Constitutional

Question 1

What is encompassed within the definition of “regulation” for the purposes of review under the constitution?

Answer 1

• Affirmative regulations
• Exemptions contained within regulations.

Question 2

What are the two key questions to consider when determining a possible violation of the establishment clause?

Answer 2

1. Is the regulation neutral towards religion?
2. If not:

(a) Is there a long history of the action being accepted?

(b) Would the founding fathers have found the government action to be acceptable?

Question 3

What does the Establishment Clause prohibit?

Answer 3

Prohibits government from:
- Establishing a religion
- Endorsing/supporting a religion

Question 4

What does the Free Exercise Clause prohibit?

Answer 4

Prohibits government from interfering with the free exercise of religion.
- Includes denying citizenship rights on the bases of religious membership.

Question 5

What is a public forum?

Answer 5

A location that is typically open to the public for speech related activities.

Question 6

What is a designated public forum?

Answer 6

Location not typically made available for public speech, but government chose to make it available.

Question 7

What is a non-public forum?

Answer 7

A public location where speech is typically limited

Question 8

What is a limited forum?

Answer 8

A non-public forum that the government has decided to open to certain groups/topics.

Question 9

How are alienage classifications categorized for review under state law?

Answer 9

Categorized as a suspect class and are therefore subject to strict scrutiny.

• EXC: if the classification relates to participation in government function, which will be subject only to rational basis review.

Question 10

What is the Contracts Clause?

Answer 10

Restricts states/local governments from passing laws that interfere with existing contracts.

State law that substantially impairs a contract is presumptively unconstitutional.

It will be constitutional if it:
1. Serves an important and legitimate government interest, and
2. Is reasonable and narrowly tailored to promoting that interest.

Question 11

What is an Ex Post Facto law?

Answer 11

A law that retroactively alters the criminal law.

Question 12

Which party bears the burden of proof under rational basis review?

Answer 12

The party alleging the discrimination

Question 13

What is the 14th Amm and to whom does it apply?

Answer 13

• Substantive due process
• Procedural due process
• Equal protection

Applies to states only

Question 14

How are the rights’ of individuals protected against the federal government?

Answer 14

Via the equal protection component of the 5th Amm.

• Substantive due process
• Procedural due process
• Equal protection

Question 15

What is the essence of the equal protection clause?

Answer 15

Prevents the government from denying equal protection of the laws to specific people or groups.

The level of review imposed is based on the category of the classification in question.
- Suspect class
- Quasi-suspect class

Classification must be discriminatory.

Question 16

What are the three ways in which a classification can be discriminatory?

Answer 16

• Facially
• Discriminatorily applied
• Discriminatory motive (disparate impact)

Question 17

What is the essence of the due process clause?

Answer 17

Prevents the government from denying any person, life, liberty, or property without due process of law.

Question 18

What is substantive due process?

Answer 18

Prevents the government from regulating activities without justification.

Level of justification required depends on the fundamentality of the right being regulated.

Question 19

What are the fundamental rights and what standard of review are government regulations on these rights subject to?

Answer 19

Vote
Travel
Privacy
- Mary
- Procreate
- Contraceptives
- Raise children
- Keep family together
- Maintain child custody

= Strict scrutiny

Question 20

What standard of review are government regulations on non-fundamental rights subject to?

Answer 20

= Rational basis review

Question 21

What classifications are considered Suspect?

Answer 21

• Fundamental rights
• Race
• Nationality
• Alienage under State law

Question 22

What classifications are considered Quasi-Suspect?

Answer 22

• Gender
• Sex
• Non-marital children
• Sexual orientation
• Gender identity

Question 23

When will a grant of land by a State to a private party constitute State Action for the purposes of Constitutional application?

Answer 23

Requires some affirmative act/authorization/encouragement from the state.

Question 24

When will a Federal Law on a particular subject preempt State law?

Answer 24

When it is intended to occupy the field.
- I.e. not if it addresses only one type of harm that may arise out of the subject matter.

There is a direct conflict between the state and federal law.

State law prevents the achievement of federal objectives identified in the federal law.

Question 25

How can Congress alter the Federal Government's judicial power?

Answer 25

Congress is not allowed to redefine the nature of judicial power. - E.g. By, in effect, altering the case or controversy requirement. - Congress cannot enact legislation that in effect requires a federal court to give an advisory opinion.

Question 26

What is the Spending Power

Answer 26

Allows Congress to attach conditions upon their grant of federal funds to States

Question 27

What is the Commerce Power?

Answer 27

Congress may use their power to regulate commerce between States

Question 28

How is federal control over the armed forces apportioned?

Answer 28

Congress has the power to appropriate funds to raise the armed forces The President has the power to deploy the armed forces against enemies foreign or domestic. - Note, President does not have the power to declare war.