MBE CON LAW - BASELINE Flashcards
MBE CON LAW: Equal Protection Clause; Non-Suspect Classification; Standing; State Action
What does a Pl need to prove in a constitutional rights claim based on age discrimination?
Because age is not a suspect or quasi-suspect class, the rational basis test is applied to determine whether the discrimination by the government agency violates the EQual Protection Clause
MBE CON LAW: Equal Protection Clause; Quasi-Suspect Classification
What is the standard of review when there is alleged governmental discrimination against a quasi-suspect class? What is an example of a quasi-suspect class?
The standard for governmental discrimination against a quasi-suspect class, such as gender requires the government to bear the burden of persuasion with regard to this test where the quasi-suspect class is at issue.
Where race is involved - suspect class: The government agency must prove that it has a compelling interest in the discrimination and that the means by which it di so was the least restrictive means of doing so.
CON LAW: Congressional Powers; Tax & Spend
Where does Congress gets it power to tax and spend?
The General Welfare Clause of Article 1, Section 8 of the U.S. Constitution has been interpreted as permitting Congress to exercise its power to tax for any public purpose.
Limitation: Major product or activity subject to the tax must be identically taxed in every state in which the relevant product or activity is found.
Spending power: Congress may spend for any public purpose.
MBE CON LAW: Substantive Due Process; Standard of Review
What is the standard of review to which governmental action is subjected when challenged on substantive due process grounds? What does this depend on?
The standard of review to which governmental action is subjected when challenged on substantive due process grounds depends on the rights asserted by the Pl.
If the Pl is asserting a fundamental right (voting), the government must establish that is requirement is the least restrictive means to achieve a compelling governmental interest.
If a fundamental right is not involved, the Pl must show that the restriction does not bear a rational relationship to a legitimate government interest. Laws are presumed valid under this standard, so the burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational.
MBE CON LAW: EQUAL PROTECTION CLAUSE, STATE ACTION
The Equal Protection Clause of the Fourteenth Amendment provides that “no state shall deny to any person within its jurisdiction the equal protection of the laws.”
What must be shown to trigger strict or intermediate scrutiny?
To trigger strict or intermediate scrutiny, there must be DISCRIMINATORY INTENT, whether shown by the very language of the law, its application or the motive behind the law, on the part of government.
The fact that legislation has a disparate effect on people of different races, genders, etc., without intent, is insufficient to trigger strict or intermediate scrutiny.
Where no discriminatory intent is found, then the rational basis test would be applied to the legislation.
MBE CON LAW: Freedom of Religion; Free Exercise Clause
What rights are addressed under the Free Exercise Clause vs the Free Speech Clause?
Generally, only governmental laws that intentionally target religious conduct are subject to strict scrutiny.
Neutral laws of general applicability that have an impact on religious conduct are subject only to the rational basis test.
Remember disparate impact - does not apply as long as the law is of general applicability
Under a Freedom of Speech challenge, a regulation/ordinance that imposes a valid time, place or manner restriction -where it restricts the time in which a person can conduct speech and related activities in the square, a public forum AND DOES NOT DO SO BASED ON THE CONTENT OF THE SPEECH. -
Free Exercise Clause - wrong Constitutional provision to bring a challenge based on a time, place and manner restriction -
With a Free Exercise challenge - the analysis is concerned with whether the ordinance intentionally targets the particular sect/group (maybe a religious group_.
MBE CON LAW: Powers of Congress; Commerce
Can Congress regulate intrastate activity that does not have a direct economic impact on interstate commerce? Are there any limitations?
With respect to an intrastate activity that does not have a direct economic impact on interstate commerce, as long as there is a rational basis for concluding that the “total incidents” of the activity in the aggregate substantially affects interstate commerce, Congress may regulate even a minute amount of that total.
Note: The federalism limitation on the regulation of intrastate activity that is a matter of traditional state concern arises only when the activity in question is not an economic activity.
MBE CON LAW: Takings Clause; Types of Taking
The Due Process Clause of the Fourteenth Amendment has incorporated the Takings Clause of the Fifth Amendment, thereby making it applicable to the states and their subdivisions.
Explain the Takings Clause and what is protected?
A municipal ordinance that results in the permanent taking of property, including not only a fee simple interest but also other property interests, such as an easement, WITHOUT JUST COMPENSATION violates the Takings Clause.
Standard of review: A governmental seizure of private property for public use need merely be rationally related to a conceivable public purpose. This is a highly deferential standard. The burden is on the person challenging the taking to prove a lack of a legitimate interest or rational basis. Govt still needs to PROVIDE JUST COMPENSATION to be constitutional, even if the justification for taking the property is sufficient.
MBE CON LAW: TAKINGS CLAUSE; TYPES OF TAKING
When does a government regulation on the use of property violate the Takings Clause ?
A government regulation on the use of property that adversely affects a person’s property interest generally does not violate the Takings Clause UNLESS it results in the permanent total loss of the property’s economic value WITHOUT JUST COMPENSATION.
Granting the public a permanent right to use a person’s property as a means of access to a beach, lake, etc . even though not for government use, is still in violation of the Takings Clause as an uncompensated governmental taking of private property .
MBE CON LAW: Procedural Due Process; Procedural Due Process Applied
What is the scope of an individual’s right to PROCEDURAL DUE PROCESS?
An individual’s right to procedural due process hinges on whether the threatened interest is a protected interest.
If the protected interest is threatened, the Pl would be entitled to both fair notice and fair process if that interest is threatened by government action.
Examples of some protected interests: involuntarily committed - liberty interest; parental rights being threatened; private contractor attaching lien (lien on property) on govt tax rolls without giving citizen notice or a hearing.
MBE CON LAW: Judicial Power; Judicial Review; Standing and State Action
What does one need to mount a claim that a statue violated the Tenth Amendment by interfering with powers reserved to the states?
You always need standing and state action –first.
In order to have standing to assert a claim or defense, a person must suffer an injury in fact.
Note that an individual, as well as a state, may have standing to challenge a federal statute on Tenth Amendment grounds.
MBE CON LAW: State Regulation and Taxation of Commerce; Dormant Commerce Clause; Undue Burden test
When can state statutes be ruled as unconstitutional?
MBE CON LAW: State Regulation and Taxation of Commerce; Dormant Commerce Clause; Undue Burden test
When can state statutes (regulating some sort of economic activity) be ruled as unconstitutional?
State statutes regulating some sort of economic activity that do not discriminate against out-of-state commerce are generally constitutional UNLESS they IMPOSE AN UNDUE BURDEN ON INTERSTATE COMMERCE.
Most state statutes pass this test– but some found wanting where there are less restrictive alternatives available to address the state problem.
Note: If Congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate the matter.
**No “first in time” rule that prevents a state from adopting a different solution when other states have already chosen a solution.
Test is whether the state’s solution constitute an undue burden on interstate commerce.
MBE CON LAW: Designated Public Forum; Freedom of Expression and Association; Regulation of Time, Place and Manner
What constitutes a public forum as it relates to the exercise of Free Speech?
A public forum is a place that has been devoted to public discourse, either traditionally or by governmental regulation.
City permitting public to post comments on tis website - court could find that this government action makes it a public forum.
Traditional vs designated public forum: The public square - traditional
Designated public forum - University designated a specific spot on campus for free speech activities
Although, the public must be able to access a place in order for it to be a public forum, access alone is not sufficient to establish a place as a public forum. (Places such as airport terminals to which the public has access are not considered public forums.”
MBE CON LAW: Freedom of expression and association; Regulation of content
When can a government enact a statutes that regulates the contact of speech?
Statutes designed to punish speech that expresses certain viewpoints are unconstitutional.
“Fighting words” regulation can be constitutional to prevent immediate breaches of the peace, but such regulations cannot punish fighting words that express certain viewpoints.
Example: Supreme Ct has struck down an ordinance that applied only to fighting words that insulted or provoked on the basis of race, religion or gender.
