Barbri Con Law 2 Of 4 Apr

Front 1

What are treaties?

Back 1

Agreements b/w the US and a foreign country that are negotiated by the PRESIDENT and are effective when ratified by the Senate.

Front 2

What happens when a treaty conflicts with a state law?

Back 2

Treaty prevails - state law becomes invalid

Front 3

What happens when a treaty conflicts with a federal statute?

Back 3

** The one adopted LAST IN TIME controls

Front 4

What happens when a treaty conflicts with the US Constitution?

Back 4

The treaty is invalid

Front 5

What is an executive agreement?

Back 5

An agreement b/w the US and a foreign country that is effective when signed by the President and the head of the foreign nation. (doesn't require Senate approval to be effective)

Front 6

What can an executive agreement be used for?

Back 6

any purpose. Anything done by treaty can be done by executive agreement.

Front 7

What happens if an executive agreement conflicts with a state law? federal law? US Constitution?

Back 7

Executive agreements prevail over conflicting state laws but NEVER over conflicting federal laws or the US Const.

Front 8

What powers does the Pres. have as Commander-in-Chief?

Back 8

broad powers to use American troops in foreign countries (Pres. NEVER been invalidated)

Front 9

What is the Pres' appointment power?

Back 9

President appoints ambassadors, federal judges and officers of the US. (Senate must confirm for appointee to take power)
2. Congress may vest (give the job to) the appointment of inferior officers in the President, heads of departments or the lower courts.
3. Congress MAY NOT give itself or its officers the appointment power.

Front 10

What is Congress' appointment power?

Back 10

Congress MAY NOT give itself or its officers the appointment power but it may give the appointment power to appoint inferior officers to the President, heads of departments or the lower federal courts.

Front 11

What is the Pres' removal power?

Back 11

unless removal is limited by statute, the Pres may fire any executive branch office.

Front 12

What power does Congress have over the Pres' removal power?

Back 12

1. For Congress to limit removal, it must be an office where independence from the President is desirable (ie can't limit removal of Pres' cabinet)
2. Congress cannot prohibit removal, it can limit removal to where there is a good cause.

Front 13

Who can be impeached and why?

Back 13

Pres, VP, federal judges and officers of the US for treason, bribery or high crimes and misdemeanors.

Front 14

What is the impeachment and removal process?

Back 14

House has sole power to impeach by a majority vote then goes to the Senate which must convict by a 2/3rds vote which causes removal.

Front 15

Can Pres. be a defendant in a civil suit while in office?

Back 15

No. Pres has absolute immunity to civil suits for money damages for actions while in office. Pres. doesn't have immunity for actions that occurred prior to taking office.

Front 16

Pres has an executive privilege over what?

Back 16

presidential papers and conversations but the privilege must yield to other important government interests. (ex. US. v. Nixon - executive privilege must yield to provide evidence in a criminal trial)

Front 17

What is the Presidents power to pardon?

Back 17

Can pardon those accused or convicted of FEDERAL crimes NOT state crimes or civil liability. EXCEPTION: when a person has been impeached there can never be a pardon.

Front 18

What is federalism?

Back 18

limits on state and local power b/c of federal government and other states.

Front 19

What is the Supremacy Clause of Art. 6?

Back 19

the Constitution, the laws and treaties made pursuant to it are the SUPREME LAW OF THE LAND ie if there is a conflict b/w federal and state/local law then federal law wins.

Front 20

What are the two ways in which federal preemption of state law is found?

Back 20

1. Express Preemption - federal statute explicitly says the federal law is exclusive in a particular area
2. Implied preemption (3 ways)

Front 21

What are the three ways implied preemption of state law is found?

Back 21

1. * If federal and state laws are mutually exclusive, federal law preempts state law. State MAY set environmental standards STRICTER than Federal law unless strictly prohibited by Congress
2. If state law impedes the achievement of a federal objective, federal law preempts
3. If Congress evidences a clear intent to preempt state law (see legislative history), federal law preempts.

Front 22

What is inter-governmental immunity?

Back 22

states may not tax or regulate federal government activity (ie unconstitutional to pay state tax out of federal treasury)

Front 23

What is the dormant commerce clause?

Back 23

states and local laws are unconstitutional if they place an UNDUE BURDEN on interstate commeerce.

Rule inferred from Congress' commerce power

Front 24

What is the privileges AND immunities clause of Art. 4?

Back 24

No state may deny citizens of the other states the privileges and immunities it accords its own citizens - anti-discrimination clause

Front 25

What is the privileges OR immunities clause of the 14th Amend?

Back 25

involves the right to travel

Front 26

What is the analysis if a state law does not discriminate against out-of-staters?

Back 26

If the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits.

The privileges and immunities clause of Article 4 does NOT apply.

Front 27

What is the analysis if a state law discriminates against out-of-staters and burdens interstate commerce?

Back 27

It violates the dormant commerce clause UNLESS it is necessary to achieve an important government purpose.
EXCEPTIONS:
1. Congressional approval - once commerce acted, not dormant
2. the market participant exception - a state or local govt may prefer its own citizens in receiving benefits from govt programs or in dealing with govt-owned businesses.

Front 28

What is the analysis if a state law discriminates against out-of-staters with regard to their ability to earn a living?

Back 28

Violates the privileges and immunities clause of Art. 4 UNLESS it is necessary to achieve an important govt. purpose.
Elements:
1. law must discriminate against out-of-staters
2. discrimination must be regarding civil liberties or important economic activities (not just hobbies)
3. Corporations and aliens cannot use the privileges and immunities clause (can use dormant commerce clause)
4. the discrimination must be necessary to achieve an important government purpose.

Front 29

What are the three important rules regarding state taxation of interstate commerce?

Back 29

1. states may not use their tax systems to help in-state businesses
2. a state may only tax activities if there is a substantial nexus to the taxing state
3. state taxation of interstate businesses must be fairly apportioned (ie only tax revenue associated w/ the state)

Front 30

What is full faith and credit?

Back 30

Courts in one state must give full faith and credit to judgments of courts in another state so long as:
1. The court that rendered the judgment had personal and subject matter jurisdiction
AND
2. The judgment was on the merits
AND
3. the judgment was final

Front 31

The US Const. only applies to action by who?

Back 31

the government. private conduct need not comply with the US Constitution. (Exceptions)

Front 32

When MAY Congress, by statute apply constitutional norms to private conduct?

Back 32

1. Congress can enact statutes under the 13th Amend to prohibit private race discrimination.
2. Commerce power
3. CANNOT use section 5 of the 14th Amend to regulate private behavior.

Front 33

What are exceptions to the general rule that the Const. only applies to government action ie when MUST private conduct comply with the Const?

Back 33

1. Public Function Exception - if a private entity is performing a task traditionally, exclusively done by the government.
2. Entanglement exception - The Const. applies if the government affirmatively authorizes, encourages or facilitates unconstitutional activity. (either govt. must stop or private conduct must comply with Const)

Front 34

How can you tell when the government has become entangled with a private entity so that the entanglement exception applies?

Back 34

very hard to tell, pattern is that if race is involved the court tends to apply entanglement but where there is any other const. right, no entanglement.