Constitution - Essay rules

Question 1

ISSUES CHECKLIST - 6

Answer 1

1. RAMPS
2. State Action
3. Limits: 11 A, 10A, Delegation
4. S: Sup / Preemp | DCC | P and I | Ks Clause
5. F: C (Commerce, Tax & Spend), Executive, Judiciary
6. TRADES: Takings, Religion, Ass, DPC, EPC, Speech

Question 2

STANDING

Individual Standing

Answer 2

Fr stndng, a P mst shw (1) i-i-f (concrete and partic; fr injunc or dec relief, satsfied if imminent) (2) csd by allgd unlwfl gov actn, and (3) redressability (likely, as opposed to speculative, a favrble ct decsion will elim the injury).

Question 3

STANDING

Organization Standing

Answer 3

An org may bring an action of behalf of its members if (1) its members have standing, (2) the interests at stake are germane to the org’s purpose, and (3) neither the claim asserted nor relief requested req individ members’ part in the lawsuit.

Question 4

STANDING

Taxpayer Standing - A fed taxpayer has standing….

Third Party Standing - 3P standing is allowed

Answer 4

Taxpayer Stndng: A fed taxpayer hs stndng to challenge a measure (1) enctd u/ Con’ T and S pwer (2) tht exceeds some specific limit on the pwer. The Est Clse is only limit on th pwer. _H,T

3P Standing is allowed whn (1) a 3P is unable to assert its own rights, and (2) a P w/ standing (a) has a close r/ship with the 3P, or (b) suffers an injury that adversely affects the P’s r/ship w/ th 3P resulting in an indirect violation of 3P’s rights. _H,T

Question 5

STANDING

Mootness

Ripeness

Advisory Opinion

Answer 5

Mootness: There must be a live controversy at all review stages. _H,T

Ripeness: Ripnss refers to readiness of case for lit. A FC will nt consider a claim b4 it ful dvlps; to do so is prem, and any potntial injury speculative. _H,T

Advisory Opinion: A FC may not render AOs on th cx’ality of proposed action or leg, bt may grant a dec j/ment whn th challngd action poses a real and immediate danger to a party’s interests. _H,T

Question 6

STATE ACTION

Answer 6

The Cx only prohibits govtal infringement of cx rights, so P must prove there was state action. This occurs when the action performed is one that is a traditional public function, or the govt is heavily entangled in the action.

Question 7

10th AMENDMENT

Answer 7

The 10A prvds pwrs nt grntd to th fed gov or prhbtd to th states are reserved to the states. Congress cannot compel states to implement specific state legislation.

_{H, Congress did not intrude into an area left to the states under the 10A b/c [Reg] was within Congress’ enumerated power to [regulate ISC / tax and spend]. Thus, there was no 10A violation.}

Question 8

SUPREMACY CLAUSE

If fed law preempts …

Answer 8

If fed law preempts state lw, th state lw will be invalid u/ the Sup Clause. The USCx and fed laws made pursuant to it are the supreme laws of the land and may either expressly or impliedly preempt local laws.

Fed law exprssly preempts state lw whn (1) the Cx makes fed pwer exclusive, or (2) Congss encts leg’n explicitly prohbtng state regualtion in the area._H,T

A fed law impliedly preempts a statte if (1) fed and state laws are mutually excl, (2) state law impeds the obj’s of fed law, or (3) Congss evidnces a clear intent to preempt the field.

Question 9

11th AMENDMENT

The 11A prohibits…

Answer 9

The 11A prohibits FCs from hearing a private party’s claims against a state govt. Actions cn be brought against [state officers to enjoin future conduct that violates the US Cx or fed law].

• ^{H, Oilco could not file suit against State X, but if Oilco named the state officers enforcing the statute as Ds, the action could be heard in federal court.} *
• ^{Thus, Oilco’s suit was not prohibited by the 11th Amendment.}*

Question 10

DELEGATION OF LEGISLATIVE POWER

Because…

Answer 10

B/c Congress is vested by Art I with “all leg powers”, it may not delegate that power to any other branch of govt., but delegation of some of Congress’ authority to the Exec branch has been held cx’l sla Congress specifies an “intelligble principle” to guide the delegation.

_{<em>H, Congress authorized _ to carry out a statute “…”. This delegation was valid b/c each of the regulations was an intelligble standard. Thus, valid delegation of legislative power.</em>}

Question 11

TAXING AND SPENDING POWER

Answer 11

Congress has the power to T and S for the general welfare, and to condition states’ receipt of fed funds sla the condition is related to the purpose for which the funds are granted.

_{H, the purpose of the federal funds are to… [implementing seatbelts improved highway safety]. [Regulation]’s condition on states’ receipt of funds was related to the purpose of the federal funds. Thus, the Regulation was within Congress’ enumerated powers.}

Question 12

COMMERCE CLAUSE

then, only if applicable (ie state acting):

DCC

(1) Discriminatory

• Exception: Market Participant
• Exception: Trad. Govt Function

(2) Unduly Burden ISC
* When there is a DCC issue, see if facts also tirgger Privileges and Immunities issue, especially when a regulation involves a state discriminating against other states.*

Answer 12

Cngrss may exrcise pwers spcfclly enmrtd by USCx. The CC empwrs Cngrss to reglte foreign and ISC. Cngrss hs pwer to reglte (1) channels, (2) instrumntlities and (3) any activity that substntially affects ISC, prvdd reg does nt infringe any cx right.

[W/ rspct to ecnmc actvties, ala ct cn imagine a RB for cncldng the total incidence of th activity in the aggregte substntially affects ISC, Cngress cn regulte small pieces of th total.]_H,T

DCC A state may regulate an area of ISC if Cngrss has nt enctd laws sla its statutes do nt (1) discrim against o-o-s commerce, or (2) unduly burden ISC.

(1) A state law discriminates agnst o-of-s comp if it protects local ecnmc intrsts at the expnse of o-of-s comp. If a statte is discrim, the statte may be valid if (1) it furthers an imprtant nonecnmc state intrst, and (2) there are no reas nondiscrim alternatives._H,T

[Exc: Market Partic]: A state may prefer its own citizens whn acting as a mp. _H,T

[Exc: Trad Govt Function]: A reg relating to a state perfrmng a trad govt function is valid. _H,T

(2) Unduly Burden ISC (only do if no discrimination) A nondiscrim state law may be invlid if the burdns on ISC outweigh the promotion of legit state intrst. In balancing the state law objective against the burden on ISC, cts consider whthr thre are less-restrictive alternatives._H,T

In conclusion,

Question 13

DUE PROCESS

The DPC…

Procedural Due Process

When govt action…

Answer 13

The DPC [5/14] prvds th gov shall nt tke an indiv’s L,L, or P w/out DP of the law.

• PDP: Whn GA advrsly affects L or P intrsts, ct asks 2q’s in detrmnng PDP: (1) threatnd intrst protctd?, (2) if yes, wht prcss is due P?
  
  • Threatened Interest Protected
    
    • “Prop” intrst invlves mre thn an abstract need or desre for a benfit. Must be a legit. claim or enttlmnt / S or F law. _H,T
    • Lib deprivtn occrs whn a prsn loses (1) phy fredom, (2) fun rights, or (3) choice. _H,T​
  • Prcss Due P If GA threatns a prtectd intrest, ct consid 3 factrs in detrmnng PD: (1) private intrst affectd, (2) value of procdurl safeguard and (3) fiscal n admin burden in prvdng the + or substttd prcss._H,T

Question 14

DUE PROCESS

Substantive Due Process

Answer 14

The SDP clause guarntees th fairness of lw and tht lws will be reas and nt arbitrary. If a fund right is involved, the ct applies SS; If no fund right is involved, th ct applies RB.

Question 15

EQUAL PROTECTION

Answer 15

EPC/DPC prvids all prsns are enttled to EP of th laws. EP iss arse whn gov trts sim situtd indvdls dffrntly bsd classf amng indvduals.

• State Action
• Class - FR - If FR is involved, ct applies SS. (1A, Travel, Privacy)
• Class - SC[NatOrgn/Rce/Alieng] Whn law clssfies bsd on a sspct clss, SS app IF intnt on prt of gov to dsscrm. If no discrim intnt, RB app. Discrim Intnt cn b shwn (1) facially, (2) as appld, or (3) whn discrim motive.
• Class - [Gndr/Legit] Whn law class bsd on [g/l], IS app IF intnt on prt of gov to discrim. If no discrim intnt, RB app. Discrim Intnt cn b shwn (1) facially, (2) as appld, or (3) whn discrim motive
• Class - [Age/Disablty/Wealth/undoc aliens] Nn-sspct class. are sbjct to RB.

Question 16

Free Exercise Clause

The FEC prohibits …

Answer 16

The FEC prhbts th govt frm interfring w/ the exercise of rel. Gov intrfrnce in rel dpnds on whthr it invlves rel (1) B, or (2) C. Laws designed to intrfere with rel must meet SS.

(1) B: The frdm to belve in any rel or nne at all is absltly protctd and cnnt be restricted by law. The gov may nt deny benfits or impose burdns based on rel beliefs. _H,T
(2) C: Rel cndct is not absltly prtctd. Gnrly, lws tht intntionlly targt rel cndct b/c it is rel’ly motivated or displays rel Bs are sbjct to SS. Neutral laws of general app tht have the incidental effect of intrfering with one’s ability to engage in rel conduct are subject to RB. _{H, intntionlly targeted b/c. U/ SS, Gov had compelling interest.. Law was not lrm to achieve b/c. Thus, would nt hav passed SS.}
* _{H, law was generally applicable b/c… (apply rb). Thus, unlikely SC wld overcome RB.}*

Question 17

FREEDOM OF RELIGION

Establishment Clause

The Est Clause prohibits…

Answer 17

The EC prohibits the govt from establishing a rel or endorsing / supporting a rel. When a govt program prefers one rel over another, or r over n-r, SS applies. _{<em>H, (apply SS if did have preference, if not, Thus “there was no sect preference”). </em>}

U/ th Lemn Tst, a lw tht hs sme r/ship to rel bt does nt discrim against rel will be uphld if

(1) it hs seculr prpse, (2) its prmry effct does nt advnce or inhibit rel (incidntl effcts allwd), and (3) it does nt excssvly entngle th gov w/ rel.

Question 18

FREEDOM OF SPEECH

1A (14A) - Freedom of Speech

• Limits on Regulation (PROVUD)
• Content-Based v Content-Neutral
• Time, Place, Manner Restrictions - The govts ability…
• Commercial Speech
• Government Employee
• Unprotected Speech

Answer 18

The 1A (14A) reqs the govt to not interefere with the FoS. _H

Limits Govt is ltd in hw it reglts spch. Spch reg mst nt be PROVUD.

• A PR reglts spch in advnce of exprssion. Gnrly presumd unCx, excpt whn (1) partic harm cn be avoidd, & (2) procdrl safgurds provdd to speakr, incl. narrwly drwn, reas, & defnte stndrds. _H,T
  
  • Collat Bar Rle prvnts indvdls frm challngng a ct order if they disoby order b4 appealing it through approp proceedings. Cts preserve their abilities to direct th methods for challngng judicial ordrs to ensure tht individuals do nt become th jdges in their own cases.
• Lw is O whn prhbts prot & unprot spch, reg sub mre spch thn nec.
• Lw is void for V if it gvs no reas ntce as to wht spcfc spch is prtctd.
• Lw tht gives reg’ing offcls UD is void on face. Reg mst define stndrds as to hw to apply law to prvnt UD over spch.

Question 19

FREEDOM OF SPEECH

• Limits on Regulation
• Content-Based v Content-Neutral If govt regulates…
• Time, Place, Manner Restrictions - The govts ability…
• Commercial Speech
• Government Employee
• Unprotected Speech

Answer 19

If govt reglts spch content, reg is sbjct to SS. CN spch regs are sbjct to IS.

• CB U/ SS, govt may reg spch content if the reg is [SS]. _{Here, the reg [was/not] c-b b/c [__]. [H/e, SS did nt apply if the speech was unprotected.]}
• CN CN spch regs are sbjct to IS and uphld if govt shws…. _{H, reg was c-n b/c [__].}…

Question 20

FREEDOM OF SPEECH

• Limits on Regulation
• Content-Based v Content-Neutral
• Time, Place, Manner Restrictions - The govts ability…
• Commercial Speech
• Government Employee
• Unprotected Speech

Answer 20

Govs abilty to regulte T,P,M of spch varies w/ forum in whch spch takes place.

• Public may be T or D. Trad pfs are his ass. w/ expression. Des pf is nt his usd for spch actvties, bt govt opens for sch use. To be valid, govt spch reg in PFs mst be (1) c-n, (2) [IS], and (3) leave open alt comm channls.
• Nn-public is all public prop tht is nt a T or D pf. Govt may regulate spch activities in npfs ala reg is (1) viewpoint neut, and (2) [RBT]. Viewpoint neut means govt may prohibit spch on certain issues altogether, but nt allow only one side of an issue to be presented.
• Private Thr is no 1A right to free spch in a completely private forum, except whn private forum serves a public function.
• No Forum Whn public prop is nt forum, c-n spch regs are subjct to IS and uphld if gov shws…

Question 21

FREEDOM OF SPEECH

• Limits on Regulation
• Content-Based v Content-Neutral
• Time, Place, Manner Restrictions - The govts ability…
• Symbolic Speech
• Commercial Speech
• Government Employee
• Unprotected Speech

Answer 21

Protected spch incl symbolic spch (expressive conduct). Govt reg of symbolic spch is upheld if

(1) the reg is w/in govt’s pwr to enact (eg, police power),
(2) furthers an IGI, (3) unrelated to supressing ideas, and
(4) burdens speech no greater than nec. _H,T

Question 22

FREEDOM OF SPEECH

[Commercial Speech]

[Government Employees]

Answer 22

Commercial Spch: Th 1A prtcts comm spch that is truthful, nt misleading, and concerns lawful activity. Reg of comm spch is permissible whn th reg (1) serves a sub gov intrst, (2) advncs tht intrst dirctly, & (3) is narrwly tailrd to serve tht intrst. _{<em>H, [P] engaged in comm spch b/c [_]. No facts indicated the [flyer/ad] was nt truthful, misleading, and did not concern lawful activitiy. </em>(one sentence on each element).}

Govt Employee: Term. or penalizing a gov e’ee for spch invlving a pblic concrn made outside of e’ment as a citizen is sbjct to SS. Spch an e’ee makes to fulfill a job responsibility receives no 1A prtction.

Question 23

FREEDOM OF SPEECH

Unprotected Speech

Answer 23

Defamation … (in Torts outline)

Obscenity, a form of unprotected spch, can be regulated, based on content. To be considered obscene, the av person, applying contemporary community standards, mst find the material, taken as a whole (1) appeals to the purient interest, (2) depicits sexual conduct in a patently offensive way, and (3) lacks serious political, artistic, literary, or scientific value._H,T

Incitement to Violence The govt may forbid spch that (1) creates a clear and present danger of immintent lawless action if (2) a call to violence uses language calculated to incite unlawful action._H,T

A speaker may be criminally punished for using fighting words. Annoying or offensive words are not fighting words. _H,T

Question 24

FIFTH AMENDMENT - TAKINGS CLAUSE

Answer 24

The 5 TC (14A), prohbts gov frm (1) tak (2) pp (3) for pu (4) w/out jc.

1. _​​_A per se taking almost always fnd whn govt (1) actually apprpriates, destroys, or perm phys invades prop, or (2) perm deprives an O of all econ value, req land be left subs in its natural state.
2. Partial Prop reg does nt require comp. Diff b/w a taking & reg depnds on degree of govt interfrnce. A reg constitutes a partial taking if 3-factor balancing test indicates a taking: (1) econ impact of reg on a prop O (2) extent reg interferes w/ O’s reas, invstmnt-backed expcttions re prpty use and (3) character of the reg, incl. (a) degree it benefits society, (b) hw reg distributes burds & bens among prpty Os, and (c) whther reg violates O’s prpty o/ship attributes (ie right to exclude). _H,T
3. Priv Prop: A prsn w/ real, intang, or tangible prsnal prop intrst may challenge an uncx taking.
4. Public Use: Govt’s exercise of it’s eminent domain pwr is valid sla taking is (1) RR to (2) a LGI.
5. Just Comp: Once a ct determines a taking of priv prpty for public use, it can (1) comp O FMV of prop or (2) term taking and pay O for dgs resulting frm taking._H.T

Question 25

_Contracts Clause_

Answer 25

The Ks clause **prohibits states from enacting any law that retroactively impairs existing Ks rights**. State leg that (1) substantially impairs private Ks are invalid unless the leg serves an (2) **important and legitimate public interest**, and is a (3) **reas and narrowly tailored means of promoting that interest**.

Question 26

_Privileges and Immunities_

Answer 26

The Article IV, Pand I Clause **prohibits a state from discriminating against citizens of anthoer state. “Citizen” does not include corporations.** _{H, the Act treated P, a state Y citizen, differently from State X citizens by forcing P to give up reserved space on RR. The discrimination did not involve a fundamental right. Though RR was not a natural resource, it was State X owned. The discrimination ensured the purpose of the RR purchase to ensure freight rail services for State X industry.}

Question 27

_Presidential Powers_

Answer 27

**P’s pwrs over internal affairs** are **unsettled**. Whn the P acts: (1) w/ th **Exp or Imp** auth of Cong, **P auth is at its highest & action is presmd valid**, (2) whre **Cong is silent**, **P auth is diminished**, & **action is invalid if** it **interfers** w/ operations or pwrs of another branch of govt, and (3) whre **Cong has spoken to the contrary**, P auth is at its **lowest**, & action is **likely invalid**. _{H, P, acting to ..., proposed enactment of leg tht wld "". Cong rejected proposal. Despite Cong’ rejection, P issued EO, whch contained same language as prpsed leg, w/ + lang auth "". Cong was silent on + lang. The + auth to X was connected to prpsed leg Cong rejected, & could not b implemented on its own. W/out Exp or Imp auth of Cong and whr Cong spoke to the contrary, the Order was likely invalid. Thus, P likely did not have authority to issue the order.} _Commander in Chief_: Th P is th **c-in-c of th military**, bt only Cong may formally declare war. **P may take military action w/out a declaration of war in case of hostilities agianst US**. Q of whthr & to wht extent P may act w/out Cong auth is unsettled. *_{H, terrorism ws a form of hostility towards US. Order, in req bus to ..., & in auth X to req ..., helped identify terrorists in US. Since P pwrs were unsettled, Order might be upheld based on P’s role as c-in-c. T, Order might be upheld.}* _10A_: Cong cannt compel states to implement specific state leg b/c 10A prvdes tht pwrs nt granted to Cong or prohib to State are reserved to states. *_{H, Order auth X to req state and local law agencies to assist FBI in .... Though Order compelled states to implement specific state leg, it was an order from P, not backed by Cong. T, Order did nt violate 10A.}*