MBE - Constitutional Law Flashcards
What are the three levels of scrutiny?
(1) Rational basis, (2) Intermediate scrutiny, and (3) strict scrutiny.
When will a law be upheld under strict scrutiny?
If law is necessary to achieve a compelling gvt. purpose.
Gvt has the burden of proof.
(Most demanding standard on gvt).
When will a law be upheld under intermediate scrutiny?
If it is substantially related to an important gvt. purpose.
Gvt. has burden of proof. Gvt. purpose becomes important.
When will a law be upheld under rational basis test?
If law is rationally related to a legitimate gvt. purpose.
Challenger has burden of proof to show no conceivable legitimate purpose.
How does the Bill of Rights apply to federal and state governments?
BOR applies directly to Fed.
BOR applies to state/local gvt through incorporation via the due process clause of 14th amendment.
What are the exceptions to BOR applying to state/local government (AMs not yet confirmed as applying).
3rd (soldier quartered), 5th (grand jury indictment), 7th (jury trials in civil cases), and 8th (excessive fines).
8th Amendment protects against
Excessive Fines
7th Amendment guarantees
right to jury trials in civil cases
5th Amendment guarantees
grand jury indictment in criminal cases
3rd amendment protects against
Gvt quartering soldiers in citizen’s homes.
State Action - Court enforcing racially restrictive covenants?
YES
State action - Government leases premises to restaurant that racially discriminates?
YES
State action - gvt provides free books to private schools that racially discriminate?
YES
State Action - teacher fired from school that is funded 99% by government funds?
NO - no state action
State Action - NCAA orders suspension of basketball coach at state university?
NO - no state action when NCAA orders firing of public school coach
State Action - Private entity regulates interscholastic sports w/in state?
YES - w/in a state
State Action - private club with liquor license from state racially discriminates?
No - not state action
What are the exceptions to rule that private conduct need not comply w/ Constitution?
(1) Public Functions Exeption
(2) Entanglement
What is the public functions exception?
Exception to general rule that private conduct does not qualify as state action.
Definition - private entity is performing a task traditionally, exclusively done by the government.
What is the entanglement exception?
Exception to general rule that private conduct does not qualify as state action.
Definition - constitution applies if the government affirmatively authorizes, encourages or facilitates unconstitutional activity.
When does the constitution apply to the protection of individual liberties?
When there is STATE ACTION.
Private conduct need not comply with the constitution.
What are the key rules of State taxation of interstate commerce (not really tested)?
States may not use their tax systems to help in-state business
Substantial Nexus
Fairly Apportioned
What is meant by “full faith and credit.”
Concept that court in one state court must enforce all judgments of courts in another state, so long as:
Court had personal/SMJ
Judgment must be on merits
Judgment must be final.
What are the exceptions to DCC?
(1) Congressional approval
(2) Market Participant Exception
What are the exceptions to the Article IV P&I Clause?
NONE.
What is required to apply the P&I Clause from Article IV?
(a) Discrimination against out-of-staters
(b) Discrimination with regard to civil liberties or important economic activity.
Can corporations and aliens sue under the P&L Clause of Article IV?
No
Can corporations and aliens sue under the DCC?
Yes.
What is required for the DCC to apply?
Burden on interstate commerce.
However, does not require discrimination against out-of-staters to apply.
What doctrine should be considered if there is a potential issue of gvt action discriminating against out-of-staters?
(1) DCC
(2) P&I Clause of Article IV
What provision is violated when a law discriminates against out-of-staters ability to EARN A LIVING?
P&I Clause of Article IV UNLESS it is necessary to achieve an important government purpose.
Preemption?
Concept under issues of federalism.
Definition – Under the Supremacy Clause (Art. VI) the constitution and laws and treaties made pursuant to it are the supreme law of the land.
Bottom line: valid federal law overrides or preempts inconsistent state law.
How can preemption be found?
(1) Express
(2) Implied – if (a) it is not possible for someone to simultaneously comply with both fed and state law, (b) state law impedes the achievement of a federal objective, OR (c) Congress evidences clear intent to preempt.
(3) State cannot tax where payment would come out of federal treasury.
Presidential Pardon
President has power to pardon anyone ACCUSED OR CONVICTED OF FEDERAL (not state) CRIMES, except where person has been impeached by House.
Impeachment does not apply to civil liability.
Presidential Executive Privilege
Privilege exists for presidential papers and conversations, except where important government interests override privilege.
Presidential Immunity
ABSOLUTE IMMUNITY for civil suits for money damages for actions accrued while in office.
No immunity for actions occurring prior to taking office.
When can the president, VP and federal officers be impeached or removed?
For treason, bribery or high crimes/misdemeanors.
Impeachment does not remove person from office.
Impeachment requires majority House vote AND conviction requires 2/3 Senate vote.
Presidential power of appointment applies to…
Ambassadors, federal judges and OFFICERS.
Congress may limit appointment power of INFERIOR OFFICERS.
Presidential removal power
President may remove any executive branch official, EXCEPT
(i) office where independence from pres is desirable, and
(ii) where good cause shown.
Is Senate approval required for Executive Agreements? What about treaties?
NO - Exe agmts
YES - Treaties
When a treaty or executive agreement conflicts with state law, which controls?
BOTH TREATIES and EXECUTIVE AGREEMENTS control over conflicting state law.
When a treaty conflicts with federal statute - which controls?
Whichever was adopted LAST IN TIME controls.
When an executive agreement conflicts with federal statute - which controls?
FEDERAL STATUTE controls.
When a treaty or executive agreement conflicts with constitution - which controls?
Constitution - always.
What are the key legislative powers?
(1) Tax, (2) Spend, and (3) Commerce
When does Congress have a police power
General rule - never.
However, Congress does have MILD police power in following areas: Military Indian Reservations Land (federal) District of Columbia
Article I, Section 8?
Necessary and Proper Clause. Congress can adopt all laws that are necessary and proper to exercise its authority.
When may Congress regulate commerce with foreign nations, Indian Tribes or among the states?
(1) Channels of Commerce,
(2) Instrumentality
(3) Economic Activity with substantial effect on interstate commerce
What is meant by “channels of commerce?”
Channels are the places where commerce occurs, such as waterways, highways, internet.
What is meant by “Instrumentalities” with regard to interstate commerce?
Things or persons that facilitate commerce.
What is meant by “substantial effect” on interstate commerce?
Substantial BUT NOT CUMMULATIVE.
10th Amendment
Acts as a limit on Congressional powers NOT SPECIFICALLY GRANTED to Congress, NOR PROHIBITED TO STATES.
These powers are RESERVED to the states or people.
Can congress compel state regulatory or legislative action?
NO.
But Congress can induce state action with STRINGS ON GRANTS, so long as conditions are expressly stated and relate to purpose of program.
Can Congress prohibit harmful commercial activity by state governments?
YES. (10th Am)
Which amendment bars suits against states in federal court?
11th Am
What is the result of sovereign immunity?
Bars suits against states in state courts or federal agencies, even on federal law claims.
What are the exceptions to sovereign immunity (only time state can be sued)?
(1) Waiver
(2) Fed. laws adopted under s 5 of 14th Am
(3) Via federal government
(4) Bankruptcy proceedings
Does sovereign immunity apply to state officers?
No, they may be sued.
Sued for injunctive relief.
Sued for money damages to be paid out of their own pockets, however,
May not be sued if damages would be paid out of state treasury.
What is abstention?
Rule that federal courts may not enjoin pending state court proceeding.
What is the final judgment rule?
Rule that SCOTUS may hear cases only after there has been a final judgment of highest state court OR a US Court of appeals, OR of a 3 judge federal district court.
