CONSTITUTIONAL LAW Flashcards
(137 cards)
1
Q
What are the requirements to satisfy the cases and controversies requirement?
A
- standing
- ripeness
- mootness
- political question
2
Q
What are the requirements to establish standing?
A
- injury
- causation
- redressability
- No 3rd party grievance–Except:
• if close relationship
• if 3rd party cannot assert rights on her own
• organizational standing - No generalized grievance–Except
• Taxpayer can challenge gov’t expenditures pursuant to federal statutes as violating the Establishment Clause
• tax credits don’t count/ cant’ challenge them.
3
Q
What is needed for organizational standing?
A
- members would have standing to sue
- interests are germane to organization’s purpose
- neither claim nor relief requires participation of the members
4
Q
To satisfy ripeness if seeking declaratory judgment (pre-enforcement review), determine:
A
- the hardship that will be suffered without preenforcement review, AND
- the fitness of the issues and the reocrd for judicial review (does the ct have before it all it needs to properly review? better to wait?)
5
Q
Mootness requires
A
a present, live controversy & ongoing injury.
6
Q
3 exceptions to general mootness rule:
A
- wrong capable of repetition but evading review
- voluntary cessation
- class action (1 member has continuing)
7
Q
The political question doctrine refers to constitutional violations that the federal courts __________.
A
will not adjudicate
8
Q
Political Questions are:
A
- issues committed by the C to another branch of gov’t; OR
2. those inherently incapable of resolution and enforcement by the judicial process
9
Q
Examples of cases that are dismissed as non-justiciable political questions:
A
- “republican form of gov’t” clause
- challenges to the Pres’s conduct of foreign policy
- challenges to the impeachment and removal process
- challenges to partisan gerrymandering
10
Q
The SCT has original (trial) jx over which cases?
Congress has given concurrent jx over which cases to lower federal courts?
A
- those affecting Ambassadors, other public ministers, and Cosnsuls
- those in which a state shall be a party
Concurrent jx for 1. SCT has original and exclusive jx over cases in which state shall be a party.
11
Q
Virtually all cases come to the SCT by __________.
A
writ of certiorari
12
Q
The SCT’s appellate jx is divided into certiori (discretionary) and appeal (mandatory). Which cases are mandatory?
A
decisions made by a three judge federal district court that grant or deny injunctive relief.
13
Q
Congress may eliminate ________ avenues for SCT review as long as it does not eliminate ________ avenues.
A
specific; all
14
Q
The SCT has _________ and _________ jurisdiction for suits between state governments.
A
original; exclusive
15
Q
What is the final judgment rule?
A
Generally the SCT may hear cases only after there has been a final judgment of the highest state, court, of a US Court of appeals, or of a 3-judge federal district court.
16
Q
For the SCT to review a state court decision, there must not be an ________ and __________ state law ground of decision. If a state court decision rests on 2 grounds, one state law and one federal law, if the SCT’s reversal of the federal law ground will not change the result in the case, ______________.
A
independent; adequate; the SCT cannot hear it.
SCT can’t overturn a decision based purely on state law. So even if you appeal your case all the way through the state system, can’t appeal to SCT unless there is a federal question.
17
Q
How to Sue States…
A
- Suing State Directly: SSI will bar claim in state or federal court (or even administrative agency) unless state consents or unless claim arises under § 5 or Bankruptcy Clause.
- Suing State Officer for Prospective Relief: For now, EPY authorizes any action alleging ongoing violation of federal law . . .
- Suing State Officer for Damages: SSI will bar claim per above unless officer is sued in his individual/personal capacity (and then he may nevertheless have “official” immunity.
Because of (1), probably go to (2) or (3) for relief. For (3), must sue in private capacity if you want damages. If you sue officer in official capacity, it is asi you were suing the state and 11th amendment will be a problem.
18
Q
Generally, there is no federal police power by which Congress can act. In what areas can congress act according to federal police power?
A
MILD
Military
Indian Reservations
federal Lands & territories
DC
19
Q
The Necessary and Proper clause grants Congress the power to make all laws necessary and proper for carrying into execution _______ power granted to ______ branch of gov’t.
A
any; any
20
Q
The N& P clause is not itself a basis of _____; it merely gives Congress the power to execute ___________.
A
power; specifically granted powers
21
Q
If a bar exam question asks what is the best source of power for aparticular act of Congress, the answer should not be the ___________ clause stading alone.
A
Necessary & Proper
22
Q
Congress has power to lay and collect taxes, imposts, and excises, but the must be _______ throughout the United STates.
A
uniform
23
Q
Absent a specific restriction, be very hestiant to rules against a tax measure on the exam. A tax measure will be upheld if it bears some ______________or if Congress has the __________ the taxed activity.
A
reasonably relationship to revenue production; power to regulate
24
Q
Congress may spend to
A
“provide for the common defense and general welfare.”
25
Congress can use its ______ power to regulate areas, even where it otherwise ahs no power tor egulate the area by _____________.
spending; by requiring entities that accept government money to act in a certain manner.
26
Under the commerce power, Congress can regulate:
1. the channels of interstate commerce (roads, waterways, etc)
2. the instrumentalities of commerce and persons or things in interstate commerce (electricity, phones, trucks, planes, radio waves, stock, people)
3. economic activities that have a substantial effect on interstate commerce. (can be based on cumulative activity)
• if non-economic activity and intrastate then, substantial effect can't be based on cumulative activity and must make a factual showing of substantial economic effect. (VAWA, Lopez)
•If intrastate and economic activity, and court can conceive of rational basis on which Congress oculd conclude that activity in the aggregate substantially affects interstate commerce, then ok. (Raich)
27
Article I, Section 8 gives Congress the power to:
1. declare war
2. raise and support armies
3. provide for and maintaina navy
4. make rules for the gov't and regulation of the armed forces
5. organize, arm, discipline, and call up the militia
28
Regulatory power of Congress, especially in economic mmaters and mobilization of troops, in support of war effort is _______.
pervasive
*Note, generally extended to post-war as well to remedy wartime disruptions and to cope iwth cold war exigencies.
29
Congress does not have the power tod eny habeas corpus review to all aliens detained as enemy combatants absent ___________.
a meaningful substitute for habeas corpus review.
30
Military courts have jurisdiction over all offenses, not just _________, committed by persons who are _____________, both when charged and at teh time of the offense.
service connected offenses; members of the armed services
31
The SCT has denied Congress to power to authorize the court-martial trial of American civilians as long as actual warfare has not forced courts to shut down, even though:
1. martial law has been declared
2. civilians accused were members of armed forces when committing alleged offense
3. dependents of military personnel overseas
4. civilian EEs of the military forces at overseas bases and installations
32
What is Congress's investigatory power? What are its limitations?
1. power to investigate to secure information as a basis for potential legislation or other official action (imipeachments). Well-established implied power. It need not be directed toward a particular legislation.
2. •5th amendment right available to witnesses
•information elicited must be pertinent to subject of the inquiry
• procedural due process
33
Individual Rights include:
Include level of scrutiny
1. Procedural Due Process= balancing test
2. Economic Rights= RB
• Takings Clause (taking, pub.use, compens?)
• Contracts Clause
3. Privacy--fundamental right protected by SDP
• right to marry= SS
• right to procreate= SS
• right to custody of one's children = SS
• right to keep the family together= SS
• right to control the ubringing of one's kids=SS
• right to purchase and use contraceptives=SS
• right to abortion= UB
• right to private consensual homosexual sex=?
• right to refuse medical treatment=?
4. Second Amendent Right to Bear Arms= ?
5. Right to Travel
• prevent moving = SS
• durational req'ments = SS
• Foreign travel = RB
6. Right to vote
34
What is the approach for an EPC claim?
1. What is the classification/ How is the gov't drawing a distinction between people?
2. What level of scrutiny applies?
3. Does this law meet the level of scrutiny?
35
The EPC of the 14th amendment applies only to ______ and ______ governments. It never applies to the ____ government.
State and local; federal
* EP is applied to the federal gov't through the DPC of the 5th amendment.
36
Racial classifications by the governement receive what level of scrutiny under EP?
Scrict scrutiny
37
Classifications based on national origin receive what level of scrutiny?
Strict
38
How can the existence of a racial classification be proven?
1. Classificaiton exists on the face of the law
| 2. If facially neutral, requires demonstrating both discriminatory impact and discriminatory intent.
39
What level of scrutiny is applied to racial classifications that benefit minorities?
Scrict scrutiny
40
Can educational institutions use quotas or add points to applicants' admissions scores based on race.
Nope.
41
Public schools may not use race as a factor in assigning students to schools unless ___________.
strict scrutiny is met
42
What level of scrutiny is used for gender classifications?
Intermediate scrutiny
43
How is the existence of a gender classification proven?
1. classification exists on face of the law
2. If law is facially neutral, proving a gender classification requires demonstrating both discriminatory intent and discriminatory impact.
E.g., many cities have ordinances that say police officers must be 5'10" and 150 lbs. Only 2% of women meet those req'ments. Only RB review unless plaintiffs can show that intent was discriminatory.
44
What level of scrutiny shoudl be applied to gender classifications that benefit women?
Same. IS
* gender classifications benefitting women that are based on role stereotypes will not be allowed.
* gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed.
45
What is the level of scrutiny used for alienage classifications?
Generally, scrict scrutiny is used, BUT:
• If concerns self-government & the democratic process, then only RB.
(voting, jury, police officer, teacher, probation officer--not notary public)
• If Congressional discrimination, then RB. (Congress has plenary power to regulate immigration).
•If discrimination against undocumented alien children, then use something between RB & SS.
(Plyer v. Doe--SCT struck down law saying undocumented kids woudln't get free public education. Ct didn't articulate level of scrutiny)
46
What level of scrutiny is used for discriminating against non-marital children?
Intermediate scrutiny.
*IS is still the test, but laws always fail when deny a benefit to all non-marital children, but grant it to all marital children.
47
What are common classifications that receive only RB review?
```
age
disability
wealth
economic regulations
sexual orientation discrimination
```
48
Ecomonic regulations can be challenged under DPC or under EPC (depending on the factual situation). Under either, the level of scrutiny is:
RB
49
Content-based restrictions on speech generally must meet what level of scrutiny?
Strict.
2 types of content based laws:
1. subject matter restrictions: application of the law depends on the topic of the message.
2. viewpoint restrictions: application of the law depends on the ideology of the message
50
What are the two types of content based laws?
1. subject matter restrictions: application of the law depends on the subject matter/ topic of the message.
2. Viewpoint restrictions: application of the law depends on the ideology of the message.
51
Content-neutral laws burdening speech generally only need meet what level of scrutiny?
IS
E.g. City prohibits all parades in a particular city park. Content neutral, so will need to satisfy IS.
52
What is a prior restraint?
judicial order or administrative system that stops speech before it occurs.
53
Court orders suppressing speech must meet what level of scrutiny?
What is the qualification for this rule?
Prior Restraint Issue
1. strict scrutiny
2. qualification is that a court order must be complied with until it is vacated or overturned. Failure to comply will bar later challenges.
54
The government can require a license for speech only if there is ___________ and ___________. Licensing schemes must contain ___________ such as prompt determination of requests for licenses and ___________.
an important reason for licensing; clear criteria leaving almost no discretion to the licensing authority; procedural safeguards; judicial review
55
The categories of free speech methodology are:
1. content based (SS) v. content neutral (IS)
2. prior restraints (SS) (sp. rule for licenses)
3. vagueness & overbreadth (sp. definitions)
4. symbolic speech (sp. definition)
5. anonymous speech (protected)
6. government speaker (cannot be challenged under 1st amendment)
56
Definition of vagueness:
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.
E.g. city ordinance that banned the sale of books that corrupted the morals of youth. No reasonable bookseller could tell what was prohibited.
*Concerned with chilling speech.
57
Definition of overbreadth:
A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.
E.g. city adopted law prohibiting all live entertainmnet. City used the ordinance to shut down nude dancing club. Law prohibits too much.
58
Fighting words law are unconstitutional because they are ________ and ________.
*What's the catch here?
vague and overbroad.
*The catch is that there is a SCT case, Chaplinsky that still says fighting words are not protected by the 1st amendment, but the SCT has never again upheld a fighting words conviction.
Watch out for an appealing victim and a nasty D. Correct answer will be law is unC vague and overbroad.
59
Symbolic speech definition/ standard:
The gov't can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government's purpose.
1. important interest unrelated to the suppression of the message
2. impact on communication is no greater than necessary to achieve the gov't purpose
E.g.: D is prosectuted for A&B. Says was only expressing his anger. State has 1) important interest unrelated to message and 2) impact on communication is no greater than necessary to achieve gov't purpose.
E.g. flag burning is protected, cross burning is protected (unless intent to threaten), contribution limits in election campaigns are unC.
60
Anonymous speech is ______.
Protected. 1st amendmetn right to speak without disclosing your identity.
61
Can speech by the gov't be challenged as violating the 1st amendment? Why?
No. When gov't is regulating private speech is what the 1st amendment is for. When gov't is the speaker, no basis for a 1st am. challenge.
62
What speech is unprotected or less protected by the 1st amendment?
1. incitement of illegal activity
2. obscenity and sexually-oriented speech
3. commercial speech
4. defamation
5. privacy
6. Gov't EEs on the job
63
What is the definition/standard for incitement of illegal activity?
The government may punish speech if there is:
1. a substantial likelihood of imminent illegal activity, AND if
2. the speech is directed to causing imminent illegality
(substantial likelihood & cause)
64
What is the test for obscenity and sexually-oriented speech?
1. Material must appeal to the prurient interest (community standard--shameful or morbid interest in sex)
2. Material must be patently offensive under the law prohibiting obscenity (law must delineate which depictions are banned)
3. Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value. (national standard, not local)
65
For the obscenity test, __________ uses a community standard, and ___________ uses a national standard.
1. Whether the material appeals to the prurient interest
| 2. Whether the material has any redeeming artistic, literary, political, or scientific value.
66
May the gov't use zoning ordinances to regulate the location of adult bookstores and movie theaters?
Yup.
67
Can child pornography be banned?
Yes, even if not obscene. To be child pornography, children must be used in production of the material.
*CGI children & adults dressed up as kids don't count.
68
The government may not punish private possession of obscene materials; but the government may prohibit _____________.
private possession of child pornography
69
What can the government do to a business convicted of violating obscenity laws?
Seize all assets.
Even if convicted of selling 7 obscene items, gov't can seize all $4 million in merchandise.
70
Profane & indecdent speech is generally ________ by the 1st amendment. 2 exceptions:
protected.
1. over the broadcast media (cable & internet are different)
2. in schools (deference to schools)
71
What is the standard for determining whether a regulation of commercial speech will be upheld?
If the speech concerned concerns lawful activitiy and is not misleading or fraudulent, the regulation will be valid only if:
1. it serves a substantial government interest
2. It directly advances the asserted interest, AND
3. is narrowly tailored to serve the substantial interest. (not least restrictive means, just reasonable fit between the legislation's end and the means chosen).
72
Two areas of commercial speech that can be regulated/ prohibited are:
1. advertising for illegal activity, and false & deceptive ads
2. true commercial speech that inherently risks deception
E.g. gov't can prevent professionals from advertising or practicing under a trade name
E.g. can prohibit attorney, in-person solicitation of clients for profit
E.g may not prohibit accountains from in-person solicitation of clients for profit
73
What is actual malice for defamation purposes?
knew the statement was false or acted with reckless disregard of the truth
74
If the plaintiff is a public official or running for public office, the plaintiff can recover for defamation by proving:
1. falsity of the statement
| 2. actual malice
75
If the plaintiff is a public figure, the plaintiff can recover for defamation by proving:
1. falsity
2. actual malice
*court has never defined public figure. Someone who thrusts themself into the limelight--has access to the media to respond to any attack. Celebrities.
76
If the plaintiff is a private figure and the matter is of public concern, that state may allow the plaintiff to recover for defamation by proving
1. falsity
2. negligence by the defendant.
* 3. Plaintiff may recover presumed or punitive damages only by showing actual malice.
77
If the plaintiff is a private figure and the matter is not of public concern, the plaintiff can recover:
presumed or punitive damages without showing actual malice.
78
Liability for IIED for defamatory speech must meet the _______ standards and cannot exist for speech ________.
defamation; otherwise protected by the first amendment
79
The government may not create liability for the truthful reporting of information that was _______.
lawfully obtained from the gov't
80
Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if ________.
the media did not participate in the illegality and it involves a matter of public importance.
81
The government may limit its dissemination of information to ____________.
protect privacy.
82
The rule from Garcetti is that:
speech by government employees on the job in the performance of their duties is not protected by the 1st amendment.
83
What's a public forum?
government properties taht the governernment is constitutionally required to make available for speech.
*Sidewalks and parks are classic public forums. Can regulate here only if it meets certain requirements.
84
Standard for regulations attempting to limit/ prohibit speech in a public forum:
1. regulations must be subject matter and viewpoint neutral, or if not, must meet strict scrutiny. (If met, go to 2)
2. Regulations must be a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication. (This is IS)
* Need not be the least restrictive means.
* City officials cannot have discretion to set permit fees for public demonstrations.
85
Definitition/ Standard for a designated public forum:
government properties that the gov't could close to speech, but chooses to open to speech.
* Same rules as public forums:
1. Regulation must be subject matter and viewpoint neutral, if not, SS.
2. REgulations must be time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication.
•time/place/manner restriction
•important govt purpose
•leaves open adequate alternative places for communication.
86
Definition/ Standard for limited public forums:
Government properties that are limited to certain groups or dedicated to the discussion of only some subjects.
Gov't can regulate speech in limited public forums so long as the regulation is reasonable and viewpoint neutral.
87
Definition/ Standard for non-public forums:
Gov't properties that the government constitutionally can and does close to speech.
Gov't can regulate speech in non-public forums so long as the regulation is reasonable & viewpoint neutral.
88
There is no first amendment right of access to _______ __________ for speech purposes.
private property
E.g. a shopping center.
In CA, there is a constitutional right
89
The freedom of association is protected as a ________ right under the ___________.
fundamental; first amendment
90
Under the 1st amdnemtn freedom of assocaition, laws that prohibit or punish group membership must meet _______ ________. To punish membership in a group it must be proven that the person:
strict scrutiny
1. actively affiilated with the group
2. knowing of its illegal activities
3. with the specific intent of furthering those illegal activities.
91
Laws that require disclosure of group membership, where such disclosure would chill association, must meet ________ __________.
(1st amendment, freedom of association)
strict scrutiny
92
Laws that prohibit a group from discriminating (under 1st am. freedom of association) are constitutional unless they __________.
Interfere with intimate association or expressive activity.
E.g. can prohibit private clubs from discriminating against women.
E.g can't prohibit nazis from discriminating against jews
93
The freedom of religion is generally thought of in two clauses:
1. free exercise clause
| 2. establishment clause
94
Rules we learned under the free exercise clause:
1. free exercise clause cannot be used to challenge a neutral law of general applicability.
2. the government may not deny benefits to individuals who quit their jobs for religious reasons.
(can't make someone choose between religion and income)
95
1. free exercise clause cannot be used to challenge a ________________.
2. the government may not deny benefits (under free exercise clause) to _____________________.
1. neutral law of general applicability
| 2. individuals who quit their jobs for religious reasons
96
The test for establishment clause for bar exam purposes is the ___ test. It states that:
Lemon test
1. Must be a secular purpose for the law
2. the effect must be neither to advance or inhibit religion
3. there must not be excessive entanglement with religion.
If gov't violates any of 3 prongs, then violates the EC.
S: secular
E: effect
X: excessive entanglement
97
According to the establishment clause, the government cannot discriminate against religious speech or among religions unless _______.
strict scrutiny is met.
* If favoring one religion over others = SS
* If favors secular over religious speech= SS
98
Government sponsored religious activity in public schools is unconstitutional, but religious student and community groups must _________________.
Have the same access to school facilities as non-religious groups.
99
The government may give assistance to parochial schools, so long as ___________. The government may provide parents with ____________.
it is not used for religious instruction
vouchers which they use in parochial schools
100
Congress's main enumerated/implied powers includes:
(necessary & proper is not a basis of power, gives, power to execute specifically granted powers)
1. taxing/spending
2. commerce clause
3. war power
4. investigatory power
5. property power
6. bankruptcy power
7. postal power
8. citizenship
9. admiralty
10. coin money/ fix weights/ measures
11. patent/ copyright power
101
Congress has the power to (property power):
dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United STates.
102
Congress has no general ________ _________.
police power
103
The 10th amendment serves as a limit on Congressional power because
it states that all powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.
104
Under the 10th amendment, Congress cannot _________, but can __________.
1. compel state regulatory or legislative action (but can induce state gov't action by putting strings on grants)
2. can prohibit harmful commercial activity by state governments.
105
What is Congress's power under section 5 of the 14th amendment?
Congress may not create new rights or expand the scope of rights. Congress may act only to prevent or remedy violations of rights recognized by teh courts and such laws must be proportionate and congruent to remedying constitutional violations.
106
The most important things to remember in regards to Congress's legislative power are
1. the taxing/spending power
2. commerce clause power
3. § 5 of 14th am. cannot create new rights. Congruent & proportional to remedying constitutional violations.
4. 10th amendment limits Congressional power
5. necessary & proper clause is not a basis of power
107
Is there any limit on Congress' ability to delegate legislative power?
Not really. SCT has not struck down a delegation since 1937.
108
Legislative vetos and line-item vetos are __________.
unconstitutional
109
For Congress to act, there always must be ______ and _________.
bicameralism: passage by both House & Senate
presentment: giving the bill to Pres. to sign/veto
110
The federal executive power stems from ___________.
Article II
111
Treaty definition:
agreement between the United States and a foreign country that is negotiated by the President and becomes effective when ratified by the Senate.
112
Executive Agreement definition:
an agreement between the US and a foreign country that is effective when signed by the President and the head of the foreign nation.
113
Treaties and Executive agreements both prevail over ______________.
conflicting state laws
114
Treaties prevail over conflicting federal law if __________. Executive agreements prevail over conflicting federal law if ____________.
* the treaty was adopted after the federal statute. (the one adopted last in time controls)
* never
115
If a treaty or executive agreement conflicts with the US Constitution, they are both ___________.
invalid
116
Treaties require ___________, but executive agreements do not.
senate approval
117
The President's foreign affairs power includes the power to (3)
1. make treaties
2. make executive agreements
3. use American troops in foreign countries as commander-in-chief
*Best answer if asked about 3 is political question. If not an option, then Pres. wins. Broad powers.
118
The President's domestic affairs power includes the power to:
1. appointment and removal power
2. impeachment & removal power
3. absolute immunity to civil suits for $ damages for any actions taken while in office (not for things that occurred prior to taking office)
4. executive privilege for presidential papers and conversations, but privilege must yield to other important gov't interests
5. power to pardon those accused or convicted of federal crimes
119
Under the appointment power, the President appoints:
ambassadors, federal judges, and officers of the US
| Senate must approve
120
While the President alone appoints officers, Congress has some say over the appointment of _______.
inferior officers
121
Congress cannot give itself or its officers the __________ _________.
appointment power
E.g if Congress forms a new agency, can't say some officers appointed by Congress, some by Pres.
122
Unless removal is limited by statute, the President may ______________.
fire any executive branch office.
123
Generally, unless removal is limited by statute, the President has removal power to fire any executive branch office. For Congress to limit removal :
1. it must be an office where independence from the President is desirable (ind. counsel, sp. prosecutor, who are supposed to check the Pres.)
AND
2. Congress cannot prohibit removal, it can limit removal to where ther is good cause.
124
The President, VP federal judges, and officers of the US can be impeached and removed from office for ____, _____ or for _______.
Impeachment _____ remove a person from office.
Impeachment by the HoR requires a ____ vote; conviction in the Senate requires a _______ vote.
treason, bribery, high crimes & misdemeanors
does not
majority
2/3
125
The President has absolute immunity for ______________ for actions ___________. However, the President does not have immunity for actions _________.
civil suits for money damages; taken while in office; that occurred prior to taking office
126
What is executive privilege?
The President has executive privilege for presidential papers and conversations, but such privilege must yield to other important gov't interests.
127
The President has the power to pardon _____________. What is the one exception?
those accused or convicted of federal crimes
Exception: Impeachment. A person who has been impeached by the House can never be pardoned for those offenses.
Tip: Pres. cannot pardon for state crimes.
Tip: Pres. cannot pardon for civil liability. Only criminal.
128
What is federalism?
Limits on state and local government power because of the existence of national government and other states.
129
The 2 main federalism issues often tested are:
1. preemption
| 2. Dormant commerce clause & privileges and immunities clause of Article IV
130
What is preemption?
The Supremacy Clause of Article IV provides that hte Constitution and laws and treaties made pursuant to it, are the supreme law of the land.
1. Express
2. Implied
3. Inter-governmental immunity
131
What is express preemption?
If a federal statute explicitly states that fedearl law is exclusive in a field, then state and local laws are preempted.
132
What is implied preemption? How can it be found?
Where the federal statute does not explicitly state that federal law is explicit in the field, but regardless, federal law preempts state law in the field.
1. If federal and state laws are mutually exclusive, federal law preempts state law. If it's impossible to simultaneously comply with both, fed. wins.
2. If state law impedes the achievement of a federal objective, federal law preempts state law.
(FL law interfered with objective of NLRA, thus preempted)
3. If Congress evidences a clear intent to preempt state law, federal law preempts state law.
(legislative history & AZ immigration, e.g.)
133
What is inter-governmental immunity?
States may not tax or regulate federal government activity. (part of preemption doctrine)
The power to tax is the power to destroy.
Tip: It is unconstitutional to pay a state tax from the federal treasury.
134
What is the dormant commerce clause?
The dormant commerce clause refers to the negative implications that arise from the commerce clause. While the commerce clause grants the federal gov't the power to act according to the commerce clause, the DCC limits state or local law activity if it places an undue burden on interstate commerce.
135
What is the privileges or immunities clause of Article IV? What about privileges & immunities clause of the 14th am.?
1. states that no state may deprive citizens of other states of privileges and immunities it accords its own citizens. Anti-discrimination provision. *Applies when state/local gov't is discriminating against out of staters. (part of federalism section)
2. The P&I of the 14th amendment protects the right to travel. That's it. It was completely gutted by the Slaugherhouse cases. Generally this is a wrong answer choice unless the question refers to right to travel.
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How do you analyze a DCC / P&I clause question?
1. Does the state law discriminate against out-of-staters?
• If it does not discriminate, then
1. the P & I of Article IV does not apply.
2. If the law burdens interstate commerce, it
violates the DCC if its burdens exceeds
its benefits.
• If it does discrimiate against out-of-staters,
1. If the law burdens interstate commerce, it
violates the DCC unless it is necessary to
achieve an important government
purpose
• Exception: Congressional approval
• Excpetion: market participant: A
state or local gov't can prefer its
own citizens in receiveing benefits
from gov't programs or in dealing
with gov't owned businesses.
2. If the law discriminates against out-of-
staters with regard to their ability to earn
their livelihood, it violates teh P & I of
Article IV unless it is necessary to
achieve an important gov't purpose.
•(make sure important economic
activity: making a living, not a
hobby)
• Corporations & aliens cannot use
the P& I clause. If challenger is
corporation, go to DCC. If ind.
citizen, consider both.
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X. POWER OF STATES TO TAX INTERSTATE COMMERCE
A. GENERAL CONSIDERATIONS
The same general considerations applicable to state regulation of commerce apply to taxation. Pursuant to the Commerce Clause, Congress has complete power to authorize or forbid state taxation affecting interstate commerce. If Congress has not acted, look to see whether the tax discriminates against interstate commerce. If it does, it is invalid. If it does not, assess whether the burden on interstate commerce outweighs the benefit to the state. Three tests must be met: (i) there must be a substantial nexus between the taxpayer and the state; (ii) the tax must be fairly apportioned; and (iii) there must be a fair relationship between the tax and the services or benefits provided by the state.
1. Discriminatory Taxes
Unless authorized by Congress, state taxes that discriminate against interstate commerce violate the Commerce Clause. Such taxes may also be held to violate the Interstate Privileges and Immunities Clause if they also discriminate against nonresidents of the state [Austin v. New Hampshire, 420 U.S. 656 (1975)], as well as the Equal Protection Clause if the discrimination is not rationally related to a legitimate state purpose [WHYY, Inc. v. Borough of Glassboro, 393 U.S. 117 (1968)—denial of tax exemption solely because taxpayer was incorporated in another state is invalid.]
FYI
