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Rocking the Bar Exam > Con Law > Flashcards

Con Law Flashcards

1
Q

judicial powers

Constitutional article that sets up federal judiciary

A

Article III

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2
Q

judicial powers

power of federal courts

A
  • decide cases and controversies (not any legal question they want / advisory opinions)
  • only certain categories of cases and controversies - Federal Question + Diversity jurisdiction
  • exercise power over judicial review - “to say what the law is”
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3
Q

tip

proposed legislation - what can federal courts do?

A

CANNOT opine on whether proposed legislation would be constitutional b/c outside scope of Art III

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4
Q

judicial powers / state sovereign immunity

state sovereign immunity: can you sue a state for money damages in federal court?

11th

A

generally no UNLESS

  • state consents to the suit OR
  • Cg chose to abrogate that sovereign immunity through an enumerated power

only applies to states + state agencies, not local govt

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5
Q

judicial powers / state sovereign immunity

what level of govt does sovereign immunity apply to?

11th

A

only state sovereign immunity under 11th
doesn’t apply if defendant is county or city

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6
Q

judicial powers / state sovereign immunity

state sovereign immunity - can you seek money damages from individual state officers?

11th

A

individual state officers are NOT protected under 11th

can sue them in their personal capacity

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7
Q

judicial powers / state sovereign immunity

when can Cg abrogate state sovereign immunity to enforce certain individual rights?

11th

A
  • Cg intent must be clear
  • must be exercising power under Civil War Amendments (13th, 14th, 15th)
  • can’t abrogate state immunity by exercising power under Art I

abrogate = repeal

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8
Q

judicial powers / state sovereign immunity

can federal govt bring suits against states?

A

yes b/c the state’s consent is implied by the state ratifying the US Cons

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9
Q

judicial powers / state sovereign immunity

what type of actions are allowed under the implied consent of states?

A
  • actions brought by other state govt
  • bankruptcy proceedings that impact state finance
  • federally approved condemnation proceedings brought by private parties
  • actions by private parties against a state pursuant to a federal statute enacted pursuant to Cg’s war and defense powers
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10
Q

SCOTUS

what is needed for SCOTUS to review a case? what type of cases can it review?

A
  • writ of certiorari
  • docket is discretionary
  • 4 justices must agree to grant cert
  • Cg can create exceptions under Art II on SCOTUS’s appellate jurisdiction
  • can’t hear cases from a state court when there are adequate and independent state grounds for deciding the case
  • disputes b/t states
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11
Q

SCOTUS / AISG

what does it mean that SCOTUS can’t hear cases from a state court when there are adequate and independent state grounds (AISG) for deciding the case? (when is this relevant)

A

AIGS is only relevant if the case
1. is in SCOTUS
2. arises through a writ of cert AND
3. has already been decided by a state court

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12
Q

SCOTUS / AISG

what is required for (1) adequate and (2) independent?

A
  1. adequate - state law controls the decision regardless of how federal issue would be decided
  2. independent - state court’s ruling does NOT depend on an interpretation of federal law
    US Cons sets floor not ceiling for idv rights and states can create additional rights
    ex. if state’s law follows federal law (they’re identical) then it’s not independent
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13
Q

justiciability

what does it mean for a case to be justiciable?

A

only if it subject to trial in court

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14
Q

justiciability

what are the categories of justiciability?

A
  1. standing to sue - who
  2. timeliness doctrines (ripe + moot) - when
  3. political questions doctrine - what
  4. abstention doctrines - what
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15
Q

tip

fact pattern with a plaintiff who claims that a state’s law is invalid under Commerce Clause –> what should I analyze?

A
  • Dormant Commerce Clause
  • whether state has exceeded its powers by passing a law that negatively impacts interstate commerce
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16
Q

justiciability / standing

general rule for standing to sue

A

case or controversy requires (1) two sides whose interests are opposed + (2) each side must be at risk of being harmed in a significant way if it were to lose

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17
Q

justiciability / standing

constitutional elements to standing

A
  1. injury in fact
    must be concrete (actual or imminent)
    must be particularized
  2. causation
    injury must be caused by D’s violation of law
  3. redressibility
    relief requested must be able to prevent or remedy the injury
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18
Q

justiciability / standing

taxpayer standing

A

have standing to challenge their own tax assessment
no taxpayer has standing to challenge governmental expenditures
(narrow exception for govt expenditures that potentially violate Establishment Clause)

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19
Q

justiciability / standing

organizational standing - organization may sue on behalf of its members

A

IF
1. members would have standing to sue in their own right AND
2. interests at stake are germane to organization’s purpose

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20
Q

justiciability / standing

legislative standing

A
  • legislators lack standing to challenge laws they voted against
  • legislature may have institutional standing if claim has something to do with its institutional functions
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21
Q

justiciability / standing

3p standing

A
  • generally not permitted unless unique relationship
  • doctor can raise injuries of her patients
  • school / students
  • bartender / customer
  • parent / minor child
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22
Q

justiciability / standing

what is standing about?

A

WHO can bring a lawsuit, not about the merits of the claim

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23
Q

justiciability / timeliness doctrines

what are the two timeliness doctrines? (list)

A
  1. ripeness - too early
  2. mootness - too late
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24
Q

justiciability / timeliness doctrines

ripeness

A

federal court will not consider a claim before it has fully developed

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25
Q

justiciability / timeliness doctrines

mootness

A

cases are overripe where there is no real controversy left to resolve b/t the parties

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26
Q

justiciability / timeliness doctrines

at what stage are ripeness and mootness relevant?

A

each stage of review, not just when complaint is filed

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27
Q

justiciability / timeliness doctrines

mootness - what is the major exception

A

capable of repetition yet evading review

case will not be dismissed as moot IF
* person will be subjected to the same action over and over again AND
* action will not last long enough to work its way through the judicial system

ex. abortion litigation

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28
Q

justiciability / political question doctrine

when does a political question arise?

A
  • Constitution assigns decision making authority on this subject to a different branch of govt OR
  • matter depends on that person’s discretion such that there is no law for judge to apply

ex. how Cg uses its impeachment power, POTUS’s power to negotiate a treaty

political questions are non-justiciable (cts can’t hear it)

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29
Q

justiciability / abstention doctrines

what are abstention doctrines? (definition + list types)

A
  • focus on federalism (respecting state courts)
  • federal courts may abstain from deciding claims when there are strong state interests at stake
  1. unsettled law
  2. pending criminal case
  3. complex state regulatory scheme
  4. simultaneous similar state/federal cases
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30
Q

justiciability / abstention doctrines

Pullman abstention

A

may abstain b/c there is unsettled state law

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31
Q

justiciability / abstention doctrines

Younger abstention

A

may abstain for pending state criminal cases (unless obviously unconstitutional)

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32
Q

justiciability / abstention doctrines

Burford abstention

A

may abstain if parties are seeking injunctive relief that would interfere with a complex state regulatory scheme

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33
Q

justiciability / abstention doctrines

Colorado River abstention

A

may abstain if case is substantially similar to another case being heard in state court

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34
Q

Cg

Necessary and Proper Clause - how must it be used?

A

NOT a freestanding power
must be used in addition to another legislative power

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35
Q

Cg / Commerce Clause

Commerce Clause (general defintion)

A

Cg can regulate commerce

  1. channels of interstate commerce
  2. instrumentalities of interstate commerce
  3. any behavior that has a substantial effect on interstate commerce (can be aggregated)

Cg only needs a rational basis to conclude that the total incidence of the activity substantially affects interstate commerce

most robust power
if behavior is economic in nature, presumed to have substantial effect on interstate commerce

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36
Q

Cg / Commerce Clause

limitations on Commerce Clause power

A
  • limited power to regulate noneconomic local activity (can’t be aggregated + requires detailed factual findings)
  • can’t require individuals to engage in commerce
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37
Q

Cg / Taxing Clause

Taxing Clause

A
  • Cg can tax and spend
  • Cg can impose taxes even if it regulates behavior (ex. cigarettes)
  • taxes need to be rationally related to raising money
  • taxes can be imposed for any purpose
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38
Q

Cg

main sources of Cg power

A
  1. Commerce Clause
  2. Taxing Clause
  3. Spending Clause
  4. Section 5 Power (Civil War Amendments)
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39
Q

Cg / Spending Clause

what can Cg do under Spending Clause?

A
  • permitted to spend for the general welfare (any public purpose)
  • can be used to incentivize behavior by the states by imposing conditions on federal funding
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40
Q

Cg / Spending Clause

what can Cg NOT do under Spending Clause?

A
  • impose unconstitutional conditions
  • enforce conditions that are ambiguous or not related to the program
  • coerce state behavior with its spending conditions
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41
Q

Cg / Civil War Amendments

what did the Civil War Amendments do?

A
  • set out important individual rights
  • enabled Cg to enforce them (Section 5 power)
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42
Q

Cg / Civil War Amendments

13th Amend

A
  • gave Cg authority to pass laws rationally related to ending the badges or incidents of slavery
  • allows Cg to regulate public + private action
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43
Q

Cg / Civil War Amendments

14th Amend

A
  • Equal Protection Clause
  • Due Process Clause
  • Section 5 gave Cg power to enforce these provisions by appropriate legislation
  • Cg can enforce these individual rights as courts have defined them, but cannot expand them
  • congruence and proportionality test requires a reasonable fit b/t conditional right defined by the court + means of enforcement
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44
Q

tip

Religious Freedom Restoration Act fact pattern

A

Cg Act gave religious believers an accommodation from otherwise valid laws
SCOTUS said unconstitutional b/c Cg was creating a new right (not just enforcing an existing right)

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45
Q

Cg / Civil War Amendments

15th Amend

A
  • prohibits state + local govt from denying any citizen the right to vote based on race
  • right to have the vote meaningfully counted
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46
Q

Cg

list other Cg powers

A
  • power to declare war, raise an army and navy, regulate armed forces
  • exclusive power to establish post office
  • plenary power over noncitizens
  • exclusive power over naturalization process
  • federal elections
  • any legislation necessary and proper to execute an enumerated power (not freestanding power)
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47
Q

tip

executive order that “enforces the law” but conflicts with a statute

A

violation of Article II

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48
Q

POTUS / domestic affairs

Pardon Power

A
  • forgive crimes for federal offenses
  • does not apply to impeachment
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49
Q

POTUS / domestic affairs

Veto Power

A
  • doesn’t need to give reason for veto
  • can’t do line item veto
  • Cg may override with 2/3 vote in each house
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50
Q

POTUS / domestic affairs

Appointments Power - Appointment + Removal

A
  • appoint all principal officers with Senate confirmation –> federal employees who exercise significant authority
  • inferior officers can be appointed by department head, POTUS alone, or court of law if Cg chooses
  • Cg creates offices not officers
  • can remove federal officers (principal officers)
  • Cg can create independent agencies (head can’t be fired by POTUS)
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51
Q

POTUS / foreign affairs

Commander in Chief Power

A
  • commander in chief of military
  • but Cg declares war
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52
Q

POTUS / foreign affairs

Chief Diplomat Power

A
  • negotiates treaties
  • treaties must be ratified by 2/3 vote Senate to have force of law like a federal statute
  • treaty can’t conflict with Cons
  • can negotiate executive agreements (no Senate approval, not law, don’t bind next president)
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53
Q

separation of powers

impeachment

A
  • HOR alone impeaches by majority vote
  • S alone convicts by 2/3 vote
  • if POTUS on trial, Chief Justice presides

consequences - removal from office, disqualification from future office, no criminal penalties

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54
Q

separation of powers

impoundment

A
  • Cg may pass a statute and give POTUS discretion to withhold the funds
  • if statute requires that certain funds be spent on certain purposes, POTUS has no discretion to withhold the money
  • only SOP issue if POTUS impounds the money and Cg mandated funds be allocated

impoundment = withholding money (not spending it)

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55
Q

separation of powers

Legislative Veto

A

Cg can’t reserve the right to veto legislation

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56
Q

separation of powers

Nondelegation Doctrine

A

Cg is allowed to delegate powers to administrative agencies, but must provide an intelligible principle to guide agency decisions

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57
Q

separation of powers / immunities and privileges

executive immunity

A

POTUS is immune from ciivl liability for official acts

BUT NOT
acts done in private capacity
or before becoming president

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58
Q

separation of powers / immunities and privileges

judicial immunity

A

immune for all judicial acts
may be liable for non-judicial acts (like employment discrimination)

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59
Q

separation of powers / immunities and privileges

legislative immunity

A
  • Speech and Debate Clause protects federal legislators from liability for anything said in regular legislative process
  • protected statements can’t be used as evidence against the legislator
  • may extend to aids
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60
Q

separation of powers / immunities and privileges

executive privilege

A

certain confidential info can be privileged
POTUS can withhold it from cts or Cg
privilege can be outweighed by a demonstrated need (like ongoing criminal prosecution)

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61
Q

federalism

what is federalism?

A

two spheres of govt sharing power over same polity and jurisdiction

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62
Q

federalism

categories of federalism

A
  1. neither state nor fed govt can act
  2. fed govt has exclusive power to act
  3. state has exclusive power to act - anything outside of Cg’s enumerated powers through 10th
  4. state + fed govt have concurrent jurisdiction - Supremacy Clause
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63
Q

federalism / Supremacy Clause

Supremacy Clause

A

federal law > conflicting state law
can run concurrently if state law doesn’t conflict

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64
Q

tip

state + fed govt have concurrent jurisdiction to regulate something, what should I apply?

A

Supremacy Clause!

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65
Q

federalism / Supremacy Clause

state regulation of federal govt

A

states cannot pass a law to regulate the federal govt unless Cg permits it
Cg is immune from direct regulation by states

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66
Q

federalism / Supremacy Clause

state taxation of federal govt

A

states cannot directly tax federal govt
states can tax income of federal employees
states cannot shield state officers from federal liability for violating federal constitutional rights

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67
Q

federalism / Supremacy Clause

federal taxation of states

A

federal govt may tax a state

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68
Q

federalism / Supremacy Clause

federal regulation of states

A

states are not immune from direct federal regulation
BUT fed govt can’t commandeer a state govt to enact or enforce a federal regulatory program

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69
Q

federalism / Dormant Commerce Clause

Dormant Commerce Clause

A
  • limits power of states to legislate in ways that impact interstate commerce
  • arises when (1) states are acting in ways that disadvantage each other + (2) Cg is silent

If Cg has not enacted legislation on a particular area of interstate commerce, then states can regulate as long as they do not
1. discriminate against out of state commerce
2. unduly burden interstate commerce OR
3. purposely regulate wholly out of state activity

DUP

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70
Q

tip

does Dormant Commerce Clause apply if Cg has passed a law?

A

nope, dormant = Cg is silent

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71
Q

federalism / Dormant Commerce Clause

what does it mean to “discriminate against out of state commerce”?

A

includes state or local laws that protect local economic interests at expense of out of state competitors

exceptions (discriminatory state law will survive):

  • necessary to serve an important state interest
  • state is acting as a market participant (buying or selling stuff)
  • Cg authorizes a state regulation of commerce (no longer dormant)
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72
Q

federalism / Dormant Commerce Clause

what does it mean to “unduly burden interstate commerce”?

A

may violate Dormant Commerce Clause IF burdens imposed on interstate commerce cleary outweigh local benefits

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73
Q

federalism / state taxation of interstate commerce

when can a state tax interstate commerce?

A

only if
1. Cg is silent
2. tax does not discriminate against or unduly burden interstate commerce
3. substantial nexus b/t taxing state and property/activity to be taxed AND
4. fair apportionment of tax liability among states

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74
Q

federalism / state taxation of interstate commerce

ad valorem property taxes

A
  • based on real or personal property, often at a particular time of year (like April 15)
  • states can tax movable commodities that are within their borders on a specific date
  • BUT state may not levy an ad valorem tax on goods that are merely in transit b/t states
  • may tax instrumentalities of commerce if instrumentality has a taxable situs or sufficient contacts w/in taxing state
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75
Q

federalism / federal preemption

express preemption

A
  • applies when Cg explicitly says that state regulation in an area is preempted by federal law
  • not triggered by merely regulating the same activity
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76
Q

federalism / federal preemption

conflict preemption

A

applies when it is impossible to comply with federal law + state law at same time

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77
Q

federalism / federal preemption

field preemption

A

applies when federal regulation is so thick that we imply that Cg has determined there cannot be a concurrent state law in an area

ex. immigration

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78
Q

federalism / federal preemption

types of federal preemption

A
  1. express preemption
  2. conflict preemption
  3. field preemption
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79
Q

federalism / interstate relationships

interstate compact clause

A

allows states to enter into agreements with each other when Cg consents
generally consent is only required for compacts that alter power balance b/t states + fed govt

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80
Q

federalism / interstate relationships

Full Faith and Credit Clause

A

requires full faith and credit shall be given in each state to public acts, records, and judicial proceedings of every other state
state must honor judgments that are final + came from court with proper jurisdiction + on the merits (not procedural issue)

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81
Q

tip

state is ignoring a state court judgment from another state, what should I apply?

A

Full Faith and Credit Clause!

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82
Q

state action

what type of wrongful action does Cons protect against?

A

Cons protects against wrongful conduct by govt, but not private parties (except 13th)

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83
Q

state action

types of state action

A
  1. might be obvi
  2. private actor carrying out a traditional govt function - state action
    merely providing a product/service that govt could offer is not sufficient (ex. schools)
  3. state entanglement of private actors - if sufficient mutually beneficial contacts b/t conduct of private party + state
    just having a license isn’t enough, looking for a joint venture
  4. state facilitation or endorsement of a private action (must be affirmatively facilitated)

this is prerequisite to finding a Cons violation

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84
Q

procedural due process

amendment for procedural due process for federal govt

A

5th

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85
Q

procedural due process

amendment for procedural due process for states

A

14th

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86
Q

tip

how to answer procedural due process questions

A
  1. is the threatened interest a protected one?
  2. if so, what process is due?

this is all about what process govt must give you NOT whether govt can take that interest away from you

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87
Q

procedural due process

what is procedural due process?

A

govt must follow certain procedures before taking your life, liberty, or property
applies in quasi-judicial or adjudicatory settings

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88
Q

procedural due process / protected interests

life

A

imposition of death penalty requires procedural DP

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89
Q

procedural due process / protected interests

liberty

A

physical confinement requires procedural DP
any restriction of fundamental rights is a deprivation of liberty
damage to your reputation doesn’t count

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90
Q

procedural due process / protected interests

property

A

cognizable property interest requires a legitimate claim of entitlement to the property interest by virtue of a statue, contract, or custom

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91
Q

procedural due process / protected interests

is it a property interest if it’s from your own belief?

A

nope, needs to be from an external source –> statue, contract, custom

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92
Q

procedural due process / protected interests

property in employment context - is the expectation of employment enough?

A
  • mere expectation of employment or benefit is not enough
  • if someone can only be fired for cause, then they have a legitimate entitlement to continued employment
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93
Q

procedural due process / protected interests

deprivation of protected interests - what happens?

A

deprivation of an interest requires intentionality
accident or negligence by state employee is not sufficient
notice + hearing are NOT required when there is an accidental taking

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94
Q

procedural due process / process due

factors court will weight to decide what process is due (Mathews v. Eldridge)

A
  • individual interest at stake
  • value of procedure that is protecting the interest AND
  • government’s interest in efficiency (cost to provide the process)
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95
Q

procedural due process / process due

what type of processes are possible

A

hearing
notice
statement of reasons

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96
Q

procedural due process / process due

in general, what is a person whose interest is being deprived entitled to?

A
  • notice of Govt’s action by unbiased decision maker +
  • oppy to be heard

notice must be reasonably calculated

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97
Q

substantive due process

what is substantive due process?

A

laws should be reasonable and not arbitrary + protect individual freedom to extent possible

98
Q

standards of review

list standards of review from most to least deferential

A
  1. rationality review
  2. intermediate scrutiny
  3. strict scrutiny
99
Q

standards of review

strict scrutiny

A

least restrictive means to achieve a compelling governmental interest

  • govt must show that the challenged law was necessary to meet a compelling governmental interest
  • compelling interest = national security, preserving public health, remedying past discrimination
  • necessary = must be the least restrict means, narrowly tailored
100
Q

standards of review

rationality review

A

rationally related to a legitimate governmental interest

  • challenger must show that the law is NOT (1) rationally related (2) to a legitimate state interest
  • legitimate state interests = redistributing wealth, protecting scalp safety, keeping highways safe

not satisfied by irrational laws animated by prejudice or animus towards a particular group

101
Q

standards of review

who has the burden for each of the standards of review

A
  1. strict scrutiny - govt
  2. intermediate scrutiny - govt
  3. rationality review - challenger
102
Q

standards of review

intermediate scrutiny

A

substantially related to important governmental interest

govt must show the law is (1) substantially related to (2) an important govt interest

103
Q

substantive due process

what standard of review applies when a fundamental right is infringed?

A

strict scrutiny

104
Q

substantive due process

what standard of review applies for everything EXCEPT when a fundamental right is infringed?

A

rationality review applies to everything else

105
Q

substantive due process

what standard of review does not apply at all in the substantive due process context?

A

intermediate scrutiny

106
Q

substantive due process

how do you identify substantive due process? where does it come from?

A

“liberty” in 14th

107
Q

substantive due process / fundamental rights

what are the fundamental rights? (list the major categories)

A
  1. right to travel
  2. right to vote
  3. right to privacy
  4. right to bear arms
108
Q

substantive due process / fundamental rights

what are ordinary rights (not fundamental rights)?

PQs Set 1

A
  • economic
  • employment
  • education
  • social welfare
109
Q

substantive due process / fundamental rights

what is the right to travel?

A
  • right to travel from state to state
  • states may impose reasonable residency restrictions before new residents are eligible for benefits
  • 30-90 days typically
  • 1 year is okay for in-state tuition + issue a divorce
  • residency restrictions can’t deny newcomers the basic necessities of life
110
Q

substantive due process / fundamental rights

right to vote

A
  • every U.S. citizen 18+ years old
  • all elections
  • short term residency requirements are permissible (< 90 days)
  • partisan gerrymandering is allowed, just not racial gerrymandering
111
Q

substantive due process / fundamental rights

right to privacy - what’s included in this right?

A
  • right to marry
  • right to contraception (purchase contraceptives)
  • right to intimate association
  • parental rights - raise kids as they see fit
  • right for related people to live together (MBE Practice Exam #3)
112
Q

substantive due process / fundamental rights

what are the abortion rights under the right to privacy?

A

abortion is not a fundamental right (Dobbs)
states can regulate or prohibit abortion outright, subject to rationality review

113
Q

substantive due process / fundamental rights

right to bear arms

A

applies to state + federal govt
not limited to service in militia
firearm regulations are only valid IF they are supposed by a history + tradition of firearms regulations of the sort being challenged

114
Q

equal protection doctrine

how does equal protection apply to governments? (like which amendments)

A
  • state and local govt through 14th
  • fed govt through 5th DP

standard of review depends on type of govt classification
need to distinguish b/t permissible and impermissible classifications

115
Q

equal protection doctrine

what does strict scrutiny apply to?

A

suspect classifications based on (1) race, (2) ethnicity, or (3) national origin

116
Q

equal protection doctrine

how do you prove racial classifications?

(I think this applies to all suspect classifications)

A
  • plaintiffs must prove a discriminatory purpose
  • discriminatory purpose through face of the law, context or history, or statistics
  • proof of discriminatory effects or impact is INSUFFICIENT

I think you have to prove discriminatory intent first

117
Q

de jure segregation

A

segregation by law

118
Q

de facto segregation

A

segregation that happens but is not required by law

119
Q

equal protection doctrine

for racial classifications in school segregation - what type of segregation violates the Cons?

A

only de jure segregation

120
Q

equal protection doctrine

what standard of review applies to affirmative action programs?

A

strict scrutiny

121
Q

equal protection doctrine

what are the standards of review for citizenship status?

part of national origin suspect classifications

A
  • state law - strict scrutiny
  • EXCEPT state or local laws prohibiting a non-citizen’s participation in govt functions - rationality review
  • federal law - likely valid unless arbitrary and unreasonable
    (b/c Cg has plenary power over noncitizens)
122
Q

equal protection doctrine

when does intermediate scrutiny apply?

A
  • gender
  • children born out of wedlock
  • quasi-suspect classifications
123
Q

equal protection doctrine

what are permissible gender classifications? (examples)

A
  • statutory rape laws
  • military draft
  • affirmative action in favor of women for tax exemptions or increased social security

govt is providing remedy for past gender-based discrimination (that’s an important govt interest)

124
Q

equal protection doctrine

are classifications based on legitimacy (being born out of wedlock) permissible?

A

almost always invalid, especially when punitive

125
Q

equal protection doctrine

when does rationality review apply?

A

all other circumstances
it’s the default

non-suspect classes:
age
poverty
sexual orientation

126
Q

equal protection doctrine

overview of levels of review + what categories apply to each

A
  1. strict scrutiny
    race, ethnicity, national origin
  2. intermediate scrutiny
    gender, legitimacy
  3. rationality review (default)
    age, poverty, sexual orientation
127
Q

privileges and immunities clause

what is the privileges and immunities clause?

A

protects citizens from infringement by the states upon the privileges or immunities of national citizenship
14th

also prohibits state from discriminating against citizens from another state

128
Q

privileges and immunities clause

what does the Comity Clause (Article IV of 14th) prohibit?

A

it prohibits serious discrimination against out of state individuals in allowing access to the private job market

129
Q

takings clause (5th)

what is the takings clause?

A

5th
govt has power to take (1) private property for (2) public purposes (3) so long as it pays just compensation

130
Q

takings clause (5th)

what is included in private property?

A

land
tangible property
intangible property

131
Q

takings clause (5th)

what is included in public use?

A

any conceivable public purpose

need for private land only has to be rationally related to that purpose
govt may take private property and resell it to another private owner for economic development

132
Q

takings clause (5th)

what is just compensation?

A

FMV at time of taking

133
Q

takings clause (5th)

what are the different types of takings?

A
  • taking ownership of private property + modifying it for a public purpose
  • giving 3p right to occupy even a small space on the property
  • destruction of private property (but permitted if in response to a public peril)
134
Q

takings clause (5th)

taking vs. regulation

A
  • if govt merely regulates property, just compensation is not required
  • if govt physically occupies private owner’s property - taking
  • economic impact on property is NOT necessarily a taking
135
Q

takings clause (5th)

what is a regulatory taking? what factors does a court consider?

A

govt rule adversely affects a person’s property to such an extent that it rises to the level of a taking

factors:

  • gravity of economic impact
  • extent to which regulation interferes with owner’s reasonable investment-based expectations
  • character of regulation (how much it will benefit society)
136
Q

takings clause (5th) / regulatory taking

is a permanent physical occupation of property a taking?

A

yes, a taking

137
Q

takings clause (5th) / regulatory taking

is the permanent total loss of property’s economic value a taking?

A

yes, a taking

138
Q

prohibited laws

bills of attainder

A

legislative acts that declare person/group guilty of a crime and punish them without a trial
only applies to criminal measures + bars on govt employment

these are prohibited

139
Q

prohibited laws

ex post facto laws

Art. I, Section 10

A

retroactive change to a criminal law are prohibited

considered ex post facto if the law

  • criminalizes an act that was not a crime when originally committed
  • authorizes the imposition of more severe penalty after act was committed
  • deprives the D of a defense that used to be available when the crime was committed
  • decreases prosecution’s burden of proof after crime was committed
140
Q

prohibited laws

obligation of contracts

A

legislative impairment of existing contracts b/t private parties are prohibited UNLESS there is an overriding need for it (like an emergency)
only applies to state legislation NOT federal legislation or state court decisions
does NOT apply to future contracts

141
Q

establishment of religion clause (1st)

what are the parts of the establishment clause?

A

this is about freedom of religion
establishment of religion + free exercise of religion

142
Q

establishment of religion clause (1st)

when does the establishment clause apply?

A

applies when govt prefers one religion over another
OR one religion over non-religion

143
Q

establishment of religion clause (1st)

what standard of review applies?

A

strict scrutiny

144
Q

establishment of religion clause (1st)

what it the test for challenges to the establishment clause?

A

considers the country’s historical practices and understanding about role of religion in everyday life

establishment clause (1st)

145
Q

establishment of religion clause (1st)

what is allowed for access to public facilities by religious groups?

A

religious + non-religious groups must be treated the same way

146
Q

establishment of religion clause (1st)

is it allowed to have financial aid from govt to religion institutions?

A

permissible if (1) aid is secular in nature + (2) used for secular purposes
money has to be distributed to both secular + religious institutions
distribution has to be neutral as to religion

allowed to give school tuition vouchers b/c parents are making the choice about whether to send kids to a religious school

147
Q

establishment of religion clause (1st)

what is allowed for tax deductions?

A

available to all parents for educational expenses of private or public schools
may NOT give tax deductions only for tuition used at religious schools

148
Q

tip

when looking at establishment clause, what is the main thing to think about?

A

think about whether it’s coercive to the individual

Establishment Clause prohibits govt endorsement of religion in any context that might be coercive on an individual

149
Q

free exercise of religion (1st)

in general, what does the free exercise clause protect?

A
  • freedom to believe in any religion or no religion (absolute)
  • freedom to act on that belief (may be limited)
150
Q

free exercise of religion (1st)

what standard of review applies to laws that purposely target religious conduct?

A

strict scrutiny

likely going to fail

151
Q

freedom of expression (1st)

who is protected under freedom of expression?

A

individuals
corporations

152
Q

free exercise of religion (1st)

what standard of review applies to generally applicable laws that are neutral and incidentally affect religious conduct?

A

rationality review

153
Q

freedom of expression (1st)

what type of speech is protected?

A

spoken words
written materials
visual communications

154
Q

freedom of expression (1st)

what actors does this apply to?

A

all forms of govt (incl. state and local)

155
Q

freedom of expression (1st)

what are the categories of restrictions?

A
  • content-based restriction - law that prohibits speech b/c of subject matter discussed or idea expressed
  • content-neutral restriction - law that restricts the time, place, or manner of speech but not the subject matter/idea conveyed
156
Q

freedom of expression (1st) / content-based restrictions

what standard of review applies to content-based restrictions?

A

strict scrutiny
probs going to be struck down

157
Q

freedom of expression (1st) / content-neutral restrictions

what are the requirements for the govt to restrict protected speech in a public forum?

A

govt may restrict protected speech in a public forum if the restriction IS:

  1. neutral on its face + as applied
  2. leaves open alternative channels of communication AND
  3. narrowly serves a significant state interest
158
Q

freedom of expression (1st) / content-neutral restrictions

what are the requirements for govt to restrict protected speech in a non-public forum?

A
  1. viewpoint neutral AND
  2. reasonably related to a legitimate governmental interest
159
Q

freedom of expression (1st) / content-neutral restrictions

what are the types of forums?

A
  1. traditional public forum - place that has been historically reserved for speech activities (public streets, parks)
  2. designated public forum - place that govt has opened for free speech activities (civic auditorium)
  3. nonpublic forum - reasonable observer would assume it is not open to the public (military base, prison, govt office, schools)
160
Q

freedom of expression (1st) / content-neutral restrictions

can the govt regulate expressive conduct? what’s the test?

A

govt CAN regulate expressive conduct as long as
1. regulation in question furthers important interest
2. interest is unrelated to the expression AND
3. burden on expression is no greater than necessary

161
Q

freedom of expression (1st) / content-based restrictions

what is viewpoint discrimination? is it allowed?

A

govt restricts or endorses speech based on the particular idea expressed
per se unconstitutional

162
Q

freedom of expression (1st) / content-based restrictions

list categories of speech where it may be permitted for govt to restrict

A

OIFDA

  1. obscenity
  2. incitement
  3. fighting words / true threats
  4. defamation
  5. commercial speech (advertising)
163
Q

freedom of expression (1st) / content-based restrictions

what is the rule for obscenity?

A
  • sex - must be erotic, gore and violence are not legally obscene
  • society sick - must be patently offensive to average person in society
  • standards - govt must define obscenity clearly with precise standards
  • serious value - not obscene if has serious artistic, scientific, or educational value

child pornography is always unprotected speech and prohibited

rule of “S”

164
Q

freedom of expression (1st) / content-based restrictions

what is the rule for incitement?

A

state may forbid speech that advocates the use of force or illegal action

restricted speech must be
1. directed to inciting or producing imminent unlawful behavior AND
2. likely to incite such behavior
3. must be substantial evidence that a reasonable person would engage in the activity

abstract expression of idea doesn’t count

165
Q

freedom of expression (1st) / content-based restrictions

what is needed for fighting words / true threats?

A
  • may be punished for speech that is likely to incite an immediate breach of the peace OR threatens violence
  • must be genuine likelihood of imminent violence from hostile listeners
  • annoying or offensive words are protected
166
Q

freedom of expression (1st) / content-based restrictions

what is needed for defamation?

A

can be restricted but additional requirements to restrict speech about public figures OR matters of public concerns

covered this in torts

167
Q

freedom of expression (1st) / content-based restrictions

what is allowed for commercial speech (basically advertising)?

A
  • intermediate level of 1st protection
  • must concern lawful activity to be entitled to any protection, can’t be false or misleading
  1. asserted govt interest must be substantial
  2. regulation must directly advance that interest AND
  3. regulation must be narrowly tailored to serve that interest
168
Q

other 1st stuff

what are vagueness and overbreadth? are they constitutional?

A
  • vague = ambiguous to such an extent that it gives no clear notice to a person of ordinary intelligence about what speech is prohibited
  • overbroad = burdens more speech than necessary for govt to achieve its interest

both are unconstitutional

169
Q

other 1st stuff

prior restraint: if govt is trying to get an injunction to prevent speech before it happens, is this constitutional?

A

nope, presumed unconstitutional

170
Q

other 1st stuff

is there a right to NOT speak?

A

yep, right to refrain from speaking

171
Q

other 1st stuff

is the govt allowed to engage in viewpoint discrimination when it speaks?

A

govt can say what it wants, allowed to engage in viewpoint discrimination
when govt controls the message

172
Q

other 1st stuff

what 1st protections are there for a govt employee speaking pursuant to official duties?

A
  • 1st can’t protect employee if later disciplined by the state
  • only applies if speech is ordinarily within scope of their duties
  • if matter of public conner, 1st is balanced against interest of state in effective management of its affairs
  • can’t be fired or hired based on political party or any act of free speech
173
Q

other 1st stuff

Is the use of money on a political campaign political speech?

174
Q

other 1st stuff

can campaign contributions be regulated?

A

yes as long as the caps are not unreasonably low

175
Q

other 1st stuff

what standard of review applies to campaign expenditures?

A

strict scrutiny
as long as the source of the funding is disclosed, there is no legal limit on amount that can be spent

176
Q

other 1st stuff

what type of campaign finance expenditures can / can’t be regulated?

A
  • independent expenditures (money spent on your own campaign for a candidate) - can’t be regulated
  • coordinated expenditures (money spent in coordination with the candidate or campaign) - can be regulated
177
Q

other 1st stuff

are there special rules for regulation of the media?

A

no special privileges for press and media
BUT
broadcasters can be fined for airing patently offensive speech (even if it doesn’t qualify as obscene)

178
Q

other 1st stuff

a statute that criminalizes mere membership in any group is unconstitutional UNLESS

A
  1. the group is actively engaged in unlawful activity or inciting imminent violence AND
  2. individual in question knows about it
179
Q

free exercise clause (1st)

what is the govt allowed to determine?

PQs Set 1

A

whether a religious belief is sincere

NOT whether that belief is reasonable or true

180
Q

protestor burns tax code in IRS building to denounce the income tax, no damage caused, state law prohibiting igniting a fire in a public building

can they be convicted?

NCBE MBE Simulated Test 1

A

yes b/c state’s interest underlying the law that protestor violated (burning in public buildings) is unrelated to he message so no strict scrutiny

test to apply: if law is narrowly tailored to further a s substantial govt interest

burning of tax code is expressive conduct b/c communicating a message and the audience is likely to understand

181
Q

Can Cg tax exported goods (goods leaving the US)?

PQs Set 2

A

No
Export Clause has prohibition of federal taxation of exported goods AND services and activities closely related to the export process

182
Q

what is the Enclave Clause?

PQs Set 2

A

Art I, Section 8

gives Cg plenary (exclusive) legislative power over District of Columbia (DC)

183
Q

what due process procedures are required for a public employee who can only be terminated for cause?

PQs Set 2

A

they have a property interest in the employment

  • notice of alleged misconduct
  • pre-termination oppy to respond AND
  • post-termination evidentiary hearing
184
Q

when must a judge recuse themself? which Cons provision?

PQs Set 2

A

Due Process under 14th

must recuse when (1) judge has direct, personal, substantial, pecuniary interest in it OR (2) serious, objective risk of actual bias exists

185
Q

Cons Amendments (high level)

1st

A
  • speech
  • press
  • religion
  • petition the govt
186
Q

Cons Amendments (high level)

2nd

A

own and bear arms

187
Q

Cons Amendments (high level)

3rd

A

can’t be forced to quarter soldiers during times of peace

188
Q

Cons Amendments (high level)

4th

A

search + seizure

189
Q

Cons Amendments (high level)

5th

A
  • prohibits abuse of govt authority in legal procedures
  • eminent domain
  • grand jury
  • due process
  • self-incrimination
  • double jeopardy
190
Q

Cons Amendments (high level)

6th

A
  • fair and speedy jury trial
  • counsel
  • witnesses
191
Q

Cons Amendments (high level)

7th

A
  • jury trial in some civil cases
  • decided cases can’t be re-opened by another court
192
Q

Cons Amendments (high level)

8th

A

cruel and unusual punishment

193
Q

Cons Amendments (high level)

9th

A
  • reserves rights of citizens not specifically mentioned in Cons
  • non-enumerated rights
194
Q

Cons Amendments (high level)

10th

A
  • powers not given to federal govt go to states and the people
  • rights reserved to states
195
Q

Cons Amendments (high level)

11th

A
  • state sovereign immunity
  • states protected from suits by citizens in other states or foreigners
196
Q

Cons Amendments (high level)

13th

A

no slavery

197
Q

Cons Amendments (high level)

14th

A
  • equal protection clause
  • due process clause
  • citizenship clause
198
Q

Cons Amendments (high level)

15th

A

right to vote

199
Q

Cons Amendments (high level)

16th

A

federal income tax

200
Q

Cons Amendments (high level)

23rd

A

DC residents can vote for their own electors for POTUS

201
Q

Cons Amendments (high level)

24th

A

no poll taxes or denial of voting rights

202
Q

who has the power to regulate the time, place, and manner of Cg elections?

PQs Set 3

A

Art I, Section 4 election clause –> state legislatures have the power to enact laws on Cg elections (time, place, manner so voting sites)

BUT Cg can override the state laws and supplant them with federal laws

203
Q

what standard of review applies to state electoral regulations?

PQs Set 3

A
  • if restriction is ordinary (nondiscriminatory, voter registration, photo ID requirement, no write-ins) –> rational basis
  • if severe (discriminatory, poll tax, no 3p candidates, property ownership requirement) –> strict scrutiny
204
Q

progress of science and useful arts clause (Art I, Section 8)

PQs Set 3

A

Cg can enact laws encouraging production of creative works (creative works) and inventions (patent laws)

205
Q

which branch has the authority to recognize foreign govt?

PQs Set 3

A

POTUS has exclusive power to recognize foreign governments
Art II

206
Q

21st Amend

PQs Set 3

A

grants states broad authority to regulate the use of alcohol within its borders

allows states to prohibit the importation, transportation, or sale of alc

207
Q

origination clause

PQs Set 3

A

any federal legislation that raises revenue (taxes) must originate in HOR

208
Q

test to determine if Cg can regulate an activity

PQs Set 3

A
  1. whether the activity is economic in nature
  2. whether the regulation contains a jurisdictional element
  3. Cg made express finding on the activity’s effect on interstate commerce AND
  4. strong link b/t activity and that effect

(commerce clause)

209
Q

what is the rule for religious organizations and wrongful termination / employment discrimination?

PQs Set 3

A

exception to 1st amendment that protects religious organizations from liability for employment discrimination when hiring/firing employees serving in ministerial roles

applies to ANY employee whose primary function is to advance the org’s religious mission (ex. parochial school teacher)

210
Q

suspension clause (Art I)

PQs Set 4

A

person in federal custody can challenge their detention by filing a petition for a writ of habeas corpus in federal court UNLESS Cg explicitly suspended the writ

applies to noncitizens detained as enemy combats in territories where US has sovereign control

211
Q

who has the burden to establish standing?

PQs Set 4

212
Q

can Cg tax fed govt affiliates?

fact pattern about contractor doing work for fed govt agency

PQs Set 4

A
  • supremacy clause immunizes fed govt from state and muni taxes unless Cg consents
  • states can tax fed govt affiliates (even if cost of tax is ultimately passed on to fed govt)
  • affiliate must may the taxes UNLESS
    (1) Cg granted affiliate immunity
    (2) tax discriminates against fed govt or affiliate OR
    (3) tax substantially interferes with affiliate’s federal purpose or duties
213
Q

can fed govt tax state govt affiliates?

PQs Set 4

A
  • 10th - fed can’t directly impose fed taxes on states that unduly interfere with their essential functions
  • 10th allows fed taxes indirectly through their affiliates
  • allowed to tax state govt affiliates so long as taxes do not discriminate against states or their affiliates
214
Q

what is the “one person, one vote” principle? when does it apply?

PQs Set 4

A

14th EPC - equal voting power (one person, one person)
populations in each voting district (state legislative district) must be approx. equal (< 10% deviation)

215
Q

direct tax - what does it tax? what is required for it to be constitutional?

PQs Set 4

A
  • tax on person or property
  • apportioned evenly among states (based on their population)
  • reasonably related to revenue raising
216
Q

indirect tax - what does it tax? what is required for it to be constitutional?

PQs Set 4

A
  • sales tax, excise tax, income tax, etc.
  • uniformly applied in every state
  • reasonably related to revenue raising
217
Q

export tax - what does it tax? what is required for it to be constitutional?

PQs Set 4

A
  • taxes on goods leaving the US
  • unconstitutional!
218
Q

public colleges and universities

what procedural DP is required for dismissal due to disciplinary reasons?

PQs Set 4

A
  1. adequate notice of charges / proceedings AND
  2. meaningful oppy to be heard (like a hearing) before decision making body
219
Q

public colleges and universities

what procedural DP is required for dismissal due to academic reasons?

PQs Set 4

A

procedural DP does NOT require meaningful oppy to be heard

220
Q

property clause (Art IV, Section 3)

PQs Set 4

A

gives Cg power to dispose of and regulate federally owned lands

does NOT give Cg power to acquire those lands

221
Q

tip

“general welfare” - what should this be a flag for?

A

taxing and spending
(only time when general welfare comes up)

222
Q

contract clause - Art I, Section 10

what does this apply to?

A

states only, not federal govt

prevents states from passing laws that impair contracts

223
Q

can a subpoenaed witness (to Cg committee) be cited for contempt for failing to appear or refusing to answer questions?

PQs Set 5

A

yes, but entitled to procedural due process rights including presence of counsel

224
Q

Cg legislative veto over rules from agency - is this allowed?

PQs Set 5

A

No b/c Congress cannot unilaterally change the Constitution’s requirements with regard to enactment of a law

  • congressional “veto” of a matter delegated to the executive branch is unconstitutional as violating the carefully wrought legislative procedures in Article I
225
Q

test for state tax on foreign commerce

PQs Set 5

A

must NOT (i) create a substantial risk of international multiple taxation or
(ii) prevent the federal government from “speaking with one voice” regarding international trade or foreign affairs issues

226
Q

what factors does a court consider in determining the amount of process that is due (when individual’s protected interest is treated by govt action)?

PQs Set 5

A

(i) the private interest affected by the governmental action;
(ii) the risk of erroneous deprivation of that interest using current procedures and the probable value of additional or substitute safeguards; and
(iii) the burden involved in providing the additional process

227
Q

what level of review applies to a civil law that retroactively impairs an ordinary right?

UWorld

A

rationality review

228
Q

what can Cg do under Art I, Section 8?

MBE Primer #2

A

broad war and defense powers to provide for the national defense

includes imposing wage, price, and rent controls on private civilian economy

229
Q

level of scrutiny for state or local law that impacts fundamental right to vote

MBE Primer #2

A

generally strict scrutiny

BUT cts will apply rational basis scrutiny when the law limits right to vote in govt unit’s election to its residents

230
Q

POTUS removal power

UWorld

A

POTUS has absolute authority to remove officers
UNLESS part of multi-member body w/ any exec power OR lack policymaking or administrative authority

Cg can limit POTUS’s ability to remove officers (above) but Cg can’t play a direct role
(except impeachment)

231
Q

procedural due process requirements for disability and welfare benefits termination

Mixed Set PQs #3

A
  • disability benefits - notice + post-termination hearing
  • welfare benefits - notice + pre-termination hearing
232
Q

privileges and immunities clause of Article IV - what does it do?

MBE Practice Exam #3

A
  • protects citizens of one state from discrimination by another state in their exercise of fundamental rights
  • focus on economic discrimination
  • prohibits a state from discriminating against nonresidents with respect to the exercise of a fundamental right or engagement in an essential activity, such as earning a living, UNLESS there is substantial justification for the discrimination
233
Q

which Civil War Amendment allows Cg to regulate public and private action?

MBE Practice Exam #3

234
Q

tip

if question about religion, how should I think about it?

MBE Practice Exam #3

A

think about whether it’s an exercise or establishment of religion issue under 1st

235
Q

vocab!

plenary

A

absolute, unqualified

236
Q

can Cg give SCOTUS original jurisdiction over a certain type of case?

NCBE Simulated #2

A

nope. can’t give OG jurisdiction over other types of cases

Article III gives SCOTUS original jurisdiction over cases involving foreign ambassadors, cases involving other public ministers and consuls of foreign countries, and cases in which a state is a party

237
Q

Dormant Commerce Clause

how can a state/local reg be discriminatory? (like what are the ways)

UWorld Assessment #2

A
  • on its face
  • in its application
  • in its effect
238
Q

Dormant Commerce Clause

discriminatory regulation is invalid UNLESS . . . (give the test)

UWorld Assessment #2

A
  1. furthers a legitimate, noneconomic state/local interest
    AND
  2. no reasonable, nondiscriminatory alternative exists to promote this interest
239
Q

Dormant Commerce Clause

nondiscriminatory regulation is valid IF . . . (give the test)

UWorld Assessment #2

A

if it satisfies the undue burden test

law’s legitimate, local benefits clearly exceed its burden on interstate commerce

240
Q

what is an exaction (type of Taking)? what is the rule?

UWorld Assessment #2 + Essay 3570

A
  • local govt conditions issuance of a building or development permit on landowner’s promise to dedicate part of the property for public use
  • taking UNLESS govt establishes
    1. essential nexus - imposed condition substantially advances a legitimate govt interest AND
    2. rough proportionality b/t proposed impact on community and impact on landowner
    govt has to make individualized determination that conditions are related in nature and extent to the impact

Rocking the Bar Exam (16 decks)

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