Review Flashcards
What are the 5 main categories of congressional pwr?
1) Taxing/spending pwr: Congress may tax/spend for the “general welfare” (this is NOT the pwr to promote the general welfare, sans taxing)
2) Commerce pwr: can regulate commerce (i) w/ foreign nations, (ii) indian tribes; AND (iii) among the states; Congress may regulate…
(a) the channels of interstate commerce (e.g., highways, waterways, the Internet)
(b) the instrumentalities of interstate commerce (i.e. persons or things in interstate commerce, like trucks, planes or phones)
(c) economicINTRAstateactivities that have a substantial (cumulative) affect on interstate commerce
(NOTE: cumulative impact cannot be based on NON-economic activity)
Non-economic INTRAstate activities where Congress can FACTUALLY SHOW a substantial economic effect on interstate commerce
States - only ban harmful products; can’t protect local commerce
3) §5 of 14Am
4)Ltd police pwrs = re: “M-I-L-D” categories ONLY
Military (inc. laws governing policy on military land)
Indian reservations
Lands (federal)
District of Columbia (D.C.)
5) Necessary & Proper Cl: Congress can adopt all laws that are “necessary and proper” to exercise its EXPRESS/IMPLIED authority (as per above)
How should Necessary and Proper Clause be used?
MUST be used with another law.
What is justification for law’s distributing money?
ALWAYS tax and spend
What state power is rarely upheld?
To invalidated a federal law under the 10A
What is preemption?
The Supremacy Cl states that the Const AND the laws/treaties made p/t it are the SUPREME LAW OF THE LAND Bottom line: valid federal law/treaties OVERRIDES (preempts) inconsistent state law A state law that has a HIGHER std than the federal law is OK as you can comply with BOTH
What are 3 key ways in which preemption can operate to override an inconsistent state law?
1) Express preemption: When Congress has authority to act, it can state that its pwr is EXCLUSIVE in a field; all state/local laws in that area are preempted
2) Implied preemption: nws silence in the statute, state/local laws can be preempted IF… it is impossible for someone to SIMULTANEOUSLY comply w/ both fed and state laws
NOTE: general rule is that states can grant their citizens GREATER PROTECTIONS(i.e. more strict), UNLESS Congress intended otherwise the state law impedes the achievement of a federal OBJECTIVE (i.e. “field preemption”) Congress evidences a clear INTENT to preempt state law (e.g. fed immigration law)
3) Intergovernmental immunity: States may not tax/regulate the fed gov’t for a federal activity
When plaintiff files a state law violates Constitution in state, what is next?
State appeals court
What are rules about advisory opinions?
1) Fed cts cannot issue advisory opinions
2) Cong can’t auth Fed Ct to do these
3) State ct may be able to provide these
4) If fed ct decision is subj to review by another branch, it is not final
What are the 4 req’s for a π to have standing?
1) Injury: the π must allege and prove that she HAS been injured or IMMINENTLY will be injured
Injury is NOT mere ideological objection to a law (you need PERSONAL injury)
π’s seeking injunctive or declaratory relief must show likelihood of future harm
2) Causation & redressibility: π must allege and prove that the ∆ CAUSED the injury so that a favorable ct decn is likely to REMEDY the harm
If ct’s ruling would have no effect, then it’d be an advisory op (NOT ALLOWED)
NOTE: NO 3d party standing: π CANNOT assert claims of 3d party’s not before the ct
EXCEPTIONS: 3d party standing is allowed IF… (i) CLOSE relationship b/t the π and the injured 3d party (e.g. dr-patient relationship; custodial parents; BUT NOT non-custodial parent)
(ii) the injured party is unlikely to ASSERT THEIR OWN rights [e.g. if jurors are subject to systematic discrimination, they are unlikely to bring a claim as they don’t have an incentive to serve)
(ii) ORGANIZATION suing on behalf of its members, IF (a) members would have standing to sue; (b) interests are germane to the org’s purpose; AND (c) neither the claim nor relief req’s participation of individual member
4) NO generalized grievances: the π must not be suing solely “as a CITIZEN” or a TAX PAYER interested in having the gov’t follow/not follow the law OR spend tax money in a certain way
NOTE: If the gov’t law actually targets a specific person, then he could sue
NOTE: Congress can’t confer standing
EXCEPTION #1: taxpayers DO have standing to challenge gov’t expenditures p/t federal statutes as violating the Establishment Cl (i.e. sep of church and state)
EXCEPTION #2: a person has standing as a citizen to allege that a federal action violates the 10th Am by interfering w/ pwrs reserved to the state (as long as the person can show injury and redressability)
When is Full Faith & Credit required?
(1) Jurisdiction
(2) Judgment final
(3) Judgment on the merits
What 3 ways canPOTUS exercise his foreign policy pwr?
1) Treaties = agmts b/t the US and a foreign country
They are NEGOTIATED by POTUS, but RATIFIED by the Senate
State laws that conflict w/ treaties are INVALID
If treaty conflicts w/ a fed statute, the one adopted LAST IN TIME cntrls (over the earlier one)
If treaty conflicts w/ the US Const., the treaty is INVALID
2) Executive agmts = agmt b/t the US and a foreign country that’s effective when signed by POTUS (ALONE) and the head of the foriegn gov’t
Executive agmts can be used for any purpose (anything that can be done w/ a treaty)
Executive agmts prevail over conflicting state laws, BUT NOT conflicting federal laws OR the US Const
3) Commander-in-Chief pwrs = POTUS has BROAD pwrs as CIC to use American troops in foreign countries
NOTE: this is ALSO a political question that WON’T be heard by Art. III cts
What is the scope of POTUS’s pardon pwr?
POTUS has the pwr to pardon anyone accued or convicted of FEDERAL (not state) CRIMES
EXCEPTION: POTUS may not pardon a person who has been impeached by the House (can NEVER be pardoned)
This pwr does NOT apply to CIVIL liability
What is the standard req’d p/t the Takings Cl of the 5th Am?
The gov’t may take PRIVATE property for PUBLIC use but ONLY IF it provides JUST COMPENSATION or terminates the regulation Ask…
FIRST: has there been a “TAKING”?
Possessory taking = gov’t confiscation OR physical occupation of property
Regulatory taking = gov’t regulation is a taking IF it leaves NO REASONABLE economically viable use of the property
NOTE:Gov’t conditions on the development of property (exactions) must be justified by a benefit ROUGHLY proportional to the burden proposed
A property owner may bring a takings challenge to regulations that ALREADY EXISTED at the time the property was acquired
Temporarily denying an owner use of property is NOT a taking so long as the gov’ts action was reasonable
SECOND: is it for PUBLIC USE?
It’s a “public use” SO LONG AS the gov’t acts out of a reasonable belief that the taking will benefit the public
THIRD: is JUST COMPENSATION paid? Measured in terms of loss to owner in reasonable MKT value terms (NOTE: the GAIN to the gov’t is IRRELEVANT)
What are the 3 levels of scrutiny re: individual liberties/equal protection?
1) Rational basis: a law is upheld IF it is RATIONALLY related to a LEGITIMATE gov’t purpose
Burden of proof = on the π
When: age; anytime there is no strict/ intermediate scrutiny
2) Intermediate scrutiny: a law is upheld IF it is SUBSTANTIALLY related to an IMPORTANT gov’t purpose
Burden of proof = on the gov’t
When: Gender, illegitimacy, children
When gender discrimination involved - “exceeding persuasive justification” necessary
3) Strict scrutiny: a law is upheld IF it is NECESSARY to achieve a COMPELLING gov’t purpose
Burden of proof = on the gov’t
When: race; religion; nat’l origin; most alienage classes; fundamental rights - travel/ vote
NOTE: Voting - law restricting voting from non-residents is usually good as long as RATIONALLY RELATED to a government interest
Standards for alienage?
States - strict (unless for state gov’t position - judges, cops, teachers)
Federal - intermediate
What is the State Action Doctrine?
Represents principle that the Const. applies ONLY to gov’t (“state”) action and NOT private conduct, UNLESS
EXCEPTIONS:
1) 13th Am (prohibiting slavery and involuntary servitude): Congress can prohibit private race discrimination and has broad pwrs to adopt laws to enforce this prvn
NOTE: Only slavery violates the 13th Am DIRECTLY; private discrimination can violate LAWS passed p/t the 13th Am
2) Commerce Cl: Can can apply Const. norms to private conduct if it affects interstate commerce (e.g. CRA of 1964) NOTE: Congress CANNOT use §5 of the 14th Am to regulate PRIVATE behavior; it can only regulate state/local gov’ts
What are types of private action that don’t amount to state action?
Licensing; land; or gov’t funding
Equal protection works how?
1) State - Equal Protection in 14A
2) Feds - Due Process of 5A
What is the std for regulating speech in public OR designated public forums?
1) Public forums = gov’t properties that the gov’t is constitutionally req’dto make available for speech
2) Designated public forums = gov’t properties that the gov’t could close off to speech, but chooses VOLUNTARILY to open to speech
Std = Gov’t can pass “time, place or manner” regulations, IF they…
(i) CONTENT-NEUTRAL (subject matter OR viewpt);
If NOT content neutral, reg must meet STRICT SCRUTINY
(ii) NARROWLY TAILORED to serve an IMPORTANT gov’t interest; AND
Narrow tailoring does NOT mean that it has to be least restrictive alternative
E.g., Permit fee reqs for parades/demonstrations ARE unconst if city officials have DISCRETION in setting the amt of the fee
(iii) ALTERNATIVE CHANNELS of communication
What is the Free Exercise Cl?
Prohibits gov’t from punishing someone on the basis of her religious beliefs
The gov’t may NOT deny benefits to individuals who quit their jobs for religious reasons
NOTE: CANNOT be used to challenge NEUTRAL laws of general appliccablity even if it condemns conduct the religion requires
When is a law valid under the Establishment Cl?
Lemon Test: Gov’t action is valid under the Est. Cl, IF it… “S-E-X”
(i) has a SECULAR purpose
(ii) primary EFFECT must be NEITHER to advance nor prohibit religion the gov’t cannot discriminate AGAINST or AMONG religions
(iii) there must not be EXCESSIVE gov’t entanglement w/ religion
Otherwise it HAS to meet STRICT SCRUTINY
E.gs. Gov’t sponsored religious activity in public schools is unconst
Religious student and community groups MUST have the same access to school facilities as non-religious groups
School prayer (even if voluntary or silent) is unconst
The gov’t CAN give assistance to parochial schools, SO LONG AS it is NOT used for religious instruction (e.g. provide parents w/ vouchers, which they can use in parochial schools)
What are always wrong answers?
1) Cong can’t delegate to admin agency
2) Priv & Immunities under 14A
3) Fed statute not applicable bc sm reserved to the states (except a few instances)
4) Cong has power to leg for gen welfare
5) Cong has power to act under its police power
6) Fed statute unconst under the 14A
7) 14A Due Process - prevails bc she has “right and not privilege”
8) Ex-post facto clause applied outside criminal context
9) Burden on interstate commerce
10) Upholds fed law under necessary and Proper clause without other law
11) Dismissal as political question
12) Inval under Const K clause
13) Pres viol duty to faithfully exec duties
When are legislative vetos and line item vetos allowed?
NEVER! They are unconst.
Legislative veto: For Congress to act, there MUST be bicameralism (passage by both houses) AND presentment (veto/non-veto by POTUS)
Line-item veto: POTUS must sign or veto the bill in ITS ENTIRETY; NOT allowed to strike certain provisions
How must federal taxes be instituted among states?
Uniformly
When can Congress deny alien combatant habeas?
When there has been meaningful sub
What legislative pwr can Congress delegate (to an ind. agency for e.g.)?
ALMOST ANYTHING!(as long there is an intelligible principle)
EXAM TIP: the non-delegation answer is almost ALWAYS wrong
What is framework of Take Care clause under Youngstown?
(i) Where the President acts with the express or implied authority of Congress, his authority is at its maximum and his actions likely are valid;
(ii) Where the President acts where Congress is silent, his action will be upheld as long as the act does not take over the powers of another branch of the government or prevent another branch from carrying out its tasks; and
(iii) Where the President acts against the express will of Congress, he has little authority and his action likely is invalid, at least if Congress has acted constitutionally.
How can Pres veto be overturned?
Two-thirds vote of both houses
What is the scope of executive privilege?
POTUS has executive privilege for presidential papers and conversations, BUT such privilege MUST YIELD to other important gov’t interests (e.g. a criminal trial)
How can POTUS appoint Cabinet members?
With advice and consent of Congress
What factors do courts consider regarding whether fed law preempts state law?
(i) Was preemption clear and manifest purpose of Congress;
(ii) Comprehensiveness of fed program or existence of fed agency; and
(iii) Whether field traditionally within power of states.
What is the Privileges and Immunities Cl of Art. IV?
No state or municipality may deny CITIZENS OF OTHER STATES the privileges and immunities it affords ITS OWN CITIZENS w/o a substantial justification
NOTE: corporations and aliens CANNOT sue under P&I of Art. IV (CITIZENS only)
E.g. can regulate that police officers have to live in state
What is the Privileges and Immunities cl of the 14th Am?
Preserves a person’s RIGHT TO TRAVEL from one state to another
NOTE: Durational residence requirements often fails under STRICT SCRUTINY (e.g. must be in state 1 year
What is the std for regulating speech in ltd public OR non-public forums?
Ltd public forums = gov’t properties that are ltd to certain groupsORdedicated to discussion of only some subjects
Non-public forums = gov’t properties that the gov’t can constitutionally close off to speech;
Examples:
(1) Military bases
(2) Areas outside prisons
(3) Public schools
(4) Sidewalks in front of POST OFFICE
(5) Airports (but can’t prohibit distribution of literature)
Std = Gov’t CAN regulate speech to reserve the forum for its intended use, BUT regs must be…
(i) viewpt neutral (don’t have to be subject matter neutral!); AND
(ii) reasonably related to a legitimate gov’t purpose (rational basis)
When can the gov’t regulate symbolic speech?
The gov’t may regulate CONDUCT that communicates (symbolic speech) IF:
1) it has an IMPORTANT interest UNRELATED to the suppression of the msg; AND
2) the impact on communication is NO greater than NECESSARY to achieve the gov’t goal
Gov’t ALLOWED to regulate…
(i) Draft card burning (b/c of potential for national emergency)
(ii) Nude dancing
(iii) Contribution ltds to individual candidate campaigns
Gov’t NOT ALLOWED to regulate…
(i) Flag burning
(ii) Cross burning (AS LONG AS not done to threaten/intimidate)
(iii) Overall EXPENDITURE limits in campaigns (gov’t cannot ltd the amt a person/corp/union spends to get a candidate elected, SO LONG AS the expenditures are independent of the candidate and are not disguised)
The Commerce Clause allows Congress to regulate what?
Activities that have a substantial economic effect on, or effect on movement in, interstate commerce
What are limits on Congress’s investigative powers?
Must be limited to matter on which Congress can legislate.
When can a state tax interstate commerce?
A state may ONLY tax activities IF:
1) A subtl nexus b/t the product or activity to be taxed AND the state
2) It’s not based solely on interstate commerce AND
3) it is fairly apportioned
States may NOT use their tax systems to help in-state businesses (e.g. a tax credit IF purchase ethanol from an in-state business)
(Only) If there HAS been a deprivation (of liberty/ property), how can we tell if in-place procedures are sufficient?
1) The IMPORTANCE of the interest to the individual
Greater importance = more procedural protection needed
2) The ability of ADDITIONAL procedures to increase the accuracy of the fact-finding Will more procedures reduce erroneous deprivation?
3) The gov’ts interest in EFFICIENCY and SAVING $$
EXAMPLES w/ adequate process:
(i) Welfare benefits (notice; hearing)
(ii) Termination of parental custody rights (notice; hearing)
(iii) Non-emergency institutionalization (notice; hearing)
(iv) Social Security disability benefits termination (post-termination hearing)
(v) Reputational harm (NOT A LOSS of liberty)
(vi) Prisoners liberty interest (OFTEN not a loss of liberty)
(vii) Punitive damage awards (jury instruction; judicial review)
(viii) Non-citizen held as enemy combatant (ability to challenge continued detention)
(ix) US citizens facing charges abroad by US military (Habeas Corpus)
(x) Actual bias in a ct proceeding (recusal by the judge is necessary)
(xi) Firing gov’t employee (pretermination hearing)
What ismootness?
Events after filing of suit end π’s injury; NO good b/c cases require a live controversy
3 EXCEPTIONS where the case is will NOT be dismissed…
1) Wrong capable of repetition BUT avoiding review b/c of it’s ltd time duration (e.g. an abortion claim as π will likely NOT be preg at time of trial)
2) Wrong is s/t voluntary cessation, but ∆ can freely resume (e.g. emp who gives a discrim test can easily stop/start whenever)
3) for class action suits: mootness of named π does NOT moot action, if injury still exits for AT LEAST one other class member
What is the proper analysis if a state/local law DOES discriminate against out-of-staters?
FIRST: If law discriminates vs. out-of-staters w/ regard to important economic activities(e.g. earning a wage) OR civil liberties, the law violates the P&I Cl of Art. IV
Test - NECESSARY to achieve an important gov’t purpose
SECOND: If the law discriminatory law burdens interstate commerce, it violates the Dormant Commerce Cl
Test - (i) NECESSARY to achieve an important gov’t purpose; AND
(ii) Gov’t has shown there is NO LESS discriminatory alternative
Discriminatory - residentiary requirements for certain employees (pursuit of a livelihood)
TWO EXCEPTIONS where law would be upheld NWS:
(i) If Congress approves the law then it’s OK
(ii) State is a market participant (where the state/local gov’t CAN prefer its own citizens in receiving benefits form gov’t programs OR dealing w/ gov’t owned businesses)
