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44 Cards in this Set

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What are the three standards of review?
1. Mere Rationality
2. Strict Scrutiny
3. Middle-Level review
What is Mere Rationality?
Of the three standards, this one is the easiest tosatisfy. When the court applies this standard, the court willuphold the governmental action so long as two requirements are met:
1. Legitimate state objective
2. Rational Relation
What is Strict Scrutiny?
This is that standard that is hardest to satisfy. This standard will only be satisfied if the governmental act satisfy two very tough requirements:
1. Compelling objective
2. Necessary Means
What is Middle-Level review?
This is between Mere Rationality and Strict Scrutiny. The two elements are:
1. Important Objective
2. Substantially Related means
Why is the courts choice of one of the three standards of review important?
1. Burden of persuasion
a. Mere Rationality- Where the govt action is subjectto this standard, the individual who is attacking the govt action bears the burcen
b. Strict Scrutiny- The goovt body whose act is being attacked has the burden
c. Midle-level review- Where this level of scruitiny is used, its not certain how the court will assign the burden of persuasion, but the burden will usually be placed on the govt.
For testing purposes, when is Mere Rationality used?
1. Dormant Commerece Clause
2. Substantive due process
3. Equal Protection
4. Contracts clause
For testing purposes, when is Strict Scrutiny used?
1. Substantive due process/fundamental rights
2. equal protection review
3. freedom of expression
d. freedom of religion/free exercise clause
For testing purposes, when is Middle-Level review used?
1. equal protection/semi-suspect
2. contracts clause
3. free expression/non-content based.
What is the Marbury principle?
Under Marbury v. Madison, it is the Supreme Court, nt congress which has the authority and duty to declare a congressional statute unconstitutional if the court thinks it violates the Constitution.
May the Supreme Court review a State Court decision?
The SC may review state court opinions, but only to the extend that the decsion was decided based on federal law.
What is independent and adequate State grounds?
Even if there is a federal question in the state court case, the SC may not review the case if there is "independent and adequate" state ground forthe state court's decision. That is if the same result would be reached even had the state court made adifferent decision on the federal question,the SCV may not decide the case. This is because its opinion would in effect be an advisory one.
Discuss review limited to decisons of highest state court.
Federal Statutes limit SC review to decisons of the highest state court available. But this does not mean that the top-ranking state court must have ruled on the merits of the case in order for the SC to review it. All that is required is that the case beheardby the highest state court available to the petitioner.
Where does Federal Judicial Power come from?
Article III Sec 2 sets out the federal judicial power. This includes among other things (a) cases arising under the constitution or the laws of the US(federal question) (B)cases of ademiralty (C) casesbetween two or more states (D) cases between citizens of different states and (E) cases between a state and its citizens and a foreign country or foreign citizen.
Does congress have the power to decide what cases the SC can hear?
Congress has the general power to decide what types of cases the SC may hear, so long as it does not expand the SC jurisdiction beyond the federal judicial power. (Ex Parte Mccardle)
May congress decide jurisdiction of lower courts?
Yes, congress also may decide what lower federal courts there should be, and what cases they may hear. Again, the outer bound of this power is that congress can't allow the federal courts to hear a cases that is not within the federal judicial power.
What is the federalist system?
We have a Federalist system. In other words, the national govt and the state govt co-exist. Therefore, you always have to watch whether some power being assertedby the federal govt is in fact allowed under the constitution, and you must also watch whether some power asserted by the states is limited in favor of federal power.
Does the Federal Govt have limited powers?
yes, the three branches (congress, executive, and federal courts)can only assert powers specifically granted to them by the united states consitutition.
How do we start an analysis for con law?
Anytime the facts indicate that congress passes statute, or the presidentissues , say an executive order, or the federal courts decide a case, you have to ask: What is the enumerated, specified power inthe US constitution that gives the federal branch the right to do what it has just done?
Does the Federal Govt have a general police power?
No, each state has a general police power, ie the ability to regulate solely on the basis that the regulation would enhance the welfare of the citizenry. But there is no general federal police power. Instead, each act of federal legislation or regulation must come within one of the very specific, enumerated powers.
What are the two enumerated powers of the federal govt?
1. Tax and spend for the general welfare.
2. Necessary and proper clause
Discuss the federal power to tax and spend for the general welfare?
Congress does have the right to lay and collect taxes, to pay the debts and provide for the general welare of the united states. But the phrase "provide for the general welfare" inthis sentence modifies "lay and collect taxes to pay the debts" Inother words, the power to tax and spend is subject to the requirement that the general welfare be served, there is no indpendent federal power to provide for the general welfare.
Discuss the federal power regarding the Necessary and proper clause.
In addition to the very specific powers given to congress by the Constitution, Congress isgiven the powerto "make all laws which shall benecssary and proper for carrying into execution" the specific powers. This means that if congress is seekingan objective that is within the specifically enumerated powers, then Congress can use any means that is (1) rationally related to the objective Congress istrying to achieve and (2) is not specifically forbidden by the constitution.
May the federal govt violate a specific constititional provision?
No, even where Congressional action appears to fall within a specific grant of power, the federal action may not of course violate some other speicific constitutional guarantee. Inother words, congressional (or other federal) action must satisfy two tests to be constitional: (1) It must fall within some specific grant of power under the Constitution and (2) it must not violate any specific constitutional provision
Give a summary of the powers of Congress
1. interstate commerece
2. taxing and spending
3. District of Columbia
4. Federal Property
5. War and defense
6. Enforcement of Civil War Amendments
Give a sumary of the powers of the president?
1. Execution of the laws
2. Commander in Chief
3. Treaty and foreign affairs
4. Appointment of federal officers
5. Pardons
6. Veto
Give a summary of the powers of the judiciary.
The federal judiciary may decide "Cases" or "Controverseys" that fall within the federal judicial power.
What is the federal Commerce Power?
This is congress' most mportant power to regulate commerce among the several states (Art I, Section 8)
What is an exam tip regarding an exercise of commerce question?
Any time you have a test question in which congress is doing something, first ask yourself "Can what Congress is doing be justified as an exercise of the Commerce power? Most of the time the answer will be yes.
What are the modern four broad categories of activities which Congress can constitutionally regulate under the commerece power?
1. Channels
2. Instrumentalities
3. Artricles moving in interstate commerce
4. Substantially affecting commerce.
Discuss congress regulating the use of "Channels"
Congress can regulate the "Channels" of interstate commerce. Thus Congress can regulate in a way that is reasonably related to highways, waterways, and air traffic. Presumably Congress can do so even through the activity in question in the particular case is completely intrastate.
Discuss congress regulating the "instrumentalities of Interestate Commerce/
Congress can regulate the "instrumenatlities of interstate commerce, even though the particular activities being regulated are completely intrastate. This category refers to people, machines, and other "things" used in carrying out commerce.
Discuss congress regulating articles moving in interstate commerce
Congress can regulate articles moving in interstate commerece
Example: The states and primvate parties keep information about the identities of drivers. Since this information gets exchanged across state lines, the information is an articlein interstate commerce and Congress may regulate how its used.
Discuss congress regulating items that substantially affecting commerce?
The biggest and most interesting category is that congress may regulate those activities having asubstantial effect on interstate commerece (US v. Lopez)
What are the general rules to consider when congress regulates pursuant to "substantially affecting" commerce?
1. Activity is commercial, then it does not seem to matter whether the particular instance of the activity directly affects interstate commerce.
2. Activity is not commercial- If the activity is by itself not "commercial" then there will apparently have to be a pretty obvious connection between the activity and interstate commerce.
3. Little Deference to Congress- The court won't give much deference to the fact that Congress believed that the activity has the requisite substantial effect on interstate commerce.
4. Traditional domain of states- If what isbeing regulated is an activity the regulation ofwhich has traditionally been the domain of the states, and as to which the states have expertise, the court is less likely to find that congressis acting within its commerce power.
What are the tradional domain's of the states?
Education, Family Law and general criminal law.
What is national solution in regards to congress regulating under the "Substantially Affecting Commerce concept?
Where the fact that the activity has traditionally fallen within the states' domain can be outweighed by a showing that a national solution is needed. This would be so, for instance, where one state'schoice heavily affects other states.
Discuss the tenth amendment as a limit on congressional power.
The 10th amendment provides that the "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reservedto the States respectively, or to the people. This amendment today seems to place a small but possibly significant limit on congressional ability touse its commerce power to regulate the states.
What are the two applicable rules to consider when discussing the 10th amendment as a limit on congressional power?
1. Generally-Applicable law- If congress passes a generally applicable law, the fact that the regulation affectsthe states has virtually no proactical significance and the 10th amendment never comes into play. If the regulation would be valid if applied to a private party, it is also valid as to the state.
2. Use of States law-making mechanisms- The 10th amendment does not prevent congress from interfering in certain ways with a states law-making processes. Congress may not simply commandeer the legislative processesof the states by directly compelling them to enactand enforce a federal regulatory program (new york v us)
May congress compel a state or local government's exective branch to perform functions, even those that are easy to do and involve no discretion?
No, congress can not order local sheriffs to perform background checks on applicants for handgun permits (printz v. us)
What is taxing and spending powers of the Federal Govt?
Congress has the power to "Lay and Collect Taxes" (Art I, Section 8). This is an independent source of congressional power, so it can be used to reach conduct that might be beyond the other sources of congressional power, likethe Commerce clause.
May congress regulate under the guise of taxing?
yes, congress can probably regulate under the guise of taxing, so long as there is some real revenue produced.
What are the limits on federal taxing power?
1. Direct Taxes- Must be allocated among the states in proportion to population.
2. Customs duties and excise taxes must be uniform.
3. No export taxes.
What is the federal spending power?
Congress has the power to pay the debts and provide for the common defense and general welfare of the United States. (Art I, Section 8)
What are two issues to consider under Spending Power for the federal govt?
1. Independent power- This is an independent power, just like the commerce power. So congress could spend to achieve a purely local benefit, even one that it couldn't achieve by regulating under the commerce power.
2. Use of conditions- Congress may place conditions upon the use of its spending power, even ifthe congressional purpose is in effect to regulate. Conditions placed upon the doling out of federal funds are usually justified under the Necessary and Proper Clause