Kaplan Constitutional Law Foundation Slides Flashcards
Check Point Items
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
Federalism - Coverage Areas
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
- ClemencyCase and Controversy Requirement
Federal Court adjudication requires an actual and definite dispute between parties having adverse legal interests
Standing
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
Justiciability elements / Mnemonic is
RAMPS Ripeness Advisory Opinions Mootness Political Questions Standing
Justiciability Ripeness
For a case to be ripe, there must be a genuine immediate threat of harm
Justiciability Mootness
A case is MOOT unless an actual controversy exists at all stages of review, unless the injury is capable of repetition, yet evading review
Justiciability Abstention
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
Presidential Powers
- Issuance of executive orders which have the binding force of law upon federal agencies
- Commander in Chief
- Appointment Powers
- Emergency Powers
- Clemency Powers
Hierarch of Laws
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
Generally wrong answer choices on the MBE Constitutional multiple choice
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
Congressional Delegation of Power
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
Supremacy Clause
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)
To uphold a State Statute as valid is must fall in one of the following categories
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
State taxation towards federal government or employees
- 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
To uphold a Federal Statute is be in one of the following categories
1- Supremacy Clause
2- Any enumerated powers of Congress under Article 1, Section 8
3- Federal Property Power
Con Law Approach to every MBE questions, always determine the following:
- Who is passing the law?
- What is the subject matter?
- Match the appropriate power
- Who is affected by the law?
Property Power gives the Federal Government (Congress) the power
Congress has the power to dispose of the territory or other property belonging to the United States
Affectation Doctrine
Congress may regulate any activity which has a “substantial economic effect” on interstate commerce
Regulation of Interstate Commerce is constitutional as long as
The regulation is (1) Non Discriminatory and (2) Does not place an undue burden on Interstate Commerce
Protection of Individual Rights are
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
Check point items for Individual Rights on the MBE
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
State Action - Individual Rights
the State has a threshold requirement of conduct (by the government) which must be satisfied before private discrimination can be restricted
Strict Scrutiny Test defined
Strict Scrutiny is the Burden on the government to show that the statute/regulation is NECESSARY to a COMPELLING government interest
Strict Scrutiny test is applied to
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
Intermediate Scrutiny Test defined
Intermediate Scrutiny is the Burden on the government to show that the regulation is SUBSTANTIALLY RELATED to an IMPORTANT GOVERNMENT INTEREST
Intermediate Scrutiny is applied to
1- Gender
2- Illegitimacy
Rational Basis Scrutiny is defined
Rational Basis Scrutiny is the Burden on the plaintiff that the regulation is not rationally related to a legitimate government interest
Rational Basis Scrutiny is applied to
1- Poverty 2- Necessities 3- Age 4- Mental Retardation 5- Social and Economic Welfare Measures
If a Statute is Neutral on its Face, who has the burden
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
Fundamental Rights of Privacy are (Mnemonic)
CAMPER
Fundamental Rights of Privacy
- Contraception
- Abortion
- Marriage
- Procreation
- Private Education
- Family Relations
What is Substantive Due Process
A term used to classify the source from which the fundamental rights (right to vote, right to travel, right to privacy) derive.
Abortion under Casey
A state may regulate abortion provided no “undue burden” is placed on a woman’s right to obtain an abortion
Fundament Right to Vote
Apply Strict Scrutiny:
- Discrimination in voting
- Reappoortionment
- Switching Party Affiliation
- Ballot restrictions based on “special interests” (land ownership)
Non-Fundamental Voting Rights
Apply Rational Basis:
- The right to be a candidate
(1) payment of a filing fee
(2) minimum and maximum age restrictions
Article IV Privileges and Immunities
Prevents economic discrimination by one state against citizens or residents of another state, UNLESS a substantial government interest exists
Taking (by government) defined
A regulation that denies the owner (private citizen) all reasonable economically viable use of his land constitutes a Taking
“Public Use” Requirement defined
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
Bill of Attainder is defined as
Legislative punishment of a named group or individual without judicial trial
Procedural Due Process
The procedural safeguards of notice and a hearing are available whenever there is a serious deprivation of any life, liberty, or property interest
Ex Post Facto Laws are defined as
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
First Amendment Protection - Coverage Areas
- Free Exercise Clause
- Commercial Speech
- Freedom of Expression
- Unprotected Speech
- Freedom of Religion
- Establishment Clause
Check point items on the MBE for First Amendment Protection
- 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
Content Specific Regulation Protected Speech test is
Apply Strict Scrutiny
Unprotected Speech includes
- Clear and Present Danger
- Defamation
- Obscenity
- Child Pornography
- Fighting Words
- Fraudulent Commercial Speech
Content Neutral Regulation applies to
Regulation of Time, Place, Manner (Method)
Content Neutral Regulation (by the Government) of Time, Place, Manner (Method) test requires
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
4 Facial Attacks on Protected Speech are
- Over Breadth
- Vagueness
- Prior Restraints
- Unfettered Discretion
Public Speaking Forums are categorized as:
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
Vice Advertising (Central Hudson)
Government regulation must:
- Directly Advance
- A substantial Governmental Interest AND
- Narrowly tailored
Free Exercise Methodology categories
(1) Purposeful Interference by the Government (apply strict scrutiny test)
(2) Incidental burden (apply rational basis test)
Establishment Clause (Lemon v. Kurtzman). In order not to violate the Lemon Test
- The primary purpose must be secular (Purpose Prong)
- Primary effect must neither inhibit nor advance religion (Effect Prong)
- No excessive government entanglement with religion (Entanglement Prong)
The Establishment Clause
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.
Lemon v. Kurtzman
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.
