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CON LAW > THE FEDERAL SYSTEM > Flashcards

THE FEDERAL SYSTEM Flashcards

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1
Q

Supremacy of Federal Power over States (3)

A
  1. constitution limits what states can do
  2. constitution expressly forbids taking certain acts (i.e coining money)
  3. constitution prohibits states from exercising power INHERENTLY FED like FOREIGN RELATIONS (i.e immigration, req for federal citizenship, declare war, foreign policy)
    * states may not sue, regulate, or directly tax fed gov without consent
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2
Q

Express Preemption

A

if Congress says that FED LAW (statutes, regulations, treaties) DISPLACE OR OUST state law in certain area then state law in that area preempted period

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3
Q

Implied Preemption

A

state law INCONSISTENT with federal law or “occupies field”

*state law may complement fed law

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4
Q

Privileges and Immunities clause IV

A

states may not discriminate against OUT OF STATE citizens (not corps or aliens) with respect to COMMERCIAL ACTIVITIES or enjoyment of CIVIL LIBERTIES

*art IV is also source of full faith and credit clause

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5
Q

“Negative” or Dormant Commerce Power (2)

A

even when Congress has not acted, state law may still be invalid IF

  1. discriminates
    or
  2. unreasonably burdens interstate commerce
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6
Q

Dormant Commerce Clause (2 kinds of discriminatory laws)

A
  1. favoring in state commerce -PER SE INVALID
    * laws favoring gov entity performing traditional activities (i.e trash collection) VALID
  2. promoting health or safety
    - UNLESS state shows no reasonable, non discrim means to achieve police power objective

*even if not discriminatory, may still be invalid if UNREASONABLE BURDEN (balancing test)

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7
Q

Dormant Commerce Clause (does not apply/modified) (4)

A
  1. if congressional approval
  2. “market participant doctrine”
    (not regulator but BUYER or SELLER of commodities or services)
  3. gov subsidies (if prefers own citizens or companies with subsidies)
  4. 21st amendment- regulate possession, sale, transport of liquors (cannot discriminate against out of state liquor though)
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8
Q

Step-by-step analysis of state/local law regulating commerce (3)

A
  1. see if FED LAW preempts or authorizes
  2. if NO, see if law DISCRIMINATES against interstate commerce (unless health and safety, subsidies, or market participant)
  3. if NO, see if UNREASONABLY BURDENSOME
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9
Q

Valid tax on interstate commerce (3)

A
  1. non discriminatory
  2. activity, person, or thing taxed SUBSTANTIAL NEXUS TO THE STATE (must be actual presence in the state)
    ex. “sales tax” in state of sale, “use tax” where property is used
  3. not unreasonable burdensome (proportional to company’s business done in the state or benefits received in the state)
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10
Q

Incorp of bill of rights against states

A
  1. apply against national gov not states

2. some apply through DUE PROCESS CLAUSE of 14th amendment

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11
Q

Req of State Action (bill of rights)

A

except for 13th, all others constitutional rights are protections ONLY against the government

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12
Q

“Public Function Doctrine” (state action)

A

when private entity performs traditional and exclusive function performed by gov (i.e elections to fill public offices) deemed state action

*narrowly applied

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13
Q

Significant state involvement with private conduct (state action) (2)

A
  1. state and private actor partners or joint venturers (deriving benefit from action of other)
    or
  2. when state actively or significantly, commands, encourages, approves of private actors challenged behavior

(examples on pg. 25 light blue book)

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14
Q

“Contract Clause”

A

state may not by legislation substantially impair PRE EXISTING K’s unless IMP AND LEGIT need and it’s REAS AND NARROWLY TAILORED means of meeting that need

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15
Q

Ex Post facto laws (3)

A
  1. makes crime today, act of yesterday
  2. increases punishment after crime committed
    OR
  3. legis reduces evidence for crime after crime committed

*criminal not civil statutes

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16
Q

Ban on Bills of attainder

A

prohibits any fed or state legislation that inflicts punishment (civil or criminal) on name individuals or ascertainable members of a group without judicial trial

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17
Q

Procedural Due Process (2)

A

cannot deprive life, liberty or property interest without:

  1. notice
  2. opportunity to be heard
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18
Q

“was there a deprivation of life, liberty, property?”

A

deprivation- intentional NOT negligent

liberty interest

  • physical liberty
  • loss of legal rights (mere harm to rep NOT)

property interest
-real and personal, tangible and intangible
-gov benefits
gov employment

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19
Q

Due Process (ct balance 3 factors)

A
  1. look at nature of individual interest
  2. likely to lead to mistake
  3. gov interest in following procedures its following
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20
Q

Access to courts for INDIGENTS

A

waiver of filing fees will be required in charging the feed would result in denial of FUNDAMENTAL RIGHT

ex. divorce, NOT bankruptcy

21
Q

Takings Clause

A

neither the government (5th) nor the states (14th) mat take private property without just compensation

22
Q

Eminent Domain (3)

A

1 taking property

  1. for public use (legitimate gov goal)
  2. just compensation (FMV at time of taking)
23
Q

What is a taking? (3 kinds)

A
  1. physical invasion or occupation (even tiny or temporary)
  2. regulatory takings (zoning, historic preservation laws etc) NOT taking if REASONABLY advances LEGIT state interest and leave viable use for the property
  3. conditional permits- must be a ROUGH proportionality (connectedness) btwn impact of proposed development and the condition
24
Q

Equal Protection Standard of review (3)

A
  1. STRICT- gov prove NECESSARY to achieve COMPELLING int
  2. INTERMED- gov prove SUBSTANTIALLY SERVES an IMPORTANT int
  3. RATIONAL- P prove lacks RATIONAL BASIS and unrelated to LEGITIMATE objective (law presumed constitutional)
25
Q

Equal Protection Discrimination (2)

A
  1. law intentionally discriminates
    or
  2. neutrally written but intentional discrimination applies

*not enough to show neutrally written law has disproportionate impact/effect

26
Q

Privacy Rights (fundamental rights) (7)

A
  1. marriage and divorce (substantial burdens or unreasonable conditions)
  2. contraception (buy and use)
  3. abortion (gov may not impose undue burden prior to viability) (i.e husband consent, or publicizing name)
    * after viability can regulate substantial and even prohibit abortion, but must be to save life of mother or her life interest)
  4. obscenity in the home (possession, not buy or sell)
  5. family relationships (raise kids, maintain relationship with child, live together as family- traditional family (i) blood or (ii) marriage)
  6. medical treatment
  7. protection for private consensual sexual activity btwn adults
27
Q

Right to Vote (fundamental right) (3)

A
  1. broad power to prescribe voting qualifications
  2. “one person one vote”
  3. access to ballot (exclusionary policies struck down if not reasonable)
28
Q

“Racial Gerrymandering”

A

If gov dawning districts to dilute minority votes, race cannot be dominating factor

STRICT SCRUTINY

29
Q

“Political Gerrymandering”

A

if intention was to block out other party overtime and effect DOES block out over time

*this is difficult to satisfy

30
Q

Right to interstate travel (fundamental right)

A

right to move from one state to another (state laws that prevent such or burden severely require strong gov justification)

*if state benefits are critically important, then waiting periods such as a year will be struck down (welfare benefits vs in state tuition)

31
Q

Special 1st amendment Doctrines (3)

A
  1. vagueness
  2. overbreadth
  3. prior restraints
32
Q

Vagueness (1st amendment)

A

ex. “crime to operate in gangs”

33
Q

Overbreadth (1st amendment)

A

ex. “bans all 1st amendment activities in airport”

34
Q

Prior Restraints

A

enjoins speech before uttered

*gov heavy burden to show necessary to prevent DIRECT, IMMEDIATE, and IRREPARABLE HARM

35
Q

Content Control

A

unless in special category or unprotected or gov shows COMPELLING need, may not restrict OPINION, MESSAGE, or IDEAS

ex. “live free or die” license plate

STRICT SCRUTINY

36
Q

Time, Place and Manner Restrictions

A

restriction not aimed at content, affects expression INDIRECTLY by regulating other conduct

ex. where you can march

37
Q

TPM requirements (3)

A
  1. content neutral (ex. bans demonstrations inside supreme court)
  2. substantial alternative opportunities for speech to take place (ex. bans picketing on single family residence)
  3. narrowly serves important state interest (ex. distribute literature from fixed booth location- crowd control)
38
Q

lawless/violent inciting speech (content exception) (2)

A

may say unpatriotic, disrespectful, offensive slurs against gov
BUT NOT SPEECH
1. directed at inciting AND
2. is in fact likely to incite IMMINENT

39
Q

Fighting words/hate speech/ true threats (content exception)

A
  • by utterance inflict injury or tend to incite immediate breach of peace
  • true threats ex. radio threat

*in practice courts routinely strike down such laws for being vague or over broad

40
Q

Obscenity (content exception) (3) 4 S’s

A
  1. average person, applying community standards finds work appeals to prurient interests “SEXY”
    (appealing to shameful or morbid sexual interest)
  2. depicts/describes in a patently offensive way, sexual conduct specifically defined by state law
    “SICKENING”, “SPECIFIC STANDARD”
  3. taken as a whole lacks, serious literary, artistic, political or scientific value
    “LACKS SERIOUS VALUE”
41
Q

Libel, Defamation, Invasions of Privacy (content exception)

A

content exception

42
Q

Commercial Speech (content exception)

A

gov may regulate/prohibit/punish FALSE, MISLEADING, or DECEITFUL or PROPOSES unlawful transaction

**if gov tries to regulate beyond above 3, must prove advances SUBSTANTIAL gov int and NARROWLY tailored

43
Q

Freedom of the Press

A
  1. press generally has the same rights as everyone else no more or less (ex. obligations to testify before a grand jury
  2. rights of the owner or publisher, not the reader or persons who are criticized in the press
44
Q

Speech of Public Employees (3)

A
  1. (not high level) may not be hired/fire based on political reasons or act of press ion
  2. if speaking as citizens about matter of public concern, may not be fired unless disturbs, undermines, or destroys relationships
  3. gov may limit right to engage in partisan political activities relating to political management/campaigning
45
Q

Speech of students in schools

A
  1. schools may prescribe course content, as long as they don’t violate 1st
  2. schools may set standards of decency in discourse (ex. no lewd speech at school play)
  3. prohibit speech that materially disrupts school activities or promotes drug use
46
Q

Religious Belief (free exercise)

A

gov may neither punish because of NOR require to profess particular belief

*gov may inquire into SINCERITY not TRUTH of beliefs

47
Q

Religious Conduct (free exercise) (3)

A
  1. laws aimed at religious behavior or conduct (unless NECESSARY, COMPELLING)
  2. generally applicable laws that happen to affect practices/conduct (ex. ban polygamy even though group practices)
  3. court resolution of church disputes (ex. who is legit church official- NO, dispute over property-YES)
48
Q

Establishment Clause

A

the gov is to remain NEUTRAL respecting religion and neither “aid one religion, aid all religions, or prefer one religion over the other)

49
Q

“lemon test”

A
  1. must have secular purpose
  2. primary effect of law neither to advance nor inhibit
  3. no excessive entanglement of gov w/ religion
    * if a law fails ANY PART of this, then considered ESTABLISHMENT

CON LAW (2 decks)

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