MBE Con Law Flashcards
If an electoral regulation is challenged under either constitutional provision, the standard for evaluating that regulation depends on the severity of the burden imposed.
A court will apply either:
rational basis review – applies to reasonable, nondiscriminatory burdens and requires the challenger to prove that the regulation is not rationally related to a legitimate state interest or
strict scrutiny – applies to severe or discriminatory burdens and requires the state to prove that its regulation is the least restrictive means of achieving a compelling state interest.
Inferior Officers (Independent Counsel, Judicial Clerk, Administrative Law Judge),
can be Appointed by President (with Senate approval) unless Congress delegates appointment to:
(1) the President alone;
(2) Federal Courts; or
(3) Heads of Executive Departments
a five-member commission whose work is supervised by the Secretary of Homeland Security, a principal federal officer, constitutes what type of officers?
INFERIOR federal officers because their work is supervised by a Principal Federal Officer
The commerce clause grants Congress broad power to regulate interstate commerce—including activities (even in-state activities) that substantially affect interstate commerce.
When determining if activities have a substantial effect on interstate commerce that warrants regulation by Congress, courts consider whether:
“Every Jurisdiction Finds Links”
- the activities are ECONOMIC in nature (if so, a substantial effect is presumed);
- the regulation has a JURISDICTIONAL ELEMENT that LIMITS ITS REACH to activities with a DIRECT CONNECTION/or EFFECT on I/C;
- there’s CONGRESSIONAL FINDINGS concerning the activities’ effect on I/C;
and
- a strong LINK between REGULATED activity <–> and the EFFECT
Constitutional requirements (excluding the Thirteenth Amendment) only apply to government conduct. But under the state-action doctrine, a private actor is considered a government actor (and bound by the Constitution) when:
- the private actor PERFORMS a TRADITIONAL + EXCLUSIVE GOVERNMENT function
OR
- the government is SIGNIFICANTLY INVOLVED in private actor’s ACTIVITIES (more than just funding or licensing)
The Article IV privileges and immunities clause prohibits states from discriminating against citizens of other states by denying them a right of state citizenship.
Who does not qualify under this Article?
Corporations (like cruise lines) b/c they are not considered citizens
The Dormant Commerce Clause would be an argument under
Article I Commerce Clause
The Article I commerce clause empowers Congress to regulate interstate commerce. It also carries a negative implication (i.e., the dormant commerce clause), which prohibits states from (1) discriminating against out-of-state commerce or (2) otherwise unduly burdening interstate commerce.
Even when Congress authorized conduct that would otherwise violate the Dormant Commerce Clause (DCC), states must comply with other constitutional provisions which includes
The 14th Amendment EP clause, which subjects discriminatory state taxes to RATIONAL BASIS REVIEW—i.e., the state tax must be RATIONALLY RELATED to a legitimate state interest.
And in Metropolitan Life Ins. Co. v. Ward, SCOTUS held that promoting in-state business by discriminating against out-of-state business is NOT a legitimate government interest. (Failed RBR)
Discriminatory STATE taxes –> subject to RBR (EP Clause of 14th Amendm
A federal officer is someone who
(1) holds a continuing public office and
(2) has significant discretionary authority to administer or enforce laws (i.e., executive powers).
The Fourteenth Amendment prohibits Congress from revoking the U.S. citizenship of any U.S. citizen without his/her consent unless
that citizenship was obtained by fraud or in bad faith
Congress has plenary (i.e., exclusive) power to regulate naturalization—i.e., the process through which noncitizens obtain U.S. citizenship. But the Fourteenth Amendment limits this power by prohibiting Congress from revoking the citizenship of any U.S. citizen without his/her consent unless that citizenship was obtained by fraud or in bad faith.
All federal officers must be appointed by
the President or in a manner otherwise consistent with the Article II appointments clause
Under this clause, Congress cannot appoint federal officers because Congress’s participation in this executive function would violate the separation of powers doctrine.
SCOTUS has stated that certain government restrictions on firearms are permissible, including:
– banning unusually dangerous firearms (e.g., grenades)
– imposing conditions and qualifications on commercial sales of firearms
– forbidding the possession of firearms by felons and mentally ill individuals and
– prohibiting the open carry of firearms in certain areas (e.g., schools) or concealed carry of firearms in public.
**Don’t apply Rational Basis review or Strict Scrutiny to 2nd amendment analysis
Every constitutional right applies to states and municipalities except
(1) the 3rd Amendment ban on quartering soldiers in homes,
(2) the 5th Amendment requirement of a grand jury indictment for capital charges, and
(3) the 7th Amendment guarantee of a civil jury trial
The Federal Government enjoys sovereign immunity from being sued as a party in
suits seeking COMPENSATORY MONETARY RELIEF $
but NOT from suits seeking prospective INJUNCTIVE relief
Does an “at-will” government employee have a property interest in employment (procedural due process rights)?
No;
The employee would have a property interest in his or her employment if the employee could only be fired for cause.
Hypo/question: City charter saying “all employees of the city work at the pleasure of the mayor” –> City employee did not have property interest b/c this made him an at-will employee
An at-will government employee cannot be fired for his political views or affiliations unless
they are relevant to the employee’s job
When a state regulation affects interstate commerce (and is not otherwise authorized by a Federal law), it must satisfy the following (3) elements to avoid violating the Dormant Commerce Clause
1) the regulate must pursue a LEGITIMATE state interest/end;
2) the regulation must be RATIONALLY RELATED to that legitimate state interest/end
3) the regulatory BURDEN imposed by the state on interstate commerce must be OUTWEIGHED by the state’s interest in enforcing its regulation
*Courts frown on intentional discrimination against out-of-staters… HOWEVER, a discriminatory state or local law may be valid if:
1) it furthers an important, non-economic state interest (e.g. health or safety); and
2) there are NO reasonable alternatives available
Courts frown on intentional discrimination against out-of-staters… HOWEVER, a discriminatory state or local law may be valid if:
1) it furthers an important, non-economic state interest (e.g. health or safety); and
2) there are NO reasonable alternatives available
(Dormant Commerce Clause analysis–don’t forget Rational Basis Review included too)
A company wanted to expand the size of the building it owned that housed the company’s supermarket by adding space for a coffeehouse. The company’s building was located in the center of five acres of land owned by the company and devoted wholly to parking for its supermarket customers.
City officials refused to grant a required building permit for the coffeehouse addition unless the company established in its store a child care center that would take up space at least equal to the size of the proposed coffeehouse addition, which was to be 20% of the existing building. This action of the city officials was authorized by provisions of the applicable zoning ordinance.
In a suit filed in state court against appropriate officials of the city, the company challenged this child care center requirement solely on constitutional grounds. The lower court upheld the requirement even though the city officials presented no evidence and made no findings to justify it other than a general assertion that there was a shortage of child care facilities in the city. The company appealed.
The court hearing the appeal should hold that the requirement imposed by the city on the issuance of this building permit is
“ROUGH PROPORTIONALITY TEST” (5th Amendment Takings Clause)
Burden –> On the City
Standard –> Rough Proportionality
UNCONSTITUTIONAL –> Burden was on the CITY to demonstrate a ROUGH PROPORTIONALITY between this REQUIREMENT and the IMPACT of the COMPANY’s PROPOSED ACTION on the community,
and the city failed to do so
Congress passed a statute providing that parties could no longer seek review in the U.S. Supreme Court of final judgments in criminal matters made by the highest court in each state.
What is the best argument supporting the constitutionality of the statute?
A: Congress has the power to make exceptions to the appellate jurisdiction of the Supreme Court.
B: Criminal matters are traditionally governed by state law.
C: The proper means of federal judicial review of state criminal matters is by habeas corpus.
D: The review of state court judgments is not within the original jurisdiction of the Supreme Court.
A: Congress has the power to make exceptions to the appellate jurisdiction of the Supreme Court.
Congress has the power to make exceptions to SCOTUS’s Appellate Jx… as is the case here, just cannot EXPAND it beyond the federal judicial power in Article III, Section 2
Under the Eleventh Amendment, is a suit against a State OFFICER (Not a State) for declaratory and INJUNCTIVE relief (Not compensatory monetary relief $) barred?
NO. This type of claim is not barred.
Under the Eleventh Amendment, what are the exceptions to a suit by a private party or foreign gov’t, or against a State for violation of State law?
Exceptions:
– State CONSENTS to the suit
– IMMUNITY REMOVED by 13th, 14th, or 15th Amendment
– State OFFICIAL sued for INJUNCTIVE/
DECLARATORY relief for CONSTITUTIONAL violation
– State OFFICIAL sued for PROSPECTIVE MONEY (not retroactive) damages to be Paid by State Treasury
– Damages to be paid by State OFFICER PERSONALLY (not the State Treasury)
Under the Eleventh Amendment, there is no immunity for:
“BSSS–Booooo U.S./State Seeks Local Congressional Exit”
– Bankruptcy proceedings
– Suit brought by U.S. or other STATE
– Suit AGAINST LOCAL GOV’T (eg, counties, municipalities)
– Suits permitted by Congress (pursuant c’s powers over war & armed forces)
– EMINENT DOMAIN proceedings
When a tax or fee penalty is imposed on the use of out-of-state business entities, in service of protecting local economic interests, the regulation is presumptively invalid.
To be upheld, a regulation that intentionally discriminates against out-of-state businesses must serve an important, __________ interest without any reasonable alternatives available
NON-ECONOMIC
Is there a lack of an “independent ground” under AISG for Judicial Review of a case under a Writ of Certiorari if the State Supreme Court in its state court’s decision EXPLICITLY discussed SCOTUS cases but held that it would NOT resolve how SCOTUS would have adjudicated the matter based on federal law, but rather, it would give the state constitutional provision “the broadest possible interpretation” and it “does not permit this conviction for incitement to riot to stand.”
Nope. That is sufficient for independent purposes of “AISG” –> Scotus should dismiss the writ
What does it mean for a lower court’s decision to rest on “adequate and independent grounds” (AISG)?
1) The state law grounds fully resolve the matter (i.e. adequate)
AND
2) The decision does not incorporate a federal standard by reference (i.e. be independent)
SCOTUS may not review a final court judgment that rests on adequate & independent state grounds (AISG)
What 3 areas can Congress regulate under their Commerce Power?
1) The CHANNELS of interstate commerce;
2) The INSTRUMENTALITIES of interstate commerce;
AND
3) INTRASTATE and INTERSTATE activity (economic or commercial) that has a SUBSTANTIAL EFFECT on interstate commerce
*doesn’t need to be direct effect as long as there is a RB for concluding that the “total incidence” of the activity in the aggregate does
Congress cannot directly command (either by compelling a state to enact legislation or prohibiting a state from enacting new laws) it can use
it can use its TAXING and SPENDING powers to encourage state action
When discussing third-party standing, what are the two requirements for an organization to bring an action on behalf of its members?
“You could have your OWN RIGHTS, or you can LEASE INTERESTS AT STAKE at GERMANE”
(mental image: steak being served at gemane dealership, you can own a car on your own)
1) members would have standing to sue in their own rights;
AND
2) the INTERESTS AT STAKE are GERMANE to the organization’s purpose
When can the states tax the federal government?
When the tax is
1) INDIRECT;
2) does not UNREASONABLY BURDEN the feds;
(e.g. state income taxes on federal employees)
Constitution vs. a Treaties
Treaties vs. an act of Congress
which controls?
Constitution superior to a treaty > Treaties
Most recently adopted will control between Treaty and act of Congress
What are the elements to have standing?
1) Injury in fact (must be actual or imminent, cannot be conjectural, ripe, moot, etc.)
2) Causation (injury must have been caused by defendant’s violation of constitutional or other federal right)
3) Redressability (relief requested must prevent or redress the injury)
What does it mean in terms of mootness for a case to be capable of repetition, yet evading review? (A case will not be dismissed as moot if)
if REASONABLE EXPECTATION that the SAME PARTY will be subject to SAME ACTION again (i.e. capable of repetition)
but that action will NOT LAST LONG enough to work its way through the judicial system (i.e. evading review)
Example: Roe v. Wade; the woman seeking to terminate her pregnancy finally came before the Supreme Court, she was no longer pregnant, therefore the argument was made that her claim was moot. However, she could find herself in a similar situation, and would be again without judicial recourse
When is there a property interest in continued public employment?
1) If there’s an employment K
OR
2) A clear understanding the employee can only be fired for cause
*Even employees who lack entitlement for continued employment cannot be fired for reasons that violate the Constitution
What does the Federal Property Clause give Congress the power to do?
Gives Congress power to dispose of and make rules necessary to protect property and territory of the U.S. (i.e. federal lands)
No express limit on this power, but in doing so, Congress can only take property for public use with JUST COMPENSATION
How is the President’s veto power exercised?
Within 10 days of presentment Pres can veto (send it back) w/ objections
Congress can override this w/ a 2/3rds vote in each house
(1) When can the President invoke executive immunity; and
(2) When is the President not protected by executive immunity?
(1) President CAN’T be sued for CIVIL DAMAGES for acts performed as President’s official responsibilities
(2) No IMMUNITY for civil actions based on conduct that occurred BEFORE the President took office or UNRELATED to carrying out the job
Are line item vetos constitutional?
NO; violates the Presentment Clause
President cannot approve part of a bill and reject the rest
What standard is used to determine whether a TAX by Congress should be upheld?
Needs to be RATIONALLY RELATED (or have a reasonable relationship) to REVENUE PRODUCTION
In what three circumstances is federal preemption implied?
1) Congress intends for federal law to occupy the field;
2) State law DIRECTLY conflicts w/ Federal law
3) State law INDIRECTLY conflicts w/ federal law by creating OBSTACLE/FRUSTRATING accomplishment of that law’s purpose
What is a pocket veto?
If Congress adjourns within the 10-day period after presenting a bill to the President,
and
the President had not yet acted on the bill,
–> Pocket Veto
–> and the bill does not become law
***This cannot be overridden
what are the (2) means for establishing appellate jx for Supreme Court for review?
- Certiorari (discretionary review)
- Direct appeal (mandatory)
In what two scenarios does private conduct amount to state action?
1) when PRIVATE person carries on activities that are traditionally performed EXCLUSIVELY by the state;
AND
2) when the gov’t is SIGNIFICANTLY involved in private DISCRIMINATION
