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FLAP (MBE) > Con law > Flashcards

Con law Flashcards

1
Q

How do you look at the questions?

A

DUMB IT DOWN - help yourself.

If it is a statute question (Congress/state/maybe both) = why did they pass the law? What does the law do?

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2
Q

What are the individual rights?

A

Equal protection (14th Am)
Due process (14th Am)
Speech (1st Am)
Religion (1st Am)

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3
Q

How do you distinguish EP from DP?

big picture - specifics come later

A

EP: affects a group of people or a class (i.e. Blondes and redheads can’t go to the beach)
v.
DP: affects/regulates everyone (i.e. no one can smoke in a plane)

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4
Q

EP

definition

A

When a statute treats people differently from other people - singles them out - you look at who the people are.

Note: there is no per se violation for treating people differently

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5
Q

What are the levels of scrutiny?

A

Strict and intemediate scrutiny, and rational basis

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6
Q

Strict scrutiny

Def

A

Govt BOP law is necessary to achieve a compelling govt interest

Necessary-compelling

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7
Q

Intermediate scrutiny

Def

A

Govt BOP law is substantially related to an important govt interest

Substantial-important

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8
Q

Rational basis

Def

A

P’s BOP law is not rationally related to legitimate govt interest

Rational-legitimate

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9
Q

EP classes and leves of scrutiny

A

If the people are treated differently based on:

a. Race, Alienage (non-US citizens), national origin – strict scrutiny

b. Gender, illegitimacy (children out of wedlock) – intermediate scrutiny

c. Everyone else – rational basis

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10
Q

DP

big picture - Amendment definition

A

No person shall be deprived of Life, liberty, and Property w/o DP

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11
Q

DP

types

A

(1) procedural and (2) substantive

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12
Q

Procedural DP

A

Property rights taken away – you MUST have notice and a hearing

Property right = public jobs, licenses, benefits

i.e. if they try to fire you from a public job

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13
Q

Substantive DP

A

Statute depriving ALL people of doing something (liberty rights affected)

Different liberty rights have different protection

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14
Q

What are the levels of protection of the different liberty rights?

A

Fundamental rights = strict scrutiny
Non-fudamental rights = rational basis

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15
Q

Name the fundamental rights

All fall under Strict Scrutiny

A
  1. Right to vote
  2. Free speech
  3. Right to travel (interstate b/w states)
  4. Rights to privacy (CAMPER)
    C: contraception
    A: abortion (undue burden test! Not strict scrutiny)
    M: marriage
    P: procreation
    E: education (private)
    R: right to raise your family, custody of kids, child-rearing decisions

note: abortion may change, they’ll let us know

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16
Q

Free exercise of religion

Def

A

INDIVIDUAL has right to exercise their religion any manner they choose, as long as they do not violate laws.

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17
Q

Free exercise of religion

Rule

A

Govt cannot INTENTIONALLY do something to prevent you from practicing your religion.

UNLESS law is NEUTRAL in its face (as to religion) and it affects your practice

i.e. FL law of no head gear in bb games and Jewish bbteam w/yamakas - ok

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18
Q

Establishment clause

Def and rule

A

Govt makes a law too closely related to religion, then 3-part LEMON test applies:

  1. statute must have a secular (non-religious) purpose
  2. Govt cannot promote or inhibit particular religion (everyone must be treated the same)
  3. Govt cannot get too entangled with religion (entanglement = $$ - scholarshipsm tax breaks, sponsoring)

This has changed, but we’ll study it until they say otherwise

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19
Q

Right to free speech

Def

A

Govt cannot ban speech…
BUT it can regulate it

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20
Q

What are the types of govt regulation of speech?

A
  1. content based and 2. content neutral
21
Q

What facts will tell you there is a speech issue?

A

People want to:
(1) have a meeting
(2) a march
(3) advertise
(4) a public forum topic

22
Q

Content based

Govt speech regulation

A

Govt is regulating words you are saying (i.e. deny, prohibit you from saying them, “shutting message down”) - strict scrutiny

If you cannot DO/SAY anything - strict scrutiny

23
Q

Content neutral

Govt speech regulation

A

Govt is regulating where/how/when you say things - regulation must be reasonable to be constitutional (different scrutiny)

Reasonable = there is a signifcant or important interest AND there are alternative means of expression

So.. scrutiny =significant or important interest NEVER strict

24
Q

What is the separation of powers rule?

++ name the branches

A

One branch cannot encroach on another (look for 2 branches in the fact pattern)

Branches = exexutive, legislative, and judicial

25
Executive (presidential) powers
1. Pardon 2. Veto 3. Appointment 4. Commander in Chief 5. Exectuive orders 6. Executive agreements
26
Pardon | exec power
President's **absolute and unappelable** power to pardon **federal crimes** (NOT state crimes)
27
Veto | exec power
ONLY the president can veto (reject a bill) | No matter the fact pattern - Congress CANNOT veto ## Footnote i.e. congress vetoing a commission's decision... the president cannot veto that either, but the exclusive power to do so (if possible) would be executive. SO Congress vetoin = violation of the separation of powers
28
Appointment | Exec power
President can appoint ambassadors, judges AND anyone with **exec power** | Exec power = power to make rules, issue regulations, and prosecute ## Footnote Congress and President can *jointly appoint* if position/people appointed have NO executive power
29
Commander in chief | Exec power
Power to send/move troops for **necessary safety**
30
Executive orders and agreements | Exec power
Have the effect/enforceability of a law UNLESS there is a federal law on the issue. Orders = domestic Agreement = foreign
31
Legislative powers | Listed and defined
1. Commerce clause - its own! 2. Taxing (proper if raising taxes for general welfare) 3. Spending (proper if raising taxes for general welfare) 4. Coin money 5. Federal lands ("property clause" + power over parks, monuments, any underveloped federal land). 6. Declare war
32
**Interstate commerce** | Congress' main power source
"Plenary" power (aka broad) involved in any: making, shipping, manufaturing, retailing of a good.
33
**Dormant commerce clause** | Def
**State** passes a law which **discriminates** out of state businesses | generally unconstitutional ## Footnote Answer choice may not include the word dormant, that is OK - shut up and pick it (commerce clause)
34
Dormant commerce clause | **Exceptions** (2)
**(1) Market participant** = state runs/controls the industry/business in which it discriminates -- so, State can fo whatever it wants! **(2) Congress allows it** = there may be a federal statute saying its okay.
35
Judicial branch | Original jurisdiction
Congress **CANNOT** enlarge or restrict SCOTUS original jurisdiction
36
Judicial branch | Appellate jurisdiction
Congress **can** enlarge/restrict appellate jurisdiction
37
Judicial branch | Courts
Congress **cannot** create other SCOTUS, but can create lower federal courts | Lower fed courts = District courts and DCAs
38
What are **police powers**? | Def and source
When there are no fed law on a subject (so no conflict b/w fed-state law) states can pass stricter laws to provide for the **health, safety and welfare of citizens (states ONLY)** This comes from the **10th Am's state's rights** | No federal police power
39
What is the **comandeer rule**?
Congress CANNOT require/obligate (command) states to act (do something)... iF they do so = unconstitutional | That's why they have financial incentives to persuade them otherwise
40
**Privileges & immunities clause** | Def
One state CANNOT discriminate against residents of other states just b/c they are residents of other states. SO if the group of people = residents v. non-residents, this clause applies | Non-residents = americans (this clause) ## Footnote This does NOT refer to aliens = immigrants (EP applies)
41
What are the federal limitations on bringing cases to court?
There must be: 1. standing 2. State action 3. And a **case or controversy**
42
Standing | Def
There must be an actual injury (personal damage at stake - i.e. an economic interest)
43
State action | Def
If no state action = no constitutional violation b/c if private individual is violating any constitutional rights = ok
44
State action | Exception..?
**13th Am! ** if ther is express/explicit racial discrimination by private individuals/entities = constitutional violation
45
Case or controversy
The case must be ready for trial b/c if not... there is no case or controversy
46
No case or controversy | Types and def
A case can be **ripe** or **moot** Ripeness = the case is not ready for trial Mootness = there is nothing left to litigate
47
**Bill of attainder**
**State** passes a law NAMING a person/entity & **levying a punishment/fine** on them | i.e. FL passes a law where all jet fans must pay a fine
48
**Ex-post facto**
State passes a law making a conduct that was legal (when you did it) **retroactively illegal**
49
5th Am v. 14th Am.
5th Am = congress passing a law 14th Am = state passing a law

FLAP (MBE) (7 decks)

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