Chapter 6 Questions

Front 1

Constitution:
first three

Back 1

establish the legislative, executive, and judicial branches, respectively

Front 2

article 4 constitution

Back 2

ensures one nation versus individual states will provide the framework for citizenship and commercial activies

Front 3

article 5 constitution

Back 3

provides the process governing the amendment of the constitution

Front 4

article 6 constitution

Back 4

describes how this constitution will be te supreme law of the land

Front 5

article 7 constitution

Back 5

states the constitution wil become effective upon ratification of the states.

Front 6

bill of rights

Back 6

first ten amendments

Front 7

what is the separation of powers between levels of government known as

Back 7

federalism

Front 8

what is federalism

Back 8

regognizes that each level of government has a separate and distinct role to play

Front 9

I. The supremacy clause, Article VI.

Back 9

a. The Constitution, federal statutes, and U.S. treaties are the supreme law of the land.

Front 10

preemption

Back 10

if federal law preempts (“occupies the field”) any state law attempting to regulate the same activity is unconstitutional under the supremacy clause.

Front 11

II. The contract clause, Article I, Section 10.

Back 11

II. The contract clause, Article I, Section 10.
a. States cannot pass laws that impair the obligation of contract.
i. Cannot void contracts after the fact.

Front 12

III. The commerce clause, Article I, Section 8.

Back 12

III. The commerce clause, Article I, Section 8.
a. Lists the enumerated powers of Congress.
i. Congress also has implied powers.
b. Under the enumerated powers Congress has power to “regulate commerce among the states”.

Front 13

4 important areas of power in government

Back 13

1. Foreign commerce
2. Interstate commerce
3. State police power
4. State taxation

Front 14

foreign commerce

Back 14

power to regulate is exclusive to the federal government

Front 15

Interstate commerce

Back 15

i. Not just truly interstate.
ii. Expanded to include purely intrastate activities that affect interstate commerce. [wheat case]
iii. Regulation is appropriate if it aids interstate commerce.

Front 16

Limitation on state police power

Back 16

i. Federal Government gets its authority to regulate business from the commerce clause.
ii. State and local governments get their authority from the concept of police powers.
1. Unlimited powers given to the states in the 10th Amendment: “all powers not delegated to the government (in the constitution) are reserved to the states”
2. Inherent authority to regulate for the well-being of its citizens.
iii. But, state regulations are limited by the commerce clause:
1. Cannot be arbitrary, capricious, or unreasonable
2. Cannot violate the commerce clause
a. Because of the negative implications of the dormant commerce clause.

Front 17

the district areas of government get to regulate

Back 17

exclusively federal
exclusively state
dual regulation

Front 18

dual regulation, three subparts

Back 18

federal preemption
federal regulation but no preemption
No federal regualtion

Front 19

what is the exclusively federal part of dual regulation

Back 19

3. If there is an express constitutional limitation or prohibition on the states’ exercise of power –treaty power, coinage, etc., or
4. If the subject involves internal matters where uniformity on a nationwide basis is essential.
a. Airports example.

Front 20

what is thte exclusicely state part of dual regulation

Back 20

5. Intrastate activities that do not have a substantial effect on interstate commerce.
6. Big question – what exactly does lie exclusively within the states’ regulatory authority?
7. Prior to 1937 – states enjoyed expansive regulatory powers. Federal regulations were often struck down as interfering with the states’ rights.
8. Problem was we needed a strong federal government after the Depression.
9. After 1937 – federal authority became expansive, often invalidating states’ regulations.
10. Recent years – power swinging back to the states.

Front 21

iv. Joint Regulation (between the 2 extremes)

Back 21

1. Most governmental power is concurrent w/both states and federal government regulating.
2. If both state and federal government regulate, supremacy clause provides that the federal law is supreme.

Front 22

In joint regulation what possibilities exist

Back 22

Federal preemption
No federal preemption
No federal regulation

Front 23

Federal preemption is?

Back 23

it appears congress intednded to "occupy the field"
1. Comprehensive federal regulation?
2. Federal agency administering?
ii. If so, the preemption precludes and state law or regulation in the same area.

Front 24

No federal preemption is?

Back 24

i. No comprehensive federal regulation, or agency administration.
ii. State regulation is permitted, unless inconsistent with federal law, or
iii. Irreconcilable conflict.
1. Not possible for business to comply with both federal and state regulation.
2. If possible to comply with both, business must do so.
3. This means that business must meet the requirements of the law with the greatest burden; or
iv. Undue burden on interstate commerce.
1. Direct Burden.
a. State must show a legitimate purpose; and
b. Its purpose cannot be achieved w/out this particular regulation.
2. Incidental Burden.
a. Balance burdens against benefits to determine whether the state law is constitutional.

Front 25

No federl regulation is?

Back 25

no federal regulation of the subject matter.
states can regulate interstate commece, provided they have
No undue burden and no impermissible discrimmination

Front 26

what is the limits on state taxation

Back 26

i. Taxation is regulation.
ii. Commerce clause limits taxation on interstate commerce by state and local governments.
a. Commerce clause limits property taxes, income taxes, and sales.
iii. States must apportion taxes.
1. Must be connection between the business and the taxing state – nexus.- must be suffient local activities to justify the tax in a constitutional sense

Front 27

extablishment clause

Back 27

shall make no laws respecting religion.

Front 28

Free Exercise clause

Back 28

– Congress shall make no laws prohibiting the free exercise of religion.

Front 29

legislation requiring the closing of certain business establishments? why and what is this called

Back 29

Blue Laws,
i. Originally based on the Sabbath, but now there are economic concerns.
ii. If state can cite legitimate economic concerns, the law is valid
iii. Minnesota’s prohibition on sale of cars or hard liquor on Sunday.
iv. Bills have been introduced to get rid of these laws. Car dealers want to keep the laws – too much competition, they will be forced to be open on Sunday.

Front 30

press is free to publish, but may face liability after the fact . . .

Back 30

defamation printed falsehood
public figure, must prove actual malice: which means
Knew it was untrue, and reckless disregard for the truth
last, private individual - liability without malice

Front 31

what amendment is eminent domain in

Back 31

5th

Front 32

what is eminent domain

Back 32

a. “nor shall private property be taken for public use without just compensation”.
b. This is not a grant of power. It is a limitation on a power, for example, the state through its police powers enacts new zoning ordinances, or interferes with private land ownership.
i. Owner can’t stand in the way of public use, but
ii. Is entitled to compensation for the taking.
iii. Most often disputed in cases of state/local government takings.
iv. Defining public use.
v. Now it means as long as regulation is rationally related to a legitimate public purpose.

Front 33

What is the 14th amendment

Back 33

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S., nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any perosn within its jurisdiction the equal protection of the laws.

Front 34

two provisions in the 14th amendment that are of special importance to businesspeople

Back 34

the due process clause and the equal protection clause.

Front 35

what is the due process of law

Back 35

dundamental fairness and decency
it applies only to gov. not individuals

Front 36

within due process of law their are two types of due process

Back 36

procedural due process which is proper notice, proper hearing, opportunity to be heard and substantive due process which is the law itself is reasonable, not arbitrary

Front 37

what is equal protection

Back 37

a. The law should not treat people differently without a satisfactory reason

Front 38

b. Three approaches to reviewing cases that allege equal protection violation:

Back 38

Minimum rationality
strict scrutiny
quasi strict scrutiny

Front 39

what is minimum rationality

Back 39

1. Rational connection to a permissible state end.
2. Used for economic issues; social legislation.
3. Presumed constitutional.

Front 40

what is strict scrutiny

Back 40

1. Differing treatment is ep violation unless necessary to achieve a compelling state purpose.
2. Used for suspect class, or fundamental right.
3. Presumed unconstitutional.[Adarand Constructors, Inc. v. Pena case presentation]

Front 41

what is quasi-strict scrutiny

Back 41

1. Modified strict-scrutiny.
2. Quasi-suspect classes.
a. Ex. Gender
3. Not quite fundamental rights.
a. Jury makeup; voting requirements.
4. Differing treatment is ep violation unless substantially related to an important government objective.