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Constitutional Law > Final - Constitutional Law 1 > Flashcards

Final - Constitutional Law 1 Flashcards

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1
Q

Pre-Emption: Categories and Types

A
  1. Express Preemption
  2. Implied Preemption
    - Field Preemption
    - Conflict
    - Impedes with Federal Purpose/Objective
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2
Q

Express Preemption

A

Congress stipulates in statute that no states’ law shall be made on the matter.

Question is then one of Scope:
-Look to Legislative History and Statutory Purpose

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3
Q

Conflict Preemption

A

Implied Preemption - State and Federal law are mutually exclusive (both cannot be complied with).

Determining Conflict: Does Federal law set a minimum or maximum?

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4
Q

Impeding Federal Objective Preemption

A

Implied Preemption - Court must ask:

  1. What is the Federal Objective?
  2. Does State law unduly interfere with that objective?

See: Pacific Gas & Electric v. State Energy - No preemption because California law focused on “economics,” while the federal law focused on “safety.” Thus, purposes were not impeded.

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5
Q

Field Preemption

A

Implied Preemption - Government occupies entire field and, thus, need not legislate to prevent states from legislating. Some fields are wholly dominated by the federal government (foreign policy, currency, etc.).

Field Example: Immigration (even if laws are compatible, such as Hines which dealt with legal immigrants and greencards).

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6
Q

Dormant Commerce Clause & Questions

A

State laws that unduly burden interstate commerce are illegal (a quasi-implied-preemption provision).

  1. Does State law burden interstate commerce?
  2. If so, is it discriminatory against out-of-staters?
  3. A. Discriminatory = Presumptively Invalid
  4. A.1. Discriminatory on Its Face
  5. A.2. Facially Neutral Laws: Discriminatory Purpose and Discriminatory Effect
  6. B. Non-Discrimatory = Presumptively Valid
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7
Q

Dormant Commerce Clause - Discriminatory Law?

A
  1. Excludes virtually all, rather than some, out-of-staters.
  2. Imposes costs on out-of-staters that in-staters avoid.
  3. Court “believes” that a law is motivated by a protectionist purpose (like apples).
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8
Q

DCC - Discriminatory on Its Face

A

Creates a distinction between in-staters and out-of-staters in the law itself (Michigan wine case or New Jersey trash). Includes local in staters against non local in-staters (5 mile milk pasteurization case).

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9
Q

DCC - Facially Neutral: Discriminatory Purpose and Effect

A

Laws discriminatory in their purpose or effect. Proof of discriminatory impact is usually enough.

Cases:

  • Apples: Unconstitutional
  • Privately Owned Truck: Unconstitutional
  • State Owned Truck: Constitutional
  • Ban on Plastics/Paper State: Constitutional
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10
Q

DCC - Discriminatory Laws Upheld when:

A

When law serves a LEGITIMATE LOCAL PURPOSE that could not otherwise be served by nondiscriminatory alternative.

Maine’s protection of its fish ecosystem.

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11
Q

DCC - Nondiscriminatory Laws Upheld when:

A

When Balancing Test favors state law.

  • State’s Interest in Regulating vs. Interest in Permitting Flow of Interstate Commerce
  • No Least Restrictive Alternative (Court generally does not inquire into this, however, when law is nondiscriminatory)

Curved Mudguards: Commerce Wins
Trucking Fee: State Wins

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12
Q

Exceptions to Dormant Commerce Clause

A
  1. Congressional Approval

2. Market Participant Exception: State must not be acting as a regulator

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13
Q

Privileges and Immunities Clause & Test

A

Prevents states from discriminating against out-of-stares from activities that are FUNDAMENTAL. Plaintiff wins if either:

  1. Nonresidents are NOT a “peculiar source of evil” at which the law is aimed.
  2. There exists alternative, non-discriminatory means to achieve the legitimate end in question.
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14
Q

Inherent Presidential Authority

A

Zone of Twilight: Youngstown Sheet & Tube

  1. Emergency
  2. Congress has not Negated Power
  • Executive Privilege (Privacy: US v. Nixon)
  • Foreign Policy
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15
Q

Chevron Deference

A
  1. Has Congress spoken to the precise question at issue?
    - -A. If the intent of Congress is clear, then the agency must give effect to congressional intent.
    - -B. If Congress is silent/ambiguous, proceed to step 2.
  2. Is the agency’s answer based on a permissible construction of the statute (reasonable interpretation)?
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16
Q

Agency’s Statutory Interpretation

A
  • Statutory
  • Scientific
  • Economic
  • Policy/Political
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17
Q

Taxing & Spending Powers

Three Notes

A
  • Spend On General Welfare
  • Impose Regulatory and Revenue Taxes
  • Control over Monies given to States with Necessary and Proper Clause (see Sabri, where it was a crime to bribe local officials in a place receiving federal money).
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18
Q

Tax and Spend: Strings on Money

Four Requirements

A
  1. Serves the General Welfare
  2. Condition is Expressly Stated
  3. Condition has some relationship to the purpose of the spending program.
  4. Not Coercive (States have actual choice on condition, see South Dakota v. Dole (1987) and Sebelius (2012)).
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19
Q

Tenth Amendment - Resurgence

A

Tenth Amendment can be used as a tool of Statutory Construction. Then in NY v. US the Court went further:
-Congress may not “commandeer” the legislative process of the states (Take Title Provision in waste management). Accountability being the concern.

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20
Q

Tenth Amendment - The Approaches

A

A. Reminder of Congress’s Enumerated Powers, Not a Restriction

B. Creates Sphere of State Autonomy, Even Where Congress Could Potentially Act

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21
Q

Limits on Tenth Amendment’s Resurgence

A

Affirmative Duty (New York/Printz) vs. Prohibition of State Action (Reno)

New York: Take Title of Waste Provision
Printz: Executive Enforcement of Gun Laws
Reno: Prohibition on Sale of License Info

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22
Q

Commerce Clause & Areas of Authority

Definition & Three Categories

A

Power to Regulate Commerce … Among the Several States (Article I, Section 8). Power over:

  1. Instrumentalities of Interstate Commerce (Products)
  2. Channels of Interstate Commerce (Railroads)
  3. Activities (Interstate, too) having a Substantial Impact on Interstate Commerce
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23
Q

Substantial Effect/Impact on Commerce

A

Regulation is part of a larger regulation of economic activity in which the regulatory scheme could be undercut unless the intrastate activity was regulated.

  • Congress must have a Rational Basis for believing in Effect (Heart of Atlanta Motel)
  • May be Aggregated (see, Wickard concerning wheat), but activity must be economic/commercial in nature (not like Morrison and the civil damages provision).
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24
Q

Privileges & Immunities vs. Dormant Commerce Clause

A

P&IC (Distinctions from DCC):

  • Fundamental Constitutional/Commercial Rights Only
  • Corporations/Aliens Not Included
  • Applies even if State is Market Participant
  • Congress May Not Exempt a Right (Permit State to Discriminate Against Fundamental Right)
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25
Q

Veto Gates

Definition & Four Examples

A

Places in the legislative process where a bill may fail or be amended. (Less than 4% become laws.)

  1. Presentment (Presidential)
  2. Committee (Most Common)
  3. Floor Vote
  4. Reconsideration (Bicameral Presentment)
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26
Q

Statutory Interpretation

Six Principle Methods & Essential Traits

A
  1. Textualism: Ordinary Meaning of Words
  2. Intentionalism: Subjective Intent of Legislature
  3. Purposivism: Subjective Legislative Purpose (Problem to be Fixed)
  4. Legal Process Purposivism: Objective (“Reasonable”) Legislative Purpose
  5. Imaginative Reconstruction: Intent towards an Unconsidered Issue
  6. Dynamic Interpretation: Meaning in Light of Changed Circumstances
27
Q

Justifying Theories - Textualism

A
  1. Constitutional Mandate (Only Text is Law via Legislative Process)
  2. Restrain Courts
  3. Legislative Intent doesn’t Exist (Only Deals)
28
Q

Tools of Statutory Interpretation

A
  • Dictionaries (Esp. Textualists)
  • Trade Usage/Customs (Esp. Textualists)
  • Legislative History (Purpose+Intent)
  • Literary Sources
  • Principle of Lenity (Construction in Favor of Defendant)
  • Subsequent Legislation (Non-Text)
29
Q

Authoritative Interpreter of the Constitution

Three Views

A
  1. Court is Authoritative Interpreter (Marbury)
  2. No Branch: Jefferson & Jackson
  3. Each Branch is Authoritative in Certain Areas (cf. Political Question Doctrine)
30
Q

Judicial Review

A

Court is the authoritative interpreter of the constitution.

-Constitution is highest law and the state courts are bound by the federal court’s proclamations.

31
Q

Justiciability Doctrines

Five Broad Categories

A
  1. Standing
  2. Ripeness/Mootness
  3. Political Question
  4. Advisory Opinions
  5. Declaratory Judgment
32
Q

Justiciability Doctrine: Advisory Opinions

Function & Four Rationales

A

Court is prohibited from giving merely advice or counsel to non-adverse parties or for hypothetical questions.

  • Derived from the “Case/Controversy” Requirement of Article III (Adversarial Relationships)
  • Concern for Separation of Powers
  • Sharpens the Issues
  • Conserves Judicial Resources
33
Q

Justiciability Doctrine: Standing (Overview)

Two Categories & Subparts (3 & 2)

A 
Constitutional Requirements
1. Injury in Fact
2. Causation
3. Redressability
Prudential Requirements
1. No Third Party Standing
2. No Generalized Grievances (Taxpayer & Citizen Suits)
34
Q

Standing: Injury in Fact

Two Requirements, Injunctive Relief, and Examples

A
  1. Concrete Harm
  2. Individualized Harm

Special Rule for Injunctive Relief: Must be subject to similar future injury to himself.

Examples:

  1. Aesthetic or Environmental
  2. Economic
  3. Physical
35
Q

Standing: Causation

Test & Two Examples

A

Defendant’s conduct is fairly traceable to the harm. (Tied to Redressability.)

  • Racist School Tax Credits=No Cause
  • Law allowing power plant=Cause
36
Q

Standing: Redressability

Test

A

Favorable court decision (Remedy) has a substantial likelihood to ameliorate the harm. (If not, merely an “advisory opinion”)
-Related to Causation

37
Q

Standing: Third Party Standing

Three Types Allowed

A

A. Close Relationship
-Doctor/Patient, School/Student, Business/Customer (Bartender Case)
B. Third Party Unable to Sue
C. Overbreadth Doctrine: Freedom of Speech Restrictions

38
Q

Standing: Generalized Grievances (Taxpayer or Citizen Standing)
Rule and Exception (Two Parts)

A

NO STANDING based on being a citizen or on taxpayer status.

EXCEPTION: Establishment Clause Test:

  1. Statute relies on the Taxing & Spending Clause (rather than being an “Incidental Expenditure of Tax Fund”)
  2. Statute violates “specific constitutional limitations” (Establishment Clause of First Amendment)
39
Q

Standing: Associations

A

Hunt v. Washington Apple Test (1977)

  1. Members would have standing to sue in their own right.
  2. Interests the lawsuit protects are germane to the organization’s purpose.
  3. Neither claim nor relief requested require participation of individual members.
40
Q

Justicability Doctrine: Ripeness

Three Part Test

A

Case is too premature for review.

  1. Hardship plaintiff will suffer without pre-enforcement review.
  2. Degree to which the issues are focused and ready for review.
  3. Actual likelihood of enforcement.
41
Q

Justicability Doctrine: Mootness

A

A plaintiff must present a live controversy at all stages of litigation. Examples:

  • Law School & Student
  • Settlement
  • Death

EXCEPTIONS:

  1. Capable of repetition, but evading review.
  2. Collateral Injuries (Wrongful Imprisonment, After Serving)
42
Q

Justicability Doctrine: Political Question Doctrine

Two Examples & Six Part Test (& Case)

A

Political Questions

  • Guarantee Clause (Republican Form of Government)
  • Foreign Policy
  • Congressional Self-Governance

Test from Baker v. Carr (1962):

  1. Textually Committed to Another Branch
  2. Lack of Judicially Discoverable & Manageable Standards
  3. Impossibility of Deciding without an Initial Policy Determination not of a Judicial Nature
  4. Lack of Respect to Coordinate Branches
  5. Unusual Need for Unquestioning Adherence to a Political Decision Already Made
  6. Potentiality of Embarrassment from Multifarious Pronouncements of the Law
43
Q

Commerce Clause - Narrow View (1887-1937)

A
  • Manufacturing/Production (coal mining or sugar refining) is distinct from Commerce (commodities and sales between states).
  • Distinction between Direct and Indirect Effects on Interstate Commerce.

Examples
Distinguished railroad cases on basis of safety and welfare (Minimum Hours = Safety –> Constitutional vs. Pension = Welfare –> Unconstitutional)

44
Q

Civil War Amendments

Three Amendments & Scope

A
  1. Thirteenth Amendment: Prohibits Slavery
  2. Fourteenth Amendment: Due Process & Citizenship
  3. Fifteenth Amendment: Voting Rights
45
Q

Civil War Amendments

Two Essential Questions

A
  1. Can Congress regulate Private Conduct? (In addition to the conduct of the States)
  2. What is the scope of Congress’s power under the amendments (may Congress, independent of the court, interpret these amendments)?
46
Q

Thirteenth Amendment

Clause, Test, and Two Examples

A

Badges and Incidences of Slavery Clause

  • If Congress has a rational basis for finding discrimination based on RACE or ETHNICITY, the Court will likely uphold the law.
  • May regulate private behavior.

Examples:

  1. No Private discrimination in selling/leasing property.
  2. No denying entry of qualified students into school based on race.
47
Q

Fourteenth Amendment

Rule and Two Views

A

To Enforce by Appropriate Legislation

  • Is the law an appropriate measure (under McCullock v. Maryland style) to ENFORCE the amendment?
  • Congress may not regulate Private Behavior.

View 1: Legislative/Nationalist Approach: Congress can expand scope of rights and define meaning of constitutional provisions, so long as Congress doesn’t dilute rights.

View 2: Judicial/Federalist Approach: Congress may only provide remedies for rights recognized by the courts.

48
Q

Line Item Veto

A

Was a violation of the separation of powers. Formalistic approach was taken (Clinton v. City of New York) and such a veto was considered a repeal. As a repeal, Congress needed to follow the procedure created in the Constitution.

49
Q

Executive Privilege

A

Rebuttable presumption of executive privilege to the confidentiality of information.
-Dependent on the need of the information and the nature of the circumstances (Court found EP in criminal case, but not a civil case that wasn’t far along).

50
Q

Agencies

Two Origins, Two Types,

A

Created by:

  1. Statute of Congress
  2. Executive Order of President

Types of Agencies:

  1. Independent Agencies
  2. Executive Branch Agencies
51
Q

Requirement for Delegation

Five Advantages of Delegation

A

Congress give the Agency an “intelligible principle” by which to abide.

  1. Necessity
  2. Efficiency
  3. Avoid Political Implications
  4. Expert Decisions/Regulations
  5. Easier to Pass Regulation vs. Law
52
Q

Notice and Comment Period Rule Making Procedure

Three Steps

A

Informal Rule Process (Not Formal Adjudication)

  1. Publication of Proposed Rule
  2. Opportunity for Public to Comment
  3. Issuance of Final Regulation with Agency Explanation
53
Q

Presidential Control of Agencies

A
  1. Appointment/Removal
  2. Appropriations (Refuse Aid in Negotiations with Congress OR Withhold Money in some cases)
  3. Regulatory Planning and Review (OMB Oversight and OIRA Review)
  4. Executive Orders
54
Q

Power of Appointment

A

Principal Officers: Selected by President + Confirmed by Congress

Inferior Officers: Congress may vest power in President, Heads of Departments, or Courts of Law

Appointment and Removal by Congress

  • Congress may never directly appoint an officer. It still may limit appointment (“for cause” determinations).
  • Congress may ONLY remove an officer by Impeachment.
55
Q

Determining whether an Officer is Inferior

Four Factors

A

The factors outlined in Morrison:

  1. Inferior in Rank/Authority (may be removed by someone higher, even if restricted by “cause”)
  2. Limited Duties (cannot form policy)
  3. Limited Jurisdiction
  4. Limited Tenure
56
Q

Congressional Control of Agencies

A
  1. Congressional Review Act (Agencies have to submit MAJOR legislation for Congressional review, but default approval after 60 days).
  2. Reporting Requirements
  3. Appropriations Legislation
  4. Oversight Hearings
  5. New Legislation (or Amendments)
  6. Fire Alarms: Public Response Methods

Congress may not use the Legislative Veto.

57
Q

Problem with Appropriations Legislation

A

Coordination Problem: Committees that oversee the agency are not the same ones that endow it with funding.

58
Q

Oversight Hearings

Three Function, Two Congressional Powers, & Issue

A

Function: Info gathering, pressuring agencies, holding agencies accountable.

Power of Contempt: Compels Witnesses to Testify (& Power to Subpoena)

Subject to Executive Privilege

59
Q

Fire Alarms - Public Response Mechanisms

A 
Allows Congress to remove themselves from the process and any liability incurred (also, more efficient).
Examples:
1. Citizen Suits
2. Information Statutes (FOIA)
3. Sunshine/Open Door Policies
4. Notice and Comment Rule-making
60
Q

Judicial Control of Agencies

A

Comes at the end of the process (after agency has acted and suit filed). Purposes:

  1. Containment: Ensure Agency abides by Statutory Mandate
  2. Separation of Powers
  3. Protection of Citizens: Standards of Review
61
Q

Standards of Review

Two Tests

A
  1. Arbitrary and Capricious Test (Abuse of Discretion or Otherwise not in Accordance with Law): High Degree of Deference
    - Applies to the Informal Procedures (Notice and Comment)
  2. Substantial Evidence Test: More demanding than A&C Test
    - Applies to the Formal Procedures (Adjudication)
62
Q

Reasoned Decision Making in Agencies

Judicial Review of Policy Decisions

A
  1. Flip-flops must be explained
  2. Alternatives must be considered
  3. Benefits cannot be discounted or dismissed
  4. Decisions, even if based on presidential priorities, CANNOT contravene the statute.
63
Q

Judicial Review of Statutory Interpretation

Two Rules on Deference

A

Interpreting the Scope of an Agency
-No Deference to Agency (FDA)

Interpreting a Rule/Other Aspect of Statute
-Deference to Agency (Chevron 2-Step)

Constitutional Law (3 decks)

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