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Bar Exam Review: Constitutional Law


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Standing is the issue of whether the plaintiff is the proper party to bring a matter to the court for adjudication.
What must the plaintiff show to be entitled to standing?
1. Injury to himself
2. Causation and redressability
3. No 3d party standing UNLESS
i. close relationship (doctor/patient)
ii. injured party cannot assert his own rights
iii. associational standing
A plaintiff cannot sue solely as a citizen or taxpayer, unless . . .
the taxpayer only has standing to challenge government expenditures which violate the Establishment Clause
The question of whether a federal court may grant pre-enforcement review of a statute or regulation
When events after the filing of the lawsuit end the plaintiff's injury.
What issues fall under the POLITICAL QUESTION DOCTRINE?
(constitutional violations that the federal courts will not hear)
1. "republican form of government" clause
2. Challenges to the President's conduct of foreign policy
3. Challenges to the impeachment and removal process
4. Challenges to partisan gerrymandering
All cases come to the Supreme Court by ____________
writ of certiorari
Appeals to the Supreme Court only exist for __________
decision of 3 judge federal district courts
The Supreme Court has original and exclusive jurisdiction for suits between _________
state governments
What is soverign immunity?
The 11th Ammendment bars suits against states in federal courts. Soverign Immunity bars suits against states in state courts or federal agencies.
What are the 3 exceptions to soverign immunity?
1. Explicit waiver by the state
2. If federal laws adopted under sec.5 of the 14 Ammendment allow.
3. The federal government may sue state governments.
Can state officers be sued?
Yes. State officers may be sued for injunctive relief, or for money damages paid out of their own pockets. Officers may NOT be sued if it is the state treasury that will be paying retroactive damages.
The federal government has no general police power. There must always be express or implied Congressional power unless (4 situations)
1. Military
2. Indian Reservations
3. Federal Lands
4. D.C.
What is the Necessary and Proper Clause?
Congress may choose use any means it wishes to carry out its' authority.
Taxing and Spending Power
Congress may only provide for the "general welfare" by its taxing and spending power, or for M.I.L.D.
The Commerce Power
1. Congress may regulate the channels (highways, Internet)
2. the instrumentalities (trucks, telephones)
3. activities that have a substantial effect on interstate commerce
The 10 Ammendment
All powers not granted to the US, nor prohibited to the states, are reserved to the states or the people.
The 10th Ammendment
All powers not granted to the US, nor prohibited to the states, are reserved to the states or the people.
Delegation of Powers
Congress may delegate its legislative power, however, it may not delegate executive power to itself or its officers.
Agreement between US and foreign country that are negotiated by the President and effective when ratified by the Senate. Overrive state law, but when in conflict with federal statute, the one adopted last in time controls.
Executive Agreement
Agreement between the US and a foreign country that is effective when signed by the President and head of the foreign nation; no Senate approval - will not prevail over conflicting federal statute.
Executive Branch -
Appointment and Removal Power
The president appoints ambassadors, federal judges and US officers. Congress may appoint inferior officers, however Congress may not give itself or its officers the appointment power.
Removal Power
Congress cannot prohibit removal, but may limit removal for good cause.
The President, VP, federal judges and officers of the US can be impeached for treason, bribery, high crimes and misdemeanors - after impeachment goes to Senate for a trial - Impeachment by House requires majority, conviction by Senate requires 2/3 vote
President's Immunity for Money Damages
The President has absolute immunity to civil suits ($ damages) for actions while in office; but not for actions before taking office.
Executive Privilege
President has privilege for Presidential papers and conversations, but power must yield to other important interests.
Presidential Pardon
The President only has the ability to pardon those who have been accused or convicted of FEDERAL crimes. (no pardon for civil liability)
Inter-Governmental Immunity
States may not tax or regulate federal government activity
A state or local law is unconstitutional if it places an undue burdon in commerce. The DCC only applies when the burdons on commerce exceed the benefits. However, if the law is necessary to achieve an important government purpose, okay.
No state may deny citizens of other states the privileges and immunities it provides its own citizens. If law discriminates on the basis of earning a livlihood, violates PandI clause unless necessary to achieve an important government purpose.
i. must discriminate against out of staters
ii. must relate to civil liberties or important economic activities
iii. corporation and aliens cannot use the PandI clause
iv. discrimination must be necessary to to achieve an important government purpose
NEVER applies, unless a question about the right to travel.
What are the two exceptions to the Dormant Commerce Clause rule?
1. If there is Congressional approval, no violation of DCC

2. Market Participant Exception: a state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government owned businesses.
State Action Doctrine
G/R: The Constitution applies only to government action. Private conduct need not comply with the Constitution. Two Exceptions:
1. public function exception
2. the entanglement exception
Bill of Rights
Applies directly only to the federal government. Is applied to state and local governments through its incorporationin the due process clause of the 14th Ammendment.
Law is upheld as long as it is substantially related to a legitimate government purpose.
Law is upheld if it is substantially related to an important government purpose. Law must be narrowly tailored. Gov't has BOP.
Govn't has BOP. Law upheld only if it is necessary to achieve a compelling government purpose.
Procedural Due Process
There must have been a deprivation of life, liberty or property. There must be intentional government action or reckless action for liability to exist. Balance the importance of the interest to the individual, the ability of additional procedures to increase accuracy, and the government's interests.
Substantive Due Process
Governs when the government has an adequate reason for taking away life, liberty or property.
1. economic liberties: only a rational basis test
2. takings clause
i. possessory: govn't conficates or occupies
ii. regulatory: govn't regulation leaves no viable use of property
Contracts Clause
State or local interference with private Ks must meet intermediate scrutiny.
Right to Privacy, Fundamental Right
1. right to marry
2. right to procreate
3. right to custody of one's children
4. right to keep family together
5. right to control the upbringing of one's children
6. right to use contraceptives
Abortion, Undue Burden Test
Prior to viability, states may not prohibit abortions, but may regulate abortions as long as no undue burden on the ability to obtain abortions. After viability, states may prohibit abortions unless necessary to protect a woman's life or health.
Analysis for Equal Protection Questions
1. What is the classification?
i. on face of law, or
ii. if facially neutral, need a discriminatory intent and a discriminatory impact
2. What is the level of scrutiny?
3. Does this law meet the level of scrutiny?
Equal Protection Clause, 14th Ammendment
Only applies to state and local governments.
Equal Protection Clause, 5th Ammendment
Applied to the federal government through the due process clause in the 5th Amendment.
Equal Protection Catagories
SS: race, natn'l origin, alienage, travel, voting
IS: gender, illegitimacy, undocumented alien children
RB: alienage related to self-government and congressional regulation of aliens, age, disability, wealth, all others
Free Speech Methodology
Ask: Is this a content-based or a content-neutral law?

Content Based: must meet SS; there are two types; subject matter restrictions and viewpoint restrictions

Content Neutral: need to only meet intermediate scrutiny
What are Prior Restraints on speech?
These are generally court orders which supress speech. Must meet SS. A person who violates a court order is barred from later challenging it.
A law is vague if a reasonable person cannot tell what speech is prohibited and what is allowed.
A law is overbroad if it regulates more speech than the Constitution allows to be regulated.
Symbolic Speech
Government can only regulated if it has an important interest unrelated to the suppression of the message and if the impact on communication is no greater than necessary to achieve the government's purpose.
Test for Incitement of Illegal Activity
The government may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality.
Test for Obscenity
1. Must appeal to the pruient interest
2. material must be patently offensive under the law prohibiting obscenity
3. Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value.
Profane and Indecent Speech
Generallyu protected unless:
1. over the broadcast media
2. in schools
Commercial Speech
1. Advertising for illegal activity is not protected
2. no attorney in-person solicitation
3. commercial speech can be regulated if intermediate scrutiny is met

Plantiff is Public Official or Public Figure
Must show falsity and actual malice
Private Figure, Matter of Public Concern
Falsity and negligence by defendant; cannot recover punitives without actual malice
Private Figure, NOT public concern
Defendant must prove truth of the statement; negligence standard
No liability for reporting lawfully obtained information. No liability if media broadcasts tape of an illegally intercepted call, as long as the media did not participate in the illegality and it is a matter of public importance.
Public Forums
Government properties that the government must make available for speech.
i. regulations must be subject matter and viewpoint neutral, if not SS
ii. regulations must be a time, place or manner that serves an important government purpose
Limited Public Forum
Government property that the goernment could close, but chooses to open.
Non-Public Forum
The government can regulate speech so long as the regulation is reasonable and viewpoint neutral.
Freedom of Association
This is a fundamental right, requires SS:
To punish membership-
1. prove that the person actively affiliated with the group
2. knew of its illegal activities, and
3. had the specific intent to further those illegal activities
Free Exercise Clause
There can be no law restricting the free exercise of religion. This clause cannot be used to challenge a neutral law of general applicability.
The Establishment Clause
The law is unconstitutional if it fails any part of this test:
1. S: there must be a secular purpose for the law
2. E: the effect must be neither to advance nor inhibit religion
3. X: there must not be excessive entanglement with religion

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