CON LAW Flashcards
DELEGATION OF POWERS (CONGRESS)
Although Article I vests Congress with “all legislative powers,” it may delegate some of that authority to the executive or judicial branches, so long as Congress specifies an “intelligible principle” to guide the delegate. Almost any guidance to the delegate is considered sufficient, and there is almost no practical limitation to Congress’s ability to delegate.
EX POST FACTO
A federal or state statute will be struck down as being ex post facto if it criminalizes an act that was not a crime when it was originally committed.
BILL OF ATTAINDER
`bill of attainder, or a legislative act that declares a person guilty of a crime and punishes him without a trial.
Fourteenth Amendment’s incorporation of the Fifth Amendment.- The Fifth Amendment Takings Clause,
The Fifth Amendment Takings Clause, which applies to the states through the Fourteenth Amendment, provides that a government may seize private property not only for its own direct use, but also in order to transfer the property to another private party. Such a seizure is permissible if it is rationally related to a conceivable public purpose.
Congress - TAXING
As long as a tax has a reasonable relationship to revenue production, Congress may exercise its power to tax for any public purpose.
Necessary and Proper Clause
Necessary and proper” clause is not a free-standing power of congress, it works only as an add-on to some other legislative power.
Congress may enact legislation that is necessary and proper to execute its spending power.
example of a valid congressional exercise, pursuant to the Necessary and Proper Clause, of ensuring that its power to appropriate money for the general welfare was not thwarted.
Congressional Powers vs. Supreme Court
Congress can’t give a right.
Congress can write laws, but they cannot provide rights!!
Under Section 5 of the Fourteenth Amendment, Congress can only enforce constitutional rights as declared by the Supreme Court—not create new rights.
- Privileges and Immunities of State Citizenship under Article IV (Comity Clause)
Forbids serious discrimination against out-of-state
(absent substantial justification)
• Does not protect out of state corporations and aliens.
RULE: There can be no legal requirement of residency for private employment.
- Non serious discrimination: States can discriminate with regard to recreational opportunities, such as hunting licenses or state park access.
Dormant Commerce Clause
** More important than Privileges and Immunities of Article IV because it protects out-of-state businesses as well as out-of-state individuals. **
RULE: In the absence of federal regulation, state regulation of commerce is valid so long as:
1) There is no discrimination against out-of-state interests;
2) The regulation does not unduly burden interstate commerce; and
3) Regulation does not apply to wholly extraterritorial activity.
: Remember, the Dormant Commerce Clause applies only in the absence of a federal regulation. If congress authorizes or consents to state regulation of commerce, nothing the state does will violate the Commerce clause, even if it discriminates against out-of-state interests. ** COMMONLY TESTED
State Sovereign Immunity - The 11th Amendment
You cannot sue a state for money damages in either state or federal court unless the state consents or the U.S. congress expressly says to enforce 14th amendment rights. (it does not protect local gov’s)
The Eleventh Amendment prohibits an action in federal court by a citizen of one state against another state when the basis for the action is the violation of state law.
The Supreme Court has expanded the amendment’s reach to also preclude citizens from suing their own state in federal court
Exceptions of State Sovereign Immunity (11th amendment)
o Bankruptcy, consent – other than that Congress cannot abrogate
Dormant Commerce Clause applies only when ….
,,,,a state discriminates against an out-of-state commercial actor, whereas for example: the out-of-state resident wishes to hunt for noncommercial, recreational purposes.
Delegation Power of Congress
Congress can delegate its legislative power to an executive agency.
The Constitution requires that legislative power be exercised in accord with the bicameralism (i.e., passed by both Houses of Congress) and Presentment Clauses of Article I (i.e., the requirement that, in order for a bill to become law it must be presented to the president for approval or return)
Congress cannot authorize a legislative committee to “veto” agency regulations.
Congress can require states to change their laws regarding federal elections.
The Elections Clause of Art. I explicitly empowers Congress to override state laws concerning federal elections.
Supremacy Clause
Under the Supremacy Clause, federal law preempts state law when Congress has enacted legislation that explicitly prohibits state regulation in the same area
FREEDOM OF RELIGION
Establishment Clause
Lemon test (SEX)
(1) Secular purpose;
(2) Effect, neither advances nor inhibits religion;
(3) No eXcessive entanglement with religion.
• No discrimination against religious speech or among religions unless Strict Scrutiny.
First Amendment,- Adult entertainment
Under the First Amendment, a city can regulate adult entertainment establishments (e.g., by localizing them in a particular area), but cannot impose a blanket ban on all pornography.
The Tenth Amendment
The Tenth Amendment provides that all powers not assigned by the Constitution to the federal government are reserved to the states, or to the people. However, this does not include powers delegated to the federal government by the Constitution
Burden - prior restraint cases
In prior restraint cases, the burden is on the government to prove that the material to be censored is not protected speech.
First Amendment standards for government restrictions on commercial speech.
A restriction on commercial speech is subject to a form of intermediate judicial scrutiny, requiring the government to show that the restriction directly advances an important or substantial government interest and that the restriction is not substantially more extensive than necessary to protect that interest.
consideration of mitigating factors in determining a sentence is only required when the death penalty is imposed.
consideration of mitigating factors in determining a sentence is only required when the death penalty is imposed.
Congress may not place conditions on grants that unconstitutionally burden a recipient’s First Amendment rights
Congress may place conditions on recipients of federal grants. Generally, if the recipient finds the conditions offensive, the recipient’s option is to refuse the federal funds.
However, Congress may not place conditions on grants that unconstitutionally burden a recipient’s First Amendment rights
