Constitutional Law

Question 1

Define

Strict Scrutiny

Answer 1

The government must prove that the law is necessary (narrowly tailored) to achieve a compelling interest

Burden of proof: government

Question 2

Define

Intermediate Scrutiny

Answer 2

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

Burden of proof: government

Question 3

Define

Rational Basis

Answer 3

The plaintiff must prove that the law is not rationally related to a legitimate government interest

Burden of proof: plaintiff

Question 4

When does strict scrutiny apply?

Answer 4

• Fundamental rights
• Racial or ethnic discrimination
• Alienate (when classification is made by a state, though there are exceptions)

Question 5

When does intermediate scrutiny apply?

Answer 5

To classifications regarding gender and illegitimacy

Question 6

When can Congress abrogate a state’s immunity under the 11th Amendment?

Answer 6

When

(1) The statute the plaintiff is suing under expressly states that Congress abrogrates the state’s immunity under the 11th Amendment
(2) The statute relates to enforcemet of the 13th, 14th or 15th Amendment

Question 7

When does the 11th Amendment apply?

Answer 7

When a plaintiff is suing a state, state agency, or state official in federal court.

Question 8

What are the 3 elements relating to the justiciability doctrine or a plaintiff’s standing?

Answer 8

1) Injury-in-fact --> P has sustained an injury-in-fact or there is imminent threat of injury (ripeness –> has the harm occurred yet?)
2) Causation –> P’s injury can be traced to D’s conduct
3) Redressability –> Court will be capable of doing something to correct or make up for the injury (mootness –> issue is resolved already)

Question 9

What are Congress’s powers under the Commerce Clause?

Answer 9

Congress has the power to regulate

(1) the channels and instrumentalities of interstate commerce

(2) Persons and things in interstate commerce

(3) Or anything that has a substantial effect on interstate commerce

Question 10

When can Congress use the aggregation doctrine under the Commerce Clause?

Answer 10

When seeking to regulate activity that is commercial in nature, Congress can determine whether the activity has a substantial effect on interstate commerce by analyzing the activity in the aggregate

Question 11

What are the three standards of review under the Equal Protection Clause and when do they apply?

Answer 11

Strict scrutiny –> Fundamental rights, racial or ethnic discrimination, and alienage

Intermediate Scrutiny –> Gender and illegitimacy

Rational basis –> Every other classification (poverty, wealth, age, education, etc.)

Question 12

When can SCOTUS grant writ to review a state court’s judgments?

Answer 12

SCOTUS only has jurisdiction to review state court judgments if they are based on federal law

It cannot review a decision made on adequate and independent state grounds.

Adequate –> State law fully resolves the matter

Independent –> Court did not rely on federal law in its decision

Question 13

What is an ex post facto law?

Answer 13

A criminal statute that retroactively imposes punishment

Federal government and state are both barred from passing this kind of law

Question 14

What are the main 14th Amendment protections?

Answer 14

1) Equal Protection
2) Due Process (procedural and substantive)
3) Privileges and Immunities

Question 15

What are 4 kinds of restrictions on the 2nd Amendment that SCOTUS has found permissible?

Answer 15

1. Banning unusually dangerous firearms
2. Prohibiting possession by felons or the mentally ill
3. Prohibiting open carry in certain areas or concealed carry in public
4. Imposing conditions/qualifications on the commercial sale of firearms

Question 16

What are exceptions to a state’s immunity under the 11th Amendment?

Answer 16

Exceptions:

• State consents to suit
• Immunity removed by Congress pursuant to enforcement of the 13th, 14th, or 15th Amendment
• State official sued for injunctive or declaratory relief
• Damages to be paid by state officer personally (not state treasury)
  
  • State official sued for prospective (not retroactive) damages to be paid by state treasury

Question 17

What is substantive vs. procedural due process?

Answer 17

Substantive due process –> deprives life, liberty, or property without adequate justification

Procedural due process –>

Question 18

What are the requirements for an indirect federal tax to comply with the taxing and spending clause?

Answer 18

1. The tax is identical in every state where the taxed goods are located
2. The tax is reasonably related to revenue production

Question 19

What are the requirements for a direct federal tax to be constitutional?

Question 20

What is a direct tax?

Question 21

What is an indirect federal tax?

Question 22

What is an export tax and is it constitutional?

Question 23

When are public employees considered to have a protected property interest in their employment?

Question 24

What is the Lemon test and when is it applied?

Answer 24

The Lemon test applies to Establishment clause challenges

The Lemon test upholds government actions that

(1) Have a secular purpose
(2) Have a primary effect that does not advance/inhibit religion
(3) Does not foster excessive government entanglement with religion

Question 25

What is the purpose of the Establishment Clause of the First Amendment?

Answer 25

It prohibits the government from “establishing” a religion

Question 26

What is the test for contribution restrictions?

Answer 26

Intermediate scrutiny

Is it closely drawn/substantially related to an important government interest?

Question 27

When the government burdens a religious belief or conduct, what are the standards of review for a

(1) Direct Burden

and

(2) Indirect Burden

Answer 27

Direct Burden –> strict scrutiny

Incidental Burden –> rational basis

Question 28

What are the suspect classes?

Question 29

What are the fundamental rights?

Question 30

What are the quasi-suspect classes?

Question 31

What kinds of speech are unprotected?