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58 Cards in this Set
- Front
- Back
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What are the special rules for fact patterns involving "Aliens"?
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1. Strict Scrutiny, b-cuz it's a suspect class; but
2. Use Rational Basis when fact pattern involves voting, jury duty, police officers, probation officers, or teachers. 3. No Equal Protection against Fed. govt. actions. 4. Alien's can't use Privileges & Immunities Clause. |
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When is there "significant" state involvement to make a private group a state actor?
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1. The contribution or involvement must be so extreme that you can't tell that it is a private group anymore, for it to be "significant."
2. On the MBE it is almost always not enough. |
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What is a Bill of Attainder?
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A COA when the legislature punishes a person without a hearing.
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If the federal government statute discriminates, what Amendment do we use to bring an Equal Protection COA?
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You would use the 5th Amendment, because the 14th Amendment only applies to States and Local governments.
Although the 5th only has a due process clause, you can bring a equal protection COA against the Fed. under it. |
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What are the key things to look for when dealing with a Constitutional Law question on the MBE?
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1. Spend most your time on the individual rights.
2. See if it's a state of federal action, because different amendments will apply. 3. Identify the proper test, i.e., equal protection, due process, etc. 4. If there is a tie btw Equal Protection & Due Process, EP is usually right. 5. Look for the legislative intent, it will tell you what test to use. |
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What does the Privileges & Immunities Clause under Article IV prohibit?
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1. It prohibits States & Local govts. from discriminating against non-residents in areas of civil rights & commerce, i.e., freedom to make a living.
2. Never applies to federal govt. Never applies to Aliens. |
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Can a state completely ban cigarette manufactures from advertising, as a way to prohibit smoking?
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No, states and localities cannot completely ban advertising, b-cuz it's a constitutional violation of commercial speech. But, they can severly limit it, as long as it's done in a reasonable manner.
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Can the Necessary & Proper Clause, by itself, be the right answer?
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No, the N&P Clause is a Constitutional principal. It has no authority on its own, so it has to be attached to a piece of legislation, i.e., have some other statutory basis.
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Can Congress regulate the number or hours or wages of state employees?
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Yes, the Constitution allows Congress to regulate state and local employess under the federal powers of interstate commerce.
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What are the rules to remember when you get a fact pattern dealing with troops?
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1. The President, alone, has the power to send troops to hot spots; and
2. Congress, alone, has the power to declare war. |
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What is the causation & redressibility requirement for Standing in order to bring a COA in federal court?
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1. P must prove that D caused the injury & the court can remedy it with a favorable decision.
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When is there a Political Question that bars federal courts from hearing a case?
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When the issue should be properly resolved by one of the other branches of government, other than the Judiciary.
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Can Congress pass a statute whereby it vests a federal court with the authority to render and advisory opinion to a federal agency?
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No, the USSC has held that the power of the federal courts to hear "cases and controversiers" means that the courts may not render advisory opinions.
Federal courts cannot render a decision whereby a federal agency is given disrection to decide whether the the court's judgment is fair. |
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Can Cities or States pass an ordinance/law setting limits on how much a person can contribute to a political connittee?
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No, while the government may limit the amount of contributions that persons can make to a candidate's campaign, the 1st Amend. requires laws setting contribution limits for political committees for ballot referendum pass Intermediate Scrutiny.
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When will federal courts enjoin a state criminal proceeding?
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Generally Fed. Cts. will not enjoin a pending state criminal proceeding, UNLESS - the state court prosecution is being conducted in bad faith, e.g., merely to harass the D.
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What is a Political Question?
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Question committed by the Constitution to another branch of the government; OR
That are inherently incapable of resolution and enforcment by the judicial process. |
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When is the Right to Travel implicated?
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The right to travel involves interstate travel.
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Will a federal court dismiss a case for for mootness if the claim of the lead P, in a class action suit, becomes moot?
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No, a class action is not moot, anbd the class representative, P, may continue to pursue it - even if P's own controversey has become moot - because the claim of others in the class are stil viable.
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Can Sebastion lose "standing" in his case before a federal court if D's action cease injuring him?
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No, standing (the requirement that P have a concrete stake in the outcome of the case) is determined at the beginning of a lawsuit.
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Will a federal law that substantially burdens a religious groups, but is generally applicable to all persons and is not aimed at restricting religion be unconstitutional under the Free Exercise Clause?
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No, the Free Exercise Clause does not afford a right to a religious exemption from a nuetral law that happens to impose a substantial burden of relgious practice, if the law is otherwise constitutionally applied to persons who engage in the particular conduct for nonreligious reasons.
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Can States enact a law that create an intrastate messenger service for only state employees?
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No,Article I creates a federal postal monopoly over the delivery of mail. No other system for the delivery of mail-public or private-can be established absent Congress' consent.
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When does an administrative law judge, appointed under a congressional statute, have the protection of tenure?
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Under Art. III, only federal "judges" ares protected from termination of tenure during good behavior. This requires that P demonstrate that he was more tahn an administrative hearing officer, with discretion or power in his position.
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Under what authority can Congress ban all discrimination against African Americans in all commercial transactions taking place in the United States?
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The Enabling Clause of the 13th Amendment has been held to confer upon Congress the authority to proscribe almost any private racially discriminatory action that can be characterized as a badge or incident of slavery.
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When a state uses a durational residency requirement (waiting period) for dispensing benefits, what must it show?
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The government must show that the requirement is narrowly tailored to promote a compelling governmental interest, because it interferes with an individual's fundamental right to travel, i.e., migrate from state to state.
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Can parties on both sides in a federal COA collude with one another to bring a claim in federal court challenging the constitutionality of a state act?
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No, since federal courts are barred from issuing advisory opinions, it will not hear collusive actions, because there is no case or controversey.
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When can states regulate industries that engage in interstate commerce?
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States may regulate local aspects (acts within the state) of interstate commerce as long as Congress has not adoped regulations concerning the subject matter or preempting the entire area of regulation. Also, the state regulation must not discriminate against out-of-state competition nor unduly burden interstate commerce.
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Can the President decline the enforce a congressional mandate under a lawfully enacted statute?
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No, the President has no power to decline to enforce a congressional mandated and has a duty unfrt Art. II to "see that the laws are faithfully executed."
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Can a City pass an ordinance restricting adult-oriented businesses to only certain areas of the city?
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Yes, USSC has held that zoning ordinances regulating businesses selling sexually explicit material, designed to reduce the secondary effects of such business are constitutional, as long as it (1) does not prohibit all such entertainment in the commmunity; and
(2) designed to promote substantial government interests, e.g., property interests. |
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Is there a 1st Amendment exception to the violation of copyright laws?
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No, it does not matter whether P was a public figure or P's work was a matter of public concern. Theft is still theft.
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When can P bring a claim in federal coourt seeking declaratory judgment that a statute is unconstitutional, if that statute has not been enforced?
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Someone seeking a declaration that a statute is unconstitutional must demonstrate that she is engaged (or will engage) in specific conduct, and that the challenged statute poses a real and immediate danger to her interests, i.e., ripeness.
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Can states impose a filing fee on an indigent applicant attempting to run for political officer?
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No, a state may not impose on candidates a fee that renders it impossible for indigents to run for office. Even as applied to nonindigent candidates, an unreasonably high filing fee that is not tailored to promote a substantial or overriding state interest might be held invalid.
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Can states require that merchants, selling non-US products within the state, pay a special licensing fee?
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No, such a requirement violated the Commerce Clause, because regulation of foreign commerce is exclusively a federal power.
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When a person claims that they are being punished for their belief, what may the court consider?
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The Free Exercise Clause of the 1st Amendment, prohiits punishing people for their religious beliefs. When a person claims that he's being punished for his religious beliefs, the court may consider whether P sincerely holds those beliefs.
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Under the Free Exercise Clause, will the court balance the interests of the parties involved?
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No, the new constitutional test looks to see if the statute is being applied only to interfere with religion. The government may regulate conduct, even if it interferes with religion, as long as it is generally applicable & nuetral, i.e., not aimed at religion.
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Can a P, who is being prosecuted under for violating a state statute, argue that it's unconstitutional, because it conflicts with a US treaty?
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Yes, if the statute under which P is prosecuted is invalid by reason of conflict with a US treaty, his prosecution cannot proceed further.
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Can a state, as a requirement for running for political office, require that P sign an Oath & Loyalty Clause?
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A loyalty oath is valid if it merely requires the candidate to affirm that she will oppose the violent overthrow of the government. But a oath that disavows the violent overthrow of govt. as an abstract doctrine is invalid.
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Can the state enact a statute that regulates mere advocacy?
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No, the 1st Amendment prohibites statutes regulating advocacy that are not limited to advocacy to action.
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Does Congress have the power to investigate?
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Yes, Congress' power to investigate is coextensive with its power to legislate, and is only limited to matters over which Congress has Jx.
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Can Congress appoints members to an agency it created giving them the power to make new rules & prosecute violations?
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No, Congress may only vest appointments of inferior officers in the President, courts, or heads of departments. Enforcement is an executive act, therefore Congress cannot appoint members of a commission that exercise enforcement powers.
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Can Congress appoint members to an agency it created for the sole purpose of legislating & investigating?
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Yes, such an agency is an extension of Congress' power to legislate and investigate.
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Can Congres restrict the jurisdiction of the federal courts?
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Yes, under Art. III, Congress is explicitly authorize to restrict the jurisidiction of the federal courts.
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Can Congress mandate federal courts to abstain from remedying Equal Protection violations in a certain manner?
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No, although Congress can limit the courts Jx, it cannot interfere with the fashioning of a judicial remedy to achieve constitutionally required conduct.
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When can a taxpayer challenge the state's expenditure of taxes?
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In general, a taxpayer has no standing to challenge the expenditure of taxes. The exception to this rule is where the P alleges that the taxes were enacted under Congress' taxing and spending power, and exceed some specific limitation on that power, in particular the Establishment Clause.
In order to have standing P must show that he is paying the tax. |
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When can the states prohibit advocacy?
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A state may prohibit speech that specifically advocates conduct that is dangerous to society or to the govt. and is likely to produce such conduct.
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Under what theory should Ps bring a COA against a state that requires U.S. citizenship for the issuance of a professional license?
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Such discrimination is based on Alienage (i.e., national origin) which is a suspect class when used by states in matters not involving the self-government process & must pass Strict Scrutiny review under the EP Clause of the 14th Amend.
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Under what theory can and Alien bring a COA against a state that requires residency for the issuance of a professional license?
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Residency requirements have been successfully challenged under the EP Clause of the 14th Amendment, as a burden of the fundamental right to travel, triggering strict scrutiny.
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When would Ripeness bar a claim?
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Whether a case is justiciable before a federal court depends on whether there is a case or controversey. Ripeness requires that there be an immediate threat of harm and may bar a claim (i.e., declaratory judgment) before it has been developed.
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Can a city refuse to allow religious and polictical ads on the side of city buildings if it is selling those spaces?
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Yes, billboards are not public forums, rather they are "commercial ventures," (e.g., city-owned buses) and the city may bar broad cateories of speech as long as it's (1) viewpoint nuetral and (2) passes rational basis review.
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Does a student who is paddled, after pullling a girl's hair in have a COA for constitutional violations?
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No, although corporal punishment involves a liberty interest, no hearing is required under Due Process before inflicting such punishment. Also, such punishment has not been found to be cruel and unsual under the 8th amend.
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If a state adopts the federal Constitution, verbatim, as their own & uses federal case law to decided the constitutionality of laws passed under state constitution, can the USSC hear the case on appeal?
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Yes, the USSC has jurisidiction to hear appeals from a state's highest court and the since its decision was based on federal case law interpreting identical federal porvisions, the decision was not based on independent state grounds.
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What is the scope of the Property Clause under Art. IV of the federal Constitution?
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The Property Clause gives COngress the police power (i.e., to make all needful rules and regulations) over territory or othe property belonging to the U.S., i.e., M.I.L.D.
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Can a state fine a federal employee, under state environmental laws, for violations that have occurred on federal lands by a federal-owned business?
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No, states have no power to regulate the activities of the federal government unless Congress consents to the regulation. Thus, the instrumentalities and agents of the Fed. Govt. are immune from state regulations that interefere with their federal functions.
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Is the freedom of the press, to print information, absolute?
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No, although the media may not be punished for publishing a true fact once it is lawfully obtained from public records or otherwise released to the public, the freedom is no greater than the freedom granted to all citizens. i.e., press would not be allowed to reprint copyrighted material, even if it was legally obtained.
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Can a government employer fire an employee for criticizing the inter-office policies of the employer at-will?
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No, under the Due Process Clause, a person was a liberty interest in her 1st Amend. rights. If the govt. employer seeks to fire P for speech related conduct, when the speech involves a matter of public concern, at the very least, P would be entitled to a post-termination hearing.
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Can Congress vest appooint powers in the House for a federal agency that would coordinate security procedures amone various govt. agencies?
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No,under Art. II, Congress may not appoint memebers of a body with administrative of enforcement powers. Congress may vest the appointments in the President, federal courts, or heads of departments, but not the Senate or the House.
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Where would congressional regulating the conditions for marriage and divorce would most likely be upheld?
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In the District of Columbia, because in D.C. Congress has the same legislative authoirty as a state legislatire has over matters internal to its state, including marriage and divorce.
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How can Congress use its spending power to regulate in areas it otherwise has no power to regulate?
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Congress has power to conidtion federal spending if COngress reasonably finds that the spending program is for the general welfare & can regulate by requiring entities that accept government money to act in a certain manner.
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Under what doctrine may Congress preempt a state law restricting nonresident aliens from owning land?
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Congress (federal) has plenary power over aliens arising from its power over naturalization.
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