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71 Cards in this Set
- Front
- Back
If it is a Fourteenth Amendment problem is it Equal Protection of the Laws or Due Process
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Equal Protection
state statutory classifications no fedeal or private will have a classification built into the statute (class vs class) or if the statute is Federal than there is no equal protection issue. The equal protection clause does not apply to the Federal Government. It only applies to Government Action (State Action) not private parties where the Government played no substantial role. |
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If the action is by a private party what are the two indicators of substantial Government Involvement (state action)?
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Does the government encourage or benefit from the private conduct (nexus)
Does the private conduct have a public function normally exclusively reserved for the state |
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What will invalidate a statute in which discrimination is an issue?
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1 Discriminatory of its face
2 Neutral but unequally administered 3 Impermissible Motive (intent to discriminate) |
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New Statute with no information about backround
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Can only be invalid on its face since it has not been applied and the motive is not known
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What are the Levels of Scrutiny (for classification issues
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Strict Scrutiny
Intermediate Scrutiny Rational relation |
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What types of classifications require Strict Scrutiny?
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Suspect Classifications - RAF Race or Alienage or relating to WHO may exercise a fundamental right
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How many fundamental rights only demand Strict Scrutiny?
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4
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What are the 5 fundamental rights?
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Association
Voting Interstate Travel Privacy |
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What type of classification would be considered Interstate Travel
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Residency requirements as a condition of receiving VITAL government services
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What are some non-vital Government Services
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Tuition Reductions
Divorce |
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What are some examples of Privacy rights
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Marriage
Procreation Abortion |
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Which Voting requirements would not be suspect?
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Age
Residency Citizenship |
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What is Strict Scrutiny?
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The statute must be necessary to promote a compelling government interest
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What kinds of classifications does Intermediate Scrutiny apply to?
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Quasi Suspect Classifications
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What are the two quasi suspect classifications?
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Gender and Legitimacy
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What is Intermediate scrutiny?
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substantially important
The law must be substantially related to an important state interest in order to be valid |
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Lalli v. Lalli
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The Court found that a statute prohibiting inheritance from the father to illegitimate children unless paternity is established during the father's lifetime was substantially related to the states interest in promoting orderly distribution of property
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Would a statute requiring that paternity be established within the first two years of the child pass Intermediate Scrutiny?
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No. Two years is not enough time to bring a claim and the threat of fraudulent claims is not sufficiently great to justify a two year deadline.
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What does Rational relation apply to?
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All other classifications
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What is Rational relation?
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If there is a set of facts imaginable that would make the law a reasonable way to achieve a legitimate governmental purpose then the law is valid
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What if there is no classification in the facts?
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Then it is a Due Process Question
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Can a Due Process claim be brought against Federal Government?
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Yes
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What are the two types of Due Process problems?
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Substantive and Procedural
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Procedural Due Process
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Addresses the fairness of the procedure used to deprive someone of a significant interest, typically in property but also in life (incarceration)
Is Notice and a Hearing necessary when a right is removed? |
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What does the most common property type question on the MBE involve?
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Government Jobs
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Do people typically have a property right in continued public employment?
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No, unless the facts suggest something like Tenure or a restrictive contract provision such as 'can only be fired for cause'
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Are Expectations enough to establish a property right?
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No, there must be a law under which the person has a legitimate claim to the benefits
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Substantial Due Process
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Much more likely on the MBE
Becomes an issue when the state action substantially interferes with a Fundamental right. In such a case the statute must meet the same Strict Scrutiny as an equal protection law. |
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What about non fundamental rights and Substantive Due Process?
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Rational Scrutiny
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Who has the burden of persuasion in a Substantive Due Process Challenge?
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Fundamental Rights - Government
Non Fundamental Rights - Challenger |
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What are the types of Freedom of Expression?
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Speech
Press Association Assembly |
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What does any statute regulating freedom of speech or association have to have?
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Narrow and Definite Standards
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What is Overbreadth?
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Statute prohibits unprotected speech and some protected speech.
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What is Vagueness?
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The statute is so unclearly defined that a reasonable person would have to guess at its meaning
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Under the Constitution can language be prohibited for being Annoying?
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No. So a statute prohibiting annoying language would not be constitutional even if the language in question could have been prohibited as obscene
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Which branch of gov does the commerce clause apply to?
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Federal
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Is the commerce clause Sword or Sheild?
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Sword
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How many categories of activities involving interstate commerce can Congress regulate?
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4
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What are the categories of activities involving interstate commerce that Congress may regulate?
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1 Channels of interstate commerce
2 Instrumentalities of interstate commerce 3 Articles moving in interstate commerce 4 Activities substantially affecting interstate commerce |
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What two determinations will validate a statute dealing with the intestate commerce clause?
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1 If the activity is commercial and
2 if the activity substantially affects interstate commerce or is part of a general class of activities that collectively, substantially affect interstate commerce. |
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What if the activity is not commercial when faced wit a question about the interstate commerce clause?
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Then the activity must have a 'pretty obvious connection' to interstate commerce
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For the MBE what if the activity being regulated by the federal gov involves the use of an item after it's finished traveling through interstate commerce, or if the activity being regulated is non-commercial?
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The statute may have gone too far
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What is the difference between application of the commerce clause to the federal gov and its application to the states?
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For the federal gov it is a source of power
For the states it is a limitation |
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When is the only time that to analyze a state statutes impact on interstate commerce under the commerce clause?
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When there is no relevant federal legislation
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What if relevant federal regulation exists with regard to a state regulation of interstate commerce?
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Supremacy Clause analysis
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What is the standard if there is a state regulation of interstate commerce and there is no relevant federal regulation on the issue?
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Then does the state regulation unduly burdens interstate commerce
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What are the two questions to ask when using the Supremacy clause?
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1 Did Congress expressly authorize or prohibit state regulation? (would control)
2 otherwize does the federal law preempt the state law by directly contradicting it or in the absence of direct contradiction did Congress intend to occupy the entire field. |
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What are the four factors indicating that Congress intended to occupy the entire field?
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TPSU
1 Whether the subject matter is traditionally classified as local or federal 2 How pervasive the federal regulation is 3 How similar are the federal and state laws (the more similar the more likely the federal law was intended to supersede state law 4 Whether there is a need for uniform federal regulation |
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What is the mnemonic for the Supremacy Clause?
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PUSH
Pervasiveness, Uniformity, Similarity, History |
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Where is the Commerce clause found?
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Article I, Sec. 8, Clause 3
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Where is the Welfare Clause found?
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Article I, Sec. 8
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What power does the welfare clause give to Congress?
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Tax and Spend but ONLY Tax and Spend
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Can Congress pass any legislation for the general welfare?
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NO! It can only tax and spend for the general welfare
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Can the states legislate for the general welfare?
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Yes under their police power
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Does the Federal Gov have police power?
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NO
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Where is the Contracts Clause
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Article I, Sec. 10
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Is the Contracts Clause a sword or a shield?
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It is a shield (Prohibition)
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What does the Contracts Clause Prohibit?
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It prohibits the states from passing any law that impairs the obligations of contracts
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Does the Contracts Clause apply to Congress?
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No
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What is the first thing to look for when the Contracts Clause is an answer choice?
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Does the contract predate the legislation
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Can the state regulate contract formation prospectively?
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Yes
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Is there any case in which the state may modify a contract?
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Yes, when 1. the modification serves an important and legitimate public interest AND
2. is necessary to achieve that public interest AND 3. the contract impairment is reasonable under the circumstances |
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What if the state is a party to the contract?
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then he state need not adhere to a contract that surrenders, from the start, an essential attribute of its sovereignty (such as the police power or eminent domain)
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Where is the Privileges and immunities Clause?
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There are two of them
The Privileges and Immunities Clause of the 14th amendment and the Interstate Privileges and Immunities Clause Article IV, Sec. 2 |
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Are the PRivilege and Immunity Clauses Shields or Swords?
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They are both limitations on the state
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What does the P and I Clause of the 14th Amendment prohibit the state from doing?
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It Prohibits the state from clearly infringing on the privileges and immunities of National citizenship
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What are the fundamental rights shared by all citizens that the P and I Clause of the 14th amendment protects?
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Freedom to travel from state to state
To petition Congress for redress of grievances To vote for national officers To assemble peaceably To discuss matters of national legislation |
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Why shouldn't one rely on the P and I Clause of the 14th amendment on the MBE?
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Because the Due Process and Equal Protection Clauses of the 14th Amendment also prohibit the states from infringing on citizens fundamental rights and is a stronger argument
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What does the Interstate P and I Clause of the 14th Amendment prohibit the states from doing?
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It prohibits the states from discriminating against out of state citizens and residents in matters concerning essential activities (pursuing one's livelihood or owning property) and basic rights (medical care and access to the courts)
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Does the Interstate P and I Clause of the 14th amendment protect corporations or non-U.S. citizens (Aliens)?
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No
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Are there any situations where the state may discriminate against an out of state citizen?
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substantially Related No less restrictive
Yes if the discrimination is closely related to a substantial state interest and there is no less restrictive means available to achieve the purpose |