Con Law 2 - Separation of Powers, Federalism, State Action Flashcards Preview

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Flashcards in Con Law 2 - Separation of Powers, Federalism, State Action Deck (48):

Requirement for a Constitutional State Law

IT can't conflict with an individual right.


3 Sources of Congressional Power

1. Enumerated Powers.
2. Enforcement Powers of the 13th, 14th, and 15th amendments.
3. Necessary and Proper Clause


Commerce Power - 3 Subjects of Regulation

1. Channels - through which interstate commerce flows.
2. Instrumentalities - things that cross state lines including the means by which commerce is conducted e.g. cars, trains, etc.
3. Substantial effect on interstate commerce.


"Substantial Effect" on Interstate Commerce

Cumulative Effect Doctrine - all similar actions by small actors addd up to a substantial effect.
Limitations - can't be for in-state non-economic activity.


Taxing Power

Congress can tax if it falls into one of 3 categories:
(1) Objective - tax objectively raises revenue.
(2) Subjective - congress was trying to raise $ when it enacted the tax
(3) Regulator - if congress has the power to directly regulate the activity at hand, it can use a tax as a regulation device.


Spending Power

Congress may place a condition on receipt of federal funds by a state if:
(1) General welfare - the spending must serve it.
(2) Unambiguous - the condition must be unambiguous, states have to know what they're being told to do.
(3) Relatedness - condition imposed must relate to the federal program.
(4) Constitutional - can't tell states to do something unconstitutional.
(5) No-coercion - the amount of $ cant be so great the state is coerced into taking it and meeting the condition


Congressional War Powers

1. Declare war.
2. Raise and support the army.
3. Provide and maintain a navy.
4. Organize, arm, and call out the militia.


Congressional Wartime Powers

1. Draft. Can also do this in peacetime.
2. Price controls.
3. Civilian exclusion. Confine or exclude civilians from certain areas during wartime.


Investigatory Power

Congress can investigate any matter it can legislate about and do what's necessary to facilitate the investigation. Cannot override rights though.


Property Power

Can regulate federal property by passing whatever laws it wants on them.


Power of Eminent Domain

Power to take private property away and pay compensation.


Admiralty and Maritime Power

Necessary and proper clause gives congress power to fix and determine maritime laws.


Bankruptcy Power

Power to establish uniform laws on the subject of bankruptcies.


Postal Power

Can establish a post office.


Copyright and Patent Power

Promote the progress of science and useful arts by making copyright and patent laws.


Speech and Debate Clause

Legislators are immune for things said in debate in the houses of congress.


13th Amendment

Bans slavery.


14th Amendment

Protects due process, equal protection, and privileges and immunities.


15th Amendment

Bans race discrimination in voting.


Civil War Amendments Enforcement

(1) Congress cant regulate private individuals under 14 and 15.
(2) Must create a record, e.g. holding hearings to show there's a problem.
(3) Congruent and proportional. Cant go to far past what the amendment itself does.


Congressional Delegation of Power

Congress can create agencies with rule making authority. Has to be some intelligible principle limiting the kinds of rules the agency is allowed to make.


Executive Power - Enforcement

President can enforce laws but cannot make them.


Executive Appointment

Can appoint high level officials with advice and consent of the senate.


Congressional Delegation of Appointment of Inferior Officers

Can delegate to:
(1) President. No senate confirmation needed.
(2). The courts. No confirmation needed.
(3) Heads of executive departments - can appoint people in their department.


Executive Removal Power

(1) Can remove executive officials at will and without cause.
(2) Official with fixed term or who performs a judicial or quasi judicial function have to remove for cause.
(3) Can't remove fed judges. Have to be impeached by congress.
(4) Needs no permission from congress and congress cant remove people.


Veto Power

Has 10 days to sign or veto, after 10 days it automatically gets 'signed.'
Pocket veto is when congressional term ends before the 10 days and president doesn't sign, it automatically kills the bill.


Pardons - Limitations

1. Only offenses against the US. (No state crime or civil liability.)
2. Can't undo an impeachment.


Executive Privilege

Absolute - for national security secrets if revealing the info would compromise national security.
Presumptive - for other confidential communications. Balance the requester's need for info against the sensitivity of its disclosure.


Executive Military Powers

(1) If congress hasn't declared war, president is limited to responding to attacks.
(2) If president and congress disagree about how to conduct a war, president only prevails with respect to battlefield tactics.


Treaty Power

President has power to make treaties with 2/3 senate ratification. If treaty and fed law conflict, whichever was more recently passed wins.


Executive Agreements

With other nations. No need for ratification. If conflicting with fed law, fed law wins. If conflicting with state law, exec agreement wins.


Congressional Power Over Executive

If congress is acting within its powers and has a valid law, the president has to follow it.


Impeachment Power

House has sole power to impeach, majority vote.
Senate has sole power to conduct trial, 2/3 vote.
Impeachable offense: (1) treason (2) bribery (3) high crimes and misdemeanors.


Appropriations Power

Where congress by legislative act explicitly directs prez to send appropriated money, the prez has no power to refuse to spend or delay spending the authorized funds.


Nature and Scope of Federal Powers

Limited powers. Has the powers the constitution gives it.


State Police Powers

Limited by:
(1) Exclusive federal powers. E.g. coining money, treaties, foreign affairs
(2) Can conflict with individual rights.
(3) Can be preempted by federal laws in areas where congress has the power to regulate. Congress can also flat out say states cant regulate in certain areas where congress has regulation power.


Federal Sovereign Immunity

No suit without consent. State can't create a cause of action against the feds unless the feds consent.


Supremacy Clause

Federal law is supreme over state law in a conflict.


Taxation of Feds by States

The feds and its agencies are immune from state taxation and regulation that would interfere with federal functions.


State Immunity from Fed Taxes

Only if:
(1) Unique state govt activity. Something only the state govt does.
(2) Essential state government activity.
E.g. Can't tax passing laws.


Anti-Commandeering Doctrine

Feds can't make states act as sovereigns, can't force them to:
(1) Pass laws
(2) Enforce federal laws.


Dormant Commerce Clause

States can't discriminate against out of state economic actors.


State Law Facially Discriminates Against OUt-of-state goods or economic actors

Strict Scrutiny:
(1) Compelling interest.
(2) Necessity.


State Law incidentally burdens interstate commerce

(1) Important state interest
(2) No excessive burden


Market-Participant Doctrine

Exception to dormant commerce clause, state is acting in the marketplace itself, buying things. Can buy from wherever it wants.


State Action - Public Function Theory

Activity traditionally performed by the govt. One private individual has the kind of power over another private individual that usually only the govt has.


State Action - Significant State Involvement

"State hand in private glove." State closely encouraged and supported. The state wants something done and is exerting significant control over how it gets done, but it's got a private individual to do it.


2 Requirements for Constitutional Federal Law

(1) There must be some power that justifies it.
(2) It can't conflict with an individual right.