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Flashcards in Con Law Deck (117)
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The Nature of Judicial Review

A. Organization and relationship of state and federal courts in a federal System
B. Jurisdiction
1. Constitutional Basis
2. Congressional power to define and limit
3. The Eleventh Amendment and State Sovereign immunity
C. Judicial Review in operation
1. The "case and controversy" requirement, including the prohibition on advisory opinions, standing, ripeness, and mootness
2. The "adequate and independent state ground"
3. Political questions and judiciability


The Separation of powers

A. The power of Congress
1. Commerce, Taxing, and spending powers
2. War, defense, and foreign affairs powers
3. Power to enforce the 13th, 14th, and 15th Amendments
4. Other powers
B. The Powers of the President
1. As chief executive, including the "take care" clause
2. As commander-in-chief
3. Treaty and foreign affairs powers
4. Appointment and removal of officials
C. Federal interbranch relationships
1. Congressional limits on the executive
2. The presentment requirement and the President's power to veto or to withhold action
3. Non-delegation doctrine
4. Executive, legislative, and judicial immunities


The relation of nation and states in a federal system

A. Intergovernmental immunities
1. Federal immunity from state law
2. State immunity from federal law, including the 10th Amendment
B. Federalism-based limits on state authority
1. Negative implications of the commerce clause
2. Supremacy clause and preemption
3. Full faith and credit
4. Authorization of otherwise invalid state action


Individual Rights

A. State action
B. Due Process
1. Substantive due process
a. Fundamental rights
b. Other rights and interests
2. Procedural due process, including personal jurisdiction
C. Equal protection
1. Fundamental rights
2. Classifications subject to heightened scrutiny
3. Rational Basis review
D. Takings
E. Other protections, including the Privileges and Immunities Clauses, the Contracts Clause, unconstitutional conditions, bill of attainder, and ex post facto laws
F. First Amendment Freedoms
1. Freedom of religion and separation of church and state
a. Free exercise
b. Establishment
2. Freedom of expression
a. Content-based regulation of protected expression
b. Content-neutral regulation of protected expression
c. Regulation of unprotected expression
d. Regulation of commercial speech
e. Regulation of, or impositions upon, public schools students, public employment, licenses, or benefits based upon exercise of expressive or associational rights
f. Regulation of expressive conduct
3. Freedom of the press
4. Freedom of association


There are two common types of Constitutional Law MBE questions

1. You're asked about the validity of a statute; or
2. You're asked to identify the best or worst argument for upholding or overturning a statute


Determine what the various constitutional clauses do. Meaning you have to make what two determinations with about the clause

1. To whom does the clause apply? Federal government, states or both?
2. What does the clause do? Is it a source of power-or does it prohibit something?


Commerce Clause, Article I, Section 8, Clause 3

Applies to: Federal Government
Source or Prohibition? Source of the Federal Governments Power


Under the Commerce Clause, Congress can regulate four categories of activities involving interstate commerce

(1) Channels of interstate commerce;
(2) Instrumentalities of interstate commerce;
(3) Articles moving in interstate commerce, and
(4) activities "substantially affecting" commerce


In order to determine whether Congress can regulate an activity, you need to determine that

(1) the activity is commercial, and (2) the activity "substantially affects" interstate commerce or the activity is part of a general class of activities that collectively, substantially affect interstate commerce. If both are true, then the statute is valid under the Commerce clause.


If the activity involves a non-commercial activity, the test is stricter, and

You must find a "pretty obvious connection" between the activity and interstate commerce for the statute to be valid under the Commerce Clause


Most Commerce Clause questions on the MBE involve the

Sale or distribution of an item, usually in a commercial setting


According the the US Supreme Court's interpretation of the Commerce Clause, Congress is not authorized to

Require someone not involved in commerce to enter into a commercial transaction. However, Congress may be authorized under the Tax and Spend authority.


When a person is already involved in a relevant aspect of commerce

Congress's power to regulate the person's commercial behavior is very broad.


The Commerce Clause creates a limitation on

powers of the state.


The only time you analyze state statutes' impact on interstate commerce under the Commerce Clause is when

There is no relevant federal legislation.


What is the test or determination of a state power that involves commerce, and there is no federal statute or legislation

You need to determine if the state statute or regulation "unduly burdens interstate commerce.


If there is a federal statute and the state attempts to regulate in the same space...

Then you analysis falls under the Federal Supremacy Clause.


Under the federal supremacy clause there are two questions to ask:

1. Did Congress expressly authorize or prohibit state regulation in the specific area? If so, that controls. If not, then "with no express authorization or prohibition by Congress, you have to determine if the federal law preempts the state law. If the state law "directly contradicts" the federal law, the state law will be preempted. If there is no "direct" conflict" you have to determine if Congress intended the federal law to occupy the "entire" field.


What are the four to determine if the Congress intended the federal law to occupy the entire field, but left some parts of the area or field unregulated?

1. Whether the subject matter is traditionally classified as local or federal;
2. How persuasive the federal regulation is;
3. How similar the state and federal laws are (the more they coincide, the more likely it is that federal law was intended to supersede state law);
4. Whether there is a need for uniform federal regulation.

PUSH (Persuasive, Uniformity, Similarity, History)


Welfare Clause Article I, Section 8

Applies to: Federal Government
Source or prohibition: Source


What does the welfare clause authorize

The Welfare Clause gives Congress the power to tax and spend for the general welfare. Any federal legislation reasonably related to this power will be valid (assuming it does not violate some other Constitutional provision, such as Equal Protection).


What are the limitations on the Welfare Clause

Congress does not have the power to enact any legislation that promotes the general welfare of the nation under the Welfare Clause. Just remember that "Tax and Spend" is the scope of the power


Under what authority do the states have to legislate the general welfare of its citizens

under the states "police power." The states do not have a Welfare Clause, just like the federal governments do not have a federal police power


Contacts Clause, Article I, Section 10

Applies to: States only
Source or Prohibition: Prohibition


The Contracts Clause, or "Obligations of Contracts" Clause, prohibits

States from passing any law that impairs the obligations of contracts. It usually occurs when a state attempts to try and "escape its own obligations."


What is the most important thing to remember about the Contract Clause?

The most important thing to remember is that as a prerequisite for protection under the Contract clause, the contract must have existed when the statute passed. States can regulate contract formation. Thus, when the "Contracts Clause" is an answer choice, the first thing you should do is check to see if the contract in question predates the offending statute. If not, then the Contracts Clause is irrelevant


When are state modifications permissible under the Contracts Clause

state modifications of contracts will be permissible if the modifications (1) serve an "important and legitimate public interest" and (2) are necessary to achieve that public interest, and if (3) the contract impairment is reasonable under the circumstances.


Privileges and Immunities Clause: both of them

1- Privileges and Immunities of the Fourteenth Amendment
Applies to: States
Source or Limitation: Limitation

2- "Interstate" Privileges and Immunities Clause, Article IV, Section 2
Applies to: States
Source or Limitation: Limitation


Privileges and Immunities Clause of the Fourteenth Amendment

This avoids state enactments which clearly infringe on the privileges of national citizenship. The protection is limited to the fundamental rights shared by all citizens, namely the right to travel freely from state to state, to petition Congress for redress of grievances, to vote for national officers, to assemble peaceably, and to discuss matters of national legislation.


Is the Privileges and Immunities Clause of the Fourteenth Amendment narrowly or broadly construed? and Why?

The P & I of the 14th Amendment is narrowly construed because the same rights and privileges are protected against state encroachment by hte Due Process and Equal Protection Clauses of the Fourteenth Amendment, so wherever Privileges and Immunities seems to apply, Due Process and Equal Protection would be a stronger argument against the constitutionality of the state action in question