Con Law Flashcards
(133 cards)
Supreme Court Review: Mandatory Review
State v. state; decision of 3 federal judge panel
Permissive Supreme Court Review
On vote of 4 justices, review of decisions from highest state court if no AISG; decisions from US CAP
No Federal Court Review
Private party v. state (except under § 5)
Inter-Governmental Suits
US can sue state but state can’t sue US without permit; states can sue other states with mandatory sup ct review
Federal Police Power
“MILD”: Military, Indian (reservations), (federal) Land, District (of Columbia).
Strings Attached to Congressional Spending on States
(1) EXPRESSLY STATED
(2) RELATED TO SPENDING PROGRAM’S PURPOSE
(3) NOT UNDULY COERCIVE
Removal: Permissible Congressional Limits on President’s Removal Power
(1) Independence from President desirable
(2) Limited to Good Cause Shown
Executive Agreements versus Treaties
Later in time treaty > federal law > executive agreement
Treaties require approval by Senate
Pardon Power
“CRIMINALS FESTER INSIDE”
(1) Must be for CRIMINAL offense
(2) Charged under FEDERAL law
(3) Congress has not IMPEACHED the person
Fourteenth Amendment P+I Clause
RIGHT TO TRAVEL: State can’t discriminate against people who move into the state; right to enter onto federal lands; right to petition congress for redress of grievances, right to vote for federal officers.
Must be NECESSARY to achieve an IMPORTANT government purpose; no LDA. Requires SUBSTANTIAL JUSTIFICATION.
Article IV P+I Clause
RIGHT TO EARN A LIVING: State can’t discriminate against NON-RESIDENTS trying to earn a living in that state. Must be NECESSARY to achieve an IMPORTANT government purpose; no LDA. Requires SUBSTANTIAL JUSTIFICATION.
Dormant Commerce Clause
(1) If a state law AFFECTS interstate commerce; then (2) BALANCING TEST if no discrimination against out-of-staters; and (3) if there’s discrimination against out-of-staters, gov’t must show that the law is NECESSARY to achieve an IMPORTANT government purpose (NO LDA)
EXCEPTION: GOV’T AS MARKET PARTICIPANT
Dormant Commerce Clause and State Taxes
Cannot discriminate against out-of-staters
A non-discriminatory tax is valid if:
STATES NEED FREQUENT ADVICE FROM RABBIS
S ubstantial N exus (between prod/activit taxe and the state)
F airly A pportioned (to avoid double taxation)
F air R elation (to the services provided by state)
NO TAXATION ON COMMODITIES IN COURSE OF INTERSTATE TRAVEL UNTIL GOODS REACH DESTINATION
TAX ON INSTRUMENTALITIES OK IF THERE IS A TAXABLE SITUS AND THE ABOVE TEST IS MET. PROPER APPORTIONMENT = AVG PHYS PRESENCE OF INSTRUMENTALITY IN THE STATE
FULL FAITH AND CREDIT
(1) jurisdiction of rendering court (PJ + SMJ)
(2) final judgment
(3) on the merits
Bill of Rights Not Applicable To States
8th Am. prohibition of excessive fines; 7th Am. right to jury trial in civil cases; 5th Am. right to grand jury indictment in criminal cases; 3rd Am. right against quartering of soldiers.
§ 5 of the Fourteenth Amendment
Congress’s law must be NARROWLY TAILORED, congruent, and proportional, to rectify a history or pattern of EPC violations.
Strict Scrutiny
NECESSARY to achieve a COMPELLING gov’t purpose; no LDA. Gov’t burden.
Intermediate Scrutiny
SUBSTANTIALLY RELATED to an IMPORTANT gov’t purpose, narrowly tailored. Gov’t has burden of showing exceedingly persuasive justification for the discrimination.
Rational Basis
Reasonable/rationally related to a conceivable gov’t purpose. Petitioner’s burden.
Contracts Clause
Private –> substantial impairment triggers intermediate scrutiny
Public –> substantial impairment triggers higher scrutiny, maybe strict scrutiny
Due Process Balancing test
(1) IMPORTANCE of interest to individual;
(2) AVAILABILITY of add’l procedures to increase accuracy;
(3) Government interest in EFFICIENCY
DP: Termination of welfare benefits
Notice and a hearing
DP: Right to custody of one’s children
Notice and a hearing
DP: Termination of social security DISABILITY benefits
POST-TERMINATION hearing
