MBE One Sheets: Con Law

Question 1

Powers of the 3 Branches: Judiciary

Answer 1

• Fed cts have the power to hear cases & controversies that are based on a fed question, diversity cases, & admiralty & maritime cases

Question 2

POWER OF THE JUDICIARY:

Standing

Answer 2

• Standing: An individual needs an injury in fact,
  causation, & redressability in order to file a lawsuit.
• The case must be* ripe & cannot be moot*.
• A court will not render advisory opinions!

Question 3

POWER OF THE JUDICIARY:

Organization Standing

Answer 3

• Organization: For an organization to have standing,
  it must show:
  (1) a member has standing,
  (2) the member’s injury is related to org’s purpose, and
  (3) individual members are not required to participate in the lawsuit.

Question 4

POWER OF THE JUDICIARY:

Adequate & Independent State Grounds

Answer 4

• Adequate & independent state grounds:
• SC can review decisions of the fed courts of appeals & federal decisions made by state courts.
• SC can hear the latter type of case if case involves a matter of fed law, it is a final judgment from the highest state court authorized to hear the case, & there are no adequate & independent nonfederal (state) grounds on which the state court decision is based.

• Tip: if a state ct decision rests on 2 grounds (a state ground & a federal ground) & SC’s reversal of the fed decision would not change the outcome, SC cannot hear the case

Question 5

POWER OF THE JUDICIARY:

Political Questions

Answer 5

• Fed cts will not hear political questions (those given to another branch of gov by the Constitution).

• Tip: Examples include: “republican form of gov” clause challenges, military/foreign affairs decisions, or impeachment

Question 6

POWER OF THE JUDICIARY:

Pending State Court Proceedings

Answer 6

• Fed cts should not enjoin pending state ct proceedings unless case is brought in bad faith/for harassment purposes.

Question 7

Powers of Congress:

Answer 7

• Congress makes the laws but needs bicameralism
  (approval by both houses) and presentment (approval by president) in order to pass a law.
• Congress gets its power from the Constitution.
  These powers include: NPC, TSP, CP, WDP

Question 8

Powers of Congress:

NPC; TSP; CP, WDP

Answer 8

(1) Necessary & proper power: must be combined w/ another power.
(2) Taxing & spending power: Congress may tax & spend for the general welfare. Tip: it cannot “act” for the general welfare.
(3) Commerce power: This is very broad. Congress can
regulate anything economic & noneconomic that substantially affects interstate commerce.
(4) War & defense power: Congress has the power to declare war.

Question 9

Powers of Congress:

Enforcement Power

Answer 9

• Enforcement power: Congress may enact legislation
  that is “congruent & proportional” to 13th Amend (outlaws slavery & badges of slavery), 14th Amend (Equal Protection & Due Process Clause) & 15th Amend (prohibits states from enacting racially discriminatory voting laws).

Question 10

Powers of Congress:

Other Powers

Answer 10

• Other powers: admiral & maritime power, property
  power, investigatory power, postal power, copyright and
  patent power, power to coin money, power to impeach,
  and the power to delegate powers.

Question 11

Powers of Congress:

Note

Answer 11

• Note: Congress can delegate legislative power to executive agencies/judiciary.
• However, power cannot be uniquely delegated to Congress by the Constitution (ex. power to declare war).

Tip: Congress does not have police powers except over (MILD) military bases, Indian territories, federal lands, & D.C.

Question 12

Powers of Congress:

Legislative Veto

Answer 12

• A legislative veto is unconstitutional.
• Occurs when Congress tries to overturn action by the executive branch without bicameralism & presentment.

Question 13

Powers of the President:

Answer 13

• President executes the laws & must enforce
  laws that are passed even if he disagrees w/ them.

Question 14

Powers of the President: Veto Power

Answer 14

• President can veto a law (but this can be overridden by a 2/3 majority vote by Congress).
• A line item veto (crossing out certain portions of the
  bill that the President does not approve of) is not
  permitted.

Question 15

Powers of the President:

Appointment & Removal Power

Answer 15

• President has the power to appoint* federal judges, ambassadors, & other principal officers* of the US, w/ Senate’s advice & consent.
• President may also remove executive officials without cause, at will unless Congress limits removal for “good cause.

Question 16

Powers of the President:

Pardons, War Power, Foreign Affairs

Answer 16

• Pardons: President may grant pardons for federal crimes.
• War power: President can respond to attacks/emergency situations. President cannot declare war.
• Foreign affairs: President has broad foreign affairs powers.

Question 17

Powers of the President:

Treaties & Executive Agreements, Immunity

Answer 17

• Treaties & executive agreements: President may enter into treaties with 2/3 Senate approval.
• President may enter into executive agreements with the heads of foreign countries.
• Immunity: President is absolutely immune from civil suits for damages for any official acts as President (but not purely personal/pre-presidential acts).

Question 18

Jurisdiction of Courts:

11th Amend

Answer 18

• Eleventh Amendment: A private individual cannot sue a state for money damages in fed ct.
• Tip: this is usually the wrong answer on the MBE.
• Congress cannot eliminate the SC/divide it.
• However, Congress may establish lower federal courts & give those cts jurisdiction to hear same types of cases that go to the SC (& it has done so for all cases besides cases between states).

Question 19

Court’s Jurisdiction:

SC’s Jurisdiction

Answer 19

• Original & exclusive jurisdiction for cases between states.
• Tip: only SC can hear cases between states.
• *Original *jurisdiction over any case that involves (APS) ambassadors, public ministers & consuls, or where the state is a party.
• Appellate jurisdiction: final judgment from the highest state court if case has a ** federal issue** & there are no adequate & independent state grounds. (There is also rare mandatory appellate jurisdiction.)

Question 20

Federalism & State Powers:

Federal government vs. states—federal government wins

Answer 20

• Supremacy Clause:*Fed law is supreme & prevails over state law. *
• States may not pass laws (1) that conflict w/ fed law, (2) that interfere w/ a fed objective, or (3) in areas where Congress has intended to “occupy the field.”
• Fed immunity from state law: A state cannot regulate/ tax fed gov.
• However, a state may tax fed employees the same that they tax everyone else.
• Tip: Bar exam favorite. Ex. fed gov does not have to abide by state environmental regulation b/c of fed immunity.
• 10th Amend: Any powers not given to fed gov are given to states.
• Tip: Fed gov cannot compel states to enforce fed statutes.
• (However, fed gov can “incentivize states to enforce such statutes by offering $$$ to states.)

Question 21

Federalism & State Powers:

Restriction on State Powers - The Article IV Privileges & Immunities Clause

Answer 21

• Article IV Privileges & Immunities Clause: States may not discriminate against out-of-state citizens w/ respect to fundamental rights unless there is a substantial justification & no less restrictive means.
• Tip: Usually the issue when state gives a hiring preference to its own citizens & discriminates against out-of-state citizens.
• Employment is only a fundamental right for purposes of Article IV.

Question 22

Federalism & State Powers:

Restriction on State Powers - The 14th Amend Privileges or Immunities Clause

Answer 22

• 14th Amend PIC: States are not allowed to pass laws that restrict access to vital governmental services (welfare benefits) to newcomers b/c such laws would interfere w/ a citizen’s fundamental right to travel from state to state.
• Tip: this is usually the wrong answer on the MBE.
• Dormant Commerce Clause: 2 kinds of discrimination:
• (1) Laws that expressly discriminate for the purpose of favoring in-state commerce. These are automatically struck down. (Ex. state law imposes high taxes on out-of-state goods & low taxes on in-state goods.)
• (2) Laws that discriminate against interstate commerce but are supposedly passed to promote the health, safety, or welfare of the state’s citizens. These are almost always invalid unless state can show the law was necessary to serve a compelling state interest & there is no reasonable non discriminatory alternative (strict scrutiny).
• If a state passes a non-discriminatory on its face law that is a burden on commerce (in-state & out-of-state parties are treated the same, e.g., “everyone driving through the state must have a certain kind of tire”), a balancing test is used (weigh effects of law on interstate commerce against **state’s interest **served by the law). The law is more likely to be upheld.
• Note: A commonly tested exception is where the state acts as a market participant—state acts as a *business rather than a regulator. *
• Tip: Remember that these rules apply to the states. Congress can pass laws that discriminate against commerce.
• Full Faith & Credit Clause: states must enforce judgments of other states if the court that rendered judgment had jurisdiction & judgment was a final judgment on the merits.

Question 23

FREE SPEECH AND THE FIRST AMENDMENT

Answer 23

Start: Is there a gov regulation of private speech?
Yes: What kind of speech restriction is at issue?
No: There is no First Amendment free speech issue

Question 24

What kind of speech
restriction is at issue?

Answer 24

• Content-based restriction: Strict scrutiny applies unless:
  1. Symbolic speech (regulating conduct; ex. nudity): law regulates conduct & places an incidental burden on speech is allowable if regulation is narrowly tailored to an important governmental interest & it is unrelated to suppression of speech.
  2. Unprotected/less protected speech
• Viewpoint-based restriction: Strict scrutiny applies. Struck down.
• Time, place, manner (content-neutral or -based): Public forum (2 kinds); Private forum (military bases, airports, & prisons)

Question 25

Unprotected or less protected speech

Answer 25

• Unprotected speech (clear & present danger, fighting words, true threats, obscenity)
• Less-protected speech:
• Commercial speech:
  1. speech must be lawful & not misleading,
  2. statute must serve a substantial gov interest,
  3. statute must directly advance that interest, and
  4. statute must be narrowly tailored (not more excessive than it needs to be).
• School speech: public school students have free speech rights but speech may be regulated if regulations are ** reasonably related to legitimate** educational concerns.
• Sexual/indecent speech: Regulation must:
  (1) serve a substantial gov interest, and
  (2) leave open reasonable alternative channels of communication.

Question 26

Time, place, manner (content-neutral or -based): Public forum (2 kinds)

Answer 26

• Designated/limited public forum (ex. schools w/ after-school clubs)
• Traditional public forum (ex. streets, sidewalks, &parks)
• Test: regulation must (1) be content neutral, (2) be narrowly tailored, and (3) leave open alternative channels of communication.

Question 27

Time, place, manner (content-neutral or -based):

Private forum (military bases, airports, & prisons)

Answer 27

• Test: regulation must (1) be viewpoint neutral, and (2) have a reasonable relation to a legitimate gov interest.

Question 28

OTHER FIRST AMENDMENT PRINCIPLES

Answer 28

• Prior restraint: When the gov prevents speech b/f it is communicated. Strict scrutiny applies.
• Tip: usually struck down.
• Overbreadth: a law is unconstitutional on its face if it prohibits substantially more expression than is necessary.
• Vagueness: a statute is vague & unconstitutional
  on its face if a reasonable person could not tell what speech is prohibited & what speech is allowed (ex. statute prohibits words that “tend to breach the peace” is vague & unconstitutional).

Question 29

OTHER FIRST AMENDMENT RIGHTS

Answer 29

• Freedom of religion
• Establishment Clause: Law must be neutral. Gov must have secular legislative purpose, primary effect must not be to advance/inhibit religion, & it must not foster excessive gov entanglement.
• Free Exercise Clause: Beliefs are absolutely protected.
• Conduct is not.
• Gov may pass neutral laws of general applicability if goal *isn’t to burden/interfere * w religion.
• Freedom of the press: Press has a right to publish infor that is true & a matter of public concern. It has no greater freedom to speak than anyone else.
• Other freedoms: freedom of association, freedom of assembly, & right to petition gov for redress of grievances.

Question 30

DUE PROCESS

Answer 30

• The focus is on right that is being burdened.
• Due Process Clause 5th Amend: applies to states through 14th Amend
• Procedural due process: Gov may not intentionally deprive someone of life, liberty, or property w/o notice & opportunity to be heard.
• Tip: property includes public education & public employment that is not at-will employment.
• Substantive due process:
• Strict scrutiny for fundamental rights: burden on gov to show the law is necessary for a compelling interest.
• Ex. privacy rights (MCSOFA = marriage, contraception & procreation, sexual conduct, obscenity in the home, family relations, abortion), right to vote, right to interstate travel, & right to refuse medical treatment.
• Rational basis for everything else: burden on P to show the law is not rationally related to a legit gov interest.
• Ex. Right to education, welfare benefits, & all economic regulations.
• Tip: right to education is not a fundamental right & undergoes rational basis scrutiny.

Question 31

EQUAL PROTECTION

Answer 31

• The focus is on the class that is being discriminated
  against.
• EPC applies to states through 14th Amend & fed gov through DPC of 5th Amend.
• Strict scrutiny (NC): burden is on gov to show law is necessary for a compelling gov interest.
• E.g., (FAR) fundamental rights when a class is involved, alienage if a state is discriminating (unless the public function doctrine applies, in which case standard is rational basis), & race.
• Tip: the public function doctrine allows states to exclude noncitizens from certain gov jobs (e.g., public school teachers & police officers).
• Intermediate scrutiny (SRI): burden is on gov to show regulation is substantially related to an important gov interest.
• E.g., (GI) gender & illegitimacy.
• Rational basis (RRL): burden is on P to show law is **not rationally related to a legit gov interest. **
• Tip: P usually loses!
• E.g., classifications based on age, education, wealth.

Question 32

OTHER RIGHTS

Answer 32

• Ks Clause: A state may not pass legislation that substantially impairs preexisting contracts unless the law serves an important & legitimate public interest & it is reasonable & narrowly tailored to promoting that interest.
• Tip: usually the wrong answer on the MBE.
• Ex post facto laws: neither states nor fed gov may pass legislation that retroactively alters a criminal law in a substantially prejudicial manner for purpose of punishing a person for some past activity.
• Bill of attainder: neither state nor fed gov may pass legislation that specifically identifies people to be punished (civilly/criminally) & imposes punishment w/o a judicial trial.
• Unconstitutional conditions: gov cannot condition a person’s receipt of a governmental benefit on the waiver of a constitutionally protected right.

Question 33

Takings:

Answer 33

• Gov may not take private property for public use without just compensation.
• A taking can be physical/regulatory.
• A taking is regulatory if a regulation deprives one of all economic value.
• An unconstitutional exaction is also a regulatory taking.

Question 34

State Action Requirement:

Answer 34

• If P sues under 1st, 14th, or 15th Amends (e.g., for free speech, DP, EP issues, or voting rights), P must show state action.
• State action is present if state passes a law, if a private actor performs a “traditional & exclusive” gov function (e.g., a company town), or if private action is closely controlled by the state.