Con Law

Question 1

What are the requirements for a case or controversy to exist?

Answer 1

1) Standing

2) Ripeness

3) Mootness

4) Political Question Doctrine

Question 2

What is Standing?

Answer 2

A party who has a concrete interest in the outcome of a claim.

Plaintiff must have
1) Injury
2) Causation and redressability

Plaintiff cannot sue solely as a citizen or a tax payer to compel the government to act in a specific.

Question 3

What are the requirements to assert a third party right?

Answer 3

Plaintiff has suffered injury AND

1) Plaintiffs injury affects his relationship with third parties

2) Third party is unlikely or unable to assert their own rights

Question 4

How can an organization bring suit on behalf of its members?

Answer 4

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

Suits on behalf of members:
1) injury to the member would give the member standing
2) Injury is related to the organizations purpose
3) Neither claim nor relief requires the participation of the individual members

Question 5

What is Ripeness?

Answer 5

Dispute needs to be matured enough to sufficiently warrant a decision.

Question 6

What is Mootness?

Answer 6

A live controversy must exist at all stages of a review. If at any point the circumstances causing harm cease to exist after plaintiff files, the case must be dismissed.

Exceptions:
1) wrongs capable of repetition but evading review
2) Voluntary cessation by the defendant
3) Class Action Lawsuits as long as 1 member of the class has an ongoing injury

Question 7

Political Question Doctrine

Answer 7

Political Questions involve issues that the Constitution commits to another branch of the government or are inherently incapable of judicial resolution or enforcement.

Question 8

When does the Supreme Court have Original Jurisdiction?

Answer 8

Under Art. III, Supreme Court has jurisdiction over suits between states and cases involving foreign ambassadors and other foreign ministers.

Congress cannot expand this.

Question 9

What are the methods of Supreme Court Review?

Answer 9

Discretionary review: via writ of certiorari

Mandatory review: the Court must take appeals from three-judge district panels regarding injunctive relief

Question 10

What is a Final Judgment requirement?

Answer 10

Supreme Court only hears cases on review if there has been a final judgments of a lower federal court or a states highest court. The Supreme Court cannot review a state court decision that rested on an independent, adequate state law ground

Question 11

Sovereign Immunity

Answer 11

The 11th Amendment and the doctrine of soveriegn immunity bar suits against the state govts in federal court.

Exceptions:
1) State waives immunity or consents
2) suit involves enforcements of the 5th section of the 14th amendments and Congress has removed immunity
3) Fed Govt brings suit
4) Bankruptcy proceedings

Question 12

How can sovereign immunity be bypassed to sue state officers?

Answer 12

1) injunctive relief for a violation of federal law or the constitution

Question 13

What are the primary powers granted to Congress by the constitution?

Answer 13

1) Taxing and Spending
2) Regulating commerce
3) Establishing uniform naturalization rules and bankruptcy
4) Raising and supporting military

Question 14

What is primary obligation of the executive branch?

Answer 14

execute laws passed by Congress

Question 15

What does the Speech and Debate clause grants Congress?

Answer 15

immunity from criminal and civil prosecution from legislative acts

Question 16

What is the Necessary and Proper clause and what is its effect?

Answer 16

Enables congress to take any action not constitutionally prohibited to carry out its express powers.

This is the implied power granted by the constitution and must be used in conjunction with another power to be a valid use.

Question 17

Explain Tax and Spend Powers

Answer 17

Congress may tax and spend in any way deemed necessary for the general welfare

The taxes must reasonably relate to revenue production (low threshold)

Penalties can be considered taxes if they behave similarly to a tax

Congress can create a regulatory effect by placing conditions on spending as long as they are not overly coercive

Regulatory Taxing:
1) tax’s dominant intent is to raise revenue
2) there is a reasonable relationship between the tax and the regulation (low burden)

Question 18

Where does Congress have Police Powers?

Answer 18

Military
Indian Reservations
Fed land and Territories
District of Columbia

Question 19

Congressional Regulation of Interstate Commerce

Answer 19

Congress may regulate channels, instrumentality, or economic activities that have a substantial effect on interstate commerce. Very broad powers.

Dormant Commerce Clause: limits state laws burdening interstate commerce

Question 20

Congressional Regulation of Intrastate Commerce

Answer 20

Economic Activities: Congress may regulate commercial or economic activities if there is a rational basis to conclude that the activity, in aggregate, substantially affect interstate commerce

Non-economic activities: Congress may only regulate non-economic activity if it has a direct, substantial economic effect on interstate commerce

Question 21

10th amendment limitations on Congressional Power

Answer 21

Under the 10th amendment all powers not granted to the federal government nor prohibited to the states is reserved for the states.

Anti-commandeering Principle: congress cannot require states to enact or administer federal law

When regulations apply only to states they are highly suspect, when they apply to both public and private sectors they are usually valid.

Congress can use conditional grants to induce but not compell state regulatory or legislative action
1) Condition must be expressly stated
2) Condition must relate to the purpose of the law at issue
3) Condition cannot be unduly coercive

Question 22

Congressional delegation of powers

Answer 22

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

Limits
1) congress must provide standards to define the scope of legislative authority it delegates
2) Congress may not delegate executive or judicial powers to itself or its officers
3) Major Questions

Question 23

What are Major questions for agency regulations and what is the effect of their presence?

Answer 23

When an agency adopts regulations with wide-sweeping economic and political significance, need clear congressional authorization and history of asserting such power.

Question 24

What are the 2 types of veto and their effects?

Answer 24

Legislative Veto: Congress cannot veto a decision by an agency acting pursuant to delegated power. Must be overturned by enacting a s superseding law

Line-item Veto: President cannot veto part of a bill. A President must sign or veto an entire bill

Question 25

Appointment Powers

Answer 25

President: can appoint ambassadors, fed. judges, and other high-level officers with advice and consent of senate Congress: cannot give itself appointment powers but can vest power to appoint inferior officer in president, courts, heads of departments or agencies

Question 26

Removal Powers

Answer 26

President: can remove at will, high level, purely executive officers and some heads of independent agencies, Congress can statutorily limit presidents power to remove all other executive appointees Congress: can only remove executive officers through its impeachment power Art III judges cannot be removed during good behavior

Question 27

Impeachment

Answer 27

House can impeach the president, vp, fed. judges, and fed officers for treason, bribery, or high crimes and misdemeanors on a majority vote upon impeachment the senate requires a 2/3 vote for removal from office

Question 28

Presidential Immunity

Answer 28

President is immune from civil or criminal suits. the immunity is absolute for civil suits arising from official actions taken while in office and from criminal suits for actions within their conclusive and presclusive authority and a presumption of immunity for all other official acts taken while in office and after Executive Privilege: protects against disclosure of presidential papers and conversations, but important government interest can override this privilege, not applicable against state subpoenas

Question 29

Article II Powers

Answer 29

Article II gives the president authority to make treaties, appoint ambassadors, and act as commander in chief of the military

Question 30

Treaties

Answer 30

Agreements between the us and foreign countries negotiated by the president. They become effective upon ratification by 2/3 of the senate Conflicts w/ state law - treaty prevails w/ fed law - most recent prevails w/ constitution - const prevails

Question 31

2 Forms of Preemption and their effect

Answer 31

Express preemption: if a fed. law provides that it is the exclusive authority in a given area, it preempts state and local laws in that area. Preemption provisions are narrowly construed. Implied Preemption: if a fed law is silent on preemption, it implicitly preempts state law in 3 situations 1) Mutual exclusivity - fed and state laws are mutually exclusive (state laws can be stricter but may not provide less) 2) State Law Impedes a fed objective 3) Congress evidences a clear intent to legislate exclusively and or preempt states

Question 32

What is the Dormant Commerce Clause?

Answer 32

Despite Congress' broad commerce power; where it has not acted, state and local laws may regulate local aspects of interstate commerce if the regulation is neither discriminatory nor unduly burdensome A state/local law regulating interstate commerce is invalid if it: 1) discriminates against out0of-state competition 2) unduly burdens interstate commerce or 3) regulates wholly out-of-state activity

Question 33

What are the exceptions to the dormant commerce clause?

Answer 33

1) furthers an important, non-economic state interest and no reasonable alternatives are available 2) state is a market participant and may favor its own citizens in buying or selling products, hiring, giving subsidies 3) traditional government 4) congressional approval

Question 34

Article 4 privileges and immunities

Answer 34

States may not discriminate against non-state residents - state law is intentionally protectionist and concerns rights relating to important commercial activities - corporations and aliens are not protected Analysis 1) relates to civil liberties or commercial activities 2) is not necessary to achieve an important govt interest

Question 35

Analysis of state taxation of interstate commerce

Answer 35

State taxes must have a substantial connection to the state an may not tax in a way that discriminates against interstate commerce, helps in-state business, or discriminate against interstate commerce Analysis: Does the tax discriminate against interstate commerce 1) yes: invalid: violates dormant commerce clause 2) no: does the burden placed on interstate commerce outweigh its benefits to the state? a. substantial nexus to significant in-state activity b. fair apportionment to only the activity connected to the state c. fair relationship to services or benefits provided by the state

Question 36

Intergovernmental immunity

Answer 36

States may not directly tax or regulate the fed. government property or activities without consent of congress unless they are indirect and non-discriminatory taxes

Question 37

Full Faith and Credit

Answer 37

Certain state judgment must be recognized and enforced in other states and federal courts as a matter of right 1) court that rendered the judgment had jurisdiction over the parties and subject matter 2) judgment was on the merits 3) judgment was final

Question 38

Constitutional requirement for government action

Answer 38

Constitution applies only to government action, private conduct does not have to comply to the constitution except for: 1) Exclusive public functions performed by private entities 2) Significant state involvement by authorization or facilitation 3) indirectly through the commerce clause

Question 39

What is the Incorporation clause of the bill of rights?

Answer 39

causes some aspects of the constitution to also apply to local and state governments because of the 14th amendments due process clause exceptions: 1) 3rd amend. right not to have soldiers quartered in homes 2) 5th amendment right to grand jury indictment 3) 7th amendment right to jury trial in civil cases while the 14th amendment does not directly apply to the federal government it has been held to be applicable through the 5th amendment due process clause

Question 40

Enforcement of post civil war amendments

Answer 40

The 13th, 14th, and 15th amendment each contain an enabling clause authorizing Congress to adopt appropriate legislation to enforce the rights these Amendments guarantee.

Question 41

13th amendment

Answer 41

Prohibition on slavery and involuntary servitude applies to private action by its terms

Question 42

14th amendment

Answer 42

Prohibits states from depriving any person of life, liberty, or property without due process and equal protection - Congress can adopt legislation to enforce rights and guarantees, but may not expand existing, or create new, constitutional rights Requirements 1) point to a history and pattern of state violation of rights and 2) be proportional and congruent to solving the violation

Question 43

15th amendment

Answer 43

Prohibits state and fed governments from denying any citizen the right to vote on the basis of race or color

Question 44

3 levels of scrutiny for government acts under substantive due process and equal protection

Answer 44

Rational basis intermediate scrutiny Strict Scrutiny

Question 45

Rational basis

Answer 45

a law will be upheld if it is rationally related to a legitimate government purpose 1) any conceivable legitimate purpose, regardless of actual purpose 2) a law will need to be completely irrational or arbitrary 3) burden of proof is on the challenger

Question 46

Intermediate Scrutiny

Answer 46

a law will be upheld if it is substantially related to an important government purpose 1) government goal must be important courts look at the actual reason the law was enacted 2) burden of proof on the government

Question 47

Strict Scrutiny

Answer 47

a law will be upheld if it necessary to achieve a compelling govt interest 1) must show there is no less restrictive or burdensome means of achieving its goals 2) courts look towards the actual reason for the law 3) government bears the burden of proof

Question 48

Equal Protection Application

Answer 48

14th amendment EP clause applies directly to state and local government EP applies to the fed government by incorporation through the 5th amendment due process clause EP applies the same standards as due process

Question 49

Equal protection analysis

Answer 49

1) Is there discriminatory classification? 2) What level of scrutiny applies to the classification - suspect classifications (strict), quasi-suspect (intermediate), all other (rational basis) 3) does the classification satisfy the appropriate level of scrutiny

Question 50

Proving discriminatory classifications

Answer 50

1) law discriminates on its face 2) facially-neutral law applied in a discriminatory manner 3) discriminatory motive/purpose behind law and/or application a) show disparate impact of the law (effect) b) show the law was enacted or maintained for discriminatory reasons (motive) 4) challenger bears the burden

Question 51

Classifications receiving rational basis review

Answer 51

Alienage if classification relates to self government or the democratic process any classifications not included in strict or intermediate

Question 52

Classifications receiving intermediate scrutiny (quasi-suspect)

Answer 52

Gender Non-marital children

Question 53

Classifications receiving strict scrutiny (suspect)

Answer 53

race national origin alienage right to travel right to vote

Question 54

Race and National Origin review standards

Answer 54

Strict scrutiny when they are Benefiting minorities: 1) quotas - to be valid require clear proof of persistent and readily identifiable discrimination, which cannot be based on general past wrong, unlikely to be upheld 2) public and higher education - diversity is not a compelling interest sufficient to overcome strict scrutiny at any level of education, unlikely to be upheld for public schools or higher education programs that directly tie race to admissions decisions

Question 55

Alienage Classifications

Answer 55

Citizenship status is subject to strict scrutiny exceptions 1) related to self-government and the democratic process a) upheld for voting, jury duty, policing, teaching, probation officer 2) congressional law regulating immigration a) congress has plenary powers to regulate immigration undocumented immigrant are not a suspect classification

Question 56

Gender and non-marital children classifications

Answer 56

Gender receives intermediate scrutiny review + "excessively persuasive justification" creates a heightened intermediate scrutiny classifications benefiting woman that are based on stereotypes are impermissible but classifications designed to remedy past discrimination or differences in opportunity are likely to be upheld Non-marital children applies intermediate scrutiny when a law applies benefits to marital children while denying benefits to non-marital children are unconstitutional on their face

Question 57

right to travel

Answer 57

Strict scrutiny travel bans between states are generally not upheld Durational residency requirements that require a period of in-state residency to qualify for a benefit 1) invalid residency, 1yr residency for welfare, standardized medical care, voting in state elections 2) valid requirements - 30-day residency to vote in state elections, 1yr residency to divorce

Question 58

right to vote

Answer 58

strict scrutiny one person, one vote requirement must be met for all state and local elections at-large elections there is a constitutional right to vote

Question 59

Procedural Due Process

Answer 59

A fair process is required for govt to take or deprive a persons life, liberty, or property from an individual. Analysis: 1) Has there been a deprivation of life, liberty, or property? a) liberty deprivation of a constitutionally protected right b) Property deprivation of a legitimate claim or entitlement to a benefit under law, which goes unfulfilled 2) what procedures are required? a) balancing test: importance of individual interests, value of procedural safeguards, government interest b) usually fair procedures an unbiased decision-maker, and notice of the action

Question 60

Substantive Due Process

Answer 60

Determination of whether the government has adequate reasons for depriving life, liberty, or property, either fundamental or non-fundamental Applicable scrutiny 1) non-fundamental rights - rational basis 2) fundamental rights - strict scrutiny

Question 61

Difference between substantive Due Process and the Equal Protection Clause

Answer 61

SDP: involves laws effecting the rights of all persons to engage in some conduct or activity EP: usually involves laws treating certain people or classes of differently than others, often based on some trait

Question 62

due process for Economic Rights

Answer 62

rational basis test - minimal liberties for economic liberties - rational basis applies unless infringement falls under the contract clause or takings clause

Question 63

due process for the Contract Clause

Answer 63

states cannot impair existing contractual duties - applies only to state/local interference with existing contractual obligations, including government obligation - levels of scrutiny a) private contracts - intermediate scrutiny, substantially impairs a party's rights under an existing contract unless it serves an important, legit public interest and is reasonable and narrowly tailored b) government contracts - strict scrutiny, must be reasonable and necessary to serve an important public purpose

Question 64

Ex Post Facto Clause

Answer 64

Are prohibited. An ex post facto law, criminally punishes a conduct that was lawful when done, increases punishment for a crime after it has been committed or reduces the burden required to convict a person for a crime after it has been committed. Does not apply to civil liability where legislation only needs to meet rational basis.

Question 65

Bill of attainder

Answer 65

legislative acts that punish specific individuals or group members without a judicial trial

Question 66

Takings clause analysis

Answer 66

Just compensation must be given for any government taking including damage done to property. Analysis 1) Has there been a taking? Possessory or Regulatory 2) is the taking for public use? reasonable belief the taking will benefit the public 3) is just compensation paid? measured in terms of loss to owner

Question 67

What is the difference between a possessory and a regulatory taking?

Answer 67

Possessory takings are when the government takes or occupies physical property Regulatory takings are when government action that adversely affects property value, the measure of the taking is determined by the extent of the economic interference. 1) denial of all economic value requires compensation 2) denial of nearly all value depends on social goals promoted, diminution to the owner and interference with owners investment expectations

Question 68

Which amendments deal with the deprivation of fundamental rights?

Answer 68

5th amendment substantive Due Process, applies if a right is denied to all 14th amendment equal protection - applies if a right is denied to some but not others

Question 69

What are fundamental rights provided by the constitution?

Answer 69

Right to privacy Right to Vote Right to Travel

Question 70

Right to Privacy applies to what actions and at what level of review?

Answer 70

Strict Scrutiny: Marriage, Procreation, Custody of Children, keep family together, raise children, contraceptives Separate or unknown review: engage in private, homosexual activity and right to refuse medical treatment

Question 71

How does Free Speech Protections work?

Answer 71

1st Amendment protects freedom of expression, including freedom of speech, of the press, of assembly, and of association. Protected Speech- where protected speech is at issue, the level of scrutiny depends on whether the speech is restriction is content based. Content based restriction - strict scrutiny content-neutral restriction - intermediate scrutiny Unprotected or lesser protections are granted to obscenity, commercial speech Freedom of the Press: strict scrutiny. narrowly tailored to further a state interest of the highest order

Question 72

How do public forums alter the way the government may regulate speech?

Answer 72

Public forums are government property that is constitutionally required to make available for speech. Test for Public Forum Restrictions 1) content-neutral 2) narrowly tailored to serve an important government purpose 3) leave open alternative, adequate channels of communication, but they do not need to be the least restrictive means Designated public forums - government property that is opened for speech on a limited basis, uses the same test as a public forum but when the venue is not opened speech may be prevented.

Question 73

How do limited public forums alter the way the government may regulate speech?

Answer 73

Limited public forums are not public forums but they are opened for specific speech activity. Test: viewpoint neutral and reasonably related to legitimate government purpose

Question 74

Non-public forum

Answer 74

government property that can be closed to speech activity (military bases/ airports) test: reasonably related to some legitimate purpose and is viewpoint neutral speech can be limited based on subject but not view point

Question 75

What are prior restraints and when can the government use them?

Answer 75

Prior restraints involve a court order or other ban on speech or publication before it occurs. Strict Scrutiny Test: some significant government interest that justifies the restraint beyond theoretical, with safeguards that are narrow, reasonable, and definite, and that provides for prompt judicial determination

Question 76

What does it mean for a law to be vague?

Answer 76

a law is vague if a reasonable person cannot tell whether speech is prohibited or permitted

Question 77

What does it mean for a law to be overbroad?

Answer 77

Over-breadth means a law regulates substantially more speech that the constitution allows to be regulated by regulating both unprotected and protected speech. An over-breadth law cannot be enforced against anyone.

Question 78

What is symbolic speech?

Answer 78

refers to expressive or communicative conduct test: 1) regulation furthers important government interest 2) the government interest is unrelated to suppression of the message 3) the impact on speech is no greater than necessary to further the important government interest

Question 78

How does freedom of speech after the right to not speak?

Answer 78

The government cannot compel a p[person to express a message with which the person disagrees the government may use tax revenue to express a government message accommodation laws are considered overbroad if they compel speech

Question 79

What are the steps to determine a valid state statute?

Answer 79

1) law must be enacted with the states powers 2) it must not violate constitutional rights 3) it must not unduly burden interstate commerce

Question 80

How do you determine the validity of a federal statute or action?

Answer 80

1) must be rationally related to an enumerated power 2) necessary and proper to effectuate the power

Question 81

CREATES DICE stands for the congressional enumerated powers, what are they?

Answer 81

Civil Rights Elections Admiralty Taxation Eminent Domain Spending and Taxing Defense Interstate Commerce Citizenship External (foreign) Affairs

Question 82

Incitement Test

Answer 82

1) substantial likelihood the speech will bring about imminent illegal activity 2) the speach is aimed at causing imminent illegality

Question 83

Obscenity Test

Answer 83

1) appeals to prurient interests 2) It is patently offensive 3) taken as a whole, the material lacks serious literary, artistic, political, or scientific value

Question 84

Protected Commercial Speech

Answer 84

Not misleading and lawful activity can be restricted: 1) there is a substantial government interest in regulating the speech 2) the regulation directly advances that government interest 3) the regulation is not more extensive than necessary to serve that government interest must be narrowly tailored but not necessarily the least restrictive alternative