Constitutional Law

Question 1

What article of the constitution grants judicial power to the Supreme Court and such inferior courts that Congress made establish?

Answer 1

Article 3

Question 2

What are the cases and controversies requirements that act as limits on the federal judicial power?

Answer 2

No advisory opinions, standing, ripeness, mootness, political question doctrine.

Question 3

Can a federal court issue an opinion on abstract or hypothetical questions?

Answer 3

No. There must be a real and immediate present or future danger to the interests of the parties.

Question 4

Can federal courts issue declaratory judgment?

Answer 4

Declaratory judgment are permitted. A declaratory judgment is a decision by a court on what the legal effect of a proposed course of conduct by one or both of the parties would be. Even with declaratory judgments, however, a specific, concrete controversy must exist.

Question 5

A plaintiff must have appropriate standing to file a suit in federal court. What does standing generally require?

Answer 5

Injury, causation, redressability.
The fundamental question driving standing is whether the plaintiff is the proper party to bring the lawsuit.
Redressability= plaintiff must have a concrete stake in the outcome of the case such that a favorable decision will likely remedy the injury.

Question 6

Third-party standing is not permitted unless the plaintiff independently meets the other standing requirements and

Answer 6

• Has a close relationship with the injured third party
• The injured third-party is unlikely to be able to assert her rights or
• An organization may Sue on behalf of its members if individual members have standing to sue, interests are related to the purpose of the organization, and neither claims or relief requires participation of individual members.

Question 7

Is there standing in fed court for general grievances?

Answer 7

The Supreme Court has denied standing for general grievances.

Question 8

What is a general grievance?

Answer 8

A general grievance is a Plaintiff suing solely as a citizen or taxpayer interested in having the government obey the law.

Question 9

What is the exception to the rule that there is no standing for general grievances

Answer 9

A taxpayer may challenge congressional taxes or expenditures pursuant to a federal statute as violating the establishment clause

Question 10

What are the exceptions to the general rule that there must be a live controversy at all stages of review?

Answer 10

• Capable of repetition yet evading review
• Voluntary cessation (D free to resume)
• Class action suits (class action will jot be dismissed as long as at leadt one member has ongoing injury)

Question 11

What types of cases will be dismissed as non-justiciable political questions?

Answer 11

• Republican form of government clause of article IV
• Challenges to the president’s foreign policy
• Challenges to impeachment and removal process
• Congressional standing qualifications

Question 12

What types of cases are not considered political questions

Answer 12

• legislative apportionment
• gerrymandering
• Presidential papers and communications

Question 13

What is abstention

Answer 13

Abstention is when a federal court has jurisdiction but the court nevertheless refrains from exercising that jurisdiction.

Question 14

When disposition of a case rests on unsettled questions of state law, wil federal courts resolve constitutional challenges?

Answer 14

Federal courts will temporarily abstain from resolving constitutional challenges when disposition of a case rests on unsettled questions of state law.

Question 15

Over what kind of cases does the Supreme Court have original jurisdiction?

Answer 15

The supreme court has original jurisdiction over controversies between state governments and actions involving ambassadors. The Supreme Court has only appellate jurisdiction over other kinds of cases.

Question 16

Congress has permitted federal district courts to also exercise original jurisdiction over

Answer 16

All actions within the supreme court’s original jurisdiction except for those between states. This means that the lower federal courts can also exercise jurisdiction over actions involving ambassadors.

Question 17

What are the limits on the supreme court’s appellate jurisdiction?

Answer 17

• Generally, the Supreme Court may only hear a case after there has been a final judgment.
• Congress has the authority over the appellate jurisdiction of the supreme court and can strip the Supreme Court of its appellate jurisdiction to hear particular types of cases but Congress cannot exercise this power in a manner that interferes with the establishment of a supreme and a uniform body of federal constitutional law.

Question 18

What is the documentation sent to the Supreme Court to request that the Supreme Court review a case

Answer 18

Writ of Certiorari

Question 19

Can the Supreme Court deny a writ of Certiorari?

Answer 19

The Supreme Court has complete discretion and deciding whether to grant a writ of certiorari and hear a case on its merits.

Question 20

The Supreme Court may only review final judgments and decrees from the highest state courts if

Answer 20

The case calls into question the constitutionality of a federal law, federal treaties, or state law, or whether a state law violates a federal law.

Question 21

Does the Supreme Court have appellate jurisdiction over decision by the highest court of a state when that decision is supported by state law grounds that are independent of federal law and adequate to sustain the result in the case?

Answer 21

No

Question 22

When does a Supreme Court have mandatory appellate jurisdiction?

Answer 22

The Supreme Court must hear all cases that come before the court on direct appeal. However, the only permitted direct appeal to the Supreme Court is a decision by a three-judge federal District Court panel granting or denying injunctive relief.

Question 23

What is the 11th amendment limitation on federal court review?

Answer 23

The 11th amendment prohibits a federal court from hearing suits against a state government commenced by a private citizen or foreign government

Question 24

Does the 11th amendment bar actions against state governments for injunctive or declaratory relief where the state is named as a party?

Answer 24

Yes

Question 25

Does the 11th amendment bar actions for damages against state governments, including suits by a citizen against her own state?

Answer 25

Yes

Question 26

Does the 11th amendment bar actions against state officials that would result in retroactive damages being paid from the state treasury?

Answer 26

Yes

Question 27

Does the 11th amendment bar action against a state government that would result in the divestment of the state’s ownership of land?

Answer 27

Yes

Question 28

A state government can be named as a defendant in federal court only under the following exceptions:

Answer 28

• The defendant state expressly consents and waives sovereign immunity.
• Actions against state officials for injunction to stop the violation of a federal law.
• Actions for damages against state officer for personal liability if damages will be paid from the officer’s own pocket
• Actions against local governments or municipalities
• Actions by the United States or other state governments against a state
• Actions under section 5 of the 14th amendment, which gives Congress the power to enforce the provisions of the 14th amendment by appropriate legislation.
• Bankruptcy proceedings

Question 29

When is congressional legislation appropriate within the meaning of section 5 of the 14th amendment

Answer 29

Congressional legislation is appropriate within the meaning of section 5 if

• It seeks to prevent or remedy actions by state or local governments that violate provisions of the 14th amendment and
• Its requirements are congruent with and proportional to the 14th amendment violation it addresses

Question 30

States enjoy sovereign immunity from certain lawsuits that is not derived from the 11th amendment but instead is rooted in state sovereignty. What types of suits are barred by the doctrine of sovereign immunity?

Answer 30

The doctrine of sovereign immunity bars private suits against state governments in state court even when the suit is based on federal law.
The doctrine of sovereign immunity bars private complaints against a state before a federal administrative agency.

Question 31

When a court reviews the constitutionality of a state action, it will likely apply one of three key standards of review. What are the standards?

Answer 31

Rational basis, intermediate scrutiny, strict scrutiny

Question 32

To survive rational basis review, the challenged action must be found to be

Answer 32

Rationally related to a legitimate government interest

Question 33

To survive intermediate scrutiny, the challenged action must be found to be

Answer 33

Substantially related to an important government purpose

Question 34

To survive strict scrutiny, be challenged action must be found to be

Answer 34

Necessary to achieve a compelling government purpose. There are no reasonable non-discriminatory means that would achieve the same objective.

Question 35

What article of the constitution sets forth the legislative power

Answer 35

Article I

Question 36

States and local governments have general police power, but there is no general federal police power except for

Answer 36

The military, federal lands and territories, Native American reservations, and the District of Columbia.

Question 37

What is the necessary and proper clause

Answer 37

Under the necessary and proper clause, Congress may use any means not prohibited by the constitution to carry out its authority.

Question 38

Taxing and spending power?

Answer 38

Congress has the power to tax and spend for the common defense and general welfare

Question 39

Absent a specific restriction, taxes will be upheld if

Answer 39

The taxes bear some reasonable relationship to revenue production, or if Congress has independent authority to regulate the activity being taxed. Taxes are generally upheld.

Question 40

What are some limits on the taxing power

Answer 40

• Indirect taxes must be uniform
• Direct taxes must be in proportion to national census.
• No power to tax exports

Question 41

Indirect taxes?

Answer 41

Taxes on an activity

Question 42

Direct taxes?

Answer 42

Taxes imposed directly on property or a person

Question 43

What if Congress expressly labels a tax measure as a penalty

Answer 43

The fact that Congress expressly labels a measure as a penalty does not prevent the measure from being upheld as a valid tax if the measure actually functions in a manner that resembles a tax

Question 44

The commerce clause?

Answer 44

Article 1, section 8 states that Congress has the power to regulate commerce with foreign nations, among the states, and with Native American tribes. The commerce clause grants Congress the exclusive power to regulate the channels and instrumentalities of commerce and other activities that have a substantial effect on interstate commerce.

Question 45

Channels of interstate commerce?

Answer 45

The places were commerce occurs, e.g. highways, waterways, Internet

Question 46

Instrumentalities of commerce?

Answer 46

Anything that facilitates commerce, e.g. trucks, planes, Internet

Question 47

Congress is permitted to regulate intrastate activity only if

Answer 47

Such activity is economic or commercial and there is a rational basis for concluding that, in the aggregate, the activity substantially affects interstate commerce. The Supreme Court has held that even ostensibly personal intrastate economic activities can this be regulated under the commerce clause.

Question 48

May Congress use its power under the commerce clause to compel someone who is not already active in a commercial market to enter that market by requiring that person to purchase a product?

Answer 48

No

Question 49

Congress is prohibited from regulating non-commercial or noneconomic activity unless

Answer 49

Congress can factually demonstrate that the activity has a substantial economic affect on interstate commerce. Substantial economic effect, however, cannot be based on cumulative impact.

Question 50

Impeachment and removal power?

Answer 50

Congress has the power to impeach and remove the president, vice president, federal judges, and other officers of the United States for treason, bribery, or high crimes and misdemeanors.

Question 51

What does impeachment require?

Answer 51

Impeachment by the house requires a majority vote. But impeachment does not remove the president, vice president, federal judge, or other officer of United States from office.

Question 52

What does removal from office of an impeached official require?

Answer 52

Conviction in the Senate requires 2/3 vote. Only then will an impeached official be removed from office.

Question 53

War powers?

Answer 53

Congress has the power to declare war, tax and spend for the national defense, institute economic or social control during wartime, and establish military courts and tribunals.

Question 54

Property power?

Answer 54

Congress has the power to dispose of and make rules for territories and other properties of the United States, e.g. prohibiting hunting on federal land.

Question 55

Power over citizenship?

Answer 55

Congress has the power to establish a uniform rule of naturalization. Congress also has exclusive control over naturalization and denaturalization, which the Supreme Court has determined gives Congress plenary power over aliens. Although the constitution gives Congress plenary power to control immigration, states may exercise their police powers to regulate the conduct of aliens within their borders, unless the regulation is preempted by federal law or otherwise violates the Constitution.

Question 56

Congress is prohibited from taking away the citizenship of any citizen without her consent. As such a loss of citizenship may only occur if:

Answer 56

• Fraud in naturalization process (though technically not loss)
• Voluntary relinquishment of citizenship

Question 57

Can aliens be denied entry for any reason

Answer 57

Yes. Aliens have no rights to enter the United States so they can be denied entry for any reason.

Question 58

Must aliens be provided with notice and hearing prior to deportation?

Answer 58

Resident aliens must be provided with notice and hearing prior to deportation.

Question 59

Power to regulate elections?

Answer 59

Congress has the power to protect eligible voters from discrimination in any state or federal election.

Question 60

The 15th amendment prohibits discrimination against a voter based on

Answer 60

Race, color, or previous condition of servitude.

Question 61

The 19th amendment prohibits discrimination against a voter based on

Answer 61

Gender.

Question 62

The 24th amendment prohibits discrimination against a voter

Answer 62

Based on payment of a poll tax.

Question 63

The 26th amendment prohibits discrimination against a voter

Answer 63

Based on age.

Question 64

Voters rights act

Answer 64

Provides for sanctions for voter discrimination

Question 65

Speech or debate clause?

Answer 65

Members of both houses of Congress shall be privilege from any liability for any speech or debate that takes place in either house.
Exceptions: Treason, felony, breach of the peace. Bribes. Speech is made outside of Congress. Republication of defamatory statements originally made in Congress.

Question 66

Power to borrow money?

Answer 66

Congress has the power to borrow money on the credit of the United States

Question 67

Postal power?

Answer 67

Congress has the power to establish post offices and post roads. This power has been interpreted as giving Congress monopoly power. Congress make validly classify and place reasonable restrictions on the use of mail but may not deprive any citizen or group of citizens of the general privilege to use the mail or regulate the mail in a manner that violates the first or fourth amendments.

Question 68

Power to coin money and fix weights/measures

Answer 68

Congress has the power to coin money and regulate the value thereof. Congress also has the power to fix the standard for weights and measures.

Question 69

Bankruptcy power?

Answer 69

Congress has the power to establish uniform laws on the subject of bankruptcies throughout the United States. Note, however, that this power is non-exclusive and states may reg in bankruptcy so long as the state bankruptcy laws do not conflict with the federal rules.

Question 70

Patent and copyright?

Answer 70

Congress has the power to regulate and control patents and copyrights

Question 71

Admiralty?

Answer 71

Congress has the power to regulate all navigable waterways

Question 72

Can congress requires states to enact laws or to administer federal law? Why?

Answer 72

The Supreme Court has held that the concept of federalism embedded in the 10th amendment disables Congress from requiring states to enact laws or to administer federal law.

Question 73

10th amendment?

Answer 73

All powers not granted the United States, nor prohibited to the states, are reserved to the states or the people.

Question 74

Congress cannot compel state legislative or regulatory activity, but may induce state action via strings on grants when

Answer 74

• Conditions must be expressly stated
• Conditions must relate to the purpose of the program AND
• Pressure must not turn into compulsion

Question 75

May Congress prohibit harmful commercial activity by state governments

Answer 75

Yes

Question 76

Congress may delegate legislative powers to the executive or judicial branch as long as

Answer 76

Intelligible standards are set and the power is not uniquely confined, e.g. the power to declare war or impeach

Question 77

Can congress delegate the power to enforce the laws to itself or its officers

Answer 77

Congress is prohibited from delegating the Power to enforce the laws to itself or its officers. As such, Congress may not appoint members of a body with enforcement powers.

Question 78

What is bicameralism

Answer 78

Passage by both the House and the Senate

Question 79

What is presentment

Answer 79

Presenting a bill to the president to sign or veto in its entirety

Question 80

What is a legislative veto

Answer 80

The legislative veto is an attempt by Congress to overturn an executive action without bicameralism or presentment. Legislative vetoes of executive action are unconstitutional. Congress may overturn the action of the executive branch only by enacting a statue.

Question 81

What article sets forth the executive power

Answer 81

Article II

Question 82

What is a treaty

Answer 82

A treaty is an agreement between the United States and a foreign government

Question 83

Requirements for a treaty

Answer 83

Treaties must be negotiated by the president and ratified by 2/3 of the Senate

Question 84

If a treaty conflicts with state law what law prevails

Answer 84

Treaties are federal law and therefore preempt conflicting state law under the doctrine of federal preemption

Question 85

If a treaty conflicts with federal law which prevails?

Answer 85

The one adopted most recently prevails

Question 86

If a treaty conflicts with the US constitution what prevails

Answer 86

A treaty that conflicts with the US Constitution will be declared invalid under the supremacy clause

Question 87

What is an executive agreement?

Answer 87

An executive agreement is an agreement between the United States and a foreign country that may be used for any purpose

Question 88

What are the requirements for an executive agreement

Answer 88

Executive agreements become effective when signed by the president and head of the foreign nation. Unlike a treaty, no Senate ratification is required for an executive agreement.

Question 89

If an executive agreement conflicts with state law what law prevails

Answer 89

The executive agreement prevails over conflicting state laws

Question 90

President’s foreign affairs powers

Answer 90

Treaties, executive agreements, deployment of troops overseas

Question 91

President’s domestic powers

Answer 91

• Take care clause
• Appointment power
• Removal power
• Presidential immunity
• Executive privilege
• Presidential pardon
• Veto power

Question 92

Take care clause

Answer 92

While the president does not have the power to make the laws, the president has a duty to take care that the laws be faithfully executed, i.e., the president has no inherent constitutional authority to suspend the enforcement of the laws.

Question 93

President’s appointment power?

Answer 93

The president appoints all ambassadors, other public ministers, and consuls, judges of the Supreme court, and all other officers of United States, whose appointments are not otherwise provided for with the advice and consent of the Senate. Any effort by the legislative branch to limit the president to a list of nominees violates the president’s power to nominate principal officers.

Question 94

Does the president appoint inferior officers?

Answer 94

Congress may vest the appointment of inferior officers in the president alone, in the lower federal courts, or in the heads of executive departments.

Question 95

What are inferior officers?

Answer 95

Inferior officers are those who may be fired

Question 96

Can congress delegate appointment powers to itself or its officers?

Answer 96

No

Question 97

President’s removal power?

Answer 97

Unless the removal power is limited by congressional statute, the president has the power to remove any officer of the executive branch.

Question 98

Congress may limit the president’s removal power if

Answer 98

• The office is one in which independence from the president is desirable AND
• Removal is not entirely prohibited

Question 99

Presidential immunity?

Answer 99

The president has absolute immunity from civil suits for monetary damages for actions taken while in office. There is no such presidential immunity for actions taken prior to taking office, however.

Question 100

Executive privilege?

Answer 100

There is an executive privilege for presidential memos and conversations, but this privilege must yield to other important government interests.

Question 101

Presidential pardon?

Answer 101

The president has the power to pardon any person accused or convicted of federal crimes. This applies only to criminal liability and applies before, during, and after trial. The president may not pardon a person for offenses that resulted in impeachment.

Question 102

Veto power?

Answer 102

Every act of Congress must be approved by the president before taking effect unless the veto is overridden by 2/3 vote of both the House and the Senate.

Question 103

Can a president veto part of a bill and sign the rest into law?

Answer 103

No. Line item vetos are unconstitutional.

Question 104

Pocket veto?

Answer 104

If the president fails to exercise her veto power within 10 days, the bill becomes a law if Congress is in session or it is automatically vetoed if Congress is not in session.

Question 105

Tripartite formula of the steel seizure case

Answer 105

Under the tripartite formula, the president‘s power is at its Apex when he acts pursuant to power given him by Congress. It is lessened if there is no congressional legislation on the matter. And it is at its lowest when he is acting in the face of congressional legislation affirmatively prohibiting the president from acting. The US Supreme Court has said that when the president acts in the face of congressional disapproval, he may do so only if the power he exercises is vested in him alone by the constitution and denied to Congress. Where he acts in the face of congressional Silence on a matter, the action will likely be approved the act is within the president’s power.

Question 106

What article provides that the constitution and law made pursuant to it are the supreme law of the land?

Answer 106

Article VI

Question 107

A state may regulate more extensively than a federal statute so long as

Answer 107

This does not frustrate the objective of the federal statute.

Question 108

Express preemption?

Answer 108

Express preemption occurs when the federal law expressly states that it is the only regulation allowed and state regulation is prohibited. The federal statute will expressly state that federal law is exclusive in the area. Note, in the environmental law context, it is acceptable for states to establish standards that are stricter than federal law, unless clearly prohibited by Congress.

Question 109

Implied preemption Can occur In one of three ways. What are they?

Answer 109

• If the federal law is in direct conflict with state law, the state law will be invalidated.
• A state law will be invalidated if it substantially interferes with a federal objective. For example, federal employees are immune from state laws that interfere with their obligation to carry out an authorized function.
• If Congress clearly conveys an intent that federal law be the only source of regulation in a given issue area than any state law in that area is preempted

Question 110

May states tax federal government activity?

Answer 110

States may not tax federal government activity. It is unconstitutional to pay state tax out of the federal treasury.

Question 111

May states regulate federal activities?

Answer 111

States may not regulate federal activities. This immunity applies to the United States government and federal employees acting in the course of their federal duties.

Question 112

Dormant commerce clause

Answer 112

If Congress has not acted, a state or local government may regulate local aspects of interstate commerce, unless the state or local laws discriminate against out-of-staters or place an undue burden on interstate commerce.
This rule is inferred from the grant of power to Congress in the commerce clause to regulate interstate commerce.

Question 113

A state or local law that discriminates against out-of-staters is protectionist and unconstitutional unless

Answer 113

• It is necessary to achieve an important, non-economic state interest. Necessary means there are no reasonable non-discriminatory means that would achieve the same objective.
• Congress may exercise its authority under the commerce clause to permit a state regulation that would otherwise violate the dormant commerce clause as long as the congressional legislation unmistakably grants such permission.
• A state or local government may prefer its own citizens when acting as a market participant

Question 114

What is the test for whether a law places an undue burden on interstate commerce

Answer 114

It is a balancing test in which the undue burden on interstate commerce will be weighed against the benefits of the law to the state. If the burdens outweigh the benefits, the law will be struck down as unconstitutional.

Question 115

What is the privileges and immunities clause of article IV

Answer 115

No state may discriminate against non-residents with respect to privileges and immunities.

Question 116

The privileges and immunities clause only protects which rights

Answer 116

Civil liberties or fundamental economic activities that affect one’s ability to earn a livelihood.

Question 117

Does the privileges and immunities clause protect corporations and aliens?

Answer 117

The privileges and immunities clause does not protect corporations and aliens.

Question 118

Exceptions to the privileges and immunities clause general rule that no state may discriminate against non-residents

Answer 118

A state or local law may discriminate against non-residents if the state has a substantial justification for the discrimination, the non-residents are a peculiar source of the evil the law was enacted to remedy, and the state law bears a substantial relationship to the problem the law was an acted to remedy and there are no reasonable non-discriminatory means that would achieve the same objective.

Question 119

Privileges or immunities clause of the 14th amendment

Answer 119

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. This clause has been construed to only relate to freedom to travel.

Question 120

What is the four part test the Supreme Court has set out for state or local taxes on interstate commerce to be valid under the commerce clause

Answer 120

A state or local government is prohibited from using its tax system to discriminate against out of state competition in an effort to benefit local businesses.
To be valid, the state or local tax must be applied to an activity that has a substantial Nexus with the taxing state. This requires significant or substantial activity within the tax in the state.
To be valid, the state or local tax must be fairly abortion to activities actually taking place in the taxing state. AND
To be valid, the state or local tax must be fairly related to services provided by the taxing state.

Question 121

The constitution generally only applies to government action. Congress, however, may apply the constitution to private action via statute in certain situations:

Answer 121

• Congress may prohibit private race discrimination under section 2 of the 13th amendment.
• Congress may also apply the constitutional norm of equality to private conduct under the commerce clause, i.e., to prohibit private racial discrimination that has a substantial effect on interstate commerce.
• Congress may not regulate private conduct under section 5 of the 14th amendment. This section only applies to state action.

Question 122

What is the public function exception to the state action requirement?

Answer 122

The constitution applies to private entities when they act in a way that you would expect a government to do, i.e., the private entity is performing a task that has been traditionally and exclusively performed by the government, e.g., administering elections, managing public parks, company towns, etc.

Question 123

What is the entanglement exception to the state action requirement

Answer 123

The entanglement exception says that an entity must comply with the constitution if the government has commanded, authorize, encourage, or facilitated the unconstitutional conduct. Either the government must stop commanding, authorizing, encouraging, or facilitating the unconstitutional contact, or the private entity must cease the unconstitutional conduct.

Question 124

Where has the supreme court found that the government has commanded, authorize, encourage, or facilitated the unconstitutional conduct?

Answer 124

Courts enforcing racially restrictive covenants, government leasing space to a private entity that racially discriminates, government providing free textbooks to schools that racially discriminate, private entity regulating interscholastic sports within a state.

Question 125

Where has the Supreme Court found that the government has not commanded, authorize, encourage, or facilitated the unconstitutional conduct?

Answer 125

Government subsidy, NCAA order suspension of basketball coach at State University, private club with state liquor license racially discriminates, accreditation, regulation and partial funding of university.

Question 126

Does the bill of rights apply to the states?

Answer 126

The Bill of Rights only applies directly to the federal government. The Bill of Rights is, however, applicable to state and local governments through incorporation of the due process clause of the 14th amendment.

Question 127

Which of the following rights in the Bill of Rights has not been incorporated against the states?

Answer 127

The right to not have a soldier quartered in your house. The right to grand jury indictment in criminal cases. The right to a jury trial and civil cases.

Question 128

Due process and equal protection levels of scrutiny

Answer 128

Rational basis test, intermediate scrutiny, strict scrutiny

Question 129

Burden of proof with rational basis test

Answer 129

Burden of proof is on the challenger. The Challenger must either show that there is no conceivable legitimate purpose or that the law is not rationally related to that purpose.

Question 130

Burden of proof with intermediate scrutiny

Answer 130

The burden of proof is on the government. The government must show that the law is substantially related to an important government interest.

Question 131

Burden of proof with strict scrutiny

Answer 131

The burden of proof is on the government. The government must show that the law is narrowly tailored to serve a compelling government interest.

Question 132

Under the due process clause, the government cannot

Answer 132

Deprive a person of life, liberty, or property without due process

Question 133

What two functions does the due process clause serve

Answer 133

It imposes certain procedural requirements on the government before it may deprive a person of life, liberty, or property.
It limits the substantive power of the government to regulate certain areas of life.

Question 134

The government must provide what kind of process before it may deprive a person of life, liberty, or property.

Answer 134

Fair

Question 135

Can there be a due process violation if the injury was caused by the government’s negligence?

Answer 135

There is no procedural due process violation if the injury was caused by the governments negligence. The action by the government must be intentional or at the very least reckless.

Question 136

For there to be a procedural due process violation in an emergency situation, the government’s conduct must

Answer 136

Shock the conscience. Basically, there will not be liability in emergency situations unless the government acted with the intent of causing the harm to the victim.

Question 137

Procedural due process and adult institutionalization

Answer 137

Requires notice and hearing before institutionalization, unless it is an emergency.

Question 138

Procedural due process and child institutionalization

Answer 138

Requires a screening by a neutral factfinder

Question 139

Is damage to a person’s reputation by itself a deprivation of liberty

Answer 139

No. Damage to a persons reputation by itself is not a deprivation of liberty.

Question 140

Writ of habeas corpus

Answer 140

A habeas corpus petition is a civil suit for the release of a prisoner who has been unlawfully imprisoned. A writ of habeas corpus brings the prisoner before the court and requires that the custodian present proof of authority so the court can determine whether or not the custodian has lawful authority to detain the prisoner.

Question 141

For an individual to succeed in an action for the loss of property, what is required

Answer 141

Loss of an entitlement.

Question 142

Entitlement?

Answer 142

A reasonable expectation of continued receipt of a benefit, e.g., a public employee has a property interest in her employment if the employee can be fired only for cause.

Question 143

How do courts determine if a prior evidentiary hearing is required and if it is, the extent of the procedural requirements of such a hearing to comply with procedural due process?

Answer 143

The court will apply a balancing test and consider the private interest of the individual affected by official action, risk of erroneous deprivation, the probable value of additional or substitute procedural safeguards, and the government’s interests.

Question 144

What is required for termination of welfare benefits to comply with procedural due process

Answer 144

Pre-termination notice and hearing

Question 145

What is required for termination of Social Security or disability benefits to comply with procedural due process

Answer 145

Post termination notice and hearing

Question 146

What is required for pre-judgment attachment for government seizure of assets to comply with procedural due process

Answer 146

Seizure must be preceded by notice and hearing except an exigent circumstances. The government mat seize property used in illegal activity even if the actual owner of the property is innocent.

Question 147

What is required under the due process clause when an American citizen is detained as a terrorist or enemy combatant?

Answer 147

Due process

Question 148

What is required for permanent termination of parental custody to comply with procedural due process?

Answer 148

Notice and hearing

Question 149

What is required for punitive damages to comply with procedural due process

Answer 149

Instructions to jury and judicial review. Grossly excessive punitive damages are unconstitutional.

Question 150

What is required for discipline by public school to comply with procedural due process

Answer 150

Notice of charge and opportunity to explain. Corporal punishment does not require due process.

Question 151

What is a bill of attainder

Answer 151

A bill of attainder is a legislative act that inflict punishment unnamed individuals or on easily identifiable members of a group.

Question 152

Our bills of attainder constitutional

Answer 152

No. The United States Constitution forbid both the federal and state governments from enacting bills of attainder. Punishment here is not limited to criminal penalties.

Question 153

Substantive due process protects

Answer 153

Economic liberties and fundamental rights

Question 154

Substantive due process is violated if the government contact is not pass what test

Answer 154

Rational basis test

Question 155

What is the contracts clause

Answer 155

State or local governments may not impair existing contracts.

Question 156

State or local legislation that substantially impairs an existing private contract is invalid unless it

Answer 156

• Serves an important and legitimate public interest and

- Is a reasonably and narrowly tailored means of promoting that interest

Question 157

State or local government interference with Government contracts must meet what standard

Answer 157

A strict scrutiny standard

Question 158

The ex-post Facto clause applies to what type of case

Answer 158

Criminal

Question 159

May a law retroactively punish actions that were lawful when committed or retroactively increase the punishment for crime?

Answer 159

No. Retroactive criminal liability is unconstitutional.

Question 160

When is Retroactive civil liability, i.e., action already committed but final judgment not rendered, permitted

Answer 160

Retroactive civil liability is permitted if the rational basis standard is satisfied. Congress may change federal civil statutes and may direct federal courts to apply those changes in all actions in which a final judgment has not been rendered.

Question 161

The takings clause of 5th and 14th amendments?

Answer 161

The government may take private property for public use if it provides just compensation. A taking may be either possessory or regulatory.

Question 162

What is a possessory taking?

Answer 162

A possessory taking occurs when the government confiscates or physically occupies a person’s property. Such processory action is always considered a taking.

Question 163

What is a regulatory taking?

Answer 163

The government regulation that eliminates the investment-backed expectation and economic value of an individual’s property is a taking within the meaning of the fifth/14th amendment for which the government must pay just compensation, regardless of the reason for the regulation. A court must balance the economic impact of the regulation on the claimant, the extent to which the regulation has interfered with distinct investment backed expectations, and the character of the governmental action.

Question 164

Is a decrease in value sufficient to find a regulatory taking?

Answer 164

A mere decrease in value is not sufficient to find a regulatory taking.

Question 165

Government restrictions on development must be justified by what or there will be a taking

Answer 165

Government restrictions on development must be justified by a benefit that is roughly proportional to the burden imposed or there will be a taking. If the benefit is proportional to the burden, then there is no regulatory taking. If the burden is excessive in relation to the benefit, then there is a regulatory taking.

Question 166

May a property owner bring a takings challenge to regulations even if those regulations existed when the property was acquired?

Answer 166

Yes. There is no requirement that the regulation be enacted subsequent to acquisition.

Question 167

Is temporary denial of use of property a taking?

Answer 167

It is not a taking if the government’s action is reasonable.

Question 168

For either a possessory or regulatory taking to be held constitutional it must be for what kind of use

Answer 168

Public. The public use requirement is satisfied if the government acts under a reasonable belief that the taking will benefit the public. Very broad definition of public use.

Question 169

How is just compensation measured under the takings clause

Answer 169

Just compensation is the fair market value measured in terms of loss to owner.

Question 170

What happens if there was an invalid taking?

Answer 170

Terminate the government regulation and pay the owner for damages that accrued while the invalid regulation was in affect.

Question 171

When is equal protection invoked

Answer 171

Equal protection is invoked when a law treats one person or class of persons differently from others

Question 172

What are the constitutional provisions of equal protection?

Answer 172

The due process clause of the fifth amendment applies equal protection to the federal government, and the equal protection clause of the 14th amendment applies equal protection to the states.

Question 173

For race and national origin classifications what level of scrutiny

Answer 173

Strict scrutiny

Question 174

What must facially neutral laws have for an equal protection claim based on race and national origin classification?

Answer 174

Facially neutral laws must have both discriminatory impact and discriminatory intent.

Question 175

Are racial classifications that benefit minorities permitted to remedy past discrimination?

Answer 175

The government must prove the means chosen are necessary to achieve a compelling government interest. The compelling government interest can be to remedy clearly proven past discrimination, diversified student body, etc.

Question 176

What do you numerical set-asides for minorities require

Answer 176

Numerical set-asides require clear proof of past discrimination

Question 177

Is unintentional segregation in public school systems constitutional?

Answer 177

Only intentional segregation is unconstitutional.

If established in a racially neutral manner, racial imbalance in public schools is not unconstitutional.

Question 178

The colleges and universities use race as one factor among many to enhance diversity?

Answer 178

Colleges and universities may use race as one factor among many to enhance diversity because they have a compelling interest in having a diverse student body. Quotas or set-asides or points awarded to applicants solely on the basis of race are unconstitutional. Note, in 2014, the Supreme Court held that as states voters are free to outlaw the use of race as a factor in college admissions.

Question 179

In both civil and criminal cases, the discriminatory use of peremptory challenges on the basis of race by either the defense or the prosecution violates what?

Answer 179

Equal protection and is unconstitutional.

Question 180

Rule on racial gerrymandering

Answer 180

Race cannot be a predominant factor in drawing boundaries of a voting district unless the district plan meets strict scrutiny.

Question 181

What does alienage mean

Answer 181

Not having US citizenship

Question 182

Generally strict scrutiny is used for alienage classification. However, in some situations, discrimination against non-citizens is reviewed under rational basis. What are these situations?

Answer 182

• Federal discrimination against aliens.
• Alienage classifications that restrict the right to participate in functions that are central to self government and the democratic process, e.g. voting, running for office, serving on a jury, becoming a police officer, being a teacher.
• Undocumented aliens are not considered a suspect class so state laws that discriminate against this group are reviewed under rational basis. However, the supreme court applied intermediate scrutiny and held that undocumented alien children cannot be denied free public school education.

Question 183

Level of scrutiny for gender classifications

Answer 183

Intermediate scrutiny, i.e. the law must be substantially related to an important government purpose. AND
The Supreme Court also requires an exceedingly persuasive justification for any gender base classification 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 184

In certain cases calmer estate may treatment and women differently consistent with the equal protection guarantee and provide separate facilities for each gender. In such cases, the state must bear the burden of

Answer 184

Demonstrating the exceedingly persuasive justification for the separate treatment and demonstrating that the separate facilities are substantially equivalent.

Question 185

Classifications intended to benefit women are viewed under what type of scrutiny

Answer 185

Intermediate scrutiny

Question 186

Are gender classifications that benefit women on the basis of role stereotypes constitutional

Answer 186

No. Gender classifications that benefit women on the basis of role stereotypes are unconstitutional.

Question 187

Are gender classifications designed to remedy past discrimination constitutional?

Answer 187

Yes. Gender classifications designed to remedy past discrimination are generally valid.

Question 188

Standard of review for legitimacy classification

Answer 188

Intermediate scrutiny. A law that discriminates against children conceived out of wedlock must be substantially related to an important government purpose.

Question 189

Religion classification Standard of review

Answer 189

No cases, but it is assumed that discrimination based on religion would be reviewed under strict scrutiny.

Question 190

Age discrimination Standard of review

Answer 190

Rational basis review

Question 191

Disability discrimination Standard of review

Answer 191

Rational basis review

Question 192

Wealth discrimination Standard of review

Answer 192

Rational basis review

Question 193

Economic regulations Standard of review

Answer 193

Rational basis review

Question 194

Sexual orientation discrimination Standard of review

Answer 194

Rational basis review

Question 195

Convicts Standard of review

Answer 195

Rational basis review. The Supreme Court has not held that convicts are suspect class.

Question 196

Fundamental rights standard of review

Answer 196

Strict scrutiny

Question 197

Fundamental right denied. Substantive due process or equal protection violation?

Answer 197

If the fundamental right is denied to everyone, it is a substantive due process problem. If a fundamental right is denied to some people but not others, it is an equal protection problem.

Question 198

Right to privacy standard of review

Answer 198

Privacy is a fundamental right. The right to privacy is violated unless the government conduct passes the strict scrutiny standard.

Question 199

Obergefell v. Hodges

Answer 199

Supreme Court held that the right to marry is a fundamental right inherent in the liberty of the person, and therefore that, under the due process and equal protection clause of the 14th amendment, states may not deprive same-sex couples of that right and that liberty.

Question 200

Privacy fundamental rights

Answer 200

Right to marry, right to procreate, right to purchase and use contraceptives, right to private intimate non-commercial sexual conduct, right to read obscene material in one’s home except for child pornography, right to custody of children (except irrebutable presumption that husband is father), right to control upbringing of one’s children, right to keep family, including extended, together.

Question 201

Is there a right to physician assisted suicide?

Answer 201

The right to privacy does not include the right to physician assisted suicide.

Question 202

For the following fundamental rights the test to be applied is unknown but the government may not prohibit the activity

Answer 202

• The right to engage in consensual homosexual activity is a fundamental rate. Test unknown but a state may not criminally punish consensual homosexual activity in the privacy of one’s own home.
• As far as the right to refuse medical treatment, the Supreme Court did not set forth a test but held the following: A competent person has a liberty interest under the due process clause to refuse unwanted medical treatment, even life-saving medical care. A state may require that evidence of an incompetent’s wishes as to the withdrawal of life-sustaining treatment be provided by clear and convincing evidence. A state is allowed to prevent family members from making the decision to terminate medical treatment. The right to terminate medical treatment belongs to the individual receiving the medical treatment.

Question 203

Test for abortion prior to viability

Answer 203

Prior to viability, states may not prohibit abortions, but can otherwise regulate abortion so long as the regulation does not create an undue burden on one’s ability to get an abortion.

Question 204

Is a 24 hour waiting period for an abortion an undue burden

Answer 204

The Supreme Court has held that a short waiting period does not constitute an undue burden on the right to an abortion

Question 205

Is it an undue burden to require that abortions be performed only by licensed physician

Answer 205

It is not an undue burden to require that abortions be performed only by license physicians.

Question 206

Is a prohibition of partial birth abortion an undue burden?

Answer 206

No

Question 207

Is it an undue burden to require the doctor to provide the patient with the relevant information needed for informed consent to the procedure

Answer 207

It is not an undue burden to require the doctor to provide the patient with the relevant information needed for informed consent to the procedure.

Question 208

Is requiring spousal consent or notification an undue burden

Answer 208

Yes

Question 209

Test for abortion after viability

Answer 209

After viability, states may prohibit abortions unless the procedure is necessary to protect the woman’s health or life.

Question 210

Does the government have a duty to subsidize abortions or to provide facilities for abortion?

Answer 210

The government has no duty to subsidize abortions or to provide facilities for abortion.

Question 211

Parental notification for abortion?

Answer 211

The Supreme Court has held that parental notification requirements violate a minor’s right to an abortion unless there is a satisfactory judicial bypass procedure for teens who do not wish to consult their parents. Such a procedure must allow a court to approve an abortion for a minor without parental notification if the court finds the minor is sufficiently mature and informed to make an independent decision to obtain an abortion or the abortion would be in the minor’s best interest.

Question 212

Right to bear arms?

Answer 212

The Supreme Court has held that the second amendment safeguards the right of individuals to bear arms even apart from militias. The Supreme Court, however, has neither clarified what level of judicial scrutiny applies nor declared this right to be an absolute one subject to no limitations.

Question 213

Right to travel

Answer 213

A law that prevents an individual from moving into a state must satisfy strict scrutiny.
A law that establishes durational residency requirements must satisfy strict scrutiny.
The Supreme Court has twice upheld 50 day state residency requirements for voting on the grounds that such a period is needed to allow a state to maintain an accurate voting list.
Restrictions on foreign travel are only required to satisfy rational basis review. The supreme court has held that there is not a fundamental right to international travel.

Question 214

Is education a fundamental right?

Answer 214

No

Question 215

Is there a fundamental right to medical services?

Answer 215

No

Question 216

Is there a fundamental right to practice a trade or profession?

Answer 216

No

Question 217

Is there a fundamental right to housing?

Answer 217

No

Question 218

Are property ownership requirements for the right to vote or hold office constitutional?

Answer 218

Except for special purpose government units like water storage districts, property ownership requirements for the right to vote or hold office are unconstitutional.

Question 219

What are constitutional requirements to vote

Answer 219

Residency, age, citizenship, felon status

Question 220

Constitutional requirements for establishing voting districts

Answer 220

A state must use almost exact mathematical equality when apportioning congressional districts within the state.
Congress’s method for apportioning representatives among the states does not have to meet almost exact mathematical equality.

Question 221

Are at-large elections constitutional

Answer 221

At large elections are constitutional unless there is a discriminatory purpose.

Question 222

What is an at large election?

Answer 222

An at-large election is one in which all of the voters vote for all of the office holders. And such at large elections, there are no electoral districts to violate the one person, one vote principal.

Question 223

Does counting uncounted votes without pre-existing standards in a presidential election violate equal protection

Answer 223

Counting uncounted votes without pre-existing standards in a presidential election violates equal protection.

Question 224

Freedom of speech checklist

Answer 224

First ask: Is the type of speech protected? If not, then just apply the standard for that type of speech. If yes, then ask: Is the restriction content based? If yes, then apply strict scrutiny. If no, then ask: Where is the speech taking place?

Question 225

First amendment

Answer 225

Congress shall make no law… Abridging the freedom of speech.

Made applicable to states and local governments through the 14th amendment.

Question 226

Unprotected speech

Answer 226

• Speech by government officials
• Speech inciting imminent lawless action
• Fighting words
• Defamation or libel
• Obscene speech
• Commercial speech

Question 227

The first amendment does not protect speech by government officials…

Answer 227

Made on the job and in the scope of their duties.

Question 228

Unprotected true threats?

Answer 228

A true threat is a threatening communication that can be prosecuted under the law. It is distinct from a threat that is made in jest. The Supreme Court has held that true threats are not protected under the first amendment based on three justifications: preventing fear, preventing the disruptions that follow from that fear, and diminishing the likelihood that the threatened violence will occur.

Question 229

Are fighting words unprotected speech

Answer 229

While fighting words are considered unprotected speech, all laws prohibiting fighting words are unconstitutionally vague and overbroad.

Question 230

Unprotected eminent lawless action speech

Answer 230

The government can punish speech if there is a substantial likelihood of imminent lawless action and that the speaker intended to cause the imminent lawless action. There must be advocacy of illegal conduct and not just an abstract expression out of ideas that advocacy calls for eminent lawbreaking.

Question 231

 Defamation and libel of public officials and public figures

Answer 231

Public officials or other public figures can recover only if the statement was false and the person who made the statement acted with actual malice (knowledge or reckless disregard). The plaintiff must show these two elements with clear and convincing evidence.

Question 232

Defamation and libel of private figures in matters of public concern

Answer 232

Private figures can recover only if the statement was false and the person who made the statement acted with negligence. If the plaintiff is a private figure but the matter is a public concern, and the plaintiff must show actual malice in order to recover punitive damages. The plaintiff must show these elements with clear and convincing evidence. 

Question 233

Defamation and libel of private figures in matters not of public concern

Answer 233

Private figures can recover only if the statement was false and the person who made the statement acted with negligence. If the plaintiff is a private figure and the matter is not a public concern, then malice is not required for punitive damages. The defendant bears the burden to prove the truth of the statement.

Question 234

Does the first amendment shield the press from liability arising under generally applicable laws not aimed at suppression of free-speech?

Answer 234

Generally applicable laws do not offend the first amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news. Enforcement of such general laws against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations.

Question 235

Miller test for obscenity

Answer 235

Speech is considered obscene and not protected under the first amendment if it describes or depicts sexual conduct that appeals to the prurient interest, is patently offensive, and lacks serious literary, artistic, political, or scientific value.

Question 236

Adult bookstores in movie theaters and zoning ordinance

Answer 236

The government is permitted to use zoning ordinances to regulate the location of adult bookstores and adult movie theaters. The government has an important interest in preserving the character of its neighborhoods.

Question 237

Is child pornography unprotected

Answer 237

Yes. Child pornography does not have to be obscene to be prohibited. It must actually use children.

Question 238

Can a state regulate the private possession of obscene material?

Answer 238

No

Question 239

Is profane and indecent speech protected?

Answer 239

Profane and indecent speech is not considered obscene and is generally protected by the first amendment. Exceptions= Broadcast media and schools.

Question 240

Does the first amendment protect commercial speech?

Answer 240

If truthful, yes. Truthful commercial speech may only be regulated if the regulation meets intermediate scrutiny. Supreme court precedent establishes that the first amendment does not protect commercial speech that is false or misleading. As such, commercial speech that is false, deceptive, or proposes illegal activity may be prohibited.

Question 241

Standard of review for content-based regulation of protected expression

Answer 241

Strict scrutiny. For content-based restrictions to be valid, the restrictions must be narrowly tailored to achieve a compelling government interest.

Question 242

What are the types of content-based restrictions

Answer 242

Subject matter restrictions in which application of the law depends on the subject matter of the speech.
Viewpoint restrictions in which application of the law depends on the ideology of the message.

Question 243

What are contact neutral regulations

Answer 243

Contact neutral regulations are laws that apply to all speech regulating the time, place, or manner of the speech regardless of the speech’s content.

Question 244

The extent of permissible content neutral regulations depends on

Answer 244

The forum where the speech is taking place.

Question 245

What are public forums?

Answer 245

Public forums are government properties that the government is constitutionally required to make available for speech, e.g. sidewalks and parks.

Question 246

For content neutral regulations of protected expression in public forums to be held Constitutional, the regulation must:

Answer 246

Involve the shifting of speech from one time and place to another or to another manner.
Serve an important government interest (such as noise or traffic control).
Be narrowly tailored to that government interest.

Question 247

Is it constitutional for a government official to have discretion in setting the fee for public demonstration permits?

Answer 247

It is unconstitutional for a government official to have discretion in setting the fee for public demonstration permits.

Question 248

What is required for a content neutral regulation of protected expression in a limited public forum to be held constitutional?

Answer 248

The government may enact time, place, and manner restrictions on property that the government can close to speech but chooses to leave open to the public only if it meets the same standard as for public forums: Serve an important government interest, be narrowly tailored to that government interest, and leave open alternative channels of communication.

Question 249

What is required for a content neutral regulation of protected expression in a non-public forum to be held constitutional

Answer 249

The government can constitutionally regulate speech on government properties that the government constitutionally can and does close to speech so long as it Is rationally related to a legitimate government interest and is viewpoint neutral.

Question 250

What is a limited a.k.a. designated public forum

Answer 250

Designated public forums or public property is not historically available for speech but the government has opened for speech through practice or policy, e.g. public school facilities, space on city buses used for the posting of placards

Question 251

What are examples of government properties that the government constitutionally can and does close to speech?

Answer 251

Military bases, areas outside of prison, advertising space on public buses, sidewalks on post office property, airports)

Question 252

Is there a first amendment right to access private property for speech purposes?

Answer 252

No

Question 253

Does the first amendment protect anonymous speech?

Answer 253

Yes

Question 254

May Congress prohibit corporations from using their funds to pay for political advertising?

Answer 254

In 2010, the Supreme Court held that corporations may not be treated less favorably than individuals, i.e. as long as corporations act independently of the candidate, Congress may not prohibit corporations from using their funds to pay for political advertising

Question 255

Can contributions to candidates be limited?

Answer 255

Contributions made by individuals or groups to individual candidates, political action committees, or to political parties may be limited in dollar amount. However, such limits cannot substantially interfere with the candidate’s or the political party’s ability to run a competitive campaign.

Question 256

May independent expenditures by individuals, corporations, and candidates be limited

Answer 256

No.

Question 257

Are contribution limits and expenditure limits constitutional for ballot initiatives?

Answer 257

Contribution limits and expenditure limits are unconstitutional for ballot initiatives

Question 258

What is expressive conduct?

Answer 258

Expressive conduct requires that the individual intended to communicate a message and that the audience was likely to understand the communication.

Question 259

The government may regulate expressive conduct/symbolic speech yes

Answer 259

There is an important interest unrelated to suppression of the message and the regulation is narrowly tailored to further a substantial government interest.

Question 260

Examples of constitutionally protected symbolic speech

Answer 260

Flagburning

cross burning, unless there is evidence of an intent to threaten or intimidate

Question 261

Examples of constitutionally unprotected symbolic speech

Answer 261

Draft card burning, nude dancing

Question 262

For licensing of speech to be held constitutional, there must be

Answer 262

Important reason for licensing, clear criteria leaving no discretion, and procedural safeguards.

Question 263

Court orders suppressing speech before it occurs my satisfy what standard of review

Answer 263

Strict scrutiny

Question 264

Are gag orders on the press to prevent prejudicial pre-trial publicity constitutional?

Answer 264

Yes. All gag orders on the press to prevent prejudicial pre-trial publicity are unconstitutional.

Question 265

Standard of review for court orders suppressing speech before it occurs

Answer 265

Strict scrutiny

Question 266

Can a person who violates a procedurally proper court order challenge the constitutionality of the court order later on?

Answer 266

Any person who violates a procedurally proper court order is barred from challenging its constitutionality later on. Procedurally proper court orders must be complied with until the order is overturned.

Question 267

When is a law unconstitutionally over broad

Answer 267

A law is unconstitutionally overbroad if it punishes speech that is constitutionally protected

Question 268

Vagueness

Answer 268

Due process requires a statute to be clear enough that a person of ordinary intelligence will be able to understand what the statue prohibits

Question 269

May the state impose liability for the accurate publication of information in the public record?

Answer 269

The state may not impose liability for the accurate publication of information in the public record. The government may, however, limit its own dissemination of information to the public.

Question 270

Can a publisher who obtains truthful information that is a matter of public concerns in a manner lawful in itself be punished if the information was obtained from a source who obtained the information unlawfully?

Answer 270

No. A publisher, e.g. the media, who obtains truthful information that is a matter of public concern in a manner lawful in itself cannot be punished even if the information was obtained from a source who obtained the information unlawfully

Question 271

Freedom of association

Answer 271

Freedom of association is protected by the First Amendment. The US Supreme Court has held that the freedom of association protected by the first amendment prohibits a state from inquiring about an individual’s associations in order to withhold a right or benefit because of the individual’s beliefs.

Question 272

Standard of review for prohibition on group membership

Answer 272

Prohibition on group membership must satisfy strict scrutiny

Question 273

What does punishment for group membership require

Answer 273

• Defendant actively affiliated with the group
• With knowledge of the groups illegal activities
• With specific intent to further those illegal activities

Question 274

Standard of review for requiring disclosure of group association

Answer 274

Strict scrutiny is required because if people knew their association might be disclosed, they might not associate expressively in the first place.

Question 275

Laws prohibiting a group from discriminating are valid unless

Answer 275

• The group is an intimate association OR

- Discrimination is integral to the purpose of the group

Question 276

May the government fire an employee because of the employees political views or affiliation?

Answer 276

The Supreme Court has held that the government may not fire an employee because of the employees political views or affiliations unless certain political views or affiliations are required for the effective performance of the employees job.

Question 277

For protection under the first amendment, must the religion be a recognized or generally accepted religion

Answer 277

It is not required that the religion be a recognized or generally excepted religion. The only requirement is that the individual who practices the religion has a genuine believe in that religion.

Question 278

When is the free exercise clause implicated

Answer 278

The free exercise clause is implicated when there is state action that restricts one’s religious beliefs or practices of a religion.

Question 279

Laws that intentionally interfere with or burden the free exercise of religion or that are not generally applicable must satisfy what standard of review

Answer 279

Strict scrutiny

Question 280

To establish a free exercise violation, the challenger must show

Answer 280

That the government action targeted the religious practice in question.
Unintentional neutral laws of general applicability cannot be challenged under the free exercise clause.

Question 281

Overall purpose of the establishment clause

Answer 281

The overall purpose of the establishment clause is to maintain a separation between church and state

Question 282

Establishment clause test

Answer 282

Government action must me a three-part test be valid:

1. The government regulation must have some other entirely non-religious purpose
2. The regulations primary effect cannot be too advanced or inhibit religion any government action that prefers one religion over others violates the establishment clause at the first in 14th amendment and, aside, is invalid.
3. The government action must not foster excessive government entanglement with religion.

Question 283

They have school provide access to school facilities to religious groups

Answer 283

A school may provide access to school facilities to religious groups, so long as non-religious groups have equal access

Question 284

Prayer in public schools constitutional?

Answer 284

The Supreme Court has held that officially sponsored prayers in public school violate the establishment clause of the First Amendment

Question 285

Are displays of religious themes permissible

Answer 285

Displays a religious themes are permissible so long as the religious symbols are surrounded by primarily secular symbols

Question 286

Do laws requiring merchants to be closed on Sundays violate the establishment clause

Answer 286

Laws requiring merchants to be closed on Sundays generally do not violate the establishment clause so long as the motive for a law is secular even if the original motive for the law was religious.

Question 287

Is government assistance parochial schools permitted?

Answer 287

Government assistance to parochial schools is permitted so long as the assistance is not used for religious instruction.