Equal Protection
What are some rules regarding how universities can implement application diversity policies without violating due process? (Affirmative action)
Race can be used, however, the school has to show it made a serious, good faith consideration of other factors to achieve the diversity.
RULES:
i. Cannot use quota system; Cannot insulate each category of applicants from the competition with all other applicants; may consider race a “plus”; Cannot reserve spots on basis of race but can give a bonus to race; a “highly individualize holistic review” helps.
Describe the difference between Establishment Clause and Free Exercise Clause?
The establishment clause is there to protect against the endorsement of one religion over another or enforce a particular practice.
The free exercise clause is there to protect for the freedom to practice any religion and the government cant interfere with that.
How would you differentiate a procedural due process issue versus a substantive due process issue?
Substantive Due Process issues involve the states’ power to regulate certain activities.
Procedural Due Process issues involve an analysis of the procedure required by the Constitution when states seek to deprive people of life, liberty or property.
True or False. No international treaty or convention by the President can be self-executed.
True. See Medellin.
To have effect, it must pass through the legislative process and passed into a law by Congress.
Describe vertical authority
The Supreme Court has the authority to invalidate state laws.
What case(s) should you cite if the call of the question involves the violation of EP on gender.
Bonus Q: what level of scrutiny do you apply?
U.S. v. VA
(Michael M)
Intermediate Scrutiny
What test do you apply when the government is attempting legislation that endorses a specific religion or religious practice?
The Lemon Test
Who has the burden of proof that there has been a violation in a rational basis scrutiny analysis?
The challenger
In what scenario/issue would you cite Youngstown ?
When the president is steppingoutside the major functions and intruding in Congress’ authority and you need to use the ebb tests.
True or False. Congress can easily limit judicial review in habeas corpus cases.
False. It is nearly impossible for Congress to limit judicial review in these cases.
Congress cannot strip SCOTUS of judicial review merely by writing limitations on review into a law and to do so would limit a strongly protected right like habeas or due process; in part because that right exists independently in the Constitution
See Boumedine. Congress cannot easily limit judicial review in habeas cases without sufficient process guaranteed in alternative tribunals, like military commissions, even when the applicant for the writ is a non-citizen, outside of the US, who has been labeled an enemy combatant.
What is the difference between a substantive due process case where a fundamental right is implicated, and an equal protection case where a fundamental right/interest is implicated?
In an EP case, the statute or ordinance in question has created two groups, one of which has this right impacted and one of which does not.
The group might or might not be a protected class, but only one group has the right impacted by state action.
What is the specific test for time, manner, and place restrictions and what case(s) should you cite?
a. Is the restriction content-neutral?
b. Is it directed at achieving a significant government interest
c. is it narrowly tailored to achieve that interest?
d. Does it leave open ample alternative channels of communication?
Boos v. Barry
Name some SDP privacy issues that can arise in a fact pattern.
Describe the 11th amendment and state sovereign immunity.
State immunity from federal lawsuits brought against them by citizens; right not to have federal judiciary used against them by a private citizen.
BOTH a power of the states AND a limit on Congress and the Courts.
Briefly describe checks and balances
is the power of SCOTUS to review the constitutionality of the acts of the other branches of govt
Is education considered a fundamental right?
In the Constution, no. However , the distinction is the absolute denial of education (Plyler) v.
the different quality of education (Rodriguez; but see
Brown v Bd.)
Is there a special analysis/different protection for speech in public property?
Yes; Balance person’s right to use public property for speech purposes against government right to maintain property for its intended use.
Two reasons why the Court would apply strict scrutiny?
Includes a suspect class (race, national origin, aliengae or *religion*)
or a fundamental right.
True of False. If the President can show a matter of national security, a court may allow him to avoid trial/judicial orders.
What case would you cite to explain this.
True.
See US v. Nixon
When can Congress bar discrimination under the 14A?
When the State is the actor.
What are some red flags to look out for the court to heigten the scutiny of rational basis
1) is there some animus on the part of the state
in passing the legislation?
2) Is the group historically disfavored, even if
not a protected class? [aka “hybrid review
when quasi-protected class]
3) is a fundamental interest implicated [aka
“hybrid review” when quasi-fundamental
interest]
Is this law unconstitutional? True or False and why.
(a) When police observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more
other persons, he shall order all such persons to disperse. Any person who does not promptly obey such an order is in violation. (b) It shall be an affirmative defense to an alleged violation of this section that no person observed loitering was in fact a member of a criminal street gang. (1) ‘Loiter’ means to remain in any one place with no apparent purpose.... (e) Any person who violates this Section is subject to a fine of not less than $100 and not more than $500 for each offense, or imprisonment for not more than six months, or both.”
True because it is both vague and overbroad.
The overbreadth doctrine permits the
facial invalidation of laws that inhibit the
exercise of 1A rights if the impermissible
applications of the law are substantial
when “judged in relation to the statute’s
plainly legitimate sweep.”
Law may also be impermissibly vague
because it fails to establish standards for
the police and public that are sufficient to
guard against the arbitrary deprivation of
liberty interests (e.g. racial profiling). - City
of Chicago v Morales
True or False. Social and economic regulatory legislation which does not interfere with fundamental rights will not be closely scrutinized by the federal courts.
True. This a rule post Lochner.
True or False. In a Commerce clause analysis, Economic activities almost always will suffice.
What cases would you look to for this answer.
True.
Wickard and Raich.
How can Congress "check" the judiciary?
They can make “exceptions” and “regulations” that apply to federal courts. It can also repeal judicial review that have been previous decisions. But it cannot exercise appellate jurisdiction.