What is the general test for violation of the establishment clause?
The Lemon Test. If any of the following are found, the law is unconstitutional and invalid.
(1) Excessive government entanglement with religious.
(2) The law promotes or inhibits religion.
(3) There is no secular purpose. (the law must be secular to be valid)
Who has the burden when rational basis review is applied?
The burden is on the plaintiff.
Who has the burden when intermediate scrutiny is applied?
The burden is on the state.
Who has the burden when strict scrutiny is applied?
The burden is on the state.
What is the burden in rational basis review?
The plaintiff must show that the law is not rationally related to a legitimate government interest.
What are the 3 broad categories to which rational basis review applies?
(1) Laws affecting not suspect classes.
(2) General laws of equal applicability. (Social welfare, economic interests, safety)
(3) Laws that do not affect fundamental rights.
What is the burden for intermediate scrutiny?
The state must show that the law is substantially related to an important government interest.
Who does intermediate scrutiny apply to?
(1) Gender classifications
(2) Illegitimate children
(3) Aliens (unless the law is regulated for the purposes of immigration by the federal government, in which case rational basis review applies).
What is the burden applied by strict scrutiny?
The state must show that the law is necessary to further a compelling government interest.
What is the presumption when strict scrutiny is implicated?
The law is presumed unconstitutional.
What are the suspect classes protected by strict scrutiny review?
(1) Races (2) National Origin (3) Laws affecting fundamental rights.
Can states pass laws limiting commercial speech?
Yes, if the speech is fraudulent, misleading, or the nature of the commerce is illegal.
What are the 2 main factors considered when determining whether restrictions of commercial speech are constitutional?
(1) Whether the commercial activity implicated is lawful (2) Whether the commercial speech is misleading
If commercial speech is not misleading or illegal, what is required of a law that limits that commercial speech?
(1) It must pass intermediate scrutiny (substantially related to an important government interest). AND
(2) The law must be narrowly tailored, leaving open alternative means communication.
(3) There must be a logical nexus between the narrowly tailored law and the purpose of the legislation.
What is the main purpose of the equal protection clause? What does it do?
The equal protection clause mandates that state laws treat similarly situated people equally.
Laws that treat people (classes) unequally are generally unconstitutional and invalid.
What is the standard of review when equal protection is at issue?
Strict scrutiny when classes such as race or national origin are considered.
Rational basis when classes such as age / income level are considered.
May a news company publish information that was illegally obtained?
Generally, the news can still publish illegally obtained information provided that:
(1) the news company (the publisher itself) did not illegally obtain the information. I.e., the illegal act obtaining the information was done by another party and the publisher subsequently received the information.
(2) the information has a nexus with matters of public concern.
(3) The information was not subject to a reasonable expectation of privacy.
What are the requirements for laws that limit speech in a private forum and a limited public forum?
(1) the law is "reasonably" related to a legitimate government purpose (rational basis) AND
(2) the limitation is viewpoint neutral.
What are the requirements for laws that limit speech public forum?
Time // Place // Manner Test
(1) the law must be content neutral
(2) the law is narrowly tailored to serve an important government interest
(3) the law leaves open alternative methods for communicating the message.
What is the State action requirement with respect to freedom of speech?
The 1st an 14th amendment's freedom of speech protections are only implicated if there has been a state action restricting speech. (Private clubs for example, can constitutionally limit free speech)
What is the jurisdiction of the Supreme Court of the United States? What cases may it hear?
(1) Actions involving high ranking government officials such as ambassadors
(2) Disputes between the federal government and a state
(3) Disputes between 2 or more states
(4) Disputes involving an action by a state against citizens of another state or aliens of another state.
May congress appoint officials to enforce acts of congress?
No. The enforcement power is vested in the executive branch, courts, or administrative officials. Congress does not make appointments of people who exercise enforcement power.
May congress compel a state government to enact residency requirements?
No. Congress lacks the power to do so.
Who appoints inferior officers?
Federal administrations.
What is an inferior officer?
Officers under a federal administration.
What factors are considered in a procedural due process inquiry?
(1) The level of importance if the individual rights being effected
(2) the value and need for procedural protections for those rights.
(3) The State or Federal government's interest in adjudicative efficiency.
What are the 2 main powers vested in the federal government under the commerce clause?
(1) The plenary and absolute power to regulate interstate commerce
(2) The sole authority to regulate foreign commerce
What is the president's foreign affairs power under article 3?
"The president alone has authority to represent the U.S. in foreign affairs."
How may the federal government compel a state to take a specific legislative action?
Trick question. It can't. This is not a thing.
May a private citizen sue a state?
Generally no. The 11th amendment prohibits most private actions against state governments.
What is the exception when a citizen may sue a state government?
A citizen may sue to enjoin a state official from enforcing a law that is unconstitutional.
When does a state law violate the dormant commerce clause?
A violation occurs when the law treats the in-state and out-of-state economic interests differently.
What are the two ways a law can violate the commerce clause?
(1) Facially / Express: treats in-state and out-of-state interests differently.
(2) Impliedly: although not express, the result of the law is that in-state and out-of-state economic interests are treated differently.
What is the dormant commerce clause balance test?
Whether the burden on interstate commerce is outweighed by the value of the law to local interests.
If the burden on interstate commerce outweighs the local interest, the law is unconstitutional.
When is the dormant commerce class balance test applied?
If a law does not clearly discriminate (incidentally) burdens interstate commerce: the balance test applies. burden on interstate commerce v. local benefit
What is the standard of review for controversies involving aliens as a class?
It depends:
State Action: Strict scrutiny is applied. (except when an important government job is involved, in which case rational basis is applied)
Federal Action: Only rational basis.
May a private citizen sue a state in federal court?
No, the 11th amendment prohibits this.
May a member of a sovereign native American tribe sue a state in federal court?
No, they are still considered private citizens.
May NY sue CA in federal court.
Yes. States can sue other states in federal court.
May a foreign government sue a U.S. state in federal court.
No. The 11th amendment prohibits foreign nations from suing U.S. states in federal court.
May the U.S. President decline to spend funds that were appropriated by congress for a particular purpose?
No. The president does not have the authority to decline to spend funds that were appropriated by congress for a particular purpose. The president has the duty to ensure that the laws are "faithfully executed."
What laws may be passed under the 13th amendment?
(1) Laws that prevent public or private entities from furthering slavery or indentured servitude.
(2) SCOTUS stated that laws prohibiting conduct that promotes a badge of slavery or is incident to slavery is unconstitutional, even if the law is applied to a private citizen.
When does a government worker have a property right in their position?
When they may only be removed for cause.
What must a government worker be afforded before termination if they have a property right in their position?
(1) notice of the charges
(2) basis / reason for termination
(3) Opportunity to be heard (to respond to the charges in front of a neutral adjudicator)
Concisely, what are the requirements for regulating commercial speech?
The law must . . .
(1) furthers a substantial government interest
(2) actually furthers that interest
(3) is narrowly tailored.
What is obscenity?
Obscenity is depiction / description of sexual conduct that an average person would determine . . .
(1) appeals to a prurient interest in sex
(2) portrays sex in a "patently" offensive manner
(3) has zero artistic, literary, political, scientific, artistic merit.
May a state government restrict obscenity?
Yes. Obscenity is not protected speech under the 1st amendment.
If a U.S. Treat with another country conflicts with a State law, may the U.S. President proclaim that the state law is invalid?
Yes. Article 2, Section 2, Clause 2 of the Constitution. Under the supremacy clause, treaties are the supreme law of the land.
What does procedural due process guarantee?
(1) Notice
(2) An opportunity to be heard
(3) A neutral adjudicator
What does substantiative due process guarantee?
Laws will be reasonable and not arbitrary.
From which constitutional clause is substantive due process protection derived?
Federal: 5th amendment
State: 14th amendment
What are some fundamental rights?
The right to . . .
(1) procreate
(2) vote
(3) travel interstate
(4) freedom of speech
(5) privacy
What is the limit on congress's power to investigate and subpoena?
Congress may only investigate or subpoena on matters on which congress has the power to legislate.
What conditions must be present for congress to properly regulate state action through the spending power.
(1) the conditions of federal funding are clearly stated
(2) the conditions relate to the purposes of the spending directly
(3) the conditions and spending are not unduly coercive
May a state tax a publication based on its content?
Generally no. Taxes based on publication content must meet strict scrutiny.
Publishers are subject, however, to general business taxes.
What is the constitutional limit on public school punishments?
A significant suspension, 10 days or longer, or a more severe punishment, may not be imposed without a hearing.
May public schools allow religious groups to meet on school property?
SCOTUS: Yes. This would not by itself be a violation of the establishment clause.
Would prohibiting religious groups from meeting on school property violate the constitution?
SCOTUS: Yes. Prohibition would violate the 1st amendment freedom of speech.
Do citizens have standing to sue the government, in general, to act constitutionally?
A citizen may not sue the government with a general complaint that the government is not acting constitutionally because they do not have standing to do so.
When may a citizen sue the government to act constitutionally?
When that citizen is harmed individually, not a general harm to all citizens, by an unconstitutional act by the state.
What factors are considered when determining whether a federal preempts a state law?
(1) whether the matter is traditionally a matter of state or local concern
(2) whether the state law is consistent with and/or supplements the federal law
(3) whether compliance with the federal or state law is simultaneously possible (whether the regulations are mutually exclusive).
Will the fact that a state law has within it a provision that attempts to resolve conflicts with federal law be a factor in deciding whether it is preempted by federal law.
No.
If SCOTUS is deciding on a state court ruling, and there is a split decision (50% v. 50%), what happens?
The decision of the highest court that ruled on the matter is affirmed. (Percuriam decision).
May a state require a federal worker driving through the state on federal business to have a valid state driver's license?
No. Supremacy clause.
If sued, may a local town library claim sovereign immunity?
No. The 11th amendment does not grant sovereign immunity to localities, cities, counties, towns, local libraries.
An HOA passes a rule saying residents cannot raise the American flag on the 4th of July. Is this constitutional?
Yes. The HOA passing a rule is not a state act. State action is required to implicate the 1st amendment freedom of speech.
What is a bill of attainder?
A legislative act that imposes punishment without a proper trial.
Bills of attainder are unconstitutional on both the state and federal levels.
When a valid treaty conflicts with an act of congress, which prevails?
The more recent one. Last in time wins between these two.
When is an at large election unconstitutional?
When the at large scheme has the effect of preventing a substantial minority from electing any representatives.