Constitutional Law

Question 1

Rational Basis

Answer 1

A law is upheld if it is rationally related to a legitimate government purpose.
- Burden is on the challenger.
Court can even make up a legitimate interest that wasn’t foreseen

Most general economic and social welfare legislation falls w/i this limited review category.

Question 2

Intermediate Scrutiny

Answer 2

A law will be upheld if it is substantially related to an actual important government purpose.
- Burden is on the government. Includes GENDER CLASSIFICATIONS.

Question 3

Strict Scrutiny

Answer 3

A law will be upheld only if it is necessary to achieve a compelling government purpose. — - Burden is on the government to show there is no less burdensome means to accomplish the goal. Government almost always fails to meet the burden

Question 4

Procedural Due Process: Questions to Ask

Answer 4

1. Has there been a deprivation of life, liberty, or property?
   - Generally, there must be intentional government action- reckless action at minimum- for liability to exist.
   - Deprivation must be made on an individual basis.
2. What procedures must the government provide?
   - At a minimum, the government must provide a fair and unbiased decision maker, beyond that a balancing test is used. The test examines: importance of interest to an individual, ability of additional procedures to increase accuracy of fact-finding, and the government’s interest.
   - Notice and a chance to respond are usually required before the termination of liberty or a property interest. aka “Pre-Deprivation Hearing”

Question 5

Legitimate Claim or Entitlement to Government Benefits exists when…

Answer 5

= Reasonable expectation of continued receipt (based on law or policy)
Includes: government jobs, social security payments, government licenses, attending public schools

Question 6

Substantive Due Process asks…

Answer 6

Whether the government has an adequate reason for taking a person’s life, liberty, or property.

Question 6

SDP re: 5th Amendment

Answer 6

Applies only to the federal government.
- the 14th amendment extended SDP to state and local government after the Civil War.

Question 7

What level(s) of scrutiny are used to determine if a law or government action is appropriate?

Answer 7

Rational Basis
- A law will be upheld unless it is not rationally related to any legitimate purpose. - - Burden is on the challenger.
- Anything NOT a fundamental right uses rational basis. Ex: laws effecting economic rights.

Strict Scrutiny
- A law will be upheld only if it is necessary to achieve a compelling government purpose. - – The burden is on the government.
- it is rare that a law passes strict scrutiny.
- Applied when there is a fundamental liberty at stake. Fundamental Rights = Strict Scrutiny Examples of FR: privacy-related rights, right to vote, right to travel among states, first amendment rights per SCOTUS

Question 7

Examples of Privacy Rights subject to SDP

Answer 7

Privacy rights include: right to marry, right to procreate, right to purchase and use contraceptives, right to custody, right to keep the family together, other parental rights
- Note that abortion used to be a fundamental right but the matter is now left to the states under rational basis to regulate per SCOTUS.

Question 8

SCOTUS hasn’t established what level of scrutiny under SDP applies to…

Answer 8

• Right to refuse medical treatment
• Right to engage in consensual sexual activity with someone of the same sex
  – However, SCOTUS has ruled that the government has no business nosing in on what goes on behind closed doors between consenting adults (if the activity isn;t commercial).

Question 9

If a regulation burdens an individual’s right to keep and bear arms, the government must show that the regulation is…

Answer 9

consistent with the country’s historical tradition of firearm regulation

Question 10

Equal Protection Clause applies…

Answer 10

• Whenever the government acts, not just laws. Ex: local ordinances, hiring decisions

Question 11

Commercial speech is subject to…

Answer 11

intermediate scrutiny
* Serves a substantial government interest;
* Directly advances that interest; and
* Is narrowly tailored to serve that interest.

Question 11

An EPC claim arises…

Answer 11

whenever the government treats some people differently from others.

Question 12

The steps to take when determining if an EPC has occurred…

Answer 12

STEPS
1. Identify the classification.
2. Determine the level of scrutiny.
3. Determine whether the applicable test is met.
- Note: most government action will fail.

Question 13

Race or National Origin Level of Scrutiny

Answer 13

If the intent was to target a racial or ethnic group, strict scrutiny applies.
- Race and national origin are always viewed under strict scrutiny, even if the act was done for good/benefits the classification.

Question 14

Alienage/Citizenship Level of Scrutiny

Answer 14

Strict scrutiny applies sometimes…
- College teachers goes under the general strict scrutiny.
- But Congress has plenary power to regulate based on citizenship under the Constitution.
- Rational basis applied if state/local government discrimination involves participation in the self-government process. Ex: a state cannot require a notary to be a US citizen, K-12 teachers can be required to be US citizens.

Question 15

Quasi- Suspect Classifications Level of Scrutiny

Answer 15

Intermediate scrutiny applies.
- Most of these involve gender/sex. Ex: Virginia Military Academy case- valid only if the government can show an exceedingly persuasive justification not based on over broad generalizations about men and women.
- Burden on government.
- Includes laws that discriminate against non-marital children. aka illegitimate children.

Answer 16

Rational a
age, wealth, disability

Question 17

The Takings Clause is located within the ______ amendment and states ________.

Answer 17

• the 5th amendment
• “nor shall private property be taken for public use, without just compensation”
  –Note: this is not a source of power, rather it’s a limitation on power and only applies to federal government (the 14th amendment extends to states).
• Eminent Domain allows the government to take your property.

Question 18

All classifications that are not suspect or quasi-suspect are reviewed under…

Answer 18

Rational basis scrutiny applies
- Most government action will pass but not those based on ANIMUS/ a dislike of a group. – Ill will toward a group just for being different is not a legitimate government interest.

Question 19

Regulatory Takings

Answer 19

• Restrictions on the USE of property
• Occurs when the government denies landowner all economically viable use of their land.

Question 19

When a regulation decreases the economic value of land but doesn’t leave it worthless, courts consider…

Answer 19

A balancing test:
- governmental interest
- the economic impact on the owner
- whether the regulation substantially interferes with the owner’s distinct, investment backed expectations
- limitations on use common, almost always totally constitutional re: zoning

Question 20

When is a taking for public use?

Answer 20

When the government acts out of a reasonable belief that the taking will benefit the public.
- the public use requirement is liberally construed

Question 21

In First Amendment free speech cases, public property that historically has been open to speech-related activity is called a __________.

Answer 21

Public Forum

Question 21

Discrimination: Gender is a _____ _____ class and is subject to _____ scrutiny. The _______ has the burden.

Answer 21

quasi-suspect, intermediate, government

Question 22

Define an ex-post facto law.

Answer 22

A law that criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed.

Question 23

Legislative power may be delegated to the executive or judicial branch as long as....

Answer 23

intelligible standards are set and the power is not uniquely confined to Congress.

Question 24

Intelligible Principle Requirement

Answer 24

Congress may delegate rule-making authority to federal agencies through statutes that provide an intelligible principle governing that exercise of authority.

Question 26

What is the one exception where standing is found

Answer 26

if the expenditure was enacted under Congress's taxing and spending power and allegedly exceeds the specific limitation on that power found in the Establishment Clause.

Question 27

Contract Clause- Impairment of Contract (define)

Answer 27

No state shall impair the obligation of contracts- it limits the ability of states or local governments to enact laws that retroactively impair contract rights. - It does not affect contracts not yet made.

Question 28

Standard for Private Contracts (re Contract Clause)

Answer 28

Intermediate Scrutiny - state or local legislation that substantially impairs a party’s rights under an existing private contract is invalid unless the law is a reasonably and narrowly tailored means of promoting an important and legitimate public interest - ex: Imposing a moratorium on mortgage foreclosures during a severe depression did not violate the Contract Clause

Question 29

Standard for Public Contracts (re Contract Clause)

Answer 29

Strict scrutiny - State or local interference with government contracts must meet strict scrutiny, especially if the legislation reduces the contractual burdens on the state

Question 30

A statute will be held to retroactively alter a law if it:

Answer 30

- Makes criminal an act that was innocent when done - Prescribes greater punishment for an act than was prescribed for the act when it was done - Reduces the evidence required to convict a person of a crime from what was required when the act was committed

Question 31

If Congress has not adopted laws regarding a subject, local governments are free to tax or regulate local aspects of the subject area as long as...

Answer 31

the tax or regulation does not discriminate against interstate commerce or unduly burden it - requires a substantial nexus between: - the activity or property taxed and the taxing state - whether the tax is fairly apportioned, and - --- whether there is a fair relationship between the tax and - the benefit the taxed party receives from the state