Constitutional Law

What are the two main types of jurisdiction that can bring a case into the supreme court?

1. Original Jurisdiction

2. Appellate Jurisdiction

What is the difference between original and appellate jurisdiction?

Original Jurisdiction - Case can go directly to Supreme Court

Appellate Jurisdiction - Case is appealed to Supreme Court

Can Congress tell the Supreme Court how to rule?

No, they cannot

Can congress establish lower courts and jurisdiction? Give an example.

Yes, they can. In 2008, they created more bankruptcy courts.

Define mootness

The issue has already been resolved. It is past.

Define ripeness

Case is not ready to be brought into court. It could be in the future, but not yet.

What is the standing requirement for supreme court cases?

Plaintiff must have personal injury at stake.

Can a court give an advisory opinion?

No, they cannot.

Will a case resolved on independent and adequate state grounds go to the Supreme Court?

No, it will not

Can federal courts hear cases regarding legislative or executive power?

No, they cannot.

What is the 11th Amendment? Exceptions (3 of them)?

1. Citizens of one state CANNOT sue their own or another state

   1. Exceptions:

      1. State consents to the suit

      2. Government official 

      3. Municipalities

Who has the power to veto?

The president

Who has the power to appoint ambassadors, judges, and heads of agencies?

The president

Who has the power to appoint members of an agency when there is no regulatory or rulemaking authority?

Congress

Who has the power to pardon? What types of crimes can they pardon?

President - Federal crimes only

Who can command troops?

The president

Who can declare war?

Congress only

Who has the power to enter into treaties? Any additional approval?

The president has the power to enter into treaties, but they require Senate approval.

If a treaty and federal law conflict, which one will prevail?

The one that happened most recently (Chronologically)

What is the geographic difference between an executive order and an executive agreement?

Executive order = domestic
Executive agreement = international

Can an executive agreement override a federal statute?

No, it cannot

What happens if an executive order conflicts with a law passed by a Congress?

Generally, the law passed by Congress will prevail.

What constitutional power allows Congress to impose a $1 tax on candy bars to fund cancer research?

The Congressional Taxing Power – to raise revenue for the general welfare.

What is the purpose of Congress’s taxing power under the Constitution?

To raise revenue for the general welfare.

Under what power can Congress fund programs that serve the general welfare?

The Congressional Spending Power.

What clause allows Congress to allocate federal funds for public programs?

The Spending Clause – for the general welfare.

What clause gives Congress the authority to regulate the amount of cotton in pajamas or lead in pencils?

The Commerce Clause.

What does the Commerce Clause allow Congress to regulate?

The making, manufacturing, and shipping of goods affecting interstate commerce.

Which branch of government has the power to declare war?

Congress.

Which branch holds the primary responsibility for managing foreign affairs under the Constitution?

Congress

Who has the authority to regulate non-citizens (aliens) under U.S. law?

Congress.

Who has the power to coin money in the U.S. Constitution?

Congress.

Who has authority over federal land, including Washington D.C.?

Congress.

Which governmental body controls national parks and monuments?

Congress.

What logical principle should you apply when answering constitutional law questions?

Occam's Razor – choose the simplest, most straightforward answer.

Can Congress delegate powers? To whom? Any issues?

Congress CAN delegate powers to the President, but it must include guidelines and limitations

What is the necessary and proper clause?

Congress can do anything necessary and proper to execute their enumerated powers

What happens when federal law conflicts with state law?

Federal law always wins under the Supremacy Clause.

Can a state law be more lenient than a federal law?

No, a more lenient state law is preempted by the federal law under the Supremacy Clause.

Can a state law be stricter than a federal law?

Yes, under the 10th Amendment, a state can pass a more restrictive law.

Example: The FDA requires meat to be cooked at 250°F. Can California require 350°F?

Yes, because it is more restrictive, not more lenient.

Can a state pass a law banning meat entirely?

Possibly under its police power, but if it conflicts with federal law, the Supremacy Clause would preempt it.

What is “police power” under the 10th Amendment?

The power of states to make laws for health, safety, and welfare of their citizens.

Does the federal government have police power? Exceptions?

No, the federal government does not have general police power. They have “police like power” over the District of Columbia

Can the federal government require a state to pass or enforce a law? What rule is this?

No, under the Commandeering Rule, the federal government cannot require states to take action.

What does the Dormant Commerce Clause prohibit?

States cannot discriminate against or unduly burden out-of-state businesses in regulating commerce.

Can Florida pass a fishing law that treats out-of-state fishermen differently?

No, that would violate the Dormant Commerce Clause.

How are state laws evaluated under the DCC if they are discriminatory on their face? (Level of scrutiny)

Strict scrutiny applies.

How are state laws evaluated under the DCC if they have a discriminatory effect? (Level of scrutiny)

Intermediate scrutiny applies.

What is the general test under the Dormant Commerce Clause?

The burden on interstate commerce must not be excessive compared to local benefits.

What is the Market Participant Exception to the DCC?

If a state controls an entire industry, it may discriminate in favor of in-state interests.

What does the Full Faith & Credit Clause require?

A judgment in one state must be recognized and enforced by other states.

Can a state sue the federal government?

No, states cannot sue the federal government.

Can states tax the federal government?

No, states cannot tax the federal government directly.

Can states tax federal employees?

Yes, states can tax individuals who work for the federal government.

Can an individual sue the federal government?

Only if the federal government consents (e.g., via the Federal Tort Claims Act).

Can the federal government sue a state?

Yes, the federal government can sue a state.

Can one state sue another state?

Yes, a state can sue another state in the U.S. Supreme Court.

Can the federal government tax a state’s governmental activity? Example?

No, the federal government may not tax essential state government functions (e.g., courthouse operations).

Can the federal government tax a state-run business?

Yes, if it's a proprietary business, like a gift shop in a courthouse.

What triggers an Equal Protection analysis?

When the government treats people differently.

What level of scrutiny applies to classifications based on race, alienage, or national origin?

Strict Scrutiny.

What must the government show under Strict Scrutiny?

The classification is necessary to achieve a compelling government interest.

What level of scrutiny applies to gender and illegitimacy?

Intermediate Scrutiny.

What must the government show under Intermediate Scrutiny?

The classification is substantially related to an important government interest.

What level of scrutiny applies to all other classifications (e.g., age, wealth, etc.)?

Rational Basis.

Who has the burden under Rational Basis Review?

The plaintiff.

Who has the burden under strict and intermediate scrutiny?

The government

What must the plaintiff show under Rational Basis Review?

The law is not rationally related to a legitimate government interest.

What does Substantive Due Process apply to?

When the government regulates a right for all people.

What scrutiny applies to fundamental rights under Substantive Due Process?

Strict Scrutiny.

What scrutiny applies to non-fundamental rights?

Rational Basis.

What are the fundamental rights that trigger strict scrutiny? Acronym?

CAMPER:

• Contraception

• Abortion (note: currently rational basis)

• Marriage

• Procreation

• Education

• Raise Family
  Also: Vote, Free Speech, Interstate Travel

What does Procedural Due Process protect?

Property rights (e.g., government jobs, licenses, public benefits).

What must be provided under Procedural Due Process?

Notice and a hearing.

What’s a key requirement for procedural due process to apply?

The property right must be vested.

Example: If you're on Day 100 of a 90-day probationary period, does due process apply?

Yes, the property right is vested.

Which amendment applies to federal government violations of Equal Protection or Due Process?

The 5th Amendment.

Which amendment applies to state government violations?

The 14th Amendment.

What triggers a Privileges & Immunities claim?

A state law that treats non-residents differently.

What does the 13th Amendment prohibit?

Slavery and racial discrimination by private individuals.

What does the 15th Amendment protect?

Voting rights from racial discrimination.

Q: What is required under the Takings Clause? (Three elements)

• A government taking of private property

• For public use

• With just compensation (fair market value)

What is inverse condemnation? Example?

When the government’s action denies economic value of the land, leaving it worth nothing.

Building a manure factory next to your home.

What are the two main clauses that relate to rights to religion?

Establishment Clause + Free Exercise Clause

What does the Establishment Clause prohibit?

Laws that formally sponsor or establish a religion.

What are two common tests for Establishment Clause violations?

• History and Tradition: whether action aligns with historical practice

• Neutrality: whether law is religiously neutral

What does the Free Exercise Clause prohibit?

Government interference with religious practice.

Can a neutral law that incidentally restricts religion be valid?

Yes, if it is neutral and generally applicable.

Example of neutral law affecting religion?

Ban on hats, even if it affects turbans.

What are the two major types of speech regulations?

Content-based speech

Content-neutral speech

What is a content-based restriction on speech?

Government restricts message or viewpoint.

What scrutiny applies to content-based regulations?

Strict Scrutiny.

Example of content-based regulation?

Government prohibits Nazis from demonstrating.

What do content-neutral regulations control?

Time, place, and manner of speech.

What scrutiny applies to content-neutral regulations?

Intermediate Scrutiny.

What must content-neutral regulations satisfy? (Two elements)

• Serve a significant government interest

• Leave alternative channels of communication open

What are examples of a public forum?

Streets and parks.

What rules apply to speech in public forums?

Must serve significant government interest and allow alternative means of communication.

What are examples of a non-public forum?

Billboards, buses, signs.