Con Law - Idaho Bar 2012 / Mbe

Front 1

Case and Controversy

Back 1

Fed ct adjudication requires an actual and definite dispute between parties having adverse legal interests.

Front 2

Standing

Back 2

Rule: P must show a concrete personal stake in the outcome. Const Standard: 1) injury in fact 2) causation/redressibility

Front 3

Constitutional Essay Approach: Justiciability - These prevent access to the fed ct

Back 3

1) Standing, 2) Political Question, 3) Ripeness, 4) Mootness, 5) Advisory Opinions [RAMPS]

Front 4

Political Question Doctrine

Back 4

Non-judicial issue committed to another branch of government.

Front 5

Ripeness

Back 5

For a case to be ripe, there must be a genuine immediate threat of harm.

Front 6

Mootness

Back 6

A case is moot unless an actual controversy exists at all stages of review, unless the injury is capable of repetition, yet evading review.

Front 7

Abstention - The case has already begun but the case is halted.

Back 7

1) Fed Ct will refuse to review a case based on an unsettled issue of state law (Pullman) 2) Fed ct review prohibited where there are pending state criminal proceedings (Younger)

Front 8

Advisory Opinions

Back 8

Fed Cts may not give advisory opinions interpreting proposed legislation. But, state courts MAY give advisory opinions.

Front 9

Original Jurisdiction of The Supreme Court

Back 9

Congress may neither enlarge nor restrict. One of the areas of original jx is where a state is a party.

Front 10

Scope of Appellate Jurisdiction

Back 10

Congress may broadly regulate by statute. 1) by Certiorari (discretionary/rule of 4); 2) by appeal (very limited)

Front 11

Congress has Plenary Power over the lower courts

Back 11

It can confer jx, remove jx, limit jx over the lower cts.

Front 12

Wrong Answers in Con Law

Back 12

1) General welfare clause - only ok for tax, can't work independently, 2) necessary and proper clause - can't work independently, it carries into effect other policies, 3) 14th A. Privileges and Immunities Clause, 4) Contracts Clause - only applies to the states (prevents them from retroactively reneging their own K), 5) Distinction between Rts/Privs - ALWAYS wrong, 6) 10th A - (see card)

Front 13

10th Amendment: Commandeering

Back 13

Congress may not commandeer the states to enact or enforce a federal regulatory program.

Front 14

Pardon Power of the President

Back 14

Applies only to federal crimes - offenses against the United States. Convictions in state ct are not subject to Presidential pardons.

Front 15

Appointment Clause Art. 2, Sec. 2

Back 15

1) President appoints "principal officers" w/Senate consent. 2) Congress delegates appointment of "inferior officers" to: the president, heads of depts or the judiciary.

Front 16

Hierarchy of Laws

Back 16

1) Constitution, 2a) Act of Congress also Admin orders, 2b) Treaty , 3) Executive Agreement (foreign policy/affairs) and Executive Orders (domestic policy), 4) State Law

Hint 16

When there is a conflict between an Act of Congress and a Treaty the LAST IN TIME prevails.

Front 17

Supremacy Clause - 2 strands: 1) Supersession Doctrine and 2) Preemption Doctrine

Back 17

Supersession Doctrine - A fed law will supersede any state law in direct conflict.

Hint 17

Preemption Doctrine - Any state law in an area where Congress intends to occupy the field is unconstitutional

Front 18

Health and Safety Regulations - State Protections v. Fed

Back 18

Congress sets the minimum. States may give more protection but not less in the area of Health and Safety.

Front 19

11th Amendment

Back 19

A state may not be sued in Fed Ct by its own citizens or citizens of another state w/out consent. 11th Amendment does NOT apply to a citizen suing a state in state ct.

Hint 19

See Next card for Exceptions

Front 20

11th Amendment - Exceptions

Back 20

1) State officials may be sued personally for: a) money damages or b) enjoined for fed law violations,
2) A state may be sued by another state or by the US

Hint 20

3) Congress may waive a state's 11th A. immunity under the Enforcement Clause of the 14th A, for FUNDAMENTAL RIGHTS AND CIVIL RIGHTS VIOLATIONS

Front 21

Federal Property Power - Art. 4 sec. 3

Back 21

Congress has the power to dispose of the territory or other property belonging to the United States.

Hint 21

Incl: wild animals, military ships/airplanes, federal buildings/bases, Indian reservations

Front 22

Approach to Con Law MBE Questions - Generally

Back 22

1) Underline who is passing the law, 2) Determine the subject matter of the question, 3) Match the appropriate power of regulation

Front 23

Approach to Con Law MBE Questions - To Uphold a Fed Statute

Back 23

1) Supremacy Clause, 2) Any enumerated power of Congress (Art. 1, sec. 8), 3) Federal Property Power

Front 24

Approach to Con Law MBE Questions - To Uphold a STATE Statute

Back 24

1) Dormant Commerce Clause - a. Non-discrimnatory, b. No undue burden on interstate commerce - use a balancing test

Hint 24

2) Police Power - health, safety, welfare, morals, aesthetics. Look for "legitimate interest" / "reasonable regulation".

Front 25

Privileges and Immunities - Aliens

Back 25

Neither of the Privileges and Immunities clauses apply to Aliens.

Front 26

Congressional Plenary Taxing and Spending Power

Back 26

Spending power IS subject to judicial review.

Front 27

Affectation Doctrine

Back 27

Congress may regulate any activity which has a "substantial economic effect" on interstate commerce.

Front 28

Equal Protection Argument Trigger in Fact Pattern

Back 28

An Equal Protection Argument is triggered in a fact pattern when "similarly situated people are treated differently."

Front 29

Fundamental right to travel

Back 29

Fundamental right to travel is violated ONLY where a law burdens travel for the purpose of establishing residency.

Front 30

14th Amendment: State Action - public function, significant state involvment or "encouragement"

Back 30

General Rule: State Action is a threshold requirement of governement conduct which must be satisfied before private discrimination can be restricted under the 1st, 4th, 14th or 15th A (e.g. public function, significant state involvement or "encouragement")

Hint 30

This is a procedural hurdle like standing. Two step process in essay: 1) Address state action, 2) Address equal protection or due process.

Front 31

Equal Protection - Strict Scrutiny

Back 31

1) Suspect Classification - race, national origin, religion, (some) alienage.
2) Fundamental Rights - vote, travel, privacy [CAMPER]
3) 1st Amendment Rts

Hint 31

Court will strike down a law unless it serves a compelling state interest and is necessary (no less restrictive alternative available) and narrowly tailored to achieve that state interest. Burden on state.

Front 32

Equal Protection - Intermediate Scrutiny

Back 32

Gender and Illegitimacy. Burden on state to show the law is substantially related to an important state interest.

Front 33

Equal Protection - Rational Basis Scrutiny

Back 33

Everything Else. (ex: Illegal Aliens, age, poverty) Burden on plaintiff to show the law is not rationally related to a legitimate state interest.

Front 34

Equal Protection - Statute Neutral on its Face

Back 34

P must show:
1) discriminatory effect, AND
2) discriminatory purpose
To raise the burden of persuasion above rational basis.

Front 35

Equal Protection - Strict Scrutiny Areas under Fundamental Rt of Privacy
[CAMPER]

Back 35

Contraception,
Abortion - undue burden test
Marriage
Procreation
private Education
family Relations

Hint 35

Private Ed = homeschooling
Family Relations = childbirth, child rearing, rt of related ppl to live together.

Front 36

Strict Scrutiny: When to use Substantive Due Process Analysis v. Equal Protection Analysis

Back 36

A term used to classify the sourse from which the fundamental rights (vote, travel, privacy) derive.

Hint 36

SDP analysis is used when a law effects ALL persons. But, Equal Protection analysis is used when a law effects SOME persons.

Front 37

Equal Protection - Abortion and the UNDUE BURDEN TEST

Back 37

Use undue burden instead of strict scrutiny language under Casey. General Rule: A state may regulate abortion provided no "undue burden" is placed on a woman's right to obtain an abortion.

Hint 37

Abortions are allowed months 1-6.

Front 38

Equal Protection - Strict Scrutiny: Rt to vote

Back 38

1) discrimination in voting
2) reapportionment,
3) switching party affiliation,
4) ballot restrictions based on "special interests" (land ownership)

Front 39

Voting issues that are NOT deemed Fundamental. Apply Rational Basis.

Back 39

Apply Rational Basis to:
the right to be a candidate: 1) payment of a filing fee, 2) both minimum and maximum age restrictions.

Front 40

Election Funding

Back 40

* total spending limits by a candidate - unconstitutional
* individual campaign contribution limits - constitutional if "reasonable"

Front 41

Art. IV Privileges and Immunities Clause

Back 41

Prevents economic discrimination by one state against citizens or residents of another state, UNLESS a substantial government interest exists.

Front 42

When to pick a Privileges and Immunities answer v. Commerce Clause answer

Back 42

Commerce Clause - choose this answer when the discrimination is against an entire industry or entire business

Hint 42

Privileges and Immunities - choose this answer when the discrimination is against citizens or residents.

Front 43

Procedural Due Process

Back 43

The procedural safeguards of NOTICE and a HEARING are available whenever there is a serious deprivation of any life, liberty or property interest.

Front 44

Liberty interests

Back 44

rt to contract, rt to engage in gainful employment.

Front 45

Property Interests (aka Property Entitlements)

Back 45

Welfare benefits, disability benefits (but this is a post-termination rt)

Front 46

Takings - 5th Amendment

Back 46

Private property will not be taken for public use without just compensation. The gov MUST first show a public use before taking even with compensation.

Hint 46

Burden of persuasion is on the government to show the taking is rationally related to a conceivable public purpose.

Front 47

Bill of Attainder

Back 47

Legislative punishment of a named group or individual without judicial trial. UNCONSTITUTIONAL!

Front 48

Ex Post Facto Clause

Back 48

Invalidates retroactive criminal laws that: 1) make criminal conduct that was not a crime when committed or 2) decrease the amount of evidence needed to convict/change the procedures for conviction. UNCONSTITUTIONAL!

Front 49

6th Amendment - requirements in fed ct

Back 49

DOES require unanimous jury in fed juries but NOT states. 12 person jury are not required in State cts. 6 person jury verdict in state cts must be unanimous.

Front 50

Attacking a statute that restricts 1st Amendment rights - Essay or MBE

Back 50

4 Facial Attacks:
1) overbroad - does not apply to commercial speech
2) vagueness
3) prior restraints - ex: gag orders. restrictions on speech before it is spoken

Hint 50

4) unfettered discretion of an official to issue/deny permits based on if he likes what you're saying

Front 51

Regulation of a Non-public Forum

Back 51

Regulation of a non-public forum must be rationally related to a gov interest and be viewpoint neutral.

Hint 51

Side of a public bus, prisons, military base, gov base.

Front 52

Regulation of a Public Forum

Back 52

Regulation of a public forum:
1) content neutral
2) narrowly tailored to
3) further a significant gov interest

Hint 52

parks, streets, sidewalks

Front 53

1st Amend: Freedom NOT to speak

Back 53

Citizens have a right not to be forced to speak - ex: Live free or die on license plates.

Front 54

Con Law Essay Attack

Back 54

Essay 1: Standing
- 1st Amendment Issue

Hint 54

Essay 2: State Action
- 14th Amendment Issue / Equal Protection / Due Process Issue

Front 55

Content Specific Regulation - Protected Speech

Back 55

Most speech is in this category. Apply Strict Scrutiny - necessary to a compelling interest. Likely invalid regulation

Front 56

Content Specific Regulation - Unprotected Speech

Back 56

1) clear and present danger,
2) defamation,
3) obscenity
4) Child porn
5) fighting words
6) fraudulent commercial speech

Front 57

Content Specific Regulation - Unprotected Speech: Clear and Present Danger

Back 57

Brandenburg Test. Speech that is directed at producing and likely will produce imminent unlawful conduct.

Front 58

Content Specific Regulation - Unprotected Speech: Defamation

Back 58

Times v. Sullivan. Malice standard.

Front 59

Content Specific Regulation - Unprotected Speech: Obscenity

Back 59

Miller v. CA To be obscene the material must:
1) appeal to the prurient interest in sex (fed jx "community" standard), 2) depict sexual conduct in a patently offensive way (local standard or state law), AND 3) Lack serious literary, artistic, political or scientific value.

Front 60

Content Specific Regulation - Unprotected Speech: Child Porn

Back 60

State has a strong interest in protecting children.

Front 61

Content Specific Regulation - Unprotected Speech: Fighting Words

Back 61

x

Front 62

Content Specific Regulation - Unprotected Speech: Fraudulent Commercial Speech / Vice Advertising

Back 62

Central Hudson. Government regulation must: 1) directly advance, 2) a substantial governmental interest AND 3) be narrowly tailored.

Front 63

When to choose 1st Amendment answer v. Equal Protection answer

Back 63

1st amendment - Choose 1st Amendment!! Equal Protection is incorporated into 1st Am answers.

Hint 63

Equal Protection - incorporated into the 1st Amendment argument. DON'T choose this one!

Front 64

Content Neutral Regulation of Time, Place, Manner - Not regulated WHAT is being said but HOW/WHEN/WHERE

Back 64

Apply 3-part test. Regulation must: 1) further a significant government interest, 2) be narrowly tailored, AND 3) leave open alternative channels of communication.

Front 65

Regulating Religion: Generally

Back 65

Religious beliefs are absolutely protected. Actions in pursuit of those beliefs may be regulated.

Front 66

Regulating Religion: Free Exercise Methodology - Purposeful Interference

Back 66

Laws that are obvious attempts to purposefully interfere with the exercise of religion. Apply strict scrutiny test the law will likely be struck down.

Front 67

Regulating Religion: Free Exercise Methodology - Incidental burden

Back 67

Laws that are neutral and generally applicable. Apply rational basis test.

Front 68

Establishment Clause

Back 68

In order NOT to violate the establishment clause: 1) the primary purpose must be secular, 2) primary effect must neither inhibit nor advance religion, 3) no excessive governement entanglement w/religion

Front 69

11th Amendment - Private citizens can't sue a State

Back 69

The USSC has decided that a private citizen cannot sue her own state for money damages (only) in any ct because of state sovereignty immunity.

Hint 69

Exceptions: 1) only about private individuals suing a state, 2) only about states, an individual can sue a town, 3) cannot sue only for $ / can sue for equitable relief, 4) immunity can be waived, 5) Congress can overcome immunity if it is enforcing the 13th, 14th, 15th Amend.

Front 70

Test for Standing for individuals

Back 70

1) Adequate injury,
2) Causation
3) Redressibility
A person usually has no standing to assert the rts of 3rd parties.

Hint 70

Exception: A person has 3rd party standing if there is 1) a special relationship if interests/rts are aligned, AND 2) Incapacity of the person with standing. ex: dr may sue on behalf of abortion patients.

Front 71

Test for Standing for Organizations

Back 71

1) would the members of the organization have standing in their individual capacities?
2) Is the purpose of the organization germane to the suit?

Hint 71

3) Individual member participation is not required

Front 72

Scope of Federal Ct Jurisdiction

Back 72

Article III of the U.S. Constitution defines the scope of jurisdiction of the federal courts: cases arising under the U.S. Constitution; cases in which the United States is a party;

Hint 72

cases between two or more states or between a state and the citizens of another state; cases between citizens of different states based on diversity; cases between citizens of the same state claiming lands under grants of different states; cases between a state or its citizens and foreign states or citizens; and cases where ambassadors or other public ministers are affected.

Front 73

The source of congressional power to establish lower federal courts and their jurisdiction

Back 73

Article III grants the U.S. Congress the authority to "ordain and establish" such "inferior courts" (those federal courts beneath the U.S. Supreme Court) as Congress finds necessary.

Front 74

Congress has no authority to resolve disputes between states

Back 74

That authority rests exclusively in the judicial branch of government. Under the power granted in Article III of the Constitution, the U.S. Supreme Court has original jurisdiction in all cases "in which a State shall be a party," and has appellate jurisdiction in all cases arising "between two or more states."

Front 75

Dormant Commerce Clause and State Acting as Market Participant through subsidy programs

Back 75

If a state law discriminates on its face between in-state and out-of-state actors, the state must show that the law (1) serves a compelling state interest, and (2) is narrowly tailored to serve that interest. This limitation is generally known as the Dormant Commerce Clause.

Hint 75

However, where a state acts as a market participant, the Commerce Clause will not apply, permitting the state to discriminate between in-state and out-of-state actors. State A may lawfully prefer its own citizens in benefitting from government programs. Because State A is acting as a market participant through a subsidy program, the program does not violate the Commerce Clause.

Front 76

The supremacy clause provides that federal law is the supreme law of the land, and inconsistent state law is preempted if expressly prohibited or if the U.S. Congress has intended the federal law to provide a comprehensive regulatory scheme.

Back 76

The court looks at a number of facts in determining whether state law is preempted, but whether the state regulation contains a provision resolving potential conflicts with federal law is not a relevant factor.

Front 77

Spending power (U.S. Const., Art. I, Sec. 8, cl. 1),

Back 77

U.S. Congress can condition receipt of federal funds on the states' voluntary conformance to federal regulations.

Front 78

Federal classifications that make distinctions between aliens are not subject to the strict scrutiny test, as the U.S. Congress has broad plenary power to regulate immigration.

Back 78

Alienage is a suspect class; thus, ordinarily, strict scrutiny analysis is used. However, federal classifications based upon alienage are not subject to the strict scrutiny test because the U.S. Congress has broad plenary power to regulate immigration.

Hint 78

In Mathews v. Diaz [426 U.S. 67 (1976)], the U.S. Supreme Court upheld a federal law that established a five-year residency requirement for federal Medicare benefits that disqualified many resident aliens.

Front 79

USSC Jurisdiction: Adequate and Independent State Ground

Back 79

General Rule: The USSC will not take an appeal from the State Supreme Ct if the State decision can be supported on state law grounds.

Hint 79

This is another manifestation of the ban on advisory opinions.

Front 80

USSC Original Jurisdiction

Back 80

First place you go. Party based. Some entities are so important they can go right to the USSC - ambassadors, counsels and state v. state.

Front 81

USSC Appellate Jurisdiction

Back 81

Reaches the USSC after going through lower cts. Exists when a question about federal law or the constitution exists.

Front 82

States have police powers

Back 82

States can pass laws without identifying a particular source of power. A states power is limited by federal law/preemption and individual rts.

Front 83

How to answer an is this law constitutional question? - State action unconstitutional because of Fed immunity

Back 83

1) Fed gov has sovereign immunity, 2) Fed law is supreme over State law, 3) Fed gov/agencies cannot be taxed by states.

Hint 83

If the fact pattern has a state doing anything in violation of these three, the state law is unconstitional.

Front 84

How to answer an is this law constitutional question? - Federal action unconstitutional because of State immunity

Back 84

1) 11th Amendment - no money damages for individuals against a State unless under enforcing 13th, 14th, 15th Am.
2) States immune from some Fed taxation on uniquely state acts or essential government functions

Hint 84

3) Anti-Commandeering Doctrine - Fed cannot force a state to legislate or enforce fed laws (10th Amendment) Consent is NOT a waiver!!! Spending Clause + connection btwn $ & action could be used as an alternative.

Front 85

Dormant Commerce Clause - basic principle

Back 85

States cannot discriminate against out-of-state economic actors. If there is a state law that facially discriminates against out-of-state goods/actors it is basically always invalid.

Hint 85

For a facially discriminatory law to survive the state must prove the regulation: 1) serves a compelling interest AND 2) the state has no other way to serve that interest (necessity).