Constitutional Law Bar

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Constitutional Law Bar
2013-06-02 22:56:42
Bar exam Constitutional law MBE Con

Con law for bar prep
Show Answers:

  1. Any permanent physical occupation by the government of private property constitutes
    a taking for which just compensation to the property owner is required. Irrelevant whether property use by O is unaffected
  2. Level of scrutiny when assessing an Equal Protection challenge to state or local governmental action based on alienage
    Strict scrutiny
  3. Level of scrutiny for state laws that restrict or prohibit an alien’s participation in government functions
    Rational Basis
  4. Insurance regulation is valid under a state's
    traditional police powers so long as valid reason and burdensome on local and out-of-staters
  5. Bolling v. Sharpe and implications
    SCOTUS held that the equal protection principles of the 14th Amend apply to actions of the federal government through the Due Process Clause of the 5th Amend. 

    This means must pass strict scrutiny if apply measures only to suspect class
  6. Press privileges under 1st Amend
    The press has no greater First Amendment rights than does the general public. There is no special privilege allowing the press to invade the rights of others. Members of the press are not immune from the application of generally applicable laws, even if the application of such laws has a negative incidental effect on the ability to gather and report the news. The First Amendment shields the media from liability for publishing information that was obtained illegally by a third party as long as the information involves a matter of public concern and the publisher neither obtained it unlawfully nor knows who did.
  7. DPC of 14th Amend applies to _____ and ______
    the states and prevents the enactment or enforcement of laws that deprive any person of a protected interest, including liberty and/or property, without due process. When one's liberty is adversely affected by government action, the court would ask two questions: (1) is the threatened interest a protected one, and (2) if so, what process is due.

    Also guarantees certain fundamental rights, including the right to travel among the states, including right to enter one state and leave another and to be treated like a welcome visitor.
  8. Felon voting can be prohibited under
    Sec 2 of 14th Amend
  9. Ministerial Exception applies to
    the Free Exercise and Establishment Clauses of the First Amendment.
  10. 15th Amen
    prohibits both the states and the federal government from denying any citizen the right to vote on the basis of race, color, or previous condition of servitude. The courts have interpreted the right to vote to include the right to have that vote meaningfully counted
  11. Congressional limits on SCOTUS JX
    Broad power over appellate JX, NO power over Original JX
  12. Commerce Clause and Dormand Commerce Clause
    reserves for Congress the power to regulate commerce among the states. As a corollary, the "Dormant" Commerce Clause limits the power of the states to legislate in ways that hinder interstate commerce. Specifically, state statutes cannot discriminate against out-of-state commerce; cannot unduly burden interstate commerce; and cannot regulate extraterritorial (wholly out-of-state) activity.
  13. State Legislator immunity
    Federal law generally cannot be applied to state legislators acting in the course of their official duties. State legislators are absolutely immune from suit for damages and for declaratory and injunctive relief for actions within the sphere of legitimate legislative activity.  The Speech and Debate Clause of the U.S. Constitution only applies to members of the U.S. Congress.
  14. Equal Protection issues arise when
    a law or statute treats a person, or a class of persons, differently from others. If the law does not deal with a suspect (or quasi-suspect) class or a fundamental right, it would only have to survive the rational basis test.
  15. Taxation on Fed Govt
    The federal government and its instrumentalities (such as a national bank) are immune from taxation by the states. States may, however, impose generally applicable indirect taxes so long as they do not unreasonably burden the federal government (e.g., state income taxes on federal employees). The tax here is not so indirect as to be permitted, especially as it would create a burden on the federal government, which would be forced to apply different taxes to notes issued in national banks across the country.
  16. Content-Speech
    • The government may only regulate the content of speech if the regulation is necessary to achieve a compelling government interest and is narrowly tailored to meet that interest (i.e., the strict scrutiny test).
    • The government may restrict speech on the basis of content if the speech falls into one of multiple categories, including obscenity (such as in adult theaters). The imposition of land-use restrictions is one such method to regulate obscenity.
  17. Supremacy Clause of Article VI
    • holds federal regulations above those of any state law that is in conflict. Even if it does not overtly conflict with federal law, a state law will be preempted if it frustrates the purpose of a federal statute.  (including fed K)
    • Under the Supremacy Clause, a state is required to follow federal law when it conflicts with state law. A treaty that is not self-executing is not treated as federal law for purposes of the Supremacy Clause, however, unless it has been implemented through legislation. The President, acting on his own, cannot implement such a treaty. Consequently, the state court was free to follow state law; its refusal to reconsider the prisoner’s conviction did not violate the Supremacy Clause.
  18. Judge Immunity
    A judge is absolutely immune from civil liability for damages resulting from her judicial acts unless it is clear that the judge did not have jurisdiction.
  19. First Amend
    Applicable to the states via the Fourteenth Amendment, the First Amendment generally prohibits the government's ability to restrict speech. However, the government may have a limited ability to regulate the content of expression as long as such regulation is intended to achieve a compelling government interest and is narrowly tailored to achieve that interest (i.e., can withstand strict scrutiny).
  20. Article IV, Section 3 Property Clause
    gives Congress the “power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” There is no express limit on Congress’s power to dispose of property owned by the United States.
  21. bill of attainder
    violation of Article I, Section 10, Clause 1 of the Constitution. A bill of attainder is a legislative act that declares a person or group of persons guilty of some crime and punishes them without a trial. The challenged provision satisfies this definition because it punishes (without trial) the two named professors by depriving them of their salaries, and thus, their employment.
  22. “public forum”
    may be traditional—those that are historically associated with expression, such as sidewalks, streets, and parks—or designated—those that the government has opened for public use, such as civic auditoriums. In such public forums, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels for communication.
  23. nonpublic forum
    essentially any public property that is not a traditional or designated public forum, such as government offices, schools, jails, and military bases. The government may regulate speech-related activities in nonpublic forums as long as the regulation is (i) viewpoint-neutral and (ii) reasonably related to a legitimate governmental interest.
  24. SCOTUS Original JX and Appellate JX
    Article III, section 2 gives the Supreme Court original jurisdiction over cases affecting Ambassadors, other public ministers and Consuls and those in which a state is a party.

     Article III also gives the Supreme Court appellate jurisdiction over all other cases arising under the Constitution, act of Congress, or treaty. Congress may not expand the Supreme Court’s jurisdiction by statute.
  25. Import-Export Clause of Article I, Section 10
    prohibits the states from imposing any tax on any imported or exported goods, or on any commercial activity connected with imported goods. The Commerce Clause limits states from taxing commerce with other countries because it vests in Congress the exclusive power to regulate foreign commerce.
  26. How does the 5th Amend Takings Clause apply to the states
    through the Due Process Clause of the 14th Amend
  27. Is there a taking if govt (state or fed) destroys prop in response to a public peril w/o compensation?
  28. Restrictions on commercial speech
    subject to intermediate scrutiny and are reviewed under a four-part test: (i) it must concern lawful activity and be neither false nor misleading; (ii) the asserted government interest must be substantial; (iii) the regulation must directly advance the asserted interest; and (iv) the regulation must be narrowly tailored to serve that interest.
  29. To have standing
    a person must suffer an injury in fact. States and individuals have standing to challenge 10th amend violations

    For example, if the defendant is subject to imprisonment for violation of the statute, which the defendant contends is unconstitutional. Because the defendant has suffered an injury in fact, he has standing to assert the claim.
  30. State taxation is limited by
    Commerce Clause
  31. Loyalty Oaths
    Public employees may be required to take loyalty oaths promising that they will support the Constitution and oppose the unlawful overthrow of the government. While such oaths are often found to be vague or overbroad
  32. Equal Protection under Fed law
    does not apply to private citizens
  33. Public EM and Takings Clause
    Not considered prop for Takings Clause
  34. Congress removal of person's citizenship
    unconstitutional unless obtained by fraud or bad faith
  35. Individual taxpayer standing to file a fed suit over improperly allocated funds
    Lacks standing.Limited / very narrow exception to challenge govt expenditure that violated the 1st Amend Establishment of Religion Clause - Exception does not apply to the expenditure of general discretionary funds by the exec branch.
  36. 13th Amen
    Eliminated racial discrimination in both public and private conduct. It is the only AMend that authorizes Cong to regulate purely private conduct, including racial discrim by private house sellers, private schools, and private ERs.
  37. Are public universities public forums?
    They are limited public forums and can pass content-neutral laws
  38. Commercial Speech test
    The regulation must be narrowly tailored, reasonable and proportional means that directly advances a substantial govt int
  39. 11th Amend and State Sovereignty
    Cannot sue a state for $ damages in state or fed court. Does not protect local govts. Can sue state officers personally, but not if $ comes from state treasury. 

    • Exceptions:
    • 1. State consents (explicit waiver)
    • 2. Congress expressly says so to protect 14th Amend rights
    • 3. Federal govt may sue state govts.
    • 4. BK proceedings
  40. When can SCOTUS review a state court judgement?
    SCOTUS can review a state court judgment only if it turned on federal grounds . The court has no JX if the judgment below rested on an adequate and independent state ground.

    Adequate: State ground must control the decision no matter how a fed issue is decided - Fed rights claimant wins anyway under state law.

    Independent: State law does not follow or depend on an interp of fed law. - No AISG is state law adopts or follows fed law.

    When unclear whether decision rests on fed or state grounds -> SCOTUS can review the issue, if disagrees w/ state court interp of fed issue will remand case
  41. Standing requirements
    Standing reqs injury, causation, and redressability.
  42. Third Party Standing
    Generally no 3rd party standing


    1. Parties to an exchange or transaction can raise the rights of other parties to that exchange or transaction.

    2. Org has standing if members have standing, ints are germane to org’s purpose, neither claim nor relief rqrs participation of indiv members

    • 3. Fed tax payers always have standing to challenge their own tax liab, but not govt expenditures
    • Exception: (Narrow / Establishment Clause) An establishment of religion challenge to specific congressional appropriations can be challenged by any tax payer
  43. Commerce Power
    Cong can regulate the channels and instrumentalities of interstate commerce, and interstate activity that has a substantial effect on interstate commerce judged in the aggregate for econ activity but not non-econ.
  44. Taxing and Spending power
    Tax must be rationally related to raising revenue.

    Cong can use the Spending Power to accomplish things it could not do by direct regulation under the Commerce Clause. Includes spending for the general welfare.
  45. Anti-Commandeering
    (10th Amend) All powers not granted to fed govt are reserved for the states. Thus, Cong cannot force states to adopt or enforce regulatory programs. It cannot commandeer state and local officers to carry out fed programs.
  46. Congressional Limits on the Executive Power
    • 1. Impeachment 
    • 2. No power to impound funds
    • 3. Legislative Veto unconstitutional
  47. Presidential Immunity
    Has absolute immunity for official acts, but not for acts prior to taking office
  48. Legislator Immunity
    US Senators and Reps (and their aides, but not state legislators) are protected by the Speech or Debate Clause - Cannot be prosecuted or punished in relation to their official acts.
  49. Federal Govt Immunity
    Fed govt gen immune from direct state regulation or taxation, but states can tax indirectly (taxing fed EEs)
  50. State Immunity
    States are not immune from direct fed regulation (pollution regs, environmental laws)

    State laws cannot shield state officers from fed liab

    Exception: Anti-Commandeering Principle
  51. Privileges and Immunities of State Citizenship: (Art IV- Comity Clause)
    Forbids serious discrim against out-of-state indivs (ability to make living), absent substantial justification.

    Rule: There can be no legal rqt of residency for private EM, but public EM can have residency rqts.

    Not for corporations

    • Private EM = admission to the bar or other occupational licenses
    • Public EM = City hiring only city residents or rqring certain %age of city residents on construction projects
    • Non-Serious discrim = recreational opps like hunting license
  52. Dormant Commerce Clause
    More important than Privileges and Immunities of Art IV - Protects out-of-state businesses and corporations

    Rule: In the absence of fed regulation, state regulation of commerce is valid so long as:

    1. There is no discrimination against out-of-state interests; (Exceptions: State as a Market Participant, Federal Approval,  

    2. The regulation does not unduly burden interstate commerce; and

    3. The regulation does not apply to wholly extraterritorial activity.
  53. If Cong is acting in discrim against out-of-staters what Law applies
    Commerce Clause
  54. If state is discrim against out-of-stater, what law applies?
    Dormant Commerce Clause
  55. If law does not discrim, but burdens interstate commerce -->
    P&IC of Art IV does not apply

    • Balancing test:
    • If the law burdens interstate commerce, it violates DCC, if its burdens exceed its benefits (even if law not discrimtry)
  56. If a law burdens interstate commerce and is discrim -->
    violates DCC unless it’s nec to achieve important govt purpose

    But exceptions - Congressional consent and State Market Participant

    If the law discrims against out-of-staters w/ regd to ability to make a living, violates P&IC of Art IV, unless it’s nec to achieve important govt purpose
  57. Commerce Power to regulate private conduct
    Govt cannot be significantly involved in private discrim 

    • govt cannot facilitate private discrim
    • govt cannot profit from private discrim
    • govt cannot endorse private agreement to discrim
    • BUT govt not rqd to prevent private discrim
  58. Balancing Test for Due Process Violations
    • 1. The individual int at stake (life, lib, prop);
    • 2. The value of the procedure protecting that int; and
    • 3. The govt’s int in efficiency and cost.
  59. After deprivation hearings
    OK So long as hearing is prompt and fair (reinstatement and backpay) - terminating disability benefits; dismissing students for academic reasons
  60. Substantive Due Process is the same as
    Equal Protection
  61. Due Process v. EQP
    • Two DPCs
    • 1. 5th Amend = Fed govt (includes EQP concepts)
    • 2. 14th Amend = State and local govt

    One EQPC - applies to localities and states


    If law denies a fundamental right to everyone - violates substantive due process

    If law denies a fundamental right to only some - violates EQP
  62. Strict Scrutiny Test
    Rule: Is the law necessary for a compelling int? Least restrictive means Govt has BOP

    Classifications that are suspect or fundamental rights
  63. Rational Basis Test
    Rule: Is the law rationally related to a legitimate int? Challenger has BOP Classification

    - All cases that don’t follow other tests)
  64. Intermediate Scrutiny Test
    Rule: Is the law substantially related to an important govt int? Govt has BOP

    Classifications of legitimacy and gender
  65. Fundamental Rights
    Right to Travel, Voting and Ballot Access, Privacy (marriage, contraception, sexual intimacy, abortion, parental rights, family relations, obscene material, refusal of medical treatment)
  66. Suspect Classifications
    Strict Scrutiny 


    Race, Ethnicity or national origin, Alienage 

    A law makes a racial classification only if the Ps show it has discriminatory purpose - not enough to show disproportionate impact.
  67. Affirmative Action
    Affirm Action valid when it specifically corrects past discrim by the specific dept or agency now engaged in affirm action.

    Gen societal discrim does not justify affirm action
  68. Alienage
    Strict Scrutiny 

    States and localities cannot rqr US citizenship for access to private EM or govt benefits

    Fed Govt exempt from Strict Scrutiny test: Fed govt Fed classifications based on US citizenship valid unless arbitrary and unreasonable
  69. Establishment of Religion
    • Lemon Test
    • 1. Does the law have a secular purpose?
    • 2. Does the law have a primary effect that neither advances nor prohibits religion?
    • 3. Does the law avoid excessive government entanglement with religion?
  70. Endorsement
    It is a violation of the Establishment Clause for the govt to endorse one religion over another and also to endorse religion over non-religion - to prevent coercive endorsement of religion that may override indiv choice
  71. Free Exercise of Religion
    Religious Belief - Absolutely protected

    Religious Conduct - Qualifiedly protected - Laws regulating religious conduct bc of its religious significance are unconstitutional (aimed at religion). Neutral regulation of conduct can be enforced despite religious objections.

    Exception: Ministerial Exception
  72. Time, Place and Manner Content-Based
    Regulation of the Content of Expression 

    Strict Scrutiny 

    • Rule: Laws regulating expressive conduct are upheld if:
    • 1. They further an important interest;
    • 2. That int is unrelated to the suppression of expression; and
    • 3. The burden on expression is no greater than nec.

    • Analysis:  
    • If a govt is trying to suppress a message --> unconstitutional

    If the govt is trying to pursue an int unrelated to the suppression of the expression --> constitutional
  73. Vagueness and Overbreadth
    Laws that are vague and overbroad unconstl
  74. Content Neutral Time, Place Content Neutral
    Public Forum

    • Rule: Only time, place, and manner may be regulated in a public forum if meet 3 rqts:
    • 1. Content neutral, on its face as applied (NO executive discretion)
    • 2. Alternative Channels of communication must be left open.
    • 3. Must narrowly serve a significant state int. Under this test most time, place, or manner regulations upheld - No compelling int

    Non-Public Forum 

    Rule: Any reasonable regulation of speech will be upheld.

    Viewpoint discrim is invalid (e.g., btwn members of diff political parties)

    Disruption of the functions of govt - One should go outside to public sidewalk
  75. Obscenity
    Rule: Defined by the Rule of S

    Sexy: Must be erotic; appeal to the prurient int

    Society Sick: Must be patently offensive to the average person in the society.

    Standards: Must be defined by the proper standards for determining what is obscene, not vague and/or overbroad

    Serious Value: The material must lack serious value. Determ made in court, not the jury, and it must be based on a national standard, not a local one.
  76. Incitement
    Rule: Speech is not protected if it is an incitement to immediate violence
  77. Fighting Words
    Words likely to provoke an immediate breach of the peace

    Must be aimed/targeted at someone, and that person might hit back Gen vulgarity not enough

    In theory NOT protected speech, but fighting word statutes on bar exam are vague and overbroad (laws against hate speech)
  78. Defamation
    False statements of fact (not opinion) damaging to a person’s reputation can be prohibited.

    Public Officials and Public figures - Can recover for defamation only on proof of knowing or recklessness of falsity

    Private Ps - Can recover on proof of negligent falsity.
  79. Commercial Speech
    Most regulations of commercial speech are struck down. So long as the advert is truthful and informational, it must be allowed.

    • Test:
    • Regulation of commercial speech must directly advance a substantial govt int and be narrowly tailored to that int. Misleading Speech: May be prohibited
  80. Speech by Govt EEs
    Rule: Govt EEs cannot be hired or fired based on political party, political philosophy, or any act of political expression Can be fired for disrupting the workplace or not doing their jobs Exception: Rule does not apply to confidential advisors or policy-making EEs (Prez cabinet)
  81. Campaign Finance
    Contributions and Coordinated expenditures can be regulated 

    Direct and Independent Expenditures cannot be regulated