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MBE Weak Areas > Con Law (from outline/ lecture) > Flashcards

Con Law (from outline/ lecture) Flashcards

1
Q

what are the two ways you can regulate speech?

A
  1. content-based regulation
  2. content-netural regulation
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2
Q

what is content based regulation is when the government is BASING a regulation on the actual CONTENT Of the speech. AKA Gov just says “___”

content-based triggers _____ scrutiny

A

NO

strict

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3
Q

content netural speech is when the gov regulates the time, place, ___ of the speech

content netural is ok as long as it’s for ____ or _____ state interest + leave open ______ means of communication

A

manner

AKA How, where, when

significant or imporant + leave open ALTERNATIVE MEANS OF COMMUNICATIONS

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4
Q

what is the difference b/w a public forum and non-public forum?

A public forum involves _____ and ____. Apply the test involving a ____ or important gov interest

A

streets + parks. Significant

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5
Q

Non-public forum (like bus or billboard) you are looking for the regulation to be reasonably related to a ____ interest

A

legitimate

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6
Q

what is unprotected speech examples?

A
  1. obscenity
  2. speech that incites imminent + violent action
  3. fighting words/ clear and present danger
  4. defamation
  5. commercial speech (business)
  6. false/misleading ads NOT protected
  7. Prior restraint
  8. unfettered discretion
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7
Q

obscenity is when an objective person applies _____ community standards and finds that the work appeals to the ____interest in sex

The work in question depicts sex in a _____manner

Lacks any literary, artistic, political or ____ value

A

LOCAL; prurient

patently offensive

scientific

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8
Q

commercial speech can be regulated if there is a

reasonable fit to substantial gov interest + ______

A

narrowly tailored

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9
Q

a gov official cannot allow one form of speech over another. That is _____speech

A

unfettered

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9
Q

A prior restraint, trying to ban speech before it ever gets out there, is _______

A

unprotected speech

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10
Q

a bill of attainder is when the federal or state government passes a law that names an individual/ group and ____ them

A

punishes/ criminalizes

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10
Q

a statute that is overbroad will generally be

A

struck down as unconstitutional

i.e. “ANY form of X speech not allowed”

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11
Q

ex post facto is when a law is made that was ____ when you did it, but gov tries to retroactively make it criminal

A

legal

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12
Q

the contracts clause applies when a STATE tries to pass a law that would impair a contractual obligation. This is _____

A

unconstitutional

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13
Q

To have standing, an individual needs an injury ____, causation, and _____. The case must be ______ and cannot be moot. A court will not render ______

A

in fact
redressability
ripe
advisory opinions

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14
Q

The supreme court can review decisions of the federal courts of appeals and federal decisions made by ______ courts

A

state

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15
Q

The supreme court can hear decisions made by state courts if the case involves a matter of FEDERAL LAW, it is a _____judgement from the highest state court authorized to hear the case, and there are no ____ and _____ state grounds on which the state court decision is based

A

final
independent and adequate

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16
Q

if a state court decision rests on two grounds (a state and federal ground) and the supreme court’s reversal of the federal decision would NOT change the outcome, then the SC _____ the case

A

cannot hear

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17
Q

A case will go DIRECTLY to the supreme court if it has ____jdx.

Congress may NOT restrict or enlarge such cases

A

original

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18
Q

a case that has appellate jdx, congres ____ enlarge/ regulate the scope of it

A

MAY

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19
Q

original jdx = congress may NOT
appellate = congress MAY

A

memorize

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20
Q

Federal courts will NOT hear _____questions

A

political questions (those given to another branch of gov by the Constitutional)

TIP: Examples include “republication form of gov” clause challenges, military or foreign affairs decisions, or impeachment

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21
Q

Congress can create more LOWER ______courts

A

federal

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22
Q

a case is MOOT if the case has already been resolved, so there is nothing left to litigate, so it cannot be brought to ___

A

federal court

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23
Q

If a case is not ripe, that means that nothing has happened yet, so the case cannot go to ___

ie. law hasn’t been passed yet

(no case or ____)

A

federal court

controversy

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24
Q

Powers of Congress:
1. N&P
2. taxing and spending
3. _____ power
4. war and defense
5. enforcement power

A

commerce

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25
Q

The necessary and proper clause must be combined with _______

A

another power of congress

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26
Q

congress may tax and spend for the

A

general welfare

BUT it cannot ACT for the general welfare

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27
Q

Congress can regulate anything economic and noneconomic that _____ interstate commerce

A

substantially effects

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28
Q

other random powers of congress include:

admiral and maritime, property power, postal power, copyright and patent power, power to coin money, power to impeach, and power to _____

A

delagate powers

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29
Q

congress can delegate legislative power to executive agencies or the judiciary. BUT the power cannot be unuqtly delegated to Congress by the constitution (i.e., power to ____)

A

declare war

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30
Q

Congress does NOT have police power, execept over MILD
1. Military bases
2. Indian territories
3. ____
4. DC

A

federal lands

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31
Q

a legislative veto is _____. This occurs when Congress tries to overturn action by the executive branch without ____ and _____

A

unconstitutional

bicameralism and presentment

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32
Q

under the 11A, the citizens of one state CANNOT SUE its OWN state or ____

A

another state

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33
Q

A state can be sued if it ____to being sued (look for statute)

A

consents

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34
Q

A government official may be sued under ___

A

11A

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35
Q

A private individual cannot sue a STATE for money damages in ____

A

federal court

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36
Q

municipalities (may/may NOT) be sued

A

may

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37
Q

the supreme court has original and exclusive jurisdiction for cases ______

A

between states

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38
Q

supreme court has original jdx over any case that involves APS ( )

A

ambassadors, public ministers and consuls, or where the STATE is a party

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39
Q

a state can pass a law that discriminates against out of state businesses when CONGRESS ALLOWS IT

A
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40
Q

When the state is acting as a market participant, that means the state is acting like a monopoly in that business, therefore it can discriminate agiainst ____

A

out of state business

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41
Q

who is acting in a DORMANT commerce clause issue?

A

the state

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42
Q

a state can discriminate aginast OOS businesses when (1) congress SAID they can do it, or (2) the state is acting as a ____

A

market participant

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43
Q

under the full faith and credit clause, a judgement on the ___ in one state gets the full faith and credit in another state

A

merits

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44
Q

congress cannot _____ states to do stuff

A

comendeer

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45
Q

THe president has hte power to appoint federal judges, ambassadors, and other principal officers of the United States with the advice and ___ of the Senate

The pres may REMOVE executive officials without cause, unless Congress limits removal for “good cause”

A

consent

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46
Q

The president may grant pardons for _____ crimes

A

federal

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47
Q

the president cannot _____ war

A

declare

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48
Q

the president has _____ powers over foreign affairs

A

broad

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49
Q

the president may enter treaties with 2/3 Senate approval. The pres may enter into executive agreementsn with the heads of ______

A

foreign countries

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50
Q

The pres is absolutely immune from civil suits for damages for any _____ as president (but NOT for purely personal or pre-presidential acts)

A

official acts

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51
Q

If a plaintiff sues under the First, 14th, or 15 Amendment (i.e., for free speech, due process, equal protection, or votign issues,) the Plaintiff must show _____. _____ is present if the state passess a law, if a private actor performs a “ ____” gov function, or if a private action is closely controlled by the state

A

state action
“traditional and exclusive” (i.e., running company town)

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52
Q

The government may NOT take private property for ____ without ______. A taking can be physical or regulatory. A taking is regulatory if it deprives one of _________

A

public use
just compensation

ALL ECONOMIC VALUE

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53
Q

An unconstitutional exaction is also a _____-

A

regulatory taking

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54
Q

private entities performing a public function are state actors ONLY IF the function is one that is an ______ governmental service or one that involves ______ governmental powers such as incarceration

A

exclusive
inherently

Supplying water does not satisfy either of those
Receipt of a public franchise is not enough to make a company a state actor

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55
Q

the right to procreate (steralization watch out for this in facts) is a fundamental right which must satify

A

stirct scrutiny

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56
Q

The equal protection principles in the 14A apply to actions of the federal government through the DPC of the ____

A

5A

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57
Q

the commerce clause grants Congress a plenary power to regulate the saftey of air travel because airlines are instrumentalities of ____

A

interstate commerce

58
Q

The privileges and immunities clause of Article IV prohibits actions by STATES that imporlerly disciminate against ______

A

citizens of other states

59
Q

does the P&I clause of Art IV apply to the actions of the federal gov?

A

NO

60
Q

does the P or I clause of Art IV apply to the actions of the federal gov?

A

NO

61
Q

The bar exam would just like us to know that they can do it… so on F24 when they ask you a weirdass question about congress changing some shit with the lower federal courts… the answer will always be that this is allowed and this power is derived from ____(The Judicial Vesting Clause)

A

Article III

62
Q

Congress does something weird involving lower federal courts = that’s allowed.

Why?

A

Art III

63
Q

The MBE sometimes tests whether congress can enlarge or fuck with the original jurisdiction of daddy SCOTUS… absolutely (yes or no)

A

NOT

64
Q

So the 11th Amendment is pretty simple. Citizens can’t sue:

  1. Their own state in federal court
  2. State officials in their official (not private) capacity in federal court
A

Another state in federal court

65
Q

let’s talk exceptions to the 11th Amendment (this is what they will really test)

The first exception is ___. A state can actually consent to being sued by citizens in federal court.

A

waiver

66
Q

Trick #1: The MBE will throw you a scenario where a federal government sues a state government in federal court. This is _____. The federal government runs shit - ever heard of the supremacy clause? They can bring that weak ass state government into federal court whenever they want. (Will this be on the MBE? I’m giving it a 47% shot)

A

allowed

67
Q

Trick #2: Congress can “abrogate” a state’s immunity. I know you all fell asleep when you just read the word abrogate but I’ll break it down. Congress can enforce the provisions of the 14th amendment (think about things like civil rights and discrimination) through “_______.” Sometimes, when a state is fucking with their citizen’s civil rights… daddy Federal Government will step in.

A

appropriate legislation

68
Q

So in summary: Congress can ____ suits and damages against states in Federal Court under the 13th (slavery), 14th (equal protection under the laws and civil rights), and 15th Amendments (cannot prevent voting based on race)

A

authorize

69
Q

But can a citizen sue a state official in federal court for money damages?

A

NO

70
Q

But wait Goat… I get it… but can you can sue a state official in their personal capacity if they will be paying OUT OF THEIR OWN POCKETS?

A

yes that is correct

71
Q

so when can a citizen sue a state in federal court?

A
  1. states WAIVE their right to sue
  2. congress ABROGATES b/c a stae was fuckign around with civil rights
  3. fed gov sues state in fed court*****
  4. you can sue a stae official for injunctive relief if they are acting OUTSIDE the scope of their authority by violating federal law in their personal capacity if they hit your car
72
Q

does the 11A apply to city or town officials?

A

NO

73
Q

you can sue a _______ in federal court

A

city official

74
Q

A plaintiff can’t assert claims on behalf of people that are ___ before the court.

A

not

75
Q

4 situations where you can assert third party standing:
1. close relationship b/w plaintiff and injured party
2. injured party is unlikely to assert their own rights (parent or guardian suing on behalf of incapacitated minor)
3. assignee of a contract can sue even if the money will go to the assignor (contracts stuff)
4.

A

organizational standing

76
Q

organizational standing exists if (1) the members would have standing to sue themselves, (2) the claims are germane to the organization’s purpose, and (3)

A

neither the claim or relief requires the particiption of individual members

77
Q

The plaintiff is not entitled to a review of a statute or regulation before its enforcement unless they will suffer some IMMEDIATE HARM or IMMEDIATE ____ OF HARM.

A

threat

no speculative harm allowed

78
Q

If I have a raw goat milk factory and I try to SUE the FDA for considering putting higher restrictions on raw goat milk… I can’t. They are only considering putting the restrictions on goat milk… they haven’t actually started enforcing them yet.

A

it is not ripe

79
Q

But let’s talk exceptions to mootness.

Number one:

A

voluntary cessation = if the D just stops doing the shit, BUT he could continue doing it at any time, then this will NOT be moot

80
Q

Exception #2: Class action suits won’t be dismissed for mootness so long as ______ still has an ongoing injury.

A

one member of the class

81
Q

Exception #3: A wrong capable of repetition but evading review.

his exception only comes into play when:

The challenged action only lasts a short time, and it can’t be fully litigated prior to its logical end;

The complaining party will likely get hit with the same injury again

This usually happens in situations with ____.

A

elections
I mean let’s say someone is running illegal election advertisements talking shit… well…. the election might be over before this issue can be litigated.

82
Q

The final exception is a little baby one and it’s common sense but essentially if there are still ______ at play… well… the case is not moot.

A

collateral consequences

83
Q

a state tax levied directly against the property or operation of the federal gov without the consent of congress is _____

A

invalid

84
Q

BUT non-discriminatory, indirect taxes on the federal government or its property are permissible if they do _________the fed gov

A

not unreasonably burden

For ex., state income taxes on teh salaries of federal employees are VALID unless taxed imposed are higher on federal employees than state or locam employees

85
Q

The MBE will try and trick you and act like it’s a non-justiciable question because it deals with foreign affairs… but statutes ARE justiciable.

Statutes are the MOST JUSTICIABLE THING I CAN THINK OF

THE SUPREME COURT CAN RULE ON FEDERAL STATUTES

______ EVEN ONES RELATED TO WAR AND FOREIGN AFFAIRS

WRITE THAT ON YOUR HAND, YOUR WALL, ANYTHING

PLEASE DO NOT MISS THIS ONE MY BABY GOATS, THESE ARE TREACHEROUS WATERS OUT HERE ON THE MBE AND I KNOW THEY LOVE TO TEST THIS

A

THEY LOVE FEDERAL STATUTES,

86
Q

So the ____ doctrine is about concurrent jurisdiction and two cases going on at once. When both a federal court and a state court could hear the case simultaneously, the federal case is delayed or dismissed to allow the state’s to do their thing.

A

Colorado River Abstention

87
Q

The ___ doctrine is about resolving unclear issues of state law first in a given case before getting to the federal issues. If the state law issues are resolved, we may not even need the federal analysis.

A

Pullman Abstention

88
Q

what do I need to know about indian reservations?

A

Congress can regulate the commerce of indian tribes through the commerce clause

if you are found not guilty in an indian tribe court you can still be charged federally – the double jeopardy clause is not implicated

89
Q

Congress also regulate the ____ of interstate commerce (fancy word for the people and things that move across interstate commerce)

A

instrumentalities

90
Q

Congress can regulate economic STUFF that is not just moved across state lines, but ANYTHIG so long as it has a “_______” on interstate commerce

A

substantial effect

91
Q

Congress was also allowed to regulate the sale of sugary drinks in vending machines, states selling driver’s license records, and some weird ice cream parlor not paying their employee’s minimum wage… because in the aggregate these activities… ALTHOUGH THEY ONLY HAPPEN WITHIN THE STATE’S BORDERS…. have a ________(which just means that if tons of people did this within their own states it would add up and fuck with interstate commerce on a national level)

A

substantial affect on interstate commerce.

92
Q

can congress regualte NON-economic activity?

A

NO

93
Q

How can you tell in an MBE problem that something is non-economic?

A

they will they there is “no secondary market”

94
Q

If something is grown in a state which has ____ secondary market and is not sold at all across state lines or within the state (they will have to tell you this lmao)… THIS activity is non-economic and is not controlled by Congress.

A

NO

95
Q

Congress cannot get involved in ______ matters with _____ economic activity

A

purely local
no

96
Q

Gender based violent crimes are _____ an economic activity

A

NOT

97
Q

One final Goat-Note: Private businesses (hotels, restaurants, etc.) cannot ______ even though they are not engaged in interstate commerce and operate fully within a state. This is a provision in the Civil Rights Act, so don’t let them trick you into thinking they can do this. They can’t.

A

discriminate based on race or gender

98
Q

Congress can tax and spend for the ___

A

genral welfare

99
Q

A tax will be valid if it _____

A

raises revenue

100
Q

can Congress tax something that it cant regulate directly?

A

nope

101
Q

three types of taxes the MBE tests

A
  1. Direct
  2. indirect
  3. tax exports
102
Q

for direct taxes, these are taxes on individuals and corporations from income and profits that are paid DIRECTLY to the gov.

the only limitation on direct taxes is that they must be _____ evenly among states based on population and how rich state is

A

apportioned

103
Q

Indirect taxes are a little secret taxes on goods and services rather htan income and profits.

the only liit here is that indirect taxes must be applied ____ in every state

A

uniformly

104
Q

Can congress tax exports? AKA things leaving the US?

A

NO

105
Q

The federal gov is allowed to place CONDITIONS on the receipt of Federal Funds on the states

as long as the conditions are clear (______), non-coersive (no gun to the head situations when it comes to the amoun of funds withheld), and related to _____

A

unambiguous
a federal interest

106
Q

Congress, after realizing highway crashes were on the rise, wanted to implement a mandatory seat-belt law. If the states did not enact the law, they would lose 95% of their federal highway funding. Is this allowed?

A

NOPEE b/c violate the COERSIVE prong

107
Q

In summary: Congress can regulate through spending _____ on states, but not tax ____ on states for things outside of their enumerated powers

A

conditions = CHECK
penalties = NO

108
Q

Just remember that the president is still the commander-in-chief and makes all the strategy decisions and shit.

Congress can just create the armed forces and structure it and supply it and forcibly enlist people through drafts.

A

k

109
Q

congress but NOT the pres can _____ war

A

declare

110
Q

there is no FEDERAL _____ power

A

police

111
Q

But states DO have ___ powers b/c they can regulate the health, saftye, and welfare of the citizens

A

police

112
Q

what is the difference between section 5 of 14A and the commerce clause?

A

The CC is focused on MONEY and section 5 is focued on civil rights

112
Q

the federal police can regulate these 4 things:
DILF

A
  1. DC
    2> indian reservations
  2. Land owned by federal gov
  3. Armed forces (military)
112
Q

if Congress appropriates money for some shit, the president cannot _____

A

unilaterllly overrule it

113
Q

something that Congress does under Section 5 of 14A must be ___- and ____

A

confruent and proportional

113
Q

Section 5 of 14A states that Congress shall have the power to ____, by appropriate legislation, the provisions of this article

A

enforce

113
Q

president must spend appropriations how ____

A

congress wants

113
Q

the president controls the _____

A

executive agencies

114
Q

the president has immunity from civil lawsuits for money damages while _____

BUT pres not have immunity as a result of actions PRIOR to hsi presidency

A

in office

115
Q

the president can pardon those who are convicted of _____Crimes ONLY

A

federal

oh and it can also be CRIMINAL only nt civil

116
Q

but the pres CANNOT pardon for ___-

A

imepachment

117
Q

The president’s conversations and documents exchanged beween him and his high level advisors are ____

A

privileged

118
Q

if war powers come up on the test, the answer will ikely be that it is a ____

A

political question. It is not for the courts

119
Q

congress controls what type of commerce? Oh foreign?

A

yes. congress controlls foreign commerce

120
Q

the president has the SOLE power to recognize foreign nations, and congres cannot ____

A

override this shit

121
Q

a treaty needs to be ratified by ____ vote of senate

Does this involve house of rep?

A

2/3

no. only pres and senate

122
Q

WHO WINS law battle the treaty v other laws

CONSTITUTION on top > self-executing treaty beats state law

and Federal law v. treaty then….

A

whichever one was adopted last WINS

123
Q

executive orders deal with domestic policy and executive agreements deal with things b/w US and __-

A

foreign nations

124
Q

can congress overturn an executive order by legislation

A

YES

125
Q

the only thing executive orders prevail over is ____

A

state law

126
Q

the president can appoint __with the ADVICE AND CONSENT OF THE SENATE

___are just people w/o bossess that run shit on their own without being supervised by others

Ex :

A

PRINCIPAL OFFICERS

cabinet secretaries
federal judges
ambasadors

127
Q

congress cannot actually APPOINT inferior officers, they give the ______ to other people!!

A

appointment power

128
Q

CONGRESS DOES NOT ____. THEY _____ OTHER PEOPLE TO ______

A

APPOINT

129
Q

unless removal is prohibited by a certain statute, the president can fire

A

whoever the fuck he wants

130
Q

congress can reserve to OTHER BRANCHES the power to remove inferior officers, but they cannot reserve that power ____

A

for themselves

131
Q

On the test just look at the job and say “is this a job I might not want the President removing if he had a bad day and got pissed off?” … they can apply ____ limitations to those types of jobs, not the President’s inner circle.

A

good cause

132
Q

IN SUM - congress cannot directly remove, but they limit some positions to “good cause” removal - positions where it is ______ to have a little independence from the president

A

preferrable

133
Q

If a problem says “Congress passed a statute prohibiting the President from removing…”

I want you to literally do this in your seat as you read that:

A

Uproariously laugh.

Because you know in your heart that Congress cannot fuck with the President’s removal powers. And you know in your heart, at this moment… that you will pass.

134
Q

So to get impeached in the house we need a majority vote. Then to get convicted in the Senate we need a ___vote.

A

2/3

135
Q

The President has _____days to veto legislation once Congress approves it.

If the President does not veto it within 10 days… it becomes law

A

10

136
Q

line item vetos are ___

A

unconstitutional

137
Q

congress can give their rule making authority to executive agencies so long as they give them a “______” principle to work with

A

clear and intelligible

AKA a clear statement describing what kind of power they are singling around

138
Q

Okay so the Speech and Debate Clause IN THE CONSTITUTION says that people in Congress and in the Senate AND their little assistants are IMMUNIZED from criminal and civil liability for statements made ____ while they are engaged in LEGISLATIVE ACTS (voting on the floor or making speeches on the floor or conducting legislative hearings, etc)

A

ON THE HOUSE/SENATE FLOOR

139
Q

exceptions to speach and debate clause

  1. it does NOT protect against criminal acts OUTSIDE the scope of legislative duties
  2. it does NOT protect against press releases saying thigns to the pubic ______
A

outside of the floow of congress/ senate

MBE Weak Areas (17 decks)

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