Con Law Flashcards
Legislative immunity
Members of Congress are protected from both civil and criminal liability for statements and conduct made in the regular course of the legislative process, including a speeh given on the floor of Congress, committee meetings, and reports
Judicial immunity
A judge is absolutely immune from civil liability for damages resulting from her judicial acts, including grave procedural errors and acts done maliciously or in excess of authority unless there is a clear absence of all jurisdiction but a judge is not immune to lawsuits regarding non-judicial activities
Executive privilege
Executive privilege is a privilege with respect to the disclosure of confidential inforation by the executive branch to the judiciary or Congressand has been recognized by the Supreme Court but is not an absolute privilege
Criminal trial: presidential communications must be made available in a criminal case if the prosecution demonstrates a need for the information and the judge can examine the communications in camera to determine whether the communications fall within the privilege
Civil proceedings: The executive branches decision to withhold production of information is given greater deference than in criminal proceedings
Claims of privileged based on national security are generally accorded enhanced deference
Presidential immunity
The President may not be sued for civil damages with regard to any acts performed as part of the President’s official responsibilities but he has not immnity in a civil action based on conduct alleged to have occurred beore the President took office or comletley unrelated to carrying out the job
Exclusive powers of the federal government
Any power explicitly stated in the Constitution including the power to coin money or enter into treaties
Powers that by their nature are exclusively federal including the power to declare war and the power over citizenship
Exclusive powers of the states
all powers not assigned b the Constitution to the federal government are reserved to the states or to the people, however in practice with the broad interpretation of the Commerce Clause and the spending power, the federal government has very broad authority, making state power rarely exclusive
Commandeering limitation on the federal government
Congress cannot commandeer state legislatures by commanding them to enact specific legislation or administer a federal regulatory program, and it may not circumvent that restriction by conscripting a state executive office directly but it may, through the use of taxing and spending powers, encourage state action that it cannot directly compe
Commerce Clause
Gives Congress the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes
Individual states are limited in their ability to legislate on such matters
Dormant commerce clause and the states’ abilities to regulate interstate commerce
If Congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate, so long as the stat or local action does not discriminate against out-of-state commerce, unduly burden interstate commerce, or regulate extraterritorial (wholly out-of-state) activity
When does a local or state regulation discriminate against out-of-state commerce
If it protects local economic interests at the expense of out-of-state competitors
When can a local or state regulation that on its face discriminates against out-of state commerce still be upheld because it is necessary to an important government interest
If the state or local government can establish that an important local interest is being served and no other non-discrimatory means are available to achieve that purpose
This is rarely found
When can a state discriminate against out-of-state commerce: market participant exception
A state may behave in a discriminatory fashion if it is acting as a market participant (buyer or seller), as opposed to a market regulator
What can a state do if it is a market participant
if may favor local commerce or discriminate against nonresident commerce as could any private business
What reasons is it okay for a state to discriminate against out-of-state commerce
- When it is necessary to important state interest
- When the state is a market participant
- When the activity being performed is a traditional governmental function
- When providing subsidies
When Congress permits the discrimination
States’ non-discrimination against out-of-state commerce traditional government function exception
state and local regulations may favor state and local government entities, though not local private entities, when those entities are performing a traditional governmental function
Example: waste disposal
A state may discriminate agains out-of-state interests when raising money to fund state and local government projects
Example: tax exemption for income earned on state and local bonds but not for out-of-state bonds