Constitutional Law

Reasonable restriction on public forum requirements

A "public forum" may be traditional or designated. A designated (or limited) public forum is one that has not historically been used for speech-related activities, but which the government has opened for such use, such as civic auditoriums. In either type of public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions: (i) are content-neutral as to both subject matter and viewpoint, (ii) are narrowly tailored to serve a significant governmental interest, and (iii) leave open ample alternative channels for communication of the information. In this case, the city designated the city-owned auditorium as a public forum by opening its use for public debate and discussion. The administrator denied the groups' request to use the public forum based on the potential for violence arising from the subject of the debate (i.e., the content of the speech). Therefore, the administrator's action was unconstitutional.

Standing

A federal court cannot decide a case unless the plaintiff has standing to bring it. To have standing, a plaintiff bears the burden of establishing three elements—(i) injury in fact, (ii) causation, and (iii) redressability. Answer choice A is incorrect because, while a plaintiff must establish an actual or imminent injury in order to have standing, having a present injury does not shift the burden of establishing standing to the defendant, as the answer choice implies. Regardless of whether the plaintiff's injury is present or merely imminent, the plaintiff bears the burden of establishing standing.

Due Process due to a state employee terminable for cause

A federal law provides that all employees of the federal library system whose job descriptions include cataloging or disseminating materials will be required to take a reading comprehension test. The law provides that employees who do not meet a minimum standard of reading comprehension will either be fired or reassigned to a different position. The law does not provide for a hearing process for these employees, who are not at-will employees. An employee whose job description included cataloging materials failed to meet the minimum standard and was reassigned to a different position at a lower grade. The government denied his request for a hearing. He sued to enjoin the government from reassigning him, arguing that his constitutional rights were violated. Which of the following constitutional provisions provides the best support for the employee's suit? The Due Process Clause of the Fifth Amendment. The Due Process Clause of the Fifth Amendment provides that the federal government shall not deprive any person of "life, liberty, or property, without due process of law." An employee who is not at-will has a legitimate property interest in continued public employment, and is entitled to a fair procedure to protect the employee's interests if the government seeks to discharge the employee from his position. An employee is entitled to a notice of termination and a pre-termination opportunity to respond, which the employee in this case did not receive.

Which of the following laws is NOT constitutionally prohibited?

A federal law that impairs an existing contract between private parties

Judge immunity

A judge is absolutely immune from civil liability for judicial acts, including grave procedural errors. The judge is not immune, however, to lawsuits regarding non-judicial activities. The colleague filed a claim on the basis that the judge erroneously allowed the proceedings to be viewed by the public and should be liable for the damage that results. The judge is immune from such a suit.

State actors and the Fourteenth Amendment

A municipality that owned a public swimming pool normally uses government funds to hire lifeguards and other staff and to maintain the pool. During hours when the pool closed, the municipality rents the pool out to any private group with appropriate liability insurance that also provides their own lifeguards and other staff. A private group rented the public pool in order to host an "All-American" swim competition to raise funds for veterans. The competition was open to the general public. However, because the group wanted to promote patriotism, all participants in the competition were required to be U.S. citizens. A resident alien wanted to participate in the swim competition, but was refused entry. The man has sued the group in the appropriate court for violating his rights to equal treatment under the Fourteenth Amendment. Is the man likely to prevail in his action? No, because the group is not a state actor and is therefore not subject to the Fourteenth Amendment. The Constitution generally only protects against wrongful conduct by the government, unless a private person's conduct constitutes "state action." State action exists when private parties carry out traditional governmental functions or when there is significant state involvement in the activities. Here, a swim competition run by a private group does not qualify as a traditional government function, even if it occurs at a facility that uses government funds during business hours. In addition, there was no significant state involvement because for the duration of the swim competition, the group was required to provide its own employees to run the competition and maintain the pool. Thus, the group is not subject to the Fourteenth Amendment, and there is not enough state entanglement to justify this action against them. Aliens are a protected class. However, as stated above, this action cannot be brought against the group because the Fourteenth Amendment does not protect against discrimination by private parties. The group's mere use of a public swimming pool is not enough to constitute state action. Although state action may exist if there are sufficient mutual contacts between the conduct of a private party and the government to find that the government is so pervasively entwined with the private entity that constitutional standards should apply to the private actor, that requirement is not met merely by using a facility that has used government funds.

Federal employment limitations on subversive membership

A person may only be punished or deprived of public employment based on their political affiliation if that individual (i) is an active member of a subversive organization, (ii) has knowledge of the organization's illegal activities, and (iii) has a specific intent to further those illegal objectives.

Ripeness for litigation

A potential candidate for city council publicly expresses his opinion to the media that although he has not yet officially declared his candidacy, he is not optimistic about his chances of winning if he were to run for a city council position within a particular political party. Because he has an interest in both running and winning, he therefore publicly declares that he would like to be placed on the ballot as a member of "every party possible" in order to increase his chances. The elections commissioner publicly declares that if the potential candidate attempts to "spread his luck around the ballot," he will be prohibited from being placed on the ballot at all. The potential candidate sues in federal court, stating that such a prohibition is unfair. How should the court proceed? A federal court will not consider a claim before it has fully developed; to do so would be premature, and any potential injury would be speculative. In order for a case to be "ripe" for litigation, the plaintiff must have experienced a real injury (or imminent threat thereof). Here, because the commissioner has only made a statement of his intentions but has not taken any action preventing the potential candidate from running or placing his name on the ballot (nor has the candidate even attempted to do so), the candidate has not suffered a real injury. While true that a city has a legitimate interest in regulating ballot access, there are limits to this regulation. For example, a city cannot require that a candidate own property and restrictions cannot be discriminatory.

Process required for cause firing of professors

A public employee who may be discharged only for cause has a property interest in her job and therefore is entitled to notice of termination and a pre-termination opportunity to respond. A formal hearing is not required, as long as there is pre-termination notice, an opportunity to respond to the decision maker, and a post-termination evidentiary hearing. In this case, the professor at the state university could only be fired for cause because she was tenured. Accordingly, due process required that the professor be provided with a pre-termination opportunity to respond. Because such an opportunity was not provided, the professor's due process rights were violated.

Equal Protection economic inducement tax ban scenario

A small, struggling, formerly industrial city in one state was only 30 miles from the border of the neighboring state, and only 40 miles from a booming city in the neighboring state. In an effort to entice more citizens of the neighboring state to come to the small city to shop, dine, and otherwise spend money, the small city passed an ordinance relieving out-of-state citizens from paying the city's sales tax. A group of small-city citizens properly brought a suit against the city, challenging the ordinance. Of the following constitutional provisions, which would be the basis on which the citizens could most effectively challenge the ordinance? The Equal Protection Clause of the Fourteenth Amendment provides that "no state shall...deny to any person within its jurisdiction the equal protection of the laws." The Equal Protection Clause is generally the constitutional safeguard that a citizen or group of citizens will use to challenge a law that is based on some kind of classification. Here, the city is classifying persons as either state citizens or out-of-state citizens, and providing the latter group with a benefit by relieving them from paying the city's sales tax. Therefore, the citizens could challenge this law on equal protection grounds.

Privileges and Immunities Clause of Article IV versus Privileges and Immunities Clause of Article XIV

A state anticipates a possible reduction of its native oyster population due to a variety of factors, including non-customary weather patterns and polluted waters. To discourage excessive fishing until oyster numbers are confirmed for the season, the state enacts a statute raising the cost of oyster-fishing licenses for all out-of-state residents to twenty times that of in-state residents. The statute does not distinguish between commercial and recreational oyster fishing. An out-of-state commercial oyster fisherman files suit in federal court to have the statute struck down.Is the statute constitutional? No, because the statute violates the Privileges and Immunities Clause of Article IV. Nonresident citizens are protected against discrimination with respect to fundamental rights or essential activities, including the pursuit of employment, transfer of property, access to state courts, and engaging in the political process. Discrimination against out-of-state residents in setting the fee for a commercial activity, such as the oyster-fishing license here, violates the Privileges and Immunities Clause of Article IV, but similar discrimination for a recreational activity, such as a recreational hunting license, does not, if there is a rational basis for the fee differential. Here, the state is discriminating against the out-of-state oyster fisherman by setting a much higher fee for a commercial activity. Note that this would also likely violate the Dormant Commerce Clause as well, but that answer is not provided as a choice. Privileges or Immunities Clause of the Fourteenth Amendment applies only to a state's treatment of its own citizens, and is thus irrelevant to this case (in which a state is dealing with out-of-staters). Further, it has a limited application, and is usually only successful in cases involving the right to travel. Here, the state statute does not infringe anyone's right to travel.

Content based commercial context

A state highway administration, acting pursuant to statutory authorization by the state legislature, has promulgated rules for large electronic billboards located along roads maintained by the state. These rules are concerned with the potential for driver distraction and the ensuing adverse consequences for highway safety. Among the rules is one that bans the graphic display of violence. The producer of a movie wants to promote the movie through a short clip from the movie on billboards subject to this rule. The clip contains a graphic display of violence. The producer has filed an action in the appropriate federal court challenging the state highway administration's rule as a violation of the First Amendment as applicable to the states through the Fourteenth Amendment. Of the following standards, by which should the state highway administration's rule be judged? As a content regulation, it must be necessary to achieve a compelling governmental interest. Although viewpoint neutral, the state highway administration's rule is a content-based regulation of speech because it prohibits the graphic display of violence. As such, the strict scrutiny standard of review applies. The rule must be necessary to achieve a compelling governmental interest.

Art. 1 §9 provision for direct taxes

Article I, Section 9 provides that "no . . . direct tax shall be laid, unless in proportion to the Census[.]" Although there is dispute as to the types of taxes that are encompassed within the definition of a direct tax, a tax on real property interests is undisputedly a direct tax. To satisfy the apportionment rule, a state with twice the population of another state would have to pay twice the tax, even if the more populous state's share of the national tax base were smaller. Here, because the real property tax is not in proportion to the population of each state, it would run afoul of Article I, Section 9.

Felon Disenfranchisement

As permitted by Section 2 of the Fourteenth Amendment, a state may prohibit a felon from voting, even one who has unconditionally been released from prison.

Congressional approval of dormant commerce clause violation

Because Congress has exclusive authority over interstate commerce, it may explicitly permit states to act in ways that would otherwise violate the Dormant Commerce Clause. In this case, Congress, by statute, permitted states to enact any law, including a tax law, regarding the financial services industry that is consistent with applicable federal statutes. Accordingly, the state enacted a statute taxing out-of-state financial services corporations doing business in the state. Although the state statute discriminated against out-of-state corporations, the statute enacted by Congress permitted such discrimination.

Non-delegation doctrine and intelligible principles

Because Congress is vested by Article I with "all legislative powers," it may not delegate that power to any other branch of government. This principle is known as the "non-delegation doctrine." However, delegation of some of Congress's authority to the executive branch has consistently been held constitutional, so long as Congress specifies an "intelligible principle" to guide the delegate. Here, the statute involves law enforcement, which is an executive function, but the constitutional exercise of that function requires that the executive branch act pursuant to congressional authorization as provided by law. Because the statute sets forth guidelines as to how and when non-U.S. citizen prisoners should be transferred to private prisons, as well as criteria regarding which prisoners should be transferred, this legislative delegation passes the "intelligible standards" requirement.

Equal Protection Clause of 14th

Concerned over the increasing frequency of livestock theft, the legislature of a state with a sizable number of ranches passed legislation, which the governor signed into law, creating the position of livestock identity inspector within the state Department of Agriculture. The inspector is tasked with enforcing the state laws regarding branding of livestock. The state statute confined this position to U.S. citizens. A longtime resident of the state who was a citizen of a foreign country applied for the position and was rejected. He wants to seek injunctive relief against the state Secretary of Agriculture to prevent her from enforcing this requirement as it applies to him. Of the following, which is the best federal constitutional ground upon which the plaintiff can base this action? The Equal Protection Clause of the Fourteenth Amendment. Generally, the strict scrutiny test applies to state laws that discriminate against resident aliens. However, a growing exception exists requiring only a rational relationship to a legitimate state interest for state laws that restrict or prohibit a resident alien's participation in government functions. In this case, the position of livestock identity inspector likely falls within this category of positions because it involves enforcing the state's livestock identity laws. However, the constitutional provisions in the other answer choices either fail to protect the plaintiff as a resident alien or fail to address his concern of being denied a state job as an inspector. Therefore, although the exception regarding participation in government functions may be problematic for the plaintiff (a resident alien), the Equal Protection Clause of the Fourteenth Amendment still provides the best federal constitutional ground for his action.

Commercial content based restriction scenario

Concerned with the proliferation of signs about upcoming events and the failure to remove those signs after the event, a city enacted an ordinance that limited the number of such signs that could be displayed on public property and set a time period before and after an event during which signs about that event could be displayed. A social organization wants to display signs about its monthly dinner, which is held to attract new members, in greater number and for a longer period than permitted by the ordinance. The organization has filed a lawsuit, challenging the constitutionality of the ordinance. Of the following, by which standard will this ordinance be judged? It must be the least restrictive means for accomplishing a compelling governmental interest. This regulation is a restriction on speech that is content-based on its face. The regulation applies to one specific topic (upcoming events) and subjects that speech to different--and more onerous--requirements than any other signs. Therefore, the city's ordinance will be judged by a strict scrutiny standard.

Which of the following accurately describes the relationship between Congress and the Executive

Congress can delegate its power to administrative agencies so long as there are intelligible standards governing the exercise of that delegated power.

Plenary power of aliens

Congress enacted a law establishing a federal life insurance exchange under which United States citizens and residents, regardless of age, can acquire affordable life insurance. Although United States citizens are not subject to a residency requirement in order to participate in the exchange, resident aliens are required to have lived in the United States for at least five years to be eligible. A resident alien who has lived in the United States for four years has filed suit in federal court, claiming an equal protection violation. The government has asserted only that the law is rationally related to a government interest, and the court has indicated that it agrees. Is the resident alien likely to prevail? No, because Congress has plenary power over aliens under Article I of the Constitution. A classification based on alienage is subject to a different standard depending on whether the action is taken by the state or by the federal government. Courts will generally apply the strict scrutiny test and strike down state-based laws that discriminate against resident aliens for lack of U.S. citizenship. In contrast, Congress has plenary power over aliens under Article I, and the power to expel or exclude aliens is a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control. Therefore, a federal alienage classification is likely valid unless it is deemed arbitrary and unreasonable. Here, the government proved that the law was rationally related to a legitimate governmental interest and thus the resident alien's claim will fail.

Congressional appointments of administrative or enforcement power wielding individuals

Congress may not appoint members of a body with administrative or enforcement powers. Such persons are "officers of the United States" and must be appointed by the President. Here, because the fishery committee has enforcement powers, the members must be appointed by the President, not by Congress. Therefore, any attempt by Congress to delegate this appointment authority makes the statute unconstitutional.

Sex discrimination and level of review

Discrimination based on gender under the Equal Protection Clause is "quasi-suspect" and subject to the intermediate scrutiny test, which states that a law must be substantially related to an important government interest in order to be valid. Here, the statute was gender-based because it prevents the hiring of male camp counselors. Therefore, it is subject to the intermediate scrutiny test. The relationship between male camp counselors and campers sneaking off of the campsite is tenuous at best, and it certainly falls short of the "exceedingly persuasive justification" standard generally required when distinguishing between the sexes. Accordingly, the male counselor is likely to prevail over the city in this case.

Spending power

Due to the rising cost of water, Congress enacted a statute that allocated $20 million to fund a consortium of independent non-profit water organizations. The purpose of the consortium was to address the various issues causing a rise in the cost of water and water shortages across the United States, and to fund research into solutions. The statute provided clear guidelines about what the consortium should research and what it could spend, and specified that the remaining funds would be allocated for infrastructure improvements. In addition, the statute delegated to the Department of the Interior the power to select the water organizations to participate in the consortium. Is the statute constitutional? Yes, because Congress has the power to spend for the general welfare of the public. Congress has the power to spend for the general welfare of the public. Here, spending money to figure out ways to cut the cost of water and reduce water shortages is a proper use of Congress's power to spend for the general welfare. Congress may delegate authority to the Department of the Interior so long as Congress specifies intelligible standards for the delegatee to follow. The facts indicate that the statute lays out guidelines for how the funds will be allocated. Therefore, the delegation is not unconstitutional. Investigatory power may extend to any matter within a "legitimate legislative sphere," and funding research and infrastructure improvements for the conservation of water certainly falls within that sphere. Answer choice C is incorrect because the Necessary and Proper Clause is not an independent source of power; it merely gives Congress the power to execute specifically granted powers. Thus, the Necessary and Proper Clause cannot be the only source for Congress's authority to enact this statute.

14 amendment and quasi suspect

Equal Protection Clause of the Fourteenth Amendment provides that states are generally prohibited from passing legislation that treats similarly situated persons differently. Classifications on the basis of status as a non-marital child are subject to intermediate scrutiny—they must be substantially related to an important governmental interest. The Court will closely examine the purpose behind the distinction, and it will not uphold legislation designed to punish the offspring of a non-marital relationship. Here, a classification based on legitimacy is a quasi-suspect classification that requires intermediate scrutiny.

Religious neutral policy that benefits religious institution scenario

Faced with poorly performing public schools in a city, the state instituted a state-funded voucher program for parents with school age children who lived in the city. The state gave parents a voucher for each school-aged child that could be used either towards tuition for the child to attend a private school in the child's school district, whether parochial or not, or be presented to the child's public school, which would receive the same amount in additional funding. The choice of whether to attend a private or public school was solely left up to the parents and their child. Over 95 percent of the vouchers were used by parents towards tuition payments to parochial schools. The program contained no restrictions as to how the schools used the funds.Is this program constitutional? Yes, because the program is neutral with respect to religion and provides financial assistance directly to citizens who have a choice as to whether to use the voucher at a parochial or nonparochial school. Giving parents tuition vouchers to assist them in paying religious-school tuition does not violate the Establishment Clause if the choice of whether to use the vouchers for religious or non-religious private school tuition lies with the parents. Therefore, because this program is neutral with respect to religion and provides financial assistance directly to citizens who have a choice as to where to use the funds, it does not violate the Establishment Clause of the First Amendment as applied to the states through the Fourteenth Amendment. In applying the Lemon test with regard to governmental financial aid, the third element (no excessive governmental entanglement) is not a separate requirement, but instead is one factor to be considered in ascertaining whether the second element (no advancement or inhibition of religion) has been met. In any case, consideration of whether there is excessive governmental entanglement with religion is not the sole determinant of whether governmental financial aid that is received by religious institutions violates the Establishment Clause.

Which of the following are subject to intermediate scrutiny as quasi-suspect classes?

Gender and legitimacy, but not age

Alien discrimination and strict scrutiny

Generally, a state law that discriminates against aliens is subject to strict scrutiny under the Equal Protection Clause and will be struck down. While a state law that restricts or prohibits an alien's participation in government functions is subject only to a rational basis review, this statute does not fall within that category.

Seizure of property notice requirements

Generally, the government is required to provide the owner of real property with notice and a hearing prior to seizure of the property pursuant to a forfeiture statute. However, the government does not need to provide notice prior to the seizure of personal property. Here, the city provided no notice or hearing for either the home or the vehicle. The city was required only to provide notice and a hearing for the seizure of the home but did not do so. Accordingly, the seizure of the home is improper though the seizure of the vehicle is not.

non-fundamental right Gov't infringement

Government infringement upon non-fundamental rights—those related to social or economic interests such as business, taxation, lifestyle, or zoning—requires only a rational relationship between the law and a legitimate governmental interest. Here, the narrowly drawn zoning ordinance was constitutional because the purpose of the regulation was to reduce the sharp increase of underage high-school students from purchasing specific alcoholic beverages within 800 feet of public high schools. Limiting the sales of such beverages within this distance is rationally related to this interest. Therefore, this ordinance is most likely constitutional for this reason.

Religious organization exception to employment discrimination laws

In Hosanna - Tabor Evangelical Church and School v. EEOC, 132 S.Ct.694 (2012), the Supreme Court unanimously recognized the existence of a "ministerial exception" grounded in the First Amendment Religious Clauses that precluded the application of employment discrimination laws concerning the employment relationships between a religious organization and its ministers. Requiring a church to accept or retain an unwanted minister interferes with the internal operations of a religious organization in violation of the Free Exercise and Establishment Clauses of the First Amendment.

1st amendment restriction requirements

In traditionally public forums, like sidewalks, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are content-neutral as to both subject matter and viewpoint, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information. Although the city may have an important interest in preventing the breaking and entering into the animal testing facilities, the ordinance preventing all picketing on the subject of animal testing is not narrowly tailored to further this interest. Rather, the regulation suppresses all picketing on this subject. Additionally, this regulation is not content-neutral, since it would appear to permit picketing about other issues on the same sidewalk.

Zoning review standards

Most legislation related to zoning is reviewed under the rational basis standard, and a law meets that standard if it is rationally related to a legitimate state interest. Laws are presumed valid under this standard, so the burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational. In court, the government's stated interest in enacting the law need not be one that it offered when the law was passed, and here, the city's stated interest constitutes a legitimate interest. The ordinances, while not necessarily the most direct way to accomplish that interest, are rationally related to it.

National Guard laws

National Guard units are under the dual control of the federal and state governments. Under the Militia Clauses (Art. I, Sec. 8, Cl. 15, 16), Congress has the power to authorize the President to call National Guard units to execute federal laws, suppress insurrections, and repel invasions. This constitutional authority extends to use of National Guard units in domestic situations and non-emergency circumstances, and is not subject the approval or veto of the governor of a state. Because the President retains the authority to order units of the National Guard into service within a state even without express consent from the state's governor, the guard can be implemented in states without consent.

Vote restriction to 1p1v violation under what amendment?

Pursuant to the Equal Protection Clause (14th amendment), the principle of "one person, one vote" requires that one person's vote must be essentially equal to any other person's vote. The "one person, one vote" principle applies to local elections of entities that perform governmental functions, even when the functions are specialized rather than general in nature, such as a local school board. The restriction of voting to a class of persons (e.g., landowners) has generally been found to violate the "one person, one vote" principle, except in the case of water-district elections.

Elections Clause empowerment to Congress

The Elections Clause explicitly empowers Congress to override state laws concerning federal elections. Here, the legislation attempts to regulate the federal election process by limiting voting times and polling sites as applied to federal elections, and Congress has the power to override such legislation.

Pardon Limits of the President

The Judiciary Committee of the U.S. House of Representatives initiated impeachment proceedings against a federal district court judge. The President, a lifelong friend of the judge, considered the grounds for impeachment that were being discussed to be politically motivated and without substantial merit. Prior to any hearing on matter by the House committee, the president pardoned the judge. What effect does this pardon have on the impeachment proceedings against the judge? The pardon has no effect on the proceedings because a President's power to pardon does not extend to impeachment. The President's power to pardon does not extend to impeachment of a federal official. While the President's power to pardon with regard to federal crimes is often referred to as plenary, it does not extend to impeachment of a federal official.

Establishment clause standing twist

The President created an office to encourage the improvement of local communities through faith-based organizations. The office was funded from monies appropriated by Congress for the general discretionary use of the President. The office provided support only to religious organizations. A taxpayer brought suit in federal court challenging the constitutionality of this office. The federal government has moved to dismiss this suit. Should the court allow the taxpayer's suit to proceed? No, because the plaintiff as a taxpayer lacks standing. A taxpayer generally does not have standing to file a federal lawsuit simply because the taxpayer believes the government has allocated funds in an improper way. Although there is an exception to the rule that a taxpayer lacks standing to challenge a governmental expenditure when the expenditure violates the First Amendment Establishment of Religion Clause, this exception is very narrow. The exception does not apply to the expenditure of general discretionary funds by the executive branch. The narrow exception requires that Congress authorize the funds for a specific use that violates the Establishment Clause. Here, Congress merely authorized the funds for the President's discretionary use, and not to fund the challenged office.

President's international affair powers

The President represents and acts for the United States in day-to-day international affairs. In addition to appointing and receiving ambassadors, the President has the exclusive power to recognize a foreign government. Consequently, because the President has exclusive power over the recognition of a foreign country, the court should not grant the injunction because it would require the passport office to recognize a country that the President has not yet recognized.

Several cities within a state passed ordinances that prohibited discrimination against gay and lesbian individuals in employment and housing. In response, the state legislature passed a statute that prohibited any city in the state from passing any ordinance that recognized gay or lesbian individuals as a protected class. A resident of the state sued the state, arguing that the statute violated the Equal Protection Clause.Is the law likely to be upheld?

The Supreme Court has struck down bans on same-sex marriage as violations of a fundamental right on both Due Process and Equal Protection grounds, but it has not resolved the issue of whether discrimination based on sexual orientation is subject to heightened scrutiny. Regardless of whether heightened scrutiny applies here, the government cannot impose a burden upon or deny a benefit to a group of persons solely based on animosity toward the class that it affects. In this case, a court would likely strike down the law because it does not satisfy the rational basis test.

In applying the "adequate and independent state grounds" limitation on the U.S. Supreme Court's review of a state court decision, which of the following is TRUE?

The U.S. Supreme Court will not review a state court decision when the party claiming a federal right is successful under state law.

Federal immunity concerning state tax

The federal government and its instrumentalities (such as a national bank chartered by the federal government) are immune from taxation by the states. In this case, the Department of Defense, part of the federal government, is immune from taxation by the state for any purchases made pursuant to the defense contract.

Regarding obscenity and pornography with respect to minors, which of the following is True?

The government cannot ban adult speech simply because it would be obscene for minors. The private possession of child pornography can be prohibited. The sale and distribution of child pornography can be banned even if not obscene. Neither obscenity nor child pornography enjoy the protection of the Free Speech Clause.

Which of the following is a requirement in order for a state to have to give full faith and credit to a judgment rendered by another state's court?

The judgment rendered was final, on the merits, and the court had jurisdiction over the matter and parties.

Press's first amendment rights & how press circumvent's liability

The press has no greater First Amendment rights than does the general public. There is no special privilege allowing the press to invade the rights of others. Members of the press are not immune from the application of generally applicable laws, even if the application of such laws has a negative incidental effect on the ability to gather and report the news. The First Amendment shields the media from liability for publishing information that was obtained illegally by a third party as long as the information involves a matter of public concern and the publisher neither obtained it unlawfully nor knows who did. Here, the newspaper likely knew the information was not lawfully obtained and certainly knows who obtained the information. Therefore, the corporation can recover against both the reporter and the newspaper.

To be constitutional, a government regulation of speech in a limited public forum is required to meet the following requirements:

The regulation must be content-neutral as to viewpoint and subject matter. The regulation must leave open alternative channels of communication. The regulation must narrowly serve a significant governmental interest.

Regarding governmental regulation of commercial speech, which of the following is TRUE?

The regulation must directly advance the governmental interest.

To be constitutional, a government regulation of speech in a public forum must comply with which of the following requirements?

The regulation must leave open alternative channels of communication.

The "General Welfare" Clause of Article I, Section 8 of the United States Constitution

This clause gives Congress the power to spend for the general welfare i.e., any public purpose—not just to pursue its other enumerated powers. Although Congress cannot "commandeer" state legislatures by commanding them to enact specific legislation, Congress can use its spending power to accomplish such a result indirectly by conditioning the receipt of federal funding on enacting such legislation. Congressional "encouragement" cannot exceed that point at which pressure turns into compulsion, but because this statute only limits funding by six percent, rather than eliminating it totally or by a large, coercive amount, that does not appear to be applicable on these facts.

Regarding governmental restrictions on obscene speech, which of the following is TRUE?

To be obscene, speech must be patently offensive to the average person of the community, lack serious literary, artistic, scientific, or political value. In determining the lack of serious value, a national standard is applied by the court, not the jury.

Triggering strict scrutiny requirements

To trigger strict or intermediate scrutiny, there must be discriminatory intent on the part of the government. The fact that legislation has a disparate effect on people of different ethnic minorities, without intent, is insufficient. Discriminatory intent can be shown facially, as applied, or when there is a discriminatory motive. A law that is neutral on its face and in its application may still result in a disparate impact. By itself, however, a disparate impact is not sufficient to trigger strict or intermediate scrutiny; proof of discriminatory motive or intent is required to show a violation of the Equal Protection Clause. Here, there is clearly a disparate impact, but there is no evidence of a discriminatory motive or intent. Therefore, rational basis would apply.

Younger Doctrine

Under the Younger doctrine, a court will not enjoin a pending state criminal case in the absence of bad faith, harassment, or a patently invalid state statute. Since the facts do not suggest that the state prosecution has been undertaken in bad faith or for the purpose of harassment, or that the criminal statute is patently invalid, the court should abstain from hearing this civil case.

The Fifteenth Amendment specifically gives Congress the power to eliminate racial discrimination in _____________.

Voting

Spending power exercised for general welfare-unambiguous enforceability.

While Congress has the power under the spending power to spend for the general welfare and may impose conditions on the receipt of an appropriation by a state, such conditions must be set out unambiguously to be enforceable. Since expert fees were not unambiguously included in the amounts that may be recovered by the parents of a child with special needs under this statutory cause of action, these fees cannot be recovered. Answer

Denial of an indigent's right to appeal

While most state actions that discriminate against the poor are subject only to rational basis scrutiny, the availability of appeal in a criminal case cannot hinge on ability to pay a filing fee. To deny an indigent the right to appeal through the imposition of a fee violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Parent's fundamental rights

While parents do enjoy a fundamental right to make decisions regarding the care, custody, and control of one's children, including the right to privately educate one's child outside the public school system, that right is subject to reasonable educational standards imposed by the state. Consequently, the court must strike down any requirements that the court finds impose unreasonable educational requirements on the homeschooling of children.

Regarding Congressional power under the Fourteenth Amendment to remedy violations of individual rights by the government, there must be a _________________________ between the injury to be remedied and the means adopted to achieve that end.

congruence and proportionality

A ______________ classification based on alienage is upheld unless the classification is ____________.

federal, arbitrary and unreasonable

FILL IN THE BLANKS. Congress ______________ the power to spend for the general welfare. Congress ____________ pressure states into acting through the conditioning of federal funding on taking such action.

has; can

The ________________ test requires that a law be substantially related to an important government interest.

intermediate scrutiny

The media has ______________________ the general public, but ______________ may be subject to greater governmental regulation.

the same rights as, broadcasters