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MBE Con Law
| Question | Answer |
|---|---|
| Case or Controversy Requirement: | An actual and definite dispute must exist between parties that have adverse legal interests. |
| Abstention Doctrine | Applies in cases of unsettled state law |
| Standing | 1. Plaintiff must show injury in fact: generally economic 2. Causation: the relief sought must eliminate the harm alleged. a. Plaintiff's harm must be redressable |
| Delegation of Legislative Power | Congress has broad discretion to delegate its legislative power to executive officers or administrative agencies. Delegations of legislative power to the executive branch of government are virtually always upheld. |
| Congress gets authority to legislate from Article I, Section 8. | LOOK AT IT- tells power of congress - Taxing and spending power - War power Etc. |
| Congress can tax and spend for the general welfare. | Provided that spending is reasonably related to a legitimate federal interest. |
| Property Power - Congress has the power to make all needful rules and regulations regarding the territory or other property belonging to the U.S. | ○ Where do you apply this? 1. Wild Animals on Federal Land 2. Military Ships or airplanes 3. Federal Buildings and enclaves 4. Indian Reservations |
| Supremacy Clause | Supersession: a federal law will supersede any state law in direct conflict. |
| 11th Amendment: A state cannot be sued in federal court either by its own citizens or by citizens of another state. | Exceptions: 1. Can sue a state official either personally for money damages or can enjoin them for federal law violations. 2. One state may sue another state or the United States 3. Congress can waive the state's 11th amendment immunity and let |
| Affectation Doctrine | Congress can regulate any activity which has a substantial economic effect on the stream of interstate commerce. |
| State Regulation of Interstate Commerce (Dormant Commerce Clause) Must be | 1. Non discriminatory (can't discriminate against out of states) 2. Cannot create an undue burden.- Use a balancing test to decide- balance state interest in regulation against burden of interstate commerce |
| Contracts Clause | prohibits the states from retroactively impairing the obligation of an existing public or private contract. Unless a significant government interest exists. |
| 2 Sources for states to regulate | 1. Dormant commerce clause Police power: health, safety, welfare, morals |
| Fundamental Right | 1. Protected first amendment rights 2. Right to vote 3. Right to travel Privacy- remember! Strict Scrutiny applies!! |
| Fundamental Rights | 1. Protected first amendment rights: SS Applies 2. Right to vote 3. Right to travel 4. Privacy- remember! Strict Scrutiny applies!! - burden on state, necessary for a compelling interest. |
| Fundamental Right of Privacy | C contraception A abortion M marriage P procreation E education (private education) R relationships |
| Suspect Classes | R race A alienage N national origin |
| EP analysis is used where a law affects SOME persons. Persons Similarly Situated must be treated differently. | Substantive Due Process Due Process analysis is effected where affects ALL persons. |
| Substantial Relationship Test: intermediate statured of review in cases involving gender discrimination and illegitimacy, as well as commercial speech (central hudson), content neutral regulation of time, place, manner. | Intermediate scrutiny: state has burden to show that the law is substantially related to an important interest. |
| Alienage- can't discriminate on it Exception: functioning of government involved Includes: policemen, teachers, serving on a jury P must show rational basis. | Rational basis- Plaintiff is a loser. Federal discrimination against aliens is subject only to rational basis- BECAUSE CONGRESS HAS PLENARY POWER OVER ALIENS. |
| Procedural Due Process | Procedural safeguards of notice and a hearing are available whenever there is a serious deprivation of any life liberty or property interest. |
| Prior Restraint | restriction on free speech in advance of publication. Generally unconstitutional. |
| Time place and manner restriction on speech: Government may regulate the conduct associated with speech if the regulation | 1. Is content neutral 2. Is narrowly tailored to serve an important government interest and 3. Leaves open alternative channels of communication |
| Facial Attacks to a Statute | 1. Over broad 2. Vagueness- so unclearly defined that persons of ordinary intelligence must guess at its meaning. Prior Restraint |
| Incidental Burden: where you have a law that effects free exercise rights and it is a neutral, generally applicable law that results in a incidental burden on religion, will generally be upheld. Rational basis- uphold. | Purposeful interference: Strict scrutiny, strike down. |
| Political Question Doctrine | U.S. Supreme Court will not get involved in foreign policy. The courts have regarded as a non justifiable political question the issue of proper exercise of the President's power over the foreign policy of the United States. Exception: foreign treaty su |
| 3rd Party Standing | Look for a close economic connection between the party bringing the lawsuit and the people/ rights they are trying to protect Ex: cannot claim that a third person's constitutional rights were violated |
| USSC Original Jurisdiction over cases involving: | - Ambassadors, ministers, consoles Cases where states suing other states (EXCLUSIVE) |
| President can only pardon for federal offenses | President has no authority to pardon those convicted of state crimes held in state custody. |
| Federal Property power: extends to all areas controlled by the federal government: | 1. Military Bases and military equipment 2. Federal buildings, federal enclaves 3. National Parks Washington D.C. |
| Necessary and Proper Clause | Allows Congress to choose any means to carry out its constitutional powers. |
| Congress's ability to tax and spend is its strongest power. | Only subject to a weak rational basis review. Can tax and spend for general welfare Can attach conditions for that allocation |
| Commerce Clause | Congress has ABSOLUTE plenary power over interstate commerce and it may enact laws to regulate commerce |
| President as commander in chief of the armed forces has an extensive power to deploy the military against any enemy, foreign or domestic. | CONGRESS LACKS SUCH POWER. |
| 10TH Amendment reserves rights to states | State can make laws for health, safety, welfare, morals and aesthetics of their citizens As long as state law doesn't conflict with superceding federal law, or is not in an area of congressional occupation. |
| Procedural Due Process | Notice and Hearing If you are deprived of either, you have a procedural due process claim |
| Bill of Attainder | Legislative punishment of a named individual without notice and a hearing. |
| Privileges and Immunities Clause | State laws that discriminate against out of state residents in terms of the right to earn a living trigger the Privileges and Immunities Clause of Article IV and are most always unconstitutional. |
| Discrimination against resident aliens: Strict scrutiny Must be necessary to further a compelling government interest. | EXCEPTION: Aspects relating to citizenship (IMPORTANT GOVERNMENT FUNCTIONS EXCEPTION) - Voting, sitting on a jury, being a police officer, or teacher - THEN STANDARD Is rational basis |
| Facial Attacks on Speech/Assembly | 1. Vague 2. Overbroad 3. Tantamount to a prior restraint 4. Example of unfettered discretion |
| Public Forums | - Parks, streets, sidewalks (places historically associated with expressive conduct.) - Restrictions on speech due to an unruly audience will only be upheld when the police are absolutely unable to control the crowd. |
Created by:
staciaberry
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