BAR FLASHCARDS - CL MBE Approach

Question 1

3 Primary areas of law

Answer 1

Powers of the 3 branches (leg, exec, jud)
Relationship btwn states and fed gov (Federalism)
Relationship btwn gov and individuals - 50% of qs

Question 2

3 questions

Answer 2

1. Who: who are the parties, who is taking the action, who’s objection?
2. What type of conlaw problem: powers, individaul liberties?
3. How is this problem resolved. How is it analyzed?

Question 3

Powers question or rights question

Answer 3

Generally.

Question 4

Powers of the executive branch

Answer 4

Domestic Authority:
1. Appoint high level officers with Senate approval
2. Pardon federal offenses
3. Veto bills

Power over External Affairs:
1. Can act militarily but cannot declare war.
2. Represents US in foreign relations
3. Enter into treaties with 2/3 Senate approval.

Question 5

If Executive treaty is IN CONFLICT with federal law….

Answer 5

Last in time prevails.

Question 6

Executive agreements are signed by…

Answer 6

the president and a head of a foreign country. Do NOT need Senate approval and federal law trumps executive agreements.

Question 7

Legislative branch

Answer 7

Only has powers in Article I.
Taxing and Spending Powers

Question 8

Legislative branch - Taxing and Spending Powers

Answer 8

Congress can pass laws under taxing power as long as: Reasonable relationship to revenue production or be within Congress’s regulatory power

Spending power - Congress can pass laws to spend money: On any public purpose for on the general welfare.
But congress does not have police powers - cannot pass laws based on the general welfare.

Taxing and spending power are limited by individual rights.

Question 9

Congress legislative autbhority under its police power

Answer 9

Unless the facts involve DC, a US TERRITORY, or THE MILITARY, any answer that says congress has legislative authority under its police powers is WRONG.

Question 10

Legislative Branch - Commerce Power

Answer 10

Congress’s power to regulate all foreign and interstate Commerce.
Congress can also regulate the channels of interstate commerce like roads and bridges.
Congress can also regulate the instrumentalities of interstate commerce like trucks, trains, and planes.
…EVEN IF the channels and instrumentalities are WHOLLY INTRASTATE.
Congress can regulate INTRASTATE economic activity if the economic activity has a substantial effect on interstate commerce in the aggregate. (farmers growing food and weed, just not possession of a gun in a school zone).

Question 11

Congress has plenary power to regulate…

Answer 11

interstate commerce, that is COMMERCE BETWEEN STATES. So unlike states, congress can allow stagtes to discriminate against out of state businesses.

Question 12

Judicial branch

Answer 12

Constitutional limitations are the justiciability doctrines

Question 13

Justiciability doctrines

Answer 13

Fed courts need a CASE OR CONTROVERSY to rule on.
Case has to be RIPE and NOT MOOT.
Plaintiff ahs to have STANDING.
NOT a POLITICAL QUEsTION.

11th amendment prohibits FED courts from hearing a private party or foreign government’s claim against a state.

Question 14

Powers of states and municipalities

Answer 14

All powers not expressly conferred on the fedral gov, are reserved for the states (including local govs).
Only states and local govs have general police powers, meaning they can pass laws to advance the general welfare.

Question 15

Q3: How are states/municipalities police powers restricted?

Answer 15

DORMANT Commerce Clause.
Privileges and Immunities Clause, Article IV

Question 16

How are states/municipalities police powers restricted - by the DORMANT COMMERCE CLAUSE?

Answer 16

DORMANT Commerce Clause: If Congress has NOT regulated an aspect of interstate commerce, state can regulate local aspect of interstate commerce IF:
- Law does NOT discriminate against interstate commerce, OR
- Law does not unduly burden interstate commerce.
EXCEPTIONS:
- if state is acting as a market participant
- if the discrimination furthers an important NON-ECONOMIC state interest, and no other reasonably alternative exist.

Question 17

How are states/municipalities police powers restricted - by the Privileges and Immunities Clause, Article IV:?

Answer 17

Privileges and Immunities Clause, Article IV:
- Protects out-of-state citizens from a state denying them important economic interests.
- Only applies to people. NOT corporations or aliens.
If it does discriminate: The law is invalid unless the state can show a substantial justification for the law, and NO less restrictive means are available to accomplish the substantial justification.

Question 18

4 ways the government could be interfering with an idnividaul right

Answer 18

Equal protection, due process, takings clause, 1st Amendment

Question 19

D is oeprating using a licrense by the state or received government funding…

Answer 19

Still a PRIVATE ACTOR, not state action.

Question 20

Equal protection clause prohibits…

Answer 20

UNREASONABLE discrmination. Doesnt prohibit all discrimination.

Question 21

Equal protection: if race, alienage, national origin, or religion…

Answer 21

Apply strict scrutiny: Gov must show discrimination is necessary to achieve a compelling government interest.

Question 22

Equal protection: if Gender or legitimacy…

Answer 22

Apply intermediate scrutiny: Gov must show discrimination is substantially related to an important government interest.

Question 23

In order for a plaitniff to prevail on a heightened scrutiny review for an Equal Protection issue, he must show…

Answer 23

Discriminatory intent. Can show by showing:
1. Law was discriminatory on its face, OR
2. Law was applied in a discriminatory manner, OR
3. There was a discriminatory motive behind the law.

Discriminatory EFFECTS are NOT SUFFICIENT

Question 24

Equal protection: if soemthing else…

Answer 24

Apply rational basis: Complaining party has burden to show gov action is NOT rationally related to a legitimate government interest

Question 25

Equal protection clause is from what?

Answer 25

The 14th Amendment.

Question 26

Equal protection clause of the 14th amendment applies….

Answer 26

ONLY to the states. Equal protection clause ONLY restricts states.
5th Amendment protects individuals from unreasonable discrimination by the federal government.

Question 27

What protects individuals from unreasonably discrimination?

Answer 27

14A: States
5A: Feds

Question 28

Due Process:

Answer 28

How is the gov potentially interfering with a claimant’s rights?
By lmiting a liberty interest or fundamental right.
- By denying all indivudlas a fundamental right: SUBSTANTIVE due process. Apply STRICT SCRUTINY.
- By denying life, liberty, or property interest without notice and fair hearing: PROCEDURAL due process.

Question 29

What are the fundamental rights?

Answer 29

Privacy rights.

Question 30

14A only restricts ___

Answer 30

STATES. look to 5A for fed.

Question 31

For employment, look for…

Answer 31

a contract that provides for continued work. If one exists, then the employee has a sufficent property interest in continued employment to trigger due process

Question 32

First Amendment

Answer 32

Speech, press, religion.

Question 33

How is this law affect speech? (analysis)

Answer 33

• By limiting the content of the speech: Strict scrutiny applies unless less protected (commercial speech)/ unprotected speech (fighting words/obscenity).
  Strict scrutiny =
• By limitng the manner in which the speech is delivered: Time, place, manner, framework

Question 34

By limitng the manner in which the speech is delivered: Time, place, manner, FRAMEWORK

Answer 34

Depends on the forum at issue:
For PUBLIC FORUM (st, sidewalk, park), valid if:
- content neutral,
- narrowly tailored to serve important government interest,
- alternative channels of communication are left open.
-**does NOT have to be least restritive means
For DESIGNATED PUBLIC FORUM (nonpublic forum opened to speech at a particular time), valid if:
- Apply public forum test
For NONPUBLIC FORUM, valid if:
- Viewpoint neutral
- Reasonably related to legitamite government interest.
For LIMITED PUBLIC FORUM (nonpublic forum opened to speech on a limited range of subjects), valid if:
- Apply nonpublic forum test

Question 35

Religiion: How is this law affecting religion (analysis)

Answer 35

Limits religion: -Free Exercise Clause
Supports religion: - Establishment Clause.

Question 36

Free Exercise Clause

Answer 36

• Valid if generally applicable.
• Invalid if it specifically targets religious pactices, apply strict scrutiny.

Question 37

Establishment Clause

Answer 37

when the gov officially recognizes religion or aids a religion.