MBE Approach

Question 1

What are the executive’s domestic powers?

Answer 1

Limited: 1. Appoint high level officers with Senate approval; 2. pardon federal officers; 3. veto bills

Question 2

What are the executives foreign powers?

Answer 2

Broad

1. can act militarily but CN declare war
2. represent US in foreign relations
3. enter into treaties with 2/3 senate approval

Question 3

If a treaty conflicts with federal law, which prevails?

Answer 3

that which is last in time

Question 4

If a treaty conflicts with the Cosntitution, which prevails?

Answer 4

the Constitution

Question 5

What are the big legislative powers?

Answer 5

1. Tax and spending power

2. Interstate commerce power

Question 6

What are the limits of the taxing power?

Answer 6

It must bear some reasonable relatioship to revenue production or be within Congress’s regulatory power

Question 7

What are the limits to the spending power? What should it not be confused with?

Answer 7

Congress can spend based on the general welfare; however, DN confuse with police power!

Congress can SPEND on any purpose for the genreral welfare; however, Congress CN pass laws for the general welfare –> that’s the police power (States)

Question 8

What is the interstate commerce power?

Answer 8

a plenary power to regulate all foreign and interstate commerce

Question 9

When can Congress regulate commerce?

Answer 9

1. channels of interstate commerce
2. instrumentalities of interstate commerce
3. economic activity, where there is a substantial effect on interstate commerce in the aggregate

Question 10

is possession of a gun an economic activity?

Answer 10

nope

Question 11

What are the important states/municipality powers?

Answer 11

1. Dormant Commerce Clause
2. Priviliges and Immunities Clause of Art. IV
3. Priviliges and Immunities of 14A

Question 12

What does the 11A do?

Answer 12

Prohibits federal courts from hearing a private citizens or foreign nation’s case against a State

Question 13

When can a state regulate commerce?

Answer 13

If Congress has not yet regulated and IF:

1. Law does not discriminate against interstate commerce; or
2. unduly burden interstate commerce

**there are exceptions

Question 14

What are the exceptions to the dormant commerce clause?

Answer 14

States may discriminate against out of state biz if:

(1) state is acting as a market participant, OR
(2) if the discrimination is important for a non-economic state interest and no other reasonable alternatives exist

Question 15

What if a law is neutral on its face but it unduly burdens interstarte commerce?

Answer 15

it’s invalid

balancing test: does the burden on interstate commerce outweigh the state interest involved? are there any less restrictive means available?

Question 16

What does the Priviliges and Immunities Clause of Art. IV do?

Answer 16

Protects OUT OF STATE citizens from a state denying them important economic interests; only applies to people, N biz

Question 17

What does the Priviliges and Immunities Clause of 14A do?

Answer 17

Prohibits states from denying THEIR OWN citizens rights; based on the right to travel from state in the 14A

Question 18

Is a private actor who receives government money or a government license act convert their activity into state action?

Answer 18

no, not by itself. need more factors.

Question 19

What Equal Protection do?

Answer 19

prevents the government from engaging in UNREASONABLE discrimination

Question 20

What are the strict scrutiny classifications?

Answer 20

Race, alienage, nat’l origin

Question 21

What is the test for strict scrutiny?

Answer 21

government action must be NECESSARY to achieve a COMPELLING state interest

Question 22

What are the intermediate scrutiny classifications?

Answer 22

Gender, legitimacy

Question 23

What is the test for intermediate scrutiny?

Answer 23

government action must be SUBSTANTIALLY RELATED to serving an IMPORTANT government interest

Question 24

What must the plaintiff show re: intermediate scrutiny?

Answer 24

the law is:

• discriminatory on its face
• applied in a discriminatory manner
• discriminatory motive behind the law

***discriminatory effects are NOT sufficient

Question 25

what do all other classifications receive? what is the test?

Answer 25

rational basis: Claimant must show discrimination is NOT rationally related to a legitimate government interest

Question 26

Equal Protection applies to both the federal and state gov't?

Answer 26

no, only prevents States from engaging in unR discrimination

Question 27

What does the 5A prevent?

Answer 27

prevents the FEDERAL GOV'T from engaging in unR discrimination (distinct from EP)

Question 28

What are the two types of due process?

Answer 28

1. substantive DP | 2. procedural DP

Question 29

When does substantive DP apply/what is substantive DP?

Answer 29

Applies when government infringing on someone's liberty interest or a fundamnetal right and it applies to everyone across the board **remember, when gov impinging on a fundamental right, apply strict scrutiny

Question 30

what are the fundamental privacy rights?

Answer 30

CAMPERS - Contraception - Abortion - Marriage - Procreation - Education, Private - Relations family (nuclear fam can live in same HH) - Sexual contact

Question 31

What test applies to privacy rights?

Answer 31

Strict scrutiny, except (1) contraception and (2) abortion

Question 32

What is the test for abortion?

Answer 32

The gov may not place an undue burden on a woman prior to viability

Question 33

what is the test for sexual contact?

Answer 33

no specific standard, but SCOTUS has concluded that gov has no legitimate interest in this area (non-commercial sex)

Question 34

What are the fundamental rights?

Answer 34

1. Privacy rights 2. Right to vote 3. Right to travel

Question 35

Which law restricts the States from violating DP?

Answer 35

14A DP Clause

Question 36

Which law restricts the USFG from violating DP?

Answer 36

5A (test is same as for 14A DP)

Question 37

What is procedural due process?

Answer 37

violated when government denies life, liberty, or property interest without notice or a fair hearing, i.e. there must be a proper procedure in place

Question 38

what is considered "property"?

Answer 38

continued attendance in public school welfare benefits gov't employment when the k provides for continued work

Question 39

What test to apply if the go is limiting the speech for its content?

Answer 39

Strict scrutiny - unless speech is in an unprotected category, like fighting words or obsencity, ***review rules for unprotected speech - rationale is that we want to encourage a free marketplace of ideas

Question 40

what test to apply if gov is limiting speech re: time, place, or manner?

Answer 40

1. Public forums: regulation valid if: (1) content neutral (2) narrowly tailored to serve important government interest (3) alternative channels of communication exist 2. non-public forum: regulation valid if: (1) viewpoint neutral and (2) R related to a legitimate gov't interest

Question 41

What are examples of public forums?

Answer 41

streets, sidewalks, parks,

Question 42

what are examples of non public forums?

Answer 42

public schools, gov't officials' offices, military bases

Question 43

what are examples of designated public forums?

Answer 43

public schools used for pubic meetings, i.e. the boyscouts

Question 44

what test for designated public forums?

Answer 44

public forum test

Question 45

limited public forum?

Answer 45

apply NPF

Question 46

if the government is restricting religion, what test applies?

Answer 46

the free exercise clause

Question 47

if the gov't is supporting a religion, what test applies?

Answer 47

establishment clause

Question 48

what is valid/invalid under the free exercise?

Answer 48

if it's generally applicable to all religions, then the regulation is valid. if it's specifically targeting one, it's invalid.

Question 49

what is the test for an establishment issue?

Answer 49

Lemon test 1. secular purpose? 2. primary effect that neither advances nor inhibits religion? 3. no excessive entanglement