MBE Federal Constitutional Law Flashcards
Individual Rights > Equal Protection
When a statute (the government) treats some people differently from other people.
- Theme is PEOPLE, once we know statute refers to people, see who the people are who are being treated differently.
If they are being treated differently based on their:
A) Race, Alienage * , National Origin
- STRICT Scrutiny = Government has the burden to prove law is NECESSARY to achieve COMPELLING Interest
B) Gender, Illegitimacy *
- INTERM Scrutiny = Government has burden to prove law SUBSTANTIALLY related to IMPORTANT Interest
C) Everyone Else
- RATIONAL basis = Plaintiff has burden to show law is NOT RATIONALLY RELATED to a LEGITIMATE interest.
2 type of questions for EP (1) recognize issue (2) what scrutiny applies
Alienage - Non-U.S. Citizen
Illegitimacy - illigitimate children (out of wedlock at birth)
Individual Rights = REDS
Individual Rights > Due Process > Procedural DP
affects individuals
If a property right is taken away, person shall have right to NOTICE and right to a HEARING
- Property = public ( or gov.) licenses, jobs, benefits only, no private
- make sure property was EARNED/ENTITLED first
procedural - right to appeal and fight
Individual Rights > Due Process > Substantive DP
recognize issue + what scrutiny applies
affects EVERYONE
1) Statute (Gov’t) depriving ALL PEOPLE of doing something.
Depends on WHAT RIGHTS are being deprived.
* If FUNDAMENTAL right = STRICT Scrutiny
* If NON-FUNDAMENTAL right = RATIONAL Basis
Fundamental Rights – F VIP
1) Voting (political association)
2) Free Speech
3) Interstate Travel (travel out of state)
4) Privacy Rights (CAMPER)
* Contraception
Abortion - see clarifier
Marriage
Procreation
Education (private only)
Right to raise your family
abortion - current standard is cannot place “undue burden” but if new law is passed in light of recent SC decision, will be Rational Basis scrutiny applies.
Will never ban the right completely in the Q, will only affect it in some way
Individual Rights > Religion > Free Excercise of Religion
INDIVIDUAL has the right to exercise their religion in any manner they choose, as long as they do not violate the law.
Government CAN’T make a law with the intent or purpose to affect religion
- Look for Government INTENT – The government must remain neutral,
the effect will always look bad on the Q, but look to see what the intent was of the Gov.
Individual Rights > Religion > Establishment Clause
Under the Establishment Clause:
1) It is INVALID for a government regulation or action to include a preference for one religious sect over another
2) If the Government makes a law that may be too closely related to religion (no sect preference). Apply the three-part LEMON test:
Valid if:
1) statute has secular purpose (non-religious)
2) primary effect neither promotes nor inhibits a religion
3) government cannot get too “entangled” with religion
* entanglement - money, sponsoring, subsidizing, tax breaks, paying for, etc.
Individual Rights > Freedom of Speech > 2 types of government regulation of speech
Government cannot ban speech, but can regulate speech. Speech = any form of expression.
- March
- Parade
- Protest
1) Content BASED: Government regulating the WORDS/MESSAGE that we are saying. Complete shut down based on the substance of what the speech is communicating.
- Strict Scrutiny - NECESSARY to achieve COMPELLING Interest
2) Content NEUTRAL: Government regulating the TIME, PLACE, and MANNER in which speech happens. Not trying to stop the substance of the message.
- Intermediate Scrutiny – Ok as long as it furthers a SIGNIFICANT or IMPORTANT interest
- Must leave open alternative means of expression
Seperation of Powers > Executive Branch Powers
1) Pardon
- Only Federal Crimes
2) Veto
- can be overridden by congressional veto
3) Appointment
- Sole Power to Appoint officials only to make rules, regulations, prosecution
- Can jointly appoint officials with Congress only if it’s not for rules, regulations, prosecutions
4) Commander-in-Chief
- move/command troops. Not declare war, that’s for Congress.
5) Executive Order
- Becomes law until and unless Congress makes law superseding it. ex: Obama’s border policy.
- The president does not have the authority to direct the actions of persons outside the executive branch unless authorized by an act of Congress
6) Executive Agreement
- an agreement entered into between a foreign government and the executive branch of the United States.
Executive === Legislative === Judicial
The Executive branch usually has interferences with the Legislative branch
Seperation of Powers > Legislative Branch Powers
1) Commerce
- Plenary (BIG) Power - encompasses almost any economic act that could conceivably have some kind of impact, even secondarily, on the stream of commerce.
2) Taxing
- if it raises revenue for the general welfare
- (public purpose)
3) Spending
- if spending is for the general welfare
- (public purpose)
4) Coin Money
- Printing Money
5) Federal Lands
- Jurisdiction over national parks and monuments
- Washington DC too
6) Declare War
- Declarations of War
Executive === Legislative === Judicial
The Legislative branch will usually have interferes with both Executive and Judicial branch
Seperation of Powers > Judicial Branch Powers (federal courts)
1) Original Jurisdiction vs. Appellate Jurisdiction
- Congress shall not enlarge or restrict the original jurisdiction of SCOTUS.
- 2 ways for a case to get to the Supreme Court of the United States (SCOTUS). Straight there (original jurisdiction) and on appeal (appellate jurisdiction)
Supreme Court (Judicial) vs. Lower Federal Courts (Legislative)
- Original Jurisdiction - Congress cannot send a case directly to SCOTUS or tell SCOTUS what cases they should hear.
- Appellate Jurisdiction - Congress may have jurisdiction over the lower federal courts and can create more lower federal courts.
Executive === Legislative === Judicial
Supremacy Clause
When Federal Law conflicts with State Law, Federal Law wins.
Look for 2 statutes in fact pattern
State’s Rights - 10th Amendment (States Police Power)
When there is no conflict between Federal and State law:
- State law can be stricter, but can’t be LESS restrictive than the Federal Law
When there is no Federal law on the subject:
- State can exercise Police Power to Provide for the health, safety, and welfare of its citizens. There is no Federal Police Power
Commandeer rule
Congress shall not, by law, require or obligate a State to do something
buzzwords - require/obligate
Priviledges & Immunities Clause
When one State discriminates against residents of another State
discrimination based on residency
not to be confused with U.S. residency (alienage under EP - SS)
Limitation on Bringing Cases to Court
1) Standing - Plaintiff must have actual injury
2) State Action - Defendant must be State Actor
- Can never go after private actor/entity no matter what UNLESS based on racial discrimination (under the 13th amendment which banned slavery)
3) Mootness - Case is over, issues have already been litigated and decided. (aka no case or controversy)
4) Ripeness - Case not ready for trial, nothing has happened yet. (aka no case or controversy)
- Ex: Legislative body is “considering passing legislation” or “not yet enacted”
Dormant Commerce Clause
Need to know - on the test it won’t say “Dormant”
If Congress has not enacted laws regarding the subject (or allows it),
A STATE GOVERNMENT (or local) MAY regulate local aspects of interstate commerce if the regulation:
1) DOES NOT DISCRIMINATE AGAINST OUT-OF-STATE competition to benefit local economic interests; AND
- Generally Unconstitutional
- EXCEPTION: Market Participant - When State manages/controls the whole business or industry; (Florida Power & Light); Example: A state may purchase scrap automobiles from its citizens at a higher-than-market rate and refuse to pay nonresidents the same amount.
AND
2) IS NOT UNDULY BURDENSOME
- i.e., the incidental burden on interstate commerce does not outweigh the legitimate local benefits produced by the regulation.
If either test is violated, the regulation will be held void for violating the Dormant Commerce Clause
