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Kaplan Foundation Slides > Kaplan Constitutional Law Foundation Slides > Flashcards

Kaplan Constitutional Law Foundation Slides Flashcards

1
Q

Check Point Items

A

1- Presidential Powers in conflict with other branches
2- State and Federal Laws at Odds
3- Watch for the President using some power from the constitution in an executive agreement and there being a conflict with a federal statute
4- Always make sure your plaintiff challenging a law has standing and that the issue(s) is/are ripe

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2
Q

Federalism - Coverage Areas

A 
1- Federal Judicial Authority
    - Standing
    - Justiciability 
    - Supremacy Clause 
    - Hierarchy of Laws 
2- Powers of Congress
    - Property Power
    - Tax and Spend 
    - Commerce Clause 
3- Powers of President 
     - Executive Orders and Agreements 
     - Commander in Chief 
     - Clemency
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3
Q

Case and Controversy Requirement

A

Federal Court adjudication requires an actual and definite dispute between parties having adverse legal interests

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4
Q

Standing

A

Plaintiff must show a concrete personal stake in the out come.

Constitutional Standard: (1) Injury in fact (i.e., economic, aesthetic, environmental, physical harm; (2) Causation / redressibility

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5
Q

Justiciability elements / Mnemonic is

A 
RAMPS 
Ripeness
Advisory Opinions 
Mootness
Political Questions 
Standing
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6
Q

Justiciability Ripeness

A

For a case to be ripe, there must be a genuine immediate threat of harm

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7
Q

Justiciability Mootness

A

A case is MOOT unless an actual controversy exists at all stages of review, unless the injury is capable of repetition, yet evading review

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8
Q

Justiciability Abstention

A

Federal court will refuse to review a case based on an unsettled issue of state law

Federal court review is prohibited where there are pending state criminal proceedings

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9
Q

Presidential Powers

A
  • Issuance of executive orders which have the binding force of law upon federal agencies
  • Commander in Chief
  • Appointment Powers
  • Emergency Powers
  • Clemency Powers
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10
Q

Hierarch of Laws

A 
1- Constitution 
2- Act of Congress / Treaty
3- Executive Agreement - foreign policy /affairs (but subject to Congressional Acts)
3- Executive Order - domestic policy
4- State Law
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11
Q

Generally wrong answer choices on the MBE Constitutional multiple choice

A

1- General Welfare Clause
2- Necessary and Proper Clause
3- 14th Amendment Privileges and Immunities Clause
4- Contracts Clause
5- Distinction between Rights and Privileges
6- 10th Amendment - Caveat NY v. US

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12
Q

Congressional Delegation of Power

A

1- Congress may delegate the task of implementing its laws to government agencies
2- Allows Congress to indirectly monitor an area which it has passed laws without becoming bogged down in enforcement details:
3- Valid if:
1- Congress passes enabling legislation (state or federal)
2- Specifies the purpose, functions, and powers
3- Describes the procedures of the agency

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13
Q

Supremacy Clause

A

Superseding Doctrine: A federal law will supersede any state law in direct conflict

Preemption doctrine: Any state law in an area where Congress intends to occupy the field is unconstitutional (so the states cannot create any statutes attempting to regulate the area)

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14
Q

To uphold a State Statute as valid is must fall in one of the following categories

A

1- Dormant Commerce Clause

 a. Non-discriminatory
 b. No undue burden on interstate commerce--use a balancing test

2- Police Power–health, safety, welfare, morals, aesthetics of the states citizens

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15
Q

State taxation towards federal government or employees

A
  • The Federal Government is immune from state taxation
  • Federal employees and contractors may be taxed in a state as long as the incidence of the tax does not fall on the Federal government itself
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16
Q

To uphold a Federal Statute is be in one of the following categories

A

1- Supremacy Clause
2- Any enumerated powers of Congress under Article 1, Section 8
3- Federal Property Power

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17
Q

Con Law Approach to every MBE questions, always determine the following:

A
  1. Who is passing the law?
  2. What is the subject matter?
  3. Match the appropriate power
  4. Who is affected by the law?
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18
Q

Property Power gives the Federal Government (Congress) the power

A

Congress has the power to dispose of the territory or other property belonging to the United States

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19
Q

Affectation Doctrine

A

Congress may regulate any activity which has a “substantial economic effect” on interstate commerce

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20
Q

Regulation of Interstate Commerce is constitutional as long as

A

The regulation is (1) Non Discriminatory and (2) Does not place an undue burden on Interstate Commerce

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21
Q

Protection of Individual Rights are

A

Fundamental Rights

- Right to Vote
- Right to Travel
- Right to Privacy 
Equal Protection 
Procedural Due Process
Additional Individual Rights 
    - Ex Post Facto
    - Bill of Attainder
    - Privileges and Immunities Clause of Article IV
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22
Q

Check point items for Individual Rights on the MBE

A

1- Many lesser known powers of Congress has recently been tested
2- Watch out for issues touching on fundamental rights, but not impacting a fundamental right
3- The Commerce Clause allows Congress to regulate even private discrimination, always a good back up to challenges against Constitutionality

23
Q

State Action - Individual Rights

A

the State has a threshold requirement of conduct (by the government) which must be satisfied before private discrimination can be restricted

24
Q

Strict Scrutiny Test defined

A

Strict Scrutiny is the Burden on the government to show that the statute/regulation is NECESSARY to a COMPELLING government interest

25
Q

Strict Scrutiny test is applied to

A 
1- Race
2- National Origin
3- Alienage 
4- Fundamental Rights of Privacy
   - Contraception 
   - Abortion
   - Marriage
   - Procreation
   - Private Education
   - Family Relations 
5- Fundamental Right to Vote
   - Discrimination in voting 
   - Reappoortionment 
   - Switching Party Affiliation 
   - Ballot restrictions based on "special interests" (land ownership)
6- Content Specific Regulation Protected Speech 
   - Free Exercise Methodology--Purposeful Interference by the Government
26
Q

Intermediate Scrutiny Test defined

A

Intermediate Scrutiny is the Burden on the government to show that the regulation is SUBSTANTIALLY RELATED to an IMPORTANT GOVERNMENT INTEREST

27
Q

Intermediate Scrutiny is applied to

A

1- Gender

2- Illegitimacy

28
Q

Rational Basis Scrutiny is defined

A

Rational Basis Scrutiny is the Burden on the plaintiff that the regulation is not rationally related to a legitimate government interest

29
Q

Rational Basis Scrutiny is applied to

A 
1- Poverty
2- Necessities
3- Age
4- Mental Retardation
5- Social and Economic Welfare Measures
30
Q

If a Statute is Neutral on its Face, who has the burden

A

Plaintiff must show:
(1) discriminatory effect, AND (2) discriminatory purpose. To raise the burden of persuasion above rational basis and shift the burden to the government

31
Q

Fundamental Rights of Privacy are (Mnemonic)

A

CAMPER

Fundamental Rights of Privacy

  • Contraception
  • Abortion
  • Marriage
  • Procreation
  • Private Education
  • Family Relations
32
Q

What is Substantive Due Process

A

A term used to classify the source from which the fundamental rights (right to vote, right to travel, right to privacy) derive.

33
Q

Abortion under Casey

A

A state may regulate abortion provided no “undue burden” is placed on a woman’s right to obtain an abortion

34
Q

Fundament Right to Vote

A

Apply Strict Scrutiny:

  • Discrimination in voting
  • Reappoortionment
  • Switching Party Affiliation
  • Ballot restrictions based on “special interests” (land ownership)
35
Q

Non-Fundamental Voting Rights

A

Apply Rational Basis:

  • The right to be a candidate
    (1) payment of a filing fee
    (2) minimum and maximum age restrictions
36
Q

Article IV Privileges and Immunities

A

Prevents economic discrimination by one state against citizens or residents of another state, UNLESS a substantial government interest exists

37
Q

Taking (by government) defined

A

A regulation that denies the owner (private citizen) all reasonable economically viable use of his land constitutes a Taking

38
Q

“Public Use” Requirement defined

A

Burden on the government to show the measure of the Taking is rationally related to any conceivable purpose

To qualify as a “public purpose” the property does not have to be held out for use by the general public

39
Q

Bill of Attainder is defined as

A

Legislative punishment of a named group or individual without judicial trial

40
Q

Procedural Due Process

A

The procedural safeguards of notice and a hearing are available whenever there is a serious deprivation of any life, liberty, or property interest

41
Q

Ex Post Facto Laws are defined as

A

Unconstitutional criminal laws that: (1) make criminal conduct that was not a crime when committed a crime subsequently; or (2) Decrease the amount of evidence needed to convict/change the procedure(s) for conviction after a crime has been committed

42
Q

First Amendment Protection - Coverage Areas

A
  • Free Exercise Clause
  • Commercial Speech
  • Freedom of Expression
  • Unprotected Speech
  • Freedom of Religion
  • Establishment Clause
43
Q

Check point items on the MBE for First Amendment Protection

A
  • Recently, many First Amendment questions dealt with religion and advertising
  • Many questions were crossing over between fundamental rights and first amendment issues
  • Make sure you know who is passing the law, what groups are being affected by the law, and the purpose of the law-many questions hinge on these distinctions
44
Q

Content Specific Regulation Protected Speech test is

A

Apply Strict Scrutiny

45
Q

Unprotected Speech includes

A
  1. Clear and Present Danger
  2. Defamation
  3. Obscenity
  4. Child Pornography
  5. Fighting Words
  6. Fraudulent Commercial Speech
46
Q

Content Neutral Regulation applies to

A

Regulation of Time, Place, Manner (Method)

47
Q

Content Neutral Regulation (by the Government) of Time, Place, Manner (Method) test requires

A

Apply 3-part test. Regulation by the Government must:
1- Further a significant government interest
2- Be narrowly tailored, AND
3- Leave open alternative channels of communication

48
Q

4 Facial Attacks on Protected Speech are

A
  1. Over Breadth
  2. Vagueness
  3. Prior Restraints
  4. Unfettered Discretion
49
Q

Public Speaking Forums are categorized as:

A

1- Public Forum

  • Streets
  • Sidewalks
  • Public Parks
  • Areas generally open to the public

2- Limited Public Forum
- School rooms (opened by state on permanent / limited basis)

3- Non Public Forum

  • Most other public places
    - Military bases
    - City Bus
    - Government workplaces
    - Airport terminals
50
Q

Vice Advertising (Central Hudson)

A

Government regulation must:

  1. Directly Advance
  2. A substantial Governmental Interest AND
  3. Narrowly tailored
51
Q

Free Exercise Methodology categories

A

(1) Purposeful Interference by the Government (apply strict scrutiny test)
(2) Incidental burden (apply rational basis test)

52
Q

Establishment Clause (Lemon v. Kurtzman). In order not to violate the Lemon Test

A
  1. The primary purpose must be secular (Purpose Prong)
  2. Primary effect must neither inhibit nor advance religion (Effect Prong)
  3. No excessive government entanglement with religion (Entanglement Prong)
53
Q

The Establishment Clause

A

The Establishment Clause has generally been interpreted to prohibit 1) the establishment of a national religion by Congress, or 2) the preference by the U.S. government of one religion over another. The first approach is called the “separation” or “no aid” interpretation, while the second approach is called the “non-preferential” or “accommodation” interpretation. The accommodation interpretation prohibits Congress from preferring one religion over another, but does not prohibit the government’s entry into religious domain to make accommodations in order to achieve the purposes of the Free Exercise Clause.

54
Q

Lemon v. Kurtzman

A

A case in which the Supreme Court of the United States ruled that Pennsylvania’s 1968 Nonpublic Elementary and Secondary Education Act (represented through David Kurtzman), which allowed the state Superintendent of Public Instruction to reimburse nonpublic schools (most of which were Catholic) for the salaries of teachers who taught secular material in these nonpublic schools, secular textbooks and secular instructional materials, violated the Establishment Clause of the First Amendment.

The Court found that the parochial school system was “an integral part of the religious mission of the Catholic Church,” and held that the Act fostered “excessive entanglement” between government and religion, thus violating the Establishment Clause.

Kaplan Foundation Slides (7 decks)

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