con law review Flashcards
(135 cards)
1
Q
preemption
A
-comes from supremacy clause of constitution (“constitution, federal laws and treaties are the supreme law of the land”)
- if federal and state laws conflict (i.e. impossible to comply with both), the federal law prevails
- if state law impedes achievement of federal objective, it is invalid even if goal is to promote valid state goals
- if Congress demonstrated a clear intent to preempt state law by occupying an entire field, federal law preempts (example: comprehensive regulations or a federal agency oversees an area)
Court presumes not preempted
2
Q
express preemption
A
Congress explicitly states federal law is exclusive in an area
3
Q
dormant commerce clause
A
state law is invalid if it discriminates against interstate commerce or unduly burdens interstate commerce
applies to both corporation and natural persons
discriminatory law may be valid if it furthers a noneconomic, important state interest and there are no reasonable nondiscriminatory alternatives
if undue burden, may be valid if the burden is outweighed by a legitimate local interest. whether less restrictive alternatives are available is a factor.
4
Q
privileges and immunities clause of article iv
A
No state may deprive other citizens of other states the privileges and immunities it gives its own citizens, unless the state has a substantial justification and there are no less restrictive alternatives
- applies only to natural persons and citizens- aliens and corporations are not considered citizens of a state
- only protects commercial activities important to earning a living and fundamental rights- civil liberties
*state must show important state interest and no less restrictive alternatives - important state interest means the out of state residents must cause a particular problem or be part of the problem and the legislation must be tailored to address it
note- recreational activities not protected
5
Q
discriminatory laws may be challenged under
A
- dormant commerce clause- if burdens interstate commerce
- privileges and immunities Article IV: if it discriminates against out of staters in regard to civil liberties or important economic activities
- equal protection
6
Q
does the market participant exception apply to Article IV privileges and immunities?
A
No, it only applies to Dormant Commerce Clause
7
Q
privileges or immunities clause- fed gov
A
states may not deny citizens the privileges or immunities of national citizenship- ex: right to travel and right to vote for federal officials
Does not include rights listed bill of rights, for example right to have guns
8
Q
exceptions to dormant commerce clause
A
market participant exception- the state can prefer its own citizens when it buys or sells products or hires labor
Law favors government actor performing traditionally govt function (ex- all waste must be processed by state government facility, or exempting in state city and state bonds from tax because issuing bonds to pay for public projects is a traditional govt function)
Congress authorizes the state law
9
Q
if the law burdens interstate commerce but is not discriminatory, how can it be challenged?
A
dormant commerce clause only.
Article IV only applies if discriminates against out of staters.
10
Q
full faith and credit
A
courts must give full faith and credit to judgments of courts in another state so long as the court that rendered the judgment had jurisdiction, judgment on the merits, judgment is final.
11
Q
requirements for case alleging violation of individual liberties
A
state action
restrict fundamental right and/or suspect class
fail to meet level of scrutiny
12
Q
examples of entanglement giving rise to state action
A
- private entity regulating interscholastic sports within a state
- state gives books to school racially discriminating
- court enforcing a racially restrictive covenant
- government leases premises to restaurant intentionally discriminating b/c state is getting a benefit (but NOT if it gives a liquor license to a private club that discriminates)
giving a business a license or giving a monopoly to or heavily regulating utilities does not amount to entanglement
13
Q
private conduct may have to comply with Constitution if
A
- Congress passes law under 13th Amendment (which prohibits slavery)
- Congress passes law under 14th Amendment to enforce rights and guarantees provided by the 14th Amendment (prevent or remedy court-recognized violations)
- Congress passes law under commerce power (in activities that might have a substantial effect on interstate commerce)
to prohibit discrimination
14
Q
due process- defining liberty and property
A
liberty: includes right to contract, engage in gainful employment. a deprivation occurs if the person loses significant freedom of action or is denied a freedom provided by the Constitution or statute
property: legitimate claim or entitlement to a benefit under state or federal law.
- must be a reasonable expectation of continued receipt of the benefit (ex: govt employee has contract for 1 year, has reas. expectation that he will have the job for 1 year)
- at will employment does not count
15
Q
in intermediate scrutiny, who has the burden?
A
the government
16
Q
in rational basis scrutiny, who has the burden?
A
challenger
17
Q
in strict scrutiny, who has the burden?
A
the government
18
Q
the least restrictive alternative analysis is conducted in what level of scrutiny?
A
strict scrutiny only
19
Q
procedural due process- clause and required process test
A
No person shall be deprived of life liberty or property without due process of law
- importance of the interest to the individual
- value of specific procedural safeguards to the interest (is there a risk of error from current procedures or is there a benefit of changing them or adding more protections?)
- government interest in fiscal and administrative efficiency
always: notice, opportunity to be heard, unbiased decisionmaker
often fair procedure means a hearing BEFORE the liberty/property is taken, unless doing so is too burdensome to the govt. in many cases notice and chance to respond suffices (school children and prisoners have lower needs; public employees facing termination may not be feasibly able to have a pre-term hearing).
welfare benefits, driver licenses, or garnishing wages or property in a lawsuit by a creditor require an advance hearing before deprivation.
disability benefits and public employment require post-deprivation hearings.
20
Q
due process- punitive damages
A
jury instructions and judicial review to ensure that award is reasonable. grossly excessive awards violate due process
21
Q
due process- institutionalization
A
prior notice and prior evidentiary hearing (adults)
prior screening by neutral factfinder (child)
22
Q
due process- seizure of assets
A
generally- notice and hearing
exigent circumstances- attachment, notice and hearing
23
Q
Takings clause: government may take property for public use if it provides just compensation
government take private property?
if yes- for public use?
just compensation paid?
A
taking: confiscation, physical occupation, or leaving no economically viable use of land
public use: rationally related to legitimate public purpose (health, welfare, safety, economic, aesthetic reasons)
just compensation: measured by loss to owner
24
Q
is a temporary denial of use of property a violation of the takings clause?
A
No, not usually. In determining whether govt must pay just compensation, courts look at:
good faith, reasonable expectation of owners, length of delay, impact on property value.
25
substantive due process v. equal protection
if limits liberty of all persons, due process. if it takes away from only some people, EP.
26
substantive due process level of scrutiny for fundamental rights
strict scrutiny
ex: right to privacy, right to travel, right to bear arms, right to vote
NOT education
27
rights under the privacy umbrella
1. right to marry- interference requires strict scrutiny
2. right to procreate- sterilizing someone against their will, must have strict scrutiny
3. right to custody- compelling reason to deny, such as neglect. note: irrebuttable presumption that woman's husband is the father of her child is ok
4. right to use contraceptives (compelling interest of supporting children)
5. right to abortion- no longer privacy right and states may regulate
6. right to read obscene material in one's home
7. right to keep extended family together- zoning regulation can't prevent family members from living together
8. right to refuse medical treatment (but no right to physician assisted death)
9. right to engage in private, consensual sexual activity (includes homosexual)
10. parental rights- includes custody and management/care of kid
28
right to travel subs. due process
laws preventing people from moving into a state must meet strict scrutiny.
durational residency requirements before can receive benefit- strict scrutiny
restrictions on foreign travel- rational basis
29
right to vote subs. due process
- residency requirements- meet strict scrutiny b/c compelling interest in ensuring only bona fide residents vote (30 days valid, 1 year invalid)
- requiring property ownership usually invalid
- poll tax invalid
NONRESIDENTS- can be forbidden voting rights if rational basis
30
equal protection
Fourteenth Amendment for states
Fifth Amendment- Due Process Clause for feds
Where a law treats a person or class of persons differently from others, it is an equal protection question.
31
gender discrimination
quasi suspect classification
| government must show exceedingly persuasive justification
32
proving discriminatory classification
- law discriminatory on its face
- law facially neutral, but applied in a discriminatory way with intent (ex: prices differ or eligibility for exemption differ based on race)
- discriminatory motive for a facially neutral and neutrally applied law (difficult- must show evidence of a history of discrimination)
33
racial set asides
strict scrutiny. if past discrimination, satisfies compelling state interest.
must be persistent and readily identifiable.
34
diversity as justification for moving students of different races
strict scrutiny, and only compelling interest for universities
35
important interest for gender classification
remedying past discrimination and inequality of opportunity
36
alienage classifications (citizenship) and state law
must meet strict scrutiny
BUT if: participation in self-government and offices involving important public policy...must meet rational basis
ex of self-government: voting, jury, public office
important public policy: public school teacher- primary and secondary, probation officer, police officer
37
Congressional discrimination against aliens
plenary power to regulate immigration, so may deny benefits. as long as not arbitrary
38
undocumented aliens- state discrimination
not suspect classification. subject to rational basis as long as not totally arbitrary
Law denying education to alien children was not rationally related to legit gov interest
39
state discrimination against aliens (not undocumented)
strict scrutiny (re: welfare, jobs, licenses)
40
legitimacy (illegitimate children do not receive a benefit, for example)
quasi suspect justification
intermediate scrutiny- substantially related to important government interest (inheritance restriction and benefit restrictions failed)
41
sexual orientation
rational basis
42
government speech
not subject to First Amendment. government can promote its own views.
generally can fund private messages if on viewpoint neutral basis. however, can fund artists based on content.
43
content regulation
must meet strict scrutiny.
types of content reg:
subject matter- restricted to certain topics
viewpoint- restricted to certain points of view
note: can place burdens on obscenity and defamation due to its content
44
content neutral law
need only meet intermediate scrutiny.
must advance important interests unrelated to suppression of speech
must not burden substantially more speech than necessary
45
overbroad
regulation prohibits a substantial amount of protected speech in relation to its plainly legitimate sweep (no entering private property to promote any cause without a license, for example)
46
expressive conduct
conduct intended to communicate, or that could be reasonably perceived as communicating a message
government can regulate conduct communicating speech if
1) govt has an important interest unrelated to suppressing speech
2) regulation's incidental burden on speech no greater than necessary
campaign contribution limit is constitutional
spending limit unconstitutional
47
unprotected speech
1. obscenity
2. fighting words- would provoke retaliation in a reasonable person
3. true threats- words likely to place a specific person or group in fear of imminent harm
3. incitement of illegal activity- directed to producing or inciting illegal activity and likely to do so.
4. false advertising
5. defamation
48
obscenity
describes or depicts conduct that, taken as a whole:
- appeals to the Prurient interest, under a community standard
- is patently Offensive, under a community standard
- lacks erious historical, artistic, political, or scientific Value by national standards
(POV)
private possession may not be punished
49
child pornography
state may prohibit altogether even if not obscene, so long as minors actually used in the film
private possession may be punished
50
profane and indecent speech
generally protected
| except: broadcast media may ban because pervasive, public schools may ban
51
commercial speech
advertising for illegal activity, false or misleading ads are not protected and may be banned.
other speech regulations (heavy int scrutiny):
- must serve substantial govt interest
- directly advance the interest
- narrowly tailored to serve the interest (but need not be least restrictive alternative- just reas. fit b/w goal and means chosen to achieve)
52
defamation- public concern
P must prove falsity; public figure P must prove actual malice, private figure negligence
if private figure only proves negligence and can't prove actual malice, must prove their actual damages and they don't get punitive damages.
53
limited and nonpublic forum test
viewpoint neutral regulation
bears a reasonable relationship to a legitimate government purpose
i.e. rational basis
54
private property first amendment
there is no first amendment right to use private property for speech purposes
55
punishing membership in a group
implicates freedom of association.
must prove that person actively affiliated
knew of illegal activities
with specific intent to further the illegal activity
56
types of govt law/action that can and cannot be challenged on free exercise grounds
a) general conduct laws- cannot challenge (law applies generally to everyone)
b) law specifically designed to interfere- may challenge
c) refusal to grant exemptions- generally may not challenge, unless unemployment compensation for someone who quits job for religious reasons
57
takings: use regs
- govt can regulate use through zoning ordinances: usually not a taking
use regs that are takings
1) physical appropriation
2) deny all economic use (decrease in value not taking if economic viable use remains)
3) unreasonably interferes w/ distinct investment backed expectations (bought the land having spent money, expecting to use it certain way)
58
government employee fired for speech
two tests-
1) matter of public concern, unrelated to official duties- balance employee's rights as a citizen to comment on the matter vs. govt interest in efficient performance of job
2) not matter of pub concern- deferential to govt as to whether disruptive
EXCEPT- statements made in course of official duty may ALWAYS be punished (regardless of public concern)
59
incitement
clear and present danger test:
- directed to producing or inciting imminent lawless action
- likely to produce or incite imminent lawless action
60
fighting words
fighting words- personally abusive words likely to incite immediate physical retaliation when addressed to an ordinary person
-very narrowly read. "fuck the draft" not fighting words
-statutes prohibiting cannot be content based!! (ex: insulting words based on race, religion)
61
content v. conduct- scrutiny
-content regulation: presumed unconstitutional. govt must prove necessary to serve compelling purpose & narrowly tailored to serve that purpose
if content neutral- intermediate scrutiny
conduct: gov may regulate content related to speech through content neutral, time place and manner regulations
62
intermediate scrutiny test
important government purpose (unrelated to speech)
| do not burden substantially more speech than necessary to further the purpose
63
declaratory judgment standing (aka no advisory opinion rule)
must be present harm or specific threat of future harm
must show they have engaged in, or wish to engage in, specific conduct
challenged action poses a real and immediate danger
64
analyzing the constitutionality of restrictions on running for office
implicates the 14th amendment- right to vote
filing fees that are too high for indigents fail.
other restrictions- must be reasonable, nondiscriminatory means of promoting important state interest
65
zoning ordinances limiting operation of adult bookstores: 1st amendment
restriction constitutional if
| 1) designed to promote substantial interests and 2) does not prohibit all such entertainment
66
If Congress mandates that funds be spent for a certain purpose, can President refuse?
No, the president may not impound.
67
takings- when found
- traditionally: takings clause only applied when govt physically appropriated property
- today: taking applies when govt takes action that is a physical invasion, destruction of, or denial of all economic use of property
- decreasing economic value not a taking unless no economically viable use
68
takings- public use
rationally related to legitimate public purpose (health, welfare, safety, moral, social, economic goals)
69
justiciability / case or controversy
whether a federal court can hear a case. (whether it can get its ARMS around it). must be a case or controversy. meaning:
1. not *Advisory* opinion (exception: dec relief if parties have a genuine dispute)
2. must be *Ripe*- a) dispute has developed so that it is concrete enough for the court to issue a decision and b) hardship in making p wait or provoke enforcement if court does not hear it. not based on uncertain future events (unless people are already acting as if the future event will happen and P is harmed- immediate harm exception)
3. must not be *Moot*- live controversy at all stages of the case, unless :
a law or policy affects something that occurs over a short period (pregnancy, elections) that can repeat or
if D stops doing something that harms P but could start again or
Class rep claim can become moot if another class members claim is still viable
4. P has *Standing*-
a) a particular injury that specifically affects P and in fact exists- not hypothetical ; b) causation of the injury by D's conduct;
c) redressability by the court (ruling would eliminate harm to p).
5. Must not be an independent adequate state law ground for an appealed judgment so that even if fed court decided the issue of the federal law, the case would have the same outcome under state law.
6. Must not be an unsettled question of state law
70
other reasons there may be no case or controversy
abstention- there is an unsettled issue of state law
political question- the decision should be made by another branch of govt per the constitution, or the judicial process can't resolve the dispute
eleventh amendment bar on suits against states. exceptions
-if federal government or another state sues.
-suits against state officers if an injunction is sought as to an unconstitutional policy, or order would compel payment of damages by the state.
-if the state consents to the lawsuit by express waiver or implied consent to yield to federal powers (ED and military)
71
congress's powers
-taxing power
-spending power
-commerce power
Postal power- reas restrictions on use of the mail
-federal property power- acquire, dispose of, and regulate
-necessary & proper to its exercise of its other powers
-declare war, raise and support army and navy, create rules for military tribunals
-citizenship/ immigration- exclusive power over. Can pass laws excluding aliens.
-patent and copyright
-Investigatory power
72
standing in a lawsuit alleging congress overburdened free speech
Citizens whose free speech wouldn’t be protected can sue on free speech law that is overbroad
73
speech or debate clause
senators and representatives cannot be questioned about speech in either house, even if it is defamatory. Also applies to state legislators.
newspapers will not be immune for repeating defamatory statement made in either house, however.
74
infringement of fundamental rights
must pass strict scrutiny. test = necessary to protect compelling interest.
may be an equal protection (if affects certain people) or due process problem (if affects all people)
75
standing on behalf of others
organizational standing- the injury is related to organization's purpose and its members are harmed, and no need to have members sue separately (ie to prove damages)
Third party with own standing
can assert others' rights when
it would be difficult for others to do so themselves (either to protect identity, because they have limited funds, or when the plaintiff and injured party have a close relationship like a guardian/child)
76
what is the proper court for cases between states?
Supreme Court- no other court has jurisdiction
77
spending power
congress's power to spend money (provide for the general welfare) allows congress to condition grants of federal funds if:
1) not unduly coercive
2) the condition is clear
3) the condition is related to the program's purpose
4) condition does not violate the constitution.
78
tax power
power to impose taxes to provide for the general welfare or produce revenue
tax can be for any purpose not prohibited by constitution (establishment, first amendment for example)
cannot compel behavior (as a penalty) but can try to influence it
79
commerce power
Power to regulate foreign and interstate commerce
Includes regulations of
-channels of interstate commerce
-instrumentalities of interstate commerce (trains, cars, planes)
-activities with a substantial effect on commerce when taken together. Must have rational basis to explain effect on commerce
the latter ground is very broad and includes the right to prevent private discrimination since, in the aggregate, businesses discriminating reduces commerce. another example is minimum wage and overtime.
80
president powers
-take care - enforcement of congressional laws over domestic affairs. Also has power to issue executive orders but validity depends on whether congress has explicitly or implicitly authorized presidential action through a congressional law or at least doesn’t usurp another branch’s power or has historical precedent. If congress has said they don’t want something likely invalid
-treaties
-sending troops to war, military action to protect American lives and property
-appointing justices and ambassadors
-removal of high level purely executive officers (others like judges must be removed for bad behavior)
-veto
-pardon for criminal offenses
- represent the country in foreign affairs
81
priority of treaties; executive agreements
no priority over constitution- can't be unconstitutional
priority over state law
priority over federal laws passed before treaty. (federal laws have priority if passed after a treaty).
executive agreements > state law
federal law > executive agreements
82
state police power
power to provide for health and safety of state citizens. rational basis test unless they implicate a fundamental right or discriminate against a suspect or quasi suspect class.
83
intergovernmental immunity- taxation and regulation of the feds
the state can't tax the federal govt.
note: federal govt. can only tax state departments/entities if it taxes similar private ones
State can’t impose requirements on federal government or agents performing federal functions
84
analysis of discrimination against out of state residents
dormant commerce clause
privilege and immunities
85
rights incorporated to the states by 14th amendment for due process and equal protection purposes
amendments 1, 2, 4, 5, 6, 8, 9
3 deals with quartering of troops; 7 deals with right to jury trial in civil case. also right to grand jury indictment of 5th amendment not incorporated.
14th amendment says no state shall deprive any person of life, liberty or property w/o due process and equal protection of the law
86
contract clause
a law will be invalid if it
substantially impairs existing contract rights and
is not for a legitimate public purpose and tailored to that purpose
reducing state expenditures is not a legit public purpose.
the court will scrutinize more if the state/city is a party and trying to impact its own rights. however, a contract can't limit or give up a city/state's police power
87
equal protection prohibits discriminatory laws by the __
states
88
public forum
usually subject to strict scrutiny because traditionally speech is freely allowed here. examples are public parks, sidewalks, streets and the internet.
however will be judged by a lesser test if the regulations are content neutral and leave open alternative channels of communication. in that case the regulations must be narrowly tailored to an important government interest.
important interests include pedestrian and vehicular traffic regulation, noise, privacy, litter control, aesthetics
89
designated public forum
when a public school or university sets aside a specific time and place for speech activities by its practice or policies.
90
buffer zones are an example of ___
content neutral time, place and manner restriction. strict scrutiny will not apply
they do burden a lot of speech so more likely to be upheld if legislature has tried other restrictions first.
91
limited public forum and nonpublic forum
government property that is only opened up to speech activities on a very limited basis = limited public forum
nonpublic forum= government property not used for speech
92
defamation- public figure
public figures include people who hold office or run for it, celebrities, podcasters.
P must prove actual malice (reckless disregard for the truth of the statement or knowing the statement was false)
93
freedom of association- scrutiny
strict scrutiny, regulations must serve compelling interest
94
contribution limits & free speech
contributions to a candidate can be limited, closely drawn to sufficiently important interest of preventing corruption or appearance of corruption
95
Is a law that prohibits conduct that is involved in religious practice, or requires conduct that would violate religious beliefs, valid under free exercise?
Generally applicable laws or other government action that burdens religious practices will be upheld under the Free Exercise Clause unless it can be shown that the law or action was motivated by a desire to interfere with religion (in which case, it will be upheld only if it passes strict scrutiny).
96
religion- establishment of a religion
in determining whether government action is valid under the Establishment Clause, courts will consider whether the action is neutral with regard to religion.
If it is not neutral, courts will then consider whether the government action accords with history and faithfully reflects the understanding of the Founding Fathers.
97
religious discrimination
When a person claims that she is being punished for her religious beliefs, the court may consider whether the person challenging the law sincerely holds those beliefs.
98
congress grant of standing
explicitly by the legislation itself (ex any private citizen even if not injured )
impliedly if plaintiff is within the class of people the law seeks to protect
99
congress delegation of legislative power
can delegate to administrative agencies if there is a standard for them to use when applying the law.
if an agency tries to pass regulations about a major question (substantial economic or political impact) they must point to clear delegating language in a statute AND Court will also look at whether the agency historically has asserted the power
100
does the commerce clause allow a regulation that requires people to buy something?
no the commerce clause only allows a regulation of existing activity
101
proving preemption
court will presume that congress did not intend to preempt state regulation, unless the legislative language or other evidence shows a clear federal congressional intent to do so
102
is state action necessary in a claim alleging that a policy or practice requires involuntary servitude (13th amend violation)?
no, it applies to both government and private actors
103
equal protection- classes not protected and subject to rational basis scrutiny
age, disability, poverty
104
difference between equal protection and substantive due process analysis re: fundamental rights
when a fundamental right is limited under either clause of the constitution, it must meet strict scrutiny. must serve a compelling state interest.
105
ex post facto law
a law that retroactively alters a CRIM law to criminalize something that was not illegal when it was done, increase the punishment, or make a crime easier to prove
106
things subject to int scrutiny
-laws discriminating against quasi suspect class
-content neutral speech regulation in PF, DPF
-contract clause
-commercial speech (heavy intermediate scrutiny)
107
things subject to strict scrutiny
content based speech regulations
impairment of fundamental right
discrimination of suspect class (race)
gerrymandering on basis of race
108
use of military troops- presidential power
The President as Commander in Chief of the Armed Forces has broad discretion to use American troops in foreign countries, even if not used for military purposes and are used for aid.
109
can a state impose regulations on a military base?
No, the supremacy clause prohibits the state from regulating the federal government in its operations of military bases
110
Who can sue a state? What is the source of the limit? Exceptions ?
General rule: states can't be sued by private citizens unless state consents because of the tenth amendment grant of sovereign immunity
States are not immune from suit by other states and federal govt
Consent is either express (ex- in tort claims acts) or implied (by consenting to fed power of eminent domain and military formation, states agree to be sued in ED and be sued if they don’t comply with fed law re military and veterans)
Congress can remove immunity - ex private citizens can sue for discrimination in violation of fourteenth amendment
State officers can be sued for personal liability or injunctions requiring state to pay money in future to comply with
111
11th amendment and exceptions
States cannot be sued in state or fed court
Exception are lawsuits brought by federal gov and other states or suits against state officers for (a) damages from the officer or (b) orders requiring state to comply with law and pay money in future
Following claims by private citizens or foreign governments are barred :
(I) Actions against state governments for damages;
(ii) Actions against state governments for injunctive or declaratory relief where the state is named as a party;
(iii) Actions against state government officers where the effect of the suit will be that retroactive damages will be paid from the state treasury
Actions that are the functional equivalent of a quiet title action that would divest the state of ownership of land; and
(iv) Actions against state government officers for violating state law.
112
One person one vote
Whenever a state or federal gov establishes districts for purposes of electing representatives the number of persons in each district may not vary significantly.
Federal districts are scrutinized more than state ones- difference in state districts must not be unjustifiably large.
113
Tenth amendment commandeering
federal government can't pass laws that commandeer state officials - require them to pass certain laws or take certain actions
114
Bicameralism and presentment
Bicameralism- a law, amendment or repeal of a law must pass both houses of congress
Presentment- must be presented to president to veto in whole or in part
115
President failure to veto in 10 days
In session - becomes law
Out of session - vetoed
116
State discriminatory taxes
Taxes that only tax out of state businesses or citizens or subject them to higher rates violate commerce clause
117
Non discriminatory state taxes
Valid if tax
1) applies to an activity with a substantial nexus to the state (ex: doing business in the state)
2) apportioned fairly based on a formula
3) is fairly related to the services or benefits provided by the state
118
Can a state sue the federal government?
Only if the federal government consents
119
Congress power under the fourteenth amendment
Can’t create new rights
Can only pass narrowly tailored laws to protect rights already recognized by the courts
120
13th amendment
1) Prohibits involuntary servitude- forced labor (with or without compensation) under threat of force, jail or legal action
Does not include prison labor, drafts compelling military service, or jury duty.
2) allows Congress to prohibit any private conduct that Congress deems to be a "badge" or "incident" of slavery (ex: refusing to hire, rent to, or do business with blacks)
121
Due process - deprivation of liberty
Freedom of action - physical freedom (right not to be in jail or in a mental institution) as well as right to enter into a contract or have employment
Freedoms guaranteed by the constitution (govt employees have right to free speech and thus are owed a hearing on whether the speech is protected as a matter of public concern)
122
Due process - property
Real property, personal property, or government benefits or continued govt employment when person proves they have an entitlement to it (reas expectation of continued receipt)
For govt employment - an employment contract or a termination for cause employment
123
if congress delegates power to another agency, can congress control how the agency exercises the power after the fact?*
no, congress can only include standards in the legislation itself
124
government powers framework
Who is acting?
Feds (Pres, Congress, Courts):
Enumerated powers (Constitution)
States:
Broad
Limits from Constitution
FEBL
125
showing needed for 14th amendment power exercise by congress
congress is remedying or preventing violation of a right already recognized and is not creating a new right or expanding an existing right
a history or pattern of state violation of the right
the legislation is congruent and proportional to the violation
126
Individual Rights approach
Fundamental Rights
Discriminatory- facial, applied, impact
Classification
Burden
Scrutiny
Foul Dictator captured Black Slaves
127
Speech
State action
Place
Content
Unprotected
Manner
Burden
Scrutiny
Some People Can't Understand Maintaining Bigoted Speech
128
if a law affects a fundamental right and suspect class how should it be analyzed?
substantive due process & equal protection
129
market participant exception- state choices that are protected
a state can prefer its own residents when:
setting prices for in state vs out of state
selling products
buying products
granting subsidies
hiring labor
130
can a president decide on his own not to abide by a treaty that was signed and approved by congress?
Yes, through his power to represent the US in day to day foreign relations. very broad power!
131
standard of review for allegedly discriminatory law when there's little proof of discriminatory application or purpose
rational basis
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what types of free speech laws are void?
laws giving public officials unrestricted discretion- they need to have defined standards (ex: permit requirements)
laws that do not give enough guidance about what kind of speech it prohibits- void for vagueness
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Appointment of officers
The Appointment Clause of the Constitution permits Congress to vest appointments of inferior officers only in the President, the courts, or the heads of departments
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Standing by being a taxpayer
Generally not a basis for standing because they wouldn’t have a particular injury that’s different from the general public
However for congress spending, can challenge on establishment clause violation grounds
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Where do suits between states have to be brought ?
In the Supreme Court
