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246 Cards in this Set

  • Front
  • Back
Article III gives the federal court system judicial powers over which types of cases and controversies?
1. Arising under the Constitution, laws, and treaties of the United States.

2. Admiralty and maritime jurisdiction

3. In which the U.S. is a party

4. Between two or more states

5. Between a state and a citizen of another state (but see 11th Amendment)

6. Between citizens of different states

7. Between citizens of the same state claiming lands under grants of different states

8. Betrween a state or citizens of the state, and foreign states, citizens or subjects.
What is the Constitutional basis of judicial review of the other branches of government?
Marbury v. Madison: The Constitution is law, and it is the province and duty of the judicial department to say what the law is; also no damnun absque injurium.
What is the basis of federal judicial review of state acts?
The Supremacy Clause (Article VI), and reasoning by the Supreme Court under Justice Marshall. Applies to acts of any branch of state government.
Describe the differences between Article III and Article I courts
In both cases Congress has plenary power to delineate the jurisdiction of the courts. But Article III courts are more independent: Congress cannot change the requirements regarding subject matter, parties or case/controversy. Can't require advisory opinions or nonjudicial functions. Also can't eliminate life tenure or protection from pay reduction. Art. III courts do not have these protections, and can be given administrative functions.
What limitations exist on Congress's creation of Article I courts?
They can't assign them broad jurisdiction or a high level of immunity from judicial review.
What cases does the Supreme Court have original jurisdiction over?
Those involving ambassadors, public ministers and consuls, and those in which states are parties.
Does Congress have the power to expand or contract the original jurisdiction of the Supreme Court?
No, but it may assign concurrent jurisdiction to the inferior courts.
What cases does the Supreme Court have appellate jurisdiction over?
All cases that the lower federal courts have original jurisdiction over.
What is the difference between appeal and certiorari?
Appeals are non-discretionary. Certiorari is discretionary.
What cases are appealable to the US Supreme Court?
Decisions of Federal District Court three judge panels that grant or deny injunctive relief.
What requirements are there for the Supreme Court to hear a case on certiorari?
1. Four justices must agree to hear it;
2. Either
a. the case was decided by a federal court of appeals, or
b. the case was decided by the highest state court, and implicates the constitutionality of a federal or state law, or a conflict between a state and federal law.
How can Congress limit the Supreme Court's jurisdiction?
Ex Parte McCardle: they can eliminate the SCT's power to review certain subjects; however, there are likely limitations; e.g. CG can't cut off all avenues of judicial redress; that would violate due process.
In what ways can the Court refuse to hear cases?
1. Court can't hear advisory opinions.
2. Litigating party must have standing.
3. The court will not hear political questions.
4. The controversy must be ripe and not moot.
What exceptions are there to mootness?
1. Capable of repetition but evading review (e.g. Roe v. Wade).
2. Class actions.
What are the components of standing?
1. Injury in fact
2. causation/redressibility
3. Zone of interests
4. Rights of others
Can Congress create standing by legislation?
Congress can create rights, the violation of which gives rise to standing; but it can't get around the cas/controversy requirement, which is constitutional.
Do states have the same standing requirements as individuals?
No. Massachsuetts v. EPA. As quasi-sovereigns, states receive special deference.
Do individuals ever have standing to assert the rights of others?
Yes. e.g. association on behalf of its members; a part that is indirectly injured based on relationship to the third party.
What are the standards for organizational standing?
1. Injury to members that would give them standing.
2. Injury is related to organization's purpose.
3. Individual participation not required for procedural or remedial reasons.
What is the exception to taxpayer standing?
Taxpayers can challenge a congressional spending act, enacted pursuant to spending powers, that violates a specific constitutional provision.
Under what circumstances to legislators have standing to challenge a government act relating to the process of legislation?
Legislators can challenge the constitutionality of a government act if they have a personal stake in the dispute and suffered concrete injury.

e.g. legislator lost a vote because of allegedly unconstitutional tie-breaking vote by state LG: standing. (particular because it affects only half of the legislators)

e.g. act expanding presidents line-item veto power: no standing, because it affects all members of legislature, and therefore it's a generalized injury.
Under what conditions will the SCT hear cases decided by the state courts?
The federal question must be outcome-decisive (adequate); and it must not have been made based on federal case law authority (independent).
What situation gives rise to Pullman abstention?
1. Difficult issue of state law
2. Need for constitutional decision might be avoided by state adjudication.
What situation gives rise to Younger abstention?
State proceedings are pending (started before the federal court begins proceeding on the merits).
When should the federal courts abstain from enjoining civil/administrative proceedings?
When an important state interest is at stake.
Executive immunities: justiciable?
Yes. This is not a political question.
Legislative apportionment: justiciable?
Yes. Not a political question.
Whether a bill is for raising revenue or not (and therefore must originate in the House): Justiciable?
Yes. This is not a political question.
Whether the Senate's impeachment trial observed due process: justiciable?
No. Political question.
Which group of delegates was seated at a political convention: justiciable?
No. Political question.
What kind of damages can an individual recover from a state government?
NONE if the government rases 11th amendment immunity.
What kinds of damages can be recovered from a state official sued for official actions?
Any prospective relief.
P sues state government under FLSA, in state court. Result?
State raises sovereign immunity claim; case dismissed (Alden v. Maine).
P sues city of New York in federal court for federal violation. City pleads 11th amendment. Result?
No immunity.
United States government takes state of Florida to court. Seminole Tribe joins case as plaintiff. State raises 11th amendment immunity. Result?
Seminole Tribe's claim is dismissed. U.S. case is not.
P is in bankruptcy proceeding. Takes state to bankruptcy court. State raises 11th Amendment immunity. Result?
No immunity in bankruptcy courts.
P, a citizen of Arkansas, takes the state of Louisiana to court in Arkansas. Louisiana removes the case to the Federal court system and asks the court to dismiss based on 11th Amendment. Result?
Louisiana waived its immunity by removing the case to federal court.
Under what circumstances can Congress abrogate state sovereign immunity?
Only under the 14th amendment, and by a clear statement.
Does Necessary and Proper power allow Congress to execute powers granted to the other branches of the federal government?
Yes.
Is Necessary and Proper a stand-alone power?
No. It needs to be exercised to execute some other constitutional power.
What limitations exist on Congress's taxation powers?
1. Taxes must be laid uniformly across the states.

2. Direct taxes (but not income tax) must be proportional to the census and apportioned among the states.

3. No taxation of exports.

4. Taxes must be reasonably related to revenue production, or CG has the power to regulate the taxed activity.
Must income taxes be apportioned among the states and proportional based on the census?
No. Although income taxes are direct, the 16th amendment exempts them from the proportionality requirement.
Is taxation of exports permitted?
No.
What is the general extent of Congress's spending power?
Congress can spend to provide for the common defense and general welfare.
Can Congress regulate through spending?
Yes. Even if it has no express power to regulate an area, it can attach strings to spending.
Can Congress pay someone to refrain from criticizing the government?
No, nor to do anything else permitted by the Bill of Rights. This is a restriction on Congressional spending.
What types of commerce can Congress regulate?
Interstate, foreign, Indian tribes.
How broad is interstate commerce?
Extremely broad. Producing grain for self-consumption is interstate commerce because it affects the interstate market.
Does interstate commerce require commercial activity?
No. Production for self-consumption is interstate commerce, and so is interstate transportation with no commercial purpose.
What limitations exist on Congress's ability to regulate interstate commerce?
The regulation must concern the channels of interstate commerce, the instrumentalities of interstate commerce, or activities that sustantially affect interstate commerce. Standard of review is rational basis.
Who has the power to declare war?
Congress! And it can raise and support armies, regulate the armed forces, and organize, arm, discipline and call up the militia.
What economic powers does Congress have in wartime?
Pervasive, though theoretically limited by the Bill of Rights. Includes onscription of civilian production & services, price and rent control. These powers extend to the post-war period, when necessary to remedy wartime disruption and cope with post-war exigencies.
What is the limit of Congress's abilit to regulate veterans' rights?
Until the veterans or their relatives die.
Which branch of government is responsible for military tribunals?
Congress, under the power to regulate the armed forces + Necessary and Proper.
What level of judicial review is there of military courts/tribunals?
NONE, except in habeas corpus cases, where Article III courts can review the military court's jurisdiction and its constitutionality.
Can enemy soldiers be tried in military tribunals?
Yes, at least in wartime.
Do military tribunals have jurisdiction over American civilians?
Only if the Article III courts have shut down. So no.
What offenses do the military courts have jurisdiction over?
When it comes to soldiers, military courts have jurisdiction over all offenses.
At what point must a person be a member of the US armed forces to be court-martialed?
The time of the offense or the time she is charged with it.
What due process rights do enemy combatants have?
They have a habeas right to be able to dispute facts before a neutral decision-maker. But the hearing procedures can be tailored to alleviate wartime burdens on the executive.
What is Congress's "Calling forth the Militia" power?
Congress can authorize the President to mobilize the National Guard, even without a national emergency.
What limits exist on Congress's power to investigate?
1. A committee can only investigate what Congress explicitly or impliedly authorized.

2. Witnesses' rights must be respected.
What rights do witnesses before Congressional investigations have?
1. Fifth amendment privilege against self-incrimination.

2. Questions must be pertinent to the subject of the inquiry.

3. There is a customary right, and there may be a Constitutional right, to witness's procedural due process (e.g. right to counsel, right to X-examination).

Congress can hold people in contempt for refusing to appear.
What property powers does Congress have?
The power to dispose of property, the (implied) power to acquire property, and the power to regulate property it owns (e.g. protection of animals on Federal land).
Can government dispose of property in a way that competes with private enterprise?
Yes.
What are the limits on eminent domain/federal taking?
There must be just compensation, and it must be for effectuating an enumerated power.
What is the extent of Congressional police power (legislating health, welfare, morality, etc?)
There is none with respect to citizens of the states. There is police power WRT DC, the territories, etc. based on the property power.
Are state bankruptcy laws preempted by federal bankruptcy law?
Only to the extent they conflict. CG has the authority to make uniform bankruptcy laws.
What is the extent of congress's postal power?
Congress has a monopoly on establishing post offices and roads. Private businesses and the states can only compete with it to the extent that Congress permits it.
What limitations are there on Congress's postal powers?
Congress can classify and place reasonable restrictions on the use of the mails; but it cannot deprive people of the right to use the mail, or restrict people's first or fourth amendment rights through regulation.
What power does Congress have to exclude aliens?
Nonresident aliens have no right to enter. Resident aliens are e nntitled to notice and a hearing before they are deported.
Can Congress deprive a person of citizenship for voting in a foreign election?
Not without their consent. 14A. But congress can legislate the standards for proving consent.
Do children of US citizens born abroad have the right to citizenship?
No. Congress regulates this area.
What admiralty powers does Congress have?
Plenary power. Implied from grant of jurisdiction to federal courts, plus Necessary and Proper.
Does admiralty power extend to navigable waterways within the US?
Yes, and to tributaries affecting navigable waterways.
What intellectual property-related powers does Congress have?
The power to regulate patents and copyrights.
Where does Congress's power to issue currency come from?
Express enumeration; Article I, s. 8, clause 5. Also lets Congress set standards weights and measures.
How broad is Congress's delegation power?
Very broad. It can even delegate to the courts the power to set sentencing guidelines.
What are the limitations on Congress's ability to delegate to other branches of government?
1. The power cannot be uniquely confined to Congress in the Constitution.

2. Congress must create intelligible standards for the delegate to follow (but virtually everything is intelligible)

3. Cannot reserve to itself powers in violation of separation of powers, e.g. the right to veto executive decisions or to fire an executive member.

4. If the delegate interferes with fundamental liberties, burden is on delegate to show that Congress extended her that power.

5. Congress can delegate rule-making for criminal matters, but prosecution must be left to the executive.
Who is covered by the Congressional free speech immunity?
Members and their aides, but not state legislators.
What are the limitations on Congressional free speech immunity?
1. Does not protect bribery.
2. Does not protect statements by immune person outside Congress.
3. Does not protect republication of what was said from libel charges.
How can Congress veto an executive action?
It can't really; but it can ban or undo certain executive conduct by passing a law. [This can come up in a delegation situation, with veto rights reserved.]
Who can give power within the executive branch?
Both the President and Congress.
Can the President appoint public ministers without the approval of Congress?
Only if Congress allows her to. Otherwise it requires the advice and consent of the Senate.
Can courts appoint special prosecutors?
These are "inferior officers" of the executive who Congress may permit courts to appoint.
Can Congress ever appoint a person with executive powers?
No.
Who is authorized to remove appointed members of the executive?
The President may do so at will, although Congress may set statutory limits. Congress may only remove an executive member through impeachment.
Can Congress creates an executive position and reserve to itself the right to remove the officer in the position?
Only if the person has no real executive power.
Can Congress limit the President's pardon power?
No.
What are the limitations on the President's pardon power?
1. It does not apply to impeachment
2. It does not apply to civil contempt cases
3. A commutation of a sentence cannot be independently unconstitutional.
What happens if the President fails to veto an act within 10 days of passage?
If Congress is still in session, it passes. If it has retired, it is vetoed. Brief recesses are not ends of sessions.
Can the President veto part of a bill?
No. This would amount to the power to amend or repeal, which she does not have.
Describe Justice Jackson's approach to the President's executive power.
If the President acts with the express or implied authority of Congress, the action is valid. If he acts against the express will of Congress, the acts are invalid. If he acts where Congress is silent, the action is valid as long as it does not take over the powers of another branch of government, or prevent another branch from carrying out its tasks.
Can the President refuse to carry out Congress's will?
Not if it was a valid act of Congress.
Does the President have the power to declare war?
No.
What can the President do if the US is attacked?
The President can act militarily without a declaration of war. But Congress has the ability to limit the President through its military appropriation powers.
Can the President set up a military government in occupied territories?
Yes.
Who has the authority to make treaties?
The President, with the advice and consent of the Senate.
Can Congress enact a treaty if it falls outside its enumerated powers?
Yes, a treaty signed by the President can always be enacted by Congress (if it is not self-executing).
How is a conflict between a treaty and an act of Congress resolved?
They are on par, so the one adopted later prevails.
How is a conflict between a treaty and a constitutional provision resolved?
The constitution prevails.
Can the President enter into executive agreements with other heads of state?
Yes, although it's not in the Constitution.
Are executive agreements the supreme law of the land?
No; they are not treaties because they are not entered into with the advice and consent of the Senate. So they are effective but not if they conflict with federal law.
How are conflicts between executive agreements and state law resolved?
In favor of the executive agreement.
Can the federal government settle the claims of a US citizen against a foreign government?
Yes, using the executive agreement power.
Is executive privilege in the Constitution?
No. It is derived from the implied necessity for protecting presidential communications.
What is the extent of executive privilege?
There is a presumption of privilege/immunity for presidential documents and conversations. It is defeated by a showing of necessity for criminal prosecution.
How deferential are the courts to executive privilege?
Very deferential when it comes to national security matters or when the evidence is needed just in a civil matter. It is less deferential in criminal proceedings.
A statute requires the Administrator of General Services to screen the papers of a former President. Is it valid?
Yes.
What is executive immunity?
The President is absolutely immune from civil liability for any action taken within her official duties.
What level of immunity do Presidential aides have?
Absolute immunity in sensitive areas of national concern, like foreign affairs (but not wiretapping). Otherwise they have qualified immunity, which amounts to a good faith defense.
Which executive officials may be impeached?
The President, Vice President, and all civil officers.
What are the grounds for impeachment of an executive official?
Treason, bribery, high crimes and misdemeanors.
How does the impeachment process work?
It is initiated in the House. If a majority votes for impeachment, it goes to the Senate where 2/3 must vote to convict.
How much latitude does a state have to conduct foreign affairs?
Very little. For exam purposes, assume tat any state action that impacts foreign affairs is invalid.
A state law suspends the driver's licenses of people who haven't paid car accident judgments. Any problems?
Yes, it interferes with the federal government's objectives in regulating bankruptcy, and yields to the supreme law.
How can a state law be invalid if it does not conflict with federal law or prevent achievement of a federal objective?
It is preempted because it is in an area of law where the federal government sought to displace the state's role entirely.
Factors for preemption?
1. How comprehensive is Congress's regulatory regime?

2. Did Congress create an agency to administer this area?
What can neither Congress nor the States regulate?
The qualifications clause. So states cannot impose term limits on their representatives, not require them to vote for term limits.
Can states enter into compacts between themselves?
Yes. But if the compact increases state power vis-a-vis the federal government, Congress must consent to it.
What requirements are there for a judgment to receive full faith and credit?
1. It must be final
2. The court must have had [ersonal and subject matter jurisdiction.
3. Judgment was on the merits.
Can a state sue the United States?
Only with U.S. consent.
When is a suit against a federal officer deemed to be against the United States?
If the judgment would be paid out of the U.S. treasury or would interfere with public administration.
When is a suit against an officer of the U.S. permitted?
When she acted ultra vires.
Can one state sue another without the consent of the defendant state?
Yes. The Supreme Court would have exclusive original jurisdiction.
Can Congress tax or regulate the states?
Yes, if it is a general regulation that applies also to private entities. The Tenth amendment prohibits regulating just state governments, with exceptions.
What exceptions are there to the 10th amendment prohibition on regulating states?
1. Civil rights regulation under the 5th or 14th amendment.

2. Regulation through incentive - Congress can attach strings to grants to the states.
Can the federal government commandeer state officials?
No, although it may prohibit them to do some things.
Can a state tax federal government property or operations?
No, unless it's part of general taxation and is indirect. e.g. a state can tax federal employees at the same rate it taxes everyone else.
Can a private contractor acting as a purchasing agent for the U.S. be taxed by a state?
Not for materials purchased on behalf of the federal government. But yes if woring for the federal government on a "cost-plus" basis.
Can a state regulate federal employees?
Not without Congress's consent.
Can a state require a USPS driver to get a state driver's license?
Nope. This is regulation of the federal government.
Can a state discriminate against nonresidents?
NO! Article IV's privileges and immunities clause forbids it.
Are out-of-state corporations protected by the privileges and immunities clause?
No.
Are foreigners protected by the privileges and immunities clause?
No.
What rights are protected by the privileges and immunities clause?
Fundamental rights, including important commercial activities. e.g. substantial differences in commercial licenses.
State charges residents $25 for a hunting license and nonresidents $2500. Constitutional?
Yes. The privileges and immunities clause is not implicated because the license is recreational rather than affecting one's livelihood.
State law gives resident creditors priority over nonresident creditors as to assets of bankrupt foreign corporation. Constitutional?
No. This violates the privileges and immunities clause.
State law requires residency as a precondition for a law license. Constitutional?
No. Privileges and immunities.
State statute requiring residency as a precondition for government employment. Constitutional?
Yes.
When can a state favor residents over nonresidents?
When the nonresidents are the problem or at least part of the problem, and no less restrictive means of dealing with the issue are available.
What's the relationship between privileges and immunities and the commerce clause?
I don't know. But apparently they tend to reinforce each other.
What is the difference between Article IV and 14A privileges and immunities?
Article IV P&I prohibit states from discriminating against noncitizens. 14A P&I prohibit states from denying their citizens the benefits of national citizenship.
What are some of the national citizenship rights protected by the 14th Amendment's privileges and immunities provision?
1. The right to petition Congress
2. The right to vote in federal elections
3. The right to enter public lands
4. The right to interstate travel
Are corporations protected by 14th Amendment privileges and immunities?
No.
Are the rights to live, work and eat protected by the 14th Amendment's privileges and immunities clause?
No, and neither are the rights under the Bill of Rights.
Are states bound by the Bill of Rights?
Their citizens are protected by the 14th Amendment's due process and equal protection clauses.
State benefits statute limits benefits to new residents of the state. Constitutional?
No. Prohibited by the 14th amendment's privileges and immunities clause.
Can California tax shipping between San Francisco and Honolulu?
No - this is foreign commerce because the shipping is over the high seas.
What aspects of foreign commerce can a state regulate?
Local aspects of shipping, e.g. safety standards in ports in the state.
Can Congress authorize a state to discriminate against interstate commerce?
Yes. For example, CG can allow states to create any insurance law it wants except those that conflict directly with Congressional insurance legislation.
What is the dormant commerce clause?
Where there is no congressional action under the commerce clause, the state is still limited in regulating that area. It may do so only if:

1. the regulation does not discriminate in favor of in-state interests; and

2. it is not unduly burdensome on interstate commerce.
Town law requires all locally produced waste to be processed locally. Constitutional?
No. It is economic discrimination in violation of the Commerce Clause (and privileges and immunities?)
State law requires all melons in the state to be wrapped before being shipped out of state. Constitutional?
No. Violates the commerce clause because it requires an operation to take place in state.
State statute prohibits or surcharges out of state hazardous materials from being disposed of in state. Constitutional?
No. Violates the commerce clause.
What are the exceptions to the prohibition on states favoring their own local economic interests?
1. Necessary to important state interest and no reasonable alternatives are available.

2. The state is acting as a market participant.

3. The state favors a government entity as opposed to a private entity.
Can a state prohibit the importation of a certain type of baitfish that is likely to carry parasites?
Yes, if it can show that the parasite poses a serious threat, and there is no reasonable alternative to banning imports.
Can a state prohibit the export of a certain type of baitfish that is likely to carry parasites?
No. Even if this is likely to lead to a spread of parasites to other states, that is not an important interest of the banning state.
How does the "state as market participant" exception to prohibition of local discrimination under the commerce clause work?
1. If the state buys and sells things as a marker participant, it is free to discriminate against out-of-staters. (But it is not free to attach discriminatory conditions to the sale, such as that the raw material sold must be processed in the state.)

2. A city can require quotas of city residents for construction projects funded by the city (but this might violate the privileges and immunities clause).
Are nondiscriminatory commercial laws permitted if they impose a burden on interstate commerce?
Yes, if the burden is less than or equal to the legitimate state interest being promoted.
What are some factors for determining whether a nondiscriminatory burden placed on interstate commerce by a state outweighs the legitimate state interest?
1. Are there less restrictive alternatives available?

2. Do other states have regulations that conflict with this state's?

3. Does the regulation affect corporations incorporated in the state? If so, the state has more leeway.
What are the limits on the state's ability to regulate alcohol?
It can regulate alcohol to the extent that the commerce clause is respected.
State law requires liquor producer to charge the same price to state retailers as to other retailers. Constitutional?
No. Although states have broad rights to regulate alcohol, this violates the commerce clause.
Congress passes a law letting states impose a certain type of tax which discriminates against interstate commerce. State passes such a tax. Constitutional?
Yes. CG can "waive" interstate commerce powers.
State passes a law giving a tax credit to ethanol produced in that state and sold as a fuel component. Constitutional?
No. Discriminates against interstate commerce, by singling out interstate commerce, and without Congressional authorization.
A state tax is applied uniformly, but the proceeds must be used for in-state subsidies. Constitutional?
No. This is a type of discrimination against interstate commerce.
Which prohibition against protectionism is the strongest: the commerce clause, article VI privileges and immunities, or the equal protection clause?
Privileges and immunities > equal protection (requires legitimate government interest, and protectionism is not legitimate) > interstate commerce (can be waived by Congress) [not sure the last two are really ordered)
When might the courts use an equal protection analysis to invalidate a state tax scheme?
If the tax burdens a fundamental right or uses a suspect classification.
Are state taxes that don't discriminate against interstate commerce permitted?
Not necessarily. There is still a balancing test of burdens on commerce vs. state interest.
What three factors are applied to determine whether a state tax that does not discriminate against interstate commerce is valid?
1. Is there a substantial nexus between the taxed activity/property and the state?

2. Tax is fairly apportioned.

3. Tax is fairly related to the services/benefits provided by the state.
Is there a substantial relationship with the state if a seller operates outside the state, but distributes catalogs into the state ships items to there?
No.

p. 34
A seller makes sales in state and out of state. May a state tax out-of-state sales?
No. That would be unfair apportionment.
Can a state tax passengers travelling out of the state in an airport?
Yes, if it's a state airport. The tax bears a fair relationship to the service provided.
What is a use tax?
A tax on the use of products purchased out of state.
Are use taxes constitutional?
Yes, as long as they do not exceed the state sales tax. The rationale is that the state is equalizing the tax burden between in-state and out-of-state purchases.
Can a state force an out-of-state seller to collect a use tax?
Only if the seller has a substantial connection to the state.
Does collecting a sales tax on goods sold in the state discriminate against interstate commerce?
No.
What is an ad valorem tax?
A tax on property based on its value.
Are ad valorem taxes by states constitutional?
Yes, but not while the property is being moved in interstate commerce (so an item can't be taxed as it's being shipped through the state).
For the purpose of ad valorem taxation, when does an item begin to be shipped?
When cargo is actually delivered to an interstate carrier, or when it actually starts its journey. Just preparation for transit is not enough.
Does an interruption in transit when a good is being shipped in interstate commerce permit the state where it stops to tax it?
Only if it is actually diverted or there is intent to end or suspend delivery.
Can an instrumentality of interstate commerce, like an airplane, be taxed by a state?
Yes, if there is a substantial relationship between the instrumentality and the state (e.g. daily flights) and apportionment between the siti.
What are some types of "doing business" taxes?
Privilege, license, franchise and occupation taxes.
What are the four criteria generally used to assess the validity of state taxation of interstate commerce?
1. Nondiscrimination (absolute)
2. Substantial nexus between property/activity being taxed and the state
3. Fair apportionment
4. Fairly related to services provided by the state.
Can a state apply a doing business tax to a trucking company bringing goods into the state for sale?
Yes, if it's based on gross income derived from transporting goods within the state.
Can a state apply a doing business tax to a company that loads/unloads interstate goods, based on the company's gross income?
Yes.
Can a state tax foreign imports?
No, except as absolutely necessary to maintain inspection operations, UNLESS permitted to do so by Congress.
Can a state tax exports?
Absolutely not.
Does the bill of rights apply to the states?
Only those that are essential to liberty. The Fourteenth Amendment's due process clause causes such rights to be incorporated against the states.
Which rights are incorporated against the states?
All first amendment rights; fourth amendment (search and seizure) rights; compensation for takings and right against self-incrimination from the 5th amendment; Sixth amendment (speedy and public trial; notice; right of confrontation; compulory process; right to counsel in criminal proceedings). The 8th Amendment (cruel & unusual punishment; excessive bail and fines) is assumed, but not definitively, incorporated.
Which rights are not incorporated against the states?
Second amendment (up in the air); grand jury clause of the 5th Amendment; Seventh Amendment (jury in civil cases). Status of Third Amendment (quartering soldiers) is unclear.
Congressional action banning housing discrimination, educational discrimination, employment discrimination based on race are permitted by which amendment?
The Fourteenth and Thirteenth (badge or incident of slavery).
What is the scope of Congressional action under the 14th amendment?
It may use narrowly tailored means to remedy a constitutionally-recognized wrong, but it may not expand substantive rights. [Fundamental rights or suspect classes --> more Congressional leeway]
Can Congress pass a statute prohibiting burdening of religious practices by a state, absent a compelling state interest?
No. This is a substantive expansion of fundamental rights beyond Constitutional rights, and there is no Congressional power to do so.
Is the ADA applicable to the states?
No. Congress did not identify a pattern of discrimination to which it narrowly tailored a remedy. Same for age discrimination.
Is the FMLA constitutional as applied to state employers?
Yes, because of a history of states' relying on gender stereotypes in making rules for leave. [intermediate scrutiny]
Does the ADA's provision requiring access to the courts for disabled people constitutional as applied to the states?
Yes. Unlike the anti-discrimination provisions of the ADA, this involves a fundamental right of access to the courts, and the court deferred to Congress.
What does the 15th amendment do?
Prohibits voting discrimination, and lets Congress legislate to protect the right.
What is the reach of Congressional regulation under the commerce clause?
Very broad. Includes the ability to regulate any establishment open to interstate travelers or that uses products shipped in interstate commerce.
What is the basis for Congressional regulation of individuals' infringement on other individuals' rights of national citizenship?
There is none, but it has been upheld.
Can "state action" include the action of private individuals?
Yes, if they have an exclusive public function, or else if the state is substantially involved.
What kinds of things are exclusive public actions, such that they are state action even if performed by a private individual?
Running a town, running an election for public office.
What are the requirements for a private action to count as state action for 14th amendment purposes?
They must be a traditional and exclusive state function.
Shelley v. Kraemer was a civil proceeding between private parties. How did the Constitution get involved?
The state courts' enforcement of a covenant is state action. As it was discriminatory, it was unconstitutional.
Why is racial discrimination in peremptory challenges unconstitutional?
It is a traditional public function and the state participates in it through the courts. Therefore it's state action in violation of the 14th amendment.
What are some types of significant state involvement in private action that make it state action?
Official encouragement through judicial enforcement (as in Shelley v. Kraemer), discriminatory law enforcement, color of law, repeal of anti-discrimination laws, leasing property to a discriminatory lessee, state administration of discriminatory trusts, and entwinement of public and private entities.
Can negligence or malpractice by a public defender violate the defendant's due process rights?
No. A public defender's actions are not state actions.
Can the fact that an organization is heavily regulated make its actions state actions?
No.
A state licenses private clubs. It grants a license to a racially exclusive club and provides essential services to it. Is the discrimination challengeable under the 14th Amendment?
No.
Government social workers fail to protect an abused child, resulting in harm. Is the harm due to state action?
No.
Four ways retroactive legislation can be challenged?
Contract Clause, Bills of Attainder, Ex Post Facto laws, substantive due process.
Can Congress pass a law that has the effect of impairing contract rights?
Yes, as long as it doesn't run afoul of due process rights. The prohibition applies to the states only.
Can a state pass a law impairing existing contract rights?
Yes, if the impairment is not substantial, or if it is a narrowly tailored to an important interest.
There is a severe depression and the state passes a moratorium on home foreclosures. Constitutional?
Probably. It impairs private contracts but is narrowly tailored and an important interest.
Are contracts with a state government easier or harder for that government to invalidate, in a contracts clause analysis?
Easier. There is no substantial impairment if the state reserves the right to revoke, alter or amend the contract either in the contract or in legislation that should be read as part of the contract; and a state cannot be obligated by a contract to fail to exercise its police powers.
Can Congress pass an ex post facto law?
No.
What is an ex post facto law?
A criminal law passed after the fact in a substantially prejudicial manner in order to punish someone for some action.
Is a sex offender registry law applied retroactively an ex post facto law?
No. It is not prejudicial enough.
A state passes a law extending the statute of limitations for prosecution of a crime. It then applies it to people whose SOLs had run out. Constitutional?
No. Ex post facto law.
After X allegedly commits a crime, the state passes a new rule of evidence prejudicial to X. Can the state use the new rule in the prosecution of X?
Yes. Procedural rules are not ex post facto laws.
Does the prohibition on ex post facto laws apply to the courts?
Yes. It prohibits them from impairing due process by acting in unexpected and indefensible ways.
What is a Bill of Attainder, and who is prohibited from passing one?
A bill that inflicts punishment without a judicial trial. Neither the federal nor state legislatures can pass one.
Two ways a law can be a bill of attainder?
1. It punishes someone without judicial trial.

2. It defines a crime so narrowly as to target individuals or small specific groups. e.g. Landrum-Griffin Act.
Congress passes a law making the Nixon tapes public. Bill of Attainder?
Despite targeting a unique person, no. The uniqueness is due to unique circumstances, and the act was nonpunitive.
What is the standard for invalidating retroactive legislation under a substantive due process analysis?
A law will be upheld if it is rationally related to a legitimate government interest.
What is the bare minimum requirement for procedural due process?
An opportunity to present one's case to a fair, neutral decision maker.
Why are there two due process clauses?
The 5th amendment Due Process clause protects individuals from the federal Government. The 14th amendment DPC protects people from state governments.
A state government wants to create or change standards for licensing of some activity. Do individuals have a procedural due process right to contest this?
No, it is not an individual determination. But whatever the standards are, there is a due process right to challenge disqualification.
A government negligently injures an individual. Does she have recourse under the due process clause?
No. This applies to intentional harms only.
What standard of remedies does the due process clause require for a government wrong?
There is no particular standard, but an absence of a remedy or an inadequate remedy is a deprivation.
Does the due process clause of the fourteenth amendment create any property or liberty interests?
No. It protects from arbitrary deprivation of existing procedural rights.
What inquiry will the courts make to determine whether life, liberty or property is being taken?
The court will ask whether a LEGITIMATE liberty or property interest is being taken.
What are the two types of deprivation of liberty?
1. Loss of freedom of action.
2. denial of a freedom provided by the Constitution or a statute.
Commitment to a mental institution: deprivation of liberty?
Yes.
Injury to reputation: deprivation of liberty?
Not per se, but yes if it will cause significant loss of employment or associational opportunities.
Government employee is summarily fired for engaging in speech. Constitutional?
No. This is deprivation of liberty without due process.
Child summarily suspended from public school for ten days. Constitutional?
No. Assuming there is compulsory education, this is deprivation of a property interest without due process.
Public employee summarily fired without cause. Constitutional?
Yes if it was at-will employment; there is no property interest in at-will employment. But if there was a statutory or a basis in practice for the expectation of just cause employment, then there is a property interest and due process is required.
What is the balancing test for the different types of process due under the due process clause?
The court weighs:
1. The importance of the individual interest
2. The value of the specific procedural safeguard for that interest
3. The government's interest in fiscal and administrative efficiency.
What due process rights are generally accorded individuals deprived of rights?
fair procedures, unbiased decisionmaker, notice, and opportunity to respond before termination of the interest.
does the due process clause require the opportunity to respond before the interest is terminated?
No. If doing so would be impracticable, a post-termination opportunity is fine.
What does the Welfare Clause permit Congress to do?
To tax and spend for the general welfare.
Can Congress legislate for the general welfare?
NO. That would be police power, which is reserved to the states.
Is a ban on pornography constitutional?
It would have to be evaluated for breadth & vageness. A ban on all pornography is probably unconstitutional, because much "pornography: is not the kind of obscenity than can be banned.
Vagueness vs. overbreadth?
An overbroad statute includes in the scope of its restriction substantial protected activity. A vague statute just doesn't have clear standards.
Can a state ban the sale to minors of non-obscene sexual material?
Yes. But not to adults.