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Flashcards in Federalism Deck (36):

Art I, sec 8

Powers of Congress


Art VI, sec 2

Supremacy Clause


Art I, sec 8, cl 18

Necessary and Proper clause


10th Amendment

state powers where Congress is silent


Art I, sec 8, cl 3

Commerce Clause


Commerce Clause Text:

Congress has the power to regulate commerce among the states, with Native tribes, and with foreign nations.


Commerce Clause Test First step:

Sebelius -->
Congress has the power to regulate private entities already voluntarily engaged in interstates commerce, but Congress may not create commerce or force people to engage in commerce against their will


Commerce Clause test Second step:

Morrison/Lopez -->
A Congress may regulate channels of interstate commerce
- rivers, roads, air space, etc
B Congress may regulate the instrumentalities, or persons, or things of interstate commerce
- planes, trains, trucks, etc
C Congress may regulate local (intrastate) activities that substantially affect interstate commerce
1 activity that the statute is regulating must be economic or commercial in nature
2 jurisdictional element: Did Congress specify under what provision of Constitution it passed the law?
3 legislative record: committee reports/congressional record
4 Congress may not regulate traditional areas of state law
5 connection between the activity regulated by the statute and interstate commerce must not be too remote or weak


Commerce Clause test Third step:

Aggregate Effects -->
If all people were to do the same thing nationally that a person or small group of persons is doing locally, would it substantially affect interstate commerce?


Dormant Commerce Clause

state law regulating interstate commerce


Dormant Commerce Clause test Step One

Is there a federal law on point?
Yes. Is it a valid law under Commerce Clause test? YES. This federal law preempts state law.
No --> Step 2


Dormant Commerce Clause test Step Two

Did Congress approve the state/local law?
Yes --> state law valid
No --> Step 3


Dormant Commerce Clause test Step Three

Market Participation Doctrine
Is the state a buyer/seller/lessor/lessee/owner?
Yes? Law is not a regulation and valid
No? step 4


Dormant Commerce Clause test Step Four

Does law discriminate against interstate commerce differently than in-state commerce or is it a ban at the border?
If yes to either --> law is NOT generally applicable --> apply discrimination test
If no to both --> law IS generally applicable --> apply test for general applicability


Dormant Commerce Clause test Step Four Discriminatory state laws test

Does state have legitimate interest aside from economic protectionism?
if no --> law is invalid
If yes --> can the legislative interest be served without discriminating against interstate commerce?
If yes --> law is invalid
If no --> valid


Dormant Commerce Clause test Step Four General Applicable laws test:

Legitimate state interest
Law must be rationally related
Burdens on commerce must not outweigh the benefits to state


Art I, sec 8, cl 1

Tax and Spending Power


Tax Power text

Congress shall have the power to lay and collect taxes, duties, imposts, and excises, to pay debts and provide for the common defense and general welfare of the US


Tax Power test:

1. Raises some revenue for gov't
2. Does not violate any other provision of the Constitution
3. Does not function like a punitive measure to compel behavior (look at whether it's an excessive amount or functions like a criminal fine)


Spending power text:

Congress may spend to pay debts, provide for the common defense and general welfare


Conditional spending power test:

1. Spending is in pursuit of general welfare
2. Condition is unambiguous so a state knows what to do to satisfy the condition, and when it's violating the condition
3. Condition is connected to the purported ends of the statute
4. Not barred by another provision of the Constitution
5. 10th Amendment
a. Conditional spending is not coercing the states
- compelling behavior
- South Dakota v Dole


10th Amendment text/test

1. all powers not specifically given to federal gov't in the Constitution are reserved to the states

3. laws that apply generally to state and private officials do not violate the 10th amendment

federal gov't may not compel states to enact particular legislation

2. federal gov't may not compel state officers to enforce federal laws


Necessary and Proper clause text

Congress may choose any means that are "necessary" and "proper" for carrying out its enumerated powers so long as it is rationally related to a legitimate gov't interest


Supremacy clause text

If there is a conflict between a state/local law and federal law, the state/local law is deemed invalid and preempted by the fed. law if the fed. law is constitutional.


Separation of Powers: Presentment and Bicameralism text

Presentment: every bill must be presented to the president for his signature, providing president with opportunity to veto.

Bicameralism: bill must pass both chambers to become law

Legislative acts which alter the rights, duties, or obligations of persons outside the legislative branch must meet P&B.


Separation of Powers: Line Item Veto

President does not have the constitutional authority to change bills passed by Congress. Must pass as presented or veto all.


Art I, sec 7, cl 2&3

Presentment and Bicameralism


Separation of Powers: Delegation text

Congress can delegate power to executive pursuant to an "articulable principle" which sets the limits on what the delegated powers are such that the delegee would know when they are exceeding the power


Separation of Powers: Delegation test

1. Is there an articulable principle behind the delegation?
2. Is the delegation limited so that delegee knows when they are exceeding their authority?
3. Is the delegation limited temporally?
If yes to ALL, delegation is valid.


Domestic Separation of Powers test

1. Does the text of the Constitution solve the issue?
2. Is the branch taking power acting appropriately or self aggrandizing?
3. Is the branch from which the power was taken impermissibly encroached upon or interfered with?


Presidential Powers: foreign affairs test

Youngstown --> Jackson's concurrence
Triggered when the president is claiming he has power in an area dealing with foreign affairs
1. When President has been delegated power by Congress in a particular area, presidential power in that area is at its highest. It consists of his constitutionally enumerated powers plus his congressionally delegated powers.
2. If Congress is silent as to president's power in a particular area, presidential power in that area is dependent on imperatives of events and contemporary imponderables.
3. If Congress has said President does not have power in a particular area, President's power is limited to his enumerated powers.


Presidential Powers: Appointment rule

The president appoints all principal officers with advice and consent of Congress. Congress may, by law, vest appointment of inferior officers in (1) the president, (2) courts of law, and (3) heads of department.

It is necessary to determine whether an officer is a principal or inferior officer in order to determine who is in charge of the appointment.

Principal officers: ambassadors, consuls, public ministers, SOCTUS, all other officers of US

Unsure if principal?
1. Is the officer subject to removal by a higher officer?
2. May the officer only perform certain, limited duties?
3. Is the officer limited in jurisdiction/scope?
4. Is the officer limited in tenure/temporary?


Art II, sec 2, cl 2

Appointment rule


Presidential Powers: Removal rule

Congress may limit the ability of the executive branch to remove inferior officers. Principal officers are removal "at will" by president.

1. Is this an officer where independence from the President is desirable?
2. Congress cannot prohibit removal, only limit it to a showing of "good cause."
NOTE: Congress can remove principle officers through impeachment.


Presidential Powers: Immunities Rule

The president is only immune from damage suits based on acts committed (1) while in office AND (2) that are within the scope of his duties. "official acts" (broadly interpreted).

NOTE: President not immune from lawsuits based on actions which allegedly occurred prior to taking office. --> may be postponed if pres can show that maintaining the suit would interfere with ability to perform duties.


Presidential Powers: Privileges

Pres does not have to share information that applies to military, diplomacy, or sensitive matters of nat'l sec.

This presumption may be overridden by a balancing test:
The need for confidentiality against the need for the information.
NOTE: if there is a specific need for the info, a general claim of "maintaining confidentiality" will usually not hold.