Scope of Federal Power Flashcards
judicial review of executive action
lowered when acting subject to a directive from congress
heightened when acting alone
enumerated powers of the executive
(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
scope of national legislative power
(1) tax and spend
(2) regulate interstate commerce
(3) power to raise and support armies
+ 14 others
necessary and proper clause
allows actions which are necessary and proper to the execution of the enumerated powers
commerce clause is used to
regulate interstate commerce, but cannot regulate
(1) purely local commerce,
(2) intrastate commerce,
(3) non-activity
political question doctrine
judiciary may not review actions that are explicitly designated in the constitution to the branch of government doing that action
federal preemption doctrine
when a federal law exists, it always preempts state law
if federal legislation leaves a gap, states are free to legislate within those gaps
commerce clause test
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
dormant commerce clause background
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.
states have police power which is the power to regulate
for the health, safety, and welfare of its citizens
state police power is subject to
federal law, because of the supremacy clause
2 types of preemption =
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.
** 2 dormant commerce clause analyses
(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
exception to dormant commerce clause
market participant exception
if government is spending own money on goods or services, they can discriminate towards its own citizens
privileges and immunity clause
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)
privileges and immunities test
substantial state interest
and
law closely related
state income/property tax analysis
(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
state sales and use tax
if use tax is higher than sales tax, then you are burdening interstate commerce
hypo: recreational fishing license costs $20 for in state, $100 for out of state
ok because recreational fishing is not a fundamental right of citizenship
due process clause and taxes
(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?
hypo: port city imposes tax on goods passing through ports
violates the import-export clause to the extent it exceeds the revenue necessary to support inspection laws
contract clause
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
takings clause analysis
(1) was there a taking
(2) was the taking for a public purpose
(3) calculation of just compensation
taking definition
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.
analysis of reasonable land use regulation
if a land use regulation is closely connected to state’s purpose
and advances an important state interest
then may be allowed
is the taking supported by a public purpose?
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
calculating just compensation?
money damages
damages due from the time the use of property was first denied
dormant commerce clause factor other than balancing test
no less restrictive alternative
hypo: regulation on hunting / fishing - commerce clause argument?
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?
