Constitutional Law Flashcards
Legislative Power
- Collect taxes
- Borrow money on credit
- Declare war
- Raise and support the army
- Necessary and proper
Commerce Clause
Congress must show:
- the regulated activity is economic in nature
- the regulated activity has a substantial effect on interstate commerce
10th Amendment
Prevents congress from interfering with the legislative process of the states by directly compelling them to enact and enforce a federal regulatory scheme
Taxing Power
A tax is valid if it raises revenue or it was intended to raise revenue
Conditions on the Receipt of Federal Funds
Valid if:
- Spending serves the general welfare
- condition is unambiguous
- condition relates to the federal program
- state is not required to undertake unconstitutional action
- amount in question is not so great as to be considered coercive
Congressional Power
- Declare war
- Raise and support armies
- Investigatory Power
- Eminent domain
- Bankruptcy power
- Speech and debate clause
- Ban slavery (13th)
- 14th equal protections and due process
- 15th voting rights
Executive Powers
- Appointment
- Removal (good cause needed to remove executive officers with fixed terms or those with judicial functions)
- Veto
- Pardon
- Obligation to Report (from time to time)
- Military
- Treaty
- Executive agreements
Appointment Power
Congress cannot appoint members to any agency or commission with administrative power
Appropriations Power
When congress by legislative act explicitly directs the present to spend money, the president must do so.
Hierarchy of Laws
- Constitution
- Acts of Congress and Treaties (Last in time prevails)
- Executive Agreements and Executive Orders
- State Law
Supremacy Clause
Prevents the states from regulating the activities of agents or instrumentalities of the federal gov. if the regulation will interfere with gov’s ability to carry out federal functions
Immunity from Fed. Tax
Applies to:
- Unique state activities OR
- Essential gov. functions
State Engaging in Proprietary Business
If reg. discriminates between in-state and out-of-state actors, then the state must show that:
- reg. serves a compelling state interest AND
- reg. is narrowly tailored to serve that interest
Ex Post Facto Laws
- makes criminal an act that was not a crime when committed
- prescribes greater punishment for a crime after its commission
- decreases the amount of evidence required for conviction OR
- extends the statute of limitations for a crime
Establishment Clause
No religious preference then apply Lemon Test:
- the statute must have a secular legislative purpose
- the primary purpose must neither advance nor inhibit religion AND
- the statute must not foster excessive gov entanglement with religion
Conduct Regulation
If an incidental burden is placed on speech, then the law is allowable if:
- the reg. furthers an important or substantial gov. interest that is unrelated to the suppression of free expression AND
- the incidental restriction on speech is no greater than is essential to the furtherance of that interest
Unprotected Speech
- advocates violence
- fighting words
- hostile audience speech
- obscene speech
- defamatory speech
Obscene Speech
- the average person, applying contemporary community standards, would find the work as a whole deals with sex
- the work describes sex offensively
- the work lacks serious literary, artistic, political, or scientific value
Defamatory Speech
- Public Person: P must prove actual malice, i.e. knowledge of the falsity or reckless disregard of the truth or falsity of the statement
- Private Person: P needs to prove negligence about the truth or falsity of the statement
Commercial Speech
Protected if it is not false or deceptive and doesn’t related to an unlawful activity. Reg must satisfy the following:
- Serve a substantial gov interest
- must directly advance the substantial gov. interest AND
- must not be more extensive than necessary
Speech by Public Employees
The gov. has a legit interest in regulating the speech of employees to promote efficiency of its public services.
- Did the employee speak as a citizen
- Did the employee speak on a matter of public concern
- Balance employee’s interest against employer’s interest in promoting public efficiency
Time, Place, and Manner Restrictions
Reg must:
- be content-neutral on subject matter and viewpoint
- be narrowly tailored to serve a significant gov interest
- leave alternative channels of communication open
Membership in Political Organization
A public employee can be denied employment based on membership in a political organization if the position is a high level policy making position
Advisory Opinions
Cannot be given by the supreme court or fed courts, but can be given by state courts
Declaratory Judgment
Can be given by the federal court to determine the legality of proposed conduct without awarding damages or injunctive relief
RAMPS
Ripeness Abstention and adequate grounds Mootness Political Question Standing
Abstenation
- Undecided issues of state law
- State law or regulation is unclear
- State criminal proceedings are pending
Standing
- Injury in fact
- Causation
- Redressability
Grounds for Certiorari
- conflict between different fed. courts of appeal
- conflicts between the highest courts of two states
- conflicts between the highest court in a state and a federal court of appeal
- state courts or fed court of appeals involving important, unresolved issues.
Dormant Commerce Clause
If reg. discriminates between in-state and out-of-state actors, then the state must show that:
- reg. serves a compelling state interest AND
- reg. is narrowly tailored to serve that interest
Takings
A reg that denies the owner all reasonable economic use of the land
Taxpayer Spending
Generally, taxpayers lack standing because their interest is too remote. However, A fed. taxpayer has standing to make an establishment clause challenge to an expenditure enacted under the Taxing and Spending power.
Third-Party Standing
- Special relationship between the claimant and third-party
2. Third-party is unable or finds it difficult to bring suit on his own behalf
Associational Standing
- members would otherwise have standing to sue
- interest asserted is germane to association’s purpose AND
- neither the claim asserted nor the relief requested would require participation by the individual members in the lawsuit
