Constitutional Law

Question 1

Under Article III, Section 2, federal courts have the jurisdiction to hear which types of cases and controversies?

Answer 1

1. Arising under the Constitution, laws, and treaties of the United States;
2. Affecting foreign countries’ ambassadors, public ministers, and consuls;
3. Involving admiralty and maritime jurisdiction;
4. When the U.S. is a party;
5. Between two or more states, or between a state and citizens of another state;
6. Between citizens of different states or between citizens of the same state claiming lands under grants of different states; or
7. Between a state, or its citizens, and foreign states, citizens, or subjects

Question 2

Define

adequate and independent state grounds rule

Answer 2

Supreme Court will not hear an appeal from a state court decision that is supported by adequate and independent state grounds

Question 3

What are the exceptions to the 11th Amendment?

Answer 3

Lawsuits against states are allowed if:

1. State has consented;
2. Suit is for prospective relief (injunctive) against a state officer;
3. United States or another State is the plaintiff;
4. Suit involves enforcement of laws under ​the violations of 13^th, 14^th, and 15^th Amendments and Congress has expressly removed immunity

Question 4

Requirements for a case to be justiciable (i.e. can be heard by the federal courts)

Answer 4

1. Standing;
2. Ripeness;
3. Mootness; and
4. Not a political question

Question 5

Elements required for standing

Answer 5

1. Injury-in-fact: P must show a direct and personal injury caused by alleged action;
2. Causation: D’s conduct must have caused the claimant’s injury;
3. Redressibility: Harm must be one the Court can remedy through their resolution of the case

Question 6

When may a litigant have standing to assert the rights of a third party?

Answer 6

1. There is a special relationship between P and the injured party (e.g. doctor-patient, lawyer-client, parent-child), and the injured party finds it difficult to bring suit themselves; or
2. There is standing via association: an association may have standing to bring suit if (1) any one of its members would have standing, (2) the issue is germane to the association’s purpose, and (3) individual member participation is not required.

Question 7

Do organizations have standing to sue?

Answer 7

Only if:

1. At least one member of the organization would have standing to sue;
2. Interest asserted is germane to purpose of the organization; and
3. Neither claim nor relief requires individual participation of members

Question 8

What are the exceptions to the mootness requirement?

Answer 8

1. Capable of repetition yet evading review: although P’s particular injury will likely become moot before litigation is complete, it is highly likely injury will be repeated in the future;
2. Voluntary cessation: D voluntarily ceases behavior once litigation starts, but could resume at any time; or
3. Class action: As long as one member of class has a ripe claim, resolution of one P’s injury will not defeat mootness

Question 9

What are the sources of Congressional power in the Constitution?

Answer 9

1. Enumerated powers (Article I, Section 8)
2. Implied Powers
   
   1. Necessary and Proper Clause (Article I, Section 8)
   2. Taxing and Spending Power (Article I, Section 8, Clause 1)
   3. Commerce Clause (Article I, Section 8, Clause 3)

Question 10

Does Congress have federal police power to promote the general welfare?

Answer 10

No, it does not have this power.

The answer to any question about whether Congress has federal police power to promote the general welfare will always be “no” on the MBE.

Question 11

Define

Necessary and Proper Clause

Answer 11

Allows Congress to enact any legislation necessary to carry out its enumerated powers

⚠️ Not an independent source of power, only to be used in conjunction with an express Congressional power. Never pick this as a free-standing power of Congress on the MBE.

Question 12

What does the Commerce Clause give Congress the authority to regulate?

Answer 12

Two broad categories:

1. Interstate commerce:
   
   1. Channels (highways, waterways);
   2. Instrumentalities (cars, ships, trucks, airplanes);
   3. Articles moving in interstate commerce; and
   4. Activities that affect interstate commerce
2. Intrastate commerce:
   
   1. Economic: local, instrastate activities that in the aggregate “substantially affect” interstate commerce
   2. Non-economic activities: must substantially and directly affect commercial activity (higher burden)

More info: Commerce Clause

Question 13

What is Congress’ spending power under Article I, Section 8?

Answer 13

Power to “pay the debts and provide for the common defense and general welfare of the United States”

Question 14

Can Congress regulate via its spending power (i.e. place conditions on funding)?

Answer 14

Yes, but the conditions:

1. Must be related to the general welfare;
2. Expressly stated; and
3. Not going to coerce the states into unconstitutional behavior

Question 15

Can Congress pass laws under the General Welfare Clause that are not related to taxing or spending?

Answer 15

No; Congress only has the power to promote the general welfare via its taxing and spending power

Question 16

What are Congress’ war and defense powers?

Answer 16

1. Declare war;
2. Raise and maintain Armies, Navy, and a militia; and
3. Establish military courts and rules governing military

⭐️ Extremely broad power: allows Congress to take whatever action is necessary to provide for the national defense

Question 17

What is Congress’ plenary power over aliens?

Answer 17

Power to admit or exclude aliens for any reason from entering the country

⭐️ Since this is a sovereign power, federal alienage classifications will likely be upheld as long as they aren’t arbitrary

Question 18

What is Congress’ tax power?

Answer 18

General Welfare Clause gives Congress the power to “lay and collect taxes” for any public purpose (Article I, Section 8). Government has no burden to show compelling purpose for the tax.

Question 19

What are the Enabling Clauses in the 13^th, 14^th, and 15^th Amendments?

Answer 19

Gives Congress the power to enforce the 13^th, 14^th, and 15^th Amendments via “appropriate legislation”

Question 20

How can Congress enforce the 14^th Amendment?

Answer 20

Congress has the power to override 11^th Amendment state immunity and pass laws enforcing due process and equal protection as long as:

1. Congress shows historical and widespread discrimination by the state; and
2. Law is “congruent and proportional” to remedying discrimination

Question 21

Define

Anti-commandeering doctrine

Answer 21

Prohibits the federal government from “commandeering” state and local governments to enact and enforce federal regulatory programs (e.g. cannot require local officers to perform background checks for guns, see Printz v. U.S.)

Question 22

Can Congress delegate its powers to other branches?

Answer 22

Yes, Congress has broad authority to delegate regulatory powers to the executive branch or private agencies as long as Congress specifies an “intelligible principle” on which to base regulations. Very low bar, almost always upheld.

⚠️ Note: Congress cannot delegate its war or impeachment powers

Question 23

What are the main powers of the President?

Answer 23

1. Enforcement of laws;
2. Commander in chief;
3. Appointment powers;
4. Removal powers;
5. Pardons; and
6. Veto

Article II, Section 1

Question 24

What are the President’s appointment powers?

Answer 24

Can appoint high-level officers with advice and consent of the Senate

Appointments Clause: Article II, Section 2, Clause 2

Question 25

What is the President's authority as **Commander in Chief**?

Answer 25

* Can only take military action to defend a sudden, hostile attack * **Cannot** declare war (only Congress) ## Footnote ⚠️ The extent of the President's military authority is much contested and unclear. For more info, see [Commander in Chief Powers](https://www.law.cornell.edu/wex/commander_in_chief_powers)

Question 26

What is the **impeachment** process?

Answer 26

**Step 1:** House of Representatives votes to **impeach** (majority vote); then **Step 2:** Senate conducts a trial and votes to **convict and remove** from office (2/3 vote)

Question 27

**Police powers** are reserved to the \_\_\_\_\_\_\_

Answer 27

States. Grants broad authority to enact legislation for the general welfare.

Question 28

What is the **Supremacy Clause**?

Answer 28

Holds that if a federal law **directly or indirectly** conflicts with a state law, federal law will prevail (and state law declared void). Federal laws can either **expressly or impliedly preempt** state law. ## Footnote [Article VI, paragraph 2](https://www.law.cornell.edu/constitution/articlevi)

Question 29

When does a state regulation **violate** the Dormant Commerce Clause?

Answer 29

If regulation: 1. **Discriminates** against out-of-state commerce; 2. **Unduly burdens** interstate commerce; or 3. **Regulates wholly out-of-state** activity

Question 30

Under the Dormant Commerce clause, when are regulations that discriminate against out-of-state actors **valid**?

Answer 30

If: 1. Regulation is **necessary** to achieve **important** government interest and **no reasonable, non-discriminatory alternatives** are available; 2. State is a **market participant** (i.e. acts like a business or consumer); or 3. Regulation involves **traditional government function** (e.g. trash collection), or 4. Congress has **expressly authorized** regulation (i.e. Congress explicitly states that regulation violates Dormant Commerce, but will allow it anyways)

Question 31

If you see a question about a possible **discriminatory interstate tax**, what different provisions of the Constitution could it violate?

Answer 31

1. Commerce Clause; 2. Privileges and Immunities Clause of Article IV (Comity Clause); 3. Equal Protection; and 4. Due Process of the Fourteenth Amendment

Question 32

What is the **4-part test** to decide whether a state tax on interstate commerce is valid?

Answer 32

Tax must satisfy the *Complete Auto* test: 1. Tax must have **substantial nexus** to taxing state (i.e. activity being taxed must have significant relationship with the state); 2. Tax must be **fairly apportioned**; 3. Tax **cannot discriminate** against interstate commerce; and 4. Tax must be **fairly related to the services** provided by the state

Question 33

What is the **Privileges and Immunities** Clause under Article IV? (also called the "Comity Clause")

Answer 33

Mandates that states cannot discriminate against the **fundamental rights or esssential activities** of out-of-state residents ## Footnote ⚠️ Note: Privileges and Immunities does **not** apply to corporations. If you see discrimination against an out-of-state corporation, think Dormant Commerce Clause

Question 34

If a state is discriminating against an **out-of-state corporation**, does the Dormant Commerce Clause or Privileges and Immunities apply?

Answer 34

**Dormant Commerce Clause** → Privileges and Immunities applies to **persons**, not corporations

Question 35

When is discrimination against out-of-state residents **valid** under Privileges and Immunities?

Answer 35

If: 1. There is a **substantial justification** for the discrimination (e.g. protectionism or residents are the "peculiar source of evil" law was intended to fix:); and 2. No **less-discriminatory alternatives** are available

Question 36

Distinguish **Privileges and Immunities** under **Article IV** vs. the **14^th Amendment**

Answer 36

Article IV: Prevents states from discriminating against non-residents 14^th Amendment: prevents states from denying citizens the right to interstate travel (narrowly construed)

Question 37

Does the Constitution protect against wrongful conduct by the **government** or **private citizens**?

Answer 37

The **government**, not private individuals. ## Footnote ⚠️ Exceptions: 1. Individual is performing a task **traditionally performed exclusively by the state** (e.g. running elections); or 2. Individual and gov. are **excessively intertwined****​** * Government must **affirmatively** encourage, facilitate, or authorize activity to constitute sufficient entanglement

Question 38

Test for **strict scrutiny**

Answer 38

Law will be upheld if: 1. It is necessary to achieve a **compelling/crucial** government interest; and 2. Is the **least restrictive means possible** to achieve that interest

Question 39

When is strict scrutiny triggered?

Answer 39

if law involves a **suspect** classification or **fundamental** right

Question 40

Test for **intermediate scrutiny**

Answer 40

Law will be upheld if it is **substantially** related to an **important** government interest

Question 41

Test for **rational basis review**

Answer 41

Law will be upheld if **rationally** related to a **legitimate** government purpose ## Footnote ⭐️ Presumption of validity, any legitimate reason will be upheld as long as it isn't completely arbitrary

Question 42

What does **procedural due process** require (generally)?

Answer 42

If government is depriving an individual of life, liberty, or property, individual must be given: 1. Notice; 2. Opportunity to be heard (i.e. hearing); and 3. Decision by a neutral arbitrator

Question 43

What is **substantive due process**?

Answer 43

Asks whether government has an **adequate reason** to deprive someone of their life, liberty, or property (i.e. *substantive* rights). If fundamental right, deprivation must pass strict scrutiny. If non-fundamental right, must only pass rational basis review. ## Footnote *More info:* [Substantive Due Process](https://www.law.cornell.edu/wex/substantive_due_process)

Question 44

What is the **Contracts Clause?**

Answer 44

Prohibits states from **substantially impairing** *existing* contract duties. ## Footnote Source: Article I, Section 10 ⚠️ Congress can still restrict contracts that will be made in the **future**

Question 45

# Define Takings Clause

Answer 45

Prohibits government seizure of property without just compensation (Fifth Amendment). Also called "eminent domain." ## Footnote Two types: **possessory** and **regulatory**.

Question 46

What is an **ex post facto** law?

Answer 46

Unconstitutional *criminal* law that either: 1. **Criminalizes conduct** that was *legal* at the time it was done; 2. Imposes a **harsher penalty** after crime is committed; 3. **Decreases** prosecution's **burden of proof** for crime; or 4. **Eliminates a defense** available to D when crime was committed (ex. changing statute of limitations)

Question 47

List the **fundamental rights**

Answer 47

1. Right to **travel** (nationally); 2. Right to **vote**; and 3. Right to **privacy** * Marriage * Sexual relations * Child-rearing/parenting * Family members to live together * Contraception

Question 48

How do you determine whether regulation of a fundamental right violates **substantive due process** or **equal protection**?

Answer 48

1. If right is infringed for **all people →** Substantive due process 2. If right is only infringed for **certain classes** of people → violates equal protection

Question 49

What are 3 main powers Congress can use to limit **discrimination by private citizens**?

Answer 49

1. 13^th Amendment; 2. Commerce Clause; and 3. Federal purse power

Question 50

What is the **Equal Protection Clause**?

Answer 50

Holds that no **state** shall make or enforce any law that denies its citizens **equal protection** of the laws (i.e. similarly situated persons should be treated similarly under the law) ## Footnote Source: 14th Amendment *More info:* [Equal Protection](https://www.law.cornell.edu/wex/equal_protection)

Question 51

What are **4 steps** to analyzing equal protection questions?

Answer 51

1. **Is there a classification** *by the government?* * ​​P must prove classification was made with *discriminatory intent* 2. **What is the classification?** * Suspect, quasi, or other 3. What **level of scrutiny** applies? * Suspect = strict * Quasi = intermediate * Other = rational basis 4. Does the government action **satisfy the level of scrutiny**?

Question 52

What are the **suspect** classifications?

Answer 52

1. Race; 2. Religion; 3. Alienage; and 4. National origin ## Footnote ⭐️ Strict scrutiny. Classifications will almost always be fatal.

Question 53

What are **quasi-suspect** classifications?

Answer 53

1. Gender; and 2. Legitimacy ## Footnote ⭐️ Intermediate scrutiny

Question 54

What are **non-suspect** classifications?

Answer 54

1. **Alienage** if: 1. **Federal** alienage classification; or 2. State restriction on alien's participation in **government functions** 2. **​Age** 3. **Wealth** 4. **Sexual orientation** 5. **Disability** 6. **Any other classification** not governed by strict or intermediate scrutiny ## Footnote **⭐️** Rational basis review. Almost always survives equal protection challenge unless **motivated by animus** towards the group

Question 55

To trigger intermediate or strict scrutiny, P must show that the classification was made with \_\_\_\_\_\_\_\_\_\_

Answer 55

Discriminatory **intent.** Showing of disparate impact *without* intent will trigger rational basis review.

Question 56

For **affirmative action** to survive strict scrutiny, what must the government prove?

Answer 56

Action is **necessary to remedy past discrimination** by *specific department or agency* engaging in affirmative action. Past discrimination by private actors and/or society is not sufficient. Must show **evidence** of past discrimination. ## Footnote ⚠️ Exception: quotas are almost never allowed

Question 57

Alienage classifications trigger strict scrutiny **_unless:_**

Answer 57

1. Classification is pursuant to **Congress' plenary powers to regulate immigration;** or 2. Classification is related to **essential government functions and/or processes.** Valid restrictions include: * Voting and jury membership * Working as public school teacher * Working as police officer * Working as probation officer ## Footnote ⭐️ If based on either circumstance, **rational basis will apply**

Question 58

What is the **test** applied to **non-resident discrimination**?

Answer 58

There must be a **substantial** **connection** between the discrimination and a **substantial state interest**. ## Footnote *More Info:* [The Privileges and Immunities Clause](http://nationalparalegal.edu/conLawCrimProc_Public/CongressionalPowers/Privileges&ImmunitiesClause.asp)

Question 59

**Voting** legislation is subject to what level of scrutiny?

Answer 59

If based on anything other than age, residency, or citizenship → **strict scrutiny**

Question 60

List 4 examples of **voting regulations** that have been upheld

Answer 60

1. Reasonable **residency** requirements; 2. Reasonable **registration** requirements; 3. Reasonable **time and manner** regulations; and 4. Denial of voting rights to **felons**

Question 61

When can someone be **fired or prevente**d from gaining public employment for association with a group?

Answer 61

1. D is active member of **subversive organization**; 2. D **knows** about the group's illegal activities; and 3. D has **specific intent** to further illegal activities

Question 62

What does the **First Amendment** protect?

Answer 62

Freedom of expression (speech, press, assembly, & association)

Question 63

When can the government regulate **symbolic speech**?

Answer 63

1. Regulation furthers **important gov. interest**; 2. Interest is **unrelated** to suppression of the message; and 3. Impact on speech is **no greater than necessary** to achieve interest

Question 64

# Define content-based restriction

Answer 64

Restriction based on **subject matter** of expression; i.e. disagreement with the viewpoint or message it contains. Can be either content-based **on its face** or **as applied**. ## Footnote ⭐️ **Subject to strict scrutiny ⭐️**

Question 65

# Define content-neutral restriction

Answer 65

Applies neutrally to all content regardless of viewpoint or subject matter. ## Footnote Ex. time, place, or manner restriction **⭐️** Subject to **intermediate scrutiny**

Question 66

What 5 types of speech **can be regulated** on the **basis of content**?

Answer 66

1. Obscenity; 2. Incitement; 3. Fighting words; 4. Defamation; and 5. Commercial speech ## Footnote ⭐️ Can be regulated as long as statute is narrow, *does not need to meet strict scrutiny*

Question 67

# Define viewpoint neutral restriction

Answer 67

One that restricts **entire categories** of speech, but not viewpoints within a category ## Footnote Ex. Restriction on all Second Amendment speech would be allowed, but restriction on only *anti-*Second Amendment speech would not be allowed

Question 68

When is a **prior restraint** on speech allowed?

Answer 68

Only allowed in **extremely rare** circumstances such as: * During wartime or national security crisis to protect troops/citizens; or * To prevent incitement of violence

Question 69

When can the government regulate speech that is **incitement to violence**?

Answer 69

Regulation must be **narrowly tailored** and only aimed at: 1. Speech that promotes or directs imminent illegal action; and 2. Creates a "**clear and present danger**" of such action

Question 70

What is the 3-prong test to determine whether speech is **obscene**?

Answer 70

1. Appeals to "**prurient interests;”** *(community standard)* 2. **Depicts or describes** **sexual conduct** in a way that is patently offensive to *community standards* and applicable state law; and 3. Lacks serious **artistic, literary, political, or scientific value** as determined by *national standards* ## Footnote ⚠️ Note: Sexual expression that is indecent but not patently offensive is protected by the First Amendment.

Question 71

What is the **four-part test** to determine whether regulation of **commercial speech** is constitutional?

Answer 71

Must satisfy Central Hudson Test: 1. Speech is not **false, misleading, or illegal**; 2. Regulation serves **substantial government interest;** 3. Regulation **directly advances interest**; and 4. Regulation is **not more extensive than necessary** to serve that interest ## Footnote *More info:* *[Central Hudson Test](https://www.law.cornell.edu/wex/commercial_speech)*

Question 72

Are attempts to **limit fighting words** constitutional?

Answer 72

Limitations will almost always fail for being either **overbroad**, **vague**, or **content-based** and thus failing strict scrutiny ## Footnote ⭐️ If you see a question on the MBE with a fighting word statute, it is extremely likely it will be too vague or overbroad

Question 73

3 requirements needed for a valid **time, place, or manner** restriction in a public forum

Answer 73

Restriction is: 1. **Content-neutral**; 2. Leaves open **ample, alternative channels of communication**; and 3. Narrowly tailored to serve **_significant_ government interest** (not compelling gov. interest)