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Misc Flashcards

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1
Q

What are the three areas of Con Law?

A

Federalism, Separation of Powers and Specific Constitutional Prohibitions

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2
Q

What is federalism?

A

Deals with the division of powers which we have in our Constitution between state and national government, also deals with the relationship between states

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3
Q

Two types of federalism

A

Vertical and Horizontal

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4
Q

Vertical Federalism

A

Something that the state has the authority to do or the federal government, or both

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5
Q

Horizontal Federalism

A

Deals with the obligations of states to do things regarding other states

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6
Q

Which case established judicial review?

A

Marbury v Madison

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7
Q

What type of jurisdiction does the Supreme Court have?>

A

Appellate

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8
Q

What did Marbury and Madison deal with?

A

Marbury was named justice of peace, his commission was signed and sealed, but not delivered before the end of Adam’s term.

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9
Q

Types of powers

A

Implied, Express, Reserved

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10
Q

Implied Powers

A

the national govt must refer to the constitution when it comes to their powers, the power must be implied in the constituion

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11
Q

Express powers

A

powers expressly granted by the Constituion

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12
Q

Reserved Powers

A

10th amendment- states can do anything if there’s not something in the Constitution that says they can’t

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13
Q

Cooper v Aaron

A

Held that everybody is bound by SC decisions, states felt that they weren’t bound to Brown v Board of Education if they weren’t a party to that case

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14
Q

First case in which judicial review was established over a state statute

A

Fletcher v Peck

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15
Q

First case in which the court overruled something that the state judiciary had done

A

Martin v Hunter’s Lessee

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16
Q

Which case established that the appellate power of the US does extend to cases pending in state courts?

A

Martin v Hunter’s Lessee

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17
Q

Two limits on the power of the Constitution and the Supreme Court

A

Impeachment and Amendment

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18
Q

How can a SC Justice be impeached?

A

The house decides on impeachment and needs 2/3 majority, the Senate convicts with a 2/3 majority

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19
Q

Two ways to propose an amendment

A
  1. Congress by a 2/3 vote may proposed for ratification by 3/4 the states
  2. 2/3 of the states may apply to Congress to call a Constitutional Convention for proposing amendments (has never happened)
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20
Q

Two ways to ratify a proposed amendment

A
  1. 3/4 of the state legislatures must approve or
  2. Ratifying convention in 3/4 the states must approve
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21
Q

What are the external limitations on judicial review?

A

Impeachment and Jurisdiction

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22
Q

What was the rule in Ex Parte McCardle in 1869?

A

Without jurisdiction the United States Supreme Court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle.

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23
Q

What are the internal limitations on judicial review?

A

Standing, Ripeness, Mootness, Rule Against Advisory Opinions, Political Question Doctrine, Usual Movements Doctrine

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24
Q

What is standing?

A

Provision that allows Court to say that they aren’t going to deal with a controversy for lack of standing, based on Article 3, Section 2 “case and controversy”

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25
Q

What case defined the rule for standing?

A

Lujan vs. Defenders of the Wild

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26
Q

What are the elements of standing?

A

Personal Injury- must be an injury in fact that is concrete and particularized and it must be actual or at least imminent
Causation- must be a causal connection between the injury and the conduct complained of- injury has to be fairly traceable to the challenged action and defendant
Redressability- must be likely as opposed to merely speculative that the injury will be redressed by a favorable decision

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27
Q

What is prudential constitutional standing?

A

When the court says we can’t take this case due to a lack of the standing elements and won’t take it for prudential reasons

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28
Q

Was there standing in Lujan?

A

No

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29
Q

Was there standing in Massachusetts v EPA?

A

Yes

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30
Q

Mootness

A

if the case is moot then it means that there once was a real case or controversy but there no longer is

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31
Q

Political Question Doctrine

A

The court is not going to deal with the merits of the case where the merits have been left by the Constitution to one or both branches of the government

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32
Q

What was the rule in Baker v Carr?

A

A federal court can’t pronounce a statute (state or federal) void because it is irreconcilable with the US constitution, except as is called upon to adjudge the legal rights of litigants in actual controversies

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33
Q

Ways in which an opinion can be activist

A

It’s contextual and clearly not related to a strong implication from the text of the constitution
The court doesn’t follow precedent
Displaces the will of the people

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34
Q

What was the rule in McCulloch v Maryland?

A

Congress may enact laws that are necessary and proper to carry out their enumerated powers. The Constitution is the supreme law of the land and states cannot interfere with federal laws enacted within the scope of the Constituion

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35
Q

What is the ordinary scrutiny test?

A

Rational basis test:
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
-barely legit is enough
-rationally connected doesn’t mean it’s the best way of getting to that legit end, just means it has a rational connect
*generally an easy test to meet

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36
Q

What is the rule in Gibbons v Ogden?

A

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

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37
Q

What was the subject of the controversy in Gibbons v Ogden?

A

a New York State law regulating ships within the state- it could not do this because congress has the sole power to regulate commerce

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38
Q

What was the commerce clause rule from 1895 to 1936 and which case did it derive from?

A

US vs. EC Knight/Sugar Trust Case- 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, then the state can’t reach it

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39
Q

What was the outcome of Champion vs. Ames (the lottery case)’?

A

Under Congress’s broad discretion within regulating commerce, the transportation of lottery tickets by independent carriers over state lines constituted commerce that Congress could regulate

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40
Q

What was the outcome in Schechtler Poultry Corp in 1935?

A

Congress struck down a federal law as unconstitutional because it reached local activity without a direct effect on interstate commerce

41
Q

What did Hoke vs. US in 1913 determine?

A

Commerce includes the transportation of property and people

42
Q

What was the outcome of Hammer vs. Daggenhart (the child labor case)?

A

The court held the child labor law of 1916 as unconstitutional because the intent was not to regulate commerce, the intent was to protect children, which is a power that belongs to the states
The court realized this was inconsistent with other cases

43
Q

What was the commerce rule from 1937 to 1995 and what case established it?

A

NLRB vs. Jones and Laughlin Steel- 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

44
Q

What was the outcome of NLRB vs. Jones and Laughlin Steel?

A

The court rule that the National Labor Relations Act was a proper exercise of Congress’ power- the act sought enforcement of an order to an employer who manufactured iron and steel to cease and desist unfair labor practices

45
Q

What was the outcome in the Darby case in 1941?

A

The court upheld the FLSA because it found that it prevented states from using substandard labor practices to gain an economic advantage, labor standard have a significant impact on interstate commerce

46
Q

What aspect of the commerce clause rule did Wickard v Filburn impact?

A

It told us that even if something isn’t substantial, Congress can still reach it if actions like that aggregated with other actions throughout the US would have a substantial effect on interstate commerce. Gave Congress very broad authority

47
Q

What is the current rule on the commerce clause, when was it established and with what cases?

A

Lopez established this in 1995. Congress may regulate three types of activities:
1. The use of the channels of interstate commerce- highways, railroad tracks, etc. (usually ruling this out)
2. Regulate and protect the instrumentalities of interstate commerce or persons or things within it- trucks and people that cross a line (also usually ruling this out)
3. Regulate those activities having a substantial effect on interstate commerce (usually analyzing this)

If it something that has a substantial effect on interest commerce, then the local activity must be economic in nature. Established by Morrison in 2000

48
Q

What did the Morrison case deal with

A

Dealt with the violence against women act of 1994, there were plenty of congressional findings that discrimination against women has a substantial effect on interstate commerce, but it is still struck down because the activity is not economic in nature

49
Q

Congress prohibiting power

A

If it crosses state lines, congress can have economic and moral motives

50
Q

Congress affecting power

A

Local activity that has a substantial effect on interstate commerce (Lopez and Morrison)

51
Q

What did Gonzalez v Raich deal with?

A

Dealt with a California law that allowed the use of medical marijuana, the court determined that they could regulate the use and production of home-grown marijuana because this activity, taken in the aggregate, could be seen as having a substantial economic effect on interstate commerce

52
Q

Which justices voted in favor of regulating home grown marijuana in Gonzalez v. Raich?

A

Stevens
Scalia
Kennedy
Souter
Ginsburg
Breyer

53
Q

Which justices voted against the regulation of home grown marijuana in Gonzalez v Raich?

A

Rehnquist
O’Connor
Thomas

54
Q

What did NFIB v Sebelius deal with?

A

The ACA individual mandate

55
Q

What was the rule in NFIB v Sebelius?

A

ACA individual mandate cannot be justified as a valid exercise of commerce power because the commerce clause does not empower Congress to compel individuals to engage in commercial activity, however it is valid under the taxing power

56
Q

What does the 10th Amendment say?

A

The powers not delegated to the US by the constitution, nor prohibited by it to the states, are reserved to the states

57
Q

What does the 11th Amendment say?

A

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

58
Q

Which case deemed the 10th amendment nothing but a truism?

A

Darby

59
Q

Which case did Garcia overrule?

A

National League of Cities

60
Q

Commanding

A

telling states what to do- can do this

61
Q

Commandeering

A

Telling states what regulations to adopt- can’t do this

62
Q

Where is the taxing power located in the Constitution?

A

Article 1, Section 8, Clause 1

63
Q

Where is the commerce power located in the Constitution?

A

Article 1, Section 8, Clause 3

64
Q

Congress can tax for…

A

the general welfare

65
Q

Indirect taxes must be…

A

uniform throughout the United States

66
Q

Direct taxes must be…

A

apportioned

67
Q

What was the rule in Bailey v Drexel Furniture in 1922?

A

Congress cannot use their powers to tax in an attempt to regulate behavior of local citizens, such a child labor

68
Q

What did NFIB v Sebeilus tell us about the taxing power?

A

The determination of if something is a tax does not depend not its label, but rather its function

69
Q

Under the spending power, Congress can…

A

spend for the general welfare

70
Q

What was the rule in South Dakota vs. Dole?

A

Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the receipt with federal statutory and administrative directives f

71
Q

What was the subject of South Dakota vs. Dole?

A

The drinking age- South Dakota would lose 5% of their highway funds if they don’t go along with a congressional scheme. Court upholds this

72
Q

What did the court hold in regard to the Medicaid expansion portion of NFIB v Sebelius?

A

They said that the regulation went too far under the spending power

73
Q

What is the dormant commerce clause?

A

Under dormant Commerce Clause precedent, courts will typically strike down a State law if it expressly mandates differential treatment of in-state and out-of-state competing economic interests in a way that benefits the former and burdens the latter.

74
Q

In which case was the dormant commerce clause first raised?

A

Gibbons v Ogden

75
Q

What is the test for the dormant commerce clause and what case does it originate from?

A

Pike Balancing Test- Pike vs. Bruce Church
If the purpose is to discriminate against interstate commerce, then you balance the importance of the interests to the state versus the importance of the interests in interstate commerce of the national government
Takes into considering the cognizance of purpose- if something is discriminator, it’s going to be struck down

76
Q

What does Reeves vs. Stake tell us as it relates to the dormant commerce clause?

A

nothing in the commerce clause prohibits a state, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others

77
Q

What does White vs. MA Council tell us as it relates to the dormant commerce clause?

A

where state or local action is specifically authorized by Congress it is not subject to the commerce clause even if it interferes with interstate commerce

78
Q

What happened in White vs. MA Council?

A

Mayor of Boston had an exec order that all construction projects have to be performed by a workforce that’s at least 50% city residents. This was upheld, but a similar law was struck down in South Central

79
Q

Why was South Central Timber struck down when White vs. MA Council was not?

A

South Central Timber was differentiated because it regulated downstream commerce

80
Q

What is the contracts clause?

A

 a state can’t enter an agreement/contract with other state or states unless they have congressional consent to that
 they don’t need technically need congressional consent if it turns out that this would not be in any way, according to the courts, a limitation on federal governmental powers

81
Q

Two ways the SC has looked at separations of power issues

A

formalistic and functionalistic

82
Q

Formalistic view of separation of powers

A

talking about the inability to interfere with another branch of the government, and therefore the likelihood that something that’s done is going to be held unconstitutional

83
Q

Functionalist view of separation of powers

A

more like checks and balances, lines between the three branches are absolute

84
Q

What was the rule in Youngstown Sheet?

A

The President’s power, if any, to issue an order must stem either from an act of Congress or from the US constitution itself. There is no statute that expressly authorized the President to take possession of property to settle a labor dispute. Nor is there any act of Congress from which such a power can be fairly implied

85
Q

What happened in Youngstown Sheet?

A

There was going to be a steel strike so Truman himself stepped in to take over, court decided this was unconstitutional

86
Q

What are Jackson’s three categories to determine whether presidential action is constitutional and what case did this originate from?

A

Originated with Youngstown Sheet:
1. when the president aces with congress either express or implied
2. the opposite, when he acts against Congress, express or implied
3. or something in the middle- this twilight zone- long period of uncertainty- maybe the president can do it, maybe he can’t

87
Q

What is the reception/recognition power?

A

The president, not congress, has the power to receive ambassadors and other public ministers from foreign countries

88
Q

Why is the reception power also called the recognition power?

A

The word recognition doesn’t appear, but the power to receive ambassadors is also the power to recognized the country that sent the ambassador

89
Q

What happened in Zivotofsky vs. Kerry in 2015?

A

Court upheld the power of the president to say to the Dept of State who writes the foreign affairs manual that we don’t want Jersualem, Isreal put on the passport of a US Citizen born in Jerusalem. Court upholds this and says its up the president. Trump ends up allowing it to be recognized after the fact.

90
Q

What was going on surrounding Dames and Moore vs Regan in 1981 and why was it held constitutional when Youngstown Sheet wasn’t?

A

Deal with a hostage crisis in Iran, this was an immediate crisis, was in the 2nd category whereas Youngstown was in the 3rd, this dealt with foreign affairs, was more directly foreign and more money was involved

91
Q

What is the treaty power and who holds it?

A

Treaty power is something the president has and takes 2/3 the senate to ratify

92
Q

Treaties can either be..

A

self executing or non self executing

93
Q

The default position is that a treaty is..

A

non self executing and doesn’t take effect in the US until and unless there’s a congressional statute

94
Q

What happened in Medellin vs. Texas?

A

Pres wanted to hold off on executing a Texas prisoner from Mexico because of an agreement, court said this was non self executing and therefore the president can’t stop this from happening

95
Q

What happened in Woods s. Cloyd W Miller?

A

Rent control act was held as a valid law because it relates to the war

96
Q

Three types of scrutiny

A

Ordinary
Intermediate
Strict

97
Q

Ordinary scrutiny

A

Rationally related to the goal

98
Q

Intermediate scrutiny

A

substantially related to the goal and the goal would be important

99
Q

Strict scrutiny

A

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

Constitutional Law (5 decks)

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