Constitutional Law

Question 1

The 11^th Amendment prohibits a party from suing a state or state agency in federal court.

What are the exceptions to this?

Answer 1

• The state explicitly consents to waive its 11^th Amendment protections;
• The suit pertains to federal laws adopted under Section 5 of the 14^th Amendment;
• The suit seeks only injunctive relief against a state official for conduct in violation of the constitution or federal law; OR
• The suit seeks money damages from a state official.

Priority: HIGH

Question 2

When does a party have Standing to sue?

Answer 2

It exists when the plaintiff:

1. Personally suffered an injury in fact;
2. The injury was caused by the defendant; AND
3. The injury is redressable by a court order.

Priority: Medium

Question 3

Third-Party Standing

vs.

Organizational Standing

Answer 3

Third-party: NOT permitted, but exceptions are made when there is a close relationship between the plaintiff and 3^rd party – if it would be difficult for the 3^rd party to assert their rights or if the 3^rd party is an organization.

Organizational: An organization has standing to sue on behalf of their members if (1) the suit is related to an issue that is germane to the organization’s purpose, (2) the members would have standing to sue, and (3) the member’s participation is not necessary.

Priority: Medium

Question 4

What does Ripeness refer to?

Answer 4

Whether a case is ready to be litigated.

A case is ripe for review when there is actual harm or an immediate threat of harm to the plaintiff.

Priority: Medium

Question 5

What does Mootness refer to?

Answer 5

To instances when the dispute has ended or was resolved before review.

A court may hear a case that has ended/resolved when:

• The wrong alleged is capable of being repeated and escaping review;
• The defendant voluntarily stops an offending practice but can resume it any time; OR
• In a class action.

Priority: Medium

Question 6

Under the Commerce Clause, what may Congress regulate?

Answer 6

1. The channels of interstate commerce;
2. The people and instrumentalities that work and travel in interstate commerce; AND
3. Economic or commercial activities that have a substantial effect on interstate commerce.

Priority: Medium

Question 7

When will federal regulations regarding intrastate activities be upheld?

Answer 7

If:

1. If there is a rational basis,
2. To conclude that the cumulative national impact of the activities;
3. Have a substantial effect ON interstate commerce.

Priority: Medium

Question 8

What Amendments does Congress have the power to enforce?

Answer 8

1. 13^th Amendment (abolition of slavery).
2. 14^th Amendment (privileges, immunities, due process, equal protection, apportionment of representatives).
3. 15^th Amendment (right to vote can’t be denied on race)

*Congress CAN only prohibit behavior, Congress CANNOT define constitutional rights or change substantive law.

Priority: Medium

Question 9

What Taxing and Spending Powers does Congress have?

Answer 9

They have the power to tax and spend for the general welfare. These powers are interpreted BROADLY, and allows Congress to attach restrictions or conditions on federal funding in order to regulate areas they would otherwise not have the power to do so.

Priority: Medium

Question 10

Spending Power

What must be satisfied when Congress places conditions on States receiving federal funds?

Answer 10

The:

1. Spending must be for the general welfare;
2. Condition must be imposed unambiguously;
3. Condition must be related to federal interests in national projects or programs;
4. Condition cannot induce unconstitutional activities; AND
5. Condition cannot be so coercive to turn pressure into compulsion.

Priority: Medium

Question 11

What powers does the President have?

Answer 11

1. Faithfully execute the law;
2. Appoint ambassadors, public ministers, consuls, supreme/federal court judges, and other officers;
3. Appoint inferior officers (when the power is given to him by Congress);
4. Remove cabinet level appointees;
5. Enter into executive agreements w/o senate approval;
6. Pardon federal crimes; AND
7. Control troops as Commander in Chief.

Priority: Medium

Question 12

When does Congress have the power to delegate Legislative Powers?

Answer 12

They can so long as:

1. The powers are delegable under the Constitution; AND
2. Congress provides reasonably intelligible standards to guide the delegation.

*Congress CANNOT delegate powers it does not have.

Priority: Medium

Question 13

What is the Negative Commerce Clause?

Answer 13

State and local governments CANNOT pass laws that:

• Discriminate against out-of-state commerce; OR
• Place an undue burden on interstate commerce.

Priority: HIGH

Question 14

Negative Commerce Clause

When is a law deemed discriminatory?

Answer 14

When it is either:

• Facially discriminatory; OR
• The law has a discriminatory impact because it favors in-state commerce over out-of-state commerce. These laws are typically unconstitutional, unless:
  
  • The burden on Interstate commerce is narrowly tailored to achieve a legitimate, non-protectionist state objective; OR
  • The state/local gov’t is a “market participant.”

Priority: HIGH

Question 15

Negative Commerce Clause

When is a law deemed unduly burdensome?

Answer 15

State and local laws that place an undue burden on interstate commerce are unconstitutional when:

1. The burden on interstate commerce,
2. Is clearly excessive to the putative benefits to the state and local government.

*Courts apply this balancing test on a case-by-case basis.

Priority: HIGH

Question 16

Express Preemption vs. Implied Preemption

Answer 16

Express: When federal legislation specifically states that the federal law is exclusive.

Implied: Occurs either through:

• Direct conflict with the state law;
• Through field preemption; OR
• When the state law substantially interferes with the objective of the federal law.

*Validly enacted federal laws will always preempt conflicting state laws.

Priority: Medium

Question 17

When will a court find “state action” for private conduct?

Answer 17

When the conduct involves either:

• A traditional public function – powers traditionally and exclusively reserved to the government; OR
• When significant government involvement exists to authorize, encourage, or facilitate private conduct that is unconstitutional.

Priority: HIGH

Question 18

Substantive Due Process

Fundamental Rights Test

vs.

Non-Fundamental Rights Test

Answer 18

Fundamental: To regulate rights, government must satisfy strict scrutiny (law is necessary to serve a compelling government interest). Rights include: right to vote, right to interstate travel, and right to privacy.

Non-Fundamental: The government may regulate activities not deemed fundamental rights so long as it meets the rational basis test (law is not rationally related to a legitimate government interest).

Priority: Medium

Question 19

Procedural Due Process

Deprivation of Liberty vs. Deprivation of Property

Answer 19

Liberty: When the government deprives an individual of a freedom provided by the Constitution or statute.

Property: When an individual has an entitlement that is not fulfilled (i.e. welfare or security benefits).

*The Due Process Clause guarantees that no person shall be denied life, liberty, or property without due process of the law.

Priority: Medium

Question 20

Procedural Due Process

What are the three Matthew v. Eldridge factors?

Answer 20

The court balances:

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

Priority: Medium

Question 21

Equal Protection Clause

What must the government show under Strict Scrutiny, and when will courts apply it?

Answer 21

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

Courts will apply strict scrutiny when:

• A classification is based on a suspect class (race, origin); OR
• When the law infringes on a fundamental right for a class of people.

Priority: HIGH

Question 22

Equal Protection Clause

What must the government show under Intermediate Scrutiny, and when will courts apply it?

Answer 22

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

Courts will apply it when:

A classification is based on a quasi-suspect class (gender/sex, non-marital children, & most likely sexual orientation/gender identity)

Priority: HIGH

Question 23

Equal Protection Clause

What classes does the Rational Basis test apply to, and what must a plaintiff show regarding the classification?

Answer 23

This test applies to ALL other classes not covered under strict or immediate scrutiny (age, disability, undocumented aliens, etc.).

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

Priority: HIGH

Question 24

Takings (5th Amendment)

Possessory (per se) takings vs. Regulatory takings

Answer 24

Possessory – When the government physically takes or occupies the property (even just a small portion).

Regulatory – Three Categories:

• Depriving Owner of All Economically Viable Use – is a per se taking
• Penn Central Taking
• Conditions on Approval of a Permit (a.k.a. a Land-Use Exaction)

Priority: HIGH

Question 25

_Takings (5th Amendment)_ What are the factors for a *Penn Central* Taking?

Answer 25

To determine whether a taking occurred, courts _balance the_ *_Penn Central_* _Factors_: 1. The ***economic interest*** of the regulation on the claimant; 2. The ***extent of the interference***; **AND** 3. The ***character*** of the governmental action. Priority: HIGH

Question 26

_Takings (5th Amendment)_ When do conditions placed on the approval of permits NOT constitute an uncompensated taking under the 5^th Amendment?

Answer 26

If: 1. There is an essential nexus between the state interest and permit condition; **AND** 2. The government makes an individualized determination that the condition is roughly proportional to advancing the state interest. Priority: HIGH

Question 27

Under the Privileges and Immunities clause of Article IV of the Constitution, states CANNOT intentionally discriminate against non-residents concerning what?

Answer 27

* Civil liberties (right to vote, travel); OR * Important economic activities (ability to earn a livelihood). \*Laws will be upheld if the state is justified for the discrimination. Priority: Medium

Question 28

What does the Establishment Clause prohibit?

Answer 28

The government from establishing a religion or endorsing/supporting religion. Laws that _discriminate_ MUST satisfy strict scrutiny. Laws that _do not discriminate_ will be upheld if: 1. It has a secular purpose; 2. Its primary effect does not advance/prohibit religion; AND 3. It does not excessively entangle the gov’t with religion. Priority: Medium

Question 29

What does the Free Exercise Clause prohibit?

Answer 29

The government from interfering with the exercise of religion. Laws that interfere MUST satisfy strict scrutiny. \*Laws of general applicability that cause unintentional burdens on religion ARE constitutional, and *do not* offend the Free Exercise Clause. Priority: Medium

Question 30

_Free Speech_: Content-Based Restrictions vs. Content-Neutral Restrictions

Answer 30

**_Content-Based_**: Regulations regarding the content of protected speech (subject matter, viewpoint). Gov’t MUST satisfy _strict scrutiny_ (*narrowly tailored* to achieve a *compelling government interest* AND it used the *least restrictive means*). **_Content-Neutral_**: Gov’t may regulate the time, place, and matter of content-neutral speech if the regulation satisfies _intermediate scrutiny_ (*narrowly tailored* to achieve a *significant government interest* AND leave open *alternate channels of communication*. Priority: Medium

Question 31

_Free Speech_ Public Forum vs. Designated Public Forum vs. Non-Public Forum

Answer 31

**_Public Forum_**: Traditionally available to the public for free speech. **_Designated Public Forum_**: Not traditionally available for free speech, BUT the government chooses to make it available. Treated the same as a Public Forum. **_Non-Public Forum_**: Public spaces that have traditionally been limited for free speech. The government may regulate speech here if the regulation is reasonable AND viewpoint neutral. Priority: HIGH

Question 32

_Free Speech_: When are licensing requirements permitted?

Answer 32

If: 1. The government has an important reason for licensing; 2. Specific, articulated standards are used to grant the licenses to remove discretion of the licensing body; **AND** 3. Procedural safeguards are in place. Priority: HIGH

Question 33

_Unprotected Speech_: What are fighting words?

Answer 33

Words, which by their very utterance: * Inflict injury; **OR** * Tend to incite an immediate breach of the peace. \*The 1^st Amendment DOES NOT protect fighting words or true threats. Priority: Medium

Question 34

_Unprotected Speech_: When does speech Incite Imminent Lawless Action?

Answer 34

When it: 1. Advocates the use of force or illegality; 2. It is directed to inciting or producing imminent lawless action; **AND** 3. It’s likely to incite or produce such an action. \*Speech that Incites Imminent Lawless Action is NOT protected by the 1^st Amendment and may be outlawed. Priority: Medium

Question 35

_Unprotected Speech_: Obscenity is NOT protected under the 1st Amendment. What speech/material is characterized as obscene?

Answer 35

When: 1. It appeals to the prurient interest of an average person applying today’s community standards; 2. It is patently offensive under the laws prohibiting obscenity; **AND** 3. It lacks any serious, artistic, literary, or scientific value based on a national standard. Priority: Medium

Question 36

_Commercial Speech_: When may the government regulate truthful, non-misleading commercial speech?

Answer 36

If the regulation: 1. Directly advances; 2. A substantial government interest; **AND** 3. Is no more restrictive than necessary. \*False or misleading speech is NOT protected under the 1^st Amendment. Priority: Medium

Question 37

_Free Speech – Public Schools_ Schools are given a greater latitude to regulate speech. When are school officials justified in the suppression of speech?

Answer 37

They must prove that the conduct would ***materially and substantially*** **interfere with the operation of the school**. Priority: Medium

Question 38

_Free Speech – Gov’t Employees_ For a government employee’s speech to be Constitutionally protected, what is required?

Answer 38

The employee must speak: 1. As a citizen; **AND** 2. On a matter of public concern. \*An employee’s statements made pursuant to their official duties are NOT protected. Priority: Medium

Question 39

_Free Speech – Expressive Conduct_ When may expressive conduct or symbolic speech be regulated?

Answer 39

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. Priority: Medium

Question 40

_Free Speech – Prior Restraints_ What is a prior restraint on speech?

Answer 40

When the government attempts to *prohibit speech before it happens* through a court order or licensing requirement. \*Prior restraints are generally disfavored and unconstitutional, and court orders preventing speech MUST satisfy Strict Scrutiny. Priority: Medium

Question 41

When is a statute unduly vague or overbroad?

Answer 41

A statute is _unduly vague_ of it does not put the public on reasonable notice as to what is prohibited. A statute is _overbroad_ if it regulates more speech than is Constitutionally permitted. \*A defendant CANNOT be convicted under a law that is deemed overboard or vague. Priority: Medium

Question 42

_Freedom of the Press & Defamation_: What *additional* element is needed to prove a Defamation claim against a **public figure** or **public official**?

Answer 42

For a _Public Figure_, the plaintiff needs to prove that the defendant spoke with either: * Recklessness as to the truth of the statement; **OR** * Knowledge of its falsity. Priority: Medium

Question 43

_Freedom of the Press & Defamation_: What *additional* element is needed to prove a Defamation claim against a **private figure** speaking about a ***matter of public concern***?

Answer 43

For a Private Figure speaking about a **matter of public concern**, the plaintiff needs to prove that: The speaker was ***negligent***. Priority: Medium

Question 44

_Freedom of the Press_: The 1^st Amendment protects the press from liability when publishing what?

Answer 44

1. Truthful private facts; 2. On a matter of public concern; 3. Where such information is legally obtained; **AND** 4. There is no knowledge that any information was obtained illegally. \*The 1^st Amend. doesn’t protect the press from liability for violating generally applicable laws. Priority: Medium

Question 45

_Freedom of Association_: When may the Government punish a person’s membership in a group?

Answer 45

If it proves that: 1. The group is ***actively engaged in illegal activity*** or incites imminent lawless action; 2. The person has ***knowledge*** of the group’s illegal activities; **AND** 3. The person has ***specific intent*** of furthering those illegal activities. Priority: Medium