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BAR EXAM > Constitutional Law - MBE > Flashcards

Constitutional Law - MBE Flashcards

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1
Q

Judicial power:

What is within SCOTUS’s original jdx?

A
  • Ambassadors, public ministers, consuls

- State is a party (concurrent with Fed Cts.—EXCEPT if a case between states)

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2
Q

Judicial power:

What is within SCOTUS’s appellate jdx?

Which appeals are mandatory and which are permissive?

A

WRIT OF CERT—Appeals involving a federal question:

  • Appeals from STATE courts: constitutionality of a federal statute, federal treaty, or state statute; state statute that allegedly violates federal law
  • Appeals from FEDERAL courts: all cases from federal courts of appeals

MANDATORY APPEALS:
- Decisions by a three-judge panel that grants/denies INJUNCTIVE relief

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3
Q

Judicial power:

What must be true for an opinion to not be “advisory?”

A
  • Must be an actual dispute

- Must have some legally BINDING effect on the parties

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4
Q

Judicial power:

What are three important exceptions to mootness?

A
  • Capable of repetition but evading review
  • Class actions (class rep may continue to represent class as long as SOME class members’ claims are still in controversy)
  • D has voluntarily stopped, but could restart anytime at will
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5
Q

Judicial power:

What is required for standing?

A

A party must have a STAKE IN THE OUTCOME of the lawsuit:

  • Injury
  • Causation
  • Redressability
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6
Q

Judicial power:

Plaintiff sues to enforce a government statute. What is required for her to have standing?

A

Must be within the “zone of interests” Congress meant to protect

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7
Q

Judicial power:

What is required for a plaintiff to assert the rights of a third party?

A

CLOSE RELATIONSHIP:

  • P has standing
  • 3P unable or unlikely to sue
  • P can adequately represent 3P

ORGANIZATION (on behalf of members):

  • Members have standing
  • Members’ injury is related to the purpose of the org
  • Members’ individual participation not required (e.g. not seeking individualized damages)

FREE SPEECH OVERBREADTH:
- Not commercial speech

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8
Q

Judicial power:

What is required for a plaintiff to have standing to challenge government taxation or spending?

A
  • Taxpayer can litigate his OWN tax liability, but cannot litigate general tax policy
  • A citizen cannot sue to challenge government expenditures—EXCEPT suits attacking CONGRESSIONAL spending on Establishment Clause grounds (e.g. federal expenditures to aid parochial schools)
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9
Q

Judicial power:

What is the test for adequate and independent state grounds?

A 
Adequate = fully dispositive
Independent = not based on the interpretation of fed law

*State court must CLEARLY INDICATE that its decision is based on adequate and independent state grounds—if it doesn’t do this, SCOTUS may hear the case.

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10
Q

Judicial power:

What is abstention, and when does it apply?

A

Federal court abstains from hearing a case that it could otherwise hear.

  • Unsettled Q of state law is at issue
  • Pending state CRIMINAL proceedings—EXCEPT if the criminal proceedings were brought in bad faith simply to harass
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11
Q

Judicial power:

P wants to challenge a law that hasn’t been enforced yet. Is the case ripe?

A

ONLY IF:
- The law is LIKELY to be enforced someday
- Substantial hardship in the absence of review
AND
- Issues and record are fit for review right now—i.e. is a primarily “legal” issue

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12
Q

Judicial power:

What is required for legislative standing?

A

Personal injury, rather than the leg generally (e.g. nullifies a legislator’s vote)

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13
Q

Judicial power:

When can a plaintiff sue a state (exception to Sovereign Immunity)?

A
  • Waiver
  • The P is another state, or the feds
  • Bankruptcy proceedings against the state
  • Clear abrogation by Congress (e.g. 14th A)
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14
Q

Judicial power:

Is a lawsuit against state officials barred under sovereign immunity?

What about a lawsuit against a local government (municipal)?

A

No, can sue for damages (out-of-pocket) or an injunction

No, can sue for anything against a municipal gov’t

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15
Q

Legislative power:

What are some of the more important powers of Congress?

A
  • Necessary and proper (anything “necessary and proper” to carry out one of the enumerated powers)
  • Taxing and spending
  • Commerce
  • War and related powers
  • Bankruptcy
  • Postal power
  • Citizenship and naturalization
  • Admiralty
  • Patent/copyright
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16
Q

Legislative power:

What can Congress do under the taxing power?

A
  • Anything that bears a reasonable relationship to revenue production
    OR
  • Congress can tax in whatever way it likes if it can regulate the activity (e.g. under the Commerce power)
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17
Q

Legislative power:

What can Congress do under the spending power?

A

Spend for the:

  • Common defense
  • General welfare (any public purpose)
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18
Q

Legislative power:

What can Congress do under the commerce power?

When can it regulate purely intrastate activity?

A

Regulate:
- Channels and instrumentalities of INTERSTATE commerce

Regulate INTRASTATE IF:

  • Economic/commercial activity
  • In the aggregate, it substantially effects interstate commerce
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19
Q

Legislative power:

What can Congress do under the war and related powers?

A
  • Declare war, raise armies, etc.
  • Economic regulation to remedy wartime disruption of the economy
  • Establish military courts and tribunals (insulated from fed/state court review)
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20
Q

Legislative power:

What can Congress do under the citizenship/nationalization power?

A
  • Establish UNIFORM rules for naturalization and denaturalization
  • Deport aliens—but they are entitled to a NOTICE and a HEARING
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21
Q

Legislative power:

When is it permissible for Congress to delegate its legislative powers?

A
  • There are intelligible standards in place

- The power being delegated is not a power exclusively confined to Congress (e.g. powers to declare war, impeach)

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22
Q

Legislative power:

What is the test for evaluating a condition/string attached to a state receiving federal funds?

A
  • The condition must relate to the purpose of the spending

- The condition cannot be UNDULY COERCIVE

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23
Q

Executive power:

What are some important domestic powers of the executive?

A
  • Appointment and removal
  • Pardons
  • Veto
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24
Q

Executive power:

Appointment and removal power?

A

APPOINTMENT:

  • Ambassadors, federal judges, officers of the US (e.g. cabinet secretaries)
  • Senate gives advice and consent (majority approval)
  • Recess appointments: can appoint during a recess of at least 10 DAYS; the appt will only last until the end of the next Senate session.

REMOVAL:

  • Pres may remove high-level officers at will
  • Need good cause to remove low-level
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25
Q

Executive power:

Pardon power?

A
  • May pardon anyone accused or convicted of a FEDERAL crime
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26
Q

Executive power:

What are some important foreign powers of the executive?

A
  • War

- Treaties and executive agreements

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27
Q

Executive power:

Treaties and executive agreements—what trumps them and vice versa?

A

TREATIES:

  • Senate must approve (2/3)
  • Trumps existing and future state law
  • Trumps existing federal law (i.e. they are on par with federal law)

EXECUTIVE AGREEMENTS:

  • Just a contract, no Senate involvement
  • Trumps existing and future state law
  • Never trumps federal law
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28
Q

Executive power:

What is included in executive immunity?

A
  • Absolute bar for civil liability for actions taken within official responsibilities
  • NO immunity for civil liability for actions taken BEFORE taking office (e.g. Clinton v. Paula Jones)
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29
Q

Federalism:

What is the anti-commandeering principle?

A

Congress cannot compel states to enact or administer federal programs

(but they can attach non-coercive conditions to receiving federal funds)

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30
Q

Federalism:

The dormant commerce clause prohibits ______.

A

state laws that discriminate against interstate commerce

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31
Q

Federalism:

Who is a proper plaintiff for a DCC claim?
What is the claim aimed at protecting?

A
  • All out-of-staters

- The flow of interstate commerce

32
Q

Federalism:

What’s the test for whether a law violates the DCC?

A 
DISCRIMINATORY: 
- Invalid UNLESS
- Nec to achieve an impt govt purpose
- No less-discriminatory alternatives 
(this is the same test as a discriminatory law under P&I)

NON-DISCRIMINATORY:

  • Valid UNLESS
  • Burden on IC clearly outweighs non-protectionist benefits

EXCEPTIONS to both:

  • Congressional approval of the state law
  • Market participant
33
Q

Federalism:

What does Privileges AND Immunities (4th Amendment) clause prohibit?

A
  • State laws that discriminate against out-of-state US citizens
  • Regarding: important commercial activities (e.g. a person’s livelihood) AND individual rights
34
Q

Federalism:

Who is a proper plaintiff for P&I clause claim?
What is the claim aimed at protecting?

A
  • US citizens
  • The privileges of out-of-staters to in important commercial activities (e.g. a person’s livelihood) AND individual rights
35
Q

Federalism:

What is the test for whether a state law violates the P&I clause?

A

DISCRIMINATORY state law is invalid UNLESS substantial justification:

  • Nec to achieve an impt govt purpose
  • No less-discriminatory alternatives

(this is the same test as a discriminatory law under DCC)

36
Q

Federalism:

States cannot regulate in ways that burden interstate commerce—they also cannot TAX in ways that burden interstate commerce. What is the test for this?

A

DISCRIMINATORY:
- Generally invalid

NON-DISCRIMINATORY:

  • Valid IF
  • Substantial nexus b/w the taxpayer and the state
  • Fair apportionment to business done or benefits received in the state
37
Q

Federalism:

Can a state assess property taxes for a military base located within the state?

A

No—states cannot assess taxes against the federal government

38
Q

Federalism:

Can a state require a contractor who is building on a military base to pass a state environmental inspection?

A

No—states cannot regulate the federal government, which includes federal government property within the state

39
Q

Federalism:

What does the privileges OR immunities clause of the 14th A protect?

A

States may not deny their citizens:

  • Fundamental right of interstate travel
  • Right to petition the government
  • other stuff…
40
Q

Individual rights:

Obviously state action is satisfied whenever a state law or state official affects an individual’s rights. What is the test for these harder calls?

  • Private entity providing a public function
  • State involvement in private conduct
A

PUBLIC FUNCTION:
Private services provider is state action if the function is TRADITIONALLY AND EXCLUSIVELY a government function.

STATE INVOLVEMENT:
Private services provider is state action if there is SIGNIFICANT state involvement in encouragement, supervision, entwinement, or approval of the action.

41
Q

Individual rights:

What does the contracts clause prohibit?
Does it apply to state and/or federal government?
What level of scrutiny applies?

A

Cannot enact laws that RETROACTIVELY impair the rights of EXISTING contracts

State govt only. But a flagrant impairment of an existing contract right would violate the due process clause

42
Q

Individual rights:

What are the levels of scrutiny for laws that allegedly violate the contracts clause?

  • Private contracts
  • Public contracts
A

PRIVATE K:
- Intermediate scrutiny

PUBLIC K:
- Intermediate scrutiny PLUS (these are a little more suspect because the state could be passing a law that limits its own contractual burdens/liabilities)

43
Q

Individual rights:

What is the test for an ex post facto law, whether it retroactively alters criminal liability?

A

If any of these things are different than what was in place when the act was committed:

  • Makes criminal an act that was innocent
  • Prescribes greater punishment than
  • Reduces the evidence
44
Q

Individual rights:

What does due process require?

A
  • Fair process (notice and a hearing)
  • Before the STATE
  • Can INTENTIONALLY (doesn’t apply to negligent)
  • deprive someone of LIBERTY or PROPERTY
45
Q

Individual rights:

What type of “process” is required by due process?

A

Usually requires:

  • Notice
  • Fair procedures
  • Unbiased decision-maker

Apply BALANCING test:
- Importance of the individual’s interest
- Value of the specific safeguards to that interest
VERSES
- Govt interest in fiscal and administrative efficiency

46
Q

Individual rights:

Can the imposition of filing fees violate due process or equal protection?

A

Yes, if it denies the person a FUNDAMENTAL RIGHT

47
Q

Individual rights:

What type of due process is generally required for the termination of parent’s custody rights?

A
  • PRIOR notice

- PRE-deprivation hearing

48
Q

Individual rights:

What type of due process is generally required for deprivation of welfare benefits?

A
  • PRIOR notice

- PRE-deprivation hearing

49
Q

Individual rights:

What type of due process is generally required for deprivation of disability benefits?

A
  • PRIOR notice

- POST-deprivation hearing

50
Q

Individual rights:

What type of due process is generally required for deprivation of public eduction (e.g. expulsion, or temporary deprivations, like suspension)?

A
  • PRIOR notice and opp to respond

No formal hearing required

51
Q

Individual rights:

What classifications are entitled to

  • intermediate scrutiny
  • strict scrutiny?
A

INTERMEDIATE:

  • Gender (“exceedingly persuasive justification”)
  • Legitimacy (children born in/out of wedlock)

STRICT:

  • Race
  • National origin
  • Alienage classifications (by A STATE)
  • Denial of fundamental rights to some
52
Q

Individual rights:

What are recognized compelling purposes for affirmative action?

A
  • Remedying past discrimination (NOT general societal discrimination)
  • Diversity in education (defer to HIGHER ed determination that diversity is a compelling interest for them)
53
Q

Individual rights:

When will the consideration of race when drawing up voting districts constitute a racial classification?

A

As long as it’s no the PREDOMINANT FACTOR

If this is proven, SS applies (racial classification)

54
Q

Individual rights:

When does SS apply to classifications based on alienage?

A

When done by A STATE

  • EXCEPT if the law discriminates against alien participation in positions integral to DEMOCRATIC SELF-GOVERNANCE (e.g. voting, jury service, elective office) or positions important to PUBLIC POLICY (e.g. police officers, teachers)—RBR applies.
  • EXCEPT if the law discriminates against ILLEGAL aliens—RBR applies.

Congress has plenary power over aliens, so FEDERAL ALIENAGE classifications are subject to RATIONAL BASIS review

55
Q

Individual rights:

What are the fundamental rights entitled to SS protection?

A

Privacy (CAMPERS)*
Vote
InterSTATE travel
Protected 1st A rights

  • CAMPERS
  • Contraception
  • Abortion
  • Marriage
  • Procreation
  • Education (PRIVATE, not public)
  • Relations (related family)
  • Sexual conduct (private, non-commercial)
56
Q

Individual rights:

State law requires a person to live in the state for 2 years before they can receive state benefits. Is this a valid law?

A

NO

Impairs a fundamental right—INTERSTATE TRAVEL.

Likely doesn’t pass SS.

57
Q

Individual rights:

State law requires a person to live in the state for 30 days before they can vote in state elections. Is this a valid law?

A

YES

Impairs a fundamental right—VOTING.

But would likely pass SS

58
Q

Free speech:

What level of scrutiny applies to a restriction on government speech?

A

RBR

1st A protects PRIVATE speech

59
Q

Free speech:

State gov’t commissions a permanent monument near its capitol. A private person designed and donated the monument and a private company installed it. Govt speech? What level of scrutiny applies?

A

Govt speech—RBR

60
Q

Free speech:

The state of Texas provides funds to student organizations. The students use the funds to engage in speech/assemblies. Can the state allocate funds to some groups and not others based on what the groups advocate?

A

NO—govt funding of private speech must be VIEWPOINT NEUTRAL

EXCEPTION:
- The government can pick certain ARTISTS to promote with public funds (the gov’t can possibly fund all artists, so they have to discriminate somehow, and content is okay)

61
Q

Free speech:

What is the basic framework for a free speech issue?

(non-facial attack)

A

(1) CLASSIFY THE REGULATION:
CN (time, place, manner) or CB?

(2) APPLY SCRUTINY:

CN&raquo_space;> IS-ish

  • Significant gov’t interest
  • Narrowly tailored (leaves open alternate channels, doesn’t burden substantially more speech than necessary)

CB&raquo_space;> SS

62
Q

Free speech:

What are the grounds for a facial attack on a speech regulation?

A
  • Over-breadth
  • Vagueness
  • Prior restraint
  • Unfettered discretion
63
Q

Free speech:

When is this kind of speech un-protected or partially protected?

  • Defamation
  • Commercial speech
A

DEFAMATION:

  • Actual malice&raquo_space;> un-protected
  • Public officials, public matters&raquo_space;> partially protected

COMMERCIAL SPEECH:

  • False, misleading&raquo_space;> un-protected
  • Not false/misleading&raquo_space;> partially protected
64
Q

Free speech:

What is the test for determining whether speech is obscenity (un-protected speech)?

A

Depiction of sexual conduct that, by CONTEMPORARY COMMUNITY STANDARDS:
- Appeals to prurient interest in sex (community standard)
- Is patently offensive (community standard)
AND
- Lacks serious social value (NATIONAL reasonable person standard)

*State has more leeway to define pictures of minors as obscenity

65
Q

Free speech:

What are the limits on zoning power re adult stores?

A
  • Can limit the location or size of adult stores
  • ONLY IF designed to reduce the “secondary effects” of those businesses (e.g. rise in crime rates, drop in property values)
  • CANNOT ban altogether
66
Q

Free speech:

Gov’t can restrict false, or misleading commercial speech (it’s not protected speech). What are the rules regarding partially protected commercial speech?

A

INTERMEDIATE-ish SCRUTINY

  • Substantial government interest
  • Directly advances the interest
  • Narrowly tailored (“reasonable fit”—NOT least restrictive means)
67
Q

Free speech:

When can the government compel commercial speech?

A

Can require advertisers to make certain DISCLOSURES about their products if:

  • Not UNDULY BURDENSOME
  • Reasonably related to preventing DECEPTION
68
Q

Free speech:

Showing prior restraint of speech is one way to facially challenge a free speech regulation. What is required for the prior restraint to be valid?

A

Must be geared toward preventing some SPECIAL SOCIETAL HARM (e.g. the government can prohibit publishing of troop movements during wartime).

69
Q

Free speech:

When can the government keep the press out of a courtroom during trial?

A

BALANCING: the public’s need for information is outweighed by overriding interests (e.g. need for a fair trial)

*The prior restraint should be basically the ONLY way to protect the overriding interest

70
Q

Establishment clause:

What are the two tests for establishment clause issues?

A

(1) STRICT SCRUTINY if the government is preferring one religion over another
(2) LEMON TEST if the government action is facially neutral

71
Q

Establishment clause:

What is the Lemon test?

A

Applies to facially neutral government actions that potentially “establish” a religion.

The gov’t action is VALID ONLY IF:

  • It has a SECULAR PURPOSE
  • Its PRIMARY EFFECT neither advances NOR inhibits religion
  • It does not produce EXCESSIVE ENTANGLEMENT with religion
72
Q

Free exercise clause:

What are the two tests for free exercise clause issues?

A

(1) DISCRIMINATORY (PURPOSEFUL interference with religion, very high standard)
- Apply STRICT SCRUTINY (gov’t will lose)

(2) FACIALLY NEUTRAL (doesn’t treat religious and non-religious people differently)
- Apply RATIONAL BASIS REVIEW (this basically means that the law doesn’t raise 1st A issues)

73
Q

Free speech:

Government has more leeway to regulate speech on public/government property. What are the different classifications of government property?

A
  • Traditional public forum (e.g. parks, streets, sidewalks)
  • Designated public forum (e.g. college student group kiosks)
  • Non-public (e.g. post office, DMV, public airport)
74
Q

Free speech:

Government has more leeway to regulate speech on public/government property.

What level of scrutiny applies for each kind of government property?

A

TRADITIONAL PUBLIC:
- Same rules as general speech regulations (SS if CB, IS if CN)

DESIGNATED PUBLIC
- Same as public forums, until they are un-designated as public forums

NON-PUBLIC:

  • SS if VIEWPOINT-based
  • Otherwise, just has to be REASONABLE given the forum
75
Q

Free speech:

Special rules apply to limiting speech on public school grounds. What are the two tests?

A

(1) STUDENT SPEECH
- Cannot be restricted UNLESS SUBSTANTIAL DISRUPTION (includes promoting illegal drug use)

(2) SCHOOL SPEECH (includes student speech through a school newsletter)
- Restriction must be based on a legitimate TEACHING CONCERN

76
Q

Free exercise:

A state law prohibits ritual slaughter of animals. The purpose was to prevent animal cruelty. Is it constitutional?

A

No—violates the free exercise of religion. The statute bans RITUAL slaughter of animals, so its purpose is to interfere with religion.

77
Q

Free exercise:

A government employer asks a prospective employee about membership in organizations (some might be religious). Does this violate the prospective employee’s religious liberty?

A

No—gov’t employers can ask about organization membership that is relevant to the job, impacts that applicant’s competence and loyalty.

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