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FLAP (MBE) > Con law > Flashcards

Con law Flashcards

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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
Q

Executive (presidential) powers

A
  1. Pardon
  2. Veto
  3. Appointment
  4. Commander in Chief
  5. Exectuive orders
  6. Executive agreements
26
Q

Pardon

exec power

A

President’s absolute and unappelable power to pardon federal crimes (NOT state crimes)

27
Q

Veto

exec power

A

ONLY the president can veto (reject a bill)

No matter the fact pattern - Congress CANNOT veto

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
Q

Appointment

Exec power

A

President can appoint ambassadors, judges AND anyone with exec power

Exec power = power to make rules, issue regulations, and prosecute

Congress and President can jointly appoint if position/people appointed have NO executive power

29
Q

Commander in chief

Exec power

A

Power to send/move troops for necessary safety

30
Q

Executive orders and agreements

Exec power

A

Have the effect/enforceability of a law UNLESS there is a federal law on the issue.

Orders = domestic
Agreement = foreign

31
Q

Legislative powers

Listed and defined

A
  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
Q

Interstate commerce

Congress’ main power source

A

“Plenary” power (aka broad) involved in any: making, shipping, manufaturing, retailing of a good.

33
Q

Dormant commerce clause

Def

A

State passes a law which discriminates out of state businesses

generally unconstitutional

Answer choice may not include the word dormant, that is OK - shut up and pick it (commerce clause)

34
Q

Dormant commerce clause

Exceptions (2)

A

(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
Q

Judicial branch

Original jurisdiction

A

Congress CANNOT enlarge or restrict SCOTUS original jurisdiction

36
Q

Judicial branch

Appellate jurisdiction

A

Congress can enlarge/restrict appellate jurisdiction

37
Q

Judicial branch

Courts

A

Congress cannot create other SCOTUS, but can create lower federal courts

Lower fed courts = District courts and DCAs

38
Q

What are police powers?

Def and source

A

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
Q

What is the comandeer rule?

A

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
Q

Privileges & immunities clause

Def

A

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)

This does NOT refer to aliens = immigrants (EP applies)

41
Q

What are the federal limitations on bringing cases to court?

A

There must be:
1. standing
2. State action
3. And a case or controversy

42
Q

Standing

Def

A

There must be an actual injury (personal damage at stake - i.e. an economic interest)

43
Q

State action

Def

A

If no state action = no constitutional violation

b/c if private individual is violating any constitutional rights = ok

44
Q

State action

Exception..?

A

**13th Am! **

if ther is express/explicit racial discrimination by private individuals/entities = constitutional violation

45
Q

Case or controversy

A

The case must be ready for trial b/c if not… there is no case or controversy

46
Q

No case or controversy

Types and def

A

A case can be ripe or moot

Ripeness = the case is not ready for trial
Mootness = there is nothing left to litigate

47
Q

Bill of attainder

A

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
Q

Ex-post facto

A

State passes a law making a conduct that was legal (when you did it) retroactively illegal

49
Q

5th Am v. 14th Am.

A

5th Am = congress passing a law
14th Am = state passing a law

FLAP (MBE) (7 decks)

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