Con law basics MBE FINAL
Terms
undefined, object
copy deck
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What are the recognized suspect classifcations?
What level of scrutiny used for laws that discriminate against suspect classes? -
1) Race
2) National origin
3) Sometimes alienage
-Strict scrutiny (necessary to achieve compelling gov't purpose; gov't bears BOP) -
What are the quasi-suspect classifications?
What level of scrutiny used for laws that discriminate against quasi-suspect classes? -
1) Gender
2) Legitimacy
-Intermediate scrutiny (substantially related to an important gov't purpose; gov't bears BOP) - 14th Amendment substantive due process v. equal protection. When does each apply?
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Due process: regulation affects everyone
Equal Protection: regulation affects certain people or class of people - If regulation affects everyone and there are no fundamental rights involved, which constitutional provision and what level of scrutiny?
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1) 14A Substantive Due Process
2) Rational basis (rationally related to a legit gov't purpose; challenger bears BOP) - If regulation affects everyone and there are fundamental rights involved, which constitutional provision and what level of scrutiny?
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1) Substantive due process
2) Strict scrutiny (nec to achieve compelling gov't purpose) - If regulation affects certain persons or class of people and there is a suspect classification, which constitutional provision and what level of scrutiny?
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1) 14A Equal Protection
2) Strict Scrutiny (necessary to achieve a compelling gov't purpose) - If regulation affects certain persons or class of people and there is a quasi-suspect classification, which constitutional provision and what level of scrutiny?
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-quasi-suspect class = gender & legitimacy
1) 14A Equal Protection
2) Intermediate Scrutiny (substantially related to an important government purpose) - If regulation affects certain persons or class of people and there is no suspect/quasi-suspect classification and no fundamental right, which constitutional provision and what level of scrutiny?
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1) 14A Equal Protection
2) Rational Basis (rationally related to a legitimate gov't interest; BOP on challenger) -
State taxation of interstate commerce
Does the state tax affect an activity addressed by federal legislation? -
If yes, it's invalid if federal law preempts the entire field by regulating or state law conflicts with it.
State tax valid if federal gov't authorized state to do so. -
State taxation of interstate commerce
Does the state tax discriminate against interstate commerce? - If yes--invalid.
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State taxation of interstate commerce
Does state tax unduly burden interstate commerce? -
If yes--invalid.
If no--valid. - What protections does the 14th Amendment Privileges and Immunities Clause provide?
- VERY LIMITED. ONLY protects against STATE infringement of NATIONAL citizenship like voting in NATIONAL elections. Always look for another answer if you see this one.
- What does the Article IV Privileges and Immunities Clause protect against?
- Discrimination by a state against NONRESIDENTS when fundamental rights are invovled.
- If a state uses a durational residency requirement before dispensing benefits, what constitutional clause is invoked? What level of scrutiny?
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1) 14A Equal Protection
2) Strict scrutiny - What does the Due Process Clause of the 5th Amendment protect against?
- It acts like the 14A Equal Protection clause but against the federal government.
- If the federal government implements a policy that discriminates against someone based on gender, what must be shown to prevail? What constitutional provision relied upon?
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1) Challenger must show discriminatory effect + discriminatory intent
2) Intermediate scrutiny (Gov't must then show substantially related to important gov't interest)
3) 5th A Due Process (I think) - If a state law is facially neutral, what must be shown to trigger strict scrutiny?
- Discriminatory impact + discriminatory intent; if both are shown, it will trigger strict scrutiny under the 14A EP
- When is the doctrine that taxpayers do not have standing to sue invoked?
- When taxpayers try to challenge how the government is using their money.
- What is the Sup Ct's definition of obscene material?
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1) An AVERAGE PERSON
2) Applying contemporary COMMUNITY standards (can be statewide or more narrow)
3) Appeals to the prurient interest
4) Using a NATIONAL reasonable person standard to determine that it does not have artistic value - To regulate commercial speech about lawful activity that is not misleading/fraudulent, what must the gov't reg meet?
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1) Directly advances substantial gov't interest
2) Narrowly drawn to serve that interest - What is the Establishment Clause 3-part test?
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1) secular purpose
2) primary effect that neither advances nor inhibits religion
3) doesn't produce excessive governmental entanglement - What are some recognized rights of national citizenship and what protects them?
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-right to petition Congress for redress, right to vote for federal officers, right to INTERSTATE TRAVEL
-14th Amendment P&I - What are the two key questions to ask on the exam if state regulation affects the free flow of interstate commerce?
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1) does any federal legislation supercede or preempt the state legislation, OR
2) has Congress authorized the state legislation