Con Law Flashcards
Equal protection questions appear as:
government treats a group of people differently from everyone else
Three different levels of scrutiny
Strict scrutiny, Intermediate scrutiny, rational basis
Strict scrutiny regards
race, alienage, and national origin (and fundamental rights)
Strict scrutiny (burden)
The Government has the burden to show that the law is necessary to achieve a compelling interest
Intermediate scrutiny deals with
gender and illegitimate kids
Intermediate scrutiny (burden)
The Government has the burden to show that the law is substantially related to important interests
Rational basis deals with
everyone else
Rational basis (burden)
The plaintiff must show that the law is not rationally related to a legitimate interest
Due process categories:
Substantive due process and procedural due process
Substantive due process
The Government takes away or regulates one of EVERYONE’S rights
What is the level of scrutiny for fundamental rights?
strict scrutiny
what are the fundamental rights?
right to vote, right of free speech, right to interstate travel, right to privacy, and liberty
What are the subcategories of right to privacy?
contraception, abortion*, marriage, procreation, education, and the right to raise your family
Abortion for MBE purposes
If the hypo is before 2023, strict scrutiny. If after 2023, rational basis
Procedural due process
If a property is taken away, the person has the right to notice and a hearing
What is “property” for procedural due process
Job, license, and benefits (public only, i.e. firefighter pension)
For MBE procedural due process, the interest must be
public and earned
Two concepts regarding religion
Free exercise of religion and the establishment clause
Free exercise of religion
Individuals have the right to exercise their religion any manner they choose, as long as they do not violate any law
For free exercise of religion, government (2)
Must act neutrally and must not intend to prevent groups from exercising their religion
Establishment clause:
Government cannot pass any law which establishes a religion
Two tests for establishment clause
the Lemon test (old) and the Neutrality test (new)
The Lemon test
(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)
Neutrality Test
As long as the government is neutral, and there is no preference of religion, it is ok.
Speech (1st Amendment)
Government cannot ban speech, but can regulate speech
Types of speech regulation
Content-based regulation, content neutral
Content-based regulation
Government regulates the words that are being said (regulating the message)
For content-based regulation the scrutiny level is
Strict scrutiny
Content Neutral Regulation
Government regulates the time, place, and manner.
How to measure Content Neutral Regulation?
As long as the message gets out, it is reasonable
Level of scrutiny for CNR
Intermediate scrutiny
Analysis of intermediate scrutiny in CNR
If the interest is significant and important, and leaves open alternative means of expression, then it is ok.
Separation of powers
One branch of the government cannot encroach on another
The Branches:
Executive (President), Legislative (Congress), and Judicial (Supreme Court)
Executive Branch powers
Pardon, veto, appointment, commander in chief, executive order, and executive agreement
Pardon
Forgiveness of federal crimes. Absolute power, cannot be appealed.
Veto
Power to block a proposed legislation
Appointment
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
Commander in Chief
In charge of the armed forces, but no power to declare war
Executive order
Domestic scope, enforceable like a law as long as there is no Federal law on that subject
Executive agreement
International scope, enforceable like a law as long as there is no Federal law on that subject
Legislative branch powers
Commerce, taxing, spending, coin money, federal lands, declare war
Commerce
The Commerce Clause of the Constitution allows Congress to pass nearly any law as long as it affects interstate commerce
Taxing
As long as it raises general welfare
Spending
As long as it is for the general welfare
Coin Money
No state can have its own currency
Federal Lands
Congress has power over federal property (such as Washington D.C., which Congress has power and jurisdiction over)
Declare War
Only Congress has power to declare war
Judicial Branch powers
Jurisdiction and the courts
Original Jurisdiction vs. Appellate Jurisdiction
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
Supreme Court v. Lower Federal Courts
Lower Federal Courts
- Congress has jurisdiction over the lower
federal courts
- Congress can create new federal courts
Supremacy Clause
Where Federal law conflicts with State law, federal law prevails (the laws must be completely against each other)
States’ Rights (10th Amendment)
When there is no conflict between State and Federal laws, the State law can be stricter, but not less restrictive
When there is no federal law on a subject
States can exercise Police Powers to provide for the health, safety, and welfare of citizens
Federal Police Powers
do not exist. Congress cannot pass laws for the general welfare.
13th Amendment
Anybody who commits racial discrimination can be held civilly or criminally liable (no state action required)
Commandeer rule
Congress cannot obligate State to do anything
Privileges and immunities
State cannot discriminate against residents of another state
No case or controversy
Mootness or ripeness
Mootness
case is over, nothing left to litigate
Ripeness
There is no case or controversy because the case has not happened yet
Dormant Commerce Clause
State passes law that discriminates against an out of state businesses
Exceptions to dormant commerce clause
Market Participant or Congress Allows it under the commerce clause
Market participant
When the state runs the business
Bill of Attainder
A law that names an individual or group of people and levies a punishment
How to distinguish BOA from EP questions
BOA requires a levying of a punishment
Ex post facto
A law that makes conduct that was once legal is now illegal and it is retroactive
5th Amendment versus 14th Amendment
5th Amendment = Congress passes law
14th Amendment = State passes law
