MC Topics Flashcards
Express Preemption
Express = constitution makes fed power exclusive or clearly and unmistakably communicated legislation that prohibits state regulation in same area
Implied Preemption
Implied = clear congressional intent to preempt state or local law
- Direct conflict = physical impossibility and mutually exclusive bt fed and state laws (can’t comply with both)
- Indirect conflict/frustration of purpose = look at fed law’s purpose and see if state law impedes the goal of a fed objective
- Field = fed law is so pervasive that there is no room for state law to supp
Commerce Clause
3 categories:
(1) channels of interstate commerce,
(2) instrumentalities of interstate commerce, or
(3) activities that substantially affect interstate commerce
Rational Basis Review
- Courts apply a rational basis review to see if Congress’ legislation is proper under the Commerce Clause
- There must be a rational basis to conclude the regulated economic activity taken in the aggregate substantially affects interstate commerce
- Congress can regulate intrastate activities that fall under an economic class of activities if failing to regulate them would undercut interstate commerce in that commodity
Lopez Test
Courts determine if the statute has a jurisdictional hook, which requires them to determine on a case-by-case basis whether the activity has a substantial effect on interstate commerce
Congress may also provide factual findings to demonstrate this substantial effect
- Courts are wary of attenuated arguments (findings of fact cannot be based on attenuated reasoning such as cost-of-crime or national productivity loss arguments)
The statute must regulate narrowly enough to avoid affecting areas that states traditionally regulate
States have the power to regulate noneconomic activities under the Tenth Amendment
Dormant Commerce Clause
gives Congress the power to regulate commerce among the states, also deprives the states of some power over interstate commerce. The doctrine says that a law which discriminates against out-of-state goods are presumptively unconstitutional and can be upheld only if the state can show the law is the least discriminatory means of advancing a legitimate, nonprotectionist local purpose.
- does activity burden ICC
- does it regulate wholly out-of-state activity
Political Question
Baker considerations = 1-2 most important, 3-6 support of analysis
- Textually demonstrable commitment of issue to a coordinate political branch
- Lack of judicially discoverable standards
- Lack of respect
- Initial policy decision beyond discretion of court
- Unusual need for unquestioning adherence to a political decision
- Embarrassment from multifarious pronouncements
Executive Immunities
- President is entitled to absolute immunity from civil damages liability predicated on his OFFICIAL acts
- No immunity from civil lit on pre-pres actions
- Congressional subpoenas may be enforceable
- No absolute immunity from state criminal processes
Executive Privileges
- No absolute privilege in all pres communications
- No privilege from congressional subpoenas for pres private info
Executive Gap Filling
Courts will defer to executive gap-filling when reasonable. When statutory text is ambiguous, courts will defer to a reasonable resolution of that ambiguity (“filling in the gap”) by the agency charged with administering the statute.
Nondelegation doctrine
Congress cannot delegate its legislative powers to other entities. This prohibition typically involves Congress delegating its powers to administrative agencies or to private organizations.
The Court has repeatedly upheld statutory delegations as constitutional if Congress provided intelligible guidance directing how the delegee must perform.
- Intelligible principle = flexible standard/guiding principle for Court frustrated with over-delegation → use to evaluate congressional delegations of authority
Pres Appointment/Removal Power
The President retains the power supervise and to remove these lesser executive officers, and Congress may not restrict the President’s power to remove such officers, except in two circumstances.
- Independent agencies may be headed by bipartisan groups that are not removable at the president’s will. Congress may grant for-cause removal protection
- Congress may create protections for inferior officers. Congress may grant for-cause removal protection to an inferior officer who had limited duties and no policymaking or administrative authority.
Presentment Clause
A bill that passes both Houses must be presented to the president before it becomes law. The president may either sign it if he approves or return (veto) it if he does not.
No line item veto
War Powers Act
- Formalizes a check on President’s foreign conflict powers
- Must have a congressional declaration of war OR congressional authorization OR for a limited time of immediate response to a national emergency created by an attack on the US
- P must notify Congress within 48 hours of committing armed forces to military action
- Armed forces cannot remain for more than 60 days, with a further 30-day withdrawal period, without a congressional authorization for use of military force (AUMF) or a declaration of war by the United States.
Federalism Principles
- The Tenth Amendment broadly says that all powers not given to the national government are reserved for the states and the people.
- A system of government divided among local, state, and national responsibilities.
- For our purposes, we are talking about state powers, state sovereignty, and how the federal government interacts with state governments under the Constitution.
- Shelby County v. Holder = Section 4(B) was unconstitutional on the grounds that it intruded on state sovereignty and did so based on data that was decades old.
- Garcia v. SAMTA = The state has the ability to structure its mechanisms of self-government. The federal government is powerless to this effect. Congress can create a minimum wage as a minimum floor.
- Reno v. Condon = Congress cannot require a state to or state officials to enforce federal statutes regulating private individuals.
- Hodel = Congress can regulate usury but not private conduct. Must stay away from areas of “traditional governmental functions.”
