MBE - Constitutional Law Flashcards
What are the three levels of scrutiny?
(1) Rational basis, (2) Intermediate scrutiny, and (3) strict scrutiny.
When will a law be upheld under strict scrutiny?
If law is necessary to achieve a compelling gvt. purpose.
Gvt has the burden of proof.
(Most demanding standard on gvt).
When will a law be upheld under intermediate scrutiny?
If it is substantially related to an important gvt. purpose.
Gvt. has burden of proof. Gvt. purpose becomes important.
When will a law be upheld under rational basis test?
If law is rationally related to a legitimate gvt. purpose.
Challenger has burden of proof to show no conceivable legitimate purpose.
How does the Bill of Rights apply to federal and state governments?
BOR applies directly to Fed.
BOR applies to state/local gvt through incorporation via the due process clause of 14th amendment.
What are the exceptions to BOR applying to state/local government (AMs not yet confirmed as applying).
3rd (soldier quartered), 5th (grand jury indictment), 7th (jury trials in civil cases), and 8th (excessive fines).
8th Amendment protects against
Excessive Fines
7th Amendment guarantees
right to jury trials in civil cases
5th Amendment guarantees
grand jury indictment in criminal cases
3rd amendment protects against
Gvt quartering soldiers in citizen’s homes.
State Action - Court enforcing racially restrictive covenants?
YES
State action - Government leases premises to restaurant that racially discriminates?
YES
State action - gvt provides free books to private schools that racially discriminate?
YES
State Action - teacher fired from school that is funded 99% by government funds?
NO - no state action
State Action - NCAA orders suspension of basketball coach at state university?
NO - no state action when NCAA orders firing of public school coach
State Action - Private entity regulates interscholastic sports w/in state?
YES - w/in a state
State Action - private club with liquor license from state racially discriminates?
No - not state action
What are the exceptions to rule that private conduct need not comply w/ Constitution?
(1) Public Functions Exeption
(2) Entanglement
What is the public functions exception?
Exception to general rule that private conduct does not qualify as state action.
Definition - private entity is performing a task traditionally, exclusively done by the government.
What is the entanglement exception?
Exception to general rule that private conduct does not qualify as state action.
Definition - constitution applies if the government affirmatively authorizes, encourages or facilitates unconstitutional activity.
When does the constitution apply to the protection of individual liberties?
When there is STATE ACTION.
Private conduct need not comply with the constitution.
What are the key rules of State taxation of interstate commerce (not really tested)?
States may not use their tax systems to help in-state business
Substantial Nexus
Fairly Apportioned
What is meant by “full faith and credit.”
Concept that court in one state court must enforce all judgments of courts in another state, so long as:
Court had personal/SMJ
Judgment must be on merits
Judgment must be final.
What are the exceptions to DCC?
(1) Congressional approval
(2) Market Participant Exception
What are the exceptions to the Article IV P&I Clause?
NONE.
What is required to apply the P&I Clause from Article IV?
(a) Discrimination against out-of-staters
(b) Discrimination with regard to civil liberties or important economic activity.
Can corporations and aliens sue under the P&L Clause of Article IV?
No
Can corporations and aliens sue under the DCC?
Yes.
What is required for the DCC to apply?
Burden on interstate commerce.
However, does not require discrimination against out-of-staters to apply.
What doctrine should be considered if there is a potential issue of gvt action discriminating against out-of-staters?
(1) DCC
(2) P&I Clause of Article IV
What provision is violated when a law discriminates against out-of-staters ability to EARN A LIVING?
P&I Clause of Article IV UNLESS it is necessary to achieve an important government purpose.
Preemption?
Concept under issues of federalism.
Definition – Under the Supremacy Clause (Art. VI) the constitution and laws and treaties made pursuant to it are the supreme law of the land.
Bottom line: valid federal law overrides or preempts inconsistent state law.
How can preemption be found?
(1) Express
(2) Implied – if (a) it is not possible for someone to simultaneously comply with both fed and state law, (b) state law impedes the achievement of a federal objective, OR (c) Congress evidences clear intent to preempt.
(3) State cannot tax where payment would come out of federal treasury.
Presidential Pardon
President has power to pardon anyone ACCUSED OR CONVICTED OF FEDERAL (not state) CRIMES, except where person has been impeached by House.
Impeachment does not apply to civil liability.
Presidential Executive Privilege
Privilege exists for presidential papers and conversations, except where important government interests override privilege.
Presidential Immunity
ABSOLUTE IMMUNITY for civil suits for money damages for actions accrued while in office.
No immunity for actions occurring prior to taking office.
When can the president, VP and federal officers be impeached or removed?
For treason, bribery or high crimes/misdemeanors.
Impeachment does not remove person from office.
Impeachment requires majority House vote AND conviction requires 2/3 Senate vote.
Presidential power of appointment applies to…
Ambassadors, federal judges and OFFICERS.
Congress may limit appointment power of INFERIOR OFFICERS.
Presidential removal power
President may remove any executive branch official, EXCEPT
(i) office where independence from pres is desirable, and
(ii) where good cause shown.
Is Senate approval required for Executive Agreements? What about treaties?
NO - Exe agmts
YES - Treaties
When a treaty or executive agreement conflicts with state law, which controls?
BOTH TREATIES and EXECUTIVE AGREEMENTS control over conflicting state law.
When a treaty conflicts with federal statute - which controls?
Whichever was adopted LAST IN TIME controls.
When an executive agreement conflicts with federal statute - which controls?
FEDERAL STATUTE controls.
When a treaty or executive agreement conflicts with constitution - which controls?
Constitution - always.
What are the key legislative powers?
(1) Tax, (2) Spend, and (3) Commerce
When does Congress have a police power
General rule - never.
However, Congress does have MILD police power in following areas: Military Indian Reservations Land (federal) District of Columbia
Article I, Section 8?
Necessary and Proper Clause. Congress can adopt all laws that are necessary and proper to exercise its authority.
When may Congress regulate commerce with foreign nations, Indian Tribes or among the states?
(1) Channels of Commerce,
(2) Instrumentality
(3) Economic Activity with substantial effect on interstate commerce
What is meant by “channels of commerce?”
Channels are the places where commerce occurs, such as waterways, highways, internet.
What is meant by “Instrumentalities” with regard to interstate commerce?
Things or persons that facilitate commerce.
What is meant by “substantial effect” on interstate commerce?
Substantial BUT NOT CUMMULATIVE.
10th Amendment
Acts as a limit on Congressional powers NOT SPECIFICALLY GRANTED to Congress, NOR PROHIBITED TO STATES.
These powers are RESERVED to the states or people.
Can congress compel state regulatory or legislative action?
NO.
But Congress can induce state action with STRINGS ON GRANTS, so long as conditions are expressly stated and relate to purpose of program.
Can Congress prohibit harmful commercial activity by state governments?
YES. (10th Am)
Which amendment bars suits against states in federal court?
11th Am
What is the result of sovereign immunity?
Bars suits against states in state courts or federal agencies, even on federal law claims.
What are the exceptions to sovereign immunity (only time state can be sued)?
(1) Waiver
(2) Fed. laws adopted under s 5 of 14th Am
(3) Via federal government
(4) Bankruptcy proceedings
Does sovereign immunity apply to state officers?
No, they may be sued.
Sued for injunctive relief.
Sued for money damages to be paid out of their own pockets, however,
May not be sued if damages would be paid out of state treasury.
What is abstention?
Rule that federal courts may not enjoin pending state court proceeding.
What is the final judgment rule?
Rule that SCOTUS may hear cases only after there has been a final judgment of highest state court OR a US Court of appeals, OR of a 3 judge federal district court.
How do virtually all cases come to Supreme Court?
Writ of Certiorari.
Court has complete discretion regarding which cases it hears.
When must SCOTUS hear case?
When appeal exists from decision of three-judge federal district courts
When does SCOTUS have original and exclusive jurisdiction
Suits between state governments.
What is required for a case to be justiciable in front of SCOTUS?
(1) Standing and (2) Ripeness
Case cannot be MOOT or POLITICAL QUESTION.
What are the key political questions SCOTUS will not review?
(1) US guarantee to each state a republican form of government (Guarantee CLause)
(2) Challenges to POTUS foreign policy
(3) Challenges to impeachment/removal process,
(4) Challenges to partisan gerrymandering
What is the political question doctrine?
Refers to constitutional vioaltions that the federal courts will not adjudicate.
What is mootness?
Rule that if events after the filling of lawsuit ENDS Ps INJURY, the case must be dismissed as moot because P must present LIVE CONTROVERSY.
What will keep case alive despite probable mootness?
Non-frivilous money damage claims.
What is ripeness?
Question of whether a federal court may grant pre-enforcement review of a statute or regulation.
When a court questions pre-enforcement review, what is at issue?
Ripeness.
What does court consider when evaluating ripeness?
(1) Hardship that will be suffered without pre-enforcement review (HARDSHIP), and
(2) The fitness of issues and record for judicial review (RECORD).
When the court examines potential hardship and sufficiency of the record, what is likely at issue?
Ripeness.
What are the exceptions to mootness?
(1) The wrong is CAPABLE OF REPETITION but EVADES review because of inherently limited time duration (Abortion cases),
(2) Volunary cessation,
(3) Class Action Sutis
Article III
Defines federal judicial power, which requires cases and controversies: meaning a case must be justiciable.
Court does not render advisory opinions.
What is standing, generally?
The issue of whether P is proper party to bring matter to court.
What is required of P to have standing?
(1) Injury
(2) Causation & redressability
(3) No 3P standing
(4) No generalized grievances
What is a general grievance, and when is it typically discussed.
Discussed under standing.
P does not have standing if they are suing solely as a CITIZEN/TAXPAYER.
If P is suing solely as citizen or taxpayer - what result?
P lacks STANDING - this is merely a general grievance.
What is meant by “no third party standing?”
A P cannot assert claims of others, of third parties, who are NOT BEFORE THE COURT because P must present proof they personally suffered injuries.
What are the exceptions to no third party standing?
(1) Close relationship where P can be trusted to adequately represent interests of 3P
(2) Injured 3P is unlikely to assert own rights
(3) Organization
An organization may sue for its members when…
(a) members would have standing,
(b) interests are germain to organizations purpose, and
(c) neihter the claim no relief requires participation of individual members.
Does a custodial parent have standing for child?
Yes.
Only non-custodial parents do not have standing.
What is causation & redressability
Element of standing.
P must allege and prove that the D caused the injury so that a favorable court decision is likely to remedy the harm.
When a court questions pre-enforcement review, what is at issue?
Ripeness.
What does court consider when evaluating ripeness?
(1) Hardship that will be suffered without pre-enforcement review (HARDSHIP), and
(2) The fitness of issues and record for judicial review (RECORD).
When the court examines potential hardship and sufficiency of the record, what is likely at issue?
Ripeness.
What are the exceptions to mootness?
(1) The wrong is CAPABLE OF REPETITION but EVADES review because of inherently limited time duration (Abortion cases),
(2) Volunary cessation,
(3) Class Action Sutis
Article III
Defines federal judicial power, which requires cases and controversies: meaning a case must be justiciable.
Court does not render advisory opinions.
What is standing, generally?
The issue of whether P is proper party to bring matter to court.
What is required of P to have standing?
(1) Injury
(2) Causation & redressability
(3) No 3P standing
(4) No generalized grievances
What is a general grievance, and when is it typically discussed.
Discussed under standing.
P does not have standing if they are suing solely as a CITIZEN/TAXPAYER.
If P is suing solely as citizen or taxpayer - what result?
P lacks STANDING - this is merely a general grievance.
What is meant by “no third party standing?”
A P cannot assert claims of others, of third parties, who are NOT BEFORE THE COURT because P must present proof they personally suffered injuries.
What are the exceptions to no third party standing?
(1) Close relationship where P can be trusted to adequately represent interests of 3P
(2) Injured 3P is unlikely to assert own rights
(3) Organization
An organization may sue for its members when…
(a) members would have standing,
(b) interests are germain to organizations purpose, and
(c) neihter the claim no relief requires participation of individual members.
Does a custodial parent have standing for child?
Yes.
Only non-custodial parents do not have standing.
What is causation & redressability
Element of standing.
P must allege and prove that the D caused the injury so that a favorable court decision is likely to remedy the harm.
If a federal ruling would have no effect, then…
It would be an advisory opinion, and therefore not allowed.
What is meant by injury?
Required for standing.
P must allege and prove that he was injured or will be imminently injured.
Is injury established with mere ideological objection?
No.
P may only assert injuries that they personally suffered.
What is procedural due process?
The procedures required by the government to take away someone’s life, liberty or property.
What is the required analysis for a procedural due process question?
(1) Has there been a deprivation of life, liberty or property?
(2) If there was a deprivation, what procedures are required?
When has a deprivation of liberty occurred?
When there is the loss of a significant freedom provided by the Constitution or statute.
When has a deprivation of property occurred?
If a person has an entitlement (reasonable expectation to continued receipt of a benefit) AND that entitlement is not fulfilled.
Is government negligence sufficient for deprivation of due process?
NO.
Generally, there must be intentional government action or at least reckless action for liability to exist.
When is government liable under due process in Emergency Situations?
Only if the conduct “shocks the conscience.”
If a deprivation of rights occurred, triggering due process analysis, AND a deprivation is found, what test applies to determine procedure?
3-Part Balancing Test:
(1) Important interest to individual
(2) Ability of additional procedures to increase accuracy of fact-finding
(3) Government interest in efficiency and saving money.
What are examples of deprivation of rights that requires NOTICE AND A HEARING?
(a) termination of welfare benefits
(b) permWhen anent termination of parent’s right to custody
(c) Before an adult may be institutionalized
What due process is required with the termination of social security benefits?
Only a post termination hearing.
What result if Ps reputation alone is harmed under due process?
Nothing, harm to reputation by itself is not a loss of liberty.
Do prisoners have liberty interests?
RARELY. When asserting a loss of liberty, they frequently lose.
What due process is a non-citizen enemy combatant entitled?
Ability to challenge continued detention.
When does due process require the recusal of a judge
When there is a substantial risk of bias.
What is substantive due process?
Due process analysis used to protect economic liberties and safe guard property.
Asks whether government has an ADEQUATE REASON for taking away person’s life, liberty or property.
What protections are provided for economic liberties?
MINIMAL PROTECTIONS
Apply rational basis test.
Takings Clause.
Contracts Clause
Under the takings clause (5th Am), how is taking made?
(1) Possessory - government confiscates or physically occupies property.
(2) Regulatory - government regulation leaves no reasonably economically viable use of property.
If taking of property under the takings clause is for public use, what result?
JUST COMPENSATION must be paid. Economic market value of property when in hands of owner is owed.
If not for public use, government must return the property.
What is required under Art. I, Section 10 of the constitution?
The CONTRACTS CLAUSE, provides no state shall impair the obligation of contracts.
What level of scrutiny apples to government interference with existing private contracts?
Government may interfere if SPECIAL INTERMEDIATE SCRUTINY is met.
Does the legislation substantially impair a party’s rights under the existing contract?
If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?
Right to Privacy - Justification?
Privacy is a fundamental right protected under substantive due process and therefore strict scrutiny is standard used.
What fundamental rights trigger strict scrutiny?
CRACKS-MaPP-TV
Custody of Children Religion (Freedom to Exercise) Association (Freedom to) Control raising of children Keep family together Speech (Freedom of)
Marry
Procreate
Purchase/Use Contraceptives
Travel
Vote
When is there a basis for equal protection challenge?
Whenever the government draws a distinction among people.
What are the three steps for equal protection questions?
(1) What is the classification?
(2) What level of scrutiny should be applied?
(3) Does this law meet the level of scrutiny?
What are the ways to determine the existence of classifications?
(a) The classification is ON THE FACE OF THE LAW, or
(b) If the law is facially neutral, there is both a DISCRIMINATORY INTENT for the law and a DISCRIMINATORY IMPACT to the law
Discriminatory intent + discriminatory impact = ?
Requirement to determine the existence of classifications for FACIALLY NEUTRAL laws.
What is required for a constitutional law under strict scrutiny?
Law must be NECESSARY to achieve a COMPELLING government purpose
What is required for a constitutional law under intermediate scrutiny?
Law must be SUBSTANTIALLY RELATED to an IMPORTANT government purpose
What is required for a constitutional law under rational basis?
Law must be RATIONALLY RELATED to a legitimate government interest.
What classifications trigger strict scrutiny?
RANT - V
Race
Alienage (generally)
National Origin
Travel (not foreign)
Voting
What classifications trigger intermediate scrutiny?
GUI
Gender
Undocumented alien child
Illegitimacy
What classifications commonly trigger rational basis test?
Alienage classifications related to self-government and democratic process
Congressional regulation of aliens
Age
Disability
Wealtyh
All other classifications
Under the first amendment, a regulation of conduct is _______ likely to be upheld than a regulation of content.
MORE. First amendment primarily protects content.
Important to make distinction between conduct and content.
What scrutiny is applied to regulations on content?
Strict scrutiny. (Necessary, to compelling government purpose).
What is the basic rule regarding the government’s regulation of symbolic speech?
The government may regulate conduct that communicates if it has an important interests unrelated to suppression of message AND if the impact on communication is no greater than necessary to achieve gvt goal.
What are examples of traditionally protected symbolic speech?
flag burning
cross burning (unless meant to intimidate)
What is not protected as symbolic speech?
Draft card burning, nude dancing.
What types of speech are unprotected or less protected under the 1st Am?
(1) incitement of illegal activity
(2) Obscenity and sexually oriented speech
(3) Commercial speech
(4) Defamation
What is the test to determine if speech is obscene?
(a) Material must appeal to the prurient interest, or a “shameful or morbid interest in sex.”
(b) Material must be patently offensive
(c) Taken as whole, material must lack serious redeeming artistic, literary, political or scientific value determined by NATIONAL STANDARD.
By what standard is potentially obscene material judged as to whether it has an artistic, political, literary or scientific value?
National standard.
Would phrase “Fuck the draft” on a t-shirt (worn by adult in public) be protected by first amendment?
Generally yes, PROFANE AND INDECENT speech is protected.
What is the liability standard of a public official OR public figure under a defamation claim?
ACTUAL MALICE.
If successful, P may receive compensatory or presumed/punitive damages.
Burden of proof - P must prove falsity.
What is required for a defamation claim of a private figure on a matter of public concern?
Negligence AND actual injury.
If successful, P may receive compensatory damages for actual injury,presumed/punitive damages or punitive damages require actual malice.
P has burden to prove falsity.
What is the freedom of association?
Freedom from laws that prohibit of punish group membership.
These laws must meet strict scrutiny.
If a regulation on free speech meets the time, place and manner requirements - could it still be invalid?
Yes if overcrowd, vague or gives unfettered discretion.
What is the freedom of religion
Free exercise clause + establishment clause
How is commercial speech protected under first amendment?
In determining whether restriction is valid, court asks:
(1) does speech concern lawful activity and is not misleading?
(2) is there substantial gvt interest, reg advances interest directly and, reg narrowly tailored.
True or False: NY constitution provides that there can be no divorces except by judicial proceeding.
True.
And there is NO ANALOGOUS provision in the federal constitution.
True or False: NY constitution creates the right of employees to organize their collective bargaining arrangements
True.
There is no analogous provision under the federal constitution.
What is a Batson challenge and how is it preserved on appeal?
Batson Challenge – challenging juror preemptory strikes based on improper strike for race/gender.
Preserved –> Moving party must make specific objections to the exclusion of a juror AND make a prima facie case that its opponent is using preemptory challenges to exclude a certain individual or group from the jury.
If prima facie case made – burden on the jury to provide a race/gender neutral reason for exclusion.
What is the key regarding a Batson chllenge?
Batson = challenging use of preemptory challenge, used on race/gender purposes.
Must be raised a requisite time during case.
