MBE Conlaw Flashcards
(46 cards)
11th AMD
The Eleventh Amendment prohibits an action in federal court by a citizen of one state against another state when the basis for the action is the violation of state law.
Standing requirement
- particularized injury - actually occurred or imminent
- D caused injury
- relief requested likely to redress the injry
Export Taxation Clause, Art I, Sec 9 of the USCTT
Congress may not tax goods exported to foreign countries. Under the Export Taxation Clause, a tax or duty that falls on goods during the course of exportation or on services or activities closely related to the export process is prohibited.
Militia Clause
National Guard units are under the dual control of the federal and state governments. Under the Militia Clauses (Art. I, Sec. 8, Cl. 15, 16), Congress has the power to authorize the President to call National Guard units to execute federal laws, suppress insurrections, and repel invasions. This constitutional authority extends to use of National Guard units in domestic situations and non-emergency circumstances, and is not subject the approval or veto of the governor of a state.
Federal Alienage Classification
Congress has plenary power over aliens under Article I, and the power to expel or exclude aliens is a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control. Therefore, a federal alienage classification is likely valid unless it is deemed arbitrary and unreasonable.
Enclave Clause
Under Article I, Section 8, Clause 17 of the U.S. Constitution, also known as the Enclave Clause, Congress has the general police and regulatory powers over the District of Columbia that a state enjoys over persons and things within its boundaries. Among those powers is the power to tax or not to tax income earned within its boundaries.
Anti Commandeering
Congress cannot “commandeer” state legislatures by commanding them to enact specific legislation or enforce a federal regulatory program, and it may not circumvent that restriction by conscripting a state executive officer directly. In this case, the provision of the new law required the assistance of state health officials in conducting background checks. Because the provision of the federal law required state officials’ aid in administering the regulatory program, it is unconstitutional.
Congress + power to regulate int’l commerce?
Congress has the power to regulate international commerce. The tariff in question is a valid exercise of this power.
Public employee + entitlement? what kind of due process required?
A public employee who may be discharged only for cause has a property interest in her job and therefore is generally entitled to notice of termination and a pre-termination opportunity to respond unless there is a significant reason for the employee’s immediate removal.
Remedial statute. Standard of review?
Rational basis
Ex post facto law
that retroactively makes criminal conduct that was not criminal when performed, increases the punishment for crimes already committed, or changes the rules of procedure in force at the time an alleged crime was committed in a way substantially disadvantageous to the accused.
Voting, a fundamental right? restriction?
Y
As permitted by Section 2 of the Fourteenth Amendment, a state may prohibit a felon from voting, even one who has unconditionally been released from prison.
Right to family
A fund right
Facially neutral + Disparate impact law
What is needed to show discrimination?
A law that is neutral on its face and in its application may still result in a disparate impact. By itself, however, a disparate impact is not sufficient to trigger strict or intermediate scrutiny; proof of discriminatory motive or intent is required to show a violation of the Equal Protection Clause.
Programs that dicriminate based on race
Affirmative action program to remedy past wrongs
Programs that discriminate based on race, even if they favor racial or ethnic minorities, are subject to strict scrutiny; and for a governmental affirmative action program based on race to survive, the relevant governmental entity must show more than a history of societal discrimination. The government—whether federal, state, or local—must itself be guilty of specific past discrimination against the group it is seeking to favor, and the remedy must be narrowly tailored to end that discrimination and eliminate its effects
Voting district drawing + race as a predominant factor
Under the Equal Protection Clause, election districts for public office may not be drawn using race as the predominant factor in determining the boundary lines, unless the district plan can survive strict scrutiny. Note that the district may be able to pass the strict scrutiny test if it can be shown that the district was drawn in compliance with federal Voting Rights Act, but the call of the question only asks whether strict scrutiny should apply.
What is taking?
is physical occupancy necessary?
When a regulation results in a permanent and total loss of a property’s economic value, a taking has occurred. In this case, the city ordinance prohibits any person from erecting permanent structures on the island.
Bill of attainder
A bill of attainder is an act of a legislature declaring a person, or a group of persons, guilty of some crime, and punishing them, often without a trial.
Ministerial exception to the First amendment
The ministerial exception furthers the purposes of the First Amendment free exercise and establishment clauses by barring legal claims against church bodies by their employees who carry out religious functions.
In Hosanna – Tabor Evangelical Church and School v. EEOC, 132 S.Ct.694 (2012), the Supreme Court unanimously recognized the existence of a “ministerial exception” grounded in the First Amendment Religious Clauses that precluded the application of employment discrimination laws concerning the employment relationships between a religious organization and its ministers. Requiring a church to accept or retain an unwanted minister interferes with the internal operations of a religious organization in violation of the Free Exercise and Establishment Clauses of the First Amendment.
Deprivation of public employment due to political affiliation. requirements?
A person may only be punished or deprived of public employment based on their political affiliation if that individual (i) is an active member of a subversive organization, (ii) has knowledge of the organization’s illegal activities, and (iii) has a specific intent to further those illegal objectives.
Content-based attack! what would be the question that you should ask?
When you see a speech restriction that would require you to actually read or listen to the speech to determine whether the restriction applies (e.g., “signs about events” instead of just “yard signs”), you should be thinking of content-based regulations.
conditions imposed on states by Congress in the exercise of its spending power must be set out ——-
unambiguously.
The Property Clause of Article IV, Section 3
“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” This power includes not only the power to dispose of property owned by the United States and to make incidental rules regarding its use, but also the power to protect the property. Although a state generally has the same right as any property owner to construct a fence on its property, this right must give way to federal regulation.
he Tenth Amendment
the Tenth Amendment only reserves for the states those powers not already given to the federal government. The power exercised here by Congress was granted to the federal government by the Property Clause of Article IV, Section 3 of the U.S. Constitution.
