Constitution

Question 1

What does the 11th Amendment prohibit?

Answer 1

The 11th Amendment prohibits a party from suing a state or a state agency in federal court UNLESS certain exceptions apply.

Question 2

What are the 4 exceptions to the 11th Amendment?

Answer 2

The 4 exceptions to the 11th Amendment are:

1. the state explicitly consents to waive its protections;
2. the suit pertains to federal laws brought under the 14th Amendment;
3. the suit seeks injunctive relief against a state official for constitutional violations; OR
4. the suit seeks money damages from a state official.

Question 3

What suits are not covered by the 11th Amendment?

Answer 3

The 11th Amendment does not apply to:

1. suits against local governments,
2. federal suits between states, or
3. suits by the federal government against a state.

Question 4

Can Congress abrogate 11th Amendment state sovereign immunity, allowing a party to sue a state?

Answer 4

Congress cannot abrogate state sovereign immunity except for federal laws adopted under the 14th Amendment.

Question 5

What must be determined to assess Congress’s abrogation of state immunity?

Answer 5

To assess Congress’s abrogation of state immunity, 2 issues must be resolved:

1. whether Congress unequivocally expressed its intent to abrogate the immunity; AND
2. whether Congress acted pursuant to a valid grant of constitutional authority.

Question 6

What is standing in federal court?

Answer 6

To have standing in federal court:

1. personally suffered an injury in fact,
2. injury was caused by the defendant, and
3. injury is redressable by a court order.

Question 7

CONSTITUTION

What must a plaintiff show when seeking injunctive relief?

Answer 7

The plaintiff must show a concrete, imminent threat of future injury that is neither conjectural nor speculative.

Question 8

Is third-party standing generally permitted?

Answer 8

Generally, third-party standing is not permitted, except in certain circumstances.

Question 9

What are the exceptions for third-party standing?

Answer 9

Exceptions include: (a) a close relationship between the plaintiff and third-party; (b) difficulty for the third-party to assert their rights; OR (c) the third-party is an organization.

Question 10

What must an organization show to have standing to sue on behalf of its members?

Answer 10

An organization must show: (1) the suit is related to its purpose; (2) its members would have standing; AND (3) the members’ participation is not necessary.

Question 11

What does ripeness refer to in legal terms?

Answer 11

Ripeness refers to whether a case is ready to be litigated, determined by actual harm or an immediate threat of harm.

Question 12

What factors are considered for pre-enforcement review of a statute?

Answer 12

The court considers: (1) the hardship of withholding review; AND (2) the fitness of the record for review.

Question 13

What does mootness mean in legal context?

Answer 13

Mootness refers to instances when a dispute has ended or was resolved before review.

Question 14

When can a court hear a case that has become moot?

Answer 14

A court may hear a moot case if: (a) the wrong is capable of being repeated; (b) the defendant voluntarily stops an offending practice; OR (c) in a class action, at least one member has an ongoing injury.

Question 15

What does the Commerce Clause grant Congress?

Answer 15

The Commerce Clause grants Congress the authority to regulate interstate commerce, foreign nations, and Indian tribes.

Question 16

What can Congress regulate under the Commerce Clause?

Answer 16

Congress may regulate: (1) channels of interstate commerce; (2) people and instrumentalities in interstate commerce; AND (3) economic activities with a substantial effect on interstate commerce.

Question 17

What is required for federal regulations on intrastate activities to be upheld?

Answer 17

Federal regulations will be upheld if there is a rational basis to conclude that the cumulative national impact has a substantial effect on interstate commerce.

Question 18

What activities cannot be aggregated for substantial effect on interstate commerce?

Answer 18

Aggregation cannot be used for activities that are not commercial or economic in nature, such as possessing a firearm in a school zone.

Question 19

What powers does Congress have regarding taxation?

Answer 19

Congress has the power to lay and collect taxes, duties, imposts, and excises, which must be geographically uniform.

Question 20

What does the 16th Amendment allow Congress to do?

Answer 20

The 16th Amendment allows Congress to collect taxes on income derived from any source.

Question 21

What is Congress’s spending power?

Answer 21

Congress has the power to spend for the common defense and general welfare, allowing it to attach conditions on federal funds.

Question 22

What are the restrictions on Congress’s spending power?

Answer 22

Restrictions include: (1) spending must be for general welfare; (2) conditions must be unambiguous; (3) conditions must relate to federal interest; (4) conditions cannot induce unconstitutional activities; AND (5) conditions cannot be coercive.

Question 23

What domestic powers does the President have?

Answer 23

The President has powers including executing laws, appointing officials, removing appointees, pardoning federal crimes, and acting as Commander in Chief.

Question 24

What are the three Youngstown circumstances for presidential power?

Answer 24

1. Acting with Congress’s authorization; 2. Acting when Congress is silent; 3. Acting against Congress’s will.

Question 25

What treaty powers does the President share with Congress?

Answer 25

The President can negotiate treaties, which must be ratified by a two-thirds Senate vote, and can enter into Executive Agreements without Senate approval.

Question 26

What is the Non-Delegation Doctrine?

Answer 26

The Non-Delegation Doctrine states that Congress cannot delegate powers it does not have to itself or its officers.

Question 27

What does the 10th Amendment state about state powers?

Answer 27

The 10th Amendment reserves all powers not granted to the Federal government to the States.

Question 28

Can Congress compel state governments to implement legislation?

Answer 28

No, Congress cannot compel states but can induce action through conditions on federal funding.

Question 29

What is the Negative Commerce Clause?

Answer 29

The Negative Commerce Clause prohibits states from passing laws that discriminate against out-of-state commerce or place an undue burden on interstate commerce.

Question 30

What constitutes a discriminatory regulation?

Answer 30

A law is discriminatory if it is facially discriminatory or has a discriminatory impact favoring in-state commerce.

Question 31

What is the Supremacy Clause?

Answer 31

The Supremacy Clause states that validly enacted federal law will always trump conflicting state law.

Question 32

What are the types of preemption?

Answer 32

Preemption can be express or implied, with express preemption occurring when federal law explicitly states exclusivity.

Question 33

What must a plaintiff show to establish state action?

Answer 33

A plaintiff must show that the constitutional violation is attributable to government action.

Question 34

What is the Incorporation Doctrine?

Answer 34

The Incorporation Doctrine applies most of the Bill of Rights to the States through the 14th Amendment.

Question 35

What does the 13th Amendment prohibit?

Answer 35

The 13th Amendment prohibits involuntary servitude, applying to both government and private actors.

Question 36

What is substantive due process?

Answer 36

Substantive due process pertains to the government's power to regulate activities under the Due Process Clauses of the 5th and 14th Amendments.

Question 37

What is the fundamental rights test?

Answer 37

When regulating fundamental rights, the government must satisfy strict scrutiny to show the law serves a compelling interest.

Question 38

What is procedural due process?

Answer 38

Procedural due process guarantees that no person shall be denied life, liberty, or property without due process of law.

Question 39

What is the Non-Fundamental Rights Test?

Answer 39

The government may regulate activities that do not constitute fundamental rights as long as it meets the rational basis test.

Question 40

What does the Due Process Clause guarantee?

Answer 40

It guarantees that no person shall be denied life, liberty, or property without due process of law.

Question 41

What are the three Mathews v. Eldridge factors for procedural due process?

Answer 41

1. The importance of the private interests being affected; 2. The risk of error under current procedures and the value of additional procedures; 3. The importance of state interests and the burdens on the government that would arise from the additional safeguards.

Question 42

What constitutes deprivation of liberty?

Answer 42

Deprivation of liberty occurs when the government deprives an individual of a freedom provided by the Constitution or statute.

Question 43

What constitutes deprivation of property?

Answer 43

Deprivation of property occurs when an individual has an entitlement that is not fulfilled.

Question 44

What does the Equal Protection Clause prohibit?

Answer 44

It prohibits the government from denying citizens equal protection of the laws.

Question 45

What must be shown to determine if a discriminatory classification exists?

Answer 45

1. The law is discriminatory on its face; 2. The law is facially neutral but applied in a discriminatory manner; 3. A discriminatory motive exists when the law is facially neutral but creates a disparate impact.

Question 46

What are the three levels of scrutiny for equal protection analysis?

Answer 46

1. Rational Basis; 2. Intermediate Scrutiny; 3. Strict Scrutiny.

Question 47

What is required under strict scrutiny?

Answer 47

The government must show that the classification is necessary to serve a compelling government interest.

Question 48

What is required under intermediate scrutiny?

Answer 48

The government must show that the classification is substantially related to an important government interest.

Question 49

What is the rational basis test?

Answer 49

The plaintiff must show that the classification is not rationally related to any legitimate government interest.

Question 50

What does the Takings Clause of the 5th Amendment state?

Answer 50

The government may take private property for public use if it provides just compensation.

Question 51

What are the two types of takings?

Answer 51

1. Possessory (per se) takings; 2. Regulatory takings.

Question 52

What is a possessory taking?

Answer 52

It occurs when the government physically takes or occupies the property.

Question 53

What is a regulatory taking?

Answer 53

It occurs when a regulation goes 'too far' and deprives an owner of all economically viable use of her property.

Question 54

What is the vested rights doctrine?

Answer 54

It protects landowners from subsequent changes in zoning if substantial construction has begun and substantial expenditures have been made in reliance on a valid permit.

Question 55

What does the Privileges and Immunities Clause prohibit?

Answer 55

It prohibits states from intentionally discriminating against non-residents concerning civil liberties and important economic activities.

Question 56

What rights does the First Amendment protect?

Answer 56

1. Freedom of speech; 2. Freedom to exercise religion; 3. Freedom of the press; 4. Freedom to peaceably assemble; 5. Right to petition the government.

Question 57

What does the Establishment Clause prohibit?

Answer 57

It prohibits the government from establishing a religion or endorsing/supporting religion.

Question 58

What must laws that discriminate against a religion satisfy?

Answer 58

They must satisfy strict scrutiny.

Question 59

What does the Free Exercise Clause prohibit?

Answer 59

It prohibits the government from interfering with the exercise of religion.

Question 60

What are content-based restrictions?

Answer 60

Government regulations regarding the content of protected speech that must satisfy strict scrutiny.

Question 61

What are content-neutral restrictions?

Answer 61

Regulations that may be imposed on the time, place, and manner of speech if they satisfy intermediate scrutiny.

Question 62

What are prior restraints on speech?

Answer 62

Attempts by the government to prohibit speech before it happens, generally disfavored and unconstitutional except in limited circumstances.

Question 63

What is a public forum?

Answer 63

A space traditionally available to the public for free speech.

Question 64

What is a designated public forum?

Answer 64

A space not traditionally available for free speech but made available by the government.

Question 65

What is a non-public forum?

Answer 65

Public places that have traditionally been limited for free speech.

Question 66

What are licensing requirements for speech in public forums?

Answer 66

Permitted if the government has an important reason for licensing and specific standards are used.

Question 67

What is expressive conduct?

Answer 67

The expression of ideas through actions that may be regulated by the government.

Question 68

What are articulated standards in licensing?

Answer 68

Articulated standards are used to grant licenses to remove discretion of the licensing body.

Question 69

When is a regulation or licensing scheme unconstitutional?

Answer 69

A regulation or licensing scheme is unconstitutional if it gives officials unfettered discretion to apply the law or scheme.

Question 70

What are the conditions for regulating expressive conduct?

Answer 70

Expressive conduct may be regulated if: (1) the government has an important purpose; (2) the purpose is independent of the suppression of speech; AND (3) the restriction is no greater than necessary to achieve that purpose.

Question 71

How is commercial speech protected under the First Amendment?

Answer 71

Commercial speech is given fewer protections. The government may regulate truthful, non-misleading commercial speech if it: (1) directly advances; (2) a substantial government interest; AND (3) it is no more extensive than necessary.

Question 72

Is false or misleading commercial speech protected?

Answer 72

False or misleading commercial speech is not protected. The government may prohibit professionals from advertising or practicing under a trade name.

Question 73

Do public school students lose their First Amendment rights?

Answer 73

Public school students do not lose their 1st Amendment rights when on school property, but schools have greater latitude to regulate speech.

Question 74

What must school officials prove to justify suppression of speech?

Answer 74

School officials must prove that the conduct would materially and substantially interfere with the operation of the school.

Question 75

Can schools force students to participate in a flag salute?

Answer 75

Schools cannot force students to participate in a flag salute if it offends their religious or political beliefs.

Question 76

What are the requirements for a government employee's speech to be protected?

Answer 76

For a government employee's speech to be protected, the employee must have spoken: (1) as a citizen; AND (2) on a matter of public concern.

Question 77

What is the two-step inquiry for government employee speech?

Answer 77

Step 1: Did the employee speak as a citizen on a matter of public concern? Step 2: Did the government entity have an adequate justification for treating the employee differently?

Question 78

What does the Supreme Court say about public employees speaking as citizens?

Answer 78

Public employees making statements pursuant to their official duties are not speaking as citizens for First Amendment purposes.

Question 79

What is the Supreme Court's stance on corporate and union political expenditures?

Answer 79

Corporations and unions have a right to engage in political expenditures under the 1st Amendment; the government cannot suppress political speech based on the speaker's corporate identity.

Question 80

Can shareholders regulate corporate political expenditures?

Answer 80

Shareholders may regulate corporate political expenditures through procedures of 'corporate democracy.'

Question 81

What makes a law unduly vague or overbroad?

Answer 81

A law is unduly vague if it does not provide reasonable notice of what is prohibited, and overbroad if it regulates more speech than is constitutionally permitted.

Question 82

Can a defendant be convicted under a vague or overbroad law?

Answer 82

A defendant cannot be convicted under a law deemed overbroad or vague, even if the speech falls within an unprotected category.

Question 83

What constitutes obscenity under the First Amendment?

Answer 83

Obscenity is not protected and is regulated if it: (1) appeals to the prurient interest; (2) is patently offensive; AND (3) lacks redeeming value.

Question 84

What is the Supreme Court's view on freedom of association?

Answer 84

The freedom of association is a fundamental right under the 1st Amendment, and the government may only regulate it if it satisfies strict scrutiny.

Question 85

What must the government prove to punish membership in a group?

Answer 85

The government must prove that: (1) the group is engaged in illegal activity; (2) the person knows of the illegal activities; AND (3) the person intends to further those activities.