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July Bar > Constitutional Law > Flashcards

Constitutional Law Flashcards

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MBE flashcards
1
Q

What are bad answers for mbe?

A
  1. General Welfare as an independant answer
  2. Necessary and Proper Clause as an independent answer
  3. Privileges or Immunities
  4. Contract Clause
  5. Enabling Power or Enforcement
  6. 10th amendment
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2
Q

what are the case and controversies requirement for federal law?

A
  1. Ripeness
  2. Advisory Opinions
  3. Moot
  4. Political Questions
  5. Standing
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3
Q

What do you need for standing?

A
  1. Injury: P suffered injury or its imminent
  2. Causation: that D caused the injury
  3. Redessability: the court can remedy that injury
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4
Q

When can an organization sue for its members?

A
  1. the members would have standing
  2. the interests are germane to the organizations interest.
  3. the claim does not require participation of individual members.
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5
Q

when can a plaintiff assert claims of others?

A
  1. injured third party is unlikley to be able to assert his rights.
  2. close relationship between the p and the injured party.
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6
Q

What is the ripeness requirement?

A

genuine, immediate threat to harm

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7
Q

What is the mootness requirement?

A

an actual controversy will exist at all stages of review.

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8
Q

what cases does the supreme court have original and exclusive jurisdiction?

A

case between state governments.

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9
Q

when can the supreme court review a state court decision?

A

when there is an independent state law ground of decisions.

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10
Q

when can federal courts and state courts hear suits against state governments?

A
  1. state expressly consents,
  2. the federal government sues state governments
  3. bankruptcy proceedings.
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11
Q

are suits against state officers allowed?

A

yes. if personally liable.

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12
Q

what powers does Congress have?

A
  1. tax and spend for the general welfare
  2. Commerce Power
  3. declare war, some foreign
  4. no limit to power to delegate
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13
Q

is there such thing as a federal police power?

A

NO. Except for military, indian reservations, federal lands, D.C.
(MILD)

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14
Q

what does Mild stand for?

A

Military
Indian Reservations
Federal lands
D.C.

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15
Q

what commerce powers does congress have?

A
  1. regulate the channels of interstate commerce
  2. regulate instrumentalities or persons
  3. economic activities that have a substantical effect.
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16
Q

are there limits to the powers congress has to delegate?

A

No.

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17
Q

what does the 14th amendment apply to?

A

states

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18
Q

what does the 5th amendment apply to?

A

federal government.

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19
Q

must treaties be ratified by senate?

A

yes.

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20
Q

do executive agreements have to be approved by senate?

A

No.

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21
Q

what powers does the president have?

A
  1. broad powers as Commander-in-Chief- touse American troops.
  2. Appointment and removal power.
  3. Can pardon those to federal criminal crimes.
  4. Absolute immunity to civil suits for money damages for actions while in office.
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22
Q

can congress prohibit removals?

A

no, but it can limit them.

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23
Q

When do the federal laws preempt state laws?

A

express preemption or implied preemption.

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24
Q

what is express preemption?

A

if federal statute says federal law is exclusive in field.

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25
Q

when is there implied preemption?

A
  1. mutually exclusive
  2. impedes the achievement of a federal objective
  3. clear intent to preempt state law
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26
Q

can states tax or regulate federal activity

A

No.

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27
Q

when do we apply the dormant commerce clause?

A

if there is state or local law on interstate commerce

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28
Q

What do we do if the state law discriminates against out of staters?

A

we try to apply the dormant commerce clause or the privilege and immunities clause

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29
Q

if the state law not discriminate what do we do?

A

we check to see if the dormant commerce clause applies. if the law burdens interstate commerce, we see if the burden exceeds its benefits.

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30
Q

if the state law does discriminate what do we do?

A

we try both the dormant commerce clause and the privilege and immunities clause. It violates unless it is necessary to achieve an important government purpose.

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31
Q

can corporations or aliens sue under the privileges or immunities clause?

A

no because they dont have fundamental rights. but they can sue under dormant commerce clause.

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32
Q

what is the first step to a constitution’s protection of Individual Liberties Question?

A

have to see if there is government action. can only get at private action by statute.

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33
Q

when does private conduct have to comply with the constitution?

A

Public function exception

or

entanglement exception

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34
Q

what is the public function exception?

A

if private party is performing task traditionally, exclusively done by the government

35
Q

what is the entanglement exception?

A

the constitution applies if government facilitates unconstitutional activity.

36
Q

what are the 3 levels of scrutiny?

A
  1. rational basis
  2. intermediate scrutiny
  3. strict scrutiny
37
Q

what is rational basis?

A

law is upheld if rationally related to a legitimate government interest.

challenger has burden of proof

38
Q

what is intermediate scrutiny?

A

law is upheld if substantially related to an important government purpose.

government has burden of proof; narrowly tailored

39
Q

what is strict scrutiny?

A

law is upheld if necessary to achieve a compelling government purpose.

government has burden of proof; least restrictive alternative.

40
Q

what is due process?

A

whether the government has provided sufficient procedures when depriving life liberty or property?

41
Q

what is substantive due process?

A

does the government has an adequate reason in taking away life, liberty, or property?

42
Q

what is equal protection?

A

is the governments difference in treatment of people justified?

43
Q

when does a deprivation of liberty occur?

A

when there is a loss of significant freedom provided by constitution.

44
Q

when does a deprivation of property occur?

A

when there is an entitlement, and entitlement is not fulfilled.

45
Q

when there is a due process claim? what is the test?

A

balance the interests of individual and government.

the ability of additional procedures to increase the accuracy of the fact finding.

46
Q

if a law affects economic rights what level of scrutiny do we apply?

A

rational basis.

47
Q

when is there a taking?

A

if there is a permanent regulatory taking or a possessory taking.

48
Q

when is there a possessory taking?

A

confiscation or physical occupation

49
Q

when is there a regulatory taking?

A

leaves no reasonable economically viable use of the property.

50
Q

if the goverment takes the property for public use to benefit the public, what happens?

A

there has to be just compensation. if not government must return property.

51
Q

so what are the two taking ?S

A
  1. is there a taking?

2. is it to benefit the public?

52
Q

who does the contract clause apply to?

A

the state government. if interferes with private contracts, then must meet intermediate scrutiny. If it interefes with government contracts must meet strict scrutiny.

53
Q

what are the strict scrutiny rights?

A
  1. marry
  2. procreate
  3. custody of children
  4. keep family together
  5. control upbringing of one’s children
  6. purchase and use contraceptives
  7. travel
  8. vote
54
Q

what right triggers the undue burden test?

A

abortion before viability

55
Q

rational basis

A

right to practice a trade or profession
right to physician-assisted death
right to education

56
Q

when do equal protection questions apply?

A

when there is distinction between people

57
Q

what are three questions to ask for equal protection problems?

A
  1. what is the classification
  2. what level of scrutiny
  3. does the law meet the level of scrutiny.
58
Q

how is equal protection applied to fed and state gov.

A

14th applies to states

5th applies through due process.

59
Q

what level of scrutiny applies to race and national origin?

A

strict scrutiny

60
Q

how is the existence of classification proven?

A
  1. on the face of the law

2. facially neutral, discriminatory impact and intent

61
Q

what level of scrutiny applies to gender classifications?

A

intermediate scrutiny.

62
Q

when can gender classifications benefiting women be allowed?

A

when remedying past discrimination and differences

not based on role stereotypes.

63
Q

what level applies to alienage?

A

generally strict scrutiny

64
Q

when does rational basis apply for alienage?

A
  1. Concerns self-government and the democratic process

2. Congressional Discrimination

65
Q

What about undocumented alien children and bastards?

A

intermediate scrtuiny.

66
Q

what level of discrimination for age?

A

rational

67
Q

what level of discrimination for disability?

A

rational

68
Q

what level of discrimination for wealth?

A

rational

69
Q

what level of discrimination for sexual orientation?

A

rational

70
Q

what two types of free speech restrictions?

A
  1. Content based restrictions

2. Content neutral restrictions

71
Q

what level of scrutiny applies to content based restrictions?

A

strict scrutiny

72
Q

what level of scrutiny applies to content neutral restrictions?

A

intermediate scrutiny

73
Q

what level of scrutiny applies to a prior restraint?

A

strict scrutiny.

74
Q

what attacks can be made on the law?

A

its overbroad and vague

75
Q

what does it mean to be vague?

A

a reasonable person cannot tell what speech is prohibited and what is allowed

76
Q

what does it mean to be overbroad?

A

it gets unprotected and protected speech.

77
Q

what speech is unprotected by the first amendment?

A
  1. incitement of illegal activity.

2. Obscenity

78
Q

what are the elements for obscenity speech?

A
  1. appeals to a prurient interest
  2. patently offensive
  3. laps value
79
Q

what are the elements for incitement?

A

substantial likelihood of imminent illegal acitivity

directed to causing imminent lillegality.

80
Q

laws that prohibit or punish group membership must meet what level of scrutiny?

A

strict scrutiny

81
Q

what is the free exercise clause?

A

law that burdens free exercise of religion must not be religiously motivated.

82
Q

what is the establishment clause? (sex clause)

A

the government must make no law respecting establishment of religion.

83
Q

what is the test for establishment ? (Sex)

A
  1. Secular Purpose
  2. effect must be neither to advance nor inhibit religion
  3. must not be excessive entanglement with religion.
84
Q

what level of scrutiny applies to commercial speech?

A

intermediate scrutiny.

July Bar (11 decks)

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