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MBE > MBE Con Law > Flashcards

MBE Con Law Flashcards

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1
Q

MBE

Strict Scrutiny

A

Government burden to prove law is necessary to achieve COMPELLING interest.

Race
Alienage
National Origin

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2
Q

MBE

Intermediate Scrutiny

A

Government burden to prove law SUBSTANTIALLY related to IMPORTANT interest

Gender
Illegitimacy (Kids out of wedlock)

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3
Q

MBE

Rational Basis

A

Plaintiff has burden to show law is NOT RATIONALLY related to LEGITIMATE interest

Everyone else

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4
Q

**Types of due process: **
No person shall be deprived of life, liberty, and Property without Due Process

A

Procedural
(Property Interest)

If a property right is taken away, person shall have a right to NOTICE and right to a HEARING.

Needs to affect at least 1 person.

Property Rights: Job, license, benefits

Substantive
(Liberty Interest)

Statute depriving ALL PEOPLE of doing something.

Government taking away one of our rights – limiting everyone.

If fundamental right - Strict Scrutiny – If not, Rational Basis

Privacy Rights: CAMPER
Contraption Abortion Marriage Procreation Education Right to Raise Family

Other Fundamental Rights:
Right to vote – Right to free speech – Right to Interstate travel

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5
Q

MBE

Free Exercise of Religion

A

INDIVIDUALS have the right to exercise their religion any manner they choose, as long as they do not violate the law.

Look for intent of government action – intent to stop someone from practicing.

If government has reason – then ok. If not, then not ok.

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6
Q

MBE

**Establishment Clause **
Gov cant choose one religion over another

A

Government making a law which may be too closely related to religion.

Apply LEMON test:
1) Statute has secular purpose – non religious and
2) Government cannot promote or inhibit particular religion – must be neutral and
3) Government cannot get too “entangled” with religion.

Example: tax breaks, cannot promote or sponsor religions

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7
Q

MBE

1st Amendment
Gov cant ban speech but can regulate it.

A

Content Based –> strict scrutiny
Content Neutral –> Intermediate scrutiny

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8
Q

MBE

Content Based Speech Regulation

A

Government regulates the words we are saying

strict scrutiny

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9
Q

MBE

Content Neutral Speech Regulation

A

Government regulating the time, place, and manner.

As long as the message gets out – it is reasonable.

For reasonable, government must:
1. Have significant or important interest and
2. Leaves open alternative means of expression

intermediate scrutiny

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10
Q

MBE

Separation of Powers

A

One branch cannot encroach on another branch.

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11
Q

MBE

Executive Branch Powers
(President)

A
  1. Pardon
    Only Federal Crimes
  2. Veto
  3. Appointment
    • Can appoint judges, ambassadors, and anyone with executive power.
    • Can jointly appoint with congress but without executive power.
    • Executive powers – rules, regulations, and prosecution.
  4. Commander in Chief
    • Cannot declare war
  5. Executive Order
    • Domestic matters (Federal Law Supersedes)
  6. Executive Agreement
    • International matters (Federal Law Supersedes)
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12
Q

MBE

Legislative Branch Powers
(Congress)

A
  1. Commerce
    • Interstate – very big power
    • Controls making, shipping, retailing of goods.
  2. Taxing
    • Raises revenue for general welfare
  3. Spending
    • Can spend for the general welfare
  4. Coin Money
    • Currency
  5. Federal Land
    • All federal property - all Washington D.C.
    • Can be developed, or undeveloped land.
  6. War
    • Power to declare war
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13
Q

MBE

Judicial Branch Powers
(Supreme and Federal Courts)

A

Original Jurisdiction
- Congress cannot enlarge or restrict original jurisdiction.

Appellate Jurisdiction
- Congress may modify appellate jurisdiction.

Supreme Court
- Congress cannot touch the supreme court.

Lower Federal Courts
- Congress can create more or less court – can’t tell them what to do.

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14
Q

MBE

State Rights: 10th amendment & comandeering rule

A

10th Amendment:
When there is no conflict between Federal and State Law, the State can be stricter - never less than federal.

When no federal law, State can exercise its police power to provide for the health, safety and welfare of the citizens.

There are no such thing as federal police power!

Congress cannot pass a law for general welfare – can only spend and tax!

Commandeer Rule:
Congress cant require a state to do anything!

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15
Q

MBE

Privileges and Immunities Clause

A

Privileges and Immunities Clause:
When one state discriminates against residents of another state

Residents vs. Non-Residents

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16
Q

MBE

Limitations on Bringing Cases to Federal Court

A
  1. Standing: Must have an actual injury – must be personal, at stake.

Ok if (1) difficult for 3rd party cant assert thier own rights or (2) close relationship.

  1. State Action: Defendant must be a State Actor. Cannot be a private person.
    Exception: 13th Amendment – racial discrimination not allowed by state/government/ private.
  2. Mootness: Case is over – nothing left to litigate.
  3. Ripeness: o Case is not ready for trial – too soon.
    Example: law hasn’t passed yet.
17
Q

MBE

Dormant Commerce Clause

A

State passes law which discriminates against out of state businesses.

Exception:
1) Market Participant: State runs and controls the business.
2) Congress allows it.

18
Q

MBE

Bill of Attainer

A

1) State passes a law naming a person or group and
2) Punishes them with civil/criminal penalties.

19
Q

MBE

Ex Post Facto

A

State makes conduct that was legal when the person did it into illegal and retroactively.

20
Q

MBE

5th vs 14th Amendment

A

5th Amendment - Congress Power

14th Amendment - State Power

21
Q

MBE

Standing: Congress v. President

A

No standing for presidental spending.

Only have standing for congress spending.

22
Q

MBE

Sovereign Immunity: 11th amendment

A

a private party suit against a state in federal and state courts.

States can be sued if they consent to it.

Can sue city or county, police departments - they have no sovereign immunity.

23
Q

MBE

21st Amendment - State control over intoxicating liquor

A

state government has the wibe discretion over the importation of liquor and the conditions under which it is sold or used within the state.

Violates commernce is its only for an economic preference.

24
Q

MBE

State taxation of interstate commerce

A

Use tax: tax on goods purchased outside of the states, but used within. Ok but cant be higher than sales tax.

**Sales tax: **tax on sale of goods consummated within the good. Ok if there is substantial nexus to the taxing state and the tax is properly appointed.

Ad Volorem Tax: tax on assessed value of some property.

Commodities: valid only if property is no longer in interstate commerce.

instrumentalities: valid if instrumentality has “taxable situs” in state and tax is fairly apportioned.

Privliege, License, Franchise, and Occupational Tax: valid if (1) substantial nexus to taxing state, (2) fairly apportioned, (3) does not descriminate against interstate commerce, and (5) fairly relates to services provided by the state.

This is a tax placed on activities (ex. doing business)

25
Q

MBE

Gerrymandering

A

race cannot be the predominant factor in drawing the boundaries of voting districts unless the district plan can satisfy strict scrutiny.

26
Q

MBE

Candidates and Campaigns

A

Fees: States cant charge candidates a fee that makes it impossible for indigents to run for office.

Restrictions: ballot access regulation must be reasoanvle and nondiscriminatory. A state may require candidates to show reasoanble support to have thier names placed on the ballot.

27
Q

MBE

Right to bear arms

A

government must justify the regulation by demonstrating it is consistent with the country’s historical tradition of firearm regulation.

28
Q

MBE

Takings Clause: 4th and 14th amendment

A

Private property may be taken:
1. for public use and
2. the government must pay just compensation.

Emergency is not a taking!

Partial/ temporary taking might be ok!

29
Q

MBE

Retroactive Legislation: Contract Clause

A

states and local govenrment cannot enact laws that retroacitvely impair contract rights

Federal gov can do w/e the fuck they want.

Private contracts: intermediate scrutiny

Public contracts: hightened scrutiny - intermediate

30
Q

MBE

Incitement

A

Speech can be regulated as incitement if it is:
1. intended to produce imminent lawless action and
2. likely to procude such action

31
Q

MBE

Obscenity

A

Speech is obscene or dipicts sexual conduct specified by statute that:
1. apeals to the pruriest interest in sex, using a comtemporary community standard
2. is patently offensive under contemporary community standard and
3. lacks serious value (literary, artistic, political, or scientific) using a national, reasoanble person standard.

mere nudity, soft-core porn, and “dirty words” are not obscene.

Children pornography: must involve actual children and always obscene.

32
Q

MBE

Defamatory speech

A
  1. Public official or
  2. public figure or
  3. involves a matter of public concern and
  4. falsity

Public Official:
Must show actual malice (reckless disregard of the actual truth)
1. knowledge that it was false or
2. reckless disregard for the truth or falsity

Public Figures:
1. assume role of prominence in society or
2. achieved pervasive fame and notoriety or
3. thrust themselves into particular public controversies to influence thier resolution.

Matters of public concern:
1. case by case basis - look at content, form, and context of the publication.

Public figure suing on matter of private concern:
1. can recover for any damages that state law allows even if they cant show actual malice. - no need to show actual malice.

Intentional infliction of emotional distress: Actual malice for recovery under IIED - doesnt matter if public figure, official, or speech as a matter of public concern.

33
Q

MBE

Some commercial speech

A

ex. advertisement, promotions, or products and services, branc marketing)

Not protected speech if it:
1. false
2. misleading or
3. illegal product or services

May be upheld if:
1. substantial government interest,
2. directly advances
3. narrowly tailored.

MBE (8 decks)

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