Final Concepts to KNow Flashcards
Dole 4 Part Test
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
Types of powers in which the Dole test comes into play
Taxing powers
Spending powers
Dormant Commerce Clause Analysis
- 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
Taxing powers and analysis
All indirect taxes have to be uniformed, if it’s a direct tax then it has to be apportioned
Use Dole 4 part test
Spending powers test
Dole 4 part test, can spend for the general welfare
What would have happened if Marshall interpreted the statute differently?
Marbury wouldn’t have had his commission delivered
What would have happened if Marshall interpreted the constitutional provision differently?
Marbury would have had his commission delivered, judicial review would not have been established
Necessary and Proper Clause Test
Ordinary scrutiny- Rational basis test- must be rationally related to a legitimate governmental interest
Privileges and Immunities Test
Intermediate scrutiny- Must be substantially related
Jackson’s Tripartite Test and the typical outcome of each
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
Standing Elements
(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”
Ordinary Scrutiny
- there must be a legitimate governmental interest involved
- the law itself, or the governmental action, must be rationally connected to the legitimate governmental interest
First Commerce Power Rule and Case
Gibbons v Ogden- states are forbidden from enacting any legislation that would interfere with Congress’s right to regulate commerce among the separate states
Second Commerce Power Rule and Case and years
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
Third Commerce Clause Rule and Case and Years
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
Modern Commerce Clause Rule, Case and Years
(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)
What does Morrison tell us as it relates to the Commerce Clause?
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
What does Wickard tell us?
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.
Commerce Clause Analysis
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
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
What does preemption deal with?
supremacy clause
Types of Preemption
Express Preemption
Implied Preemption (2 types)
Conflict Preemption
Field Preemption
Express Preemption
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.
Implied Preemption definition and 2 types
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
Conflict preemption
occurs when a state law interferes with federal goals
Field Preemption
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.
Treaty power
by the president and 2/3 the senate to ratify
Intermediate scrutiny
substantially related
Strict scrutiny
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
