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This is an extract of our Bar Exam document, which we sell as part of our Constitutional Outlines collection written by the top tier of U.C. Berkeley School Of Law (Boalt Hall) students.

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MBE CONSTITUTIONAL LAW FREQUENTLY TESTED TOPICS: Due process, Equal Protection, 1st Amendment

Mnemonic

JUDICIAL REVIEW AND FEDERAL JURISDICTION Federal Jurisdiction is one of limited jurisdiction. Scope limited in Article III, Section II.
? Law-based: arising out of Constitution or federal law.
? Party-based: heard in fed court, arising out of state law. When: 1) US gov is a party; 2) state vs state; 3) state vs other state's citizen; 4) citizens from different states + $75,000; 5) foreign diplomats
? Must be Case or Controversy (RAMPS) o Standing: Article III - injury in fact, causation, redressability
? Third Party Standing: when special relationship (connection between interests of claimant and constitutional rights of third person), and incapacity/discouraged from bringing suit on own behalf (abortion docs-patients, beer vendor-consumer)
? Organization: 1) member standing; 2) purpose of organization (related to suit); 3) specific member participation not required - same remedy will address all claims. o Ripeness: bars consideration of claims before they are developed. Generally, court may not review or grant declaratory judgment of state law before its enforced or when there is no real threat the statute will ever be enforced. o Mootness: can't be advisory opinion
? state court may be allowed to give advisory opinion
? If principle issue resolved, but still unresolved collateral matters - case will not be dismissed
? Won't be dismissed for mootness if "capable of repetition, yet evading review" =
impossible for adjudication/appellate review before claims of P or others become moot. o Political Questions: matter assigned to another branch by Constitution, or incapable of judicial answer: 1) textual commitment of power; 2) political, not legal in nature; 3) lack of judicially discoverable and manageable standards for resolving issue; 4) impossibility of court's undertaking independent resolution without expressing lack of respect due coordinate branches; 5) potential for embarrassment from multifarious pronouncements of various departments on one question o Abstention: deference to state court o Adequate State Grounds: only applies to US Supreme Court, not all fed courts. Won't hear case by state Supreme Court if state decision can rest on state law grounds, and avoid constitutional or federal question (otherwise it would be an advisory opinion) Supreme Court Original Jurisdiction: foreign diplomats and states can file directly in Supreme Court (Art III, Sec II). Appellate Jurisdiction if fed constitution/law at issue.
? Congress can strip jx from lower fed courts
? Congress cannot take case from appellate category and put into original jx Sovereign Immunity: 11th amendment. Private individuals can't sue states for money damages in any court. Except:
? State vs state or fed gov vs states
? Subdivisions of state (cities, towns, counties)
? Suits for injunctions 1

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State consent to suit in fed court (express and unequivocal waiver) Congress authorizes suit to compensate for state violations of post civil war amendments (enforcement powers) Example: probation officers owed money under federal law cannot sue for it in federal or state court; states can infringe patents or copyrights (thus violating federal law), but cannot be suedin either federal or state courts by private parties.

SEPARATION OF POWERS Fed Congress: unlike state leg, fed leg not only has to 1) not violate Constitutional right; but also 2) there must be a Congressional power that justifies the law.
? Art. I, Sec. 8: Commerce, taxing, spending, war and defense o Commerce: must show: that regulated activity is 'economic' in nature; and 2) regulated activity, when taken cumulatively throughout the nation, has a substantial effect on interstate commerce.
? can control: 1) channels of interstate commerce; 2) instrumentalities/products crossing state lines; 3) activities that substantially affect interstate commerce. Cumulative Effect Doctrine (expands affectation doctrine)
? Limitation: cannot use substantial effect power to regulate intrastate, non economic activity (possession of handguns, violent crime). Unless there's a comprehensive scheme, and non-economic activity is isolated/incidental to law's purpose.
? Congress cannot use commerce power to overcome state sovereign immunity.
? Where Congress has not enacted legislation, states may regulat local transactions affecting interstate commerce, sbuejct to limitations (DCC) o Taxing: To spend for general welfare, must either: 1) objectively raise revenue; or 2) dominant intent to raise revenue; or 3) 'necessary and proper' to regulate activity Congress has power to regulate. o Spending: power to spend for general welfare.
? Used to get around limits on regulatory power. Congress can require states to comply with specified conditions in order to qualify for federal funds, as long as: 1) general welfare; 2) unambiguous condition; 3) relatedness; 4) not unconstitutional; 5) no coercion (amount not so great as to be coercive). o War and Defense: very broad. 1) declare war; 2) raise and support army; 3) provide and maintain Navy; 4) organize, arm, call on militia. During war time: 1) draft; 2) price, wage control; 3) civilian exclusion. Military courts for members of armed forces and court-martial proceedings for enemy combatants.
? Others: Immigration and Naturalization, Investigatory power (through Necessary and Proper clause. Broad), Property power (dispose of and make all needful Rules and Regulations respecting US territory/property), Power of eminent demain (implied), Maritime Power (through Necessary and Proper clause) Bankruptcy power (to establish uniform laws), Postal Power (establish post offfices), Copyright and Patent power, Speech and Debate clause (can't punish senator or rep for anything said during debate on leg floor - doesn't protect state leg)
? 13th, 14th, 15th amendments: power to legislate and prohibit Civil Rights violations o 13th: slavery; 14th: prohibits states from violating due process, equal protection, privileges and immunities (can only limit states, can overcome state sovereign immunity) ; 15th: bans race discrimination in voting (can only limit states, can overcome state sovereign immunity) o must show widespread violations of amendment by state gov + legislative remedy must be congruent and proportional to state violations 2

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Delegation Power: to create agency and give agency power to make rules that have force of laws, even if they preempt state laws. Must be guided by principle. Can delegate appointment of inferior officers to: president, courts, heads of executive departments (no senate confirmation necessary). Necessary and Proper Clause: means okay, if authority to pursue ends. (has to be N&P in conjunction with another power) o Admiralty and Maritime Power Appropriations Power: where congress by legislative act explicitly directs president to spend appropriated money, president has no power to refuse to spend/delay spending the authorized funds. No Removal power: cannot force President to get Congress approval/removal or give self power of removal Veto override (except pocket veto) If Congress is acting within its powers, they trump President. Impeachment power: of president, federal judges, federal officials. o House has sole power to impeach (majority) o Senate has sole power to conduct trial. Conviction requires 2/3 vote. o Reasons for impeachment: treason, brbery, high crimes. No appeal because political question.

Executive Power
? Enforcement of Laws
? Appointment Power of high level officials (with advice and consent of Senate)
? Removal power (of at-will executive officals, or executive officials with fixed terms from Congress for cause) (but not federal judges, or special prosecutor investigating the president)
? Veto power (10 days without action = law; pocket veto = law expires If congress term expires before 10 days)
? Pardon power - only applies to offenses against US (not state laws), cannot undo impeachment (but no corruption or self dealing limit)
? Executive privilege - absolute for national security secrets; presumptive for other confidential communications with advisors. Balance need against purpose.
? Commander in chief - if Congress has not declared war, President is limited to responding with military force against attacker. President only prevails over Congress with respect to battlefield tactical decisions. Power to seize private property during wartime, unless Congress denies him that power.
? International affairs: Treaty power (ratified by Senate with 2/3); executive agreements with foreign nations (no ratification necessary). Fed statutes beat executive agreement. Treaties on same level as fed statutes. Both beat state statutes. o Treaty that requires change in either federal or state law is not self executing, requires Congress or state legislature to pass legislation to implement its provisions. These only supersede existing statutes when further legislative action taken by Congress. o Executive agreements and compacts with foreign nations - valid and prevail over inconsistent state law. Need not be ratified. But don't prevail over federal statutes. Legislative Veto (giving self power to change law without president signature) = violates presentment Line-item veto = violates bicameralism THE FEDERAL SYSTEM AND TYPES OF ACTION GOVERNED BY THE CONSTITUTION State Gov: more broad than federal powers (10th gives all 'leftover' powers) 3

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