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Constitutional Law Flashcards

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1
Q

Article I

A

Legislature: makes laws

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2
Q

Article II

A

Executive: enforces laws

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3
Q

Article III

A

Judiciary: applies laws and determines constitutionality

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4
Q

Bill of Rights

A

ratified to guarantee individual rights against the federal government

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5
Q

Civil Rights

A

13, 14 & 15 amendments that guarantee individual rights against the states

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6
Q

Case or Controversy

A

No Advisory Opinions
1. Ripeness: harm must actually be threatened
2. Mootness: must be real live controversy, not resolved
3. Standing: P must have sake in outcome
injury in fact: not theoretical
Taxpayers/citizens: too remote except for taxing that violates est. clause

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7
Q

Adequate and independent state ground

A

Federal court will not hear appeal from state court if adequate and independent nonfederal grounds support state decision

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8
Q

Abstention of Federal Court

A

if action is already ongoing in state court on unsettled question of state law, federal court will abstain for the state to settle

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9
Q

Political Question

A

court will not decide issue that is not suitable for judicial branch: 1) committed to another branch of government or 2) inherently incapable of resolution: challenges to congressional procedures but will allow production of presidential papers

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10
Q

Sovereign Immunity

A

11th amendment: cannot sue state in federal court without state’s permission by:
1. Waiver: express or structural in statute
2. Exceptions: actions against state officers

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11
Q

Congress Powers

A

Necessary & Proper
Taxing
Spending
Commerce
Property
Miscellaneous

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12
Q

Necessary & Proper Power

A

Congress has the power to make laws necessary and proper for executing any power granted to any branch of federal government
**TIP: The Necessary and Proper Clause standing alone can’t support federal law. It must work in conjunction with another federal power. So, an answer choice that states that a law is supported by the Necessary and Proper Clause (or is valid under Congress’s power to enact legislation necessary and proper) will be incorrect unless another federal power is linked to it in the question.

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13
Q

Taxing & Spending

A
  • May be for any public purpose not prohibited by const.
  • *TIP: The federal government can tax and spend for the general welfare, but Congress can’t directly legislate for the general welfare. So, nonspending regulations can’t be supported by the General Welfare Clause.
  • Conditions: conditions on the grant of money to state or local government and are valid if:
    1) They are clearly stated,
    2) Relate to the purpose of the program
    3) Are not unduly coercive and
    4) Do not otherwise violate the const.
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14
Q

Commerce Clause Power

A
  • Power to regulate all foreign and interstate commerce & with Indian tribes
  • Regulates:
    1) channels
    2) instrumentalities
    3) activities that have a substantial effect
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15
Q

Commerce: Intrastate Activity

A

Regulation upheld if there is a rational basis that the activity substantially affects interstate commerce in the aggregate
- Commercial v. Noncommercial: rule is only valid if the activity is commercial or economic, otherwise if noncommercial the effect will not be aggregate and will be hard to uphold
- 10th Am. Limitation: congress cannot regulate noneconomic intrastate activity in areas traditionally regulated by state or local governments e.g. Congress cannot criminalize intrastate domestic violence against women, even though in the aggregate such violence substantially affects interstate commerce because of the loss of work, travel, and spending by victims.
- Activity v. Inactivity: power only to regulate existing commercial activity, cannot compel activity

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16
Q

Commerce: Discrimination

A

1) Private: congress may prohibit private discrimination in activities that might have a substantial effect on interstate commerce
2) Public: congress can directly regulate under 14th am enforcement power

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17
Q

Property Power

A

can dispose of and make rules for properties of the US, federal takings of private property- eminent domain-must be pursuant to an enumerated power

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18
Q

Citizenship Power

A

Congress:
- May establish uniform rules of naturalization
- Plenary power over aliens
- Exclusion of Aliens: no right to enter and can be refused entry based on political beliefs, but resident aliens get a notice and hearing before deportation
- Naturalization & Denaturalization: exclusive power but cannot take away the citizenship of any citizen without consent

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19
Q

War & Related Powers

A
  • Power to declare war, raise and support armies and provide a navy
  • Economic Regulation: regulations usually upheld to remedy wartime disruptions
  • Military Court & Tribunals: can make rules regarding:
     Judicial Review: to review military cases
     Enemy Civilians and Soldiers: may be tried by military courts, still must have habeas review to aliens detained as enemy combats
     American Soldiers: jurisdiction over all offenses committed by persons who are members of the service
     American Civilians: only if warfare forces shut down federal courts
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20
Q

Investigatory Power

A
  • broad implied power to investigate to secure information for potential legislation or other official action
  • Must be expressly or impliedly authorized by congress
  • Subpoena of Presidential Information: congress can subpoena the president’s personal information to advance a legislative purpose with balancing congress’s interest and the president’s burden
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21
Q

Congress’s Miscellaneous Powers

A

ADMIRALITY POWER: plenary and exclusive unless congress leaves maritime matters to state jurisdiction

POWER TO COIN MONEY& FIX WEIGHTS AND MEASURES: congress has power

PATENT/COPYRIGHT POWER

POSTAL POWER: exclusive postal power, can place reasonable restrictions on use of mail may not deprive citizens the privilege of getting mail

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22
Q

Powers of President

A

Domestic: take Care Clause, appointment & removal, Pardon, veto, executive orders
External Affairs: commit troops, form treaties, executive agreements
Executive Privilege: immunity
Impeachment

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23
Q

Appointment and Removal

A

 Appoints: ambassadors, SC justices and other officers with the advice and consent of senate
 Removal: President can remove executive officers at will and heads of independent agencies but can provide limitations, like good cause.

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24
Q

Take Care Clause

A

Express power and duty to faithfully execute the laws

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25
Q

Inherent Powers

A

1) If express or implied authority from Congress—action likely valid
2) If Congress silent—action valid if it does not impinge on powers of another branch
3) If against Congress’s will—action likely invalid

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26
Q

Pardons

A

may grant pardons for all federal offenses

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27
Q

Veto

A

10 days to veto; if President fails to act in 10 days and:
a. Congress in session = approval
b. Congress out = pocket veto
c. No line item veto

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28
Q

Treaty Power

A

signs treaties with approval of two-thirds of Senate
a. Treaty is on par with other federal laws (“supreme law of land”)
b. Treaties cannot conflict with Constitution

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29
Q

Executive Agreements

A

enforceable if not in conflict with federal law, treaties, or Constitution

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30
Q

Hierarchy of US Law

A
  1. US Constitution
  2. Treaties and Federal Statutes
  3. Executive Agreements
  4. State Law
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31
Q

Executive Privilege

A

Privilege extends to documents and conversations but must yield if court decides information needed in criminal case

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32
Q

Executive Immunity

A

a. President immune from suits for civil damages for actions taken as President
b. Immunity extends to aides exercising discretionary authority of President

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33
Q

Impeachment

A
  • President, VP and all civil officers of US subject to impeachment
  • Grounds: treason, bribery, and high crimes and misdemeanors
  • Majority vote in house is necessary to bring charges, 2/3 vote in Senate to convict and remove from office
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34
Q

Exclusive Federal Powers: Supremacy Clause

A

Most power shared between state and federal gov
Federal law supreme, and conflicting state law is invalid
a. Actual conflict—state law invalid
b. Interference with federal objectives—state law invalid
c. Preemption—no room for state legislation; Congress controls entire field
1) Express preemption—narrowly construed
2) Field (implied) preemption—if federal law comprehensive or a federal agency oversees area, preemption may be found
3) Presumption that historic state police powers not intended to be preempted unless that is the clear and manifest purpose of Congress

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35
Q

Privileges & immunities

A

Article IV
1. Prohibits states from discriminating against citizens of other states with respect to “fundamental” rights (Note: Corporations and aliens are not citizens)
2. Mainly used to prevent substantially unequal treatment regarding commercial activities
3. Substantial justification exception if nonresidents are part of problem and there are no less restrictive means to solve problem
14th Am:
Prohibits states from denying their own citizens rights of national citizenship- corps not citizens

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36
Q

Prohibitions against Retroactive Legislation

A

Contracts Clause:
Prevents substantial impairment of party’s rights under an existing contract. Valid if: serves important gov interest & narrowly tailored. Public contracts subject to stricter scrutiny
Ex post Facto Laws: prohibited: makes criminal an act that was innocent when done, greater punishment, reduces evidence required,
Bills of Attainder: prohibits laws inflicting punishment without a trial by past conduct

37
Q

Levels of Scrutiny

A
  1. rational Basis
  2. Intermediate Scrutiny
  3. Strict Scrutiny
    - Many exam questions ask you about the standard that the Court will use to review governmental regulation. Therefore, you need to know which standard will apply in a particular case (for example, if a fundamental right is involved, strict scrutiny is applied). However, the choices may not name the standard (“strict scrutiny”) but merely state it (“upheld if necessary to a compelling government interest”). Be prepared to recognize the standard by name or definition.
    - DP and EP also test knowledge of what party bears burden of proof
38
Q

Rational Basis

A
  • Regulations that do not affect fundamental rights or involve suspect classifications
  • Most laws reviewed by this standard
  • Upheld if rationally related to a legitimate gov. purpose- very easy to meet
  • Invalid if arbitrary or irrational
  • Burden of Proof: person challenging has burden
  • Not suspect or quasi suspect classification: such as age disability and poverty
39
Q

Intermediate Scrutiny

A
  • Gender and Legitimacy
  • Upheld if substantially related to an important gov. purpose
  • Burden of proof- unclear but cts usually place on gov.
40
Q

Strict Scrutiny

A
  • Fundamental Rights or Suspect Classifications: interstate travel, voting, 1st am/ race, national origin, and alienage
  • Upheld if necessary-least restrictive means-to achieve compelling gov. purpose
  • Difficult to meet, will often be invalidated
  • Language **TIP: The language used to describe strict scrutiny sometimes varies. For bar exam purposes, keep in mind that “narrowly tailored to achieve an overriding government purpose” and “necessary to achieve a compelling government purpose” mean the same thing.
  • Burden of Proof: government
41
Q

Procedural Due Process

A
  1. Two Due Process Clauses: 5th Amendment (federal government); 14th Amendment (states)
  2. Requires fair process/procedure when government acts intentionally or recklessly to deprive a person individually of life, liberty, or property
    a. Both actual bias and serious risk of actual bias unconstitutional
    b. Liberty includes losses of significant freedom of action
    c. Property includes legitimate claims/entitlements to government benefits
    1) Public employment is a property right if claim to entitlement through contract, policy, law, etc.
  3. Balancing test for determining fair process in terms of timing (pre- vs. post-depriva- tion) and scope of hearing. The Court weighs:
    a. Importance of individual right
    b. Value of specific procedural safeguard involved
    c. Governmental interest in fiscal and administrative efficiency
42
Q

Takings

A
  1. If government takes land for public purpose, it must provide just compensation
  2. Public purposes liberally construed
  3. Actual or physical appropriation almost always a taking, even if property taken is small
    a. Exception: Emergencies
  4. Use restrictions (action for inverse condemnation)
    a. Denial of all economic value—taking
    b. Decrease in economic value—generally not a taking if economically viable use remains
    c. Dedications—cannot condition building permits on forced dedication unless:
    1) Government can show legitimate interest, and
    2) Adverse impact of development roughly proportional to owner’s loss
  5. Just compensation—reasonable (fair market) value of property taken at time of taking
43
Q

Substantive Due Process

A
  1. Two Due Process Clauses: 5th Amendment (federal); 14th Amendment (states)
  2. Prohibition against unreasonable laws
  3. Reasonableness test depends on interest involved
    a. Fundamental right (voting, interstate travel, privacy, 1st Amendment rights)— strict scrutiny
    1) Government must prove action is necessary to achieve a compelling government interest
    b. All other interests—rational basis
    1) Challenger must prove action not rationally related to any legitimate government interest
  4. Requires laws to give fair notice of conduct that is forbidden or required
44
Q

Equal Protection

A

. 14th amendment and limited to state action/DP clause of 5th am. has EP component for federal application
. Arises whenever the gov treats people differently from others

Standards
. Strict Scrutiny: fundamental right or suspect classification
. Intermediate Scrutiny: quasi-suspect classification
. Rational Basis: no fundamental right or suspect class

45
Q

EP: Classification

A

Discriminatory intent by government:
1) Law discriminatory on its face
2) Discriminatory in application
3) Discriminatory motive
4) If facially neutral, no discriminatory application, and no discriminatory motive, then rational basis test applies

46
Q

EP: Suspect Classification

A

Race & National Origin, or fundamental right
1) Government must prove action is necessary to achieve a compelling government interest
2) Affirmative action (favoring minorities) invalid unless:
a) Seeking to remedy past discrimination within jurisdiction
3) Race can be a factor considered in admission of students in institutions of higher education to achieve a diverse student body
a) Cannot be a special/weighty factor
4) Alienage— state/local laws on alienage are suspect, except alienage can be considered for state employment positions involving the self-government process (including police officers and primary and secondary schoolteachers)

47
Q

EP: Quasi-suspect Classifications

A

Sex & Legitimacy
1) Government must show discrimination is substantially related to an impor- tant government interest
2) Sex discrimination—exceedingly persuasive justification required
a) Interest must be genuine and not hypothesized

48
Q

EP: Rational Basis

A

. All other classifications use rational basis: age, disability and wealth
. Example: mandatory retirement ages can be est., education is not a fundamental right so there is no denial of EP when wealthier children can afford better schools

49
Q

Abortion

A
  1. Recent Supreme Court ruling—no constitutional right to an abortion
  2. Matter is left to the states to legislate
50
Q

Privacy Rights

A

Include marriage, use of contraceptives, possession of obscene reading material in the home (except child pornography), right to live with extended family, right to educate and raise children
1. Limitations generally subject to strict scrutiny or at least intermediate scrutiny but language in cases not consistent
2. Intimate private, noncommercial sexual contact between fully consenting adults—no legitimate government interest in regulation

51
Q

Voting Rights

A
  1. Short residency requirement (for example, 30 days)—valid
  2. One person, one vote
    a. Congressional elections—almost exact mathematical equality required (a few percentage points may be fatal)
    b. State and local elections—variance not unjustifiably large (16% variance upheld)
  3. Fees—cannot preclude indigent candidates
52
Q

Right to Travel Interstate

A
  1. Durational residency requirements for dispensing benefits ordinarily subject to strict scrutiny (30-day period probably okay; one year invalid)
  2. Distinctions between old and new residents—invalid
53
Q

Freedom of Speech: FOS

A

1st Amendment limits government regulation of private speech

54
Q

FOS: Government Speech

A

1st Amendment inapplicable to government speech
a. Permanent monuments on government property a form of government speech
b. Government funding of private speech—generally must be viewpoint neutral
1) Exception: Government funding of the arts
c. Limitation: Not all speech on government property is government speech
1) Holistic approach to determine government versus private speech

55
Q

FOS: Regulation of Content Based Speech

A

generally prohibited
a. Exceptions: Unprotected categories (see 7., infra)
b. Speech of government employees
1) Official duties—government may punish public employee for unwanted speech made as part of employee’s official duties
2) Private speech of government employee
a) Matter of public concern—balance employee’s right as a citizen to comment against government’s interest as employer in efficient perfor- mance of public service
b) Not a matter of public concern—employer has broad discretion to punish employee’s disruptive speech

56
Q

FOS: Overbreadth & Vagueness

A
  1. Prohibition against substantially more speech than necessary voidable as to affected person for overbreadth
  2. Prohibition including a substantial amount of protected speech compared to its legitimate sweep—void as to everyone
  3. Regulation failing to give reasonable notice of what is prohibited has chilling effect on speech and violates due process
  4. Official cannot have unfettered discretion over speech issues
57
Q

FOS: Scope of Speech

A

Includes freedom to refrain from speaking
a. Mandatory financial support of government speech—no 1st Amendment concerns
b. Mandatory financial support of private speech—protected
c. Speech includes symbolic conduct

58
Q

FOS: Time, Place & Manner

A

a. Public forums (such as, sidewalks and parks) and designated public forums (such as, schoolrooms open for use after school for social events)—regulation will avoid strict scrutiny and be upheld if:
1) Content neutral
2) Narrowly tailored to serve an important government interest
3) Leaves open alternative channels of communication
b. Limited public forums (that is, public property open for expressive activities only on a certain topic) and nonpublic forums (that is, public property not open for expressive activities)—regulation valid if:
1) Viewpoint neutral
2) Reasonably related to a legitimate government purpose

59
Q

FOS: Unprotected Speech

A

Clear & Present Danger of imminent lawless action
Fighting Words
Obscenity
Defamation

60
Q

FOS: Obscenity

A

Test:
a) Appeals to the prurient interest in sex;
b) Portrays sex in a patently offensive way; and
c) Does not have serious literary, political, or scientific value judged from a national standard
- Standard for minors may be different
- Can prohibit pictures of minors engaging in sex that would not be obscene if engaged in by adults
- Zoning ordinances may limit the location of adult entertainment establish- ments if designed to reduce the secondary effects of such businesses (for example, rise in crime or reduction of property values)

61
Q

FOS: Defamation

A

1) Public official or figure—plaintiff must prove actual malice
a) Actual malice = knowledge of falsity or reckless disregard as to truth
2) Private individual suing on matter of public concern—must prove at least negligence
3) Privacy torts—media defendant cannot be sued for publishing a true fact about a public record lawfully obtained

62
Q

FOS: Commercial Speech

A

a. If speech about unlawful activity or untrue or misleading speech—unprotected
b. Speech regarding lawful activity and not false or misleading—regulation valid if it:
1) Serves a substantial government interest
2) Directly advances that interest
3) Is narrowly tailored to serve that interest
c. Complete bans usually invalid

63
Q

FOS: Prior Restraints

A

a. Invalid unless justified by a special societal harm or pursuant to contract
b. Procedural safeguards
1) Standards must be narrowly drawn, reasonable, and definite
2) Injunction must be sought promptly
3) There must be a prompt and final determination of validity of restraint
c. Broadcast media may be more closely regulated than press; cable TV between the two; Internet regulation subject to strict scrutiny if content-based

64
Q

Freedom of Association

A

Electoral Process
Government Employees
Loyalty Oaths
Discolor of Associations
School Sponsorship

65
Q

FOA: Electoral Process

A

sliding scale to judge restrictions on electoral process
a. Severe restriction on 1st Amendment activity must be narrowly tailored to achieve a compelling purpose
b. Reasonable and nondiscriminatory regulations generally valid

66
Q

FOA: Government Employees

A

may be sanctioned for speech undertaken as part of official duties; balancing test determines whether other speech may be sanctioned—right to comment on matter of public concern vs. government interest in efficient and orderly workplace

67
Q

FOA: Loyalty Oaths

A

Federal employees and public officials permissible if not overbroad
Oath to support the Constitution and to oppose illegal overthrow of government okay

68
Q

FOA: Discolor of Associations

A

government benefits/employment=Permissible if relevant to position

69
Q

FOA: School Sponsorship

A

Extracurricular clubs
Can be content based if viewpoint neutral and reasonably related to a legitimate government interest

70
Q

Freedom of Religion

A

Free Exercise
Establishment Clause

71
Q

FOR: Free Exercise

A

a. No punishment of beliefs—total freedom to believe as desired
b. Conduct cannot be punished solely because religious
c. No exclusion from government benefits solely because organization is religious
d. General conduct regulation that incidentally burdens religious practice—gener- ally valid
e. Religious exemptions for religious belief generally not required except:
1) Amish exempt from mandatory secondary education
2) Conscientious objectors who refuse munitions work from unemployment compensation laws requiring applicants to accept any job

72
Q

FOR: Establishment Clause

A

government cannot aid or formally establish a religion
a. Compels neutrality
b. But if not neutral, may still be permitted based on historical tradition/practice and understanding of Founding Fathers
1) Not violated every time a government entity fails to censor religious speech
2) Neutral benefit program valid even if independent choices of recipients leads public money to go to religious organization
3) School-sponsored religious activity invalid (for example, requiring Bible study as part of public school curriculum) but accommodation of religion may be valid (for example, coach’s silent prayer on field after public high school game)

73
Q
A
74
Q

Dormant Commerce Clause

A

Congress may delegate commerce power to states
Absent delegation, states may not intentionally discriminate against interstate commerce
1) Exception: Necessary to achieve an important state interest (that is, no reasonable alternatives available)
2) Exception: State acting as a market participant
a) Might still violate the Privileges & Immunities Clause
b) No downstream restrictions—state cannot control what happens to goods after state sells them
3) Traditional government function

75
Q

Suits

A
  1. The United States may sue states without their consent
  2. States cannot sue the United States without its consent
  3. State can sue state in federal court; Supreme Court has exclusive jurisdiction
76
Q

Federal & State Taxing

A

Fed can tax states if apply to both private and public entities

Cannot commandeer state officials unless strings on grants

State cannot tax federal gov directly- can tax fed employee and contractors

77
Q

State Action Limitation

A
  1. The Constitution limits actions of government, so there must be state (that is, government) action in order to find action unconstitutional
  2. Private action can sometimes be attributed to government:
    a. Traditional and exclusive government function (for example, running a town or election)
    b. Significant state involvement
    1) Official encouragement or use of judicial machinery
    2) Entwinement of state and private actors
    3) But mere regulation, provision of public services, or licensing not enough
78
Q

Dormant Commerce Clause

A

Congress may delegate commerce power to states
Absent delegation, states may not intentionally discriminate against interstate commerce
1) Exception: Necessary to achieve an important state interest (that is, no reasonable alternatives available)
2) Exception: State acting as a market participant
a) Might still violate the Privileges & Immunities Clause
b) No downstream restrictions—state cannot control what happens to goods after state sells them
3) Traditional government function

78
Q

Suits

A
  1. The United States may sue states without their consent
  2. States cannot sue the United States without its consent
  3. State can sue state in federal court; Supreme Court has exclusive jurisdiction
78
Q

Federal & State Taxing

A

Fed can tax states if apply to both private and public entities

Cannot commandeer state officials unless strings on grants

State cannot tax federal gov directly- can tax fed employee and contractors

79
Q

State Action Limitation

A
  1. The Constitution limits actions of government, so there must be state (that is, government) action in order to find action unconstitutional
  2. Private action can sometimes be attributed to government:
    a. Traditional and exclusive government function (for example, running a town or election)
    b. Significant state involvement
    1) Official encouragement or use of judicial machinery
    2) Entwinement of state and private actors
    3) But mere regulation, provision of public services, or licensing not enough
80
Q

Dormant Commerce Clause

A

Congress may delegate commerce power to states
Absent delegation, states may not intentionally discriminate against interstate commerce
1) Exception: Necessary to achieve an important state interest (that is, no reasonable alternatives available)
2) Exception: State acting as a market participant
a) Might still violate the Privileges & Immunities Clause
b) No downstream restrictions—state cannot control what happens to goods after state sells them
3) Traditional government function

80
Q

Suits

A
  1. The United States may sue states without their consent
  2. States cannot sue the United States without its consent
  3. State can sue state in federal court; Supreme Court has exclusive jurisdiction
81
Q

Federal & State Taxing

A

Fed can tax states if apply to both private and public entities

Cannot commandeer state officials unless strings on grants

State cannot tax federal gov directly- can tax fed employee and contractors

82
Q

State Action Limitation

A
  1. The Constitution limits actions of government, so there must be state (that is, government) action in order to find action unconstitutional
  2. Private action can sometimes be attributed to government:
    a. Traditional and exclusive government function (for example, running a town or election)
    b. Significant state involvement
    1) Official encouragement or use of judicial machinery
    2) Entwinement of state and private actors
    3) But mere regulation, provision of public services, or licensing not enough
83
Q

Dormant Commerce Clause

A

Congress may delegate commerce power to states
Absent delegation, states may not intentionally discriminate against interstate commerce
1) Exception: Necessary to achieve an important state interest (that is, no reasonable alternatives available)
2) Exception: State acting as a market participant
a) Might still violate the Privileges & Immunities Clause
b) No downstream restrictions—state cannot control what happens to goods after state sells them
3) Traditional government function

83
Q

Suits

A
  1. The United States may sue states without their consent
  2. States cannot sue the United States without its consent
  3. State can sue state in federal court; Supreme Court has exclusive jurisdiction
83
Q

Federal & State Taxing

A

Fed can tax states if apply to both private and public entities

Cannot commandeer state officials unless strings on grants

State cannot tax federal gov directly- can tax fed employee and contractors

84
Q

State Action Limitation

A
  1. The Constitution limits actions of government, so there must be state (that is, government) action in order to find action unconstitutional
  2. Private action can sometimes be attributed to government:
    a. Traditional and exclusive government function (for example, running a town or election)
    b. Significant state involvement
    1) Official encouragement or use of judicial machinery
    2) Entwinement of state and private actors
    3) But mere regulation, provision of public services, or licensing not enough

Bar Prep (21 decks)

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