Mbe Constitutional Law

Front 1

Tax & Spend

Back 1

- congress has this authority
- for the general welfare
- any rational basis for the exersice of this power will be upheld (always upheld)
- congress can attach conditions to its grants of money (even if it goes to local enterprise) - doesn't have to be important government interest
- can't legislate for general welfare, but can tax and spend for general welfare

Front 2

Necessary & Proper

Back 2

- has no meaning all by itself; only adds to other powers already given by the Constitution (always incorrect by itself)

Front 3

Justification for federal government granting money

Back 3

-when a federal statutue distributes money, the best justification will be the power to tax and spend (broadest authority

Front 4

Commerce Clause (6 questions)

Look for these rules: (continued on next page)

Back 4

- congress has power to regulate interstate commerce 1-fed statutue will never be held unconstituional under commerce clause
2- comm clause is always a possible winning pick
3- if congress delegates to states, the state statutue always will be upheld

Front 5

State Laws impacting interstate commerce
**check all these (got all wrong)

Back 5

-State can pass laws that impact interstate commerce, but they can't place an undue burden or impermissible restraint on commerce
-will balance impact on commerce and state's interest
1-fact specific question - always challengable
2- some S. ct. decisions have held certain things in violation
a. protecting only local economic interest
b. no complete bar of exports of natural resources
c. cannot ban dangerous unless no other way to deal with exports
See MSE 74, 89, 94, 170, 174

Front 6

Preemption Hint

Back 6

- if the purpose of the fed legislation and state legislation are different; always conclude there has been no pre-emption, unless fed statutue specifically says it preempts.

Front 7

Limitations on Judicial Review and Standing

Back 7

- must exhaust state remedies first (state appellate courts, rather than federal appellate court)
-Standing must establish an injury (or threat of injury), defendant is the cause of injury, if P wins, there will be no further injury
-if a start court makes a decision based on state law and the constitution, the S. Ct. CANNOT hear it (because result would be the same) CHECK THIS: MSE 110

Front 8

4 rules for advisory opinions

Back 8

-fed courts cannot issue advisory opinions
-congress cannot authorize a fed court to issue advisory opinion
- a start court may be able to issue depending on state law
- MOST HELPFUL: advisory opinion is a decision is subject to review by a different branch of government, then it is not a final judicial decision
MSE 130 (check)

Front 9

3rd party standing

Back 9

seller of goods or provider of services, has standing if he has also suffered harm to challenge the law that adversely effects his customers (3rd party standing)

Front 10

political question (only 2 situations where this would come up). Likely wrong answer if it says political question.

Back 10

-constitution specifical gives to other branch of government authority to decide the issue
-where too complex for court to decide (so seldom)

Front 11

full faith & credit

Back 11

- judgment in state 1 must be given full credit in state 2 where...
1-state 1 had jurisdiction
2- state 1 was on the merits
3 - state 1's judgement was final

Front 12

Congress cannot

Back 12

-cannot direct president on how to direct troops
-congress can only deal with the funding

Front 13

Legislation effecting property rights

Back 13

-when substantially reduces property value; must be an important government purpose

Front 14

Strict Scrutiny

Back 14

- program will be unconstitutional, unless can establish a COMPELLING government interest
-used with respect to race, religion, national origin, most alienage classifications, and those that classify and impact the right to travel and the right to vote (fundamental interests)

Front 15

Intermediate scrutiny

Back 15

- uncontitutional, unless can establish an IMPORTANT government interest.
-gender/sex
-burden always on the government (as it is in strict scrutiny)

Front 16

rational basis standard of review

Back 16

- constitutional unless challenger can show there was no rational basis (burden on challenger); or no LEGITIMATE government purpose
-applied anytime we are not using strict or intermediate scrutiny, including AGE
(alienage if Congress looking at it)
(state legislation dealing with alienage is strict scrutiny unless judge, cop, secondary teacher)

Front 17

Fundamental Right to Travel

Back 17

-will see this issue if someone moves to a new state and is a new citizen of state and being treated different that citizens of the start who have been there longer
-apply strict scrutiny
-

Front 18

State Action under Equal Protection is required

Back 18

private organization operating under a license or with grant of land by the state
2 rules of thumb:
1- licensing activity and or receipt of gov assistance is never enough to convert to state action
2- if no state action, any pick that says the constitution does not apply, is always the winning answer!!
(exception is involuntary servitude- can sue anyone without state action

Front 19

Equal Protection

Back 19

-only applies to states, but not the federal government (equal protection 14th)
-Due Process Clause protects federal gov employees in relation to Equal Protection
-watch for fed gov employees

Front 20

Equal Protection - unintended

Back 20

-unintentional discrimination - use rational basis

Front 21

National Standard

Back 21

MSE 146

Front 22

check

Back 22

MSE 198

Front 23

check

Back 23

- a generally applicable law, not aimed at religion, will not be struck just because it requires behavior contrary to someone's religious beliefs

Front 24

Establishment Clause

Back 24

3 part test (lemon test)to be constitutional
1- law must have a secular purpose
2- primary purpose of law may neither enhance or...
3- will not result in excessive gov entanglement with religion

Front 25

Always wrong answers:

Back 25

-congress may not delegate its power to an administrative agency
- subject matter reserved to the states under the constitution
- congress has the power to legislate for the general welfare (no such authority) - only tax and spend
-statute by the federal government is unconstitutional under 14th
-anything that relates to the privileges and immunities clause under the 14th amendment
-14th amendment due process claim - privilege and not a right or vice versa
- ex post facto applied to noncriminal statute
- state statute unconstitutional b/c burden on commerce (too broad)

Front 26

How can the court hear the merits of street vendor who is selling water and claims a constitutional violation?

Back 26

Vendor has standing as he can demonstrate a concrete stake in the outcome. Vendor is faced with an immeidate and direct threat of injury. Vendor does not have to be charged with violating the law.

Front 27

Can a statutue provide that a certain group has standing?

Back 27

No. Standing cannot be conferred, it requires that a party have a concrete stake in the outcome.

Front 28

What is the burden on congress to show taxing and spending is a compelling state interest?

Back 28

There is no burden on Congress under the taxin and spending clause. Power is plenary. Only must show reasonable relationship to revenue production.

Front 29

Can Senator bring suit against President for line item veto?

Back 29

Not if he doesn't have standing.

Front 30

If Congress creates a commission to investigate and make recommendations, AND to prosecute violations, is it proper?

Back 30

A commissoin lacks authority to enforce its standards if some of its members were appointed by Congress.

Under the Appointments Caluse, enforcement is an executive act

Front 31

When can states impose a "doing business" tax on companies engaged in interstate commerce?

Back 31

Always can as long as tax does not discriminate against or unfairly burden interstaet commerce.

Front 32

The right to vote is a fundamental right, generally reviewed under strict scrutinty, what is the exception?

Back 32

Law prohibiting nonresidents from voting are generally valid, provided they meet the rational basis standard.

Front 33

What is the standard under the privileges and immunities clause to protect against discrimination of non-state citizens in their pursuit of a livlihood?

Back 33

Substantial justification for discriminatory treatment. (intermediate??)

Front 34

Can an individual assert a free speech claim when government building refuses to display plaque containing religious messages?

Back 34

No. A permanent display on a government building constitutes government speech, even if donated. The government is free to choose which messages it will and will not convey. Government however, cannot regulate private speech, unless compelling state interest.

Front 35

Is it constitutional to make it a crime to make public statements in support of enemy nation and against U.S.?

Back 35

No, overly broad. Regulation is facially invalid.

Front 36

Prohibition of speech

Back 36

1. prior restraints - not tolerated unless government can show that the prior restrain is narrowly tailored to achieve a compeeling, or at least significant state interest.
2. Use of force or violation of law - clear and present danger of imminent lawlessness

Front 37

Can may authorize prayer before council meetings?

Back 37

Yes, because of the long history of legislative prayer in America, such prayers do not constitute an establishment of religion.