Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
50 Cards in this Set
- Front
- Back
- 3rd side (hint)
|
Requirements for Case and Controversies
|
1. Standing
2. Ripeness 3. Mootness 4. Not a political question |
List of four
|
|
|
Standing minimum: plaintiff must show
|
1. injury in fact
2. Causation 3. Redressability |
Three factor test
|
|
|
judicial review
|
power of a court to review the actions of public sector bodies in terms of their legality or constitutionality.
|
looking back
|
|
|
No generalized grievances (b/c no standing)
|
Plaintiff may not sure solely as a citizen or as a taxpayer to force government to follow the law
|
paying taxes gets...
|
|
|
Rule against third party standing
|
party may not raise the rights of absent or hypothetical parties in challenging the suit
|
Can I do this for someone else?
|
|
|
Ripeness
|
potential prematurity of a lawsuit
|
is it ready?
|
|
|
mootness
|
potential staleness
|
past done
|
|
|
Ripeness test
|
1) probability that the predicted harm will take place
2) hardship to the parties if immediate review is denied 3) fitness of the record for resolving the legal issues presented |
Three factor test
|
|
|
Political Question Doctrine
|
1) Does the issue implicate the separation of powers?
2) Does the Constitution commit resolution of this issue to either the President or Congress If YES to BOTH and with a sensitivity to prudential consideration, go to Judicial branch. |
Two factor test
|
|
|
Federalist paper #10
|
Rebut argument that smaller is better
Faction: Group of people not for betterment of whole (special interest group: special/limited interests vs. general interests) enlarge representativation of sphere to incorporate multiple group's presentation to dilute the majority large but not small government to incorporate disagree so that majority is torn by disagreement |
The beauty of not going small
|
|
|
Federalist Paper 51
|
separating and combining power: each branch has control over the other, supposed to be tension to preserve freedom and protection of interests
Cannot design a government to be run by angels. Human being are not angels and have evil tendancies ambition must be made to counteract ambition |
Who are the angels?
|
|
|
Interpreting language in the Constitution
|
1) words are not self-defining
2) functional argument: if indespensible, powers useless- does the gov't work with this meaning 3) textual argument 4) Writer's intent (earlier draft) 5) structural argument |
All about location and intent
|
|
|
Natural law
|
rights inherent in a person
Problem: how to interpret natural law, amount of power to give to judges to interpret/weight |
|
|
|
Passive virtue
|
1) Countermajoritarian difficulty: judges are not a part of the democracy,if court strike down a law passed by majority, court steps aside and being passive. good thing.
2) go to legislative or executive branch (elected authority) 3) politics - majority rule |
undemocratic nature of judicial branch
|
|
|
parchment barrier
|
only stopper is with check/balance. without that, only statement of rule may prevent expansion of power. would not work
|
words are not enough
|
|
|
Justice Jackson power structure
|
minority opinion in Youngstown Sheet v. Sawyer
1) Highest power: Congress and President on same page 2) Middle power: President acts, Congress silent 3) Lowest power: President is against Congress |
three tier power structure
|
|
|
Greater But
|
Emergency Executive powers
1) president faithfully exercise them until Congress has the ability to act/respond 2) Emergencies tend to kindle emergencies |
Pragmaticism v. Formalism
|
|
|
13th amendment:
|
abolished slavery/involuntary servitude (regulates private conduct directly) all badges/incidents
|
only one to apply to individuals
|
|
|
14th amendment:
|
states must give equal protection, due process
|
state actors
|
|
|
15th amendment
|
no discrimination based on race
|
|
|
|
Congress may prevent violation of amendment 14 by evaluating Congruence and Proportion. Define those two terms
|
1) Congruence: has to be a link between what the law is doing and harm is caused
2) proportional: how prevalent is the crime/history of crime Result: ability to remedy/prevent actual violation by state Gets around Amendment 11 |
Link and causality
|
|
|
Amendment 11
|
Structural limitation
1) judicial power of the U.S doesn't extend to suits commences against states by citizens of another state 2) Sovereign Immunity Therefore: No Congress authorization (under Article 1) of lawsuits FOR DAMAGES against states by private citizens |
Two tiers
|
|
|
Limits on Congress's regulation
|
1) Cannot commandeer state legislature
2) Cannot force state employees enforce federal law 3) not authorize private suite for $ damages against state (11th amendment) |
3 tier test
|
|
|
Protectionist
|
Isolate itself from a problem common to many
|
|
|
|
Market participant doctrine
|
Applies to state when it engages in the buying/selling or dispensing of goods of services
Result: Does not violate dormant commerce clause Why?: Founders did not intend to restrict the state's ability to operate freely i the market and in consideration of state sovereignty |
|
|
|
modern test, Dormant commerce clause and state laws
|
1) Laws whose purpose is to regulate interstate commerce OR whose effect is to control out-of-state-transactions
2) Laws that discriminate against interstate commerce 3) laws that do not discriminate against, but nonetheless burden interstate commerce (facial neutral) |
|
|
|
Inquiries to test triggering of dormant commerce clause
|
1) Is the law rationally related to a legitimate state business
2) does the law have the practical effect of regulating out-of-state transactions 3) If law discriminates, does it represent least discriminatory means for state to achieve its purpose 4) Are burden clearly excessive compared to benefits 5) Does the law represent the least burdensome means for the state to achieve its goals |
5 tiers, discrimination amount
|
|
|
facial discrimination
|
1) discriminatory by design
2) way it is written 3) legislative intent |
|
|
|
Dormant commerce clause and judge's opinions
|
Powell: Balancing test of benefits (legitimate state interests) (low) v. burden interstate (high) = unconstitutional
Rehnquest: burden on cmomerce great, benefit trivial, hidden protectionist law (pretext), ascertain true nature Brennan: actual legislative intent : show isolation of iowa from other states |
|
|
|
Pragmatic v. Formalism
|
Pragmatic Pros:
Flexible, result orientated: what needs to happen to get it done. not expanding power of branch too much, let it slide Formalism: roles outlines, consistant with framers, what are the rules? what is the end result? |
|
|
|
Formalist analysis
|
1) is the action within power of performing branch (separation of power)
2) is the action being done properly If answer is no to EITHER = unconstitutional |
Two step process
|
|
|
Dormant Commerce Clause and the last word
|
Congress gets the last word
|
|
|
|
Congress' power to appoint
|
May not give itself or its officers the appointment power
|
|
|
|
President power to appoint
|
1) Ambassadors
2) Head of Agencies (superior officer) 3) Federal judges |
|
|
|
Analysis of a state law that discriminates against out-of-staters
|
1) Does it burden interstate commerce?
- Yes: 2) Is it neccessary to achieve an important government purpose? - Yes: valid If No: Violates DCC |
|
|
|
Ability of states to tax and regulate federal governemnt activities
|
Prohibited
|
|
|
|
Implied preemption: Federal law preempts state law where (3)
|
1. Federal and state laws are mutually exclusive
2. State law impedes achievement of federal objective 3. Congress evidences a clear intent to preempt |
|
|
|
Exceptions to sovereign immunity
|
- Consent (waiver must be explicit)
- Pursuant to federal laws adopted under Section 5 of the Fourteenth Amendment - Federal government may sue state governments |
|
|
|
Requirements for Case and Controversies
|
1. Standing
2. Ripeness 3. Mootness 4. Not a political question |
|
|
|
Preemption (article VI – supremacy clause):
|
federal control
Express: state may not regulate Implicit: congress doesn’t say specifically. Pervasive regulation |
|
|
|
State Action analysis
|
Government covered by Constitution
Normally constitution does not limit private practice Question: when is the type of relationship between gov’t and private entity become a State action: cohoots with |
|
|
|
State taxation of interstate business must be
|
Fairly apportioned
|
|
|
|
State tax systems may not be used to
|
in-state businesses
|
|
|
|
States may only tax activities that have
|
substantial nexus to the state
|
|
|
|
President's immunity from suit
|
Absolute immunity to civil suits for money damages for actions while in office; no immunity for actions that occurred prior to taking office
|
|
|
|
Executive privilege covers papers and conversations but must yield to
|
Other important government interests
|
|
|
|
Congress regulate Commerce Clause in 3 categories
|
1) Channels (roads, rivers, rails, hotels)
2) instrumentalities/person/things in interestate commerce: include if threat comes from intrastate activities (trucks, planes, etc) 3) Activity substantially affect interstate commerce : Economic (Yes), Non-economic (no) (cash flow, State police power) |
Thee part test
|
|
|
Commerce Clause and Economic Activity
|
1)Money changing hands
2) If intrastate commerce, does it have a cumulative effect on interstate commerce? |
|
|
|
Has Congress enacted a statute of general application or is it commandeering the states falls under what amendment test?
|
10th amendment: any power not delegated to the federal is given to the states
|
|
|
|
Factors showing commandeering
|
- statute requires ACTION by the state
- regulates state to enacot or enforce specific federal laws to avoid penalty - makes state an agent of the federal gov't -require state officials or agencies to enforce federal policy -singles out only state institutions -requires state to base licensing or other regulations on federal guidelines |
Forcing state to say uncle
|
