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MGMT 311 > Chapter 2 > Flashcards

Chapter 2 Flashcards

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1
Q

Constitutional Powers of Government

A
  1. Federal Form of Government
  2. Regulatory Powers of the States
  3. Relations among the States
  4. Separations of Powers
  5. Commerce Clause
  6. Supremacy Clause/Federal Preemption
  7. Taxing Power
  8. Spending Power
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2
Q

Constitutional Powers: Federal Form of Government

A
  • Power is divided between national government and state governments (partnership)
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3
Q

Constitutional Powers: Regulatory Powers of the States

A

STATES SHOULD HAVE MORE POWER
- sovereignty
- police powers

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4
Q

Sovereignty

A

Power to govern themselves stems from the 10th amendment
- currently moving towards a bigger federal government (bail out checks, student loan forgiveness, eviction mortatorium)

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5
Q

Police Powers

A

Right of state governments to regulate private activities to protect or promote the public order, health, safety, morals, and the general welfare

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6
Q

Constitutional Powers: Relations among the States

A
  • Privileges and Immunities Clause
  • Full Faith and Credit Clause
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7
Q

Privileges and Immunities Clause

A

Article IV, Section 2 of the Constitution
“If citizens of one state engage in basic and essential activities (EARN A LIVING, ACCESS TO HOUSING) in another state they must be treated the same as citizens of the foreign state unless the foreign state has SUBSTANTIAL REASONING.”

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8
Q

Full Faith and Credit Clause

A

Article IV, Section 1 of the US Constitution
1. Applies only to CIVIL matters
2. Rights established under deeds, wills, and contracts will be honored in other states

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9
Q

Constitutional Powers: Separation of Powers

A

Legislative: makes laws
Executive: enforces laws
Judicial: judges whether laws have been violated

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10
Q

Constitutional Powers: Commerce Clause

A

Article I, Section 8 of the US Constitution
- Regulates commerce with foreign nations and between states (INTERstate)
- Federal power (pretty significant)
- Expansion of Federal power

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11
Q

Gibbons v. Ogden (1824)

A

Federal government can regulate INTRAstate if the commerce concerns one or more state

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12
Q

Wickard v. Filburn (1942)

A

Farmer’s crop production to be used wholly for consumption on his farm was subject to federal regulation because it affected interstate commerce
- affects supply and demand

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13
Q

Heart of Atlanta Motel v. U.S. (1964)

A

Motel’s arguments:
1. Civil Rights Act is unconstitutional
2. Their policies don’t affect interstate commerce
Small shop but… off of a major highway in Atlanta, Georgia
CONSTITUTIONALIZED THE CIVIL RIGHTS ACT
(Consistent with Wickard v. Filburn)

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14
Q

US v Morrison (2000)

A

Congress exceeded its authority in passing federal Violence Against Women Act
- Ruling gave the power back to the state, the act has nothing to do with commerce

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15
Q

Gonzales v. Raich (2005)

A

Medical Marijuana
- two women with cancer grew weed to numb pain
- violated the FEDERAL Controlled Substances Act, but lived in California/Colorado (where weed is legal)
WHAT CAN BE LEGAL AT A STATE LEVEL CAN BE ILLEGAL AT THE FEDERAL LEVEL

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16
Q

Dormant Commerce Clause

A

States do not have the authority to regulate interstate commerce
- State regulations can affect interstate commerce
- “Balance” states’ interests and the burden placed

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17
Q

Raymond Motor Transportation Inc. v. Rice

A

Wisconsin had a rule regulating how long 18-wheeler could be
- as a trucking company the rule affects commerce…costs time and money to follow
- law is unconstitutional
- favor usually goes to the federal government

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18
Q

Constitutional Powers: Supremacy Clause/Federal Preemption

A
  1. US Constitution, laws, and treaties are the supreme law of the land
  2. Preemption
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19
Q

Preemption:

A

Federal law preempts state law in conflict
- Congress chooses to act exclusively in an area of the law “concurrent area”
- Present anytime there is a direct conflict between state and federal law

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20
Q

Constitutional Powers: Taxing Power

A
  • Congress has the power to tax, but must be uniform/consistent throughout the states
  • Courts allow tax if it is a valid revenue-raising measure
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21
Q

Constitutional Powers: Spending Power

A
  • Congress pays debts and provides for defense and general welfare of the US
  • Rarely challenged (problem with standing) plaintiff must find a direct and personal injury
  • Congress can spend revenues to promote any objective it deems worthwhile
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22
Q

Spending Power: Promote Any Objective it Deems Worthwhile

A

(1980s) US offered to give every state money to fix roads… but they had to raise the drinking age to 21. Mothers Against Drunk Driving. Every state but Louisiana agreed, and their roads are still bad

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23
Q

Bill of Rights

A

Originally applied only to the federal government
- incorporated into the states through the 14th amendment
- US is the final interpreter of the Constitution

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24
Q

Rights are NOT absolute..

A

When unreasonable, they are unconstitutional

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25
1st Amendment
Religion, Speech, Press, Assembly, Petition
26
2nd Amendment
Bear Arms
27
4th Amendment
Free from UNREASONABLE search and seizures
28
5th Amendment
Free from self-incrimination, including due process rights
29
9th Amendment
Rights in addition to those in the constitution
30
Freedom of Speech
You have the freedom to express your opinions through protests, writing, speech, opinion letters, petitions, etc.
31
Symbolic Speech
(Non-verbal expressions) - Gestures, movements, articles of clothing - Ex: Black armbands worn in protest of the Vietnam War - Burning the American Flag
32
Texas v. Johnson (1989)
SIGNIFICANT because freedom of speech is more important than preventing citizens from disrespecting the government/military (same with not standing during the national anthem)
33
Reasonable Restrictions of Speech
- Balancing rights of citizens vs. government's duty to protect its citizens - Content Neutral Restrictions - Must serve compelling state interest and be narrowly written to achieve that interest
34
Content Neutral Restrictions
Time/Place/Manner Restrictions - content neutral and if reasonable, are ALWAYS constitution - Ex: parades (
35
Bong Hits 4 Jesus
Compelling state interest - until you're an adult you don't actually have the full freedom of speech - Ruled that public schools can attempt to prevent minors from using drugs/alcohol by preventing them from wearing/holding signs with these things
36
Corporate Political Speech
Corporations can make political contributions and express their views on controversial issues
37
Commercial Speech
Communications (advertising and marketing) made by business firms that involve only their commercial interests
38
Restriction on commercial speech is okay if it:
1. Speech is lawful and not misleading 2. The restriction seeks to implement a substantial government interest "reasonable fit" between government interest and the restriction chosen 3. the law directly advances that interest 4. The law goes no further than necessary to accomplish the objective
39
Bad Frog Brewery Inc. v. New York State Liquor Authority
- Brewery wins - NY fails to directly advance the interest and fails to go no further than necessary to advance the objective
40
Kennedy v. Bremerton School District (2022)
- Violated freedom of speech and religion - Supreme Court says that the establishment and free exercise clauses are EQUAL (one cannot be valued over the other)
41
Unprotected Speech
1. Defamation 2. Lewd and obscene speech - Hard to define (left to local standards) - Child pornography is completely banned 3. Threatening speech
42
Freedom of Religion
1. Establishment Clause 2. Free Exercise Clause
43
Establishment Clause
- Federal/State regulation can have an impact on religion as long as it does not place a significant burden on religion - primary effect is not PROMOTING or PROHIBITING a religion - 1st amendment does not require a separation of church and state
44
Free Exercise Clause
- Exemptions are made to accommodate beliefs - If religious beliefs work against public policy and welfare, the government CAN act
45
Search and Seizure
4th Amendment - Government officers must generally have a search warrant to search/seize private property
46
Warrant
Officer must have probable cause ("trustworthy evidence") to believe that the search will find SPECIFIC illegal activity
47
General Warrants are Prohibited...
Particular description of what is to be searched is required. Search only extends to what is described in the warrant
48
Exceptions to Search Warrant Requirements:
1. If it is likely that the items will be removed before warrant can be obtained 2. Plain view 3. Consent
49
Searches of Businesses
- Less probable cause is necessary - No warrant necessary if seizing spoils for contaminated foods, or highly regulated industry
50
HIGHLY REGULATED INDUSTRIES: searches of businesses
Guns, liquor, spoiled/contaminated foods
51
Self Incrimination
5th Amendment Applies to sole proprietors and solo practitioners (no legal separation between the person and the business) Does not apply to corporations or partnerships
52
When is the only time the 5th amendment can be used in a civil case?
When the answer could reveal you were engaged in CRIMINAL activity and could lead to a criminal charge
53
Due Process
5th and 14th Amendment - Procedural Due Process and Substantive Due Process
54
Procedural Due Process
Focus is on the procedures used when the government takes life, liberty, or property
55
Substantive Due Process
- Focus is on the content (substance) of legislation or governmental action - Standards of review
56
Standards of Review
Tests the courts require the government to pass when a law is allegedly violating our due process and equal protection rights is challenged
57
Substantive Due Process - Strict Scrutiny
Law must further a compelling governmental interest Applied to: fundamental rights - 1st amendment - Right to vote - Right to privacy - Right to interstate travel - Right to marriage and family
58
Substantive Due Process - Rational Basis
Law must be rationally related to a legitimate governmental interest - Applied to: economic matters or social issues - "By default"
59
Equal Protection
14th Amendment The government rules and policies and laws have to treat similarly situated individuals in a similar manner
60
Difference between Substantive Due Process and Equal Protection:
- Substantive Due Process applies when the law or government action limits the liberty of ALL persons to do something - Equal Protection applies when the law or government action limits the liberty of some persons, but not others
61
Equal Protection - Strict Scrutiny
Government must have a compelling interest and the law must be narrowly tailored - Applied to: - Fundamental rights - "Suspect Class": race, national origin, citizenship
62
Example of Equal Protection - Strict Scrutiny
Abigail Fisher at UT Admissions: argued she didn't get in because of race - Use race as little as possible (court ruled that strict scrutiny is fulfilled)
63
Equal Protection - Intermediate Scrutiny
Government action must be substantially related to important government objectives - Used frequently and more important than due process - Applies to : Gender and Legitimacy
64
Example of Equal Protection - Intermediate Scrutiny
Statutory rape laws only punishing men, pregnancy is a burden on the welfare system (illegitimate)
65
Equal Protection - Rational Basis
Government action must relate rationally to a legitimate governmental purpose Applies to: economic matters and social issues - It is easier for the government to win rational basis than an individual
66
Example of Equal Protection - Rational Basis
Bigger restaurants have to be inspected more frequently by city ordinance because the more people the more likely for the restaurant to have issues of cleanliness, safety, etc.
67
Is the right to privacy a constitutional right?
Not explicitly, however, it is implied by the 1st, 3rd, 4th, 5th, and 9th Amendments
68
Griswold v. Connecticut (1945)
"The right to privacy is the most comprehensive of rights and the right most valued by civilized men"

MGMT 311 (17 decks)

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