Con Law Essay Checklist Format

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Essay Approach to Q that involves a state regulation that might affect commerce
1. Does the Q refer to federal legislation that might a) supersede the state reg or preempt the field, or b) authorize state regulation.

2. If no, does the state reg discriminate against our of court commece? If yes, then it is invalid unless it protects important, noneconomic interest and there are no rsbl alternatives, or teh state is a market participant.

3. If not discriminatory, does it place an undue burden on commerce? Invalid if the burden outweighs the state's interest in the regulation.
SCOTUS self- imposed limitations on exercise of federal jurisdiction
  1. No Advisory Opinion
  2. Ripeness
  3. Mootness
  4. Standing
  5. Adequate and Independent State Grounds
  6. Abstention
  7. Political Question
No Relic May Stay Alone At Peace
Enumerated And Implied Powers of Congress
  1. Necessary and Proper
  2. Taxing
  3. SpendingCommerce
  4. War, Raise and Support Armies, Maintain Navy
  5. Investigatory
  6. Property -dispose of and make rules for US property
  7. Police Power: (it is MILD) Military, Indian Reservations, Federal Lands, D.C.
  8. Bankruptcy
  9. Postal
  10. Citizenship
  11. Admiralty
  12. Coin Monye & Fix Weights and Measures
  13. Patent/ Copyright
Executive Domestic Powers
  • Appointments (superior office approved by Senate, inferior officers need no approval)
  • Removals  (remove any cabinet for any reason, Congress can impose limitations on removal of officers which ar enot purely executive)
  • Pardons- only for crimes, cannot pardon an impeachment
  • Veto Power (no line item vetos)
Executive Power over External Affairs
  • No power to declare war, but can defend
  • Paramount power over Foreign Relations
  • Power to Enter into Treaties with consent of 2/3 of Senate (Treaty can trump less recent federal law)
  • Power to Make Executive Agreements with heads of foreign countries (can only trump state law)
Executive Privilege and Immunity
  • Privilege to keep communications secret except in criminal prosecution and P demonstrates great need.
  • Executive immunity- absolute immunity from civil damages based on action while in office, no immunity for action before comming into office
State Regulation or Taxation of Commerce Clause
  • State laws are superseded by conflicting federal law
  • Congres can preempt state regulation through express and implied premption
  • if congress has no enacted a law regardign teh subject, a state or local government may regulate local aspects of interstate commerce but it cannot disctiminate against or unduly burden interstate commerce
  • discriminatory regulations to protect local state commerce no allowed unless the state is market participant or it has important state interest
Intersovereign Litigation
US cannot be sued by a state without its consent BUT USG can sue a state without consent

A suit against a federal officer is deemed to be brought against the USG is the damages would come from the US treasury

State can sue another state without consent. SCOTUS has original jx.
Privileges and Immunities Clauses
Article IV: Interstate Privileges and Immunities Clause prohibits discrimiantion by a state against nonresidents. Apply only to "Fundamental rights" including important commercial activities and civil liberties. May be valid if state has a substantial justification for the different treatment. Does not apply to corporations or aliens.

Fourteenth Amendment: state cannot deny privileges of national citizenship. Only applies to interstate travel. Corp. not protected.
Congress Power to prevent private discrimination
Thirteenth Amendment, section 2, Enabling Clause

Commerce Clause
To show a constitutional violation, P must show that a "state action" is involved.

Exclusive Public Functions: Activities that are so traditionally the exclusive perogative of the state are state action no matter who performs them.

Significant State Involvenment: State action also exists wherever a state affirmatively facilitates, encourages, or authorizes acts of discrimination (eg, enforcing restrictive land covenant, administering a discriminatory trust, leasing premises to a discriminatory leasee)
Applies to state government only.

State legislation that substantially impairs a private EXISTING K is invalid, unless it serves a legitimate public interest and the law is reasonably narrowed and tailored to that interest.

Strict scrutiny for Public Contracts
Approach to Procedural DP Questions
Define: Procedural DP requires that a government agency use fair process (eg notice and hearing) when intentionally taking an individual's life, liberty, or property.

2. Is life or property being taken. Property includes "entitlements" or legitimate claims.

3. What type of Process is Required? 3 part balancing test:
(a) the importance of the interest to the individual; and
(b) the value of the specific procedural safeguards; and
(c) the governing interest in fiscal and administrative efficiency.
Taking Clause of the Fifth Amendment (incorporated by the 14th)
Provides that private property may not be taken for public use without just compensation.

Taking= actual appropriation; use restrictions which deny all economic value of land.

Public use= anything

remedy= just compensation, measured by the loss to the owner. Can also terminate regulation and pay damages.
Equal Protection Analysis
1. Does the regulation affect certain person or class of people? Arbitrary discrimination against a class of one also applies.

2. Does class involve a Fundamental Right (Privacy, Interstate travel, voting, First Amendment)? If yes, apply Strict Scrutiny. If no, RB.

3. Does the law involve a Suspect Class (race, national Origin, Aliens s/t limitation)? Apply strict Scrutiny.

4. Apply to Quasi-Suspect Class (gender, legitimacy)? Intermediate Scrutiny Test- is the law substantially related to an important government purpose)?

5. If none of the above, rational basis test{" is the law rationally related to a legitimate government purpose?
Fundamental Right s/t strict scrutiny
1. marry
2. procreate
3. custody of children
4. keep family together
5. child rearing
6. purchase and use contraceptives
7. travel (under EP)
8. Vote (EP)
9. Freedom of Speech
10. Freedom of Association
11. Free Exercise (does not apply to laws of general applicability)
Fundamental Right s/t undue burden analysis
engage in private consensual homosexual activity
refuse medical treatment
possess firearms
1. right to practice a trade or a profession
2. Physician-assisted suicide
3. Right to education
- residency requirements OK if rsbl
- property ownership requirement only OK for special purpose elections
- no poll tax
- no dilution of right to vote
-fee cannot preclude an indigent candidate from running BUT can have ballot access regulations
1. Appeals to the prurient interest in sex, using a community standard (prurient= shameful)
2. Is patently offensive and an affront to contemporary community standards.
3. Lacks serious values, using a national reasonable person standard.

Note- private possession of obscene material in home cannot be punished
1. standards must be narrowly drawn, reasonable, and definite;
2. injunction must be promptly sought
3. there must be a promots and final determination of the validity of the restraint.

Burden of proof on the government.
Generally press has no greater 1st amendment freedom than a private citizen.

Publication of Truthful Information- must be accessed lawfully, can be restricted by a sanction that is narrowly tailored to further an interest of the higher order.

Access to trials- public and press have a right to attend. May be outweighed by overriding interest; narrowly tailored to preserve a higher value.

no right to interview prisoners.
USG cannot punish someone's religious beliefs.

Laws that generally regulate conduct are OK, do not need special religious exemption, unless the law was specifically designed to interfere with religion.

Exception= unemployment compensation for not working for religious reasons and Amish kids in school
No establishment of a national religion

Strict scrutiny for showing preference for one religious sect over another.

If government action does not involve sect preference, apply 3 part test: 1) secular purpose; 2) primary effect that neither advances nor inhibits religion; 3) no excessive government entanglement.

Constitutional Law is a complicated subject. I suggest you spend 10-20 minutes outlining your answer and the rest of the hour writing our our answer. When you review each of your answers, keep track of your mistakes. Issue spotting is an art and it takes practice. The good news is that the key issues in every subject are tested in fairly common ways.

When you make a legal error, it is useful to note it on the Micro Review outline. Keep in mind that annotating an outline with your legal errors is extremely useful. It is “active learning” that reinforces new knowledge. The idea is to waste as little time as possible on reviewing stuff you don’t know. Instead you want to learn new material and place it in the proper context.

Here are the fact patterns and issue outlines – and one model answer – for our Master Essay Method Constitutional Law Seminar. (My private tutorial students get all the full model answers.)

Here is the video seminar with  the essay approach and a discussion of each of the fact patterns. Remember that if you click on the playlist button in the upper-left corner you can skip around within the seminar. If you want some personal coaching on the bar exam, tutorial services are available.



Here is a list of the videos that make up the seminar:

  1. Constitutional Law Approach
  2. Constitutional Law, February 2007
  3. Constitutional Law, July 2006
  4. Constitutional Law, February 2005
  5. Constitutional Law, July 2004
  6. Constitutional Law, February 2004
  7. Constitutional Law, February 2003
  8. Constitutional Law, February 2002
  9. Constitutional Law, July 2001
  10. Constitutional Law, July 2000
  11. Constitutional Law, July 1997
  12. Constitutional Law, July 1996
  13. Constitutional Law, July 1995
  14. Constitutional Law, July 1994

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