Con law Flashcards
Article 1
Establishes legislative branch, vested in congress
Congress has explicit powers under article 1, and implied power under “Necessary and Proper” Clause: Congress has implied powers that are “useful or essential” to exercise of express powers
(i) commerce power, (ii) taxing power, (iii) spending power (iv) raise/support military, (v) declare war, (vi) regulate immigration, (vii) use taxes/spending to defend country
- MAY NOT: delegate legislative power, but CAN authorize “intelligible principle” to guide other branch to do administrative rulemaking and regulatory enforcement
Commerce Clause
Congress can regulate interstate commerce: (i) channels of interstate commerce, (ii) instrumentalities/persons/things of interstate commerce, (iii) economic activities that “substantially affect” interstate commerce
- aggregation: small-scale activities that collectively can be considered to effect interstate commerce
Dormant Commerce Clause
states CAN’T: (a) discriminate against interstate commerce, (b) burden interstate commerce, UNLESS Congress authorizes
- FACIALLY discriminate: (a) facially favors in-state commerce over out-of-state commerce, or (b) practical effect is to discriminate against out of state commerce, IF SO then MODIFIED STRICT SCRUTINY: (1) legitimate government interest, (2) narrowly tailored (no non-discriminatory alternatives)
- NON-FACIALLY BUT BURDEN’S: commerce: MODIFIED INTERMEDIATE SCRUTINY: (1) legitimate goal, (2) rationally related, (3) BURDEN DOESN’T CLEARLY EXCEED BENEFITS
EXCEPTION:
- “market participant exception” = if state acting as market participant (buying/selling goods directly) rather than acting as a regulator, than dormant commerce clause doesn’t apply and the state can discriminate by only buying/selling to in-state vendors
Taxing/spending power
Taxes are valid if (1) provides some revenue, and (2) isn’t a penalty
- taxes must be uniform throughout country
- direct taxes must be apportioned among states
- congress may condition states receipt of federal funds
- congress may use taxes to encourage or deter specific conduct
- congress can’t “unduly coerce” states through taxing/spending power
Spending power: congress may spend money for general welfare, interpreted broadly
Article 2
Executive branch power vested in president
(i) enforce federal law (ii) appoint/remove federal officers, (iii) pardon federal crimes not involving impeachment (iv) recommend legislation to congress (v) foreign relations (vi) commander-and-chief (vii) deploy military without congressional approval if emergency (vii) treaties if 2/3 senate approval
Executive orders: Order used by president to enforce federal law (typically directed toward federal officials/agencies)
- Has “force of law” (can direct agencies on how to enforce law) but cannot actually create or change federal law
Treaty: (a) president may enter treaties on behalf of US ratified by 2/3 senate, (b) rescind treaties unilaterally without approval (c) treaties valid unless violate constitution
- Treaties are on equal footing with other federal laws (one enacted most recently prevails)
- has force of law
Executive agreements: Agreement between president and foreign country
- like treaty but doesn’t need congressional approval, only politically binding on US, so long as doesn’t violate constitution
- executive agreements inferior to federal laws
- BUT: Treaties/executive agreement supersede state law
Appointment:
- principal officers: president nominates, majority of senate approves (ambassadors, federal judges, cabinet officials)
- inferior officers: president appoints, but congress can decide someone else may appoint them as well
Supremacy clause
Federal law superior to state law
Article 3
Establish judicial branch
One supreme court, and other lesser federal courts created by congress
Article 3: Federal jurisdiction
Judicial branch jurisdiction extends to all cases that arises under constitution/treaties/federal law/US party/2 states/state and citizens of another state/citizens of different states
Supreme court original jurisdiction: (a) state is party, (b) ambassadors/public ministers/consuls
Supreme court appellate jurisdiction: (a) everything else (Marbury v Madison: Judicial review: Judicial branch has final authority to interpret constitution and declare acts unconstitutional)
- appeal as discretionary: most cases
- appeal as matter of right: state party/ambassadors
Congress limitations on supreme court jurisdiction:
- may only limit supreme courts DISCRETIONARY appellate review
- CANNOT limit/expand ORIGINAL jurisdiction of supreme court
Checks and balances
Executive, legislative, judicial
Legislative: (a) where legislative/executive share power, Congress can limit executive power (b) Congress can impeach president/federal officers
- MAY NOT: delegate legislative power, but CAN authorize “intelligible principle” to guide other branch to do administrative rulemaking and regulatory enforcement
- BUT NOTE: once congress delegates, can’t give itself veto power, must then pass a bill to overturn the delegates decisions
- “Bicameralism and presentment”: Both senate/house must pass bill (bicameralism), then goes to president (presentment), president then signs/vetoes/does nothing
Executive: (a) veto bill entirely (Congress overrides by 2/3 vote), (b) no action on bill (becomes law in 10 days automatically)
- “line item vetoes” (changing specific provisions of passed bill) is unconstitutional, president must completely veto or approve
Justiciability doctrines (Case or controversy requirements)
(1) case or controversy requirement (2) standing, (3) ripeness, (4) mootness, (5) no advisory opinions (6) political question doctrine
no advisory opinion requirement
Specific adversarial disputes, not abstract legal questions
Standing requirement
(1) injury, (2) causation, (3) redressability
- injury: concrete injury that has occurred or imminent
- causation: traceable to D’s actions
- redressability: judicial remedy
Ripeness requirement
Dispute is ready to be decided, is fully formed, involving threat of real and immediate harm
Mootness doctrine
Court decision will no longer affect any legal interest
Exceptions: (i) defendant voluntarily ceased conduct (ii) issue capable of repetition yet evading review, (iii) plaintiff whose claim is moot is representative member of class action
Political-question doctrine
(i) matter constitution delegates exclusively to another branch, or (ii) case that lacks judicially manageable standards of decision
Doctrine of adequate and independent state grounds
Federal courts can’t interpret state law, they can only interpret state court decisions that in some way are decided using federal law
If not clear, federal courts presume federal law was used, and therefore have jurisdiction
Due Process
Procedural: Regulates procedures government must follow before depriving life, liberty, or property
- life = life
- liberty = change legal status, no discretion
- property = entitled to it
REQUIRES: (1) notice, and (2) opportunity to be heard
Substantive: Regulates content of laws and provides basic rights protected by constitution,
- Fundamental right: Strict scrutiny (1) compelling government interest, (2) narrowly tailored
- other rights: rational basis (1) legitimate government interest, (2) rationally related
NOTE DIFFERENCE BETWEEN DUE PROCESS AND EQUL PROTECTION
- Due process = fundamental rights deprived
- Equal protection = classifying people and treating differently
Procedural Due Process
No due process = procedural Due Process violation
Some Due Process = 3 part test (a) private interest, (b) risk of erroneous deprivation, (c) government’s interest
Substantive Due Process
Fundamental Rights guaranteed explicitly or implicitly in constitution
(examples: right to travel, right to raise one’s children, right to marry, right to live with family members, right to engage in consensual sexual activity, freedom of religion, etc. etc.)
Test: Strict Scrutiny: (1) narrowly tailored, (2) achieve compelling government interest
Equal Protection
5th/14th amendments: government cannot classify/treat individuals differently
(suspect class) Race, religion, national origin, alienage:
- strict scrutiny (1) narrowly tailored, (2) compelling government interest NARCO
(quasi-suspect class) gender, non-married parents: -
- intermediate scrutiny (1) policy substantially related, (2) important government interest SUBIMP
All other classifications:
- rational basis review: (1) policy rationally related, (2) legitimate government interest, RATLEG
Fundamental rights
- voting
- ballot access for candidates
- interstate travel
- marriage
- procreation
- family living
- access to courts
NOTE: Federal laws that target state conduct that it deems a violation of 14th amendment (1) violates 14th amendment, and (2) is “congruent and proportional” to the constitutional harm
Takings Clause
Government cannot take private property without (a) public purpose, and (b) just compensation
2 types: Physical takings and Regulatory Takings
Physical Takings
(a) seizes property, or (b) makes permanent physical invasion of property
Regulatory Takings
(a) law destroys all economically viable use of property (unless nuisance),
(b) law excessively or unforeseeably restricts property use without destroying value,
(c) law requires owner give up property in exchange for a government benefit
- (takings unless (1) essential nexus between condition and government interest)
Contracts Clause
No STATE shall pass any law impairing contracts
- private contract: (1) K between private parties, (2) state law, (3) substantially impaired contract, IF SO (1) legitimate purpose, (2) appropriately tailored
- public contract: (1) K with state, (2) state law, (3) substantially impaired contract, IF SO (1) legitimate purpose, (2) appropriately tailored
- NOTE:
– same test BUT less deference given to state K rather than between private Ks (because state could just self-help remove Ks)
– only applies to existing contracts, future contracts don’t implicate contract clause
