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MBE: Final Review > Constitutional Law > Flashcards

Flashcards in Constitutional Law Deck (38):

Congress: Taxing and Spending Powers: Four Rules

1. Plenary (exclusive) power to tax

2. General welfare purpose

3. If any conceivable rational basis, it will be upheld

4. Congress may attach conditions to grant of money
• must relate to a federal interest


Congress: Commerce Clause

Rule: Congress may regulate interstate commerce
• plenary (exclusive) power

• economic activity regulated by congress has an affect on interstate commerce

• congress may delegate this power to the states (i.e., insurance companies)
- but state law must not (i) be an impermissible restraint, (ii) be an undue burden on interstate commerce, or (iii) protect local economic interests


• Rule
• Test

Rule: if congress passes a law and has preempted the field, state legislation in that field will be held unconst'l

1. Congress expressly says they're regulating the field OR
2. Law is silent, but congressional intent was to preempt the field


• Test (3)
• Exception

1. Concrete injury (or threat of injury) in fact not suffered by all persons
2. Causal link b/t injury and challenged law AND
3. Injury is capable of being remedied by a decision in P's favor

Exception: Third-Party Standing


Certiorari: One ground for denying cert

If state court's decision is based on an AISG, SCOTUS won't hear the case


Advisory Opinion: Four Rules

1. Fed cts can't issue these (no exceptions)
2. Congress can't pass laws to authorize a court to do this
3. States may issue advisory opinion (up to them)
4. Test: diff branch of gov't could review fed ct's opinion --> advisory opinion


Third-Party Standing: Example

A seller of goods or provider of services has standing if the law adversely effects his customers (b/c seller suffers harm if the law stays on the books)


May congress direct the Prez on how to use fed troops?

No - the Prez is the Commander in Chief


President: President

Prez may pardon FEDERAL prisoners


Equal Protection: Rational Basis
• Standard
• Categories

Const'l unless challenger establishes that the classification serves no LEGITIMATE gov't purpose
• anytime you don't use intermediate or strict scrutiny


Equal Protection: Intermediate Scrutiny
• Standard
• Categories

Unconst'l unless gov't establishes that legislation was SUBSTANTIALLY RELATED to an IMPORTANT gov't purpose
• Gender
• Undocumented Kids
• Non-Marital Kids


Equal Protection: Strict Scrutiny
• Standard
• Categories

Unconst'l unless gov't establishes that legislation was NECESSARY to achieve a COMPELLING gov't interest
• Race
• Religion
• Nat'l Origin
• Alienage (most cases)
• Fundamental Rights (travel + vote)


Equal Protection: Alienage: Level of Scrutiny

1. Congress --> rational basis

2. State --> strict scrutiny
• exception - citizenship req't for state position essential to state gov't (rational basis)
- judges, cops, school teachers, and jurors


Equal Protection: Age: Level of Scrutiny

Rational Basis


Due Process: Prior Convictions and Suspending Driver's Licenses

Don't need a separate hearing to suspend driver's license when the suspension is based on previous convictions


State Action: Nexus Between Gov't and Non-Gov't D
• Rule + Exception

Licensing and activity, and gov't assistance (land, money, or both) is NEVER enough to convert D's activity to state action


Is there an equal protection clause of 5A applicable to the federal gov't?

No - the only clause that explicitly refers to equal protection is the 14A, and that's a limit on the states


Does the due process clause of the 5A protects all citizens from a denial of equal protection by the federal gov't?



1A: Reasonable Restriction Test

Time, place, and manner restrictions are reasonable if:
1. content-neutral
2. narrowly tailored to serve important gov't interest
3. leave open alternative channels of communication


1A: Freedom of Religion: Free Exercise Clause

A law of general application that's not intended to interfere with religion can be applied to a person, even if it requires conduct:
1. Contrary to a person's religious belief or practice OR
2. Condemns conduct a person's religion requires

Strictly construed: State may adopt regs that incidentally interfere w/ religious practice or belief


1A: Freedom of Religion: Establishment Clause
• Rule
• Test

Rule: Gov't can't pass laws effecting the establishment of religion

Lemon Test:
1. Secular purpose for the law
2. Effect of law can't advance or inhibit a religion AND
3. No excessive gov't entanglement w/ a religion


Privileges and Immunity Clause of the 4A

Prohibits a state from discriminating against citizens of other states (in favor of its own citizens) w/ respect to certain fundamental rights (i.e., employment)
• Test: OK if state provides a substantial justification for the discrimination


Contracts Clause: State or Fed Gov't

Applies only to the states


Regulating Foreign Commerce: Power of Which Branch?

Rule: Lies exclusively w/ Congress

Exception - delegable to the Prez


Contracts Clause

Rule: A state may not impair the obligation of a contract

1. Important gov't interest
2. Reasonably related means


Which amendment applies to private parties

13A - but there must be an "incident or badge of slavery"


DPC: Property: Continued Employment

Gov't employee has a property interest in continued employment only if the employee has a legit claim
1. Contract
2. Clear practice AND
3. Mutual understanding that the employee can be terminated only for cause


Congress: Investigative Powers

Coextensive w/ the power to legislate
• Congress must appoint the members
• But commission can't exercise enforcement powers


Taxpayer Standing
• Rule
• Exception

Rule: No standing to challenge the expenditure of federal funds

Exception: May allege that the congress's expenditure of federal funds under its taxing/spending power violates the Establishment Clause


Congressional Standing

Congressional members lack standing to challenge a law authorizing the Prez to exercise a line-item veto b/c the injury is institutional (not concrete/personal) in that it's shared by all congressional members


Congress: Appointments Clause

Congress may vest appointments of inferior officers in the Prez, courts, or Heads of Departments


State Taxation of Interstate Commerce
• Rule
• Exception

Rule: States may impose doing biz taxes on companies engaged in interstate commerce as long as the tax doesn't discriminate against or unfairly burden interstate commerce

Exception: A state tax imposes an unfair burden unless:
1. Activity has a substantial nexus to the taxing state
2. Tax is fairly apportioned AND
3. Tax fairly relates to services the state provides


14A: Right to Travel

An individual has a fundamental right to travel from state to state


Gov't Speech
• Rule
• Example

Rule: Gov't may choose which message it will or won't convey (absent some other const'l proscription)

Gov't speech = permanent display on gov't building


1A: Overbreadth

If a regulation of speech punishes a substantial amount of protected speech (judged in relation to the regulation's plainly legitimate sweep), the regulation is facially invalid and can't be enforced against anyone
• even if someone engages in activity that wouldn't constitutionally be protected, the regulation still can't be enforced if it's overbroad


1A: Prior Restraint
• Definition
• Standard of Review

Definition: Gov't tries to prohibit dissemination of speech before it's being made

Standard: Strict Scrutiny


Commercial Speech

Protected provided it's not false, misleading, or illegal


1A: Establishment Clause: Legislative Prayer

OK b/c of country's long history with this practice