Final Concepts to KNow

Question 1

Dole 4 Part Test

Answer 1

1) Must be for the general welfare
2) Must have a clear statement of the condition and be unambiguous
3) Rational basis to serve a legitimate governmental interest
4) can’t violate a specific constitutional prohibition

Question 2

Types of powers in which the Dole test comes into play

Answer 2

Taxing powers
Spending powers

Question 3

Dormant Commerce Clause Analysis

Answer 3

• If it is facially discriminatory then it is not upheld
• If it is unclear, then use the Pike Balancing Test- balance the importance of the interests to the state versus the importance of the interests in interstate commerce to the national government

Question 4

Taxing powers and analysis

Answer 4

 All indirect taxes have to be uniformed, if it’s a direct tax then it has to be apportioned
Use Dole 4 part test

Question 5

Spending powers test

Answer 5

Dole 4 part test, can spend for the general welfare

Question 6

What would have happened if Marshall interpreted the statute differently?

Answer 6

Marbury wouldn’t have had his commission delivered

Question 7

What would have happened if Marshall interpreted the constitutional provision differently?

Answer 7

Marbury would have had his commission delivered, judicial review would not have been established

Question 8

Necessary and Proper Clause Test

Answer 8

Ordinary scrutiny- Rational basis test- must be rationally related to a legitimate governmental interest

Question 9

Privileges and Immunities Test

Answer 9

Intermediate scrutiny- Must be substantially related

Question 10

Jackson’s Tripartite Test and the typical outcome of each

Answer 10

President can act with congress either expressly or impliedly- usually always upheld
President can act against congress either expressly or impliedly- usually not upheld
The Twilight Zone- could be something that is arguable within the power of both the president and congress- difficult to determine

Question 11

Standing Elements

Answer 11

(i) Personal injury- Must be an injury in fact to the plaintiff that is concrete and particularized and it must be actual or at least imminent
(ii) Causation- must be a causal connection between the injury and the conduct complained of– injury has to be “fairy traceable” to the challenged action and the defendant
(iii) Redressability- must be “likely,” as opposed to merely speculative, that the injury will be “redressed by a favorable decision”

Question 12

Ordinary Scrutiny

Answer 12

1. there must be a legitimate governmental interest involved
2. the law itself, or the governmental action, must be rationally connected to the legitimate governmental interest

Question 13

First Commerce Power Rule and Case

Answer 13

Gibbons v Ogden- states are forbidden from enacting any legislation that would interfere with Congress’s right to regulate commerce among the separate states

Question 14

Second Commerce Power Rule and Case and years

Answer 14

8) 1895- 1936 RULE: Court said local activity can be reached but only if that activity has a direct effect on interstate commerce no matter how important it is even if it has substantial effect on interstate commerce then the state can’t reach it- Sugar Trust Case- US. Vs. EC Knight

Question 15

Third Commerce Clause Rule and Case and Years

Answer 15

1937- 1995 Rule- In addition to the government being able to reach local activity that has a direct effect on interstate commerce, the government can also reach those things that have a substantial effect on interstate commerce- NLRB vs. Jones and Laughlin Steel

Question 16

Modern Commerce Clause Rule, Case and Years

Answer 16

(1) Rule: 1995- Present: There are now outer limits on the power to regulate interstate commerce. Congress may regulate three types of activity under the commerce clause (Lopez):
o The use of the channels of interstate commerce- highways, railroad tracks, etc. (usually ruling this out in an analysis)
o Regulate and protect the instrumentalities of interstate commerce or persons or things within it- trucks and people that cross a line (usually ruling this out in an analysis)
o Regulate those activities having a substantial effect on interstate commerce (usually analyzing this)

Question 17

What does Morrison tell us as it relates to the Commerce Clause?

Answer 17

To be reached under the commerce clause as something that has a substantial effect on interstate commerce, local activity must be economic in nature- Morrison

Question 18

What does Wickard tell us?

Answer 18

The Court reasoned that Congress could regulate activity within a single state under the Commerce Clause, even if each individual activity had a trivial effect on interstate commerce, as long as the intrastate activity viewed in the aggregate would have a substantial effect on interstate commerce.

Question 19

Commerce Clause Analysis

Answer 19

Is it one of the 3 categories?
If 3rd category, must be economic in nature
Must be activity versus in activity, and if the local activity in the aggregate substantially effects, then it is fine
10th amendment
Can’t be commandeering and forcing a state into a national regulatory scheme

Question 20

Pike Balancing Test

Answer 20

balance the importance of the interests to the state versus the importance of the interests in interstate commerce to the national government

Question 21

What does preemption deal with?

Answer 21

supremacy clause

Question 22

Types of Preemption

Answer 22

Express Preemption
Implied Preemption (2 types)
Conflict Preemption
Field Preemption

Question 23

Express Preemption

Answer 23

A federal law may expressly provide that the states may not adopt laws concerning the subject matter of the federal legislation. Note, however, that an express preemption clause will be narrowly construed.

Question 24

Implied Preemption definition and 2 types

Answer 24

Even if federal law does not expressly prohibit state action, state laws will nevertheless be held impliedly preempted if they actually conflict with federal requirements, they prevent achievement of federal objectives, or Congress has preempted the entire field.

2 types- conflict and field

Question 25

Conflict preemption

Answer 25

occurs when a state law interferes with federal goals

Question 26

Field Preemption

Answer 26

A state or local law may also be found to be preempted if it appears that Congress intended to “occupy” the entire field, thus precluding any state or local regulation. The courts will look at the federal regulatory scheme to deduce Congress’s intent. For example, if the federal laws are comprehensive or a federal agency is created to oversee the field, preemption will often be found.

Question 27

Treaty power

Answer 27

by the president and 2/3 the senate to ratify

Question 28

Intermediate scrutiny

Answer 28

substantially related

Question 29

Strict scrutiny

Answer 29

the end has to be compelling and the means towards the end have to be more than rationally related or substantial they have to be necessary in the sense of essential