Download Constitutional Law Bar Outline MBE only and more Exams Constitutional Law in PDF only on Docsity!
CONSTITUTIONAL LAW BAR OUTLINE
Role of Federal Govt. vs. State Govt. Executive Legislative Judicial
Pardon Commerce Original Jurisdiction Veto Taxing Appellate Jurisdiction Appointment Spending Comm. In Chief War Treaty Power
I. SEPARATION OF POWERS : One Branch cannot encroach on another branch
*Look for 2 branches of Govt in fact pattern are being discussed… The rule is that all branches are separate… Executive Branch: The President gets certain powers:
- Pardon power: President can only pardon you if you have committed a FEDERAL crime. Pardons are not appealable.
- Veto
- Appointment: President can appoint Supreme Court justices, ambassadors, and high level members of the cabinet. (If there is a commission, President and Congress can jointly appoint those people. i.e. the 9/11 commission).
- Commander in Chief: the President can order where the troops go… PRESIDENT CANNOT DECLARE WAR. (President has the power over the militia, President may do almost everything with the armed forces except declare war).
- Executive Orders/Executive Agreement: Executive Orders apply domestically. (i.e. he can declare today Jess Smith day but it cannot conflict with federal law. So Jess Smith day cannot be a national holiday b/c it’s affecting the mail and days off etc). Executive Agreements apply internationally. Trump and the 2020 Census… cannot conflict w/ federal law.
- Treaty Power: the President has the power to enter into treaties with other countries. (It’s generally done in conjunction with Congress). Domestic Powers of Executive Branch:
- Power and duty to carry out the laws of Congress
- President may not MAKE law… only carry it out. (EXCEPT if there is an emergency and Congress has not said no to a particular act)
- Must carry out Congressional directives e.g. impoundment of funds
- Sign or Veto Legislation: but may not veto some parts of legislation but not others ( Line Item Veto )
- Pardon for federal crime
- Power to appoint and remove cabinet members
Executive Privilege : permits the President to keep certain info and communications confidential, particularly those re: national security. Tip: this privilege is not ABSOLUTE. And is subject to exceptions like important govt. interests in criminal cases. Executive Immunity : President is shielded from civil liability for any actions he took WHILE in acting in his official capacity. Tip: President is NOT shielded from liability for actions taken by President PRIOR to taking office.
Legislative Branch:
- Commerce: Congress has the ability to regulate anything that affects interstate commerce. Anything about business will be a commerce question. Congress cannot unduly burden interstate commerce.
- Taxing and Spending: Congress can tax if it raises revenue for the GENERAL WELFARE. Even if it may have a bad effect on some people or some interests, as long as it’s for the general welfare, it’s ok. Tax will be upheld if they bear some reasonable relationship to revenue production or if Congress has the power to regulate the activity taxed. (Congress or states cant tax exports to foreign countries). IMPORTANT NOTE: Congress can tax and spend for the general welfare, it cannot directly
legislate for it! Thus , nonspending regulations cannot be
supported by the General Welfare Clause.
- War: Congress has the ability to declare war. a. Raise and Support Armies
b. Provide for and maintain a navy; and
c. Organize, arm and nationalize state militia. (these powers all stem from Congress’s ability to
regulate the economy).
- Federal Property: Congress has the power over federal property. DC. Taxation without Representation. there is NO FEDERAL POLICE POWER except for legislation for: MILD!!!!!!!!! i. Military ii. Indian Reservations iii. Federal Land (think national monuments) iv. DC
- Print Money: Congress has the power to print money.
- Aliens: Immigrants/aliens/Non-USA citizens: Congress has the power to make laws regarding aliens.
- Impeachment: Articles of Impeachment by the House, trial by the Senate, removal from office.
- Tax Courts: Congress can make tax courts under Article I. (these judges don’t get same tenure as Article 3 judges). Congress can NEVER directly APPOINT an executive branch official
What are the 4 categories of activities Congress can constitutionally regulate UNDER the Commerce Clause? (from AdaptiBar) To be within Congress’s power under the Commerce Clause, a federal law must regulate under one of 4 categories:
- Channels of Interstate Commerce
- Instrumentalities of Interstate Commerce
- Articles MOVING in Interstate Commerce
- Activities that have a SUBSTANTIAL EFFECT on interstate commerce.
CIAA
Regarding activities that have a SUBSTANTIAL EFFECT on interstate commerce, when those activities are INTRA-STATE, the Court will uphold the regulation :
- if it is of ECONOMIC or Commercial Activity AND
- if it can conceive of a RATIONAL BASIS on which Congress could conclude that the activity in aggregate SUBSTANTIALLY AFFECTS INTERSTATE COMMERCE. However, Congress cannot do these 3 things under Commerce Power : Cannot tell states what laws to enact Cannot commandeer state regulatory agencies and force them to enforce federal law (i.e. making local sheriffs do federal gun checks) Cannot criminalize behavior which does not (in any way) relate to commercial or economic activity. Taxing Power : Congress May Tax and Spend for the General Welfare: HAS TO RAISE SOME REVENUE : Congress can regulate and prohibit behavior as long as the statute is capable of raising some revenue , such as a prohibitive tax on goods made by child labor. It is necessary for the general welfare of the US (very broad power) AND to achieve a regulatory effect as long as the tax’s intent is to RAISE REVENUE and there is a REASONABLE RELATIONSHIP btwn the tax and regulation. Spending Power: Generally, to provide for the COMMON DEFENSE and GENERAL WELFARE and to REGULATE , such as conditioning receipt of federal funds by states on compliance w/ certain regulations. (This power is limited by the Bill of Rights). Bribe the state to do what the federal govt wants them to do: Example: Congress can enact legislation which conditions federal funding of highways on the state having a speed limit max of 55. Here’s the money… if you want cash, adopt the speed limit. You don’t use the commerce clause for this. Requirements to enforce a condition against a state who accepted $$ from fed govt :
- Law has to be for the general welfare
- Can’t violate individual liberties
- The condition has to be reasonably related to a legit federal interest
- Clear that the money is conditioned on the state taking a specific action SPEECH AND DEBATE CLAUSE : says that Federal legislators are IMMUNE from actions during the regular course of legislative process except for these exceptions: Accepting Bribes Speeches outside of Congress; or Defamatory Statements. Tip: this immunity does not extend to state legislators who are prosecuted for violation of a federal law. Legislative Veto: an attempt by Congress to repeal an action taken by the President or agency. Tip: legislative vetoes= unconstitutional b/c the violate bicameralism (passage by both House and Senate) and Presentment (giving President to sign or veto) principles. Judicial Branch :
- Original Jurisdiction v. Appellate Jurisdiction: Some cases go to the Supreme Court via Original jurisdiction and some cases go to the Supreme Court via appellate jurisdiction. Original Jurisdiction: If a case can go directly to the Supreme Court (via Original jurisdiction) then ONLY the Supreme Court has authority over it. CONGRESS MAY NOT DO ANYTHING WITH THIS CASE. Appellate Jurisdiction: SCOTUS MAY have jurisdiction over the case. This includes:
- Cases from state courts where: a. the constitutionality of a federal statute, federal treaty, or state statute is in issue or b. a state statute allegedly violates federal law
- All cases from federal court of appeals SUPREME COURT: Congress has nothing to say about what goes on in that building. Well sortof. Congress has FULL POWER to Regulate and Limit the Supreme Court’s APPELLATE jurisdiction. _However, Congress does not have UNLIMITED power to do this. Guidelines:
- Congress may eliminate specific avenues for SCOTUS review as long as it does not eliminate all areas;
- Congress may eliminate SCOTUS review of certain cases within federal judicial power BUT it must permit jurisdiction to remain in some lower federal court; and
- If Congress were to deny all SCOTUS review of an alleged violation of constitutional rights, or even deny a HEARING before ANY federal judge on such a claim, this would violate due process of law._
Example of a valid State police power: is zoning
there is NO FEDERAL POLICE POWER
Comader Rule: Congress may not require a STATE to do anything. (Congress can delegate
certain powers to the states. But they may not order the states to do anything). o Dormant Commerce Clause = STATEs may not make laws that discriminate against out- of-state business interests. Discrimination for purpose of favoring In-State Commerce = invalid. Promoting Health and safety w/discriminatory laws = invalid unless the state says there was no: Reasonable OR Non-discriminatory means Unreasonable Burden : even if the law is non-discriminatory … the law can still be invalid if it imposes an UNREASONABLE BURDEN on interstate commerce.
o Court will apply a balancing test. Marginal benefits v. Materially obstruct.
Market Participant Doctrine : whenever a state is acting (not as a regulator) but as a BUYER or SELLER, the negative commerce clause does NOT apply to its actions and the state may discriminate interstate commerce. 21 st^ Amendment : gives the states the power to regulate BEEEEEER. This is not authority for states to discriminate out of state liquor. So quick things to ask yourself before looking at an MBE or essay question w/ interstate commerce: Lineup of Interstate questions to ask yourself :
- Is the state discriminating out-of-state business? (INVALID)
- Is the state doing discriminating behavior to favor in-state stuff? (INVALID)
- Is the state promoting HEALTH and SAFETY w/ discriminatory laws? (INVALID unless): There were no: 1. Reasonable OR 2. Non-discriminatory means.
- Is law non-discriminatory BUT does it put an UNREASONABLE burden on interstate commerce? (INVALID)
- Is the state acting as the BUYER or Seller? VALID! Go ahead and discriminate away! STATE TAXATION stuff : A state tax on interstate commerce must:
- Non-discriminatory (against interstate commerce).
- The activity, person or thing taxed must have a SUBSTANTIAL NEXUS to the state. There must be an actual presence in the state.
- Taxation of interstate businesses must be fairly apportioned.
- The tax must fairly relate to services provided.
a. Flat taxes on interstate businesses = INVALID. Unless they are apportioned, an
interstate business could be crushed by cumulative flat taxes of many states. State ACTION Stuff : o If there is NO state action, constitutional rights do not apply. o Public Function : if a private individual is entrusted by the state to perform functions that are governmental in nature, the private individual becomes AN AGENT of the STATE and their ACTS constitute STATE ACTIONS. However, just because a person does some govt type stuff does not mean state action. When the state encourages, approves or commands the private joint venturer then this is state action. Property Clause: States may not tax or regulate: The property Employees or Access to federal property (i.e. national parks, Indian reservations).
IV. PRIVILEGE & IMMUNITIES CLAUSE : When one state discriminates against residents
of another state…. OR NONRESIDENTS OR another way to put it: A state cannot deprive the privileges or immunities of national citizenship to any of its citizens. (Primarily concerns restrictions on rights to interstate travel).
One state may not pass a law that discriminates RESIDENTS of another state because
they are RESIDENTS.
The Privileges or Immunities Clause of the Fourteenth Amendment would not apply to
a state tax on interstate commerce that discriminates against a natural person who is a nonresident.
o It applies when a state denies its own citizens rights of national citizenship.
o Does not apply to corporations (cannot bring claims under Privileges and
Immunities Clause).
o Does not apply to aliens (cannot bring claims under Privileges and Immunities
Clause).
o State can discriminate re: recreational activities (i.e. hunting licenses)
o State law can be valid , if state can show substantial justification for the
different treatment. (i.e. state must show that nonresidents either cause or are part of the problem that the state is attempting to solve and that there are no less restrictive means to solve the problem ).
Individual Rights
I. EQUAL PROTECTION : When a statute treats people differently from other people…
vs.
- SUBSTANTIVE : Statute depriving ALL PEOPLE of doing something...look at what rights are being deprived: Keep in mind: the difference btwn Equal Protection Clause violation and Substantive Due process issue: The difference = Equal Protection applies to a CLASS of people being treated differently. Substantive Due process applies to ALL people being deprived of something. If Fundamental rights = Strict Scrutiny (govt shows this is necessary to achieve a compelling interest) Examples of Fundamental Rights : Right to vote Right to travel (inter-state basis). Right to privacy
o Under right to privacy these fall:
Abortion Sexy Times Marriage Family and Procreation Contraception Right to free speech Abortion: You need to look for undue burden Marriage: Right to marry Procreation: Right to procreate Right to Refuse Medical Treatment Right to engage in private consensual homosexual activity Raising your family: how you are raising your family is considered a fundamental right. Residency Requirements must meet strict scrutiny. Requirements to own property to vote are almost ALWAYS unconstitutional. If Non-Fundamental rights = Rational Basis Test *2 types of Questions for Equal Protection /Due Process
Right to education apparently is NOT a fundamental right.
a) Recognize issue b) What scrutiny applies The Takings Clause : (this is technically under the Due Process Clause… Grossman likes to put it by itself).
The government may take private property for public use IF they pay just compensation. (Even if the person owns the project privately… as long as there is still public use i.e. jobs created etc. or positive effect on the economy, then it’s for public use). Public use is typically construed liberally. A use will be found public as long as it is rationally related to a legitimate public purpose. What’s the difference btwn a Possessory Taking and a Regulatory Taking? Possessory Taking : the govt confiscates OR physically occupies the property. Regulatory Taking : the govt. regulation leaves no economically viable use for a property. To determine if it is a Regulatory Taking : look at:
- Social good promoted by regulation
- Loss to the owner
- Owner’s expectation with the property.
III. RELIGION
FREE EXERCISE OF RELIGION: INDIVIDUAL has right to exercise/practice their religion any manner they choose, as long as they do not violate Law or burden society… The government must remain NEUTRAL as to our practices of religion. The government cannot:
- Comment; or
2) Restrict how we practice our religion.
Free Exercise Clause: no govt shall pass any law prohibiting the free exercise of religion. Any law regulating the exercise of religion is subject to strict scrutiny. TIP: Free Exercise Clause ONLY applies if the PURPOSE of a law is to LIMIT or INTEFERE w/ Religious Practice. ESTABLISHMENT CLAUSE : The government cannot make a law that seemingly establishes a religion. Government cannot prefer one religion over another religion. GOVT making a law which may be too closely related to religion…apply 3 part LEMON test :
- Statute has secular purpose
- Govt. cannot promote or inhibit particular religion
- Govt cannot get too “entangled” with religion
Entangled means govt is using money with religions. Has to be excessive
entanglement.
One time payment to a Catholic school is not considered EXCESSIVE.
Always look to WHY the schools etc. are receiving the money.
A complete ban on truthful advertising of a lawful product is very unlikely to be upheld because such a restriction is not narrowly tailored. Freedom of Association: this is a 1st^ Amendment right which prevents the govt. from prohibiting or punishing group membership. Any law regulating freedom of association is subject to STRICT SCRUTINY. Freedom of Association is NOT protected if the person is :
- An active member of a known subversive organization;
- Knowing of group’s illegal activities; and
- With SPECIFIC INTENT of furthering those illegal activities.
Limitations on Bringing cases to Court
1) Standing : Must have actual injury
o i.e. you have to have something to lose.
2) State Action : Defendant must be State actor
o Private individual can do whatever they want.
3) Mootness : Case is over…nothing left to litigate
o Case has already been litigated.
4) Ripeness : Case not ready for trial
o No case in controversy
5) Federal Questions : Is there a Federal Question?
6) Independent & Adequate State Ground : If case rests on State law…federal court
will not hear the case.
Bill of Attainder: unconstitutional because it’s a law that is designed to punish a specific
person.
Ex post facto : Retroactive criminal law. (questions with dates, pick ex post facto)
Contracts clause : State and local laws cannot interfere w/ already existing contracts.
Immunity of Federal Government: The federal govt MAY NOT BE TAXED by a state, HOWEVER, the state may tax private individuals who work for or have a contract WITH the federal government. Additionally, the federal government may not be sued by a private individual, EXCEPT when ALLOWED BY STATUTE !!!!!
Immunity of the State government :
- A state may be SUED by the federal government OR another state
- 11 th^ Amendment rule: the citizens of one state MAY NOT sue its OWN state or ANOTHER state.
