Scope of Federal Power

Question 1

judicial review of executive action

Answer 1

lowered when acting subject to a directive from congress

heightened when acting alone

Question 2

enumerated powers of the executive

Answer 2

(1) commander in chief of armed forces
(2) may grant reprieves and pardons
(3) make treaties subject to senate approval
(4) power to enforce and execute all laws of the US
(5) power to appoint ambassadors, judges, and other officers
(6) power to convene special sessions of contress

Question 3

scope of national legislative power

Answer 3

(1) tax and spend
(2) regulate interstate commerce
(3) power to raise and support armies
+ 14 others

Question 4

necessary and proper clause

Answer 4

allows actions which are necessary and proper to the execution of the enumerated powers

Question 5

commerce clause is used to

Answer 5

regulate interstate commerce, but cannot regulate

(1) purely local commerce,
(2) intrastate commerce,
(3) non-activity

Question 6

political question doctrine

Answer 6

judiciary may not review actions that are explicitly designated in the constitution to the branch of government doing that action

Question 7

federal preemption doctrine

Answer 7

when a federal law exists, it always preempts state law

if federal legislation leaves a gap, states are free to legislate within those gaps

Question 8

commerce clause test

Answer 8

balance the importance of the state interest being promoted by the state law or action VERSUS the burden on interstate commerce

usually laws will be struck down if there is a less burdensome alternative available to the state

Question 9

dormant commerce clause background

Answer 9

because congress has right to regulate interstate commerce, states lack the right to interfere with interstate commerce.

protectionist laws are prohibited under the dormant commerce clause.

Question 10

states have police power which is the power to regulate

Answer 10

for the health, safety, and welfare of its citizens

Question 11

state police power is subject to

Answer 11

federal law, because of the supremacy clause

Question 12

2 types of preemption =

Answer 12

field preemption = a field where the federal interest is pervasive; the federal government has asserted an intention to completely occupy an area of law

conflict preemption = where a state law specifically conflcts with a federal law. state laws must be generally consistent and not in conflict.

Question 13

** 2 dormant commerce clause analyses

Answer 13

(1) laws that discriminate against interstate commerce in favor of intra state commerce

(2) if law doesnt facially discriminate against interstate commerce, but burdens interstate commerce versus intrastate commerce:
balancing test between burden placed on interstate commerce VERSUS local benefits state is trying to achieve

if there is a less restrictive alternative, likely unconstitutional

Question 14

exception to dormant commerce clause

Answer 14

market participant exception

if government is spending own money on goods or services, they can discriminate towards its own citizens

Question 15

privileges and immunity clause

Answer 15

the citizens of each state shall be afforded the privileges and immunities of the several states

the privileges and immunities are only those which are “fundamental”
right to travel; right to own property; right to transact business and carry on a trade

remember that this only applies to citizens of the US (not resident aliens)

Question 16

privileges and immunities test

Answer 16

substantial state interest
and
law closely related

Question 17

state income/property tax analysis

Answer 17

(1) the goods or services must have a “situs” located in state in order to be subject to state tax
AND
(2) the tax must be fairly apportioned to the amount of activity that occurs within the state

Question 18

state sales and use tax

Answer 18

if use tax is higher than sales tax, then you are burdening interstate commerce

Question 19

hypo: recreational fishing license costs $20 for in state, $100 for out of state

Answer 19

ok because recreational fishing is not a fundamental right of citizenship

Question 20

due process clause and taxes

Answer 20

(1) does the state have sufficient relation to the property or activity to be taxed? the corporation must have MINIMUM CONTACTS with the state
(2) is the tax faily apportioned to avoid mulitple taxation?

Question 21

hypo: port city imposes tax on goods passing through ports

Answer 21

violates the import-export clause to the extent it exceeds the revenue necessary to support inspection laws

Question 22

contract clause

Answer 22

laws may not be passed impairing the obligation of contracts

however, sovereign power may trump contract obligations when the law is necessary to solve a broad and extreme economic or social problem

cannot be used by state to undo its own contractual obligations

to bring a complaint under contract clause, the law must alter the contract itself, not make contract less valuable

Question 23

takings clause analysis

Answer 23

(1) was there a taking
(2) was the taking for a public purpose
(3) calculation of just compensation

Question 24

taking definition

Answer 24

physical occupation of condemnation of property

denial of all or all economic use of land

regulation that defeats or denies my fractional/whole interest in the land

regulation that restricts but does not eliminate use of your land, not a taking.

Question 25

analysis of reasonable land use regulation

Answer 25

if a land use regulation is closely connected to state’s purpose
and advances an important state interest
then may be allowed

Question 26

is the taking supported by a public purpose?

Answer 26

if the taking is part of an “integrated redevelopment plan” and not targeted on any particular homeowner, then that is a public purpose

as long as government reasonably believes that the taking will benefit the public, will stand

Question 27

calculating just compensation?

Answer 27

money damages

damages due from the time the use of property was first denied

Question 28

dormant commerce clause factor other than balancing test

Answer 28

no less restrictive alternative

Question 29

hypo: regulation on hunting / fishing - commerce clause argument?

Answer 29

maybe the state is acting as a market participant by determining how to dispose of assets (animals/resources) owned by the state and market participant exception applies?