Constitution law Flashcards
(45 cards)
Commerce Clause
The Commerce Clause power is exceptionally broad. Congress can regulate four categories of activities involving interstate commerce:
(1) channels of interstate commerce, (2) instrumentalities of
interstate commerce, (3) articles moving in interstate commerce, and
(4) activities “substantially affecting” commerce.
Congress can
regulate an activity, you need only determine that (1) the activity is commercial, and (2) the activity “substantially affects” interstate commerce or the activity is part of a general class of activities that, collectively, substantially affect interstate commerce.
sale and distribution of items, if activity is non commercial find the obvious connection with interstate commerce so applicability of this clause is valid
You shouldn’t be surprised to see an MBE question in which Congress tries to make someone who is not presently in the market for a good (e.g., broccoli) buy the good or pay a penalty; you should answer that this isn’t
authorized by the Commerce Clause (but might be authorized by Congress’s power to tax and spend, if the money is collected by the IRS, as in the Affordable Care Act situation).
The commerce power would allow Congress to regulate Old Mac’s production: Old Mac is already engaged in an activity (farming), the activity is commercial, and the cumulative (or aggregate) effect of many farmers’ production could
substantially affect the supply and demand of commodities interstate
State law and federal law conflict
the only time you analyze state statutes’ impact on
interstate commerce under the Commerce Clause is when there’s no relevant federal legislation. Then you have to determine if a state
regulation unduly burdens interstate commerce (see the discussion on validity of state statutes under item 3 below). If relevant federal legislation exists, then your analysis falls under the Supremacy
Clause. There are two questions you have to ask:
1. Did Congress expressly authorize or prohibit state regulation? If so, that controls. If not —
2. With no express authorization or prohibition by Congress, you have to determine if the federal law preempts the state law. If the state law directly contradicts the federal law, it will be preempted. If there’s no direct conflict, you have to determine if Congress intended the federal
law to occupy the entire field. Look at four factors to determine if
that is the case: (1) whether the subject matter is traditionally
classified as local or federal; (2) how pervasive the federal regulation is; (3) how similar the state and federal laws are (the more they coincide, the more likely it is that federal law was intended to supersede state law); and (4) whether there’s a need for uniform federal regulation. You can remember this with a mnemonic —
PUSH (Pervasiveness, Uniformity, Similarity, History).
Note that preemption is an issue any time a state law conflicts with a federal law (or is in the same field). However, it’s most likely to be applied in the area of interstate commerce
Welfare clause
— applies only to fed government— unlike the name, fed can’t pass welfare laws
—tax and spend is the scope of the power.
Incidentally, keep in mind that states do have the power to legislate for the general welfare, but only under their police power, not under the Welfare Clause
contracts clause
Applies to: States only.
Source or prohibition: Prohibition.
The Contracts Clause, or “Obligations of Contracts” Clause, prohibits states from passing any law that impairs the obligations of contracts.
It’s usually correctly applied when the state seems to be trying to escape its own obligations.
States can regulate contract formation prospectively. Thus, when the “Contracts Clause” is an answer choice, the first thing you should do is check to see if the contract in question predates the offending statute. If not, then the Contracts
Clause is irrelevant.
state modifications of contracts will be permissible
if the modifications (1) serve an important and legitimate public interest and (2) are necessary to achieve that public interest; and if (3) the contract impairment is reasonable under the circumstances.
Also, keep in mind that the state has more leeway when the state itself was a party to the contract
Privileges & Immunities of the Fourteenth Amendment.
Privileges & Immunities of the Fourteenth Amendment.
Applies to: States.
Source or Limitation: Limitation.
This voids state enactments which clearly infringe on the privileges of national citizenship. The protection is limited to the fundamental rights shared by all citizens, namely the right to travel freely from state to state, to petition Congress for redress of grievances, to vote for national officers, to assemble peaceably, and to discuss matters of national legislation.
These same rights are protected against state
encroachment by the Due Process and Equal Protection Clauses of the Fourteenth Amendment, so, wherever Privileges and Immunities seems to apply, Due Process or Equal Protection would be a stronger argument against the constitutionality of the state action in question
“Interstate” Privileges & Immunities Clause, Article IV, § 2.
Applies to: States.
Source or Limitation: Limitation.
It prevents states from
discriminating against out-of-state citizens and residents in matters concerning “essential activities” (e.g., pursuing one’s livelihood, owning property) and “basic rights” (e.g., medical care, court access), unless the discrimination is closely related to a substantial state purpose (e.g., protecting natural resources by the state) and there are no less restrictive means available to achieve the purpose.
It’s important to remember that this provision doesn’t protect
corporations or aliens — just out-of-state, human, U.S. citizens
Test for strict scrutiny where statute is valid
The woman’s suit would be brought on a substantive due process theory. The Supreme Court held in Zablocki v. Redhail, 434 U.S. 374
(1978), that marriage is a “fundamental right” for substantive due process purposes. That case, like the fact pattern here, involved a state statute making a marriage license conditional upon the payment of all court-ordered child support. The Court concluded that the statute “substantially” interfered with this fundamental right of marriage, triggering strict scrutiny of the statute. When a statute is strictly scrutinized, the defender of the statute (here, the state) bears the
burden of proving that the law is necessary to serve a compelling governmental interest.
Enforcement Clause of the Fourteenth Amendment
The Enforcement Clause of the Fourteenth Amendment is § 5,
which gives Congress “power to enforce [this Amendment] by
appropriate legislation.” But the entire Fourteenth Amendment limits only “state action,” that is, conduct by state and local governments rather than by private individuals. Consequently, the Supreme Court
has held that Congress’s § 5 enforcement power, too, applies only where Congress is regulating state action rather than purely private
conduct. S
Privileges and Immunities Clause of Article IV
he Privileges and Immunities Clause of Article IV prohibits any
state from engaging in certain types of discrimination against citizens of other states. It is not a source of congressional power
Expost facto law
An ex post facto law is a law that imposes a
punishment for an act that, at the time it occurred, was not punishable.
That’s what the state is doing here, by prosecuting the principal for actions he took before the new statute was enacted. (The statute would not pose an ex post facto problem if it were applied to actions taken by
a state employee after the date of the statute’s enactment.
Due Process
The principal would indeed have a plausible due process claim,
since he has been deprived of a liberty interest, namely, his freedom to give schooling to certain people. But not all governmentally imposed restrictions on liberty violate the Due Process Clause. Where the liberty interest being restricted is not a “fundamental” one, the government may infringe on it without violating the Due Process Clause, as long as the means chosen is rationally related to the fulfillment of a legitimate state objective, an easy-to-satisfy test.
There is no reason to believe that a person’s right to help others get schooling is a “fundamental” interest for due process purposes.
The state has a very plausible argument that it is pursuing a “legitimate” interest (keeping its employees from aiding and abetting violations of U.S. immigration law), and that the means it has chosen are at least
rationally related to the achievement of this objective
The Fourteenth
Amendment’s Privileges or Immunities Clause
The Fourteenth Amendment’s Privileges or Immunities Clause prevents a state from impairing certain rights held by U.S. citizens. But the clause has always been interpreted to protect only certain rights of “national,” as opposed to state, citizenship.
The list of rights protected by the clause
is a very short one, essentially limited to the right to travel from state to state and to relocate to a new state without penalty, the right to vote in national elections, and a few other narrowly-defined rights. The principal would have to show that his “right” to help others gain an education was covered by the clause. But the right to help others obtain an education is certainly not a right of “national” citizenship of
the sort
Bill of attainder
A bill of attainder is a legislative act that applies either to named individuals or to easily-ascertainable members of a group, in such a way as to inflict punishment on them without a judicial trial. U.S. v.
Lovett, 328 U.S. 303 (1946).
When is a statute held void for vagueness
A statute will be held void for vagueness if the conduct that it
forbids is so unclearly defined that persons of reasonable intelligence must necessarily guess at its meaning. The idea is that a statute is unconstitutionally vague if it does not give fair notice of the dividing line between forbidden and non-forbidden behavior
Core political speech by FA
d the letter carriers.
Core political speech is especially rigorously protected under the
First Amendment (as made applicable to the states by the Fourteenth
Amendment). Even speech advocating force or crime may not be forbidden on the grounds that it is subversive, unless the government proves that (1) the speech is intended to incite or produce imminent lawless action; and (2) such imminent lawless action is in fact likely
to occur. Brandenburg v. Ohio, 395 U.S. 444 (1969).
if a govt employee burned his IRs Regs books on fire while state law opposed starting a fire in govt building
Where a regulation has a significant impact on protected
expression, but is “content neutral” (i.e., not related to the message being communicated), the regulation is subject to mid-level review:
It must be “narrowly tailored” to further a “significant governmental interest.” Clark v. Community For Creative Non-Violence, 468 U.S. 288 (1984).
The protester’s conduct in setting the fire receives First
Amendment protection, because he was intending to deliver a
message (a protest), and the audience was likely to understand that message. But the statute here is content-neutral: All setting of fires in public buildings is prohibited, regardless of the content of any message being delivered by the fire-setter. So the “narrowly tailored to further a significant governmental interest” standard is the applicable standard. (It is highly likely that the ban here satisfies this mid-level standard, since there is obviously a significant governmental interest in avoiding the danger posed by fires in public buildings, and a ban on intentionally setting such fires is a narrowly tailored means
of avoiding this danger.
First amendment speech
But the conduct/speech distinction is essentially irrelevant in First Amendment law: If conduct is motivated
by an intent to communicate a message (and the audience is likely to understand the message), the conduct receives First Amendment protection. However, even conduct that receives First Amendment protection because it is communicative may nonetheless be subjected to significant governmental restriction; where the restriction is content
neutral, the restriction will be upheld if it is narrowly tailored to achieve a significant governmental interest.
if a substantial part of funding comes from university, can it be deemed state university and can the professor removed from this university challenge removal on freedom of speech violation
The professor’s suit would have to have been based on the First
Amendment, as made applicable to the states by means of the
Fourteenth Amendment’s Due Process Clause. The Fourteenth
Amendment applies only where there is “state action,” that is, some
sort of participation in the challenged action by a state or local
government entity. So purely private action cannot be the basis for a First Amendment or Fourteenth Amendment claim. Here, the university whose conduct is alleged to have violated the professor’s free-speech rights is a private university. Unless the state has somehow participated in that conduct, the absence of state action will automatically defeat the professor’s claim. The mere fact that a
substantial portion of the university’s operating budget comes from state funds is not sufficient to cause the university’s conduct to be deemed state action. See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830
(1982) (even though a private high school received public funds amounting to 90% of the school’s budget, this was not enough to transform the school’s employment decisions into state action).
Appellate Jurisdiction of SC
The U.S. Supreme Court has appellate jurisdiction not only over state court decisions that determine the constitutionality of federal laws, but also over state court decisions that construe the meaning of federal statutes.
here a state court opinion rests on two
independent grounds, one of which is based on federal law and the other on state law, the Supreme Court does not have jurisdiction to hear the appeal if the state-law portion of the opinion is by itself sufficient to sustain the judgment. (If the Court were to hear the appeal, it would in effect be rendering an advisory opinion, since its opinion on the federal law issue would not make a difference to the outcome.) In this situation, there is said to be an “independent and
adequate state ground.”
Article III, § 2, of the Constitution says that in all cases falling
within the federal judicial power, and not falling within the Supreme Court’s original jurisdiction, the Supreme Court “shall have appellate jurisdiction . . . with such exceptions, and under such regulations as the Congress shall make.”
Supreme Court cases have interpreted this
language as meaning that Congress may remove an entire subject area from the Supreme Court’s appellate jurisdiction, as long as Congress is acting in a substantively neutral way (rather than, say, trying to dictate the outcome in a particular type of case). See, e.g., Ex parte
McCardle, 74 U.S. 506 (1869) (Congress may constitutionally prevent the Court from hearing all habeas corpus appeals from the federal circuit courts). Since the statute here prevents either side from appealing criminal decisions made by a state’s highest court, the statute is probably sufficiently neutral. It’s possible that the Supreme Court might conclude that the statute here is so broad that it went beyond Congress’s power to modify the Court’s appellate jurisdiction
Under
Article III, § 2, the Supreme Court has original jurisdiction in (and only in) all cases affecting ambassadors, other public ministers and counsels, and those in which a state shall be a party. The case here does not involve any of those categories, so originaljurisdiction does not exist.
Appellate jurisdiction: Article III, § 2, also provides that in those
cases arising under the Constitution, by an Act of Congress, or by treaty, the Supreme Court shall have appellate jurisdiction. It’s true that, as the facts tell us, a federal statute gives the Supreme Court the authority to review any case filed in a U.S. court of appeals,
even though that case has not yet been decided by the court of appeals. But that statute presumes a decision by a lower court, which hasn’t yet happened in this case. Indeed, for the Supreme Court to hear this case, in the absence of any lower-court decision, would not be an exercise of “appellate” jurisdiction at all
— there is no decision being appealed from
Appointment clause
The Appointments Clause (Art. II, § 2, cl. 2) provides that the
President shall “nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors . . . Judges of the Supreme Court, and all other Officers of the United States[.]”
The statute here violates this Clause in two respects. First, by saying that the President may appoint an ambassador only from among the names appearing on a congressionally-generated list, the statute violates the principle,
expressed in the Appointments Clause, that the President may
nominate anyone he or she wishes as an ambassador or other principal federal officer (subject, of course, to Senate confirmation).
Second, the phrase “by and with the advice and consent of the Senate” means that a presidential appointment of an ambassador or other principal federal officer must be affirmatively approved by a vote of the Senate;
the Senate is not permitted to abdicate its duty to consent (or not consent) to such an appointment by means of a statute stating that lack
of disapproval within 30 days shall be the equivalent of approval.
Commercial Speech First amendment
Commercial speech receives First Amendment protection, but to a somewhat lesser extent than,
say, core political speech. One of the limitations is that commercial speech that is misleading or deceptive is not entitled to any First Amendment protection at all. See, e.g., Central Hudson Gas v. Public
Service Comm., 447 U.S. 557 (1980): “[T]here can be no
constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive
the public than to inform it[.]”
Tenth amendment
The Tenth Amendment has relatively little scope under modern law; virtually its only function is to prevent Congress from commanding the states to enact or enforce federal policies. The Tenth Amendment can never validate a state law that violates some other Federal constitutional provision. Therefore, the Tenth Amendment would not save the state statute here from attack on the grounds that
the statute intentionally discriminates against, and unduly burdens, inter-state commerce, and thereby violates the dormant Commerce Clause
Although the Tenth Amendment today doesn’t pose much of a
limit for Congress, it does prevent Congress (or any other part of the federal government) from compelling a state to enact or enforce a particular law. See N.Y. v. U.S. (1992): Under the Tenth Amendment, Congress may not “commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”
Freedom of association, can bar reject person who is member of subversive group
First, the Supreme Court has repeatedly held that the First
Amendment freedom of association prevents the government from denying a privilege or benefit, such as bar membership, based solely on membership in an organization. See, e.g., Baird v. State Bar of
Arizona, 401 U.S. 1 (1971) (Stewart, J., concurring): “[M]ere
membership in an organization can never, by itself, be sufficient ground for a State’s imposition of civil penalties or criminal punishment.”
Second, the state cannot deny a privilege or benefit
based upon the applicant’s refusal to disclose her mere membership in an organization — if a membership could not by itself be the basis for
denying a privilege, the government cannot require disclosure of the membership as a condition of receiving the privilege, either
The government may withhold a benefit or privilege (such as bar membership) based on the applicant’s membership in an organization that the applicant knows advocates the overthrow of the government by force or violence, if the applicant shares the specific intent to further the organization’s illegal goals. And the government is
permitted to (1) ask questions sufficient to find out whether the applicant has such a specific intent; and (2) deny membership to an applicant who will not answer such questions about her intent.
statute is overbroad and vague
A statute is overbroad if, in addition to proscribing activities that may be constitutionally forbidden, it also sweeps within its coverage asubstantial amount of speech or conduct that is protected by the guarantees of free speech.
The doctrine of vagueness is similar but not identical to that of overbreadth: A statute will be void for vagueness if
the conduct forbidden by it is so unclearly defined that persons of common intelligence would have to guess at its meaning and would differ as to its application.
Legislative power to enact laws about marriage
The central obstacle under this problem is that the states have the general power to legislate regarding marriage and divorce, because family oriented legislation is not within Congress’s enumerated powers. Congress only has power to the extent of its enumerated powers under the Constitution. In order to be valid, a federal statute must be rationally related to an enumerated power, or be a necessary and proper means of effectuating such power. These are the major
powers of Congress: civil rights, elections (congressional), admiralty, taxation, eminent domain, spending for general welfare, defense, interstate commerce, citizenship, and external (foreign) affairs CREATE DICE
Under Article I, § 8, of the Constitution,
Congress is expressly given the power to govern the District of
Columbia. This, in effect, gives it ‘‘state-like’’ control over the District of Columbia, and this neatly avoids the obstacle in this problem —
namely, that marriage and divorce is neither one of Congress’s
enumerated powers, nor is its legislation necessary and proper to effectuating an enumerated power. Since legislation concerning marriage and divorce would clearly be part of ‘‘governing’’ the
District of Columbia, such congressional legislation would be valid.
