Flashcards in Con Law Deck (133)
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)
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
"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.
NECESSARY to achieve a COMPELLING gov't purpose; no LDA. Gov't burden.
SUBSTANTIALLY RELATED to an IMPORTANT gov't purpose, narrowly tailored. Gov't has burden of showing exceedingly persuasive justification for the discrimination.
Reasonable/rationally related to a conceivable gov't purpose. Petitioner's burden.
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
DP: Punitive Damage awards
jury instructions to guide discretion + judicial review to ensure reasonableness of award
DP: non-citizen held as enemy combatant
ability to challenge continued detention through some legitimate procedure
DP: public employment, if tenured or termination only allowed for cause
Prior notice, opportunity to respond, and post-deprivation hearing
DP: Public education -- suspension or academic dismissal
Prior notice, opportunity to respond (no hearing required)
DP: U.S. citizen facing crim charges in foreign country, held by Us military
Habeas corpus petition and review in federal court