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Flashcards in Con Law Deck (133)
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1

Supreme Court Review: Mandatory Review

State v. state; decision of 3 federal judge panel

2

Permissive Supreme Court Review

On vote of 4 justices, review of decisions from highest state court if no AISG; decisions from US CAP

3

No Federal Court Review

Private party v. state (except under § 5)

4

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

5

Federal Police Power

"MILD": Military, Indian (reservations), (federal) Land, District (of Columbia).

6

Strings Attached to Congressional Spending on States

(1) EXPRESSLY STATED
(2) RELATED TO SPENDING PROGRAM'S PURPOSE
(3) NOT UNDULY COERCIVE

7

Removal: Permissible Congressional Limits on President's Removal Power

(1) Independence from President desirable
(2) Limited to Good Cause Shown

8

Executive Agreements versus Treaties

Later in time treaty > federal law > executive agreement

Treaties require approval by Senate

9

Pardon Power

"CRIMINALS FESTER INSIDE"
(1) Must be for CRIMINAL offense
(2) Charged under FEDERAL law
(3) Congress has not IMPEACHED the person

10

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.

11

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.

12

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

13

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

14

FULL FAITH AND CREDIT

(1) jurisdiction of rendering court (PJ + SMJ)
(2) final judgment
(3) on the merits

15

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.

16

§ 5 of the Fourteenth Amendment

Congress's law must be NARROWLY TAILORED, congruent, and proportional, to rectify a history or pattern of EPC violations.

17

Strict Scrutiny

NECESSARY to achieve a COMPELLING gov't purpose; no LDA. Gov't burden.

18

Intermediate Scrutiny

SUBSTANTIALLY RELATED to an IMPORTANT gov't purpose, narrowly tailored. Gov't has burden of showing exceedingly persuasive justification for the discrimination.

19

Rational Basis

Reasonable/rationally related to a conceivable gov't purpose. Petitioner's burden.

20

Contracts Clause

Private --> substantial impairment triggers intermediate scrutiny
Public --> substantial impairment triggers higher scrutiny, maybe strict scrutiny

21

Due Process Balancing test

(1) IMPORTANCE of interest to individual;
(2) AVAILABILITY of add'l procedures to increase accuracy;
(3) Government interest in EFFICIENCY

22

DP: Termination of welfare benefits

Notice and a hearing

23

DP: Right to custody of one's children

Notice and a hearing

24

DP: Termination of social security DISABILITY benefits

POST-TERMINATION hearing

25

DP: Punitive Damage awards

jury instructions to guide discretion + judicial review to ensure reasonableness of award

26

DP: non-citizen held as enemy combatant

ability to challenge continued detention through some legitimate procedure

27

DP: public employment, if tenured or termination only allowed for cause

Prior notice, opportunity to respond, and post-deprivation hearing

28

DP: Public education -- suspension or academic dismissal

Prior notice, opportunity to respond (no hearing required)

29

DP: U.S. citizen facing crim charges in foreign country, held by Us military

Habeas corpus petition and review in federal court

30

DP: Recusal of judge

Required if` substantial risk of actual bias