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Texas Bar Exam: MBE > Constitutional Law > Flashcards

Flashcards in Constitutional Law Deck (160)
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Which clause of the Constitution protects members of Congress from statements and conduct made in the regular course of the legislative Process?

The Speech or Debate Clause of Article I


T/F - Because Congress has exclusive authority over interstate commerce, it may explicitly permit states to act in ways that would otherwise violate the Dormant Commerce Clause.



Is there a right to travel internationally? If so, is it a fundamental right triggering strict scrutiny?

Although there is a right to travel internationally, it is not a fundamental right. The federal government may limit travel to foreign countries as long as it has a rational basis for doing so.


Is there a federal equal protection clause?

Technically no. However, the Supreme Court has held that the Due Process Clause of the Fifth Amendment (which applies to the federal government) incorporates the Equal Protection Clause of the Fourteenth Amendment (which applies to the states).


What is the Comity Clause also known as? What does it do? Who does it apply to?

The Privileges and Immunities Clause. It prohibits a state from discriminating against the citizens of another state. It does not apply to the federal government.


Which type of violations of the Equal Protection Clause trigger intermediate scrutiny?

Discrimination based on gender or legitimacy.


What is the order of importance given to these types of legislation from top to bottom: executive agreements, congressional legislation, state statutes, treaties?

1) Congressional Legislation
2) Treaties
3) Executive Agreements
4) State Statutes


What level of scrutiny is triggered when state action discriminates against the poor? Are there exceptions?

Generally, this type of discrimination is only subject to rational basis scrutiny. However, denying an indigent person a fundamental right (such as divorce or appeal of imprisonment) through the imposition of a court fee that they are unable to pay violates the Due Process and Equal Protection Clauses of the Fourteenth Amendments.


T/F - The right to assert a Tenth Amendment challenge to a federal statute belongs only to the states.

False. An individual, as well as a state, may have standing to challenge a federal statute on Tenth Amendment grounds.


Does an assignee of a claim have standing under Article III to bring the claim even though they aren't the ones suffering injury on the original claim?

Yes, even if the claim is mature at the time of assignment and the assignment is made for collection only. Although the assignor is the one who suffered injury, an assignee may sue on the basis of the assignor's injuries.


What does Section 5, the Enabling Clause, of the Fourteenth Amendment do?

Permits Congress to pass legislation to enforce the EP and DP rights guaranteed by the Fourteenth Amendment, AS LONG AS there is "congruence and proportionality" between the injury to be prevented or remedied and the means adopted to achieve that end.


What type of conduct can Congress not override state government action under the Enabling Clause of the Fourteenth Amendment to prevent?

Wholly private conduct.


T/F - A president enjoys immunity from an action for civil liability that stems from conduct before and after the president took office.

False. A president does not enjoy immunity from an action for civil liability that stems from conduct before the president took office. This includes remarks made during presidential debate.


What does the Tenth Amendment do? What is its effect on federally compelled state legislation?

It specifies that all powers not specifically assigned to the federal government are reserved to the states and the people. The ability to enact state legislation is an exclusive state power, and the federal government cannot directly compel a state to enact legislation.


What is Article III of the Constitution the source of?

The Judicial Power. Article III lists the kinds of cases that come within the judicial power of the United States. The most important are diversity jurisdiction and federal question jurisdiction.


What is the major exception to the judicial power?

The 11th Amendment. This enforces the preexisting concept of state sovereign immunity.


What is State Sovereign Immunity? Are there any exceptions?

You cannot sue a state for money damages in either in that state's own court or in federal court UNLESS the state consents OR the U.S. Congress expressly says so to enforce 14th Amendment rights.

Note: You may sue a state for money damages in a sister state's court.


What levels of government does the 11th Amendment protect?

States and state agencies. The 11th Amendment sovereign immunity does NOT protect local governments (no protection for cities, counties or towns).


If a state government is protected by the 11th Amendment, then who is left to sue? What kind of damages can you seek?

You can sue a state officer. You can always get injunctive relief simply by enjoining the appropriate state officer (e.g., the attorney general). Money damages are also available, but ONLY from the officer personally.

Note: Damages from the state treasury are barred unless Congress expressly says so to enforce individual rights.


What are the types of Jurisdiction of the U.S. Supreme Court? Explain them.

Original Jurisdiction and Appellate Jurisdiction. Original Jurisdiction is when a case may first be filed in the Supreme Court (these are mostly controversies between states. Appellate Jurisdiction is established by either Certiorari or by direct appeal.


What is a Writ of Certiorari? Why is it important?

Almost all cases come to the Supreme Court by way of writ of certiorari. The key factor is that certiorari is discretionary with the Supreme Court (making it the only court with discretionary jurisdiction.


Who can control the Supreme Court's appellate jurisdiction? How?

Congress can effectively control the Supreme Court's docket by legislating exceptions to its appellate jurisdiction.


What does AISG stand for? Why is it important?

Adequate and Independent State Grounds. This arises only in the U.S. Supreme Court when reviewing a state court decision. It means that the court has no jurisdiction if the judgment below rested on an adequate and independent state ground. In other words, the SC can only review a state court judgment ONLY if it turned on federal grounds.

Note: If the claimant (party claiming a federal right) wins under state law anyways, then you have AISG.


T/F - The U.S. Constitution is the ceiling, not the floor. Explain.

False. The U.S. Constitution is the floor, not the ceiling. This means that a state court construing a state constitution can always give more protection than the U.S. Constitution. However, it cannot give less protection.


Do you have Adequate and Independent State Grounds if state law adopts or follows a federal law directly?

No. This would not be "Independent."


If a state court decision involves similar state and federal statutes, but is unclear on whether it relies on state law or federal law in its determination, can the U.S. Supreme Court review for a federal issue? Is there AISG?

Yes, the Supreme Court can review the decision. Only have Adequate Independent State Grounds if it is clear that the claimant won under the state statute. If the Supreme Court disagrees with the state court's understanding of the federal issue, it remands the case back to state court so that the state court can reconsider the case under state law.


What must be shown to have standing to sue under Constitutional grounds? Explain each element.

1) Injury - Almost anything can be injury (past or future), especially if Congress says so. The injury must be concrete (not abstract), but it doesn't have to be economic. Mere ideological objection is not injury.

2) Causation - Defendant's act must have caused or will cause the injury.

3) Redressability - The court must be able to remedy or redress the injury. Injuries in the past usually are redressed by damages, whereas injuries in the future are redressed with an injunction.


T/F - Past injury gives automatic standing to seek an injunction for future injury.

False. You must show that the injury will happen again. Past injury is not enough to seek an injunction to redress future injury.


Does an organization have standing to sue on behalf of its members?

Yes as long as its members have standing.


Is the injury element of standing satisfied if you merely have your freedom of movement or enjoyment of public space impaired?