MBE CONSTITUTIONAL LAW

Article III: SCOTUS: original (ambassadors, state v. state); appellate (writ) Limits: Article III, section 2 requires person litigating a
constitutional question to show: Ripeness: Fitness for adjudication ( sued before injury fully realized) NOT Moot: Sued too late, dec will
have no effect. EXCEPTION: Case is not moot if it is capable of repetition yet evading review (CORYER) NOT Political question: Matter
assigned to another branch by constitution or incapable of judicial answer NOTAbstention: Where federal court abstains because meaning
of a state law or regulation is unclear. NOT Adequate & Independent State Grounds: SCOTUS wont hear a case if the case is supported
by an independent and adequate state law ground. and has Standing: Actual or imminent injury, causation and redressability. Third party
standing: if Members would have standing individually and fits purpose of organization . overbreadth is an exception to this rule
Separation of Powers: Congress Sources of power: Enumerated (commerce, tax and spend, immigration); Enabling clauses (13-15) and the
necessary and proper clause .Nec and Proper not a power per se, but gives Congress a choice of means
Commerce: Congress can regulate channels of interstate commerce, instrumentalities of interstate commerce, and activities that
substantially affect interstate commerce, including cumulative impacts. Limits: Cannot regulate intrastate non-economic activity and
cannot overcome state sovereign immunity. Tax: Congress has power to tax and spend for general welfare. Legislation will be upheld if tax
raises revenue, even if the tax is used to regulate behavior. Spending: Congress can set a condition on the receipt of federal funds as long as
it serves general welfare, condition is unambiguous, relates to federal program, amount in question is not coercive and state is not required
to take an unconstitutional action. Other powers: War, Immigration, Property, Eminent domain, Civil War Amendments (while the 13th Am.
applies to private actors as well, the 14-15 only apply to states). Response by Congress must be congruent and proportional Delegation of
Powers: Can delegate to agency so long as some intelligible principle
Executive Powers: Appointments: President appoints high-level officials with advice and consent of Senate. Congress can delegate
appointment of inferior officersanyone with a superior. President has the power to remove executive officials w/o cause but need cause for
officers w/ fixed terms or judicial officials. Veto power: 10 days to veto unless passed near end of term (overridden by 2/3 vote of Houses).
Bicameralism and presentment are the only ways in which a bill can become law(ie no line item vetos). Pardons: President can grant
pardons but only to offenses against the U.S. Pardon power cannot undo impeachment or restore anyone to office. War powers: Congress
has power to declare war and absent authorization, Pres. can respond to attacks but not initiate war. Foreign affairs: President can make
treaty w/ consent of Senate (treaty prevails over earlier federal statute); enter into executive agreements prevail over inconsistent state law,
but not federal law. Congressional limits on the Executive: If congress within its powers, will defeat president. Impeachment,
Appropriations ( pres cannot refuse to spend money according to congress wishes, or spend on something against their wishes)and cannot
ignore federal law.
I. FEDERALL IMMUNITY- Feds cant be taxed by State, cannot be sued without consent, fed law supreme over state law
II. States Immunity against fed action: Private individuals cant sue state for damages on any claim(11th amendment) unless pursuant to
Congress power under 13, 14, 15; However, can sue for injunction. N/A to: subdivisions; state v. state; federal government can sue state.
State Tax Immunity: Feds cannot impose a tax on unique state activities (passing laws,) or essential state sovereign functions. If state
performing private functions, like running a liquor store, can be taxed as normal
Anti-commandeering(10th amendment)-Feds cannot commandeer the states as sovereigns, cannot compel state legislatures to pass laws or
enforce federal law. A PROHIBITION IS NOT COMMMANDEERING
Dormant Commerce Clause: Strict scrutiny (compelling interest) for discrimination against out of state goods or economic acts. IF state
law DISCRIMINATES on face: compelling interest and regulation serves compelling interest + narrowly tailored. If state INCIDENTALLY
BURDENS interstate commerce, state must show important state interest and no excessive burden. Exceptions when ok to : limit authorized
by congress OR State is a market participant (acting as private ind and not sovereign)
Taxation Power: States can tax interstate commerce so long as it is not facially discriminatory and does not unduly burden interstate
commerce. Sale tax: Consummated in state; Use tax: interstate seller: sufficient nexus to taxing states (e.g. maintains offices there); Doing
Business tax: relate to benefits conferred by taxing state upon interstate business; Net Income Tax: same reqts above; License Fee: flat fee
unconstitutional (order solicitors); license tax on peddler valid if sells in state
State Action: Required for 14/15; Exceptions: 1) public function or2) significant state involvement, endorsement, or encouragement.
Licensing not sufficient entanglement.
Due Process: If federal government is discriminating, invoke due process clause of 5th Am. If states, invoke 14th unless right to indictment by
grand jury, right to jury trial. EPC will usually apply unless visitors (Article 4 Privileges and Immunities) or Migrants (Privileges and
Immunities of 14th).
Procedural Due Process: Protects persons against deprivation of life, liberty or property without due process of law. Who counts as person
who can assert rights? People and corporations. Liberty is broadly defined while property interest is narrowerpublic education, public
employment, welfare benefits, drivers licenses. What process is due? Adequate notice and adequate hearing. To determine adequacy, court
will balance three factors: importance of protected interest, risk of error, burden on the government to provide procedural protection.
Substantive DP: the process of determining if there is sufficient reason for the deprivation. Express rights and fundamental
CAMPERD- Sexual orientation,( use rational basis for this one) contraception, abortion, marriage, possession of obscene material, education,
relatives, death. Abortion: Any regulation on pre-viable fetus is unconstitutional if it imposes an undue burden on womans right to
choose and abortion. Undue burden: Total Ban, Spousal Consent, Spousal notification, Recording patient names, Parental consent
without judicial bypass. Not undue burden: 24-hour waiting period, Ban on certain methods if not the safest, parental consent with
judicial bypass, truthful non-misleading information, no right for indigents to get government funding
I.

MBE CONSTITUTIONAL LAW

Family relations: Govt. cannot prohibit extended family members from living together though state can ban unrelated persons from living
together in single family residence
Right to travel: P&I clause of 14th allows every citizen to travel freely from state to state and setup residency in new state
Right to vote: For total bans, apply strict scrutiny. For regulations, balancing test such as undue burden. Unreasonable restrictions: poll
taxes, school board elections limited to parents and property owners, counting methods vague and not uniform
Takings clause: Fifth Am provides that govt. cannot take private property for public use without just compensation. Two kinds of taking:
direct government appropriation and regulatory taking. To determine if there is a regulatory requirement so onerous as to amount to a
taking: 1)permanent physical invasion 2) deprivation of all economically beneficial use 3) balancing economic impact on owner versus
interest of state in property. Under Kelo, note that public use is broadly defined to mean any public purpose.
EQUAL PROTECTION- Approach: Identify type of discrimination, who is discriminating, and level of scrutiny to attach.
1. Rational basis age, disability, federal alienage, sex orientation regarding criminalizing,- is level of review in situations of disparate
impact, which is not discrimination. Burden is on P to show that government action is not rationally related to legitimate state interest.
Economic regulation only gets rational basis review, where P must show that regulation is not rationally related to any legitimate government
interest
2. Intermediate scrutiny. Gender, illegitimacy, illegal kids schooling, contracts clause-Burden is on the - substantially related to an
important government interest. For sex-discrimination, FOR ESSAYS- court seems to focus on question of whether discrimination is
motivated or reinforced by traditional stereotypes about appropriate sex roles.
3. Strict scrutiny -state alienage, privacy issues, nat origin, race, voting. GOVT must show a compelling government interest, necessary
to achieve that interest , least restrictive or narrowly tailored. Affirmative action is constitutional if remedying past/present
discrimination OR achieve diverse student body in higher education.
II. Privileges/Immunities Clauses
A. 14th Amendment:. Protects interstate travel of citizens. Corporations are not protected.
B. Article IV or the Comity Clause: Prohibits discrimination against non-residents on rights fundamental N/A to aliens and corps. Invalid
forms of non-resident discrimination: commercial licenses, commuter taxes, abortion and employment. But recreational license and instate
natural resource upheld.
Rule: State can treat out of staters differently if discrimination is substantially related to important state interest. Contracts Clause
(No state shall pass any law impairing the obligation of contracts) applies only to the states; Ex post facto: States cant pass retroactive
criminal law (new crime, more punishment, less evidence, longer SOL) & bill attainder (state and fed): legislation inflicts punishment w/o
trial to named indiv or groups for past conduct.
First Amendment: Establishment Clause: Apply Strict Scrutiny for laws that prefer religion; If facially neutral law, apply the Lemon test:
1. Secular leg. purpose 2. primary effect e neither advances nor inhibit3. No excessive entanglement Per se invalid: school prayer, ten
commandments, creationism, delegation of authority to religious organizations, money for religious instruction, salary of secular teachers at
high schools. Free Exercise: There is a conduct-belief distinction. BELIEF ABSOLUTELY PROTECTED. If the law is about conduct,
apply the Smith test. State may regulate or prohibit the activity if the regulation is neutral with respect to religion and general applied. If not
neutral, apply strict scrutiny
1st Amendment: Free Expression: STOPS GOVT FROM DISTORTING MARKETPLACE OF IDEAS, ESP POLITICAL SPEECH. Apply
strict scrutiny for content-based discrimination Evaluate whether law is void for vagueness or over-broad. Law that regulates conduct,
creating incidental burden is allowable if it serves important government interest and no greater burden than necessary. Unprotected speech:
HAFWOUD(rational basis test for regulation of these kinds of speech) HOSTILE AUD-speaker incites breach of peace, police arrest
speaker- police must try to protect instead of silence when possible Fighting words direct personal insult against speaker inciting imm vio
reaction; OBSCENE-MILLER TEST contemporary community standards 1)appeals to prurient interest 2) specifically defined &offensive
local comm standard 3)lacks serious literary, artistic, political value Unlawful action-speaker incites
Imminent unlawful action DEFAMATION- private person/private concern, PL show false and damages, private person public concernreq PL to prove D negligent in false stmt. Public figure, PL must show malice- knowledge or reckless disregard
False light- public concern must show malice public records ALWAYS PROTECTED, newsworthy and true always protected
LOW VALUE SPEECH- Commercial speech: Protected by the First Amendment if not false or deceptive and doesnt relate to unlawful
activity. 1) regulation must have substantial govt interest, 2) directly advance that interest,3) not more extensive than necessary (cannot ban
ads for drugs, lawyers, all ads for lawful products, CAN BAN lawyer in person solicit. And commer billboards for safety and asthetics
indecent speech- regulation must serve subst govt int, and leave open other alternatives govt emply- can prohibit docs in govt clinics from
discussing abortion BUT may not prohibit govt from speaking on behalf of people against govt
Conduct regs-incidental burden on speech- must have imp govt int, no more burden than necessary. Reasonable restraints on time, place,
manner of speech on PUBLIC FORUM: RULE- govt must allow in public areas, but regs must be 1)content neutral, 2)narrowly
tailored 3)leave open alternative channels. REQ PERMITS OK, CONTENT NEUTRAL
If NON-public forum: REGS only need be viewpoint neutral & reasonably related to legitimate government interest. (rational basis
review)
1. Prior Restraint: gen rule- strong presumption against- ok, natl defense,prior review of govt empl books, or if reasonable time, place,
manner.
GOVT REGS CANNOT BE TOO BROAD OR TOO VAGUE ( contemptuously or subversives too vague)