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27 Cards in this Set
- Front
- Back
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Congress's commerce power is fairly broad
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broadcasting religious messages into the galaxy cannot be declared unconstitutional on commerce clause ground, but will be on establishment clause ground
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14th amdt due process apply to
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the state and local government
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5th amdt due process
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the federal government
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11th amdt immunity
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only apply to state government, NOT local government
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NORA
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national origin race or alienage
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Intermediate Scrutiny - SIC
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gender
illegitimacy alien children of citizen |
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Rational Basis
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age
wealth disability |
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undue burden
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pregnancy
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list of bad answer
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ex post facto
p & i bill of attainder |
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alienage
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federal law on alienage - only rational basis
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State Action
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significant state involvement - the arm test
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Congress' Appointment Power
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The Constitution also provides that Congress by law may vest the appointment of “inferior Officers” in the President alone, in the courts of law, or in the heads of departments.
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President's Appointment Power
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The Constitution (Article 2, Section 2) gives the President the power to nominate and, with the advice and consent of the Senate, appoint officers of the United States.
Presidents also appoint and promote all military officers subject to Senate consent. |
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order of law
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Con Law > Treaty/Fed Leg. > executive agreement > state law
*administrative order of federal agency also supersedes state law |
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Delegation of congressional power
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1) must be a power that the congress may delegate
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11th amendment
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does not apply to city government, only to state government
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Non commandeering
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Congress cannot compel state to enact legislation
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Commerce Clause analysis
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Need to look at the economic activities carefully, if some activity can be severed from interstate commerce, the state will have the power to regulate that part of the activity.
For inseverable activities, congress has exclusive control. |
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Examples of non State Action
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1) licensing
2) regulating private companies 3) |
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standard for reviewing public use in the taking clause
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rational basis
in generally almost any use related to the public suffices |
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affectation doctrine
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allows the congress to have the power to regulate any activity, whether carried on in one state or many, which has any appreciable effect- directly or indirectly - upon interstate commerce.
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commercial advertisement should not
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be completely banned, but should be narrowly tailored to achieve the desired objective.
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whether religious member are precluded from holding government offices
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majority of the justices ruled that the free exercise of religion allowed members of the clergy to hold government office.
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President's Removal Power
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he President has implied power under Article II to remove executive officers appointed by the President. However, the President may not remove, at will, such quasi-legislative or quasi-judicial officers as the FTC Commissioner, even if the President appointed the officer.
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Two types of analysis of government program affecting religion.
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1) Where a law or government program prefers one religion or one religious sect over others, strict scrutiny analysis will be applied.
2) However, where a law or government program contains no religious or sectarian preference, courts follow the three-part test of Lemon v. Kurtzman (1971): 1) the statute must have a secular purpose; 2) the primary effect or purpose must neither advance nor inhibit religion; and 3) the statute must not foster excessive government entanglement with religion. |
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State Fund and theology degree?
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Although the state's funding of theological studies was permitted under the Establishment Clause, the Free Exercise Clause did not require the state to do so.
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free exercise clause does not take priority over the anti-establishment clause
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The free exercise clause does not require government to do things relating to religion even when those things will NOT violate the anti-establishment clause.
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