental interest. In other words, there must be a cute close "means end til"between government objective and the restriction

Question 34

Tenth Amendment

Answer 34

state sovereignty. The federal government may not compel the states to enact or administer a federal regulatory program. Cannot commandeer the states.

Question 35

Right to interstate travel

Answer 35

insures new residents the same right to vital government benefits and privileges in the states to which they migrate as one enjoyed by other residents. It is a fundamental right!

Question 36

Dormant Commerce Clause

Answer 36

does not apply to the conduct of a state that is acting as a market participant rather than as a regulator. if the state is acting as a regulator and favoring in-state economic interest over out of state interests, this sort of discrimination is virtually per se a violation of the DCC.

Question 37

substantive Due process fundamental rights:

Answer 37

childbearing, child rearing, right to Mary, and right to sexual expression

Question 38

Equal protection fundamental rights:

Answer 38

marriage, sexual relations,, voting, court access, and the right to travel

Question 39

Vagueness

Answer 39

a statue will be void for vagueness if the conduct forbidden by it is so unclearly defined that persons of common intelligence would have to guess at its meaning and would differ as to its application

Question 40

Overbreath

Answer 40

a statue is overbroad if in addition to proscribing activities that may be constitutionally forbidden, it also sweeps within its coverage a substantial amount of speech or conduct that is protected by the guarantees of free speech

Question 41

Takings 5th Amendment

Answer 41

the 5th amendment to the constitution prohibits the government from taking private property without just compensation. when the regulation deprives the owner of all economically viable use of his land

Question 42

Standing of an organization

Answer 42

the organization must demonstrate 1. that there is an injury in fact to some members of the organization that would give there individual members a right to sue on their own behalf; 2. the injury to the members is related to the organization purpose; and 3. that neither the nature of the claim nor the relief requested requires participation of the individual members in the lawsuit.

Question 43

Justiciability requirements

Answer 43

the P must have standing and the case must: 1. not call for an advisory opinion, 2. be ripe for adjudication, 3. not be moot, and 4. not call for the courts to decide a non-justiciable political question

Question 44

Lemon v. Kurtzman

Answer 44

1. the statute must have a secular purpose 2. it must have as its principal or primary effect neither the advancement nor inhibition of religion; and 3. it must not foster excessive government entanglement with religion

Question 45

Standing by a private citizen will be considered standing by a government actor if

Answer 45

the state has become so involved with the private action that the two become symbiotic, which is to say there is a mutually beneficial relation between the state and the private discriminator

Question 46

Under the Dormant Commerce Clause a state regulation that substantially affects interstate commerce must meet each of the following requirements to be upheld:

Answer 46

1. the regulation must pursue a legitimate end; 2. the regulation must be rationally related to that legitimate end; and 3. the regulatory burden imposed by the state on interstate commerce, and any discrimination on interstate commerce must be outweighed by the states interest in enforcing the regulation.

Question 47

Commerce Clause (Article I, Section 8, Clause 3 of the Constitution)

Answer 47

gives Congress the power to regulate commerce among the states and, by negative implication, restricts the regulatory power of the states with respect to interstate commerce. Any state law that has a substantial effect on interstate commerce must not be protectionist or otherwise impose an undue burden on interstate commerce. A protectionist law benefits in state interests at the expense of out-of-state interests. A state law that discriminates against interstate commerce is protectionist unless it serves a legitimate local interest that cannot be served by nondiscriminatory legislation.

Question 48

The privileges and immunities clause of Article IV, Section 2, Clause 1 of the Constitution

Answer 48

reaches only state actions that discriminate against citizens of other states. The clause invalidates any state action that is contrary to federal law.

Question 49

Bill of attainder

Answer 49

is a law that provides for punishment of a particular person without trial. A bill of attainder is unconstitutional.

Question 50

The standard of review for 14th Amendment equal protection issues are:

Answer 50

1. Suspect classification or fundamental rights - burden on government - strict scrutiny - necessary to vindicate a compelling state interest 2. Quasi-suspect classification - burden on the government - intermediate scrutiny substantially related to an important government interest 3. Other classification - burden on challenger - rationally related to any legitimate government interest

Question 51

3. other classifications

Answer 51

age, welfare benefits, everything else not under suspect or quasi-suspect classification

Question 52

Prior restraint

Answer 52

is defines as the prohibition of speech before it can be communicated. Prior restraints on speech and publication are the most serious and the last tolerable infringement of First Amendment rights, and the government bears a very high burden.

Question 53

How to raise lack of personal jurisdiction argument

Answer 53

Rule 12(b)(2) specifically authorizes the defendant to raise the lack of personal jurisdiction by pretrial motion, which would be the quickest and least expensive means to obtain a ruling on the issue.

Question 54

Judgement of the State Supreme Court rests upon an adequate and independent state law ground

Answer 54

A state can grant greater rights than the federal constitution, and the United States Supreme Court will not disturb a judgment that is resolved on independent state grounds. The United States Supreme Court would not decide the federal issue because its resolution of the issue would not alter the outcome of the case. Given that, resolution of the federal question would be equivalent to an advisory opinion.

Question 55

Neutral laws of general applicability

Answer 55

do not usually violate the Free Exercise Clause unless the law was designed to discriminate against religion

Question 56

Even when a state law is not expressly preempted by a federal law, the federal law may nonetheless be supreme and can preempt the state law when:

Answer 56

i. if there is a conflict between the state and federal law and it is impossible to comply with both ii. the state law prevents achievement of a federal objective, or iii. Congress has passed such extensive regulation in an area that it means to occupy the field and have no room for state regulation in that field.

Question 57

Article III of the US Constitution only grants the Supreme Court original jurisdiction in:

Answer 57

cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party. Outside of that, the Supreme Court's appellate jx is subject to any "exceptions, and under such regulations as the Congress shall make."

Question 58

In order for Congress to exercise its legislative power, it must have approval of both houses (bicameralism) and the President (presentment)

Answer 58

The test for determining whether actions taken by a legislative body are an exercise of legislative power depends not on the form of the action, but upon “whether they contain matter which is properly to be regarded as legislative in its character and effect.”

Question 59

Commercial speech will be subject to the four-part test in Central Hudson test

Answer 59

i. advertisements must concern lawful activity and not be misleading ii. the statute must serve a substantial governmental interest iii. the statute must directly advance the governmental interest, and iv. the statute must be narrowly tailored to achieve the governmental interest

Question 60

Executive authority is granted by Article II, Section 1 of the United States Constitution. “The executive power shall be vested in a President of the United States of America.” The President may not use the power of the pen to create laws that are in conflict with the laws enacted by Congress Where Congress has not legislated, the President may act. The applicable test was delineated in Youngstown Sheet & Tube Co. v. Sawyer:

Answer 60

i. where the President acts with Congressional approval, his power is at its higher; ii. where the President acts without Congressional approval or disapproval (e.g., Congress is silent), the Court will analyzes closely, on a case by case basis; and iii. where the President acts with Congressional disapproval, his power is at its lowest, and the Court will generally invalidate the President's action.

Question 61

A valid treaty

Answer 61

A valid treaty prevails over an earlier federal law and always prevails over state law. But a treaty, even an otherwise valid one, cannot prevail over the United States Constitution If the treaty conflicts with the United States Constitution, the treaty is invalid.

Question 62

State courts are authorized to hear cases involving state or federal law and

Answer 62

may not discriminate against cases which arise out of federal law.

Question 63

Principles of federalism | Tenth Amendment

Answer 63

Under the principles of federalism, the powers of the federal government and states are divided. The Tenth Amendment provides, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” the federal government cannot “commandeer” states.

Question 64

The Fourteenth Amendment Privileges or Immunities Clause protects a citizen's fundamental right to

Answer 64

travel and, if the citizen decides to relocate to another state, enjoy the same rights that other citizens enjoy. The Supreme Court has held that conditioning the receipt of benefits on living in a state for a specific amount of time is an infringement on the fundamental right to travel.

Question 65

The First Amendment also | protects the freedom of association

Answer 65

The court in United States v. Lemon held that, “the government cannot punish an individual for mere membership in a religious or political organization that embraces both illegal and legal aims unless the individual *specifically* intends to further the group's illegal aims.

Question 66

A city's exercise of eminent domain

Answer 66

In Kelo v. City of New London the Supreme Court held that the city could exercise its eminent domain power to transfer property from one private owner to another for the purpose of furthering economic development. A taking is permissible for public use.

Question 67

The Commerce Clause vests Congress with the power to regulate interstate commerce

Answer 67

``` This means Congress can regulate the channels and instrumentalities of interstate commerce (railroads, mail, phone, internet, buses, trucks), persons and things in interstate commerce, or anything that has a “substantial effect” on interstate commerce ```

Question 68

To pass constitutional muster, any regulation of a public forum must be

Answer 68

content neutral, narrowly tailored to serve an important or substantial government interest, and leave open alternative channels of communication.

Question 69

Article I, Section 6, states | -members of Congress liability

Answer 69

“They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.”

Question 70

Congress may delegate rule-making authority to federal agencies through

Answer 70

statutes that provide an intelligible principle governing the exercise of that authority

Question 71

Judicial bypass

Answer 71

The U.S. Supreme Court has held that parental notification requirements violate a minor's right to an abortion unless there is a satisfactory judicial bypass procedure. Such a procedure must allow a court to approve an abortion for a minor without parental notification if the court finds that either (1) the minor is sufficiently mature and informed to make an independent decision to obtain an abortion or (2) the abortion would be in the minor's best interest.

Question 72

The due process clause of the Fifth Amendment

Answer 72

In Bolling v. Sharpe the US Supreme Court held that the equal protection principles of the Fourteenth Amendment apply to actions of the federal government through the due process clause of the Fifth Amendment.

Question 73

Section 5 of the Fourteenth Amendment provides that Congressional legislation is appropriate within the meaning of Section 5 if:

Answer 73

(1) it seeks to prevent or remedy actions by state or local governments that violate provisions of the Fourteenth Amendment, and (2) its requirements are congruent with and proportional to the Fourteenth Amendment violations it addresses.

Question 74

The Tenth Amendment confirms that

Answer 74

the powers of the federal government are subject, in some case, to limits necessary to protect "state sovereignty" from federal intrusion. One of those limits is that Congress may not "require the States to govern according to Congress's instructions."

Question 75

In Printz, v. United States, Congress ordered state law enforcement officials to conduct background checks of persons purchasing firearms.

Answer 75

By legislating to force the law enforcement officers to take certain actions "in their official capacities as state officers," the Court said, Congress was acting to control their actions "as agents of the State." Such an effort by the federal government "to direct the functioning of the state executive, and hence to compromise the structural framework of dual sovereignty" is unconstitutional.

Question 76

Congress may use a threat to withhold federal money to induce a state to

Answer 76

excercise its sovereign authority (by passing certain laws) to achieve congressional goals. The Supreme Court has repeatedly held that such threats are cznsitutianl exercises of Congress's power to spend money for the "general welfare of the Untied States" unless they are unduly coercive.

Question 77

Congress may use a threat to withhold federal money to induce a state. When using its spending power this way, Congress must satisfy certain requirements:

Answer 77

(1) The spending must be for the general welfare, although a "court should defer substantially tot he judgment of Congress' in this regard (2) The condition imposed by Congress must be imposed unambiguously (3) The condition imposed must be related "to the federal interest in particular national project programs, (4) the condition imposed must not "be used to induce the States to engage in activities that would themselves be unconstitutional." (5) a condition will be deemed improper it is is "so coercive as to pass the point at which 'pressure turns into compulsion.'"

Question 78

Dormant commerce clause

Answer 78

the Supreme Court of the United States has long held that the Constitution's grant to Congress of the power to regulate interstate commerce also limits, by implication, the right of state or local governments to adopt laws that regulate interstate commerce.

Question 79

A state law that discriminates against interstate commerce

Answer 79

in any way that operates as . . . a tariff or trade barrier against out-of-state interests" is subject to strict review and is virtually per se unconstitutional.

Question 80

An "incidental" burden on interstate commerce

Answer 80

will nonetheless be unconstitutional if the burden it imposes is "clearly excessive in relation to the putative local benefits."

Question 81

The Eleventh Amendment provides that "the judicial power of the Unites States" does not

Answer 81

extend to "any suit in law or equity, commenced or prosecuted against one of the United Starts by Citizens of another State, or by Citizens or Subjects of any Foreign State." States are immune from suit unless it agrees to be sued. While this immunity of States from suits has been described as an "anachronistic survival of monarchial privilege," it is nonetheless firmly established.

Question 82

Under the Eleventh Amendment "Official-capacity" actions for prospective relief are

Answer 82

not treated as actions against the state. A suit against public officials in their official capacity may be maintained.

Question 83

Public forum

Answer 83

although the united States Supreme Court once granted local governments broad powers to regulate speech in streets and parks, for the better part of a century. The Court has treated a public street or sidewalk as a First Amendment "public forum."

Question 84

In a public forum, government may regulate speech only if certain conditions are met.

Answer 84

If the regulation is content-neutral, it must meet the requirements of intermediate scrutiny; to pass muster under this standard, the regulation must impose only reasonable restrictions on the time, place, or manner of speech that are narrowly tailored to serve a significant governmental interest, and it must leave open ample alternative opportunities to engage in speech.

Question 85

Content neutral

Answer 85

the ordinance forbids the means of communication, without regard to the content of the speech

Question 86

A "limited public forum" (also known as a designated public forum)

Answer 86

is created when a governmental entity could close a location to speech but instead opens it to speech. All the rules applicable to a traditional public forum apply to a limited public forum. Under the First Amendment, as applied to the states and local governments through incorporation in the Fourteenth Amendment, the government may not discriminate among speakers based upon the content of their speech.

Question 87

The Supreme Court has repeatedly held that, in a public forum, religious speech

Answer 87

stand on equal footing with nonreligious speech, and content-neutral access rules do not violate the Establishment Clause.

Question 88

A state can regulate conduct in a nonpublic forum if

Answer 88

the state's interest is important or substantial, and is unrelated to the suppression of expression, and if the regulation is no greater than necessary to serve the state's interest.

Question 89

Conduct that is not communicative value

Answer 89

the government can regulate conduct that is not imbued with communicative value.

Question 90

The key to satisfying the substantial effects requirement of the commerce clause is

Answer 90

the threshold determination of whether the regulated activity is economic or commercial in nature.

Question 91

when Congress regulates an economic or commercial activity, the Court will uphold the regulation if

Answer 91

Congress had a rational basis for concluding that the class of activities subject to regulation, in the aggregate, has a substantial effect on interstate commerce. Aggregation on a national scale typically makes this an easy standard to meet. On the other hand, if the regulated activity is not economic or commercial in nature, the Court will not aggregate to find a substantial effect, and the standard becomes extremely difficult to meet.

Question 92

The Morrison court held that acts of violence are not economic or commercial in nature, and thus

Answer 92

in applying the substantial effects test, the court may only measure the effect of the particular act of violence at issue in the suit and not the aggregate effect of all acts of violence in the workplace.

Question 93

In Unites states v, Lopez, the Supreme Court of the US clarified that Congress may enact three types of regulations under the Commerce Clause

Answer 93

First, Congress may regulate the channels of interstate commerce. Second, Congress may regulate the people and instrumentalities that work and travel in the channels of interstate commerce. This, Congress may regulate activities that substantially affect interstate commerce.

Question 94

In Garcia v. San Antonio Metropolitan Authority, the SC held that Congress may regulate the states on the same terms as private actors

Answer 94

the act requires both public and private employee to obey the same federal requirements.

Question 95

A federal statute abrogates the Eleventh Amendment immunity if:

Answer 95

first, the statute unambiguously asserts that it does so, and second, Congress enacted the statute under a power that may abrogate Eleventh Amendment state immunity.

Question 96

In Seminole Tribe, the Court held that Article 1, section 8 of the Constitution

Answer 96

does not grant Congress power to abrogate state sovereign immunity

Question 97

Actions of private parties can constitute state action in certain exceptional cases. For instance, private parties have been held to be state actors where:

Answer 97

(1) they have performed a traditional public function, (2) there is the enforcement of certain private contracts, (3) there is joint action or "entanglement" between a state and private actor, or (4) there is state encouragement of private discrimination.

Question 98

In United States v. Virginia, the US Supreme Court held that state laws that make classifications on the basis of gender are unconstitutional unless the state can establish

Answer 98

an exceedingly persuasive justification" for the classification. An "exceedingly persuasive justification" is one that serves "important governmental objectives" and which does not rely upon outdated or over broad generalizations and stereotypes about differences between men and women.

Question 99

In certain cases, a state may treat men and women differently consistent with the equal protection guarantee and provide separate facilities for each gender (sport teams, dormitories, bathroom facilities). In such cases, moreover, the state must bear the burden of

Answer 99

(1) demonstrating the "exceedingly persuasive justification" for the separate treatment, and (2) demonstrating that the separate facilities are substantially equivalent.