Con Law Flashcards
Commerce Clause
The commerce clause gives Congress broad regulatory authority over must activities involving two or more states. This includes the power to regulate:
1. channels
2. instruments
3. people and things
4. Instate activities that substantially affect interstate commerce
Taxing and Spending
Taxing and spending clause has been broadly interpreted to give Congress the power to spend for the general welfare not just to care out its enumerated powers.
Exclusive executive Powers
- Nomination principal officers
- veto bills
- prosercute and pardon federal offenses
- communicate and negotiate with foreign governments
- recognize foreign governments
enter executive orders
Impeachment executive power
only federal offenses except in cases of impeachment
Dormant Commerce Clause
Negative implication of the commerce clause. States cannot unduly burden interstate commerce. An undue burden can arise from a discriminatory law. Under the Pike balencing test, a nondiscriminatory law will be upheld unless the challenger shows that the law’s burden on interstate commerce clearly exceeds its local benefits.
Pike Balancing Test
Under the Pike balancing test, a nondiscriminatory law will be upheld unless the challenger shows that the law’s burden on interstate commerce clearly exceeds its local benefits.
When is a private actor a state actor?
- a private actor performs a service that is traditionally a government function. or
- the government is significantly involved in the private actor’s actitities.
Significant involvement exists when 1. mutually benefit, or (2) nexus, or (3) intertwined.
Substantive due process
Based on the principles that the laws should be reasonable and not arbitrary. A state cannot deprive individuals of life, liberty, or property without adequate justification. Adequete justification deprives on the right deprived. If ordinary then rational basis, if fundamental then strict scrutiny.
Rational basis
the law is presumed valid until the challenger shows that the law has no rational relation to any legitimate government interest
Strict scrutiny
Law is presumed invalid until the government shows that the law is necessary. to achieve a compelling government interest.
Equal Protection of the 14th amendment
constitutional safeguad that individuals or groups can use to challenge the laws that treat similarly situation people differently.
Quasi Suspect Class
Gender and Legitimacy get intermediate scruitiny
Intermediate scrutiny
Government must prove that the statute substnantially related to an important government interest.
Article IV privleges and immunities clause
prohibits states from discriminating against citizens of other states by denying them a right of state citizenship.
Physical Taking
Occurs when the gov’t permanently and physically occupies private property. Bars the gov’t from taking private property unless (1) the taking is for public use and (2) the owner receives just compensation.
federal gov’t- fifth amendment
state- 14 due process
Establishment Clause
prohibits the government from expressing a preference for a particular religion by participating in or aiding religious affairs. But the gov’t may engage that indirectly aids a religious organization if that conduct comports wit historical practices and understandings of the establishment clause.
Free excercise Clause
Prohibits gov’t interfernce with discrimination against sincere religious belief. The gov’t determines whether a religious belief is sincere, not reasonable.
prohibits government interference with a religious organization’s right to shape its faith and mission. As a result, the Supreme Court has recognized the ministerial exception, which protects religious organizations from civil liability for employment discrimination when they hire or fire employees who serve in ministerial roles.
Content based free speech restrictions
presumptively invalid and will be upheld only if they survive strict scrutiny. Meaning the gov’t must prove that the restriction is necessary and narrowly tailored to acheive a compelling governmental interest.
Eleventh Amendment
The eleventh Amendment prohibits foreign governments and private parties from suing a state in federal court without the state’s consent. The immunity extends to suits against state officials for a violation of state low
Supreme Court jurisdiction
SCOTUS may use its discretionary appellate jurisdiction and grant a writ of cert to review a final state court judgement. But SCOTUS can only review such judgements that are based on federal law, so it cannot review a judgement based on adequate and independent state grounds. This happens when state law fully resolves the matter AND the state corut did not rely on federal law.
Adequate and Independent state grounds
State law fully resolves the matter and the state court did not rely on federal law.
Abstention doctrine
Requires that a federal court abstain from issuing a declaratory judgement or injunction if doing so would interfere with a pending state criminal or particular civil proceeding that involves 1. an important state interest and 2. an adequate opportunity to litigate federal issues.
Article III Standing
A federal court will not hear a case unless the plaintiff has standing. To have standing, the plaintiff must prove:
(1) injury-in-fact – the plaintiff suffered concrete and particularized harm or an immediate threat thereof
(2) causation – that harm was caused by the defendant’s challenged action
(3) remedy– a judicial decision in the plaintiff’s favor will likely remedy the harm
Export Clause
Prohibts federal taxation of
exported goods and services and activites closely related to the export process.
Militia Clause
Congress has the power to authorize the President to deploy the National Guard into action without the approval of the state governor to execute federal laws, suppress insurrections, or repel invasions.
Congressional enumerated powers.
Any legislation enacted by Congress must stem from its enumerated powers.
Tenth Amendment
Prohibits Congress from commandeering state or local governments by requiring them to enforce federal laws. This amendment limits congress’ power to regulate interstate commerce.
Judicial absolute immunity
Judges possess absolute immunity from civil liability for official judicial actions—including rulings that are grave procedural errors—unless the court clearly lacked subject-matter jurisdiction at the time the action was taken.
Foreign Commerce
The commerce clause gives Congress plenary (i.e., exclusive) authority to regulate foreign commerce—including the power to impose tariffs (i.e., taxes) on imported goods.
Express preemption
occurs when the Constitution or federal law explicitly bars state regulation.
Implied preemption
when there is no room for state regulation (field), it is nearly impossible to comply with both laws (direct conflict), or the state law frustrates the federal law’s purpose (indirect conflict).
Full Faith and credit clause
Under the full faith and credit clause, a state court must recognize and enforce a judicial decision by a court in another state when (1) that court had personal and subject-matter jurisdiction, (2) the case was decided on its merits, and (3) a final judgment was entered.
Valid, final judgement, on the merits.
Procedural Due Process
When a state attempts to deprive an individual of life, liberty, or property, the Fourteenth Amendment requires that the state provide the individual with procedural due process. To determine the process due, courts balance the government’s interest against the individual’s interest.
Regulatory Taking
Occurs when the government (1) substantially restricts the use of private property or (2) deprives an owner of all economically beneficial use of the property but the owner retains possession of it.
Freedom of the press
generally prohibits the government from restricting the right to publish lawfully obtained, truthful information about matters of public significance. A government action that abridges this right is presumptively unconstitutional and must survive strict scrutiny. This requires the government to prove that its action was the least restrictive means (i.e., narrowly tailored) to achieve a compelling government interest.
P has standing
P has standing when 1. challenging congress’ tax and spending and 2. alleges a constituional limitation on that power
Freedom of Association
The government can interfere with the First Amendment freedom of association by punishing persons who (1) are active members of a subversive organization, (2) know of the organization’s illegal objectives, and (3) specifically intend to further those objectives.
Speech and Debate Clause
protects members of Congress from civil and criminal liability for statements and conduct made in the regular course of the legislative process, including a speech given on the floor of Congress, committee hearings, and reports. However, this protection does not foreclose prosecution for a crime, including the taking of bribes, when the crime does not require proof of legislative acts or inquiring into the motive behind those acts.
Executive Agreement vs. Federal Staute
When a federal statute conflicts with an executive agreement, the federal statute takes precedence over the executive agreement.
Class Action Basic Requirements
C- Commonality (common question of law or fact)
A- Adequacy (representatives must fairly represent interest of class)
N- Numerisity (class member must be numerous)
T- Typicality (claim or defenses must be typical of class)
Class Action under Fairness Act of 2005
makes it easier to satisfy subject matter for large classes.
i. more than 100 members
ii. primary D is not states
iii. no certain securities
iv. aggregate amount more than $5M
v. Minimum diversity exisits- any members of a class is citizens of a state different from any defendant
