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CAL Con Law Exam Questions And Answers
Con Law Topshelf? - Answer Standing To bring a constitutional action in federal court, the plaintiff must have standing underArticle III (because Article III only grants jx to "cases or controversies"). To show standing, the plaintiff must show: 1) injury in fact; 2) causation; and 3)redressability.
[RIPENESS ANALYSIS] [MOOTNESS ANALYSIS] Freedom of Speech Topshelf? - Answer As a preliminary matter, speech is broadlydefined under the 1st Amendment, and it can include symbolic/expressive conduct that would not be traditionally thought of as speech. State ActionTo show a First Amendment violation, P must first show that there was state action (the Constitution does not apply to private actors, other than the 13th Amendment, which isnot at issue here). State action simply means government action (it need not be at the"state" level; it can be local, federal, etc.). Vagueness Laws/policies infringing on the freedom of speech cannot be vague; this requires that thelaw give fair notice of the prohibited conduct such that a reasonable person would understand what is prohibited by the policy. OverbreadthSimilarly, a speech regulation will be struck down if it is overbroad, i.e., it regulates more speech than is necessary.
Symbolic Speech P will argue that D's policy impermissibly regulates expressive speech under the 1st and14th Amendments. The test is as follows: a regulation will be upheld only if:
- it serves an important, non-speech related interest;
- it burdens no more speech than necessary; and3) the primary aim is not the suppression of speech. The government, D, has the burden of proving this test. Also, as a threshold matter, the government must have the power tocreate the law--here, the school district has the power to create reasonable regulations on public high school students, so D has the authority to implement such regulations. Content-Neutral vs. Content-Based If the court did not apply the symbolic/expressive speech test set forth above, andinstead took a more traditional freedom of speech approach, the court would examine whether the regulation was content-neutral, or content-based. Content-neutralregulations are subject to intermediate scrutiny-like analysis,
14th Am OV? - Answer PROCEDURAL DUE PROCESS Under the 14th Amendment procedural Due Process Clause, no person shall be deprivedof life, liberty, or property without due process of the law. This requires a showing that 1) there was a deprivation of a protected interest, 2) without due process protections(namely, notice and a hearing). When deciding what process is due, the court looks at the nature of the interest affected, the probable value of additional safeguards, and theburden on the government.
SUBSTANTIVE DUE PROCESSUnder the 14th Amendment substantive Due Process Clause, the government shall not infringe on individual rights in an arbitrary or irrational manner. If the right isfundamental, strict scrutiny applies; if the right is not fundamental, it is subject to rational basis review. EP CLAUSEUnder the Equal Protection Clause, all individuals must be treated equally without discrimination. A restriction is subject to strict scrutiny if it discriminates on the basis of
Right to Privacy? - Answer An individual has a right to privacy, including a right to whatthey wear on their body. This is a fundamental right that is subject to strict scrutiny.
STANDING Rule? - Answer (1) Injured (2) Causation by Defendant(3) Harm is redressable by Court
Mootness and Ripeness? - Answer Mootness: If there is no live controversy (if it has beenadjudicated), the Court will not hear the case.
Ripeness: Court only wants to hear injuries that have occurred and are not speculative. State Preemption Issues? - Answer 1) Express Preemption The federal law explicitly states that it is the only law allowed in that area
- Implied Preemption • Congress passes a federal law intending to "occupy the field"
- The state law directly conflicts with federal law • The state law indirectly conflicts with federal law
P&I OV? - Answer o Prohibits states from discriminating against citizens of other states o Exception: A state can discriminate against out-of-state citizens if there is a substantialjustification for the discrimination
10th Am OV? - Answer o All powers not expressly given to the federal government arereserved to the states. o The federal government cannot "commandeer" state legislatures and force them topass laws.
DCC OV? - Answer o The Commerce Clause enables Congress to regulate interstatecommerce.
o The Dormant Commerce Clause limits the states' ability to regulate interstatecommerce, an area that Congress already regulates.
a. Discriminatory or NondiscriminatoryIf the state law is discriminatory against out-of-state commerce, the state must show:
a) It has an important state interest; and b) There is no other non-discriminatory means available to achieve that interest b. Undue Burden on Interstate CommerceIf a statute is not discriminatory, the law may still be invalid if it causes an "undue burden" on interstate commerce.A court will balance the purpose of the statute against the burden on interstate commerce and whether there are less restrictive alternatives. TAKINGS OV? - Answer A. 5th Amendment — Takings Clause The government may not take private property for public use without just compensation.
- Government ActionFederal, state, or local government "taking" property by physically taking, or rezoning, prohibiting development, etc.
- Private PropertyUsually involves land, but can be other property
(1) Procedural DP (2) Substantive DP
- Procedural Due Process o The Due Process Clause provides certain protections (i.e., procedures) before thegovernment can take a person's life, liberty, or property. o Examples of procedures: notice, hearings, appeals, neutral decision maker a. Amount of Process Due Due process requires that certain procedural safeguards such as a notice and a hearingare afforded to an individual whose protectable interest(s) has been taken by the government. The court will balance three factors that are particularly salient indetermining what process is constitutionally due: (i) the private interest affected; (ii) the government's interest; and(iii) the risk of an erroneous deprivation of such interest through the procedures used, and the value, if any, of additional or substitute procedural safeguards.
- Substantive Due Processo Whether the government's action (such as a law or regulation) impermissibly infringes on an individual's rights a. Standard of Review
Fundamental rights (life, liberty, and property) • Strict scrutiny— only valid if necessary to achieve a compelling governmentalinterest
Non-fundamental rights
- Rational basis— valid if rationally related to a legitimate government interest
EP OV? - Answer 1. Discrimination requiremento The plaintiff must show discrimination o In order to apply a stricter standard of review, must show discriminatory intent
- Standards of Review o Fundamental right or suspect classification (race, ethnicity, national origin)scrutiny — Strict o Gender or nonmarital childreno Other rights and classifications —— intermediate scrutinyrational basis
a. Strict Scrutiny Fundamental rights and classifications based on race, ethnicity, and national origin Government must show the law is:a) The least restrictive means b) To achieve a compelling government interest b. Intermediate ScrutinyApplies to laws involving gender and non-marital children (i.e., born outside of marriage) Government must show the law is: a) Substantially related b) To an important government interest For gender, must also demonstrate an exceedingly persuasive justification for thelaw — i.e., intermediate scrutiny with bite
c. Rational Basis Applies to all other rights and classifications
Speech in Gov't Forum Types? - Answer 8. Speech in a Government Foruma. Traditional Public Forum Content-based regulations are subject to strict scrutiny Content-neutral regulations are subject to the time, place, and manner test b. Designated Public Forum Content-based regulations are subject to strict scrutiny Content-neutral regulations are subject to the time, place, and manner test c. Non-Public Forum Government can regulate speech in non-public government forums if:a) The regulation is viewpoint-neutral, and b) Reasonably related to,c) A legitimate government interest
RELIG OV? - Answer 1. Establishment Clause Prohibits the government from establishing a religion, preferring a particular religion overanother, or preferring religion over non-religion
a. Facially Religious PreferenceWhen a law facially shows a preference to one religion over another (or to religion over non-religion), strict scrutiny applies.b. No Facially Religious PreferenceWhen a statute has an impact of favoring religion Apply the "historical practices and understanding" test. This is a fact-based analysis.
- Free Exercise Clause o Prohibits the government from interfering with a person's religious belief or conduct o Religiono Belief — A person's religious beliefs are absolutely protected. — The religion must be genuine. o Conducto Neutral Laws — Laws that intentionally target religious conduct are subject to strict scrutiny. — Laws that do not target religion and are generally applicable are subject to the rational basis test. When does strict scrutiny apply? - Answer Relig:Strict scrutiny applies when the government purposely targets conduct because it is religious or displays religious beliefs. A state law that is designed to suppress activitybecause it is religiously motivated is valid only if it is necessary to achieve a compelling governmental interest. To pass muster under the strict scrutiny test, CC must show thatthe ordinance is necessary to achieve a compelling interest and that it is the least restrictive means of doing so.
