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PRE Con. Law
MBE Preview
| Question | Answer |
|---|---|
| Approaching a question | 1. Underline WHO is passing the line, 2. Determine subject matter of question, and 3. Match the appropriate power to regulate (with subject matter) |
| Case and controversy | Applies when actual indefinite dispute must exist between parties having adverse legal interest |
| Abstain | Applies where unsettled issue of state law |
| Judicial review- Standing | P in federal ct must establish concrete personal stake in outcome by satisfying constitutional standard- 1. Injury in fact (economic), and 2. Causation (relief sought must eliminate the harm alleged) Look at standing before constitutional issue 2. |
| Delegation of legislative power by congress | To avoid undue discretion Congress must give to President specified standards to follow and guidelines to implement a statute |
| Article 2, Section 2: Presidential power as commander and chief | Presidential decision is generally upheld Checks and balances- power to declare war is with Congress |
| Article 1, Section 8- Congress authority to legislate Tax and spending power | So, Congress has the power to tax and spend for the general welfare Appropriation= taxing and spending power Test: Reasonable measure to advance general welfare Congress may attach strings |
| Plenary | Exclusive President does NOT have plenary power |
| Article 1, Section 8- Congress authority to legislate Police power | No federal police power Yes state police power |
| 14th amendment, Section 5- Enforcement clause | Congress can legislate in certain areas by appropriate legislation Usually in areas of civil rights and fundamental rights |
| Answers that are usually wrong | 1. General welfare clause- Only correct when used as limitation on taxing and spending, 2. Necessary and proper clause- Not independent power so correct when used to carry into effect some other effect, 3. Integral or inherit gov't function |
| Article 4, Section 3- Federal property power | Congress has the power to make all neatful rules and regulations regarding the territory or other property belonging to the U.S. |
| Article 4, Section 3- Federal property power applied | 1. Wild animals on federal land, 2. Military ships and airplanes, 3. Federal buildings and enclaves (army base, VA hospital), and 4. Native Asmerican reservations |
| Supremacy clause- Supersession doctrine | A federal law will supersede any state law in direct conflict Supremacy clause: Policy used to resolve conflict between issues between gov't and states (NOT a power) |
| Answers that are usually wrong continued... | 4. Congress cannot commandeer the states to enact or enforce a federal regulatory statute 5. Contract clause- State can "modify" under police power so it wins |
| 11th amendment | "A state cannot be sued in federal court either by its own citizens or citizens of another state without consent" |
| 11th amendment exceptions | 1. Can sue a state official personally or enjoin for federal law violation, 2. One state may sue another state or the U.S., 3. Congress can waive states 11th am immunity letting case be heard under enforcement clause civil/fundamental right violations) |
| Article 1, Section 8- Congress authority to legislate Power over district over District of Columbia | Federal property so Congress has police power over DC |
| Federal commerce power- Affectation doctrine, "Jones" | Congress can regulate any activity which has a substantial economic effect on the stream of interstate commerce |
| State regulation of interstate commerce | Has to be- 1. Non-discriminatory (against other states), 2. Cannot create an undue burden on interstate commerce, a. Balancing test- State interest in regulation v. burden on interstate congress |
| Congressional authorization | Delegation by Congress of its commerce power to the President Congress has plenary power to regulate commerce with foreign affairs |
| Article 1, Section 10- Contract clause | Prohibits the states from retroactively impairing the obligation of an existing public or private contract, unless a significant gov't interest exists Only applies to the States |
| State's police power | 1. Dormant commerce clause, 2. Police power (health, safety, welfare, or aesthetics) |
| Federal commerce power- Affectation doctrine, "Jones" | Congress can regulate any activity which has a substantial economic effect on the stream of interstate commerce |
| State regulation of interstate commerce | Has to be- 1. Non-discriminatory (against other states), 2. Cannot create an undue burden on interstate commerce, a. Balancing test- State interest in regulation v. burden on interstate congress |
| Congressional authorization | Delegation by Congress of its commerce power to the President Congress has plenary power to regulate commerce with foreign affairs |
| Article 1, Section 10- Contract clause | Prohibits the states from retroactively impairing the obligation of an existing public or private contract, unless a significant gov't interest exists Only applies to the States |
| State's police power | 1. Dormant commerce clause, 2. Police power (health, safety, welfare, or aesthetics) |
| Protection of individual rights- Fundamental rights | 1. Protective 1st amendment rights, 2. Right to vote, 3. Right to travel, 4. Right to privacy Strict scrutiny analysis applies so burden on state to show law is NECESSARY for compelling interest -No less alternative available |
| Protection of individual rights- Fundamental rights Right to privacy (CAMPER) | 1. Contraception, 2. Abortion, 3. Marriage, 4. Procreation, 5. Education (private, e.g. home school), 6. Family relations (related people fundamental right to live together NOT unrelated, raise children) Strict scrutiny on State -State usually |
| Protection of individual rights- Fundamental rights Strict scrutiny applies | Suspect classes- 1. Race, 2. Alienage, 3. National origin |
| Protection of individual rights- Fundamental rights Equal protection analysis applies | Used where a law affects SOME persons (not all) Persons similarly situated must be treated differently |
| Protection of individual rights- Fundamental rights Substantive due process analysis applies | Use where law affects ALL persons |
| Intermediate scrutiny | State has burden to show law is substantially related to important interest -Must be an exceedingly persuasive justification Applies- 1. Gender discrimination, 2. Illegitimacy, 3. Commercial speech, 4. Content neutral regulation of time, place, |
| Protection of individual rights- Fundamental rights Strict scrutiny applies, Alienage | State discrimination of aliens is subject to strict scrutiny Exception: Where functioning of gov't is involved then discrimination allowed (such as, policeman, teachers, and serving on a jury- rational basis) Falls under equal protection or due proc |
| Protection of individual rights- Fundamental rights Strict scrutiny applies, Alienage and federal gov't | Federal discrimination is subject to only rational basis since Congress has plenary power over aliens |
| Protection of individual rights- Fundamental rights Procedural due process analysis applies | Procedural safeguards of a NOTICE and a HEARING are available whenever there is a serious deprivation of any life, liberty, or property interest |
| 1st amendment- Freedom of speech and press Prior restraint | Restriction on free speech in advance of publication |
| 1st amendment- Freedom of speech and press What is being regulated? | 1. Content (the message), or a. Content-neutral 2. Conduct (method) |
| 1st amendment- Freedom of speech and press What is being regulated? Content-neutral | Content-neutral regulation of time, place, manner- 1. Further significant gov't interest, 2. Regulation must be narrowly tailored, 3. Regulation must leave open alternative challenged |
| 1st amendment- Freedom of speech and press Regulating the content | Regulating content (the message) Apply strict scrutiny |
| Statute regulating rights to free speech | 1. Make a facial attack a. Over breadth (over broad), b. Vagueness 2. If not, look at content and conduct |
| Freedom of religion- Exercise clause | Gov't regulation of free exercise rights may NOT be religiously motivated Religious BELIEFS are absolutely protected, but religious CONDUCT may be regulated |
| Freedom of religion- Exercise clause Incidental burden v. Purposeful interference | Incidental burden= law will be routinely upheld on rational basis Purposeful interference= not routinely upheld under strict scrutiny |
| Freedom of religion- Establishment clause | Whenever sect preference strict scrutiny applies (usually not), or Lemon Test (PEE), not violate establishment clause if- 1. Primary purpose of regulation secular, 2. Primary effect must inhibit or advance religion, & 3. No excessive gov't entangle |
Created by:
dmoore147
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