Final Flashcards
Executive Power - Is an adviser’s advice privileged ?
Yes - except in a criminal prosecution
Can President remove officers?
Yes - unless statute or needs to be independent - like
an independent council might not be able to move b/c although it is an executive position, independence from president is necessary in order to properly function
Can Congress restrict the President’s Foreign Policy Powers?
Usually no bc have to speak as one nation
Executive Power - Executive Orders
They are Constitutional and can be used basically the same as treaties w/o congressional approval
Executive Power - War Powers
Can the president send troops to fight w/o congressional approval?
(Never been answered by the cts )
- If we commit troops, he has to notify + update congress after a certain period of time w/o authorization to send
- The congress can remove the troops
Checks on the President -. Can you criminally indict a sitting President?
i. Not decided
ii. Nobody is above the law vs. Removal is only by Impeachment + Then can indict as a citizen
iii. High ranking officials can be criminally indicted
President w/ respect to civil cases
i. President has absolute immunity from civil suits
ii. It would impede his job if dragged into court for every decision
iii. Would also make him too cautious to do his job
iv. Most other officials have Qualified Immunity - shielded unless violation is a clearly established statutory or constitutional right that a “reasonable” person would recognize
Impeachment Process
a. House - issues orders
b. Senate - tries the case
c. Chief Justice sits on the case
- Need 2/3 to impeach
Supremacy Clause - Express or implied
Preemption of state law?
a. Federal Law is the law of the land if it conflicts with state law
b. Congress can pre-empt state / local law
c. Express is the simplest way for congress to preempt local laws
“State and local laws are preempted by statute”
d. Implied - no provision of preemption
i. “Field Preemption” - the federal government has so comprehensively occupied the field, that there is no room for state regulation (immigration)
ii. Conflicts in Preemption - it is impossible to comply with both the state and the federal at the same time - fed wins
iii. State law impedes the federal objective w/ a state regulation that unduly interferes w/ achieving this goal
What is the the Dormant Commerce Clause?
When congress has power to act but just has not - state laws that unduly burden interstate commerce will be struck down
Dormant Commerce Clause?
Protectionist Laws - State and Local Laws that discriminate against out-of-staters
Strict Scrutiny
Need a compelling government interest + necessary to achieve that goal
2 Part Analysis: Dormant Commerce Clause
a. Does it discriminate?
b. How is it discriminatory?
Dormant Commerce Clause Facially Discriminatory =
strict scrutiny
Dormant Commerce Clause Facially Neutral ( “Pike Test” )
Discriminatory purpose ~or ~ discriminatory impact;
-> If [both usually shot down]
Not Discriminatory Impact then - Does its burden clearly outweigh its benefit (balancing test)? If not, then upheld
Dormant CC Exceptions (2)
i. Congress approves the state law
- If congress chooses to use its power of commerce clause they can allow it
ii. Market Participation
- States can favor their own citizens when the government is in business owned by the state (cement case)
- But the state can NOT regulate downstream
“Rational basis”
Any law that is rationally related to legitimate government goal
14th Amendment : applies to …?
State Government - “ NO state shall…”
- To apply civil liberties to State + Local governments
Privileges + Immunities Clause Article IV, Section 2 for the Dormant Commerce Clause – protects?
Fundamental rights of individual citizens and restrains state efforts to discriminate against out-of-state citizens
- right to earn a living + right to travel **
a. Has to do with states discrimination against citizens of other states
b. Based on certain fundamental rights
- right to earn a living + right to travel **
Application of the Bill of Rights to the states – does it?
Bill of rights only directly applies to the fed gov
Applies to the states by way of the Due Process Clause - “Liberty” - 14th Amend which Incorporates the bill of rights to apply to the states
14th Amendment Privileges + Immunities Clause
Virtually useless -
National right to travel :
welcome in new state
4 Amendments that have never been incorporated
- 3rd quartering soldiers
- 5th right to grand jury in all criminal complaints
- 7th right to jury trial in civil complaints
- 8th prohibition against excessive fines
14th Amend -Equal Protection Clause is Triggered when?
- there is unequal treatment by the laws
Does the bill of rights affect Private Conduct ?
3 exceptions ?
No - except
- Statute enacted under some power of congress
- Public function - doing something that is traditionally a gov’t function
- Entanglement - when the state authorizes or encourages private conduct that if it were a state action would violate the Constitution (peremptory challenges)
What is Substantive Due Process ?
When the court going to use its own power to protect “Liberty” rights
Contracts Clause - Art 1 § 10
States can interfere for valid police power purposes using rational relationship test - upheld
the Takings Clause 5th Amendment
- 5th amendment applied the Takings Clause to the fed Gov’t
- 14th amendment = to the states b/c of incorporation of the 5th
- RULE = Gov’t can take Property for “ Public Purpose “ w/ just compensation
Takings Clause Analysis: 3 Step + compensation
- Is there a taking - (possessory or regulatory)
- If there is still an economically viable use, then NO Taking - Is it property that was taken?
- Is it for “Public Use?”
- What is just compensation = loss to the owner
Equal Protection Clause 14th Amendment - what type of scrutiny?
Default rule is Rational Basis Review = rationally related to a legitimate gov’t interest
Equal Protection Clause - 4 suspect classifications that get heightened scrutiny
Suspect Class Rules
i. Immutable characteristics
ii. History of discrimination
iii. People who can’t protect themselves through the political process
iv. Is it something that they need to treat someone different for?
Equal Protection Clause: Race, National Origin, Resident Aliens
Strict Scrutiny = Compelling gov’t interest + Necessary to accomplish that goal so that there is no other less restrictive means
Equal Protection Clause: (Quasi suspect class) = Gender, non-marital children
Intermediate Scrutiny = Substantially related to an “Important” gov’t interest and means to accomplish that goal have to be “substantially related” to the purpose
– shot down when stereotype laws
Facially Neutral Law (Equal Protection Issue) - must show 2 things
Must show Purpose + Impact
- Prove Purpose:
i. Pattern of application
ii. Historical record of actions
iii. Sequence of events
iv. Departure from normal application procedure
v. Legislative history - Prove Impact = the results are discriminatory
Is Pregnancy a gender classification?
No it is NOT a gender classification and gets Rational Basis review
Scrutiny for Alien Classifications under Equal Protection Clause ?
- Strict Scrutiny Used for State and local Gov’t
2. Federal Gov’t = Rational Basis - b/c their so persuasive in the area of foreign affairs and immigration
Alien Classification - 2 exceptions to strict scrutiny state and local
- Self Government
- Democratic Process
[only citizens can vote, be juror, run for political office]
Non-Marital Children - level of scrutiny?
Intermediate Scrutiny - Substantially related to an “Important” gov’t interest and means to accomplish that goal have to be “substantially related” to the purpose
Non-Rational Basis:
Race, National Origin, Gender, Alienage, Child Legitimacy
Rational Basis:
- Age - Not a weak minority, can be a rational basis for treating people different by age
- Disability
- Wealth / Poverty - right to abortion but not to have the government to pay for it
- Sexual Orientation
Substantive Due Process Rights - where found ? what word ? what scrutiny ?
- 5th / 14th
- Focusing on the word “Liberty”
- Strict Scrutiny
How does an Equal Protection violation occur?
If the Right is given Unequally then it’s a violation
Most common Equal Protection rights violated?
Right to Vote or Right to Travel
Fundamental Rights - RULE: What are they and where to they come from?
a. Choices that are the most INTIMATE personal choices
b. Privacy, Autonomy, and Personal choice
c. Deeply Rooted in History + Tradition
Fundamental Family Autonomy Rights- Strict Scrutiny
- Marry
- Custody of One’s Children
- Keep Family Together
- Parents to Control the Upbringing of Their Children
Fundamental Reproductive Autonomy
- Right to Procreate
- Purchase and Use Contraceptives
- Abortion - Protect the health of the mother + Protecting the potential life
Regulation of Abortion / TEST:
i. Pre-Viability = Right to Choose
ii. Post Viability = no right
State has compelling interest in Health of Fetus and woman - can regulate as long as does not create and UNDUE BURDEN (Pre- viability) on Right to Choose
Privileges and Immunities Clause of 14th Amendment
vs
Article 4 th Amendment Priv Immunities
a. 14th = right to travel
b. Art 4 = right to earn a living, discrimination against out of staters
Right to Travel 14th Amend 3 Rights
a. Right to travel through
b. Be welcome guest expressly protected in privileges and immunity clause
c. Move and become a Resident -
ex: duration requirements are NOT allowed except for Voting + Before divorce
Substantive Due Process Analysis
Apply Strict Scrutiny For:
• Get MARRIED, PROCREATE, ABORT in PRIVACY, and then stop SPEAKING.
• Or actually become PARENTS, fight over CUSTODY, TRAVEL to another state, and move in with GRANDMA.
A. Marriage B. Procreation C. Abortion D. Privacy E. Speech F. Parenting/Custody G. Travel H. Extended family same house
Gay Rights - adoption // Illegal Children school : scrutiny ?
Rational w bite - no rational basis so it will fail
- traditionally a disparaged class
