Constitutional Law

What's the Import-Export Clause

"No state shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws."

In regards to voting, a short residency requirement, e.g. _____ days, have been upheld as being constitutional

30 days

What's the deal with the federal postal monopoly?

Apparently the const gives congress a monopoly over the delivery of mail. No other system can be established without Congress' consent. Congress has delegated to the postal service the power to decide whether others may compete with it. Postal service has carved out an exception to its monopoly for extremely urgent letters

If the courts don't invalidate legislation, especially one that subjects state govs to the same regs as the priv sector, because it violates the Tenth Amendment, how is it enforced against congress?

By the political process

Test for symbolic speech, including erotic dance:

Can be regulated to serve important government interests unrelated to the suppression of speech

If a government employer seeks to fire an employee for speech-related conduct when the speech involved a matter of public concern but is not made pursuant to her official duties, the courts must __________

Carefully balance the employee's rights as a citizen to comment on a matter of public concern against the government's interest as an employer in the efficient performance of public service

A state SCT says a guy was denied his right to a speedy trial because of a 50 day delay. He and the trial judge both said they were bound to follow fed interpretations of the speedy trial provisions (which are identical in the state const and the US Const). That's why they granted the motion. The thing is, a 50 day delay doesn't violate the fed const--they were wrong. Now what? Should the court reverse? Remand? Or what?

Court should reverse and then remand so state can see if there is an adequate and indep state ground. You can have greater rights under state const than fed const.

A law makes something illegal. Like cocaine. Why isn't this a deprivation of life, liberty, or property?

DP clause are about laws involving deprivations to an individual. Like on a judicial basis, not a legislative basis. Legislative basis is fine so long as law is lawfully adopted (e.g. everyone has notice).

Test for obscenity

Depiction of sexual conduct that, taken as a whole, by the average person, using contemporary community stds: (i) appeals to the prurient interest in sex; (ii) portrays sex in a patently offensive way; and (iii) using a rational, reasonable person standard, does not have SERIOUS literary, artistic, political, or scientific value. Regarding the prong of patently offensive, a statewide community std may be used, but it is not mandatory--a local comm std may be used too.

When does the gov need to show an exceedingly persuasive justification?

Gender based classifications

If a state court's disposition of the state constitutional issue depended on federal doctrines, is it an adequate and independent state ground?

I don't think it is

Can congress spend for unconstitutional purposes? Is spending okay that is reasonably related to a legitimate federal interest?

No Yes

Does the Senate have the power to enforce ambassadors on the president? What about to the power to advise and give (or withhold) consent to ambassadors the president nominates?

No Yes

Does the president have EXCLUSIVE/PLENARY authority over foreign affairs?

No. Pres has broad authority, but Cong also plays a major role

The Privileges and Immunities Clause of Article IV protects against discrimination by a _____ in favor of its own citizens when it affects ___________.

State A fundamental right

What test is used when the gov discriminates between religions?

Strict scrut

Is it a question of fact whether an ordinance prevents employees from exercising their first amendment rights, which means it should be resolved at trial? Or can it be resolved by a motion to dismiss? The ordinance in question prevents hairdressers with all male employees from catering to only female customers.

This is the type of factual q that should be decided at trial

What's the test for regulating advertising on gov buses or billboards on the sides of gov buildings? What kind of forum is this?

Viewpoint neutral and reasonably related to a legitimate gov interest. It's a commercial forum

Why is it cool for congress to pass a resolution directing the pres to pursue a particular course of foreign policy?

Well cong has some power over foreign policy because of the war power, the treaty power, and power to reg foreign commerce. And resolution is just a suggestion.

Does the right of freedom of association apply to groups in biz and commercial activities?

Yes, though it may be less strong for large organizations that engage in both commercial and expressive activity than for smaller and more selective groups.

If a regulation overbroad but not too overbroad, does the Court allows it to be enforced? If so, against whom?

Yes. Against people whose speech or speech activities are not protected by the Constitution.

The substantive DP clause requires that laws not be _____. They will be upheld so long as they pass ______

arbitrary RBR

define: reprieve

cancel or postpone the punishment of (someone, especially someone condemned to death).

The ex post facto clause applies only to retroactive...

criminal laws!

A prior restraint will be upheld only if ..

it is the only sure way of preserving a fair trial for the defendant.

What are they talking about with stand in the shoes? "Accordingly, in the same sense as is employed in the federal tax immunity cases, the agency does not "stand in the shoes" of the federal government? This is from an explanatory question from the first con law prob set. I literally dono so I'm hoping to [have this filled in]

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Test for retroactive civil liability?

rational basis test

A tax, even though enacted for a regulatory rather than a revenue-raising purpose, can be upheld as a _____. This will be especially true if the revenues derived from the measure are used ___________.

"necessary and proper" exercise of Congress's power to tax under Article I, Section 8, Clause 1 to cover the expenses associated with the federal regulatory scheme

Two adult males set up a tent in a remote and secluded overnight camping area of a state park. A park ranger who happened to be in the area heard them engaging in sexual relations and pulled open the tent flap and arrested them. They were charged and convicted under the state's century-old anti-sodomy statute, which the state still enforced. If the defendants appeal to the state appellate court claiming a violation of their constitutional rights, what should the court do? (A) Reverse the conviction, because the defendants' due process rights were violated when they were arrested in the secluded park area. (B) Reverse the conviction, because consenting adults are free to engage in sexual activity. (C) Uphold the conviction, because the United States Constitution provides no right to engage in sodomy in a private setting. (D) Uphold the conviction, because the defendants were in a state park, a public area.

(A) The court should reverse the conviction on substantive due process grounds. The Supreme Court in Lawrence v. Texas held that a state law criminalizing sodomy between members of the same sex violates the Due Process Clause of the United States Constitution. (C) would have been a correct answer before the Lawrence decision. However, the Supreme Court now holds that the state has no legitimate interest in prohibiting private sexual conduct between consenting adults. (B) is incorrect because it is too broad a statement. The sexual conduct must be conducted in a private setting and must not be commercial in nature. Even though the defendants were in a state park, they had an expectation of privacy because they were in a tent in an isolated location in a park in which overnight camping was permitted. Thus, (D) is incorrect.

The President issued an executive order prohibiting exportation to certain countries of specific computer software that, although not usable directly to develop nuclear weapons, would facilitate nuclear weapons technology. Congress had previously passed a law authorizing the issuance of such orders. Prior to the issuance of the executive order, a computer software company contracted with one of those countries for software that is now banned for sale and distribution. What effect does the executive order have on this contract? (A) The executive order unconstitutionally impairs the obligation of the company's preexisting contract, which was lawful when made. (B) The executive order unconstitutionally denies the company a valuable property interest without due process, because it is not limited to computer software used directly to produce nuclear weapons and, therefore, is not necessary to vindicate a compelling national need. (C) The executive order is constitutional because Congress has plenary powers to regulate commerce with foreign nations and has used that power to authorize such orders. (D) The executive order is constitutional, because the inherent power of the President to conduct foreign affairs is plenary

(C) The executive order is constitutional because it was authorized by Congress. For all practical purposes, the power to regulate foreign commerce lies exclusively with Congress, and Congress may delegate this power to the President. By authorizing the issuance of the Presidential executive order, Congress has constitutionally exercised this power. (D) is incorrect. The President's power is limited by the Constitution, which grants Congress the power to regulate foreign commerce. (A) is incorrect because the impairment of the Contract Clause applies to state governments only, not to the federal. (B) is incorrect because the company's contract right would not qualify as a property interest under the Fifth Amendment.

Due to violence erupting against picketers advocating automatic deportation of foreign persons accused of a crime, a state enacted a law prohibiting all picketing "carried out for the purpose of deterring others from exercising their constitutional rights." The strongest constitutional defense that can be asserted by those charged with violating this statute is which of the following? (A) The Fifth Amendment right to due process of law, because the statute is so vague that reasonable persons cannot ascertain its scope. (B) Equal protection of the laws, because the statute does not prohibit picketing for purposes other than those specified. (C) First and Fourteenth Amendment rights of free expression and assembly, because the statute excessively restricts the marketplace of ideas. (D) Article IV privileges and immunities of state citizenship, because picketing is a fundamental right.

(C) The strongest defense is based on free expression and assembly grounds. It is presumptively unconstitutional for the government to place burdens on speech because of its content. Because the statute regulates content of the speech rather than conduct, the state would need to establish a compelling interest behind the legislation for the law to be valid. This puts the burden on the state to prove the need for the legislation. (A) is incorrect because the Due Process Clause of the Fifth Amendment applies to the federal government, not to the states. (B) is incorrect because any discrimination that may arise from the statute is merely an effect of facially neutral legislation and not subject to the Equal Protection Clause. (D) is incorrect because Article IV prohibits discrimination by a state in favor of its own citizens, which is not the case here.

A federal statute provided: "No speed governing device may be removed from any vehicle if it was installed by the federal government." The statute also provided for criminal penalties for its violation. A driver purchased a previously owned government vehicle with a speed governing device at auction and used the car to drive to and from work. The car struggled to maintain speed above 35 m.p.h. on any incline, nearly causing the driver to be rear-ended several times. Deciding that the device was dangerous, the driver removed it. If the driver is prosecuted for violating the statute, which of the following is her strongest constitutional defense? (A) The statute violates the Due Process Clause of the Fourteenth Amendment. (B) Because no state statute prohibits removal, the federal statute invades interests protected by the Tenth Amendment. (C) The statute violates the Privileges or Immunities Clause of the Fourteenth Amendment. (D) The statute violates the Due Process Clause of the Fifth Amendment.

(D) The only possible basis for a successful challenge against the federal statute is the Due Process Clause of the Fifth Amendment, and thus, by process of elimination, (D) must be correct. (A) is wrong because the Due Process Clause of the Fourteenth Amendment limits state and local government action, not the federal government. Due process limitations are applied to the federal government through the Fifth Amendment. (B) is wrong because the Tenth Amendment is no longer used by the courts as a limit on congressional action that applies to both the public and private sectors. In Garcia v. San Antonio Metropolitan Transit Authority (1985), the Supreme Court held that the Tenth Amendment, as a limit on Congress, is enforced by the political process in such cases. (C) is wrong because the Fourteenth Amendment does not apply to the federal government; it only regulates state and local governments. Moreover, the Privileges or Immunities Clause of the Fourteenth Amendment is rarely used as a basis for declaring laws unconstitutional.

To prevent automobile accidents, a state adopted a statute limiting the use of electronic billboards that periodically change messages. The statute prohibits use of such billboards on any street within the state with a speed limit of 40 miles per hour or above. A national billboard company owns more than 200 billboards within the state that will be affected by the statute. Each of the billboards carries three to four advertisements that change every two minutes. The billboard company has contracts with various advertisers for each of the billboards ranging in length from 30 days to one year. If the statute is enforced against the billboard company, it will be able to carry only one advertisement on each electronic billboard. As a result, it will have to cancel contracts with some advertisers and will experience a reduction in income. In a previous suit involving the company, the United States Supreme Court decided that all of the advertisements shown on the company's billboards involve lawful activities and none is misleading. Moreover, the Supreme Court has found that preventing automobile accidents is an important state interest. If the billboard company brings suit claiming that the statute is unconstitutional as applied to it, who will likely prevail? (A) The billboard company, because the billboards advertise lawful activities and the advertisements are not misleading. (B) The billboard company, because the statute substantially impairs existing contract rights. (C) The state, because the states may regulate speech activities under the police power as long as the regulation is not content based. (D) The state, because the statute is content neutral, is narrowly tailored to serve an important government interest, and leaves open alternative channels of communication.

(D) The statute constitutes a valid time, place, and manner restriction on speech. Government may regulate the conduct associated with speech if the regulation: (i) is content neutral, (ii) is narrowly tailored to serve an important government interest, and (iii) leaves open alternative channels of communication. The statute here does not differentiate based on the content of the advertisements on the billboard. The facts state that the prevention of accidents has been found to be an important government interest. Moreover, the statute appears to be narrowly tailored to serving the interest as it applies only to streets where speed limits are relatively high and accidents would be more dangerous. Finally, the statute leaves open other channels of communication (e.g., nonchanging billboards, billboards on streets with lower speed limits, other types of advertising media, etc.). (A) is incorrect. It focuses on the standard for upholding regulations of commercial speech. A regulation of commercial speech will be struck down if the speech involves a lawful activity and is not misleading, unless the regulation serves a substantial government interest, it directly advances that interest, and it is narrowly tailored to achieving that interest. While the facts indicate that all of the advertisements on the company's billboards involve lawful activities and are not misleading, as discussed above, they also indicate that preventing traffic accidents is an important government interest and that the regulation here is narrowly tailored to serve that interest. (B) is incorrect for much the same reason. It alludes to the Contracts Clause, which prohibits the states from adopting legislation that substantially impairs (i.e destruction of almost all of a party's rights under a contract) a party's rights under an existing contract unless the legislation serves an important public interest and is narrowly tailored to achieving that interest (strict scrutiny is applied to state actions that impair their own contracts). While the facts indicate that the statute here will substantially interfere with existing contracts, from the discussion above, the statute serves an important government interest and is narrowly tailored. (C) is incorrect because it is too broad. Not every content-neutral regulation of speech is allowed under the police power, as discussed above.

US surgeon general cited for contempt for refusing to answer qs as part of a Senate investigation regarding an issue in the Food and Drug Administration. His contempt citation will be dismissed if he can show which of the following in contempt? (a) He is a member of the fed exec branch, and therefore immune from pros (b) The question was about a matter on which the Senate could not legislate?

(b). Only gotta answer qs about matters on which the senate can legislate. That's only thing they can investigate

When faced with a local tax, the SCT will consider whether there is...

(i) tax doesn't discrim against interstate commerce; (ii) a sub nexus between the activity or property taxed and the taxing state, (iii) whether the tax is fairly apportioned, and (iv) whether there is a fair relationship between the tax and the benefit the taxed party receives from the state.

Regulations that merely decrease the value of property do not necessarily result in a taking as long as there remains an economically viable use for the property. The court will consider...

(i) the social goals sought to be promoted, (ii) the diminution in value to the owner, and (iii) whether the regulation substantially interferes with distinct, investment-backed objectives.

MEET: Write Out and Self-Grade Constitutional Law Essay 1: What I did wrong and should have done

1) If overbroad and no judic construct, facially invalid. Won't be enforced against anyone. Okay so I said "But if it potentially punishes too much protected speech, then not even judicial construction will save it." The book didn't mention this, so I'm not sure if that is right. Maybe ANY LAW can be narrowed through judicial construction and be okay. Anyway, statute as narrowed is fine. I think what I got confused on was that a regulation that is broader than it should be but not overbroad--is enforcable against those who engage in the unprotected speech (i.e. in relation to its plainly legitimate sweep, only a tiny bit of protected speech gets dragged in). The phraseology that is good: Overbroad regulations that are overbroad, i.e. that punish substantially more speech than is within tis legitimate sweep, is not enforceable against anyone. Speech that incites IMMINENT LAWLESS ACTION (it's not clear to me whether the lawlessness actually has to happen) and FIGHTING WORDS are not protected. For the former, I think I thought only imminent lawless action concerning violence was unprotected, but apparently not. The answer broke down the statements that Anti-Tax actually made, which I did not do. It noted his prediction of a revolution was not punishable. That wasn't advocating imminent lawless action, or advocating anything really. The refusal to pay tax wasn't encouraging imminent lawless action because the tax wasn't passed yet! It wasn't law. So refusal isn't punishable. The make Tax (the guy's name is Tax) pay is inciting people to imminent lawless action and is punishable. Esp because Arson burned down his house (but book says opp conclusion that the arsonist's actions shouldn't be taken as proof that statement was an immediate call to action is acceptable). That's ev that statement was intended to, and did, cause people to engage in imminent lawless action. I think you need to intend your speech have this effect? But maybe some sort of knowledge of recklessness would also suffice? 2) Again, answer broke down words. A dishonest imbecile prob would not constitute fighting words. Good definition of fighting words I didn't have "any words likely to cause physical retaliation." "Personally abusive epithets that, when addressed to an ordinary person, are likely to incite immediate physical retaliation." I had this whole argument about vagueness that the book didn't make. I also had this whole argument book didn't make about how Anti-Tax might argue that fighting words are protected but they are not protected, so that would be a losing argument.

MEET: Outline and Self-Grade Constitutional Law Essay 2

1) I should know the exact definition of defamation, or at least helpful language: a p may bring a defamation action against a d who makes a false statement about the p. The book came to a diff answer on reckless disregard: it said no, I said yes. It pointed out same editor might not have read both stories--nothing in facts said he did. Book gave credit for both answers though. 2) Trespass definition: intentional physical invasion of a p's real prop cause by the def. First Amendment doesn't give press right to trespass, even if was done in order to investigate a story about a pub fig or a matter of pub concern. I had this whole argument about maybe he'll say his trespass was expressive speech but that will fail. That wasn't on point lol. 3) "Generally, it is a tort to publish priv info about a person--even if it is true--if a reasonable person would object to having the info made public. However, if the matter is one of legit public interest, its publication is privileged if it is made w/out actual malice, esp if the info was obtained legitimately, such as a pic taken in public." Here, Lex can't show actual malice because (i) pic was taken in public and legitimately and (ii) it is true he was having an extramarital affair.

If a criminal law or regulation fails to give persons reasonable notice of what is prohibited, it may violate the ________. This principle is applied somewhat strictly when _________ is involved in order to avoid _______.

Due Process Clause First Amendment activity the chilling effect a vague law might have on speech

Which of the following statements is true regarding Congress's taxing power? A By its terms, the federal power to tax is exclusive. B The federal taxing power allows Congress to tax exports. C Federal taxes must be uniform among the states. D A federal tax is permitted only if Congress otherwise has the power to regulate the subject of the tax.

Federal taxes must be uniform among the states. This means that a federal tax on an item or activity must be the same from state to state. By its terms, the federal power to tax is NOT exclusive. The tax provisions do not prohibit the states from taxing, and thus the states have the power to tax as well as the federal government. The federal taxing power does NOT allow Congress to tax exports. Neither Congress nor the state can tax exports to foreign countries. It is not true that a federal tax is permitted only if Congress otherwise has the power to regulate the subject of the tax. Congress may also tax to raise revenue.

An accountant employed by the Federal Communications Commission was offended by various jokes and cartoons that employees would post in the office cafeteria. The Commission did not have any rules regarding what employees could post in the cafeteria, and none of the cartoons were pornographic or harassing. Nevertheless, the accountant lodged a number of complaints with his supervisor that went unheeded. Finally, the accountant posted his own notice chastising the hypocrisy and immorality of the agency for allowing such cartoons when it was charged with ensuring a standard of decency on the public airwaves. The notice prompted a great deal of debate among employees and a great deal of displeasure on the part of the accountant's supervisor, particularly after it was posted on another employee's blog and received some media attention. A labor contract between the agency and the clerical workers' union contained a policy for providing for termination of union employees only for certain specified grounds, but the accountant was not a member of the union and was not covered by the policy or any other employment agreement. Which of the following statements is most accurate regarding the agency's right to dismiss the accountant? A The accountant has a liberty interest in the exercise of his First Amendment rights that entitles him to a hearing to contest the grounds of his dismissal. B The accountant has a property interest as a public employee that precludes him from being fired without notice and an opportunity to respond. C The accountant has no right to a hearing because his statements were not an expression of views on public issues. D The accountant has both a liberty interest and a property interest that entitles him to a pretermination evidentiary hearing.

If the accountant is fired, he has a right to a hearing to determine whether his First Amendment rights were violated by his dismissal. Under the Due Process Clause of the Fifth Amendment, a person has a liberty interest in the exercise of specific rights provided by the Constitution, including freedom of speech. A government employee may not be fired for expressing his views regarding public issues, but can be fired for speech that disrupts the employer's policies or undermines the employer's authority. Under the Court's expansive interpretation of what a public issue is in this context [see Rankin v. McPherson (1987)], the accountant's statement would probably qualify. At the very least, he can make enough of a showing that his termination violates his free speech rights to be entitled to a hearing on the issue under procedural due process principles. [See Givhan v. Western Line Consolidated School District (1979)] (B) is wrong because the accountant does not appear to have a property interest in his job. A public employee who is subject to removal only for "cause" has a property interest in his job and must be given notice of the charges against him that are to be the basis for his job termination, and a pretermination opportunity to respond to those charges. Here, however, the accountant did not have a property interest in his job. He could have been dismissed for no reason at all. He was not covered by the labor contract between the agency and its clerical workers, and there appears to be no other basis for him to claim an entitlement to continued employment. (C) is wrong because the accountant is entitled to a hearing as long as he can raise a prima facie claim that his speech, which was regarding an issue important to the perception of his agency, was on a public issue and therefore protected by the First Amendment. (D) is wrong for two reasons: As discussed above, the accountant does not have a property interest in his job. Also, due process does not necessarily entitle him to a pretermination evidentiary hearing; a post-termination evidentiary hearing is probably sufficient. [See Cleveland Board of Education v. Loudermill (1985)]

If a regulation is overbroad and prohibits a substantial amount of protected speech when judged in relation to its plainly legitimate sweep, does the Court allows it to be enforced? If so, against whom?

It is facially invalid and cannot be enforced against anyone.

When states buying or selling products, hiring labor, giving subsidies, etc.), they are acting as ...

Market participants!

Mnemonic device for Establishment Clause: SEX

Must be a SECULAR purpose for the law Effect can't be neither advance nor inhibit religion (primary effect, right?) Excessive entanglement with religion

Fed gov passes a law that'll take effect in 2 years. It allows school places to destroy tenure for all schoolteachers and lets all people redo their contracts with unions. School board is like we're totally gonna do that when the law goes into effect. A union is afraid it's gonna get totally screwed when this law takes effect. Can it bring suit now?

NO! Not gonna take efect for 2 years. No immed threat of harm to the union here. Before takes effect, Cong might change the law or repeal it altogether, or the school board may decide to keep the contract it has after all.

State heavily regulates a company with a monopoly on the state lottery. Requires all potential hires to be forwarded to the state. State does background check for crim record. If fail, can't be hired. Is the company's action state action?

NO! Running a lottery is not an exclusive public function, and merely being the exclusive lottery supplier for a state does not constitute significant state involvement, even where the state controls who may be hired. State action will not be found merely because the state has granted a monopoly to a biz or heavily regs it.

For a religious belief to be entitled to const protection, you know that it doesn't need to be theistic? What does it need to be? Is even an internally derived belief entitled to protect?

Needs to occupy a place in believer's life parallel to that occupied by orthodox religious beliefs. Yes

The Free Exercise Clause generally prohibits government acting in a way that interferes with the freedom of religion. Is a state gov allowed to ban all religious clerics from serving on school boards? What about the Lemon test for the establishment clause? Would it pass that?

No way! That would take away a right of citizenship merely because a person has chosen to become a religious cleric No, because this would tend to inhibit religion

When can trials and pretrial proceedings be closed to the public (at least for crim cases, but prob also for civil cases)?

Only if closure is necessary to preserve an overriding interest and the closure order is narrowly tailored to serve the overriding interest. Even though this is a prior restraint, if you satisfy this test you are all good

What's the test when an economic law is challenged on equal protection grounds? Can such a law be "underinclusive"? What's it mean that a law is underinclusive?

RBR. Yes SCt will uphold even if underinclusive. I.e., the law need not address all the problems that prompted its passage--it will be upheld even if it is only a "first step" toward a legitimate goal.

The standard of review in cases involving economic and social welfare legislation

Rationally related to the public interest. Burden on p

Regarding speech restrictions: Because public schools generally are not public forums... If you were gonna fire a public school teacher, do you need a pretermination opp to respond to the charges?

Reasonable restrictions based on legitimate pedagogical concerns rather than the content of the speech are permissible. Yes!

The states are sovereignties apart from the federal government. When the federal government acts within a state, the state may: A Directly tax federal property and instrumentalities within the state B Charge a sales tax on items purchased by contractors acting as purchasing agents for the federal government C Require federal employees who drive as part of their jobs to have a valid driver's license, even when performing job duties D Impose an income tax on persons who receive a salary from the federal government

States MAY impose an income tax on persons who receive a salary from the federal government, as long as the tax is nondiscriminatory and does not burden the federal government. States may NOT directly tax federal property and instrumentalities within the state. States may NOT charge a sales tax on items purchased by contractors acting as purchasing agents for the federal government. This would be a prohibited direct tax. However, states can charge a sales tax to a contractor who is working on a federal project on a cost-plus profit basis, even though the tax ultimately will be borne by the federal government, because, in such a case, the tax is indirect. States may NOT require federal employees to have a valid driver's license to drive within the state while performing job duties. The states may not regulate the federal government without the federal government's consent. Thus, instrumentalities and agents of the federal government are immune from state regulations relating to performance of their federal functions.

What is the STD that applies to laws governing contribution limits for the pol process (not contributions to candidates campaigns)?

Statute must be "closely drawn" to match a "sufficiently important interest," which is an intermed scrut std.

True or false: The power to regulate foreign commerce lies exclusively with Congress, and Congress may delegate this power to the President?

TRUE

Under current Supreme Court precedent, the First Amendment Free Exercise Clause prohibits: A Government regulations that interfere with religious practices unless the government can prove that the regulation is necessary to achieve a compelling government interest B Government from punishing conduct just because it is religious C Government regulations that interfere with religious practices unless the government can prove that the regulation is narrowly tailored to achieve an important government objective D Laws of general applicability unless they have an exception for religiously motivated conduct

The Free Exercise Clause prohibits government from punishing conduct just because it is religious. If the intent of the law is to interfere with religion, or if the law punishes conduct solely because it is religious, the law is invalid. For example, a law may not prohibit ritual slaughter of chickens while otherwise allowing the slaughter of chickens. The Free Exercise Clause does NOT prohibit laws of general applicability unless they have an exception for religiously motivated conduct. Religiously neutral laws of general applicability generally are valid under the Free Exercise Clause without religious exemptions with two historic exceptions: the Amish must be exempted from mandatory schooling beyond eighth grade, and workers fired for refusing to perform tasks on religious grounds may not automatically be exempted from unemployment compensation. The Free Exercise Clause does NOT prohibit government regulations that interfere with religious practices unless the government can prove that the regulation is necessary to achieve a compelling government interest or that the regulation is narrowly tailored to achieve an important government objective. These choices reflect higher standards (strict scrutiny and intermediate scrutiny, respectively) than is currently used in Free Exercise cases. Older cases purportedly applied strict scrutiny, but the Supreme Court seemed often to have to stretch to find a compelling interest in such cases.

The President of the United States and the king of a foreign nation entered into a treaty agreeing that citizens of the foreign nation who reside in the United States would not be taxed by the United States and that United States citizens who reside in the foreign nation would not be taxed by it. The treaty was ratified by the United States Senate and the royal council of the foreign nation. One year after the treaty became effective, the foreign nation began to tax United States citizens within its borders. The President immediately declared the tax treaty to be void and ordered the Internal Revenue Service to tax citizens of the foreign nation living in the United States. Is the President's action constitutional? A Yes, because the President has emergency powers to protect United States citizens. B Yes, under the foreign policy powers of the President. C No, because the treaty is the supreme law of the land, on par with federal legislation, and the President is not free to ignore it. D No, unless the President receives the advice and consent of the United States Senate.

The President's action is constitutional pursuant to his power over treaties and foreign relations.The power to enter into treaties is vested in the President, and his power to act for the United States in day-to-day foreign affairs is paramount. Even as to foreign relations that require congressional consent, the President's powers are much broader than in the realm of internal affairs. No significant judicial control has been exercised over such declarations. Thus, this action is allowable under these broad powers. (A) is incorrect because the President's emergency power to protect United States citizens is unclear. While he has power to act concerning foreign nations, it is unclear whether he could "legislate" concerning the internal affairs involved here (e.g., tax collection) merely because he thought that United States citizens needed protection. In any case, the power to act here more properly arises from the President's power over foreign affairs and not from a power to protect United States citizens. (C) is incorrect because while it is true that properly ratified treaties are the supreme law of the land, that only means that conflicting state or local laws must yield. If the President has power to override the treaty (which he does have, as explained above), the Supremacy Clause is not controlling. (D) is incorrect because the Constitution only requires the President to obtain the advice and consent of the Senate to enter into treaties; it does not require him to obtain Senate consent to void a treaty.

State allows counties to ban snow tires year round. One county in the state does. The law for the state has an exemption for docs because they might need to cross state lines in emergencies, in which case snow tires would be useful to get to where they need to go. A lawyer violates the statute because he is mad only docs get special treatment. He is convicted and appeals What is his best const argument (it's not a good one, but it's something)?

The classification of docs is not rationally related to a legitimate state interest. This RBR argument is prob gonna fail. EP Clause isn't gonna help him much.

To help alleviate discrimination in private contracts, Congress passed a bill providing: "It shall be unlawful to discriminate against minority race members in the making and enforcement of any public or private contract, of every kind whatsoever. Any person whose rights under this statute are violated may bring a cause of action against the party that has so violated the person's rights in the federal district court for the district in which he resides, seeking treble damages or $1,000, whichever is greater." Several large banks that have been accused of discriminatory loan practices challenge the federal statute. If the court finds that Congress had the power to enact the statute, the court most likely will find that the power arose from which of the following? A The Thirteenth Amendment. B The Contract Clause. C The Fourteenth Amendment. D The Commerce Clause.

The court most likely will find that Congress had the power to enact the legislation under the Thirteenth Amendment. The Thirteenth Amendment simply provides that neither slavery nor involuntary servitude shall exist within the United States and gives Congress the power to adopt appropriate legislation to enforce the proscription. Since the amendment is not limited to proscribing state action, Congress may adopt legislation regulating private parties. Under the amendment, the Supreme Court has allowed Congress to prohibit any private conduct that Congress deems to be a "badge" or "incident" of slavery, and has upheld statutes regulating private contracts. [See, e.g., Runyon v. McCrary (1967)] (B) is not a good basis for the statute because the Contract Clause is a limitation on states' rights to modify contracts retroactively; it is unrelated to Congress's power to regulate private contracts. (C)—the Fourteenth Amendment—is incorrect. The Fourteenth Amendment prohibits states from discriminating on the basis of race; it does not extend to private conduct. [See United States v. Morrison (2000)] (D)—the Commerce Clause—might also be a basis for the legislation here, but it is not as good an answer as (B) because the commerce power is limited to transactions that either in themselves or in combination with other activities have a substantial economic effect on interstate commerce, and by its terms the legislation here can reach wholly intrastate transactions. The interstate commerce requirement is a limit on congressional legislation and no such limit is present under the Thirteenth Amendment. Therefore, the Thirteenth Amendment is a better basis for the legislation here.

A state adopted a statute making the ritual slaughter of chickens illegal. The legislative debates made clear that the purpose of the statute was to prevent unnecessary cruelty to animals. The religious leader of a church located within the state, whose core religious beliefs require ritual slaughter of chickens during worship services, brought suit to have the statute declared unconstitutional for violating her right to practice her religion. How will the court likely rule? A Uphold the statute, because of the compelling state interest involved. B Uphold the statute, because it is a neutral law of general application. C Invalidate the statute, because ritual slaughter is a core tenet of the plaintiff's religious beliefs. D Invalidate the statute, because it targets only ritual slaughter.

The court will most likely strike the statute because it targets ritual slaughter. The First Amendment provides that the free exercise of religion shall not be abridged; however, the prohibition is far from absolute. The Supreme Court has stated that the amendment prohibits the government from outlawing religious beliefs and it has struck down a statute similar to the one here that outlaws conduct merely because it is religious (i.e., ritual slaughter of chickens is prohibited but not other instances of chicken slaughter), at least when the law is not necessary to achieve a compelling interest. (A) is incorrect because even if prevention of cruelty to animals is a compelling interest, a statute prohibiting all ritual slaughter of chickens probably is not necessary to achieving the goal of preventing unnecessary cruelty to animals; a statute prohibiting cruel methods of slaughter would serve such a purpose. (B) is incorrect because it states the rule that the Court would use for government action that does not target religious practice. A religiously neutral law of general application may validly proscribe general conduct; i.e., a law of general application will not be held invalid under the First Amendment merely because it happens to proscribe conduct that is required by one's religious beliefs. Neither will the state be required to provide religious exemptions from the statute. [Employment Division v. Smith (1990)] However, the statute here is clearly aimed at religious practices only, as it prohibits only ritual slaughter. Thus, (B) reflects the wrong standard to be applied. (C) is incorrect because it is irrelevant whether the religious practice interfered with is a core religious belief or merely a minor belief—the Court will not assess the centrality of religious belief, but will only inquire into whether a person's belief is sincere and the government action targets that belief.

Corporal punishment involves a liberty interest, but no hearing is required prior to inflicting such punishment. Why?

The possibility of a common law action in tort is sufficient procedural protection.

A state requires that persons holding a state license to practice a particular profession reside in the state for at least one year before engaging in that practice. A practitioner who held the state license moved into the state and shortly thereafter contracted with a local business to provide professional services. As soon as he began practicing his profession, the state licensing board sought to sanction him for violating the one‑year waiting period. Which of the following provides the strongest basis for the practitioner to challenge the waiting period? A The Privileges and Immunities Clause of Article IV. B The Contract Clause. C The Privileges or Immunities Clause of the Fourteenth Amendment. D The Commerce Clause.

The strongest basis for challenging the waiting period is the Privileges or Immunities Clause of the Fourteenth Amendment. The Fourteenth Amendment Privileges or Immunities Clause prohibits states from denying their citizens the privileges or immunities of national citizenship, including the right to interstate travel (also voting for fed officers and right to petition congress for redress). The right to travel includes the right of newly arrived citizens of a state to enjoy the same privileges and immunities as are enjoyed by other citizens of the state. In Saenz v. Roe (1999), the Supreme Court held that the Clause was violated by a state statute limiting the welfare benefits of those who had resided in the state for less than a year. Hence, that Clause is an appropriate basis for challenging the provision. (A) is incorrect because the Privileges and Immunities Clause of Article IV prohibits discrimination against nonresidents, and here, the discrimination is against a new resident rather than a nonresident. (B) is incorrect because the Contract Clause prohibits states from enacting any law that retroactively impairs contract rights. It does not affect contracts not yet entered into, and here the state law was in place before the practitioner contracted with the local business. (D) is incorrect because the Commerce Clause generally is not violated by licensure requirements. There is an exception to the Commerce Clause (which prohibits state discrimination against interstate commerce) for state action that furthers an important, noneconomic state interest (e.g., health or safety). Generally, state professional licensing laws fall within the exception.

State passes tax requiring newspapers and magazines of general circulation published in the state to be taxed at a rate of 20% on all advertising space sold for beer or distilled spirits promotions. If it's declared unconst, what is the likely reason? Freedom of the press? Apportionment? Burdens interstate commerce? Assume there are wineries in the state but no breweries or distilleries.

This is a content based restriction. Burdens freedom of the press. Tax applicable only to the press or based on the content of a publication will not be upheld absent a compelling justification. Not an apportionment problem. When a sales tax is imposed on a sale taking place entirely in one state, there is no apportionment problem because the sale cannot be taxed by any other state (because no other state has a sufficient nexus). No burden because in state and out of state bizes are treated the same. Wineries are a distinct biz for purpose of advertising

What is parens patriae? Can it enable a state to fall under the SCT's original juris?

When a state acts as a representative of its citizens, thereby asserting their interests. No it can't where state is not really seeking to advance or protect any interest of its own (e.g., econ interest in not having residents of a neighboring state illegally cut its timber).

Are federal laws allowed even if they interfere with integral state government functions?

YES! Assuming it applies to both the public and priv sectors, and obviously the fed law is otherwise const

Let's say a state chose to make sale of tobacco products illegal, and the SCT upheld the legality of that law. Could it then lawfully ban advertising of tobacco products?

Yes

A city elects its water board members at large. But one member of the board is required to live w/in each of the 5 designated water districts within the city. The pop of the districts is radically unbalanced. Const? What if this were a federal system?

Yes constitutional for two reasons. First, the election is at large, so this little restriction of requiring board members to reside in each of the five districts does not result in an imbalance or a dilution of the voting rights of the citizens of the city. Unless there is discriminatory intent, there isn't a problem. Second, in any event, water storage districts are exempt from one person, one vote requirement (regardless of whether they are legislators, admin, or exec officials). If this were a fed system, the outcome might be diff because by STATUTE the CITY would have to prove a valid, nondiscriminatory purpose.

Can a state say only citizens can be public school teachers/aliens can't be public school teachers?

Yes!

Has the Supreme Court said there must be some standards to guide the exercise of discretion when congress delegates power to executive officers or administrative agencies?

Yes!

Will federal courts abstain from deciding a fed const q if it is premised on an unsettled q of state law?

Yes!

Are public employees who is subject to removal only for "cause," and therefore have a property interest in continued employment, entitled to a pretermination opportunity to respond to those charges? What about a subsequent evidentiary hearing? What if the gov has a significant reason for removing the employee from the job and providing him only with a post-termination hearing?

Yes! That involves oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity to tell his side of the story. And yes! Yes that is fine then

There's a religious group that discriminates against women. There's a state statute the prohibits groups using public facilities to discriminate on basis of race or gender. The religious group is denied using a public college's classrooms after hours. Is this application of the law constitutional? BTW, what kind of forum would this be?

Yes. It's a content-based first amendment restriction, so needs to satisfy SS. Also, regarding the right to association, it may be infringed when the reg is necessary to achieve a compelling state interest, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. Designated public forum

Does congress have plenary power to impose taxes to raise revenue?

Yes. Tax measure will usually be upheld if it bears some reasonable relationship to revenue production or if Congress has the power to regulate the taxed activity. [I'm a bit confused when taxing/spending needs to be apportioned fairly on the basis of population of the various states] A 50 percent excise tax on cigarettes would be fine

A state statute makes it a felony for anyone in the corridors or on the grounds of any building in which a court may be in session to make a speech or carry a sign intended to improperly influence judicial proceedings. During a murder trial, a friend of the def was arrested under the statute for carrying a sign on the steps of the courthouse bearing the message: "Free the def or the judge will die." Can the friend constitutionally be convicted under the statute?

Yes. The courthouse is not a public forum. Gov can regulate access to these forums based on the subject matter of the speech, as long as the regulation is reasonably related to the purpose served by the property and is not designed merely to suppress a particular point of view.

Although the Privileges and Immunities Clause of Article IV entitles citizens of each state to the privileges and immunities of citizens of the several states, and thus prohibits discrimination by a state against nonresidents, the Clause does not apply to...

corporations and aliens!

Congress can provide that violation of an agency's regulations is a ________ offense that can be enforced through the imposition of fines. Furthermore, an agency has the power to impose _____ fines and penalties for a violation of its regulations

criminal civil

In regulating commercial spech, if the speech regulated concerns a lawful activity and is not misleading or fraudulent, the regulation will be valid if: While this test does not require that ______, there must be ___________.

it (i) serves a substantial government interest, (ii) directly advances the interest, and (iii) is narrowly tailored to serve the substantial interest. the least restrictive means be used a reasonable fit between the legislation's end and the means chosen

A federal court will hear an action to enjoin a pending state court prosecution if...

it is being conducted in bad faith; e.g., merely to harass the def.

The rational relationship test is used for restrictions on free speech rights in ______ and _____. It determines whether: Who is the burden on?

limited public forums and nonpublic forums The ordinance is rationally related to a legitimate government interest and burdens the First Amendment rights involved no more than is reasonable under the circumstances. Regulations will be upheld as long as they are (i) viewpoint neutral, and (ii) reasonably related to a legitimate government purpose. The plaintiff, not the government.

With regard to presumptions, under the federal rules, application of state law is appropriate only when the presumption operates _______.

on a substantive element of a claim or defense.

As part of its power to regulate interstate commerce, Congress may regulate any activity, local or interstate, which either in itself or in combination with other activities has a substantial economic effect upon,_____________, interstate commerce.

or effect on movement in

"Likewise, the church has not shown that the action was brought because it had exercised any of its fundamental rights. Therefore, there is no equal protection argument on these facts." This is from the explanatory answer for Q 24 in the Const Law workshop. Is it saying that gov retaliation for exercising fundamental rights triggers EP clause protection?

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Although prejudicial publicity can pose a serious problem, the Supreme Court held that it virtually always should be dealt with by means other than _____.

prior restraints

If the law does not state whether state law is to be preempted, the Court will look to...

the comprehensiveness of the scheme and whether Congress has created an agency to administer over the area. Note: the Court will presume that historic state police powers are not superseded unless that was the clear and manifest purpose of Congress. Just because there is an agency, that doesn't mean it is enough for preemption.

Even if Congress lacked the power to directly regulate the activity that is the subject of the spending program, attaching conditions on the spending does not violate the states' Tenth Amendment rights as long as ...

the conditions are (i) clearly stated, (ii) related to the purpose of the program, and (iii) not unduly coercive.

The constitutional right to a public trial under the Sixth Amendment belongs to ________, not_______.

the defendant the media or the public

The Free Exercise Clause does not afford a right to a religious exemption from a neutral law that happens to impose a substanial burden on a religious practice, if ___________.

the law is otherwise constitutionally applied to person who engage (or fail to engage) in the particular conduct for nonreligious reasons.

Commercial speech can be regulated if...

the regulation serves a substantial government interest, directly advances that interest, and is narrowly tailored to serve that interest.

As long as the expenditure is not condition on requiring a recipient _____________________, it is within the spending power of Congress.

to forego an individual constitutional right