Con Law Flashcards
tenth amendment
powers not delegated to the federal government nor prohibited by the constitution to the states are reserved to the states.
judiciary power (Art III)
established judicial review
the constitution is law and the judiciary’s province and duty was to declare what the law is.
judiciary does not have to hear every case
what are the limitations on the court’s jurisdiction?
limitations on the court’s jurisdiction:
- case or controversy
- mootness
- ripeness
- abstention
- standing
- political questions
case or controversy
a real and substantial dispute that touches the legal relations of parties with adverse interests and that can be resolved by a judicial decree if a conclusive character
what is it called if the matter has already been resolved?
dismissed or moot
ripeness
bars consideration of claims before they have fully devloped.
absentation
the court may abstain or refuse to hear a particular case when there are undecided issues of law presented.
the state court resolves the issues of state law first.
making a decision on the constitutional issue unnecessary.
standing
a person litigating a constitutional question must have standing
the litigant must show:
injury in fact
causation
redressability
executive branch
president
commander in chief
chief executive
powers of the president
appointment power to nominate and appoint ambassadors, justices of the supreme court and all other officers of the US
veto power over congress legislation
veto power
the president has 10 days to act on legislation
if the president fails to act the proposed legislation becomes law
the president can pocket veto a bill passed within 10 days of the end of the congressional term by not signing it.
congress has the power to override by a 2/3 vote
congress
power to amend legislation to delete provisions
can enact legislation that delegates rule-making power to an executive or administrative agency in designated areas
powers of the president
power to deploy military forces
NOT power to declare war
make treaties with foreign nations- requires 2/3 of the senate before enactment
legislature
to make laws
right to conduct investigations and hearings (necessary and proper)
necessary and proper clause
gives congress the implied power to make all laws which shall be necessary and proper for carrying into execution the forgoing powers
what are congress’ specific powers?
legislative commerce taxing spending war and defense investigatory property eminent domain admiralty bankruptcy postal copyright and patent speech and debate civil war amendments
commerce clause
gives congress the power to regulate:
- channels fo interstate commerce
(highways, waterways and air traffic) - instrumentalities of interstate commerce
(cars, trucks, ships, airplanes) - activities that have a substantial economic effect upon interstate commerce
dormant commerce clause
if a state law discriminates on its face between in state and out of state economic acts, the state must show that the regulation serves a compelling state interest and the regulation is narrowly tailored to serve that interest.
if the state law merely incidentally burdens interstate commerce, the state must show that the regulation serves an important state interest and the burden on interstate commerce is not excessive in relation to the interest served.
substantially effects test
congress must show that the regulated activity is economic in nature and that the regulated activity when taken has a substantial effect on commerce
congress– collecting taxes
a congressional act purporting to be a tax should be upheld as a valid exercise of the taxing power:
- does raise revenue?
- was it intended to raise revenue?
can use this power to achieve a regulatory effect
can a state tax interstate commerce?
YES!
so long is it doesn’t discriminate against or unduly burden interstate commerce
when courts look at a state tax on interstate commerce, they generally require that…
there must be:
- a substantial nexus between the activity taxed and the taxing state
- fairly apportioned
- not discriminate against interstate commerce
- fairly related to the services provided by the taxing state
supremacy clause
federal law will supersede any state law that is in direct conflict with it
can private actors be found to be state actors?
Yes!
when they are carrying on activities traditionally and exclusively performed by the government
OR
where the government and private entity are CLOSELY RELATED that the action by the private party can be treated as action by the government
how does the 14th amendment apply the bill of rights to the states?
Yes, the 14th amendment applies the bill of rights to states by holding that fundamental rights are not privileges and immunities of national citizenship
ESSAY QUESTION:
always include how an amendment applies to the states through the 14th amendment!!!
14th amendment
- what are the 2 parts?
- who does it apply to? state or federal?
- what are the 2 parts?
-bill of rights application to the states
AND
- due process clause - state level
14th amendment- Due Process Clause
protects he rights of persons
NOT JUST CITIZENS
protects against the deprivation of life, liberty or property without due process of law
procedural due process
an individual is entitled to certain safeguards:
some form of notice
meaningful hearing within a reasonable time
substantive due process
economic regulation
will be upheld if it is rationally related to a legitimate government interest
strict scrutiny
evaluating governmental regulations that affect fundamental rights of personhood
fundamental rights
right to travel
right to vote
right to privacy
what are privacy rights?
CAMPERS
CAMPERS
contraceptives abortion marriage procreation private education family relations sexual relations
substantive due process
when the law affects he rights of all persons with respect o the specific activity
equal protection due process
when a law affects he rights of some persons with respect to a specific activity
strict scrutiny
APPLIES TO: suspect class - race -sex -religion
fundamental right
NECESSARY TO ACHIEVE A COMPELLING GOVERNMENT PURPOSE
BURDEN IS ON THE STATE
intermediate scrutiny
APPLIES TO:
quasi suspect class
- gender
-legitimacy
SUBSTANTIALLY RELATED O AN IMPORTANT GOVERNMENT INTEREST
- substantially related= an exceedingly persuasive justification
BURDEN IS ON THE STATE
RATIONAL SCRUTINY
APPLIES TO:
-non-suspect
-gender-neutral
-need for necessities of life
(food, shelter, clothing, medical care)
- merely discriminatory
RATIONALLY RELATED TO A LEGITIMATE GOVERNMENT INTEREST
BURDEN IS ON THE PLAINTIFF
first amendment
freedom of religion
freedom of speech
freedom of the press
freedom of association
freedom of religion
both the establishment of religion and the free exercise of religion
establishment clause
the clause in the First Amendment of the US Constitution that prohibits the establishment of religion by Congress.
lemon test
the statue must have a secular legislative purpose
the principal or primary effect or purpose must neither advance nor inhibit religion
the statute must not foster an excessive government entanglement with religion
government aid to religious activities
violate the establishment clause and is unconstitutional
if the program provides aid to ALL school students including those attending religious schools then the program “passes” the lemon test
first amendment
free exercise clause
religious beliefs are protected
the government may not punish an individuals by denying benefits or imposing burdens based on religious belief.
first amendment
freedom of speech clause
the government may not censor all categories of speech or engage in content-based discrimination with some exceptions
regulations are allowed if they pass strict scrutiny
exceptions are:
conduct based regulation
government as speaker
unprotected speech
- advocates violence or unlawful action
- fighting words
- hostile audience speech
- obscene speech
- defamatory speech
