Ca Bar Exam - Constitutional Law

Front 1

Justiciable Case or Controversy

Back 1

RAMPSE

Front 2

Ripeness

Back 2

P not entitled to review of statute or regulation before enforcement unless P will suffer some harm or immediate threat of harm.

Front 3

Abstention

Back 3

Federal court will abstain from resolving a constitutional claim when based on unsettled question of state law.

Front 4

Mootness

Back 4

A real controversy must exist at all stages of review. If the matter has been resolved, case will be dismissed as moot unless controversy is capable of repetition yet evading review.

**A class rep may continue even her claim is moot if other class members claims are viable.

Front 5

Political Question

Back 5

Issues constitutionally committed to another branch of gov. or inherently incapable of judicial resolution.

Front 6

Standing - Individual

Back 6

P must show concrete stake in the outcome of the controversy.

1) Personal injury in fact;

2) Causation between conduct and the injury;

3) Redressability

Front 7

Standing - 3rd Party

Back 7

Standing to assert rights of others requires violation of claimant's own rights plus either special relationship between claimant and third party, or it is difficult for 3rd party to assert own right.

Front 8

Standing - Organization

Back 8

1) Individual members have standing;

2) Interests germane to org. prupose;

3) Ind. members' participation in the lawsuit not required.

Front 9

11th Amendment

Back 9

prohibits federal courts from hearing private party's claims against St. gov. unless private party sues:

1) State officer;

2) State consents; OR

3) Congress removes immunity.

**Actions against local gov. or st. officers for injunctive relief not barred.

Front 10

FEP - Foreign Powers

Back 10

Treaty Power: Pres. can enter into agreement w/ foreign country w/ 2/3 Senate approval. Treaty prevails over conflicting St. law.

Executive Agreement: Pres. may enter into agreement w/ a foreign country. Agreement prevails over conflicting St. laws but not Fed. law or Constitution.

War: Pres. has no power to declare war but ay act militarily in actual hostilities.

Front 11

FEP - Domestic Powers

Back 11

1) Appointment and approval

2) Pardons (Fed. criminal only)

3) Veto (Congress can overturn w/ 2/3)

Front 12

FEP - Domestic Powers - Chief Executive

Back 12

1) If Pres. acts w/ express or implied Congressional authority, his actions are likely valid.

2) If Pres. acts where Congress silent, his action likely will be upheld unless usurps power of another branch; AND

3) If Pres. acts against express Congressional will, he has little authority.

Front 13

FEP - Executive Privilege and Immunity

Back 13

1) Pres. has privilege to keep certain communications secret, particularly regarding national security, but not in criminal proceedings where the prosecution shows a need.

2) Pres. has absolute immunity form civil damages for acts while in office.

Front 14

FEP - Impeachment

Back 14

Maj. in the House needed to charge impeachment and 2/3 Senate vote to convict and remove from office.

Front 15

FLP - Congress Authority to Act

Back 15

1) There must be express or implied authority in Constitution

2) N&P Clause: Congress may take any action not prohibited by the Constitution to enable execution of any power granted to any branch of the fed. gov.

Front 16

FLP - Congress Delegation of Powers

Back 16

Congress may delegate its powers but must provide reasonably intelligible standards.

Front 17

FLP - Commerce Clause

Back 17

1) Channels of interstate;

2) Instrumentalities of interstate commerce and persons or things in interstate commerce;

3) Economic activities that have a substantial effect on interstate commerce.

Front 18

FLP - Taxing and Spending

Back 18

Congress may tax and spend for the general welfare and may enact any tax to raise revenue for the general welfare.

**MAY NOT REGULATE FOR THE GENERAL WELFARE**

Front 19

FLP - Property

Back 19

Congress has power to make all rules and regulations affecting the territory or other prop. belonging to the U.S.

**Wild animals, military ships and airplanes, fed. buildings, Indian reservations**

Front 20

FLP - Police Power

Back 20

Congress does not have police power unless legislating for MILD:

1) Military;

2) Indian land

3) Federal land and territory; OR

4) D.C.

Front 21

FLP - Limitations under 10th Amendment

Back 21

All powers not granted to the U.S., nor prohibited to the states, are reserved in the states or the people.

1) Congress cannot compel state reulatory or legislative action but can induce state government aciton by putting strings on grants unless unduly coercive.

2) Congress may prohibit harmful commercial activity by St. gov.

Front 22

Federalism - Express Preemption

Back 22

If a fed. statute expressly says that fed. law is exclusive in an area, st. and local laws are preempted.

Front 23

Federalism - Implied Preemption

Back 23

1) If fed. and st. law are mutually exclusive, fed. law preempts st. law.

2) If st. law impedes the achievement of a fed. objective, fed. law preempts st. law.

3) If Congress evidences a clear intent to preempt st. law, fed. law preempts st. law (field preemption)

Front 24

Federalism - State tax

Back 24

States may not tax or regulate fed. gov. activity.

**Fed. gov. does not have to comply w/ St. environmental laws.

Front 25

Dormant Commerce Clause - St. law discriminates

Back 25

If the st. law discriminate agsint out of st. competition if is invalid unless:

1) The law furthers an imp., noneconomic st. interest and there are no reasonable nondiscriminatory alternatives;

2) The st. is a market participant; OR

3) The gov. action involved is the performance of a traditional gov. function.

Front 26

DCC - St. law does not discriminate

Back 26

If the st. law does not discriminate, then ask if it burdens interstate commerce

1) If it does, then it is invalid unless the st.'s interest in the regulation outweighs the burden on interstate commerce.

2) If it does not burden interstate commerce, then it is valid.

Front 27

P&I Clause IV

Back 27

State laws that deny out of state persons privileges and immunities accorded to in state person violate the provision

1) if the st. law discriminates against out of state persons w/ regard to civil liberties or imp. economic activities, the gov can show nonresidents are at least part of the problem the gov is attempting to solve and there are no less restrictive means.

2)If the law does not discriminate, IV does not apply

Front 28

P&I Clause 14

Back 28

Prohibits st.'s from denying there own citizens rights of national citizenship.

**used recently to prohibit discrimination against new residents for violating the right to travel**

Front 29

Full Faith and Credit

Back 29

Courts in one st. must give full faith and credit to judgments of courts in another st., so long as:

1) the court rendered the judgment had jurisdiction over the parties and subject matter;

2) The judgment was on the merits;

3) The judgment is final.

Front 30

Individual Rights - State Action

Back 30

Raise the issue when it is alleged that someone other than the gov. or a gov. official has deprived the P of constitutional rights. Watch for traditional and exclusive public functions and significant st. involvement.

Front 31

1st Amendment Speech - Prior Restraint

Back 31

A prior restrain restricts speech before it occurs, rather than punishes it afterwards. The gov. must show some special societal harm would result otherwise.

To be valid, a system for prior restraint must provide the following safeguards:

1) Standards must be narrowly drawn, reasonable, and definite;

2) Injunction must promptly be sought;

3) There must be prompt and final determination of the validity of the restraint.

Front 32

1st Amendment Speech - Vagueness & Overbreadth

Back 32

Vagueness: Reasonable person is not given reasonable notice of what is prohibited.

Overbreadth: Regulates both protected and unprotected speech.

**Fighting words are always vague and overbroad**

Front 33

1st Amendment Speech - Content Regulations

Back 33

Generally unconstitutional unless necessary to achieve a compelling gov. interest.

Front 34

1st Amendment Speech - Content Regulations Exceptions

Back 34

Incitement of illegal activity

1) Imminent illegal activity

2) Speech directed to cause activity

Obscenity

1) Appeals to prurient interest

2) Patently offensive

3) Lacks literary, artistic, political or scientific value, using a national standard.

Commercial Speech

1) illegal, false and deceptive ads are not protected;

2) All other commercial regulation subject to intermediate scrutiny

**If not fraud or deceptive regulation valid if:

1) Substantial gov. interest;

2) Regulation advances that interest;

3) Regulation is narrowly tailored.

Front 35

1st Amendment Speech - Content Neutral - Public Forums

Back 35

Gov. properties that the gov. is constitutionally required to make available for speech (sidewalks, parks, etc.)

1) Regulations must not be subject matter and viewpoint neutral, or it not, strict scrutiny applies.

2) regulations must be a time, place, or manner regulation that serves an imp. gov. purpose and leaves open adequate alternative place for communication

3) Gov. regulation of publi forums need not use the least restictive alternative, must be narrowloy tailored.

4) City cannot have discretion to set permit fees for public demonstrations.

Front 36

1st Amendment Speech - Content Neutral - Limited Public & Nonpublic Forums

Back 36

Regulations must be reasonable and viewpoint neutral.

Front 37

1st Amendment Speech - Content Neutral - Symbolic Speech

Back 37

Gov. can regulate to serve and imp. st. interest unrelated to suppression or message and burden no greater than necessary.

Front 38

Freedom of Association

Back 38

Laws that prohibit or punish group membership must meet strict scrutiny. To punish membership in a group it must be proven that the person:

1) Actively affiliated w/ the group;

2) Knowledge of the groups illegal activites; AND

3) Specifically intending to further those illegal activities.

**Laws that require disclosure of group membership must meet strict scrutiny**

**Laws that prohibit a group from discriminating are valid unless they interfere w/ intimate assoc. or expressive activity**

Front 39

Freedom of Religion - Free Exercise Clause

Back 39

Gov. may not punish (deny benefit or impose burden) on the basis of religious beliefs.

Free exercise claus may not be used to challenge a neutral law of general applicability

1) Neutral if not motivated by the desire to appear as religion.

2) If law if motivated by the desire to appear as religion then strict scrutiny must be met.

Front 40

Freedom of Religion - Establishment Clause

Back 40

Compels the gov. to pursue a course of neutrality toward religion. Gov. action is invalid unless:

1) there is a secular purpose for the law;

2) The effect must be neither to advance nor inhibit religion;

3) There must not be excessive entanglement w. religion.

ALL VIOLATE

**Clergy member delivering prayer at graduation**

**Student delivering prayer at football game**

**silent prayer at school**

Front 41

Freedom of Religion - Religion in schools

Back 41

Gov. sponsored religious activities in public schools is unconstitutional, but religious student and community groups must have the same access to school facilities as non religious groups.

Gov. may give assistance to parochial schools, so long as it is not used for religious instruction. Gov. may provide parents vouchers which they use in parochial schools.

Front 42

EP Classification - Strict Scrutiny

Back 42

Suspect: RAN, race aleinage, national origin

Findamental Rights

1) Right to vote

2) Right to travel

3) Right to Privacy CAMPER

*Contraception

*Abortion - Undue burden test

*Marriage

*Procreation

*Private education

*Family relations

Front 43

EP Classification - Intermediate Scrutiny

Back 43

1) Commercial speech

2) conent nuetral time, place, manner regulation

3) Symbolic speech

4) Cable TV

5) Gender

6) IllegitimacyEP

Front 44

EP Classification - Rational Basis

Back 44

1) Age discrimination

2) Disability discrimination

3) Wealth discrimination (against poor)

4) Economic relations

5) Sexual orientation

6) Illegal aliens - except children are entiteld to free education k-12.

Front 45

How is EP applied?

Back 45

Applied to state and local gov. through 14th amendment

Applied to fed gov. through DP clause of 5th amendment

Front 46

How is existence of racial classification proven?

Back 46

The classification exists on the face of the law

If the law if facially neutral, then must prove both discriminatory impact and discriminatory intent.

Front 47

How is the existence of a gender classification proven?

Back 47

The classification exists on the face of the law.

If the law if facially neutral, then must prove both discriminatory impact and discriminatory intent.

**Height and weight requirements

**Rational basis if facially neutral

Front 48

Remedying past discrimination

Back 48

Gender and racial classification that are designed to remedy past discrimination and differences in opportunity are valid.

Front 49

Alienage

Back 49

Strict Scrutiny: Used when gov. discriminates against non citizens

Intermediate: Used for discrimination against undocumented alien children.

Rational Basis: Used for alienage classifications that concern self gov. and the democratic process (voting, jury, police officer, PO, HS teacher)

Front 50

Substantive DP

Back 50

Where the law limits the ability of all persons to engage in an activity, SDP applies. The inquiry is whether the gov. has an adequate reason to take away a persons life, liberty or property interest.

**Apply the appropriate test depending on which right is being impaired.**

Front 51

Procedural DP

Back 51

Opportunity to present objections to proposed gov. action gainst an individual to a fair and neutral decisionmaker. Deprivation of life, liberty (loss of freedom provided by Con.) or property (entitlement, license).

Must involve intentional, reckless gov. action. Not mere negligence.

Balance:

1) The importance of interest to the individual;

2) The ability of additional procedures to increase the accuracy of the fact finding; AND

3) The gov's interest.

Front 52

Economic Liberties - Takings Clause

Back 52

Gov. may take private property for public use if it gives just compensation.

Front 53

Economic Liberties - Takings Clause - Step one, Is there a taking?

Back 53

Possessory taking: Gov. confiscation or physical occupation of property is a taking.

Regulatory taking: Gov regulation if it leaves no reasonable economically viable use of the property.

**Balance economic impact against distinct, investment backed expectations (no taking)**

Front 54

Economic Liberties - Takings Clause - Step two, Is it for public use?

Back 54

Gov. can take private property, BUT ONLY for public use.

Taking is for the public so long as the gov. acts out of reasonable belief that hte taking will benefit the public.

Front 55

Economic Liberties - Takings Clause - Step three, is just compensation paid?

Back 55

Gov must pay economic market value of property in hands of owner, gain to the taker is irrelevant.