6. Dormant Commerce Clause, Presidential Power Flashcards
When does the dormant commerce clause come into play?
When a State enacts commerce legislation, AND Congress has not regulated in that area yet. Even in the absence of Federal regulation, the courts put some limit on state enacted commerce legislation
Can a state prohibit the importation of waste from outside the state even in the absence of prompting federal legislation?
Yes. if the ultimate perupose of a state law is to discrimatioe against other states, it is invalid under the dormant commerce callus. Philadelphia v New Jearsy
What about neutral (it imposes the same restrictions upon itself) burdens imposed upon other states?
A blanking test is done. if the challenger can prove that the burden is EXCESSIVE then the law will not stand. Pike balancing test. If the burden on state commerce activity outright the benefit then the law will not stand
What is the one exception to the Dormant Commerce Clause
If state legislation is narrowly tailored, and the goal is otherwise impossible without the legislation. Maine v Taylor
What is the importance of the Pork Producers Case?
Refraed the Pike banking test for Dormant Commerce clause. the anti-discrimination consideration is the core of it all
When is it allowable for a State to be protectionist against other states?
When the state itself is a market participant, but must be participating in the exact same maket that the legiaslation controls. South Central Timber case
what is the privileges and immunities clause?
In Article 1, not the 14th. Protects individual rights. But, unlike DCC, it requires proof if discrimination to invalidate government action
Does Privileges and immunities protect corporations?
No. Only natural persons
Can the President actually Unilaterally?
Yes, but only in ways that are enumerated to them. Steel seizure case. The president can only act through the Constitution, or through powers that Congress grants to them
What powers does the President have?
the “take care power” that all laws are faithfully executed, and military power amongst others
What are the 3 zones of presidential power as specified in the Steel Secure case>
o 1. Zone of maximum power – when the President acts pursuant to an express or implied act of Congress. Here authority is at its greatest. When the Constitution and Congress align to give Presidential powers)
o 2. The Twilight Zone – when the President acts in the absence of Congressional approval. Where the distribution of power is uncertain. Therefore COngressioanl inercia can invite independent Presdiential power. When Congress has not ruled on an action. If there is a real emergency which demands immediate action and Congress is silent, then the President can have flexible power.
o 3. Zone of Minimum power. Where power is at its weakest. When the President only relies on Constitutioanl power, against Congress. In the zone of Minimum power, the President’s action can only be Constitutional.
What are the 2 types of appointment the President can do?
- Principle Officers
a. Amabassedors, public consults, SCOTUS judges
b. Must be appointed with the advice and consent of the Senate, no role for the House
c. The President nominates, and then the Senate confirms appointments - Inferior Officers
a. May be appointed by the president, but they don’t have to be. They can be appointed by the President, Courts, or the Heads of Departments
b. Congress may by law vest these apointments to the President and heads of departments
How many days must congress be absent for there to be a recess?
10 days National Labor Board v Canning
