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Charleston Law 2L > Constitutional Law midterms > Flashcards

Constitutional Law midterms Flashcards

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1
Q

Can congress regulate activities in resteraunts? What authority?

A

Yes. Ollies BBQ [Katzenbach {owned Ollie’s} v. McClung]

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2
Q

Can congress regulate / enact regulations that prevent racial discrimination in hotels?
If so, why?
If so, case?

A

Yes.

Why = Substantial effects test, this will effect IC. Hotel is likely off of a public highway [Channel of IC] making the Hotel an [Instrumentality] of IC.

Case =This is similar to concepts applied in Ollies BBQ.

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3
Q

Define the 3 tests of authority as related / applied to CC analysis.

A
  1. Channels of IC
  2. Instrumentalities of IC
  3. Substantial effects test
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4
Q

Congress has power where activity that is ____ in character _____ effects IC.

A

Where activity that is ‘economic’ in character, ‘substantially’ effects IC.

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5
Q
  1. CC authority attaches when to instate activities? [Substantial effects test]
  2. If it attaches, what authority?
A
  1. When those instate activities have a ‘substantial’ effect on IC.
  2. Plenary authority when CC attaches at the boarder.
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6
Q

Congress may regulate local activity if that activity exerts a ‘substantial’ economic effect on IC.

What case?

A

Wickard.

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7
Q

Brief summary of facts in Wickard?

A

Wickard was making and consuming his own wheat. The SC argued that this had a ‘substantial economic’ effect on IC.

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8
Q

Whats the big deal with wickard?

A

This case expanded authority under the CC to regulate purely local activity via the ‘substantial economic’ effect test.

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9
Q

What rule did Wickard introduce?

A

Substantial effects test [Still with us today]

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10
Q

[Case?]Congress may regulate the production of homegrown weed because this activity, taken in the aggregate, could have a substantial economic effect on interstate commerce.

A

Raich case. [Gonzalez {AG} v. Raich]

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11
Q

Wickard =
Raich =

Both regulated by what test?

A

Wickard = Wheat
Raich = Weed

Both regulated by ‘Substantial effects’ test.

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11
Q

What’s notable about CJ Scalia’s holding in Raich?

A

He reads the CC more broadly than ever b4, which is unusual for him.

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11
Q

Gonzalez v. Raich is essentially what case all over again in modern times?

A

Wickard. This present case upheld the ‘Substantial economic’ effects test from Wickard.

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11
Q

When does Congress have the power to regulate “stuff?”
1.
2.
3.
[3 sources of CC authority]

A
  1. Channels of IC
  2. Instrumentalities of IC
  3. Substantial effects test [Wickard (wheat) & Raich (weed)]
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12
Q

The _________Doctrine refers to the power of Congress to regulate any activity which, in the aggregate, has a ‘substantial economic effect’ on interstate commerce.

A

Affectation Doctrine

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13
Q

___ challenge: The law as it reads is invalid.
_____ challenge: the law as it is applied is invalid.

A

Facial challenge
As applied challenge

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14
Q

Midterm: According to CJ Scalia, if Congress wants to enact comprehensive regulatory scheme, what do they need?

A

N&P coupled with CC

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15
Q

According to CJ Scalia, what allows congress to penetrate deep into the states?

A

N&P + CC

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16
Q

If Congress wants to regulate activity in-state that is not entirely economic, according CJ _______ they need the N&P + CC.

A

CJ Scalia = N&P + CC to go deep into state after activities not economic

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17
Q

How can congress enact comprehensive regulatory schemes for just about anything?

A

N&P + CC

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18
Q

Congress can regulate commerce activities but they can’t make you engage in it. [T/F]

Case?

A

True.
Sebelius [2012]

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19
Q

If you have broccoli farm in CA, can congress task FDA with sending inspectors to farm to make sure your broccoli is safe? [Regulating local activities]

A

Yes. No doubt since abandonment of EC Knight and upholding of new cases such as Raich (weed) & Wickard. (Wheat)

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20
Q

What is required to amend constitution?

A

2/3 house & senate majority
then 3/4 states {38} to ratify

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21
Q

How many amendments thus far?

A
  1. Only 15 valid.
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22
Q

Outside of amendments & ratification, what is another route for Constitutional amendments?

A

SC Interpretation

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23
Q

Does the preamble create legal rights or powers?

A

No

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24
Q

Article I =
Article 2 =
Article 3 =
Article 4 Sec 3 Clause 2=
Article 5 =
Article 6 =

A
  1. Legislative
  2. Executive
  3. Judicial
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25
Q

What was the Sebelius [2012] case about?

A
  1. Obama care mandates
  2. Not ok under CC authority but ok under tax authority + N&P clause
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26
Q

“the Commerce Clause does not empower Congress to compel individuals to engage in commercial activity.” [Case?]

A

Sebelius [2012]

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27
Q

____: Difficulty inherent with changing the law.

A

Entrenchment

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28
Q

What did Marbuy v. Madison establish?

A

Judicial review

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29
Q

What case established that “The Supreme Court has the authority to review laws/acts to determine compliance with the Constitution.”

A

Marbuy v. Madison

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30
Q

What year was Marbury v. Madison decided?

A

1803

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31
Q

What did Marbury want in his claim?

A

Commission of his position.

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32
Q

What court order did Marbuy seek?

A

Writ of Mandamus “we command”

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33
Q

Writ of mandamus?

A

“We command” - MvM

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34
Q

Who did Marbury have grievence with?

A

Secretary of State [James Madison] who refused to deliver the commission.

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35
Q

What act was invalidated in Marbury v. Madison? Why?

A

Judicial Act of 1789 – You can’t expand SC authority beyond what provided in Article III.

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36
Q

SC usually hears ____ cases. This was a problem in MvM b/c Marbury brought a case for ‘first instance.’

A

Appellate

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37
Q

Where does SC have ‘original J?’

A
  1. Foreign diplomats
  2. Controversy between states
    [Everything else is appellate]
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38
Q

“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have ______ Jurisdiction. “

A

Original

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39
Q

“Any law that conflicts with the Constitution is no law at all.” – Who?

A

Chief Justice Marshall

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40
Q

What is the only way to change constitutional provisions?

A

Ratification of new amendments.

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41
Q

CJ Marshall essentially makes a 2 pronged [text] argument of authority in MvM.

A
  1. Supremacy clause
  2. Oath of office to US
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42
Q

What is CJ Marshalls arguments in MvM?
1. Text
2. Structure
3. Theory
4. Doctrinal

A
  1. Supremacy clause & oath
  2. Judicial branch says what law is.
  3. Compact theory
  4. Judicial review
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43
Q

______ theory: The constitution is a compact among the ppl, who have ultimate authority. Delegates may not exercise authority the ppl have not delegated them.

A

Compact Theory

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44
Q

“State officials are bound by orders of the Supreme Court based on its interpretation of the US Constitution.”

[This includes old cases]

A

Cooper v. Aaron

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45
Q

What previous case did the SC say applied to Arkansas?

A

Brown v. Bd of Education

46
Q

“Congress has the constitutional power to charter the Bank of the US. This power is derived from the Constitution’s grant to Congress of power to tax and spend for general welfare.” [Case?]

A

McCulloch v. Maryland. This express power [tax + spend] is coupled with N&P to charter the national bank.

47
Q

Can congress create a bank of the US? How?

A

Yes.
1. Express power = tax & spend for general welfare
+
2. N&P Clause

48
Q
  1. In 1818, why did Maryland despise the US bank?
  2. What did Maryland do?
  3. Prob w/ Maryland actions?
A
  1. Competition.
  2. Taxed it
  3. State can’t tax union
49
Q

Who delivered opinion of the Court in both Marbury v. Madison [1803] and McCulloch v. Maryland? [1818]

A

Chief Justice Marshall

50
Q

According to CJM, in McCulloch v. Maryland [1818], N&P allows congress to make all laws that are…

A

Useful or convenient to carrying out express powers. Later reaffirmed in Comstock. [2010]

51
Q

Maryland in McCulloch v. Maryland [1818] said N&P meant what?

A

Congress can make only those laws that are ‘absolutely necessary.’

52
Q

In additional to express powers, congress has implied powers according to what case?

A

McCulloch v. Maryland [1818]

53
Q

“It is a Constitution we are expounding.” [1818]

A

McCulloch v. Maryland [CJ Marshall]

54
Q

Why does N&P clause -according to CJM- represent a grant, not a limit, on Federal power?

A

Structure argument. Its located in the Express powers of Article 1 Section 8.

55
Q

Sex Offender case?

A

U.S. v. Comstock [2010]

56
Q
A
57
Q

Where did authority come from in Comstock?

A

N&P Clause [linked to] Implied or Enumerated power, reaffirming CJM holding in McCulloch v. Maryland.

58
Q

Who delivered the holding [governs on midterm] for U.S. v. Comstock? [2010]

A

CJ Breyer

59
Q

What is CJ Breyer’s test in 2010?

A

N&P [rational link] to an express or implied power.

Ex: N&P + CC

60
Q

The Necessary and Proper Clause confers expansive power on Congress to enact legislation that is ____ or ____.

A

Convenient or Useful. [McCulloch v. Maryland] and reaffirmed in US v. Comstock.

61
Q

If you have an ambitious regulatory agenda, what powers do you rely on?

A

Section 8 power + N&P Clause. [Allows for anything that is useful or convenient]

62
Q

N&P, when linked to Sec 8, allows for anything that is ‘useful or convenient.’

[What cases?]

A
  1. McCulloch v. Maryland [1803]
  2. Reaffirmed US v. Comstock [2010]
63
Q

What is the navigation case?

A

Gibbons v. Ogden [1824]

64
Q

If a state and Congress pass conflicting laws regulating interstate commerce, the federal law governs pursuant to Congress’s constitutional grant of power to regulate interstate commerce. [Case?]

A

Gibbons v. Ogden [1824]

65
Q

Gibbons = __ License
Ogden = __ License

A

G = FED
O =NY

66
Q

Gibbons had a ___ license.

A

Gibbons = Federal license

67
Q

“The word commerce includes traffic, intercourse, and navigation, as well as commodities associated with interstate commerce. “

A

Gibbons v. Ogden [1824]

68
Q

[GvO] In 1780s, why did framers enact CC?

A

To prevent states from looking inward & drafting legislation that would stint the budding, national economy.

69
Q

Consequences if Ogden had prevailed in his COA?

A

Students today travel to CSOL from out of state might not be here.

70
Q

Ogden had the ___ license.

A

Ogden = State license

71
Q
  1. Ogden claimed what?
  2. CJM response?
A
  1. That passenger [ferry] service is not commercial in nature.
  2. Commerce is “every species of commercial intercourse.”
72
Q

Commerce “is every species of commercial intercourse.” This includes passenger services on water.

A

CJM in Gibbons v. Ogden. [1824]

73
Q

What’s the problem with the [overturned] EC Knight case? [1895]

A

It said congress can’t regulate in state manufacturing. This was overturned by Wickard [1942] and again in Raich. [2007]

74
Q

EC Knight in 1895, after CJM reign said Congress can’t reg. in state activity. This held until when?

A

1942, Wickard. Again in 2007, Raich.

75
Q

Who has police power in the US? [Generally speaking.]

A

The States

76
Q

Where do FEDs have ‘limited’ police powers?
1.
2.

A
  1. DC [Sec 8, Clause 17]
  2. Fed lands Art 4 Sec 3 Cl 2
77
Q

DC police power authority?

A

Article 1 Sec 8 Clause 17

78
Q

FED land police power?

A

Art 4 Sec 3 Clause 2

79
Q

FED land is what percentage?

A

27%

80
Q

Narrow interpretation of FED police power v. Broad?

A
  1. DC & FED lands only
  2. CC + N&P or any Express power + N&P
81
Q

____ v. _____ [1903] held that “The trafficking of lottery tickets across state lines constitutes interstate commerce that may be prohibited entirely by Congress under the Commerce Clause of the Constitution.”

A

Champion v. Ames

82
Q

If it attaches at the state line, it is plenary authority without limit. Case?

A

Champion v. Ames [1903]

83
Q

___ ____ Doctrine: All legislative powers vested in Congress of the US. [3 letter agencies therefore shouldn’t legislate. Different in reality.]

A

Non-Delegation Doctrine

84
Q

What happened in the RR case in texas?

A

Congress enacted legislation to protect RR rates / travelers as related to IC. [Shreveport RR Texas]

85
Q

What is unique about CJ Charles Evans Hughes?

A
  1. x2 CJ of SC
  2. NY Governor
  3. Ran for POTUS
  4. Held SOS
86
Q

The Interstate Commerce Commission did what to Texas RR?

A

Regulated unfair rates and practices to protect IC.

87
Q

Texas argument in Shreveport?

A

Internal state matters protected by 10 amendment. Can’t regulate if not IC commerce.

88
Q

CJ in the shreveport case?

A

Charles Evan Hughes

89
Q

How did CJ Hughes respond to Texas 10 amendment argument?

A

Rejected. Congress can regulate all maters that effect IC.

90
Q

6 areas that FDR said the SC had been wrong [1933]

A
  1. 10 Amendment does not say what Congress can’t do.
  2. Direct/Indirect test made up by SC

3&4. Congress CAN tax to incentivize / de-incentivize

  1. Legislative authority CAN be delegated
  2. Congress can interfere with K formation [Liberty of K]
91
Q

FDR Summary:
1. Justices who had invalidated ND legislation known as?

  1. Dissenters known as?
A
  1. Four horsemen
  2. Three muskateers
92
Q

“Congress may regulate labor relations under its Commerce Clause power because labor relations have such a close and substantial relationship to interstate commerce.” [Case?]

A

Jones & Laughlin Steel

93
Q

‘Jones’ steel rejects the Indirect /Direct test and says that congress can regulate labor relations why?

A

Commerce Clause b/c labor relations have substantial effect on IC.

94
Q

What case obliterated the direct/indirect effects test of daggenhart?

A

Darby

95
Q

Under Darby, instate economic activity subject to CC when?

A

When it substantially effects IC.

96
Q

Explain Darby.

A
  1. Congress passed FLSA
  2. Darby lumber rejects act
  3. FLSA required min. wage & overtime pay.
  4. Where CC attaches, plenary authority to regulate more than just shipment of lumber. [Champion v. Ames]
97
Q

What cases apply [N&P + Express powers] to get the job done?

A
  1. McCulloch v. Maryland, CJM, 1818
  2. US v. Comstock, CJB, 2010
98
Q

What cases apply [SE Test] to get at local, instate activities? [Overturning EC Knight which said you couldn’t]

A
  1. Filburn v. Wickard, 1942 [Wheat]
  2. Gonzalez v. Raich, 2007 [Weed]
99
Q

Congress may regulate the discriminatory policies of restaurants through Title II of the Civil Rights Act if those policies have a substantial effect on interstate commerce. [Case?]

A

Katzenbach v. McClung

100
Q

Katzenbach v. McClung demonstrated what?

A

Congress can regulate discriminatory actions of resteraunts because they have substantial effect on IC.

101
Q

What case said that Congress can make rules about how restaurants treat people if the restaurant’s actions affect interstate commerce.

A

Katzenbach v. McClung

102
Q

The McClungs, who owned a restaurant in Alabama, didn’t let black people eat in their dining area. [Case?]

A

Katzenback v. McClung

103
Q

What case allows you to argue that congress can regulate violations of civil rights in the workplace, IE: a local resteraunt in Conway?

A

Katzenback v. McClung

104
Q

2 cases from 1964 that provide:
1. Congress can regulate civil rights violations in rest.

  1. Congress can regulate civil rights violations in hotels.
A
  1. Katzenbach v. McClung
  2. HOA Motel v. US
105
Q

What case said congress can regulate CR violations in hotels?

A

HOA motel v. US [1964]

106
Q

What case provided that congress can regulate labor standards FLSA in the workplace?

A

U.S. v. Darby

107
Q

Name case:
1. FLSA violations
2. CR Violations
3. Local activities
4. Comp. Reg. Agendas
5. Judicial review

A
  1. U.S. v. Darby
  2. HOA & Katzenbach v. McClung
  3. Raich & Wickard
  4. Comstock & McCulloch
  5. Marbuy v. Madison
108
Q

May Congress prohibit the shipment of goods in interstate commerce made by workers in unfair employment conditions?

A

Yes, as demonstrated in U.S. v. Darby.

109
Q

What case did U.S. v. Darby overrule?

A

Hammer v. Dagenhart which said congress could only regulate articles of commerce, not the conditions under which created.

110
Q

Where does Federal criminal law power come from?

A

CC + NP

111
Q

The trafficking of lottery tickets across state lines constitutes interstate commerce that may be prohibited entirely by Congress under the Commerce Clause of the Constitution.

A

Champion v. Ames

112
Q

CJM iconic holding in McCulloch v. Maryland?

A

“Let the end be legitimate, let it be within the scope of the Constitution, by all app. mean, plainly adapted to that end, which are not prohibited but are in spirit and letter of the Constitution, are Constitutional.”

113
Q
  1. Let the end by legitimate
  2. Let it be within the scope of the Constitution
  3. By all appropriate means
  4. Plainly adapted to that end
  5. Not prohibited but consistent with the letter and spirit of the Constitution, are constitutional.
A

Chief Justice Marshall
McCulloch v. Maryland

114
Q

Can you quote Marshall in McCulloch v. Maryland?

A

“Let the end be legitimate, let it be within the scope of the constitution, by all appropriate means, plainly adapted to that end, not prohibited but in spirit and letter of the Constitution, are Constitutional.”

115
Q

Merkel’s favorite Marshall quote?

A
  1. Let the end be legitimate
  2. Let it be w/ the scope of the Const.
  3. and by all app. means
  4. Plainly adapted to that end
  5. not prohibited
  6. but in the letter and spirit of the Const.
  7. Is Constitutional.

Charleston Law 2L (23 decks)

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