MBE Flashcards
State taxation of out of businesses
Discriminatory –> invalid under commerce clause unless congressional approval
Nondiscriminatory –>
(1) Substantial nexus: business avails itself of privilege of doing business in state
(2) Fair apportionment: rational formula (also note if unfairly apportioned can violate EPC)
(3) fair relationship: tax must be fairly related to services or benefits provided by state
Validity of use tax under commerce clause
Use tax: tax on goods purchased outside of state, but used within
Constitutionality: valid unless higher than sales tax
Ad Valorem Tax
Tax on assessed value of some property
Validity:
- commodities: valid only if property no longer in interstate commerce
- Instrumentalities: valid if instrumentality has “taxable situs” in state and tax is fairly apportioned
Privilege, License, Franchise, and Occupational Tax is valid when..
Tax placed on some activity (doing biz)
Valid if: (1) substantial nexus (2) fairly apportioned (3) fairly related (4) non-discriminatory
Congress power to regulate interstate commerce
Power to regulate (i) channels (2) instrumentalities (3) any activity that substantially affects interstate commerce
Defamation
P must prove: (1) false defamatory statement (tends to harm rep of another)
(2) of and concerning P made by D;
(3) publication by D to 3rd party; AND
(4) Damages
Public official or Public figure –> P must prove actual malice (recklessness or knowledge of falsity)
Private citizen speaking on matter of public concern: negligence
A federal statute bans trade with any foreign country if the United States does not recognize the government of that country. For many years, the United States refused to recognize a particular country’s government because it deemed the government repressive. The President recently extended diplomatic recognition to the country, but Congress passed a second statute withdrawing that recognition.
A US company has sued the appropriate federal agency, seeking to enjoin enforcement of the second statute. The government has moved to dismiss the action on the ground that it involves a nonjusticiable political question.
Should the court grant the motion?
Diplomatic recognition of a foreign government is a power reserved to the executive branch under the Constitution. Additionally, courts lack judicially discoverable and manageable standards to resolve issues concerning diplomatic recognition (Choice D). But in Zivotofsky v. Clinton, the Supreme Court held that courts have the power to determine interbranch disputes involving foreign affairs when they concern the validity of a federal statute.
Here, the company sued the federal agency to enjoin enforcement of the second statute passed by Congress. Since this action concerns the validity of a federal statute, the political-question doctrine does not apply. Therefore, the court should deny the government’s motion to dismiss the action
when determining whether substantial effect on interstate commerce for commerce
the activities are economic (ie, commercial) in nature (if so, a substantial effect is presumed)
the regulation has a jurisdictional element that limits its reach to activities with a direct connection to or effect on interstate commerce
there are express congressional findings concerning the activities’ effect on interstate commerce and
there is a strong link between the regulated activities and the effect on interstate commerce.
Real Friends Like Eating
can congress place limits on grants to prez
When Congress appropriates funds, it can require that the President and federal agencies spend the funds as explicitly directed in a federal statute. And since Article II obligates the President to faithfully execute the laws, the President cannot unilaterally alter how the appropriated funds will be spent or suspend the distribution of those funds.
The Fourteenth Amendment, Section 5 Enabling Clause
Congress can pass legislation to enforce EP and DP rights guaranteed by 14th Amendment, but not to expand or create new rights.
In enforcing such rights, must be congruence and proportionality
Congress vs. states on 14A
Congress can override state government action that infringes on 14A rights and it can override 11th Amendment immunity of states - but only if “congruence and proportionality” test satisfied
Privileges and Immunities Article IV - Rights protected?
- Fundamental rights (vote, travel, privacy)
- Essential activities - e.g., pursuit of employment, transfer of property, and access to state court
Discrimination against out of state citizen may be valid if state can show
Substantial reason and substantial relationship
Commercial vs recreational example of rights protected
Example: Discrimination against out-of-state residents in setting the fee for a commercial activity, such as a commercial shrimping license, violates the Privileges and Immunities Clause of Article IV, but similar discrimination for a recreational activity, such as a recreational hunting license, does not, if there is a rational basis for the fee differential. Compare Toomer v. Witsell, 334 U.S. 385 (1948) (fee for out-of-state commercial shrimper that was 100 times greater than the fee for an in-state shrimper unconstitutional), with Baldwin v. Fish & Game Comm’n, 436 U.S. 371 (1978) (fee for out-of-state resident to hunt elk that was 25 times greater than the fee for an in-state hunter constitutional).
When do rights of third party beneficiary vest
when beneficiary: 1. detrimentally/materially relied on rights created, 2. manifests assent to contract at one of the party’s requests, or 3. files a lawsuit to enforce the contract
