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MBE > Con Law > Flashcards

Con Law Flashcards

1
Q

Equal protection questions appear as:

A

government treats a group of people differently from everyone else

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2
Q

Three different levels of scrutiny

A

Strict scrutiny, Intermediate scrutiny, rational basis

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3
Q

Strict scrutiny regards

A

race, alienage, and national origin (and fundamental rights)

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4
Q

Strict scrutiny (burden)

A

The Government has the burden to show that the law is necessary to achieve a compelling interest

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5
Q

Intermediate scrutiny deals with

A

gender and illegitimate kids

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6
Q

Intermediate scrutiny (burden)

A

The Government has the burden to show that the law is substantially related to important interests

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7
Q

Rational basis deals with

A

everyone else

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8
Q

Rational basis (burden)

A

The plaintiff must show that the law is not rationally related to a legitimate interest

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9
Q

Due process categories:

A

Substantive due process and procedural due process

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10
Q

Substantive due process

A

The Government takes away or regulates one of EVERYONE’S rights

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11
Q

What is the level of scrutiny for fundamental rights?

A

strict scrutiny

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12
Q

what are the fundamental rights?

A

right to vote, right of free speech, right to interstate travel, right to privacy, and liberty

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13
Q

What are the subcategories of right to privacy?

A

contraception, abortion*, marriage, procreation, education, and the right to raise your family

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14
Q

Abortion for MBE purposes

A

If the hypo is before 2023, strict scrutiny. If after 2023, rational basis

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15
Q

Procedural due process

A

If a property is taken away, the person has the right to notice and a hearing

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16
Q

What is “property” for procedural due process

A

Job, license, and benefits (public only, i.e. firefighter pension)

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17
Q

For MBE procedural due process, the interest must be

A

public and earned

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18
Q

Two concepts regarding religion

A

Free exercise of religion and the establishment clause

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19
Q

Free exercise of religion

A

Individuals have the right to exercise their religion any manner they choose, as long as they do not violate any law

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20
Q

For free exercise of religion, government (2)

A

Must act neutrally and must not intend to prevent groups from exercising their religion

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21
Q

Establishment clause:

A

Government cannot pass any law which establishes a religion

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22
Q

Two tests for establishment clause

A

the Lemon test (old) and the Neutrality test (new)

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23
Q

The Lemon test

A

(1) Statute must have secular purpose (non-religious),
(2) Law cannot promote nor inhibit religion, and
(3) Government cannot get too entangled with religion (no payment, sponsor, or subsidizing of religion)

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24
Q

Neutrality Test

A

As long as the government is neutral, and there is no preference of religion, it is ok.

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25
Q

Speech (1st Amendment)

A

Government cannot ban speech, but can regulate speech

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26
Q

Types of speech regulation

A

Content-based regulation, content neutral

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27
Q

Content-based regulation

A

Government regulates the words that are being said (regulating the message)

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28
Q

For content-based regulation the scrutiny level is

A

Strict scrutiny

29
Q

Content Neutral Regulation

A

Government regulates the time, place, and manner.

30
Q

How to measure Content Neutral Regulation?

A

As long as the message gets out, it is reasonable

31
Q

Level of scrutiny for CNR

A

Intermediate scrutiny

32
Q

Analysis of intermediate scrutiny in CNR

A

If the interest is significant and important, and leaves open alternative means of expression, then it is ok.

33
Q

Separation of powers

A

One branch of the government cannot encroach on another

34
Q

The Branches:

A

Executive (President), Legislative (Congress), and Judicial (Supreme Court)

35
Q

Executive Branch powers

A

Pardon, veto, appointment, commander in chief, executive order, and executive agreement

36
Q

Pardon

A

Forgiveness of federal crimes. Absolute power, cannot be appealed.

37
Q

Veto

A

Power to block a proposed legislation

38
Q

Appointment

A

Appointment of positions with executive power (can make rules, regulations, or prosecute)

Congress and President can be tandem appointing members ONLY if it is not for executive power positions

39
Q

Commander in Chief

A

In charge of the armed forces, but no power to declare war

40
Q

Executive order

A

Domestic scope, enforceable like a law as long as there is no Federal law on that subject

41
Q

Executive agreement

A

International scope, enforceable like a law as long as there is no Federal law on that subject

42
Q

Legislative branch powers

A

Commerce, taxing, spending, coin money, federal lands, declare war

43
Q

Commerce

A

The Commerce Clause of the Constitution allows Congress to pass nearly any law as long as it affects interstate commerce

44
Q

Taxing

A

As long as it raises general welfare

45
Q

Spending

A

As long as it is for the general welfare

46
Q

Coin Money

A

No state can have its own currency

47
Q

Federal Lands

A

Congress has power over federal property (such as Washington D.C., which Congress has power and jurisdiction over)

48
Q

Declare War

A

Only Congress has power to declare war

49
Q

Judicial Branch powers

A

Jurisdiction and the courts

50
Q

Original Jurisdiction vs. Appellate Jurisdiction

A

Original Jurisdiction
- Cases that start directly in the SC
- Congress shall not enlarge or restrict
Original Jurisdiction

Appellate Jurisdiction
- Cases get appealed up the ladder to the SC
- Congress can make certain exceptions and
regulations for appellate jurisdiction

51
Q

Supreme Court v. Lower Federal Courts

A

Lower Federal Courts
- Congress has jurisdiction over the lower
federal courts
- Congress can create new federal courts

52
Q

Supremacy Clause

A

Where Federal law conflicts with State law, federal law prevails (the laws must be completely against each other)

53
Q

States’ Rights (10th Amendment)

A

When there is no conflict between State and Federal laws, the State law can be stricter, but not less restrictive

54
Q

When there is no federal law on a subject

A

States can exercise Police Powers to provide for the health, safety, and welfare of citizens

55
Q

Federal Police Powers

A

do not exist. Congress cannot pass laws for the general welfare.

56
Q

13th Amendment

A

Anybody who commits racial discrimination can be held civilly or criminally liable (no state action required)

57
Q

Commandeer rule

A

Congress cannot obligate State to do anything

58
Q

Privileges and immunities

A

State cannot discriminate against residents of another state

59
Q

No case or controversy

A

Mootness or ripeness

60
Q

Mootness

A

case is over, nothing left to litigate

61
Q

Ripeness

A

There is no case or controversy because the case has not happened yet

62
Q

Dormant Commerce Clause

A

State passes law that discriminates against an out of state businesses

63
Q

Exceptions to dormant commerce clause

A

Market Participant or Congress Allows it under the commerce clause

64
Q

Market participant

A

When the state runs the business

65
Q

Bill of Attainder

A

A law that names an individual or group of people and levies a punishment

66
Q

How to distinguish BOA from EP questions

A

BOA requires a levying of a punishment

67
Q

Ex post facto

A

A law that makes conduct that was once legal is now illegal and it is retroactive

68
Q

5th Amendment versus 14th Amendment

A

5th Amendment = Congress passes law

14th Amendment = State passes law

MBE (8 decks)

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