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New York Bar Exam - Con Law


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What are the main catagories of con law issues?
1) Powers of the federal government
2) Interaction between state and federal government
3) Individual Guarantees against govt or private action
What are the federal powers?
1) Judicial Power - When can a court hear a case
2) Legislative Power - Is there a constitutional source for the legislature's action
3) Executive Power - What can the president do
What is the judicial power granted by art III?
Federal judicial power extends to cases involving:
1) Interpretation of the Constitution, federal laws, treaties, and admiralty and maritime laws; and
2) Disputes between states, states and foreign citizens, and citizens of diverse citizenship.
What is the Supreme Court's power of judicial review?
1) May review the constitutionality of acts of other branches
2) May also review state acts pursuant to the Supremacy Clause.
What is the original jurisdiction of the supreme court?
All cases affecting ambassadors, public ministers, counsels and suits between states.
What is the supreme court appellate jurisdiciton?
Appellate jurisdiction in all cases in which federal power extends
How do appeals usually come to the SC?
By Writ of Certiorai
What cases come by certiorari?
All cases from federal courts of appear or cases from state courts where:
1) The constitutionality of a federal statute, federal treaty, or state state statute is in issue, OR
2) State statute allegedly violates federal law.
What is the self imposed limitation of the exercise of federal court jurisdiciton?
The doctrine of justicability which requires:
1) No advisory opinions
2) Standing
3) Ripeness
4) No Mootness
5) No political questions
What are the compontents of standing?
1) Injury — must show direct and personal injury (economic loss is especially good)
2) Causation — must be causal connection b/n injury and conduct complained of
3) Redressability — favorable decision must be capable of eliminating grievance
What is congressional standing?
A fed statute may create new interest, injury to which is sufficient for standing.

**Congress cannot grand standing to someone with no injury.
Who has standing to enforce a federal statute?
P may do so if he is in the zone of interest congress meant to protect.
When can a person assert the constitutional rights of others (3rd party standing)?
If the claimant would have standing in his own right, he may assert the rights of other if:
1) It is difficult for that 3rd party assert her own rights, OR
2) A special relationship exists between the claimant and the 3rd party (eg, doctor patient).
When does an organization have standing?
1) there is an injury in fact to its members that gives them the right to sue,
2) the injury is related to the organizations purpose, and
3) individual members need not participate in the lawsuit.
When does a person have a standing challenge gov't expenditures based on his status as a taxpayer?
Only when the suit is attacking a spending measure on establishment clause grounds.
When is case a moot?
1) The matter has already been resolved, AND
2) Is is not a controversy capable of repetition.

**Class action can continue even if the named party's controversy has become moot
What is the no advisory opinion requirement?
There must be a specific present harm or threat of future harm.

**eg, court wont hear a case where there's no indication that the gov't will enforce some wacky law.
What is the ripeness requriment?
P is not entitled to review of a statute or regulation unless P will suffer some harm or immediate threat of harm.
When will the federal courts abstain?
1) The federal constitutional claim rests on a unsettled question of state law.
2) Political issues constitutionally committed to another branch OR inherently incapable of judicial review
3) The state court judgment is based on adequate and independent state gounds
What is the Legislative Power issue?
The fed legislature has limited powers and every exercise of federal power must be traced to the constitution.
What are congress enumerated and implied powers?
Congress can exercise those powers enumerated and implied in the constitution, plus all auxilliary powers necessary and proper to carry out all powers vested in the federal govt.
What is the necessary and proper clause?
Congress has power to make all laws necessary and proper (appropriate) to carry out any power granted to any branch of federal government

** Cannot enact laws based solely on "necessary and proper" clause — clause must work in conjunction with another federal power.
What are congress's enumerated powers?
1) Taxing
2) Spending
3) Commerce
4) War and Military
5) Investigatory
6) Property
7) Limited Police power
8) Bankruptcy
9) Postal
10) Citizenship
11) Patent and copyright
What is congress's enumerated taxing power?
Congress has the power to tax, and most taxes will be upheld if:
1) they bear some reasonable relationship to revenue production or
2) Congress has the power to regulate the activity taxed.

ie, congress has no reasonable relation limitation on taxing areas they have the authority to otherwise regulate.
What is congress's enumerated spending power?
Congress may spend to “provide for the common defense and general welfare.”

**Spending may be for any public purpose.
What is congress's enumerated commerce power?
Congress has the exclusive power to regulate all foreign and interstate commerce.
When will a federal law regulating interestate commerce be within the the commerce clause power?
It must be regulating either:
1) The channels of interstate commerce,
2) The instrumentalities of interstate commerce and persons or things in interstate commerce, OR
3) Any activities that have a substantial effect on interstate commerce
What is the standard whe congress attempts to regulate noneconomic interstate activity under the commerce clause?
federal government must prove to the court that the activity in fact affects interstate commerce
What is congress's enumerated war power?
The Constitution gives Congress power to declare war, raise and support armies, and provide for and maintain a navy.
What is the 10th amd limitation on congressional powers?
Provides that all powers not granted to federal government, nor prohibited to the states, are reserved to the states or the people.
Can Congress compel state regulatory or legislative action?
No, BUT can induce activity by attaching conditions to federal grants (if clear).
How may congress delegate it's powers?
Congress may delegate its legislative power to executive agencies or the judiciary, no matter how broad, so long as:
1) Intelligible standards are set, AND
2) The power is not uniquely confined to Congress (e.g., power to declare war, impeach)
Are legislative vetos constitutional?
No, attempt by Congress to overturn executive agency action without bicameralism (i.e., passage by both houses of Congress) OR presentment (i.e., giving the bill to the President for signature or veto) is unconstitutional.
What are the execuitve powers?
1) Appointment and removal
2) Pardons
3) Veto
4) Cheif executive
5) War
6) Foreign relations
7) Treaty power
What is the executive appointment power?
President alone appoints ambassadors, federal judges and federal officers, BUT subject to Senate confirmation

**Congress may give lower federal courts power to appoint "independent counsel" BUT CANNOT give appointment power to itself or its officers
What is the executive removal power?
President may fire any executive branch officer, UNLESS limited by statute (two reqs.)
What are the requirements for congress to enact a statutory limitation on the removal power?
For Congress to limit removal, must:
1) be an office where independence from the President is desirable, AND
2) only limit removal to "good cause"
What is the executive pardon power?
The President may grant pardons for all federal offenses but not for impeachment or civil contempt. The pardon power cannot be limited by Congress.
What is the president's war power?
No power to declare war, but has broad powers to use troops in foreign countries.
What is the executive treaty power?
The President has the power to enter into treaties with the consent of two-thirds of the Senate.
How are treaties treated in relation to federal or state laws?
Treaties the equal to any other federal law - They are the supreme law of the land.
How are conflicts between statutes and treaties decided?
(1) Treaty vs. state law — treaty prevails
(2) Treaty vs. federal statute — last in time prevail
(3) Treaty vs. Constitution — Constitution prevails
What are executive agreements?
Executive agreements are signed by the President and the head of a foreign country. They can be used for any purpose that treaties can be used for.

**They do not require the consent of the Senate.
What is the effect of an executive agreement conflicts with state or federal law?
1) Executive agreement vs. state law — Executive agreement prevails
2) Executive agreement vs. federal statute — federal statute prevails
3) Executive agreement vs. Constitution — Constitution prevail
What is the executive privilege?
President has executive privilege for presidential papers and conversations BUT, such privilege must yield to other important government interests

**eg, in a criminal prosecution where need is demonstrated.
What is the executive immunity?
1) Absolute immunity from civil damages for any actions taken while in office
2) BUT, NO immunity for actions that occurred prior to taking office
Who is subject to impeachment?
The President, Vice President, and all civil officers of the United States are subject to impeachment (the bringing of charges).
What are the grounds for impeachment?
Grounds include treason, bribery, high crimes, and misdemeanors.
How many votes are needed for impeachment and removal?
1) A majority vote in the House is necessary to invoke the charges of impeachment,
2) two-thirds vote in the Senate is necessary to convict and remove from office.
What is federalism?
The interaction between federal and state power.
What is the supremacy clause?
The constitution and federal laws are the supreme law of the land.

**ie, fed law may supercede or preempt local laws.
What are the exclusive federal powers?
1) Some powers are exclusively federal because the constitution limits or prohibits states (eg, coining money)
2) Other powers are exclusive because their nature makes them federal (eg, declare war)
How are laws given priority when the state and federal gov't have concurrent power?
The supremacy clause states that constitution and federal laws are the supreme law over state and local laws.

**ie, fed law may supercede or preempt local laws.
What are the bases for preemption of state law?
1) Express Preemption — Federal law expressly "occupies" entire field (comprehensive federal scheme) 2) Implied preemption - fed and state law are mutually exclusive, state law impedes achievement of fed objective, or clear congressional intent
Can states directly tax or regulate federal gov't activity?
No, BUT nondiscriminatory, indirect taxes are okay if they do not unreasonably burden federal government

**eg, state income tax on federal employees
What is the priviliges and immunities clause?
Prohibits discrimination by a state against nonresidents.

**Corporations and aliens are not protected by this clause.
What rights are protected from discrimination priviliges and immunities clause?
Only “fundamental rights” are protected — those involving important commercial activities and civil liberties.
What is the Substantial justification exception to priviliges and immunities?
A state can discriminate against nonresidents if it shows:
1) that nonresidents either cause or are part of the problem that the state is attempting to solve, AND
2) that there are no less restrictive means to solve the problem.
What is the relationship between privileges and immunities and the dormant commerce?
The both have to be considered seperately on bar questions because they apply different standards and produce different results.
Who has the power to regulate foreign commerce?
Congress exclusively.

eg, no special taxes by states on foreign goods.
What is the dormant commerce clause?
Provide that where Congress has not enacted laws regarding a subject, state may regulate local aspects of interstate commerce, BUT may not favor local economic interests OR unduly burden interstate commerce
What is the standard for determining if a law that discriminates in favor of local economic interest is invalid?
They are invalid unless,
1) It furthers a valid and important noneconomic state interest and there are no reasonably nondiscriminator alternatives
2) The state is acting as a market participant.
How do you determineif a law unduely burdens interstate commerce?
If a nondiscriminatory state law burdens interstate commerce, it will be valid unless the burden outweighs the promotion of a legitimate local interest.

**The court will consider whether less restrictive alternatives are available.
What is the power of states to tax interestate commerce?
1) States may not use their tax systems to help in-state businesses
2) States may only tax activities if there is a substantial nexus to state
3) Taxes must be fairly apportioned according to a rational formula
What are the individual guarantees against governmental or private action?
Issues include:
1) No retroactive legislation
2) Procedural due process
3) Substantive Due Process
4) Equal protection
5) First Amendment
What are constitutional protections of individual rights?
1) Bill of rights 2) Due process and equal protection 3) etc.
To who does the constitution apply?
Generally only to gov't action, but congress may, by statute, apply constitutional norms to private conduct.

**eg, via the 13th amd, congress has a broad power to enact laws to prevent discrimination.
What are the narrow exceptions where the constitution does apply to private conduct?
1) Public Function Exception — private entity is performing a task traditionally, exclusively done by government
2) Entanglement Exception — government affirmatively authorizes, encourages or facilitates unconstitutional activity (if so, government either must stop what it's doing, or private must comply with Constitution)
What is the difference between due proces and equal protection?
1) If rights are denied to everyone equally, it is a Due Process problem.
2) If rights are denied to some individuals but not to others, it is an Equal Protection problem.
What is procedural due process?
Government must provide fair process (e.g., notice and hearing) before taking person's "life, liberty or property"
What is deprivation of liberty?
Occurs if a person: 1) Loses significant freedom of action, OR 2) Is denied a freedom provided by the constitution or a statute.
What is deprivation of property?
An entitlement or reasonable expectation of continued receipt of benefit which is not fulfilled or is taken away (e.g., government job, attendance at public school, welfare benefits)

**Must be a legal entitlement, not just some random hope.
What is the difference between a right and a privilege for due process purposes?
None. Distinction has been rejected by the court. Ignore answers that use this termonology.
Does procedural due process apply to negligent deprivation?
No, applies only to intentional or reckless deprivation of rights—NOT negligence
How do you determine what will actions will violate due process?
The type and extent of process required is determined by balancing:
1) Importance of the interest of the individual, AND The value of specific procedural safegaurds to that interest, AGAINST
3) Government interest in fiscal and administrative efficiency
What are the standards of review the court will apply in evaluating substantive due process and equal protection claims?
1) Strict scrutiny
2) Intermediate scrutiny
3) Rational basis Review
What is strict scrutiny?
Law upheld if necessary to achieve a compelling government purpose

**Government has BOP and usually loses — must show no less restrictive means to achieve.
When does strict scrutiny apply?
To regulations that:
1) Affect fundamental rights (SDP or EP), or
2) involve suspect classifications or fundamental rights(EP)
When does intermediate scrutiny apply?
To regulations that involve quasi-suspect classifications.

**Never applies to substantive due process
What is rational basis review?
Law upheld if rationally related to legitimate government purpose
** Challenger has BOP — government rarely loses
When does rational basis review apply?
To regulations that do not:
1) affect fundamental rights (SDP) or
2) involve suspect or quasi-suspect classifications. (EP)
What are the fundamental rights?
1) Right to privacy
2) Right to vote
3) Right to interstate travel
How do you determine if a rights restriction is a due process or equal protection issue?
If they are denied to everyone it's a due process problem, if they are denied to some it is a equal protection issue.
Does abortion fall under the right to privacy, a fundamental right?
Yes, but normally strict scrutiny does not apply.
1) Prior to viability - may regulate so long as they do no create an undue burden on ability to obtain abortions
2) Post viability - States may prohibit abortions, UNLESS necessary to protect life or health of woman
What are suspect classifications?
Classifications based on race, national origin, or alienage.

**Strict scrutiny
What are the fundamental rights for equal protection purpose?
Same as for substantive due process.

**Strict scrutiny
What are quasi-suspect classifications?
1) Gender classifications
2) Legitimacy classifications

**intermediate scrutiny
What classifications will be subject to rational basis review?
1) Congressional regulation of aliens
2) Alienage (self-government/democratic process)
3) Wealth
4) Economic regulations (same test as under D.P.)
5) Age (mandatory retirement laws are permissible)
6) Disability/handicap
7) Sexual orientation (same test as under D.P.)
How is discriminatory classification proven?
It can be either:
1) Facially discriminatory (SS or IS)
2) Discriminatory in impact and intent (SS or IS)
3) Discriminatory only in impact (RR)
What are some examples of facially invalid laws?
1) Prohibiting blacks from voting (strict)
2) Requiring blacks and whites to attend separate schools (strict)
3) Requiring citizenship for government employment/benefits, to practice law (strict)
4) Different age requirements for buying booze (intermediate)
5) Prohibiting women from attending military school (intermediate)
What are some examples of laws that have a discriminatory intent and/or impact?
1) Discriminatory use of peremptory challenges based on race—unconstitutional
2) Discriminatory use of peremptory challenges based on gender—unconstitutional
3) Mandatory testing requirement more difficult for blacks than whites
How are classifications benefiting persons based on race or natural origin treated?
It is still subject to the same strict scrutiny as action against minorities.

**Can be used to combat past discrimination
**Can be to promote affirmative interest but must be narrowly tailored.
How are classifications benefiting women treated?
Intermediate scrutiny still applies.

**May remedy past discrimination of differences but not role stereotypes.
What are the first amendment freedoms?
The First Amendment prohibits Congress from:
1) establishing a religion or interfering with the free exercise of religion,
2) Abridging the freedoms of speech and press, or
3) Interfering with the right of assembly.
What is the general principal for freedom of speech and assembly?
When the government seeks to regulate free speech, the Court will weigh the great importance of speech and assembly rights against the interests or policies sought to be served by the regulation.
What is the difference between a content-based and content-neutral restriction of speech?
1) Content-based restrictions: subject to strict scrutiny
2) Content-neutral laws: subject only to intermediate scrutiny
How are court orders restricting speach viewed?
They are subject to strict scrutiny but must be complied with until overturned.

**Violating the court order bars you from challenging it later
When can the government require a license for speech?
ONLY if:
1) Important reason for licensing,
2) Clear criteria leaving almost no discretion to licensing authority, AND
3) Appropriate procedural safeguards (e.g., prompt determination of requests and opportunity for judicial review if denied)
What is the requirement of reasonableness of speech regulation?
An otherwise valid restriction of speech will be invalid unless it meets the following requirements:
1) Regulation cannot be overbroad
2) Regulation cannot be vague
3) Regulation cannot give officials unfettered discretion
When will a regulation be void for overbreadth?
if law regulates substantially more speech than is necessary it serve its legitimate purpose.
When will a regulation be void for vagueness?
if reasonable person cannot tell what speech is prohibited (ie, law must be clear)
What is required so as not to give officials unfettered discretion?
there must be defined standards for applying the law.

**If a statute gives licensing officials unbridled discretion, it is void on its face and speakers need not even apply for a permit. If the
What speech is not protected under the 1st amendment?
1) Incitement of illegal activity
2) Obscenity or Sexually oriented
3) Commercial Speech
When will speech be unprotected as an incitement of illegal activity?
1) Substantial likelihood of
2) Imminent illegal activity, AND
3) Speech is directed at causing such imminent illegal activity
When will speech be unprotected as an obsinity?
1) Must appeal to prurient interest ("shameful or morbid interest") - community standard,
2) Must be patently offensive under the law prohibiting obscenity (law must clearly describe what it regards as patently offensive), AND
3) Taken as a whole, must lack serious redeeming artistic, literary, political or scientific value — apply national standard
How is profane and indecent speech treated?
Generally protected execpt on TV or radio and in schools.
How may places for speech be regulated?
1) Public forum - must be available and any restrictions must be subject matter and viewpoint neutral
2) Non-Public Forum - Regulation must be viewpoint neutral and and reasonably related to legit gov purpose
3) Private property - no 1st amendment right.

**Note that there is a difference btw viewpoint and subject matter neutrality.
How are regulations of the freedom of association viewed?
Laws that prohibit or punish group membership are subject to strict scrutiny.

**Laws that require disclosure of membership, which would chill association are also strictly scrutinzed
What must be shown to punish someone for association in a group?
1) Actively affiliated with group,
2) Knowing of its illegal activities, AND
3) With specific intent of furthering those illegal activities
How are law that prohibit groups from discriminating treated?
Generally upheld, UNLESS they interfere with intimate association or expressive activity.
What does the free exercise of religon clause protect?
Cannot prohibit or punish religious beliefs (but okay to regulate conduct)

***Cannot be used to challenge a law of general applicability UNLESS law is motivated by desire to interfere with religion—strict scrutiny
What does the establishment clause protect?
Government can make no law in respect of establishment of religion

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