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Constitutional Law > MBE Approach > Flashcards

MBE Approach Flashcards

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1
Q

What are the executive’s domestic powers?

A

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

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2
Q

What are the executives foreign powers?

A

Broad

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

If a treaty conflicts with federal law, which prevails?

A

that which is last in time

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4
Q

If a treaty conflicts with the Cosntitution, which prevails?

A

the Constitution

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5
Q

What are the big legislative powers?

A
  1. Tax and spending power

2. Interstate commerce power

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6
Q

What are the limits of the taxing power?

A

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

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7
Q

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

A

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)

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8
Q

What is the interstate commerce power?

A

a plenary power to regulate all foreign and interstate commerce

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9
Q

When can Congress regulate commerce?

A
  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
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10
Q

is possession of a gun an economic activity?

A

nope

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11
Q

What are the important states/municipality powers?

A
  1. Dormant Commerce Clause
  2. Priviliges and Immunities Clause of Art. IV
  3. Priviliges and Immunities of 14A
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12
Q

What does the 11A do?

A

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

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13
Q

When can a state regulate commerce?

A

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

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14
Q

What are the exceptions to the dormant commerce clause?

A

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

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15
Q

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

A

it’s invalid

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

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16
Q

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

A

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

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17
Q

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

A

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

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18
Q

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

A

no, not by itself. need more factors.

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19
Q

What Equal Protection do?

A

prevents the government from engaging in UNREASONABLE discrimination

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20
Q

What are the strict scrutiny classifications?

A

Race, alienage, nat’l origin

21
Q

What is the test for strict scrutiny?

A

government action must be NECESSARY to achieve a COMPELLING state interest

22
Q

What are the intermediate scrutiny classifications?

A

Gender, legitimacy

23
Q

What is the test for intermediate scrutiny?

A

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

24
Q

What must the plaintiff show re: intermediate scrutiny?

A

the law is:

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

***discriminatory effects are NOT sufficient

25
Q

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

A

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

26
Q

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

A

no, only prevents States from engaging in unR discrimination

27
Q

What does the 5A prevent?

A

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

28
Q

What are the two types of due process?

A
  1. substantive DP

2. procedural DP

29
Q

When does substantive DP apply/what is substantive DP?

A

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

30
Q

what are the fundamental privacy rights?

A

CAMPERS

  • Contraception
  • Abortion
  • Marriage
  • Procreation
  • Education, Private
  • Relations family (nuclear fam can live in same HH)
  • Sexual contact
31
Q

What test applies to privacy rights?

A

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

32
Q

What is the test for abortion?

A

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

33
Q

what is the test for sexual contact?

A

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

34
Q

What are the fundamental rights?

A
  1. Privacy rights
  2. Right to vote
  3. Right to travel
35
Q

Which law restricts the States from violating DP?

A

14A DP Clause

36
Q

Which law restricts the USFG from violating DP?

A

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

37
Q

What is procedural due process?

A

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

38
Q

what is considered “property”?

A

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

39
Q

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

A

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
40
Q

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

A
  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
41
Q

What are examples of public forums?

A

streets, sidewalks, parks,

42
Q

what are examples of non public forums?

A

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

43
Q

what are examples of designated public forums?

A

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

44
Q

what test for designated public forums?

A

public forum test

45
Q

limited public forum?

A

apply NPF

46
Q

if the government is restricting religion, what test applies?

A

the free exercise clause

47
Q

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

A

establishment clause

48
Q

what is valid/invalid under the free exercise?

A

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

49
Q

what is the test for an establishment issue?

A

Lemon test

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

Constitutional Law (3 decks)

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