Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key

image

Play button

image

Play button

image

Progress

1/59

Click to flip

59 Cards in this Set

  • Front
  • Back
Before substantive issues can be discussed are there any procedureal issues to be analyzed? If so what are they?
Case/controvery, standing, ripeness, mootness, political question, Supreme Court Jurisdiction, adequate state grounds, absention and declaration relief, 11th Amendment
What is Case or Controversy
1)Article III 2) real/threatened harm rather than advisory option 3) substantial controvery must exit
Standing
Article III requires that the person must show a direct and immediate personal injury directly traced to a challenged action (causation) and likely to be redressed by the judicial relief sought.
Association Standing
Members have standing; interest asserted is germane to the association purpose; neither the claim asserted nor the relief requested requires that the members participate in the suit
Taxpayer Standing
In Federal court no standing; exception- A Federal tax involving a federal spending power which results in an infrigement of specifically guaranteed constitutional right
Third Party Standing
Exists where close nexus, substanial relationship between the claimant and the third party, high risk of compromise subtantial rights or not reasonable for third party to assert own rights
Ripness
1) P is trying to bring suit before injury has occurred 2) look for actual injury or an imminent threat of actual injury
Mootness
Will the adjudication have any practical effect on P's right or all issues resolved. Exception recurring issues problems
Political Question
Usually involves separation of powers problem/national policy/foreign affairs...Senate shall have the sole power to try all impeachments
Supreme Court Jurisdiction
1) Exhausion of state procedures 2) final judgments 3) review limited to federal question
Cases from highest state court review by Supreme Court when?
Final judgments rendered by the highest court of a state in which decision could be had may be reviewed by the Supreme Court by certiorari: 1) validity of a treaty of federal statue is drawn into questions or 2) Federal Constitution 3) right, privilege under the constitution
Court of Appeals cases may be reviewed by Supreme Court when?
1) by certiorari granted upon petition of any party to any civil or criminal case before or after rendition of judgment or decree 2) By Certification by the court of appleas of any question of law in any civil or criminal case
What is adequate and independent state grounds?
1) Could the case have been decided on reasonable adequate state grounds?
2)will hear only an advisory opinion as to the federal law outcome unchanged
3)If the state court appears to rest primarily on federal law, absent a clear statement to the contrary
Absention
Any federal court at any level may abstain or refuse to hear a particular case when there are undecided issues of state law presented. Exception bad faith
Declaratory Relief
Federal Declaratory Judgment provides that in cases of actual controversies court will determine the rights and liabilities of the parties concerned even though no affirmative relief is sought
11th Admendment
Bars a citizen of one state from suing another state without its consent in federal court. Does not bar suits by federal government
Sovereign Immunity
A separate, but related doctrine, prohibits citizens of a state from suing their state without its consent
Commerce Clause
Article 1 section 8 gives Congressa the power to regulate commerce among the several states to assure survival of a non-fragmented central government and to prevent interstate rivalries. The commerce "plenary" including all commerical intercourse involving more states than one
The extension of the commerce clause
Any NATIONAL ECONOMIC effect direct or indirect, manufactures, transportation, goods shipped
Commerce clause has been extended to?
areas of crim, discrimination, any phase of the econonmy, national or local
What will the Feds argue in a Commerce Clause fact pattern?
Commerce power extends to any issue substantially affecting interstate commerce.
State will argue (10th) amendment
A strict interpretation of the 10th Amendment to particularly the areas of health, safety, morals, welfare, and activity does not subtantaially affect interstate commerce
Taxing Power
If Congress has power to regulate activity then tax valid even if for regulatory purpose only. If Congress has no power to regulate then tax must be revenue raising (dominant intent)
Spending Power
Congress has the power to spend money in order to pay the debts and provide for common defense and general welfare of the U.S.
The Spending Power must be?
Must be reasonably adopted to the attainment of an end which will justify the expenditure
General Welfare
Congress must tax for revenue not regulatory and must spend for the general welfare
War Power
Article 1 Section 8- Congress; Article 11 Section 2-President
Congress under the Necessary and Proper Clause and President have wide power to prepare for waged war and to control after effects of war
Treaty Power
The treaty power gives President the right to make treaties with the consent of 2/3 of the Senate. When the treaty conflicts with Act of Congress-last act will control
Limitations of Treaty Power
1) may not contradict an express provision of the Constitution
2)can not vest federal govenment power which Constitution denies
3) 10th Amendment does not serve as a limitation on the treaty power
Foreign Affairs Power
Congress does have implied power to regulate foreign affairs not included in Enumerated Powers or the Necessity and Proper Clause
2) sole organ of power is the President
Power of Aliens/Naturalization/Citizenship
Congress may regulate immigration and may specify the status and condition for entry and deportation of aliens.
2) Congress may impose restrictions on aliens which would be unconstitutional if imposed on citizens
3) If alien legally in US Due Process rights attach
Bill of Attainder
A legislative act directed against a class of designated persons, pronoucing guilt without a trial or conviction - should not play role of judiciary
Ex Post Facto Law
A law passed after the occurence of a fact or commission of an act which retroactively changes the legal consequences
Dormant Commerce Clause (State Statute)
Does the state have concurrent power through the 10th Amendment to regulate in ways that have an effect on interstate commerce
What is the issue to ask re: Dormant Commerce Clause
Does state law violate the Constitution by infringing upon Congressional Commerce Power?
If a state statute discriminates facially (intentionally) against interstate commerce is it valid? Is there an exception?
Not valid. Exceptions:
1) Market Participation
2) Maine v. Taylor
3) Congressional approval of discrmination
Dormant Commerce Clause- If the state does not discriminate intentionally against the interstate commerce the court will give greater deference if?
1)state regulaton evenhandedly (neutrally with respect to interstate commerce)
2) to effectuate a legimate local public interest
3) the effect on commerce are only incident, it will upheld
4)unless the burden on interstate commerce is excessive in relatioon to the putative local benefits
Doctrine of Alternative Means
If state hass a strong interest which can be accomplished by alternative means with less burden on commerce the law will be held invalid
Market Participation Doctrine
Nothing in the Commerce clause forbids a state from participating in the market and exercising the right to favor its own citizens over others. Discrimination only when state purchases=participant not a regulator (state wants to be a regulator not a participant)
21st Amendment Clause
Gives states additional power over allowing liquor into state. Because the additional police power is beyond the 10th A, state law which may be otherwise unconstitutional under the commerce clasue may be valid under 21st
Preemption Doctrine
1) where state law is in direct conflict with federal law either explicity or implicity
2)Where Congress acted to occupy the field by providing complete regulation
When is Federal Taxation of State permitted?
1) Tax is not burden on traditional state functions
2) Tax is uniform to the state
3) Taxed activity or interst could be operated by a private business
Is the State immuned from Federal Regulation
Federal government has the same power to regulate the activities of states as to regulate private agencies and individuals.
Is the Feds immuned from State Regulations?
Balance state interst against importance of federal operation. To what degress does state law interfer with federal function?
Can the State tax direct operations of Federal Government?
No. The states cannot tax direct operation of federal government since that would interfer with federal function- Supremacy Clause
When Congress has spoke the state can tax where?
State may tax activities solely in its borders but it cannot set up protective tariffs to protect intrastate activity
When Congress is silent the state tax tests are?
1) legal incident test(government itself)
2) discrimination Test
3) Burden on Federal Government
State taxation of Interstate Commerce are?
State may impose nondiscriminatory taxes affecting interstate commerce as long as revenue raising in nature as opposed to burdening free flow of commerce 2) due process must be satisfied 3)tax must be fairly apportioned
What is Use Tax?
Imposed upon a user of goods purchased outside of the state. Valid as long as not higher than sales tax
What is Ad Valorem Property Taxes?
Taxes based upon percentage of property's assessed value. Can only be imposed when commodity reaches final destination
Privilege, License, Franchise, Occupation Tax?
Valid for the privilege of doing business as long as tax has a substantial nexus to taxing state it is fairly apportioned
Tax on Foreign Corporation
Tax must be nondiscriminatory as to business done locally
Who does the Privileges/Immunities Clause protect?
Article 4 Section 2 (state citizenship) Citizens of each state shall be entitled to all P/I of citizens of several states. Only citizens are protected. Clauses does not protect Commerce Clause
Can a State discriminate against out of state citizens and their fundamental rights?
No. Fundamental rights are, right to own property, earn a living, basic right to medical care, access to court system.
When can a State discriminate against out of state citizens?
Discrimination is permitted if a substantial state interest (natural resources/fundamental state right is involved)
Privilege or Immunities 14th A (National Citizen)states?
No state shall make/enforece any law which shall abridge the privileges or immunities of citizens of the U.S.
Article 1 is the source of power for whom?
Powers of Congress
Article 2 is the source of power for Whom?
Powers of Executive
Article 3 is the source of power for Whom?
Powers of Judiciary