Constitutional Law

Question 1

MED

*STATE SOVEREIGN IMMUNITY (11th AMENDMENT)

Answer 1

The 11th Amendment is a jurisdictional bar that prohibits:

1. The citizens of one state or a foreign country from suing another state in federal court for money damages or equitable relief; AND
2. Suits in federal court against state officials for violating state law.

Question 2

MED

*11TH AMENDMENT EXCEPTIONS (4)

Answer 2

The following are exceptions to the application of the 11th Amendment:

1. Consent. A state may consent to a suit by waiving its protection.
2. Injunctive Relief. When a state official, rather than the state itself, is named as the defendant in an action brought in federal court, the state official may be enjoined from enforcing a state law that violates federal law or may be compelled to act in accord with federal law despite state law to the contrary.
3. Individual Damages. An action for damages against a state official is not prohibited so long as the official himself will have to pay.
4. Congressional Authorization. Congress may abrogate state immunity from liability it is clearly and expressly acting to enforce rights created by the 14th Amendment.

Question 3

LOW

STANDING

Answer 3

A federal court cannot decide a case unless the plaintiff has standing (i.e., a concrete stake in the outcome of the action). To have standing, a plaintiff bears the burden of establishing three elements:

1. Injury in Fact. The injury must be concrete and particularized (when a harm is concrete, though widely shared, there is standing). However, it does not have to be physical or economic. While the threat of future injury can suffice, it cannot be merely hypothetical or conjectural, it must be actual and imminent.
2. Causation. The injury must be fairly traceable to the challenged action (i.e., the the defendant’s conduct caused the injury).
3. Redressability. It must be likely that a favorable court decision will redress an injury suffered by the plaintiff.

Question 4

LOW

TAXING POWER

Answer 4

Congress has the power to tax, and most taxes will be upheld if:

1. They bear some reasonable relationship to revenue production; OR
2. Congress has the power to regulate the activity taxed.

Question 5

LOW

SPENDING POWER

Answer 5

Congress may spend to “provide for the common defense and general welfare.” Spending may be for any public purpose.

Question 6

MED

*COMMERCE POWER

Answer 6

Congress has the power to regulate all foreign and interstate commerce. To be within Congress’s power under the Commerce Clause, a federal law regulating interstate commerce must either regulate the:

1. Channels of interstate commerce;
2. Instrumentalities of interstate commerce and persons and things in interstate commerce; OR
3. Activities that have a substantial effect on interstate commerce.

When Congress attempts to regulate intrastate activity under the third prong, the Court will uphold the regulation if:

1. The regulation is of economic or commercial activity (e.g., growing wheat or medicinal marijuana even for personal consumption); AND
2. The court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce.

However, if the regulated intrastate activity is noneconomic and noncommercial (e.g., possessing a gun in a school zone or gender-motivated violence), the Court generally will not aggregate the effects and the regulation will be upheld only if Congress can show a direct substantial economic effect on interstate commerce, which it generally will not be able to do.

Question 7

LOW

13th, 14th, AND, 15th AMENDMENT ENFORCEMENT POWER

Answer 7

Each of the 13th, 14th, and 15th Amendments [ban on slavery, equal protection and due process, and voting rights] contain a provision that authorizes Congress to pass “appropriate legislation” to enforce the civil rights guaranteed by those Amendments.

Question 8

MED

*EXCLUSIVE STATE POWERS

Answer 8

The 10th Amendment provides that all powers not assigned by the Constitution to the federal government are reserved to the states, or to the people.

Question 9

MED

*FEDERAL REGULATION OF STATES

Answer 9

The federal government has virtually unlimited power to regulate the states. Generally, Congress may regulate the states so long as it is exercising an enumerated power.

While Congress cannot command state legislatures to enact specific legislation, it may encourage state action through the use of its taxing and spending powers. (e.g., Congress can condition federal highway funds on the state’s requiring a minimum drinking age of 21).

Question 10

MED

*DORMANT COMMERCE CLAUSE

Answer 10

If Congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate, so long as the state or local action does not:

1. Discriminate against out-of-state commerce;
2. Unduly burden interstate commerce; OR
3. Regulate wholly out-of-state activity.

Legislation that violates any of the above requirements is generally deemed unconstitutional unless:

1. The state is acting as a market participant rather than a market regulator;
2. The legislation favors state or local government entities that are performing a traditional government function; OR
3. Congress explicitly permits the legislation.

Question 11

HIGH

**STATE ACTION REQUIREMENT

Answer 11

Generally, the Constitution protects against wrongful conduct by the government, not private parties (there is an exception for the prohibition of slavery, which applies to the government and private parties).

Thus, state action is required to trigger an individual’s constitutional protections.

State action may exist in cases of private parties when:

1. A private person carries on activities that are traditionally performed exclusively by the state; OR
2. There are sufficient mutual contacts between the conduct of a private party and the government (this is a question of the degree of state involvement).

Question 12

lowest

STANDARD OF REVIEW:
STRICT SCRUTINY

Answer 12

The government must prove that the regulation is the least restrictive means to achieve a compelling government interest (very difficult to prove).

Question 13

lowest

STANDARD OF REVIEW:
INTERMEDIATE SCRUTINY

Answer 13

The government must prove that the regulation is substantially related to an important government interest.

Question 14

lowest

STANDARD OF REVIEW:
RATIONAL BASIS

Answer 14

The challenger must prove that the regulation is not rationally related to any legitimate government interest (very difficult to prove).

Question 15

MED

*EQUAL PROTECTION CLAUSE

Answer 15

When the government makes laws that classify people into groups, the constitutionality of the law will be evaluated according to the type of classification made:

1. If a suspect classification is involved, the strict scrutiny standard applies. Classifications are suspect if they are based on race, ethnicity, national origin, or alienage (alienage is only suspect if the classification is made by state law).
2. If a quasi-suspect classification is involved, the intermediate scrutiny standard applies. Classifications are quasi-suspect if they are based on gender or legitimacy (non-marital children).
3. For all other classifications (e.g., age, disability, and wealth classifications), the rational basis standard applies.

Question 16

MED

*GOVERNMENTAL INTENT
IN EQUAL PROTECTION

Answer 16

For strict or intermediate scrutiny to be applied in an equal protection analysis, there must be intent on the part of the government to discriminate.

A discriminatory effect or disparate impact toward a group of people alone is not enough to show governmental intent.

Governmental intent may be shown by:

1. A law that is discriminatory on its face;
2. A discriminatory application of a facially neutral law; OR
3. A discriminatory motive behind a facially neutral law.

Question 17

LOW

AFFIRMATIVE ACTION

Answer 17

States may implement regulations to remedy past discrimination if the class has actually suffered persistent and readily identifiable past discrimination.

A race-based plan cannot be used to remedy general past “societal discrimination.”

The level of scrutiny applied to the regulation depends on the classification.

Question 18

LOW

TAKINGS CLAUSE

Answer 18

The power of the government to take private property for public purposes is known as “eminent domain.”

The Takings Clause of the 5th Amendment acts as a check on this power.

It provides that:

1. Private property may be taken;
2. For public use;
3. With just compensation (fair market value).

Question 19

LOW

REGULATORY TAKINGS (3)

Answer 19

Generally, a governmental regulation that adversely affects a person’s property interest is not a taking; however, it is possible for a regulation to rise to level of a taking (requiring just compensation).

In determining whether a regulation constitutes a taking, the following factors are considered:

1. The economic impact of the regulation on the property owner;
2. The extent to which the regulation interferes with the owner’s reasonable investment-backed expectations regarding the use of the property; AND
3. The character of the regulation (including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership).

Question 20

LOW

PER SE TAKINGS

Answer 20

A governmental regulation clearly results in a taking when the regulation results in a:

1. Permanent physical occupation of the property; OR
2. Permanent total loss of the property’s economic value.

Question 21

LOW

EXACTION AS A TAKING

Answer 21

A local government may exact promises from a developer (e.g., setting aside a portion of the land being developed for a public use in exchange for issuing the necessary construction permits) without violating the Takings Clause if there is:

1. An essential nexus between legitimate state interests and the conditions imposed on the property owner; AND
2. A rough proportionality between the burden imposed by the conditions on the property owner and the impact of the proposed development.

Question 22

LOW

PRIVILEGES AND IMMUNITES CLAUSE

Answer 22

The Privileges and Immunities Clause prohibits one state from discriminating against the citizens of another state (does not apply to corporations or aliens).

Out-of-state citizens are protected against discrimination with respect to any fundamental rights or essential activities (e.g., pursuit of employment, transfer of property, engaging in the political process, etc.).

However, discrimination against out-of- state citizens may be valid if the state can show a substantial reason for the difference in treatment.

A substantial reason exists if:

1. The out-of-state citizens either cause or are part of the problem that the state is attempting to solve; AND
2. There are no less restrictive means to solve the problem.

Question 23

LOW

OVERBREADTH DOCTRINE

Answer 23

Under the overbreadth doctrine, if a regulation of speech or speech-related conduct punishes a substantial amount of protected speech in relation to its plainly legitimate sweep, the regulation is facially invalid. (e.g., a regulation outlawing ALL 1st Amendment activity in an airport terminal; a regulation prohibiting all canvassers from going onto private residential property to promote ANY cause without first obtaining a permit).

Question 24

LOW

VOID FOR VAGUENESS DOCTRINE

Answer 24

A statute or regulation is void for vagueness if it does not put the public on reasonable notice as to what is prohibited.

Question 25

LOW

PRIOR RESTRAINTS (CENSORSHIP)

Answer 25

A prior restraint is a regulation of speech that occurs before its expression. Generally, prior restraints are presumed to be unconstitutional with limited exceptions, including:

1. There is a particular harm to be avoided (e.g., restraining a newspaper from publishing troop movements).
2. Procedural safeguards are provided to the speaker (e.g., the standards must be narrowly drawn, reasonable, and definite).

Question 26

MED

*CONTENT-BASED SPEECH REGULATIONS

Answer 26

Speech regulations are content-based if they prohibit communication of specific ideas.

It is presumptively unconstitutional to place burdens on speech because of its content, except for certain categories of unprotected speech (e.g., obscenity, defamation, etc.).

Question 27

MED

*CONTENT-NEUTRAL SPEECH REGULATIONS

Answer 27

Content-neutral speech regulations generally must:

1. Advance important interests unrelated to the suppression of speech; AND
2. Not burden substantially more speech than necessary to further those interests.

Question 28

MED

*CONDUCT-BASED TIME, PLACE, AND MANNER SPEECH REGULATIONS

Answer 28

The government has power to regulate the conduct associated with speech (time, place, and manner), although the breadth of this power depends on whether the forum involved is a public or nonpublic forum.

Question 29

MED

*CONDUCT-BASED SPEECH REGULATIONS IN PUBLIC FORUMS (3)

Answer 29

Public property that has historically been open to speech-related activity is called a public forum (e.g., streets, sidewalks, and public parks).

Public property that has not historically been open to speech-related activities, but which the government has made open for such activities on a permanent or limited basis, by practice or policy is called a designated public forum (e.g., schoolrooms that are open for after-school use by social, civic, or recreation groups).

The government may regulate speech in public forums and designated public forums with reasonable time, place, and manner regulations that:

1. Are content-neutral (i.e., are subject matter and viewpoint neutral)
2. Are narrowly tailored to serve an important government interest; AND
3. Leave open alternative channels of communication.

Question 30

MED

CONDUCT-BASED SPEECH REGULATIONS IN NONPUBLIC FORUMS (2)

Answer 30

Government property that has not historically been linked with speech and assembly but has been opened for specific speech activity is called a limited public forum (e.g., school gym opened to host a debate on a particular community issue).

Government property that has not historically been linked with speech and assembly and has not been opened for specific speech activity is called a nonpublic forum (e.g., military bases, schools while classes are in session, government workplaces, etc.).

The government may regulate speech in limited public forums and nonpublic forums if the regulations are:

1. Viewpoint neutral; AND
2. Reasonably related to a legitimate government purpose

Question 31

MED

*CATEGORIES OF UNPROTECTED SPEECH (5)

Answer 31

To be valid, restrictions on the content of speech must be necessary to achieve a compelling government interest. The government has a compelling interest in the following categories of speech, which are deemed “unprotected speech” under the 1st Amendment:

1. Inciting imminent lawless action;
2. Fighting words;
3. Obscenity;
4. Defamatory speech; AND
5. Some commercial speech

Question 32

LOW

INCITING IMMINENT LAWLESS ACTION

Answer 32

Speech can be restricted if it creates a clear and present danger of imminent lawless action. It must be shown that that:

1. Imminent illegal conduct is likely; AND
2. The speaker intended to cause it.

Question 33

LOW

FIGHTING WORDS

Answer 33

Speech can be limited if it constitutes fighting words.

Fighting words are personally abusive words that are likely to incite immediate physical retaliation in an average person.

The Supreme Court will not tolerate fighting words statutes that are designed to punish only certain viewpoints (e.g., prohibiting only fighting words that insult on the basis of race, religion, or gender).

Question 34

lowest

OBSCENITY

Answer 34

Obscene speech is not protected. Speech is obscene if it describes or depicts sexual conduct that, taken as a whole, by the average person:

1. Appeals to the prurient interest in sex, using a community standard;
2. Is patently offensive; AND
3. Lacks serious literary, artistic, political, or scientific value, using a national reasonable person standard.

Question 35

lowest

COMMERCIAL SPEECH

Answer 35

Generally, commercial speech (e.g., advertising) is afforded 1st Amendment protection if it is truthful. However, commercial speech that proposes unlawful activity or that is false, misleading, or fraudulent may be restricted as unprotected speech. Any other regulation of commercial speech will be upheld only if it:

1. Serves a substantial government interest;
2. Directly advances that interest; AND
3. Is narrowly tailored to serve that interest.