Module 1 Flashcards

Question

dormant Commerce clause

Answer 1

-in the absence of Congress regulation, can do so but must not discriminate or unduly burden -state or local regs that discrim against interstate commerce to protect local econ interests are almost always invalid -may be upheld if passes SS tho if NONDISCRIM [treats local and out-of-state interests alike], use balancing test : VALID unless burden outweighs promotion of legit local interest diff standard for state control of corporations/incorporation [generally upheld]

Answer 2

-Congressional approval (but not if violates Const.) -when the state is a "market participant" (seller or buyer of goods, like when awarding construction kx) -when involves traditional gov functions (like waste disposal) - more lenient standard

Answer 3

-Congress has complete power to authorize or forbid state taxation that affects interstate commerce. -Unless auth by Cong., state taxes that discrim against interstate commerce violate CC

Answer 4

will be held as VALID if: -tax has substantial nexus to the taxing state [exists when a business avails itself of the privilege of doing business in the state. phys presence not necessary] -fairly apportioned according to a rational formula -fairly related to the services or benefits provided by the state

Answer 5

tax on assessed value of some prop Commodities: Valid only if property is no longer in interstate commerce. Instrumentalities: Valid if instrumentality has “taxable situs” in state and tax is fairly apportioned. Full tax by domiciliary state valid unless taxpayer can prove a defined part has acquired taxable situs elsewhere.

Answer 6

-tax on goods purchased outside of state but used within -valid unless higher than sales tax

Answer 7

tax placed on some activity like doing business Valid if (i) substantial nexus to taxing state, (ii) fairly apportioned, (iii) does not discriminate against interstate commerce, and (iv) fairly relates to services provided by the state.

Answer 8

Congressional enforcement power. Can adopt appropriate legislation to enforce the rights and guarantees of the 14th Am. Cannot expand existing con rights or create new ones - can only enact laws to prevent or remedy violations of rights already recognized by the Courts. to adopt a valid law, Cong must point to history or pattern of state violation and adopt leg that is CONGRUENT AND PROPORTIONAL to solving the identified violation. [can enforce DP, EP, citizenship rights through Sec 5]

Answer 9

mere negligence insufficient. must be intentional or reckless gov action.

Answer 10

gov deprivation of SIGNIFICANT FREEDOM OF ACTION or FREEDOM PROVIDED BY CONST OR STATUTE. does not include mere injury to rep

Answer 11

personal and real prop (whether tangible or intangible) but also gov benefits to which there is an ENTITLEMENT (a reasonable expectation of continued receipt) under state or fed law. An abstract need or desire for a benefit is not enough. includes welfare benefits, pub edu, gov licenses, and tenured gov employment or term employment for duration of the term, but NOT ATWILL

Answer 12

prior notice and prior evidentiary hearing

Answer 13

generally, prior notice and opp to respond, and subsequent evidentiary hearing

Answer 14

prior notice and prior evid hearing. clear and convincing evid req.

Answer 15

prior notice and opp to respond; no formal evid hearing req

Answer 16

notice [reasonably calc. to inform person] opp to be heard [balancing] neutral decisionmaker

Answer 17

WEIGHS: -importance of interest to individual AND -value of specific PROCEDURAL SAFEGUARDS to that interest (i.e., the risk of ERROR from current procedures used and benefits of addtl proceudres) AGAINST -gov interest in fiscal and admin efficiency typically should be given pre-deprivation hearing unless this would be impracticable

Answer 18

no ACTUAL bias (like financial interest or relative party to case) no SERIOUS RISK of actual bias

Answer 19

whether it is deeply rooted in the nation's history of tradition and essential to the concept of ordered liberty

Answer 20

regulation must be consistent w the country's historical tradition of firearm regulation pay close attention to history when 2d and 14th Ams adopted

Answer 21

voting, jury service, elective office some non-elective offices involving important pub policy (like popo, probation, primary and secondary school teachers)

Answer 22

racial animus (not rational)

Answer 23

must be for PUBLIC use and must provide JUST compensation includes easements, personal prop, intangibles (but not welfare benefits) physical or regulatory

Answer 24

confiscation of person's prop OR permanent or regular phys occupation of personal prop

Answer 25

Consider factors like degree of invasion, the duration, the government’s intention, the foreseeability of the result, the character of the property, and the interference with the use of the property TWO EXCEPTIONS: development + emergency

Answer 26

Municipalities often attempt to condition building or development permits on a landowner’s (1) conveying title to part of the property to the government (for example, to be used as streets), or (2) granting the public an easement to access the property. These conditions constitute a taking unless (1) the government can show there is an essential nexus between the condition and the proposed development (that is, the condition relates to a legitimate government interest) and (2) the adverse impact of the proposed development is roughly proportional to the loss caused to the property owner from the forced transfer.

Answer 27

TAKING IF denial of all econ value of land [unless nuisance applies] Temporary denial of all econ use not per se taking. Will weigh: planner's good faith, reasonable investment-backed expectations, delay length, delay's actuall effect, etc. to determine whether "fairness and justice" req just compensation Decreasing econ value - use balancing test -Generally, regs that merely decrease the prop value (such as by prohibiitng the most beneficial use) do not constitute a taking. But consider: -gov interests -dimunition in value to owner -whether reg substantially interferes w distinct, investment-backed expectations of owner

Answer 28

-Private kx - must subtantially impair existing private kx -(use intermed. scrutiny) -public kx (SS)

Answer 29

crim. can't do where makes someone criminal after or imposes greater punishment or reduces evidence re

Answer 30

prohibits government from punishing someone on the basis of their religious belief or related religious status or conduct gov can consider sincerity but not truthfulness of belief doesnt require religious exemptions. but can grant EXCEPTIONS: -ministers -unemployment compensation [good cause] -Amish dont have to eductae

Answer 31

discriminatory -> SS discriminatory if: -not neutral -facially neutral (silent on face but by design targets general religion or a specific religion) if generally applicable, not covered by FE

Answer 32

A state may not limit eligibility for a generally available govern mental benefit to nonreligious organizations so if gov provides textbooks to secular private schools, must provide to otherwise-eligible religious private schools

Answer 33

The Establishment Clause prohibits government sponsorship of religion, meaning the government cannot aid or formally establish a religion. Like the Free Exercise Clause, it compels the government to pursue a course of neutrality toward religion.

Answer 34

-Neutrality principle -no coercion (directly or indirectly) to coerce individuals to exercise or refrain from exercising -history and tradition approach

Answer 35

-sect preference (SS) -cases unconnected to fin aid or edu(if it burdens small sect, generally invalid, but if burdens large segment of society that includes relig groups, gen valid) [Sunday closing law] -fin benefits to relig institutions (must be neutral) -relig activity in pub schools (neutral)