MBE Topics Flashcards
(33 cards)
Disparate Impact
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.
Strict Scrutiny
The law must be necessary to achieve a compelling state interest.
Intermediate Scrutiny
The law must be substantially related to an important governmental interest.
Rational Basis Review
The law must be rationally related to a legitimate state interest.
Classifications Based On Alienage
A classification based on alienage is subject to a different standard depending on whether the action is taken by the state or by the federal government.
Courts will generally apply the strict scrutiny test and strike down state-based laws that discriminate against LPRs for lack of US citizenship.
In contrast, Congress has plenary power over immigrants under Article I. A federal alienage classification is likely valid unless it is deemed arbitrary and unreasonable.
Judicial Immunity
A judge is absolutely immune from civil liability for judicial acts, including grave procedural errors. The judge is not immune, however, to lawsuits regarding non-judicial activities.
Due Process of Employees
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. A formal pre-termination hearing is not required, if there is pre-termination notice, an opportunity to respond to the decision maker, and a post-termination evidentiary hearing.
Restrictions on the Right of the Media to Publish
Restrictions on the right of the media to publish about matters of public concern and the right of the public to receive such information may only be restricted by governmental action that is narrowly tailored to further a compelling government interest. If there are less restrictive means of accomplishing the government objectives, those less restrictive means should be used.
Taking by Regulation
When a regulation results in a permanent and total loss of a property’s economic value, a taking has occurred.
A regulation restricting property use need not advance a legitimate governmental interest to be valid. Additionally, aesthetic concern can constitute a legitimate governmental interest. Physical occupation of property is not necessary for a taking to exist. A regulation resulting in a permanent total loss of the property’s economic value is sufficient.
The issue of the amount of compensation to which a property owner is entitled is separate from the issue of whether the governmental action has resulted in a taking.
First Amendment Freedom to Form or Participate in Any Group
The First Amendment’s freedom of association generally protects the right to form or participate in any group, club, or other organization. The government may justifiably infringe on the right of association to advance a compelling state interest, such as preventing discrimination or subversive activities designed to undermine the democratic process. A person may only be punished or deprived of public employment based on their political affiliation if that individual (1) is an active member of a subversive organization, (2) has knowledge of the organization’s illegal activities, and (3) has a specific intent to further those illegal objectives.
Ministerial Exception
The ministerial exception grounded in the First Amendment Religious Clauses that bars 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.
Time, Place and Manner Restrictions
The government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions: (1) are content-neutral as to both subject matter and viewpoint, (2) are narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternative channels for communication of the information.
Types of Public Forums
A designated public forum is one that hasn’t historically been used for speech-related activities, but which the government has opened for such use, such as civic auditoriums.
A traditional public forum is one that has historically been used for speech-related activities.
Voting by Felons
As permitted by Section 2 of the Fourteenth Amendment, a state may prohibit a felon from voting even one who has unconstitutionally been released from prison.
Eleventh Amendment
The 11th 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.
Younger Doctrine
Under the Younger doctrine, a court will not enjoin a pending state criminal case in the absence of bad faith, harassment, or a patently invalid state statute.
Standing
To have standing, a plaintiff must establish (1) a particularized injury, which must have actually occurred or be imminent; (2) that defendant caused this injury; and (3) that the relief requested is likely to redress the injury.
While the threat of future injury can suffice, it cannot be merely hypothetical or conjectural, but must be actual and imminent.
Enclave Clause
Under Article I, Section 8, Clause 17 of the US 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.
Export Taxation Clause
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 prohibited.
Full Faith and Credit Clause
The Full Faith and Credit Clause of Article IV, Section 1 provides that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. To be given full faith and credit, a decision must meet three requirements: (1) the court that rendered the judgment must have had jx over the parties and the subject matter; (2) the judgment must have been on the merits rather than on a procedural issue; and (3) the judgment must be final.
Affirmative Action
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.
Seizure of Real Property
Generally, the government is required to provide the owner of real property with notice and a hearing prior to seizure of the property pursuant to a forfeiture statute.
General Welfare Clause
The General Welfare Clause of Article I, Section 8 of the United States Constitution gives Congress the power to spend for the general welfare, i.e., any public purpose, not just to pursue its other enumerated powers.
Non-Delegation Doctrine
Because Congress is vested by Article I with “all legislative powers,” it may not delegate that power to any other branch of government. However, delegation of some of Congress’ authority to the executive branch has consistently been held constitutional, so long as Congress specifies an “intelligible principle” to guide the delegate.
