Con MBE Flashcards
Original Jurisdiction
Case can go directly to Supreme Court • Congress CANNOT “enlarge or restrict”
Appellate Jurisdiction
Case is appealed up to Supreme Court • Congress MAY regulate scope
Congress & Supreme Court
Congress CANNOT tell Supreme Court what to do
Congress & Lower Courts
Congress CAN establish lower courts & jurisdiction
Mootness
The issue has already been resolved
Ripeness
Case is not ready to be brought to court
Standing
Plaintiff must have a personal injury at stake
Case or Controversy
Must be an actual dispute No case or controversy is a synonym for mootness, ripeness, or standing
Independent & Adequate State Grounds
A case resolved on independent & adequate state grounds will not go to the Supreme Court
Political Questions/Justiciability
Federal Courts will not hear cases regarding legislative or executive power
Eleventh Amendment
Citizens of one state CANNOT sue their own or another state
Exceptions to Eleventh Amendment
State Consent • Government Official • Municipalities
Veto Power
President has the power to VETO
Presidential Appointment Power
The power to appoint ambassadors, judges, heads of agencies
Joint Appointment Power
CONGRESS may appoint members when the agency has NO regulatory or rulemaking authority
Presidential Pardon Power
Absolute power of the President • Only pardon FEDERAL crimes
Commander-in-Chief
President can Command Troops, but CANNOT Declare War
Presidential Treaty Power
President has the power to enter into treaties
Treaty Conflict
If treaty & federal law conflict - LAST IN TIME prevails
Executive Order
Domestic
Executive Agreement
Foreign
Constitutionality of Executive Orders
CANNOT conflict or supersede Congress
Presidential Powers List
Veto • Appointment • Pardon • Commander in Chief • Treaty • Executive Order/Agreement
Congressional Taxing Power
To raise revenue for the general welfare
Congressional Spending Power
For the general welfare
Commerce Clause
Congress has broad power to regulate commerce • Regulate the making, manufacturing, shipping of a widget
War Power
Congress can declare war
Foreign Affairs
Congress has the Primary Authority
Aliens
Congress has the power over non-citizens
Coin Money
Congress has the power to coin money
Federal Land
Congress has power over federal land including Washington D.C. • Parks, Monuments
Congressional Powers
Tax & Spend • Commerce Clause • Declare War • Foreign Affairs • Aliens • Coin Money • Federal Land
Definition - Delegation of Powers
Congress CAN delegate powers • MUST include guidelines & limitations
Definition - Necessary & Proper Clause
Whatever is “necessary & proper” to enact enumerated powers Necessary & Proper Clause must be linked to an enumerated power
SUPREMACY CLAUSE Rule
A conflict exists between Federal and State Law • In a conflict, Federal ALWAYS wins
TENTH AMENDMENT
State Law can be MORE RESTRICTIVE than Federal Law
States have POLICE POWER
States can pass laws for health, safety, and welfare • There is NO Federal Police Power
COMMANDEER RULE
Federal Government CANNOT REQUIRE a state to do anything
DORMANT COMMERCE CLAUSE Rule
State law regulating business CANNOT discriminate against out-of-state businesses
Discriminatory on Face
Strict Scrutiny Applies
Discriminatory Effect
Intermediate scrutiny applies • Burden on Commerce should not be excessive
Market Participant Exception
State controls entire industry • State may discriminate
FULL FAITH & CREDIT
Judgment in one state must be given full faith & credit in another state
Federal Immunity
States cannot sue Federal Government • States cannot tax Federal Government • State can tax individuals • Individual cannot sue, unless consent
State Immunity
Federal Government & States can sue a State • Federal Government may not tax a government activity • Federal Government may tax a proprietary business
Definition - Equal Protection
Government is treating people DIFFERENTLY
Strict Scrutiny
Applies to Race, Alienage, National Origin • Government has the burden • NECESSARY to achieve a COMPELLING interest
Intermediate Scrutiny
Applies to Gender, Illegitimacy • Government has the burden • SUBSTANTIALLY related to an IMPORTANT interest
Rational Basis
Applies to Everyone Else • Plaintiff has the burden • RATIONALLY related to a LEGITIMATE interest
Definition - Substantive Due Process
Government regulating a right for ALL PEOPLE
Levels of Scrutiny - Substantive Due Process
Fundamental Right - Strict Scrutiny • Non-Fundamental Right - Rational Basis
Fundamental Rights
Vote • Free Speech • Interstate Travel
Privacy Rights
CAMPER triggers Strict Scrutiny: • Contraception • Abortion - Undue Burden • Marriage • Procreation • Education • Raise Family
Definition - Procedural Due Process
Property Rights - Governmental jobs • Licenses • Public benefits
Levels of Scrutiny - Procedural Due Process
No Levels of Scrutiny • Need Notice AND Hearing Make sure property right has vested
Equal Protection & Due Process
FEDERAL Law = 5th Amendment vs. STATE Law = 14th Amendment
Definition - Privileges & Immunities
State passes law that treats NON-RESIDENTS differently
13th Amendment
Bans slavery • PRIVATE individuals cannot racially discriminate
15th Amendment
Voting & Racial Discrimination
TAKINGS CLAUSE Rule
1) Government taking Private Property 2) For Public Use 3) With Just Compensation
Definition - Public
Use Any overall public benefit
Inverse Condemnation
Denies you the economic benefit of the land • Value left is WORTH NOTHING
RELIGION Definition - Establishment Clause
Government cannot pass a law that formally sponsors or establishes a religion
Tests for Estabishment Clause
1) History and Tradition: whether the challenged government action accords with historical practices and the Founding Fathers’ original intent (e.g., citizens shall not be coerced into participating in religious observance) 2) Neutrality: whether the challenged government action is religiously neutral
Definition - Free Exercise Clause
Government must remain neutral on practice of religion A Law NEUTRAL to religion will be constitutional even if the EFFECT prohibits religion
Content-Based Regulation
Government stops the message • Triggers Strict Scrutiny
Content-Neutral Regulation
Regulation on Time, Place, & Manner • Where, When, & How
Constitutionality - Content-Neutral Regulation
Furthers significant governmental interest • Leaves open alternative means of communication • Form of Intermediate Scrutiny
Public Forum
Streets & Parks • Must further significant government interest • Leave open alternative means of communication
Non-Public Forum
Billboards, Signs, Buses • Reasonably related to a legitimate government interest
Obscenity
1) A prurient interest in sex by objective local community standards 2) Depicts sex in a patently offensive manner 3) Lacks any serious literary, artistic, political, or scientific value Art may be viewed differently in different communities. Be sure to look at the local community standards stated in the question
Clear & Present Danger
1) Speech incites imminent violent action 2) Likely to produce violence
Fighting Words
Harsh language likely to incite an average person to commit violence
Commercial Speech
Business Related Speech • REASONABLE fit to a SUBSTANTIAL interest • Narrowly tailored
False/Misleading Advertisement
Speech that provides false/misleading information • Not Protected
Prior Restraint
Stops speech before it is published • Injunctions, Gag Orders
Unfettered Discretion
Government official cannot choose/allow one form of speech over another
Overbroad & Vague Speech
Statute cannot be too broad or too vague • Keywords: “any” or “all”
Bill of Attainder
Cannot expressly PUNISH an individual or named group of people • Applies to both Federal and State Government
Ex Post Facto Laws
Law that retroactively makes action illegal • Applies to both Federal and State Government
Definition - Contracts Clause
STATE cannot EXPRESSLY impair your ability to enter a contract
Definition - State Action
There must be State/Government action to violate the constitution
