Con Law Flashcards
Does the case belong in Fed Ct? 8 constitutionally categories of Art. III
(1) Arising out of the law/treaties of US
(2) Involving ambassadors/consuls
(3) Where US is a party
(4) Btw state and citizen of another state (subject to 11th A)
(5) Btw two states
(6) Between citizens of diff states (AIC over $75k)
(7) Between a citizen of state and foreign citizen (another nation)
(8) Involving admiralty or maritime actions
Does the case belong in Fed Ct? Is it barred by 11th A?
Prevents fed ct from hearing private parties or foreign gov claims against a state gov.
Unless an exception:
(1) state consents to jurisdiction–express/unequivocal
(2) if US or another state is P
(3) if suit is against local gov entities
(4) Congress can remove the state’s 11th A immunity as to actions created under the 14th A, but it must be unmistakably clear Congress intended to remove immunity
(5) suit by a citizen to prevent an official from another state from enforcing an unconstitutional state action
(6) Suit against a citizen against a citizen of another state in a fed ct (where suit is prohibited in state ct)
If case not before SCOTUS but before an Art III ct: Have the parties met or satisfied 6 juris limits for Art III cts?
-rules also control SCOTUS
(1) there must be a real case and controversy with true adverse parties
(2) the case must be ripe (bars consideration or claims before they have developed)
(3) the Q cannot be moot (bars consideration of claims after they have been resolved)
(4) the option of abstention cannot be available to the ct (adequate state grounds)
(5) parties must have standing
(6) Q must not be a political Q
IF before SCOTUS does ct have juris re WRIT OF CERTIORARI?
-this assumes SCOTUS satisfied 6 juris limits of Art III cts
It must be either from a fed ct or the highest state ct
Seperation of Powers 3 basic controversies
(1) who has power as between Pres and Congress
(2) Does Cong leg violate the Constitution
(3) Who has power bet State/Fed gov when regulating
Express Powers of Congress
(1) War and Def powers (Congress declares war–Pres ends war)
(2) Commerce power (reg of both foreign and domestic commerce)
(3) Taxing Power–for gen public (must bear some reasonable relationship to revenue production)
(4) Power to borrow money (to raise money for public use on the credit of the US)
(5) Power over citizenship and naturalization
(6) Power over bankruptcies (est uniform bankruptcy law)
(7) Power over issuance of patents/trademarks (enact statutes to protect)
(8) Power over fed lands
Implied Powers of Congress
(1) Power over foreign affairs (ratifies treaties)
(2) Power to create/maintain highways (implied benefit to gen welfare)
(3) Power to create and maintain the IRS (to carry out enumerated power to tax)
(4) Power over Fed Crim law
(5) Power to create/maintain fed banking system (reg of money supply)
(6) Power over maritime reg (inter and intrastate navigable waters)
(7) Investigative Power (to secure info as a basis for potential leg)
(8) Power of Eminent Domain (and fed lands) to take property to effectuate any fed right.
Presidential Powers (Domestic)
(1) Comm in Chief (once Cong declares war, broad powers to conduct war)
(2) Power to Pardon (not for impeachment or civil contempt)
(3) Veto Power (has 10 days to exercise and no line item veto, veto can be overridden by 2/3 vote in each house)
(4) Leg power ONLY w auth of Congress (proposes leg)
(5) Appointment power (fed officials, with the advice and consent of Senate)
Presidential Powers (Foreign)
(1) Treaty Power (w consent of 2/3 of Senate)
(2) Exec Agreement (no consent of Cong needed)
(3) Recognition of Foreign Govs (sole authority)
(4) Exec Privilege (overridden by substantial gov interest
Supremacy and Commerce Cl interaction
Sup Cl overlaps with Congressional Powers (esp commerce cl). Sup cl gives pre-eminence to US Const, Fed Statutes, and Treaties. Two broad issues:
(1) IF the issue is how to uphold a fed statute two approaches can be used: (a) Does the fed statute fall within one of the express/implied powers of Cong (commerce most problematic)? IF yes statute upheld under congressional power agreement subject to a violation of another part of the Const OR (b) Does the supemacy cl validate the statute?
(2) IF the issue requires you to detemine whether State or Fed gov has the power to act in a particular area, it must first be determined who is acting and what the area of regulation is (fed vs state action).
Federal Action
If it is Fed Act (Congress) there are two issues:
(1) Supremacy Cl–Determine whether the state/fed gov has the authority to regulate in this area. This requires evaluating what it being regulated. Then look at Const, treaties, and laws.
(a) Exclusively Fed–if exclusively fed, fed gov may regulate
(b) Exclusively state–if exclusively regulated by state, fed cant reg (very few areas). Doctrine of FEDERALISM (10th A = state is a sov).
(c) Concurrent–where both regulate Fed is supreme. States cannot contradict but may augment. State may not regulate where fed reg has preempted.
(2) Commerce–determine whether Fed action violates commerce cl.
(a) Foreign commerce–Con has exclusive power to reg.
(b) INTERSTATE COMM.–Cong may regulate if they do not contravene another Const provision. To be within Cong power, a fed law must either (1) reg channels of interstate commerce; (2) reg instrumentalities of interstate commerce and persons and things in interstate commerce; or (3) regulate activities that have a substantial effect on interstate commerce. Cong may even regulate single state activities if the regs are N&P to reg commerce and if there is a close and substantial relationship to or effect on interstate commerce. If Cong attempts to reg noneconomic activity, Fed gov must prove to Ct that the activity affects interstate commerce.
Preemption
State cannot regulate areas preempted by Feds. Test:
(1) Pervasiveness of the Fed Regulatory Scheme, and
(2) Fed occupation of the field necessitated by need for national uniformity, and
(3) the danger of conflict between state laws and administration of the fed program
State Action–Commerce CL
FOREIGN COMM–state cannot tax foreign commerce, but can impose inspection fees that are reasonably related to the cost of inspections.
INTERSTATE COMM–States may regulate interstate comm, but may not discriminate against nor unduly burden interstate comm.
(1) Discriminate against–Balance of interests–state must show an objective sufficient to warrant the legislation, other than protection of in state business.
(2) Undue burden–balance of interests–state must show suff purpose to warrant the effect the legislaiton has on interstate commerce. If there is a less intrusive way to accomplish the purpose, then it is an undue burden.
TAXING INTERSTATE COMM–taxation of commerce is analyzed under the discrimination-undue burden test, with specific reference to these four factors, all of which must be present:
(1) a substantial nexus–state must have suff contact w/ activity attempting to tax
(2) Fair apportionment–state must have rational formula to apportion tax
(3) no Discrim–tax cant be undue burden
(4) fair relationship–must be fair relationship between tax and services rendered by taxing state.
Privileges and Immunities Clauses
There are 2 P&I clauses: (1) the 14th A P&I cl and (2) the Interstate P&I cl of Art 4. 14th A protects attributes of citizenship (rarely tested). Art 4 prevents some discrim by states against non-residents.
Art 4 P&I
non-residents. Only when denial affects a fundamental right (important commercial activities or civil liberties).
Exception: a state law discriminating against non-residents may be valid if the state has a substantial justification for the different treatment. State must show non-residents either cause or are part of the problem it is trying to solve, and that there is no less restrictive means to solve the problem. Corps/aliens not “citizens” for purposes of Art 4 P&I.
