ConLaw2 Flashcards
FEDERALISM
=Fed law limits on State/Local power
LIST:
I. PREEMPTION (Art.VI)
II. (D)CC
III. P&I OF Art.IV
IV. Limits on: State TAXATION of IC
[PD & P&IS]
PREEMPTION:
+State canNOT TAX /REGULATE FED. Pr /ACTIVITIES w/o CONSENT.
[=>Fed. G’t needNOT comply w/ State pollution law.
-You can’t pay a State tax out of the Fed. treasury.
CA: Can tax Non-Fed Employees /RENTER of FED. lands.]
[Note: Supremacy Clause (like the Gen. Welfare Clause) itself is NOT a SOURCE of Congr’l Power. CA: Yes Ct’s power.]
Supremacy Clause Art.VI: Fed law SUPERSEDES CONFLICTING State /Local law. CA: sets higher stds.
a) Express: in Fed. statute [Preamble]
b) IMPLIED Preemption if:
1) MUTUALLY EXCLUSIVE laws
[impossible to comply simult.]
2) State law IMPEDES a FED. OBJ.
3) clear INTENT to occupy entire FIELD /body of law. [immigr.=>even if complementary law /Compelling SI is irrel.!].
DCC +CA:
=Is the CC reserved to the States to regulate LOCAL INTERESTS. But …:
[2nd to State’s POLICE Power.
Cf. P&I Art.IV]
even absent Fed legislation, States may 1) NOT DISCRIMINATE against ooS ECON. interests [trash] UNLESS NECESSARY (=no LESS burdensome means exist) to achieve an IMPORTANT G’t purpose.
2) & [even if non-Discr.] NOT UNDULY BURDEN IC [trucks] => important LOCAL non-protectionist INTEREST must OUTWEIGH BURDEN on IC.
CA1: CONGRESS’L APPROVAL
[+FED law may discrim. IC]
CA2: MARKET PARTICIPANT
=> State may PREFER own citizens.
“interstate” P&I OF ART.4: A State canNOT … +CA x3:
DIScriminate against ooS CITIZENS RIGHTS w.r.t. an
1) important ECON. ACTIVITY or
2) FUNDAM. rights, UNLESS NECESSARY to achieve IMPORTANT G’t purpose.
[Competitors /Earn LIVELIHOOD (SHRIMP vs. recreat. hunting LIC)]
CA: CORP.+ALIENS: areNOT citizens
Cf. P OR I of 14th AM =wrongA, unless right 2Citizenship involved
[Interstate TRAVEL /VOTE]
State TAXation of IC valid IFF …:
[NO SALES Tax if consummated ooState.
CA: USE tax on Users of Goods bought ooS if:
1) Seller is PRESENT or
2) phys. entered jx. to SOLICIT the sale
–Ad Valorem Pr. tax: based on %Assessed Value
–Occupation Tax: for doing biz i.t.State]
1) NON-DISCRIM. re: IC
2) FAIRLY APPORTIONED &
3) SUBST. NEXUS b/w state INTEREST & taxed ACTIVITY [DPC].
[to execute inspection laws]
=>State canNOT tax ooS BIZ. to help in-state biz. => SS [CA: Hunting LIC].
Cf. Congress can “regulate” by TAX, IF revenue purpose. CA: Tax on Press Only =SS b/c fundam.
FULL FAITH & CREDIT:
A State court must give FF&C to a judgment of the Ct. in another State, if:
1) The Ct. rendering the judgment had jx. over the parties & the SM,
2) the judgment was on the MERITS
3) & FINAL.
Gov’t ACTION +CA:
[under CONST. protection of INDIV. LIBERTIES ]
[15thAM: Congress has power to regulate VOTING procedures in the STATES to eradicate discrim. voting procedures.]
[ALWAYS if: 14thAM+EP+1stAM]
The Protections of the 14th AM apply only to G’t action.
CA: The C. applies to PRIVATE ACTORS only via the broad:
1) 13thAM OR 2) CC [Civil Rights Act]
Cf: EP /14th§5 /15thAM:
areNOT Const. bases to regulate PRIVATE acts BY INDIVIDUALS.
CA: The Constitution applies to PRIVATE conduct if the:
[+Courts canNOT FACILITATE Private DISCR. by ENFORCING racially restrictive covenants] Fact Patterns: If 1stAM discrimination: USUALLY NO facilitation found. CA: If RACE discrim.: YES.
1) Private Party Performs a PUBLIC FUNCTION
[trad. perf. by the G’t] OR
2) G’t FACILITATES PRIVATE DISCR [=encourage /auth. unC. activity:
•leasing to rac. discrim. restaurant
•books 4rac. discrim. private school
CA: NO State Action if:
•$$ 4Private school that fires teacher 4speech.
•Mere REGULATing /TAXing /LICENSing [granting a Monopoly].
Bill of Rights: +CA:
applies directly DIRECTLY to Fed. G’t., but is made applicable to the States through SELECTIVE INCORPORATION via the 14th AM DPC.
[CA: 3rd AM /5th: GRAND jury INDICTMENT / 7th: jury TRIAL in CIVIL cases / 8th: against excessive FINES (CCA: CRUEL&unusual pun.)]
LevelS of SCRUTINY:
1) RB: RATIONALLY Related to any LEGIT G’T PURPOSE. BOP: on P
2) IM: SUBSTANTIALLY related to IMPORTANT G’t purpose BOP: G’t.
MEANS: Important =narrowly tailored, NOT LEAST restrictive way.
3) SS: NECESSARY to achieve a COMPELLING G’t purpose. BOP: G’t
MEANS: Necessary =narrowly TAILORED, LEAST restrictive way.
DUE PROCESS: Applies to:
The DPC of the 14th AM
applies to the FED G’t: via the 5th AM
(by Reverse incorporation into the BilloR)
PROCEDURAL DP of the 14th&5th AM:
whenever G’t Action amounts to a SERIOUS DEPRIVATION of Pr, LIFE, or LIBERTY, a person is entitled to a NOTICE & HEARING.
[ Min. PROCEDURAL SAFEGUARDS, incl. an opportunity to PRESENT OBJ. to an UNbiased DECISION MAKER ]
Deprivation of LIBERTY includes …:
Cf. PROPERTY:
Loss of a RIGHT created by STATUTE /a SIGNIF. FREEDOM provided by the C. [vague crim. statute]
[CA1: Loss of REPUTATION: is not.
CA2: Lawfully adopted law needs no individual hearings to satisfy DP.]
DoPROPERTY: incl. REAS. EXPECTATION to CONTINUED receipt of a BEN. [driver’s LIC! /Tenure]
TAKINGS clause 5/14thAM:
G’t may not TAKE private Pr 4 PUBLIC USE w/o FAIR COMPENSATION
1) TAKING?
2) Is it for PUBLIC USE?
3) JUST COMPENSATION
TAKING
(+ 3x CA => no compens.):
–G’t CONDITIONS on developing Pr: JUSTIFIED if the PUBLIC BENEFIT is PROPORT. to the BURDEN imposed [street lights]. Else it’s a taking.
a) POSSESSORY Taking
=G’t CONFISCATES PHYSICALLY
[publ. easement at beach]
/PHYS. occupies Pr [TV cable] =always a taking.
b) REGULATORY Taking =G’t Regul. leaves NO VIABLE econ. USE.
CA1: Merely Reduces Pr VALUE.
CA2: TEMPOR. DENYING USE: if G’t action is reas. [3mth Moratorium]
CA3: Police Pwr Reason is NOT Eminent Domain.
