MBE Constitutional Law Flashcards
What to look for in an encroachment question?
2 branches of government
When are executive orders and agreements valid?
As long as don’t conflict with or try to supersede federal law
When must the President be the one to appoint a person?
If having some executive power or authority
What is executive power/authority?
Power to make rules, regulations, prosecution
When is it okay for both Congress and the President to appoint someone to something?
As long as they don’t have any executive power, it’s okay
What can the legislature spend for?
The general welfare
What can Congress modify in terms of SCOTUS jurisdiction?
Can only modify/touch SCOTUS appellate jurisdiction
What courts does Congress have jurisdiction over?
Lower federal courts (not SCOTUS)
If state and federal law conflict, which prevails?
Federal law
To avoid preemption state law can be…?
More restrictive than federal law
What is police power?
Health, welfare, safety of citizens
What is the commandeer rule?
Congress can NOT command/obligate/require a state to do anything
When does privileges and immunities clause kick in?
When a state passes a law that discriminated based on residency
When does Equal Protection Clause come into play?
When the government treats people differently from other people
When to apply strict scrutiny to Equal Protection claims?
Race, alienage (non-U.S. citizen, national origin)
What are the elements of strict scrutiny?
Government has burden to prove: (1) Necessary to achieve (2) compelling government interest
When to apply intermediate scrutiny to Equal Protection claims?
Gender, illegitimacy (illegitimate children)
What are the elements of intermediate scrutiny?
Government has burden to prove that: (1) substantially related to (2) important government interest
When to apply rational basis scrutiny to Equal Protection claims?
Everyone else
What are the elements of rational basis scrutiny?
Plaintiff has burden to prove: (1) not rationally related to (2) legitimate government interest
When does Due Process come into play?
Government taking away or regulating people’s rights (affecting everyone in general)
What level of scrutiny to apply if government affecting fundamental rights?
Strict scrutiny
What are the fundamental rights?
1) Travel (inter-state)
2) Vote
3) Free speech
4) Privacy
What are the rights to privacy?
C- Contraception A- Abortion M- Marriage P- Procreation E- Education (Private) R- Rearing
What is right to rearing?
Right to raise family
What is the test for abortion?
Undue burden test
When does procedural due process come into play?
Taking away a property right from an individual (not a business)
What are property rights?
1) Employment
2) Licenses (bar license)
3) Benefits
What if taking away a benefit but not entitled to that benefit yet?
Procedural due process is inapplicable
What are the requirements for procedural due process?
1) Notice
2) Hearing
What is the Free Exercise clause?
INDIVIDUAL has right to exercise their religion in any manner they choose, as long as they do not violate the law
What to look for in Free Exercise questions?
Intent. Government must be neutral as to religion
What is the establishment clause?
Government shall pass no law that establishes religion
What is the Lemon test?
1) law has secular purpose
2) cannot promote or inhibit religion
3) Government cannot get too entangled with religion
What does it mean for government to be entangled with religion?
Money. Can’t sponsor or give money to religion (books, scholarships, tax breaks, etc)
What can the government do regarding speech?
Regulate, not ban
What are the two types of speech regulations?
1) Content based
2) Content neutral
What are content based regulations of speech?
Government regulating the words being said (trying to shut message down)
What level of scrutiny applies to content based regulations of speech?
Strict scrutiny
What are content neutral regulations of speech?
Government regulating time, place, and manner
What level of scrutiny to apply to content neutral regulations of speech?
Intermediate scrutiny
Significant or important interest and leaves open alternative means of expression
What does 13th amendment do?
Bans slavery and incidents of slavery
Who is subject to 13th amendment?
Everyone. No state action necessary
What does it mean if a case is moot?
Issue has already been litigated and therefore cannot be litigated again
What does it mean if a case is unripe?
Case is not ready for trial because nothing has actually happened yet
What is a bill of attainder?
Law that is passed that names an individual or group and levies civil or criminal penalties
Is a bill of attainder constitutional?
No
What is an ex post facto law?
Law that retroactively makes conduct that was legal now illegal
When does Dormant Commerce Clause come into play?
State passes a law that discriminates against out of state BUSINESSES
When does dormant commerce clause not violated/come into play?
When the state is acting as a market participant and when Congress allows them to
What does a plaintiff need to show to have standing?
1) concrete stake in the outcome of the controversy
2) shown by an injury in fact
3) caused by defendant
4) that can be remedied by a ruling in plaintiff’s favor
What kind of injury is needed to have standing?
Injury in fact (more than a theoretical injury)
Does a senator have standing to sue the President if he is able to line item veto?
No
When would state regulation of interstate commerce be valid?
When Congress has not acted and: (1) does not discriminate against out of state parties; and (2) unduly burden interstate commerce
What standard to apply if state regulation discriminates against interstate commerce?
Valid if necessary to an important, non-economic government interest
What would be violated if a regulation limits access to privately owned in state products?
Negative implications of the Commerce Clause
What is an example of noneconomic state interests for purposes of burdening interstate commerce?
Health or safety
May a state regulate in ways that impact on interstate commerce?
Only as long as the regulation does so only indirectly and the benefits outweigh the burdens imposed by compliance with the regulation
What categories must federal law regulate in terms of the commerce clause?
1) channels of interstate commerce;
2) instrumentalities of interstate commerce;
3) articles moving in interstate commerce; or
4) activities that have a substantial effect on interstate commerce
Do states have plenary authority to construct their tax system in any manner they choose?
No
How may states structure their tax system?
Only in ways that do not violate some portion of the Constitution
Who can add to or change the qualification for a federal officer?
No one (neither a state or Congress)
Who has the authority to be the final judge on the qualifications of the the houses of Congress?
Each house of Congress has the authority to be the final judge of the qualifications of its own members (Ex: determining whether the person is eligible to serve)
Who has the power to hear/be the final arbitrator of disputes between two or more states?
The Courts (see Article 3, Section 2)
What power is given to Congress in Article V?
Article V gives Congress the power to propose, by a 2/3 vote, a constitutional amendment for ratification by 3/4 of the states
When Congress sends a proposed amendment to the states for ratification what will it typically do?
It will typically dictate a time frame in which the ratification process must be completed
What cases can SCOTUS hear on certiorari?
(1) Cases from the highest state courts where
(a) the constitutionality of a federal statute, treaty, or state statute is called into question, or
(b) a state allegedly violates federal law; and
(2) all cases from federal courts of appeals
Is it enough to require SCOTUS to decline review if the state supreme court said that its decision comported with the same provision in the state constitution without any interpretation?
No
To. prevail on a Free Exercise claim, what must the challenger show?
That the government action targeted the religious practice in question. By doing so –> strict scrutiny
What is considered police power?
Health, safety, welfare
What is the four step process to determine whether regulation of commercial speech is valid?
1) Whether the commercial speech concerns a lawful activity that is not misleading or fraudulent
2) Regulation must serve a substantial government interest;
3) Must directly advance that interest
4) Must be narrowly tailored to serve the substantial interest
Is a law barring the solicitation of accident victims within a limited period following an accident narrowly tailored?
Yes, it is narrowly tailored to serve the state’s substantial interest in protecting the privacy of victims
Who has the power to preserve the federal monopoly over foreign affairs?
Congress
What can congress do for the general welfare?
SPEND
What can Congress NOT do for the general welfare?
Congress CANNOT directly regulate the general welfare
Is there a requirement that a tax be spent in a way related to the tax?
No
What concern is raised if a judge has an interest in a case before her that causes a serious risk of bias?
Procedural due process
What does due process contemplate?
Fair process/procedure
For procedural due process, what is required for fair process/procedure?
At least an opportunity to present objections to the proposed action to a fair, neutral decision maker
Does an action that affects the population in a general manner trigger a procedural due process concern?
No, even if person bringing suit happens to be burdened as a result of the action
Does negligent state action trigger procedural due process?
No
What level of intent/mens rea for state action to trigger procedural due process?
INTENTIONAL deprivation of life, liberty, or property
Does an at-will employee have a legitimate interest in continued employment?
No . No life, liberty, or property interest at stake
Is a government act that causes defamation without a tangible loss considered a deprivation of liberty under the Due Process Clauses?
No. Need tangible loss.
What are the factors courts consider in determining the type of procedural due process that is required?
1) Importance of the individual’s interest that is involved;
2) Value of specific procedural safeguards of the individual’s interest; and
3) Government’s interest in fiscal and administrative efficiency
Does a public employee who is subject to removal only for “cause” have a property interest in continued employment?
Yes
If employee has property interest in continued employment, what must employee be given?
1) Notice of charges; and
2) Pretermination opportunity to respond to those charges
3) Subsequent evidentiary hearing regarding the termination
4) Reinstatement if employee prevails
What if there is a clear practice or mutual understanding that an employee can be terminated only for cause?
Continued public employment may be a protected property interest in this instance
Does a company have a cause of action under procedural due process if government prohibits it from charging the prices it wants?
No because charging whatever price it wants is not a type of “property” interest that invokes due process protections
What level of scrutiny is placed on restrictions of speech in public forums?
Intermediate scrutiny
What is the intermediate scrutiny standard on speech?
Law will be upheld if it is:
1) content-neutral
2) narrowly tailored to serve an important government interest
3) leaves open alternative channels of expression
For the MBE, what kind of state action is required to make a private actor actually a state actor?
Significant involvement from the state
What is SCOTUS review of state court judgments limited to?
Questions of federal law
What is the effect on SCOTUS jurisdiction of a state court interpreting its own constitution co-extensively with the U.S. Constitution?
There are no independent and adequate grounds to support the decision. Court would then review the case as to the federal issues
In commercial speech, what does it mean that a law must be narrowly tailored to serve a substantial interest?
Least restrictive means is not necessary. Rather, it must be a reasonable fit between the government interest and the means chosen
Is discriminatory effect of governmental action, just that alone, enough to trigger strict or intermediate scrutiny?
No
Is mere statistical evidence that the government action had a discriminatory effect enough to show discriminatory intent or purpose?
No
Is remedying past discrimination a compelling interest?
Yes
May the state deny a permanent resident alien employment as an instructor in the public high school?
Yes, because the citizenship bears some rational relationship to the interest that is being protected
When can state “discriminate” based on citizenship?
A state may reserve a government position for its citizens if it is related to self-governance, involves public policy making, or requires exercise of important discretionary powers over citizens
If a state is validly “discriminating” based on citizenship, what level of scrutiny applies?
Rational basis
When will state action that is facially neutral be struck down?
If it can be shown that it was intended to discriminate on the basis of race or national origin and does in fact have that effect
What does the 14th Amendment privileges and immunities protect?
Rights of national citizenship
What does Article 4 privileges and immunities prohibit?
Prohibits states from discriminating on fundamental rights (aka prohibits discrimination by a state against non-residents)
What does Article 4 privileges and immunities say?
“The Citizens of each state shall be entitled to all Privileges and Immunities of citizens in the several states states”
What government does the 4th Amendment privileges and immunities apply to?
State governments. Not the federal government.
What rights does 14th Amendment privileges and immunities protect?
1) Travel
2) Petition Congress for redress of grievances
3) Right to vote for federal officers
4) Right to enter public lands
What does right to travel in privileges and immunities include?
Right of newly arrived citizens to enjoy the same privileges and immunities as are enjoyed by other citizens of the state
Is 14th Amendment privileges and immunities implicated when a state tax on interstate commerce discriminates against a natural person who is a nonresident?
No. It applies when a state denies its OWN citizen rights of national citizenship.
What is the scrutiny level for Article 4 privileges and immunities?
State must show that it has a substantial justification for the discriminatory interest (necessary to achieve an important government interest)
What is the level of scrutiny for commercial speech?
Commercial speech can be regulated if the regulation serves a substantial government interest, directly advances that interest, and is narrowly tailored to serve that interest
Is false or misleading commercial speech constitutionally protected?
No
When can speech be banned under the clear and present danger test?
Whenever it is directed to producing or inciting imminent lawless action and is likely to produce such action
True or false: Hate crime statutes may limit fighting words sanction to cases in which the words seek to insult or provoke on the basis of race, religion, or sexual orientation.
False. This is viewpoint discrimination.
True or false: Fighting words statutes are often struck down for over breadth?
True
True or false: True threat statements meant to communicate an intent to place an individual or group in fear of bodily harm may be punished?
True
What is the scrutiny level for time, place, manner regulations in public forums?
The regulation must be:
1) Content neutral
2) narrowly tailored to serve an important government interest
3) leave open alternative avenues of expression
What does it mean to leave open alternate avenues of expression for time, place, manner regulations?
Regulation does not need to be the least restrictive method of achieving the governmental interest to avoid strict scrutiny
What is required for a valid time, place, manner regulation of a limited public forum?
Regulation must be viewpoint neutral and rationally related to a legitimate government purpose
What is the level of scrutiny required for regulations of limited public forums?
Rationally related to a legitimate government purpose
Is a ban on distributing leaflets that may end up on the ground valid as a way to prevent littering?
No, not narrowly tailored
What are some words to trigger overbreadth & vague?
Opprobrious, annoying, or abusive
May a state affect interstate commerce if it is an incidental consequence of its exercise of police powers?
Yes
What three elements required to not violate the dormant commerce clause?
1) Regulation must pursue a legitimate state end;
2) Regulation must be rationally related to that legitimate state end; and
3) Regulatory burden imposed by the state on interstate commerce must be outweighed by the state’s interest in enforcing its regulation
When may a discriminatory state or local law be valid (for dormant commerce clause purposes)?
If it:
1) Furthers an important non-economic state interest (e.g., health or safety; and
2) There are no reasonable alternatives available
What is the three-part test for the contracts clause?
1) Whether the legislation substantially impairs a party’s right under an existing contract;
2) Whether the legislation serves an important and legitimate government interest; and
3) Whether the legislation is a reasonable and narrowly tailored means of protecting that interest
What implied provision does the 5th Amendment contain?
Implied equal protection clause that triggers rational basis
Who has the authority to represent the U.S. in foreign affairs?
The President alone
When can the President direct the actions of person outside of the executive branch?
ONLY when the President’s direction is authorized by an act of Congress
What does the Speech and Debate Clause protect members of Congress from?
1) Civil or criminal suits relating to their legislative actions;
2) grand jury investigations relating to those actions
What is the source of commandeering?
10th Amendment
What does Article 3 NOT do?
Does not limit how SCOTUS’ appellate jurisdiction may be exercised
Under which clause are voting restrictions based on English proficiency unconstitutional?
Equal Protection
When does equal protection apply?
When the law in question creates a classification
What is the language of the 5th Amendment?
“No person shall be . . . deprived of life, liberty, or property without due process of law . . .”
If challenging the federal government on equal protection, what is the appropriate clause to bring suit under?
5th Amendment
What does the Full Faith and Credit Clause prohibit?
prohibits state courts from re-litigating cases in which the courts of another state have rendered a final judgment
What to remember about sovereign immunity?
State cannot sue the United States without its consent
Although a federal officer may sometimes be sued, when will it be grated for the officer acting ultra vires?
When officer acting beyond his statutory powers or the valid power was exercised in an unconstitutional manner
Does Speech and Debate Clause protect what is said on senate floor?
Senator is immune from suit for any speech she makes in the Senate (does not matter if not speaking on current legislation)
What if Christmas display includes only religious symbols?
It violates the Establishment Clause
What if Christmas display includes secular symbols (ex: candy canes and Christmas trees)
No violation of Establishment Clause
Is excessive monitoring of funds entanglement?
Yes
What is the level of scrutiny for prohibiting nonresidents from voting?
Rational basis (nonresident cant vote in state election)
What is the level of scrutiny for Congress spending?
Reasonably related to a legitimate federal interest
Can the state directly tax the property or operation of the federal government?
Not without Congress; consent
Are indirect taxes on the federal government or its property permissible?
Yes, if they do not unreasonably burden the federal government (ex: state income taxes on the salaries of federal employees)
When is it okay for a state/local government to condition building or development permits?
1) the government can show that the condition relates to a legitimate government interest (nexus);
2) rough proportionality between the size of the give-back demanded by the city and the burden on the public caused by the proposed development
(if not, it would be considered a taking)
What is the general rule on standing for taxpayers?
People do not have standing as taxpayers to challenge the way tax dollars are spent
What is the exception to the general rule on standing for taxpayers?
If the expenditure was enacted under Congress’ taxing and spending power and allegedly exceeds the specific limitation on that power found in the Establishment Clause
Is an oath to respect the flag constitutional?
No
What is the standard for a writ of mandamus?
1) appeal insufficient to correct the problem; and
2) trial court’s actions constitute a serious abuse of power in need of immediate rectification
What is the standard for the state paying for abortion?
Rationally related
Is nude dancing expressive conduct?
Yes, but subject to content-neutral regulations, like bans on public nudity
Can a newspaper defend against a state law claim by a private person on the grounds of the First Amendment?
No, state actor is irrelevant here. The First Amendment does not exempt press activities from laws of general application such as contract law
When would a dispute between two branches of government involving foreign affairs not be subject to PQD?
When the dispute concerns the validity of a federal statute
Can Congress place a restriction on the President’s power to remove a presidential appointee?
No
Can Congress remove certain federal officials?
Yes, like those serving as members of governing bodies of regulatory agencies and inferior officers. No power over presidential employees though
Are aesthetic interests of a community sufficiently substantial to justify content-neutral restrictions public displays of signs?
Yes
When is a state tax valid (re: federal government)?
If it is nondiscriminatory and does not apply directly to the federal government
What is obscenity?
depiction of sexual conduct that using contemporary community standards: (1) appeals to the purient interest in sex; )2) portrays sex in a patently offensive way; and (3) using a national, reasonable person standard, does not have serious literary, artistic, political, or scientific value
What is a prior restraint on speech?
Court order or administrative system that keeps speech from occurring
When can trials and pretrial proceedings be closed?
Only if closure is necessary to preserve an overriding interest and closure is narrowly tailored to serve the overriding interest
Are schools generally a public forum?
No, but they can be designated public forums
When will a school search be upheld?
Only if it offers a moderate chance of finding evidence of wrongdoing, the measures used are reasonably related to the objectives of the search, and search is not excessively intrusive in light of age and sex fo the student and the nature of the infraction
If it appears to the judge that the defendant might be incompetent, what must the judge do?
The judge has a constitutional obligation to conduct further inquiry and determine whether in fact the defendant is incompetent
Can a town limit the location of sex establishments?
Yes, to combat the secondary effects of such businesses
When does contracts clause apply and what is the standard of review for contracts clause?
When state laws invalidate already existing contracts (retroactively and substantially impairing contracts rights, unless important government interest that is narrowly tailored)
When does ex post facto laws apply?
Criminal laws
For preemption, what if federal law purpose differs from challenged statute?
Constitutional, as long as not conflicting
Does criminal verdict need to be unanimous?
Yes, regardless if state or federal statute
What does court consider in determining whether a prior evidentiary hearing is required for procedural due process?
Court will weigh the importance of the individual interest involved, value of specific procedural safeguards, and the governmental interest in fiscal and administrative efficiency
When may a vendor have 3rd party standing?
When the law adversely affects the rights of his or her customers as long as a connection between plaintiff and the third party whose rights vendor is trying to protect
Is there a federal equal protection claim?
No
Is the 14 amendment applicable to the federal government?
No, only to states
What level of scrutiny to apply to commercial speech that concerns a lawful activity and is not misleading or fraudulent?
Government regulation must advance a substantial government interest and narrowly tailored
What to always talk about in an essay?
Standing (and try for state action required to trigger constitutional protections)
When can an ordinance amount to a taking?
Only if it deprives an owner of all (or perhaps nearly all) economic use of the property
Standard of review under DP for actions which may burden a person’s ability to find adequate private housing?
Rational basis
When does an organization have standing?
1) Injury in fact to members that gives them a right to sue on their own behalf;
2) injury is related to organization’s purpose; and
3) individual member participation in lawsuit not required
A government regulation that eliminates the investment backed expectation and economic value of an individual’s property is a ______
Taking within the meaning of the 5th Amendment as applied to the states under the 14th Amendment
May a state prohibit conduct in certain contexts even if it is marginally related to 1st Amendment speech?
Yes, if the goal of the law is unrelated to the suppression of free speech and the government has a substantial interest at stake + narrowly tailored
When will use restrictions constitute a taking?
When there is a denial of ALL economic value of land because of such regulation that it is equivalent to a physical appropriation
What kind of jurisdiction is general jurisdiction of state court testing?
SMJ not PJ
Can Congress hold hearings on something it cannot legislate?
No (think necessary and proper)
What is the standard for determining whether expense is okay?
Reasonably deemed to serve the general welfare
What loyalty oaths are okay and why?
Oath to support the Constitution and oppose the overthrow of the government by force because this is just a commitment to abide by constitutional processes
What does the 15th Amendment do?
Prohibits both states and the federal government from denying any citizen the right to vote on the account of race or color
Is there a 1st Amendment right of access to records kept by the executive branch?
No
