Con Law Flashcards
Congressional Contracts Clause
The Contracts Clause prohibits states from retroactively and substantially impairing contract rights unless the governmental act serves an important and legitimate government interest and is a reasonable and narrowly tailored means of promoting that interest
Congressional Property Clause / Police Power
— Under Article IV, Section 3, Congress has the power “to make all needful rules and regulations respecting the territory or other property belonging to the United States.” —Covers DC, Federal Lands (bases, National Parks), and NA Reservations
—Has police powers over these lands
Congressional Power to Investigate
Limited to matters on which it can legislate.
Thus, if person in front of Congressional Hearing can demonstrate that the questions concerned matters upon which Congress could not legislate (not an enumerated power under Article I, Section 8), then this contempt citation must be dismissed
Congressional Power to Delegate
Supreme Court will uphold almost any delegation of congressional power.
NOT ALLOWED TO CONFER FEDREAL COURT STANDING (can just confer rights, injury to which may be sufficient for standing)
Not allowed to have enforcement powers (limited to congressional powers and separation of powers)
13th Amendment’s Enabling Clause
Held to confer on Congress the authority to proscribe almost any private racially discriminatory action that can be characterized as a badge or incident of slavery. Because the statute at issue bans all discrimination against African-Americans in commercial transactions, it necessarily reaches private conduct.
10th Amendment: Anti-Commandeering
Congress can’t pass laws to force states to pass a law
Congressional Commerce Power
Permits Congress to regulate any local or interstate activity that, either in itself or in combination with other activities, has an effect on interstate commerce
Note: A municipality may use zoning to limit the location of adult entertainment establishments to combat the secondary effects of such businesses, such as lowering of property values, increased traffic, etc
Congressional Admiralty Power
Congress can regulate all navigable waterways
Congressional Appointments Clause
Permits Congress to vest appointments of inferior officers only in the President, the courts, or the heads of departments. Enforcement is an executive act; therefore, Congress cannot appoint members of a commission that exercises enforcement powers.
Executive Privilege
An inherent privilege necessary to protect the confidentiality of presidential communications. Under this privilege, presidential documents and conversations are presumptively privileged, but this privilege must yield to a demonstrated need for such materials as evidence in a criminal case in which they are relevant and otherwise admissible.
Line Item Vetoes
NO LINE ITEM VETOES, BUT MEMBERS OF CONGRESS LACK STANDING TO CHALLENGE A LAW authorizing line item veto
Executive Agreements
supersede state law but not federal. Even an area is generally is within a state’s exclusive power as far as regulation is concerned. Where this activity also falls within the federal government’s exclusive power over international affairs, any conflicting state regulations are superseded.
Ambassador Appointment
Article II, Section 2 provides that the President shall nominate, and with the advice and consent of the Senate shall appoint, ambassadors and other officers of the United States.
The section also provides that Congress may vest the appointment of inferior officers in the President alone, in the courts of law, or in the heads of departments. Under separation of powers principles, however, Congress may not vest in itself any broader appointment powers than what is provided for by the Constitution
Congressional Spending Power
Allowed to indirectly regulate (can condition grants of money under its spending power)
“integral gov function” – federalism/10th amendment and is almost always wrong.
Spending Power again (indirectly regulates; not direct)
Interstate Commerce
Commercial: may be regulated where there’s a conceivable rational basis that the activity in aggregate substantially effects interstate commerce
Non-commercial: factual finding is required that there is a substantial econ effect on interst commerce
Congress may consent/delegate to state’s commerce regulations (Q94); can also delegate this power to SC and President
The Supreme Court has construed the scope of the Commerce Clause very broadly, so that it covers the regulation of drug packaging, which has a substantial economic effect on interstate commerce
“Doing Business” Taxes
May impose “doing business” taxes on companies as long as the tax does not discriminate or unfairly burden state commerce—unfair burden unless (i) activity taxed has a substantial nexus to the taxing state; (ii) tax is fairly apportioned; and (iii) the tax fairly relates to the services provided by the state
Dormant Commerce Clause
Must be non-discriminatory and no undue burden on interest commerce (balancing test)
Privileges and Immunities Clause
Where 1 state is discriminating against a citizen/resident of another state re: a basic economic right (such as pursuit of livelihood).
The Privileges and Immunities Clause of Article IV prohibits states and municipalities from discriminating against residents of other states. Not all discrimination is prohibited—only that which substantially interferes with important commercial activities or civil liberties. The Supreme Court has held that the right to pursue a livelihood is a right protected by the Privileges and Immunities Clause, and also has held that a requirement that private contractors on city projects employ a certain percentage of city residents substantially interferes with the right.
No Market Participant Exception (under DCC)
Requires substantial justification for the discriminatory treatment. Show nonresidents either cause or are part of the problem it is attempting to solve and no less restrictive means to solve.
