MBE Rapid Fire - Constitutional Law

Arising under the Constitution, laws, and treaties of the United States;

Affecting foreign countries’ ambassadors, public ministers, and consuls;

Involving admiralty and maritime jurisdiction;

When the U.S. is a party;

Between two or more states, or between a state and citizens of another state;

Between citizens of different states or between citizens of the same state claiming lands under grants of different states; or

Between a state, or its citizens, and foreign states, citizens, or subjects

Supreme Court will not hear an appeal from a state court decision that is supported by adequate and independent state grounds

Lawsuits against states are allowed if:

State has consented;

Suit is for prospective relief (injunctive) against a state officer;

United States or another State is the plaintiff;

Suit involves enforcement of laws under ​the violations of 13th, 14th, and 15th Amendments and Congress has expressly removed immunity

Standing;

Ripeness;

Mootness; and

Not a political question

Injury-in-fact: P must show a direct and personal injury caused by alleged action;

Causation: D’s conduct must have caused the claimant’s injury;

Redressibility: Harm must be one the Court can remedy through their resolution of the case

There is a special relationship between P and the injured party (e.g. doctor-patient, lawyer-client, parent-child), and the injured party finds it difficult to bring suit themselves; or

There is standing via association: an association may have standing to bring suit if (1) any one of its members would have standing, (2) the issue is germane to the association’s purpose, and (3) individual member participation is not required.

Only if:

At least one member of the organization would have standing to sue;

Interest asserted is germane to purpose of the organization; and

Neither claim nor relief requires individual participation of members

Capable of repetition yet evading review: although P’s particular injury will likely become moot before litigation is complete, it is highly likely injury will be repeated in the future;

Voluntary cessation: D voluntarily ceases behavior once litigation starts, but could resume at any time; or

Class action: As long as one member of class has a ripe claim, resolution of one P’s injury will not defeat mootness

Enumerated powers (Article I, Section 8)

Implied Powers

Necessary and Proper Clause (Article I, Section 8)

Taxing and Spending Power (Article I, Section 8, Clause 1)

Commerce Clause (Article I, Section 8, Clause 3)

No, it does not have this power.

The answer to any question about whether Congress has federal police power to promote the general welfare will always be “no” on the MBE.

Allows Congress to enact any legislation necessary to carry out its enumerated powers

⚠️ Not an independent source of power, only to be used in conjunction with an express Congressional power. Never pick this as a free-standing power of Congress on the MBE.

Two broad categories:

Interstate commerce:

Channels (highways, waterways);

Instrumentalities (cars, ships, trucks, airplanes);

Articles moving in interstate commerce; and

Activities that affect interstate commerce

Intrastate commerce:

Economic: local, instrastate activities that in the aggregate “substantially affect” interstate commerce

Non-economic activities: must substantially and directly affect commercial activity (higher burden)

More info: Commerce Clause

Power to “pay the debts and provide for the common defense and general welfare of the United States”

Yes, but the conditions:

Must be related to the general welfare;

Expressly stated; and

Not going to coerce the states into unconstitutional behavior

No; Congress only has the power to promote the general welfare via its taxing and spending power

Declare war;

Raise and maintain Armies, Navy, and a militia; and

Establish military courts and rules governing military

⭐️ Extremely broad power: allows Congress to take whatever action is necessary to provide for the national defense

Power to admit or exclude aliens for any reason from entering the country

⭐️ Since this is a sovereign power, federal alienage classifications will likely be upheld as long as they aren’t arbitrary

General Welfare Clause gives Congress the power to “lay and collect taxes” for any public purpose (Article I, Section 8). Government has no burden to show compelling purpose for the tax.

Gives Congress the power to enforce the 13th, 14th, and 15th Amendments via “appropriate legislation”

Congress has the power to override 11th Amendment state immunity and pass laws enforcing due process and equal protection as long as:

Congress shows historical and widespread discrimination by the state; and

Law is “congruent and proportional” to remedying discrimination

Prohibits the federal government from “commandeering” state and local governments to enact and enforce federal regulatory programs (e.g. cannot require local officers to perform background checks for guns, see Printz v. U.S.)

Yes, Congress has broad authority to delegate regulatory powers to the executive branch or private agencies as long as Congress specifies an “intelligible principle” on which to base regulations. Very low bar, almost always upheld.

⚠️ Note: Congress cannot delegate its war or impeachment powers

Enforcement of laws;

Commander in chief;

Appointment powers;

Removal powers;

Pardons; and

Veto

Article II, Section 1

Can appoint high-level officers with advice and consent of the Senate

Appointments Clause: Article II, Section 2, Clause 2

Can only take military action to defend a sudden, hostile attack

Cannot declare war (only Congress)

⚠️ The extent of the President's military authority is much contested and unclear. For more info, see Commander in Chief Powers

Step 1: House of Representatives votes to impeach (majority vote); then

Step 2: Senate conducts a trial and votes to convict and remove from office (2/3 vote)

States. Grants broad authority to enact legislation for the general welfare.

Holds that if a federal law directly or indirectly conflicts with a state law, federal law will prevail (and state law declared void). Federal laws can either expressly or impliedly preempt state law.

Article VI, paragraph 2

If regulation:

Discriminates against out-of-state commerce;

Unduly burdens interstate commerce; or

Regulates wholly out-of-state activity

If:

Regulation is necessary to achieve important government interest and no reasonable, non-discriminatory alternatives are available;

State is a market participant (i.e. acts like a business or consumer); or

Regulation involves traditional government function (e.g. trash collection), or

Congress has expressly authorized regulation (i.e. Congress explicitly states that regulation violates Dormant Commerce, but will allow it anyways)

Commerce Clause;

Privileges and Immunities Clause of Article IV (Comity Clause);

Equal Protection; and

Due Process of the Fourteenth Amendment

Tax must satisfy the Complete Auto test:

Tax must have substantial nexus to taxing state (i.e. activity being taxed must have significant relationship with the state);

Tax must be fairly apportioned;

Tax cannot discriminate against interstate commerce; and

Tax must be fairly related to the services provided by the state

(also called the "Comity Clause")

Mandates that states cannot discriminate against the fundamental rights or esssential activities of out-of-state residents

⚠️ Note: Privileges and Immunities does not apply to corporations. If you see discrimination against an out-of-state corporation, think Dormant Commerce Clause

Dormant Commerce Clause → Privileges and Immunities applies to persons, not corporations

If:

There is a substantial justification for the discrimination (e.g. protectionism or residents are the "peculiar source of evil" law was intended to fix:); and

No less-discriminatory alternatives are available

Article IV: Prevents states from discriminating against non-residents

14th Amendment: prevents states from denying citizens the right to interstate travel (narrowly construed)

The government, not private individuals.

⚠️ Exceptions:

Individual is performing a task traditionally performed exclusively by the state (e.g. running elections); or

Individual and gov. are excessively intertwined​

Government must affirmatively encourage, facilitate, or authorize activity to constitute sufficient entanglement

Law will be upheld if:

It is necessary to achieve a compelling/crucial government interest; and

Is the least restrictive means possible to achieve that interest

if law involves a suspect classification or fundamental right

Law will be upheld if it is substantially related to an important government interest

Law will be upheld if rationally related to a legitimate government purpose

⭐️ Presumption of validity, any legitimate reason will be upheld as long as it isn't completely arbitrary

If government is depriving an individual of life, liberty, or property, individual must be given:

Notice;

Opportunity to be heard (i.e. hearing); and

Decision by a neutral arbitrator

Asks whether government has an adequate reason to deprive someone of their life, liberty, or property (i.e. substantive rights). If fundamental right, deprivation must pass strict scrutiny. If non-fundamental right, must only pass rational basis review.

More info: Substantive Due Process

Prohibits states from substantially impairing existing contract duties.

Source: Article I, Section 10

⚠️ Congress can still restrict contracts that will be made in the future

Prohibits government seizure of property without just compensation (Fifth Amendment). Also called "eminent domain."

Two types: possessory and regulatory.

Unconstitutional criminal law that either:

Criminalizes conduct that was legal at the time it was done;

Imposes a harsher penalty after crime is committed;

Decreases prosecution's burden of proof for crime; or

Eliminates a defense available to D when crime was committed (ex. changing statute of limitations)

Right to travel (nationally);

Right to vote; and

Right to privacy

Marriage

Sexual relations

Child-rearing/parenting

Family members to live together

Contraception

If right is infringed for all people → Substantive due process

If right is only infringed for certain classes of people → violates equal protection

13th Amendment;

Commerce Clause; and

Federal purse power

Holds that no state shall make or enforce any law that denies its citizens equal protection of the laws (i.e. similarly situated persons should be treated similarly under the law)

Source: 14th Amendment

More info: Equal Protection

Is there a classification by the government?

​​P must prove classification was made with discriminatory intent

What is the classification?

Suspect, quasi, or other

What level of scrutiny applies?

Suspect = strict

Quasi = intermediate

Other = rational basis

Does the government action satisfy the level of scrutiny?

Race;

Religion;

Alienage; and

National origin

⭐️ Strict scrutiny. Classifications will almost always be fatal.

Gender; and

Legitimacy

⭐️ Intermediate scrutiny

Alienage if:

Federal alienage classification; or

State restriction on alien's participation in government functions

​Age

Wealth

Sexual orientation

Disability

Any other classification not governed by strict or intermediate scrutiny

⭐️ Rational basis review. Almost always survives equal protection challenge unless motivated by animus towards the group

Discriminatory intent. Showing of disparate impact without intent will trigger rational basis review.

Action is necessary to remedy past discrimination by specific department or agency engaging in affirmative action. Past discrimination by private actors and/or society is not sufficient.

Must show evidence of past discrimination.

⚠️ Exception: quotas are almost never allowed

Classification is pursuant to Congress' plenary powers to regulate immigration; or

Classification is related to essential government functions and/or processes. Valid restrictions include:

Voting and jury membership

Working as public school teacher

Working as police officer

Working as probation officer

⭐️ If based on either circumstance, rational basis will apply

There must be a substantial connection between the discrimination and a substantial state interest.

More Info: The Privileges and Immunities Clause

If based on anything other than age, residency, or citizenship → strict scrutiny

Reasonable residency requirements;

Reasonable registration requirements;

Reasonable time and manner regulations; and

Denial of voting rights to felons

D is active member of subversive organization;

D knows about the group's illegal activities; and

D has specific intent to further illegal activities

Freedom of expression (speech, press, assembly, & association)

Regulation furthers important gov. interest;

Interest is unrelated to suppression of the message; and

Impact on speech is no greater than necessary to achieve interest

Restriction based on subject matter of expression; i.e. disagreement with the viewpoint or message it contains. Can be either content-based on its face or as applied.

⭐️ Subject to strict scrutiny ⭐️

Applies neutrally to all content regardless of viewpoint or subject matter.

Ex. time, place, or manner restriction

⭐️ Subject to intermediate scrutiny

Obscenity;

Incitement;

Fighting words;

Defamation; and

Commercial speech

⭐️ Can be regulated as long as statute is narrow, does not need to meet strict scrutiny

One that restricts entire categories of speech, but not viewpoints within a category

Ex. Restriction on all Second Amendment speech would be allowed, but restriction on only anti-Second Amendment speech would not be allowed

Only allowed in extremely rare circumstances such as:

During wartime or national security crisis to protect troops/citizens; or

To prevent incitement of violence

Regulation must be narrowly tailored and only aimed at:

Speech that promotes or directs imminent illegal action; and

Creates a "clear and present danger" of such action

Appeals to "prurient interests;” (community standard)

Depicts or describes sexual conduct in a way that is patently offensive to community standards and applicable state law; and

Lacks serious artistic, literary, political, or scientific value as determined by national standards

⚠️ Note: Sexual expression that is indecent but not patently offensive is protected by the First Amendment.

Must satisfy Central Hudson Test:

Speech is not false, misleading, or illegal;

Regulation serves substantial government interest;

Regulation directly advances interest; and

Regulation is not more extensive than necessary to serve that interest

More info: Central Hudson Test

Limitations will almost always fail for being either overbroad, vague, or content-based and thus failing strict scrutiny

⭐️ If you see a question on the MBE with a fighting word statute, it is extremely likely it will be too vague or overbroad

Restriction is:

Content-neutral;

Leaves open ample, alternative channels of communication; and

Narrowly tailored to serve significant government interest (not compelling gov. interest)