Constitutional Law Flashcards
What are advisory opinions?
Decisions that 1) lack an actual dispute between adverse parties and 2) lack any binding effect on the parties.
How can a plaintiff establish ripeness?
By showing that:
- The issues are fit for judicial decision and
- The plaintiff would suffer substantial hardship in the absence of review.
What are the exceptions to mootness?
- Controversies capable of repetition but that evade review because of their inherently short duration
- Cases where the defendant voluntariliy stops the offending practice but is free to resume it.
- Class actions in which the class representatives controversy has become moot but the claim of at least one other class member is still viable.
Difference between ripeness and mootness?
Ripeness bars consideration of claims before they have been developed; mootness bars their consideration after.
Requirements for standing to assert the rights of others
1) it is difficult for the third party to assert their own rights, or 2) a close relationship exists between the claimant and the third party.
What is the Necessary and Proper Clause?
Congress has the power to make all laws necessary and proper to carry out any of the legislative powers enumerated in Article I, as long as that law does not violate another provision of the constitution.
Spending Power Conditions
Under the Spending Power, Congress can impose conditions of the grant of money to state or local governments. These conditions are valid if they are (1) clearly stated (2) relate to the purpose of the program and (3) are not unduly coercive and (4) do not otherwise violate the constitution.
To be within the commerce clause, a federal law regulating interstate commerce must either:
(1) Regulate the channels of interstate commerce
(2) Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce OR
(3) Regulate activities that have a substantial effect on interstate commerce.
Regulating Intrastate Activity with Commerce Clause:
The Court will uphold the regulation if it can think of a rational basis on which Congress could conclude that the activity in the aggregate substantially affects interstate commerce.
Tenth Amendment Limitation on Commerce Clause:
10th amendment precludes Congress from regulating noneconomic intrastate activity in areas traditionally regulated by state or local governments.
Hierarchy of US Law
- US Constitution prevails over
- Treatises and Federal Statutes (if conflict, last in time prevails), prevails over
- Executive Agreements, prevails over
- State law
Express Preemption
A federal law expressly says taht the states may not adopt laws concerning the subject matter of the federal legislation. Express preemption clauses will be narrowly construed.
Implied Preemption
- Conflict between state and federal law requirements
- State prevents achievement of federal objective
- Field preemption
Presumption against pre-emption
Courts will start with the presumption that the historic state police powers are not to be superseded unless that was the clear and manifest purpose of Congress.
Privileges and immunities clause
Prohibits discrimination by a state against non-residents (corps and aliens are not protected by this clause).
Limitations of Privileges and Immunities clause:
- Only important commercial activities and fundamental rights are protected
- If violated, it will be invalid unless the law is necessary to achieve an important government purpose and there are no less restrictive means available.
Dormant commerce clause
Even where congress has not acted, the Commerce clause restricts state regulation of interstate commerce.
Exceptions to Dormant Commerce Clause:
- Congressional Approval
- State as “market participant” (states many prefer its own citizens when receiving benefits from government programs or dealing with government owned businesses.)
- Favoring Government Performing Traditional Government Functions (more likely to be influenced by legitimate reasons and not state protectionism).
Use Tax
1) Defintion
2) Validity under commerce clause
1) Tax on goods purchased outside the state, but used within it.
2) Valid unless higher than sales tax
Sales Tax
1) Defintion
2) Validity under commerce clause
1) Tax on the sale of goods consummated within the state
2) Generally valid if there is a substantial nexus to the taxing state and the tax is properly apportioned (if more than one state can tax the sale)
Ad Valoreum Tax
1) Defintion
2) Validity under commerce clause
1) Tax on the assessed value of some property
2) Commodities –> valid only if property is no longer in interstate commerce. Instrumentalities –> Valid if instrumentality has “taxable situs” in state and tax is fairly apportioned. Full tax by domicillary state valid unless taxpayer can prove a defined part has acquired taxable situs elsewhere.
State Action Requirement
Because the constitution generally applies only to governmental action, to show a constitutional violation, state action must be shown.
State action can be found in actions of seemingly private individuals who
- perform exclusive public functions or,
- have significant state involvement.
