Constitutional Law—Highly Tested MBE Topics, Charts, and a Checklist!

Powers of the Government

1. Bringing a Lawsuit and Powers of the Judicial Branch

Federal courts have the power to hear cases and controversies that are based on a federal question, diversity, and admiralty and maritime cases.

Limitations—when federal courts cannot hear a case:

• Eleventh Amendment: a private individual cannot sue a state for money damages in federal court.
• Political question: federal courts will not hear political questions (things given to another branch of government like “republican form of government” clauses, military or foreign affairs decisions, or impeachment).

• Standing: An individual needs an injury in fact, to show causation, and redressability in order to file a lawsuit. The case must be ripe and cannot yet be moot.

The Supreme Court has the following jurisdiction:

• Original and exclusive jurisdiction for cases between states (no other court can hear this kind of case!).
• Original jurisdiction over any case that involves (mnemonic = APS) ambassadors, public ministers and consuls, or where the state is a party.

• Appellate jurisdiction over a final judgment from the highest state court that has a federal issue (assuming there are no adequate and independent state grounds). (There is also rare mandatory appellate jurisdiction.)

2. Powers of Congress

Congress makes the laws, but they need bicameralism and presentment (approval by the houses and the President) in order to pass a law. They must get their power from the constitution. Powers include:

• Necessary and proper power when combined with an enumerated power
• Taxing and spending power (very broad—they may tax and spend “for the general welfare”)
• Commerce power (very broad—they can regulate anything economic and anything noneconomic that substantially affects interstate commerce)

• Property power
• War and defense power (including declaring war)
• Admiral and maritime power
• Investigatory power
• Other powers: postal power, copyright and patent power, power to coin money, citizenship, enforcement powers, power to delegate, power to impeach
• There are no police powers unless it is a federal land like D.C., Indian territory, or a military base.

3. Powers of the President

The President executes the laws. The President must enforce laws that are passed even if the President disagrees with them. The President has the following powers:

• Veto power (but can be overridden by a 2/3 majority vote by Congress)

 

• Appointment and removal power: the President can appoint principal officers and remove officers.
• Pardon power: the President can grant pardons for federal crimes.
• War power: The President can respond to attacks or emergency situations. The President cannot declare war.
• Foreign affairs: the President has broad foreign affairs powers.
• Treaties and executive agreements: the President may enter into treaties with 2/3 Senate approval. The President may enter into executive agreements with the heads of foreign countries.

Summary Chart—Powers of Congress, the President, and the Judiciary

4. Federalism

States cannot infringe on the federal government in any way. States also cannot be “protectionist” and discriminate against other states.

Federal government vs. states—federal government wins!

• Federal law always prevails over state law. States may not pass laws that contradict federal law. Nor may they interfere with a federal objective or pass a law where Congress has intended to “occupy the field.”
• The state cannot regulate the federal government (by taxing, suing them, or otherwise regulating them) but the state may tax, say, federal employees the same that they tax everyone else.

State vs. state

• Privileges and immunities of Article IV: States may not discriminate against out-of-state citizens with respect to fundamental rights (usually employment on the MBE—which is only a fundamental right for this purpose) unless there is a substantial justification and no less restrictive means.

• Dormant Commerce Clause
  • Discrimination (treating out-of-state citizens differently): Strict scrutiny. The state usually loses.
  • Burden (treating out-of-state and in-state citizens the same): Balancing test. These are more likely to be upheld but the burden cannot be great if the benefit is slight.
  • Exception: Market participant. Where state is acting as a business, not a regulator.
  • Note: Congress can pass whatever law it wants even if it is discriminatory!

Individual Rights

1. Due Process Clause

The focus is on the right that is being burdened.

Procedural due process

• The government may not intentionally deprive someone of life, liberty, or property without notice and an opportunity to be heard. The requirements of the notice depend on what is being taken way.

Substantive due process

• Be able to differentiate between Due Process Clause issues and Equal Protection Clause issues. Where a law limits everyone’s ability to engage in an activity, it is a Due Process Clause Where a law treats a person or class of persons differently from others, it is an Equal Protection Clause issue.

• Strict scrutiny for fundamental rights:
  • The burden is on the government to show the law is necessary to a compelling interest.
  • Privacy rights (mnemonic = MOPPS—marriage, obscenity in the home, parental and family rights, procreation and contraception, and sexual relations), right to vote, interstate travel, First Amendment rights, the right to refused medical treatment
• Rational basis for everything else:
  • The burden is on the plaintiff to show the law is not rationally related to a legitimate government interest.
  • Examples: right to education, welfare benefits, all economic regulations

2. Equal Protection

For equal protection purposes, the focus is on the class that is being discriminated against.

• Strict scrutiny
  • The burden is on the government to show the law is necessary to a compelling interest.
  • Examples: (mnemonic = FAR) fundamental rights when class is involved, alienage [term used by the examiners] if the state is discriminating (unless the political function doctrine applies, in which case the standard is rational basis), and race.
• Intermediate scrutiny
  • The burden is on the government to show the regulation is substantially related to an important governmental interest.
  • Examples: (mnemonic = GI) gender, illegitimacy
• Rational basis
  • The burden is on the plaintiff to show the law is not rationally related to a legitimate government interest. [term used by the examiners]
  • Examples: age, education, everything else

Equal Protection Clause Chart

3. First Amendment

For a free speech violation to occur, there has to be a government regulation of private speech. Private actors cannot violate another’s First Amendment free speech rights. Restrictions on speech are generally classified as content-based, viewpoint-based, or content-neutral. The level of scrutiny a restriction on speech faces depends, in part, on which of these three categories it is in.

• Content-based: Prohibiting the class of content that can be heard. Strict scrutiny unless it is symbolic speech, unprotected speech (true threats, etc.) or less protected speech (including commercial speech and sexual speech)
  • Examples when strict scrutiny is not needed:
    • Symbolic speech: A law which regulates conduct and places an incidental burden on speech is allowable if the regulation is narrowly tailored to an important governmental interest and it is unrelated to the suppression of the speech.

• Unprotected speech: regulations regarding unprotected speech only need to pass the rational basis

• Commercial Speech: False or misleading speech is not protected. The law must meet the Central Hudson test which states:
  1. the speech must be lawful and not misleading,
  2. the statute must serve a substantial governmental interest,
  3. the statute must directly advance that interest, and
  4. the statute must be narrowly tailored (not more excessive than it needs to be).

• • Sexual or indecent speech The regulation must:
    1. serve a substantial governmental interest, and
    2. leave open reasonable alternative channels of communication.
• Viewpoint-based: Prohibiting a certain viewpoint from being expressed. Strict scrutiny applies, and it is struck down.
• Content-neutral: (usually time-place-or-manner restrictions)
  • Time-place-or-manner restrictions:
    • Public forum:
      • Examples: streets, sidewalks, parks, designated public forums

• • • • Standard: content-neutral, alternative channels of communication, narrowly tailored

• • • Private forum: (rational basis)
      • Examples: military bases, airports

• • • • Standard: Rational basis: viewpoint-neutral and reasonably related to a legitimate government interest.

 Free Speech Chart

Freedom of religion

• Establishment Clause: The laws must be neutral. Laws that favor one religion over another = strict scrutiny. Where the government legislation or program is neutral on its face, the Establishment Clause must be interpreted by “reference to historical practices and understandings.”

• Free Exercise Clause: Beliefs are absolutely protected. However, conduct is not. The government may pass neutral laws of general applicability so long as their goal is not to burden or interfere with religion.

Go to the next topic, Contracts—Highly Tested MBE Topics, Charts, and a Checklist!

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