Constitutional Law

Question 1

Standing

Answer 1

A party must have a concrete interest in the outcome of a claim to have the claim heard in federal court.

Requirements:
1) Injury- P must have suffered some injury or show a likelihood of imminent injury; and
2) Causation and Redressability- P must allege that D caused the injury and that the court can grant a proper remedy.

Question 2

Organizational Standing

Answer 2

Organizations always have standing if the injury is to the organization itself.

Organizations may also sue on behalf of members if:
1) Members would have standing to sue individually;
2) Injury is related to the organization’s purpose; and
3) Neither claim nor relief requires participation of individual members.

Question 3

Supreme Court Review

Answer 3

Discretionary Review- most cases get to the U.S. Supreme Court by writ of certiorari; the Court then decides whether to grant review.

Mandatory Review- the Court must take appeals from three-judge district court panels regarding injunctive relief. This bypasses the courts of appeal.

Original and exclusive jurisdiction- suits between states. These suits must be filed in the Supreme Court.

Question 4

State court decisions

Answer 4

Supreme Court cannot review a state court decision that rested on an independent, adequate state ,as ground.

If the state court decision is based on federal and state law, the Supreme Court will not grant review unless the decision cannot stand on the state grounds alone.

Question 5

Necessary and Proper Clause

Answer 5

Congress can exercise constitutionally-enumerated powers and all those auxiliary powers that are necessary and proper to carry out those enumerated powers.

Not an independent source of power- the Necessary and Proper Clause does not confer a free-standing, independent source of power to Congress; it must be used in conjunction with another federal power.

Question 6

Taxing and Spending Power

Answer 6

Congress may tax and spend in any way deemed necessary for the “general welfare” (a very broad power).

“General Welfare” an an answer choice is usually only correct if a question concerns taxing, spending, or an area within Congress’s limited police power (military, Indian Reservations, federal land, D.C.).

Taxes must reasonably relate to revenue production (a low threshold).

Question 7

Regulations

Answer 7

Congress can use its taxing power to achieve a regulatory effect as long as:
1) The tax’s dominant intent is to raise revenue; and
2) There is some reasonable relationship between the tax and the regulation (low burden to satisfy).

Regulatory Spending- Congress can create a regulatory effect by placing conditions on its spending power as long as it is not overly coercive.

Question 8

Power to Regulate Commerce

Answer 8

The Commerce Clause gives Congress exclusive authority to regulate interstate commerce.

Interstate Commerce- between states
Congress may regulate the channels, instrumentalities, or economic activities that have a substantial effect on interstate commerce. (Includes persons and things in interstate commerce).

Intrastate Commerce- within states
Economic Activities- Congress may regulate commercial or economic activities if there is a rational basis to conclude that the activity, in aggregate, substantially affects interstate commerce.

Non-economic Activities- Congress may only regulate non-economic activity if it has a direct, substantial economic effect on interstate commerce (tough burden to satisfy).

Question 9

Conditional Grants

Answer 9

Congress can induce (but not compel) state regulatory or legislative action through the use of conditional grants.

Requirements:
1) Condition must be expressly stated;
2) Condition must relate to the purpose of the law at issue; and
3) Condition cannot be unduly coercive.

(Federal highway funds conditioned on states maintaining a minimum drinking age of 21).

Question 10

Congressional Delegation of Powers

Answer 10

Congress has broad authority to delegate legislative powers to executive officers and administrative agencies.

Administrative agencies established by congressional enabling acts can create rules that have the status of law.

Limitations:
- Congress must provide intelligible standards to define the scope of legislative authority it delegates;
- Congress may not delegate executive or judicial powers to itself or its officers (Congress cannot create commissions that enforce or prosecute violations of law).

Question 11

Implied Preemption

Answer 11

If a federal law is silent on preemption, it typically preempts state law in three situations:

1) Mutual exclusivity- federal and state laws are mutually exclusive (compliance with both is possible);
2) State law impedes a federal objective; or
3) Congress evidences a clear intent to legislate exclusively and/or preempt state law.

If a state law does not run afoul of any of the above three situations, it is likely valid under the Supremacy Clause.

Question 12

Dormant Commerce Clause

Answer 12

Where Congress has not acted, state and local laws may regulate local aspects of interstate commerce, but only if the regulation is neither discriminatory nor unduly burdensome.

Test- a state/local law regulating interstate commerce is invalid if it:
A) Discriminates against out-of-state competition;
B) Unduly burdens interstate commerce; or
C) Regulates wholly out-of-state activity.

Examples- the following violate the DCC:
Regulations protecting local businesses or requiring local operations;
Regulations limiting access to in-state products.

Exceptions- state law burdening interstate commerce is valid if it either:
A) It is necessary to an important state interest- (furthers an important, non-economic state interest and no reasonable alternatives are available;
B) State is a market participant- state can favor its own citizens in buying or selling products, hiring labor, giving subsidies, etc., (tuition discounts to state residents); or
C) Traditional government function- state can discriminate against non-residents if law involves performance of traditional government functions.

Question 13

Article IV Privileges and Immunities Clause

Answer 13

States may not discriminate against non-state residents.

-Arises if a state law is intentionally protectionist and concerns rights relating to important commercial activities (look for situations where a state intentionally protects its citizens by discriminating against non-state residents.
(Only applies to Persons, not corporations or aliens).

Analysis- discriminatory state law will be invalid if it:
1) Relates to civil liberties or commercial activities; and
2) Is. it necessary to achieve an important government interest (state law is intentionally protectionist in nature, there is no substantial justification for the discrimination, or less restrictive means are available.

Question 14

State Taxation of Interstate Commerce

Answer 14

States may only tax activities that have a substantial connection to the state and may not tax in a way that discriminates against interstate commerce.

A state may not use its tax systems to help in-state businesses or discriminate against interstate commerce.

Analysis- does the tax discriminate against interstate commerce.
YES- invalid; violates DCC
NO- does the burden placed on interstate commerce outweigh its benefits to the state? 3 requirements:
1. Substantial Nexus- tax must have a substantial nexus to the taxing state (item taxed is based on significant in-state activity);
2. Fair Apportionment- tax must be fairly apportioned (state can only tax the portion of the activity connected to the state); and
3. Fair Relationship- tax must be fairly related to services or benefits provided by the state (tax must be fairly related to some government service or benefit.

Question 15

Government Action Requirement

Answer 15

Constitution applies only to government action (federal, state, or local)
Private conduct does not have to comply with Constitution,

Exceptions- Constitution will apply to private conduct where:
1. Exclusive public function- a private entity performs a task traditionally performed by government (private prisons, elections).
2. Significant state involvement (entanglement)- government affirmatively authorizes or facilitates private conduct (state must affirmatively approve or validate private conduct - permitting it alone is insufficient.

Question 16

Levels of Scrutiny

Answer 16

Courts use three tests to analyze the constitutionality of government acts under substantive due process and equal protection.

Question 17

Rational Basis

Answer 17

Rational Basis- a law will be upheld if it is rationally related to a legitimate government purpose.
-Any conceivable legitimate purpose suffices, regardless of the actual purpose of the law.
-A law will almost always be upheld under rational basis unless it is completely irrational or arbitrary.
-Challenger bears the burden of proof.

Question 18

Intermediate Scrutiny

Answer 18

Intermediate Scrutiny- a law will be upheld if it is substantially related to an important government purpose.
-Government goal must be important; courts look to the actual reason the law was enacted.
-Government bears the burden of proof.

Question 19

Strict Scrutiny

Answer 19

Strict Scrutiny- a law will be upheld if it is necessary to achieve a compelling government interest,
-Government must show there are no less restrictive or burdensome means of achieving this goal.
-Courts look at the actual reason the law was enacted.
-Government bears the burden of proof.

Question 20

Procedural Due Process

Answer 20

A fair process (notice and hearings) is required for government to take or deprive a person’s life, liberty, or property.
Due process rights arise only if government acts to deprive an individual, not when government acts generally.

Analysis:
1. Has there been a deprivation of life, liberty, or property? Liberty Deprivation- loss of significant freedom of action or freedom provided by Constitution or Statute. Property Deprivation- a legitimate claim or entitlement to a benefit under law, which goes unfulfilled.
2. What procedures are required? Determined by balancing: A) Importance of the individual interest involved; and. B) Value of procedural safeguards to that interest, against C) Government interest.

Usually fair procedures, an unbiased decision-maker, and notice of the government’s action will be required.

Question 21

Substantive Due Process

Answer 21

Involves the determination of whether government has adequate reasons for depriving life, liberty, or property. (Encompasses both fundamental and non-fundamental frights).

Question 22

Economic Rights

Answer 22

Economic rights, generally- rational basis test.
-Constitution provides only minimal protection for economic liberties.
-Rational basis applies unless the infringement falls under the Contract Clause or Takings Clause.

Question 23

Contract Clause

Answer 23

States cannot impair existing contractual duties.
-Applies to state/local interference with existing contractual obligations, including government obligations.

Private Contracts- intermediate-type scrutiny: if a law substantially impairs a party’s rights under an existing contract, it violates the Contract Clause unless the law:
1. Serves an important, legitimate public interest; and
2. Is reasonable and narrowly tailored in promoting that interest.

Government Contracts- stricter scrutiny
-Local laws substantially impairing or interfering with existing government contracts must be reasonable and necessary to serve an important public purpose.

Question 24

Ex Post Facto Laws

Answer 24

A law is an ex post facto law if it:
A) Criminally punishes conduct that was lawful when done;
B) increases punishment for a crime after it has been committed; or
C) Reduces the burden required to convict a person for a crime after it has been committed.

Does not apply to civil liability, where retroactive legislation must meet only rational basis.

Question 25

Takings Clause and Eminent Domain

Answer 25

The 5th Amendment prohibits government from taking private property without providing just compensation to the owner and/or occupant.

3-part analysis to determine if taking is constitutional:
1. Has there been a taking? 2 types: Possessory Taking- government takes or occupies physical property; and Regulatory Taking- government action that adversely affects property value; whether taking occurs depends on extent of economic interference.
2. Is the taking for public use? - taking is for public use if government has a reasonable belief the taking will benefit the public (low standard). Use will be public as long as it is rationally related to some legitimate public purpose.
3. Is just compensation paid? - measured in terms of loss to owner (FMV of property at time of taking).

Question 26

Freedom of Association

Answer 26

Protects the right to participate in a gathering, club, or other organization to pursue 1st Amendment-protected goals (Strict Scrutiny usually applies).

Analysis- government interference with association is invalid unless,
1. Government act is in pursuance of a compelling government interest; and
2. That interest cannot be achieved by less restrictive means.

Laws criminalizing membership- government must prove that D:
1. Actively affiliated with a group involved with illegal activities;
2. Had knowledge of the group’s illegal activities; and
3. Acted with the specific intent of furthering those activities.

Disclosure requirements- strict scrutiny if chilling effect.
Laws requiring disclosure of group membership must meet strict scrutiny if disclosure would have the effect of chilling association (it would inhibit the groups’s ability or willingness to associate).

Question 27

Free Exercise Clause

Answer 27

Prohibits government from punishing someone solely on the basis of that person’s religious beliefs or conduct.

Government action must be necessary to achieve a compelling interest, but Court has never upheld religious punishment under this standard.

Limitation- only applies if the purpose of a law is to limit or interfere with religious practice or beliefs. However, laws of general applicability (not designed to regulate or interfere with religion) are valid.

Question 28

Establishment Clause

Answer 28

If government discriminates against a specific religion or sect (as opposed to religion generally), strict scrutiny applies.

If government restricts or burdens religion without discriminating against a specific faith or group, apply the Lemon Test:

TEST- A government act burdening religion will only be upheld if:
1. There is a secular purpose behind the act;
2. The act’s primary effect neither advances nor inhibits religion; and
3. The act does not create excessive government entanglement with religion.

Question 29

Equal Protection Approach

Answer 29

1. is there a discriminatory classification? -to receive heightened scrutiny, a discriminatory classification must be proved.
2. What level of scrutiny applies given the classification? (Suspect, quasi-suspect, all or their alleged classifications).
3. Does the classification satisfy the appropriate level of scrutiny?

Question 30

Proving Discriminatory Classifications

Answer 30

3 ways to prove a discriminatory classification:
1. Law discriminates on its face- by its terms, the law treats classes of people differently.
2. Facially-neutral law applied in a discriminatory manner (law does not create a classification by its terms, but does so as applied). P must demonstrate: a) disparate impact; and b) government officials applying the law had some discriminatory purpose; or
3. Discriminatory motive/purpose behind law- -difficult to prove, demonstrating discriminatory impact alone is not enough, there must be evidence of government’s discriminatory motive.

Question 31

Free Speech Framework

Answer 31

Protected Speech- where protected speech is at issue, the level of scrutiny depends on whether the speech restriction is content-based.

Content-based restriction- strict scrutiny
Occurs where government seeks to restrict speech because of its content (based on subject matter or viewpoint).

Content-neutral restriction- intermediate scrutiny
Occurs where a government restriction applies to all expression regardless of the content or viewpoint.
Usually arises in the context of time, place, or manner restrictions and/or speech on government property.

Question 32

Speech in Public Forums

Answer 32

Public forums are government property that the government is constitutionally required to make available for speech (sidewalk, park).
Regulations must be content-neutral. If not, strict scrutiny applies.

Restrictions on speech in a public forum- to be upheld, the restriction must:
1. Be content-neutral (only regulates time, place, manner of speech);
2. Be narrowly tailored to serve an important government purpose; and
3. Leave open adequate, alternative channels of communication (does not need to be the least restrictive alternative).

Question 33

Prior Restraints

Answer 33

Prior restraints involve a prohibition on speech ( or publication) before it occurs - strict scrutiny applies.

Identifying Prior Restraints- look for prevention of expression.
Prior restraints prevent expression, whereas other speech restrictions punish expression after it has occurred.

Injunctions- most common type of PR
Extremely difficult to get an injunction prohibiting speech.
“Gag orders” against pre-trial publicity almost never allowed.
(P must comply with valid injunction until is vacated or overturned; P cannot challenge a violated injunction).

Permits/licensing- government may require licenses or permits for speech only if there is a reasonable justification for doing so.
License/permit requirements for speech must be similar to a “rubber stamp” process and must provide procedural safeguards or judicial review for denials.
P can challenge on Constitutional grounds, even if violated.

Question 34

Symbolic Speech

Answer 34

Refers to expressive or communicative conduct (conduct intended to convey a message).

TEST- Government can regulate symbolic speech if:
1. The emulation furthers an important government interest;
2. That government interest is unrelated to the suppression of the message; and
3. The impact on speech is no greater than necessary to further the important government interest.

(Burning U.S. flag, burning a cross, public nudity)

Question 35

Obscenity

Answer 35

TEST- expression is obscene if:
1. It appeals to the prurient interest (average person standard applying community standards);
2. It is patently offensive in its sexual portrayal (any law prohibiting obscene material must specify what is deemed patently offensive);
3. Taken as a whole, the material lacks serious literary, artistic, political, or scientific value (based on a national standard).

Question 36

Commercial Speech

Answer 36

Unprotected commercial speech- not protected if:
a) False, misleading, or deceptive, or ;
b) Illegal or concerns illegal activity.
The government may regulate unprotected commercial speech.

Protected commercial speech-
Government can only regulate protected commercial speech (not misleading or unlawful) if the regulation:
1. Serves a substantial government interest;
2. Directly advances that government interest; and
3. Is narrowly tailored to serve that government interest.

A valid commercial speech regulation must be narrowly tailored, but not necessarily the least restrictive means.