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35 Cards in this Set
- Front
- Back
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Necessary and Proper Clause
N/P |
Allows Congress to do whatever is necessary or proper to make sure it's enumerated powers are served
*For Ex: Commerce Clause --> Congress may do whatever it has to do |
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Privileges and Immunity Clause
P/I |
A STATE CANNOT TREAT ITS OWN RESIDENTS BETTER THAN OUT OF STATE RESIDENTS
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Hypo: The state of Florida has an outbreak of mad cow disease. The state of North Carolina enacts a law stating that grocery stores in NC can only sell meat that was raised in North Carolina. The state argues that it is using its police power to protect its citizens against the risk of mad cow disease.
How would you attack this question? |
1) Constitution gives Congress power to control interstate commerce through the Commerce Clause. It's an enumerated power. Channels, Instrumentalities and substantially affects interstate commerce ("CSI")
2) Congress can do whatever is necessary or proper to carry out its duties in the commerce clause. 3) Privilges and Immunities Clause - States cannot treat out of state residents differently than it treats in state residents 4) Dormant Commerce Clause -State law may be invalid if it discriminates against interstate commerce. 5) Here, NC argues that it is using its police power to protect its citizens. Consider whether this is a reasonable, non-discriminatory means to achieve this police power. Does it impose an unreasonable burden on interstate commerce? |
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WHAT DOES A CASE HAVE TO HAVE FOR A FEDERAL COURT TO HEAR?
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• REQUIRES:
o TIMING = RIPENESS [FACTS HAVE ALREADY OCCURRED] AND MOOTNESS [ACTUAL CASE AND CONTROVERSY; EXCEPTIONS] o STANDING [INJURY IN FACT, CAUSED BY PLAINTIFF, REDRESS] [SPECIAL STANDING: MEMBERS WOULD HAVE STANDING, INJURY RELATED TO THE ORGANIZATION, NO REASON MEMBERS HAVE TO REP THEMSELVES] [T PARTY STANDING ONLY IF SPECIAL RELATIONSHIP + INJURY ] o NO ADVISORY OPINION OR POLITICAL QUESTIONS |
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SUPREME COURT REVIEW
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• ORIGINAL J: AMBASSADORS/PUBLIC MINISTERS/STATE IS A PARTY
• STATE APPEAL REQ: o (1) FINAL JUDGMENT FROM NC SC THAT o (2) TURNED ON FEDERAL GROUNDS o (3) THE CASE MEETS OTHER REQUIREMENTS OF CASE/CONTROVERSY • MOOTNESS: ACTUAL CASE OR CONTROVERSY? EXCEPTIONS: COLL CONSQ; CAPABLE OF REPETITION; D STOPPED BUT CAN START AGAIN o (4) NO INDEPENDENT ADEQUATE STATE GROUND • WOULD A SC DECISION CHANGE THE RESULT? • [NC STATE [YES CONSTITUTIONAL] FED GROUND [NOT CONSTITUTIONAL] = SC REVIEW] • [NC [NO CONSTITUTIONAL] AND FED [YES CONSTITUTIONAL] = NO REVIEW BY SC] • UNSETTLED QUESTION OF CONSTITUTIONAL LAW THAT TURNS ON A STATE QUESTION → SC WILL APPLY DOCTRINE OF ABSTENTION AND NOT HEAR THE CASE UNTIL THE STATE DECIDES ON IT |
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Suing a state
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• SCOTUS HAS ORIGINAL J OVER CASES WHERE A STATE IS BEING SUED
• ELEVENTH AMENDMENT [PRIVATE PARTY] o GENERAL RULE: CANNOT SUE A STATE IN FEDERAL COURT. EXCEPTION: (1) IF THE STATE CONSENTS TO BEING SUED IN A FEDERAL COURT (2) CONGRESS SAYS SO, (3) PLAINTIFF IS ANOTHER STATE OR THE UNITED STATES • LAURA V. STATE OF NC = SUPREME COURT, UNLESS NC AGREES TO 4TH CIRCUIT CASE OR CONGRESS SAYS SO. LAURA CAN ALSO SUE NC IN A STATE COURT. • FLORIDA V NORTH CAROLINA = FED COURT IS OK • UNITED STATES V NORTH CAROLINA = FED COURT IS OK o PLAINTIFF MAY NOT SUE PUBLIC OFFICIAL IN HIS CAPACITY o TO SUE A STATE YOU NEED: (1) PLAINTIFF MUST BE A PRIVATE PARTY (2) DEFENDANT IS A STATE (3) SUIT IS FOR MONEY/INJUNCTIVE/DECLARATORY RELIEF o SOME ACTS HAVE BEEN EARMARKED SO THAT WHEN A STATE IS SUED ON THEM THEY CAN BE SUED IN FED COURT: • ANTI DISCRIMINATION ACT |
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Congressional Powers
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• ENUMERATED POWERS = COMMERCE/TAXING/SPENDING/POST OFFICES/$/ARMY/WAR/IMPEACHMENT/ETC
• NECESSARY AND PROPER CLAUSE o ALL ENUMERATED POWERS ARE SUPPL BY N/P CLAUSE o ALLOWS CONGRESS TO USE CONVENIENT AND USEFUL MEANS TO CARRY OUT THEIR ENUMERATED POWERS o NOT AN INDEPENDENT POWER! • NO GENERAL POLICE POWER! |
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Commerce Power
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• CONGRESS MAY REGULATE: (1) CHANNELS OF INTERSTATE COMMERCE, (2) INSTRUMENTALITIES OF INTERSTATE COMMERCE [PHONES/AIRPLANES], (3) LOCAL ACTIVITY THAT SUBSTANTIALLY AFFECTS INTERSTATE COMMERCE
o MNENOMIC: C.S.I. • NECESSARY AND PROPER CLAUSE |
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PRIVILEGES AND IMMUNITY CLAUSE
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• APPLIES ONLY TO HUMANS [NOT CORPORATIONS]
• WHEN RESIDENTS ARE BEING TREATED BETTER THAN OUT OF STATE RESIDENTS WHERE A FUNDAMENTAL RIGHT IS INVOLVED o UNLESS THE STATE HAS A SUBSTANTIAL OR SUBSTANTIAL RELATIONSHIP TO THE OBJECTIVE • STATES MAY NOT DISCRIMINATE AGAINST OUT OF STATE CITIZENS [CORPORATIONS/ALIENS] WITH RESPECT TO COMMERCIAL ACTIVITIES [EMPLOYMENT] OR ENJOYMENT OF CIVIL LIBERTIES |
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Taxes
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• STANDING
o CITIZENS HAVE STANDING TO SUE AND CHALLENGE THEIR OWN TAX LIABILITY. CITIZENS DO NOT, HOWEVER, HAVE STANDING TO CHALLENGE HOW THE GOV’T SPENDS MONEY IT HAS COLLECTED. EXCEPTION: CONGRESSIONALLY AUTHORIZED AID TO RELIGION UNDER THE ESTABLISHMENT CLAUSE. • FEDERAL TAXATION o CONGRESS MAY PASS/SPEND FOR GENERAL WELFARE • MAY USE TAXING POWER TO REGULATE FOR THE GENERAL WELFARE IF IT CREATES REVENUE [CIGARETTE TAX] • MAY USE FUNDS TO ENCOURAGE ACTION FED GOV’T DESIRES [SPEEDING ON HIGHWAYS] [REQ: (1) SERVES PUBLIC INTEREST, (2) FEDERAL INTEREST, (3) NOT AMBIGUOUS • STATE TAXATION o STATE ORDINARILY MAY NOT IMPOSE A SALES TAX ON A TRANSACTION CONSUMMATED OUTSIDE OF THAT J. o STATE MAY TAX USE OF PRODUCT PURCHASED IN A DIFFERENT STATE WHICH WILL BE UTILIZED IN NC [EX: CAR] o WHEN A STATE CAN TAX THE INSTRUMENTALITIES OF INTERSTATE COMMERCE [AIRPLANES/TRAINS] = WHEN PROPERTY ACQUIRES A TAXABLE SITUS IN A J OUTSIDE OF THE PROPERTY’S PPB o STATE TAXATION OF FOREIGN COMMERCE = NOT WHILE IN TRANSIT OF INTERSTATE COMMERCE. IT CAN BE TAXED ONCE TRANSIT HAS CEASED. o INTERGOVERNMENTAL IMMUNITIES DOCTRINE: STATE CANNOT UNDULY BURDEN FED PROPERTY |
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EXECUTIVE POWER [WHAT POTUS CAN DO]
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• DOMESTIC
o APPOINT/NOMINATE/IMPEACH/VETO BY 2/3 MAJORITY APPROVAL/PARDON • FOREIGN AFFAIRS o ONLY CONGRESS CAN DECLARE WAR o TREATIES – REQ 2/3 APPROVAL OF SENATE • SELF-EXECUTING - SUPREME LAW OF THE LAND • NON-SELF EXECUTING o EXECUTIVE ORDERS • IMPEACHMENT o ARTICLES OF IMPEACHMENT BY THE HOUSE → TRIAL BY SENATE → 2/3 MAJORITY OF SENATE |
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COMMERCE CLAUSE AND STATE LAW *
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• COMMERCE CLAUSE: CONGRESS CAN CONTROL CHANNELS, INSTRUMENTALITIES, SUBSTANTIAL INFLUENCE ON INTERSTATE COMMERCE.
o CONGRESS CAN USE THE NECESSARY AND PROPER CLAUSE TO OBTAIN DESIRED RESULT • PRIVILEGES AND IMMUNITY = A STATE CANNOT TREAT ITS OWN RESIDENTS BETTER THAN OUT OF STATE RESIDENTS • DORMANT COMMERCE POWER o COMES UP WHEN THERE IS NO FEDERAL LAW BUT A QUESTIONABLE STATE LAW! o STRIKE DOWN THE LAW IF IT DISCRIMINATES AGAINST INTERSTATE COMMERCE [TREATES PPL FROM OTHER STATES DIFFERENTLY] • FAVORING IN STATE GOODS OR • LAWS THAT DISCRIMINATE AGAINST OTHER STATE GOODS FOR “POLICE POWER” PURPOSES [PUBLIC HEALTH AND SAFETY]. IF THIS IS THE CASE – CONSIDER WHETHER IT IS REASONABLE PURPOSE; DOES IT POSE AN UNREASONABLE BURDEN ON INTERSTATE COMMERCE] • STATE TAXATION OF INTERSTATE COMMERCE o OK IF NOT DISCRIMINATORY OR UNREASONABLE |
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when a law prohibits ALL persons from doing something
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due process issue
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when a law prohibits only a certain class of ppl from doing something
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equal protection issue
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What are fundamental rights?
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SPTV! [Spanish public television]
speech privacy travel vote |
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what are privacy rights?
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CAMPER!
Contraceptive Abortion Marriage Procreation education, private Related people living together |
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strict scrutiny:
standard? which class of people? |
narrowly tailored + compelling govt interest
Fundamental Rights = SPTV Privacy Rights= CAMPER |
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When the government is restricting something - consider whether it's an equal protection issue or a due process issue
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equal protection - only a specific group of ppl
due process - denial of life, liberty or property |
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How to attack a question where the government is taking away life liberty or property interest
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this is a due process question
1) has the gov't taken away a property/life/liberty interest? -consider whether the plaintiff really had an interest in the property 2) what process is due? -use a balancing test to weigh the importance of the right, the value of notice before it's taken away and the govt interest in it |
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Strict Scrutiny
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Necessary
Compelling Govt Interest Fundamental rights [SPTV] Suspect Class |
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When the government takes away property from everyone
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apply the due process analysis if the govt takes away property from everyone. apply strict scrutiny.
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when the government takes away property from a specific group of people [targeted only at italian people]
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apply equal protection analysis.
strict scrutiny applies. |
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Intermediate Scrutiny
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Substantially Related
Legitimate Govt Interest Quasi-Suspect [gender and legitimacy] |
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Rational Basis
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Rationally Related
Legitimate public interest usually upheld if not arbitrary or irrational |
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When the govt is denying only italian people the right to property, how do you attack the question?
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1) Equal Protection Applies
2) Determine Standard [Strict/Int/Rational] Here it is a fundamental right [property] so apply Strict Scrutiny 3) Equal Protection Analysis: The law intentionally discriminates against Italians. There are three ways a law can do this: -On its face -Discriminatory Intent -Discriminatory Motive |
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How can a law intentionally discriminate against a race, alienage, gender or illegitimacy?
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-On its face
-Discriminatory intent -Discriminatory Motive *not enough that law is written as neutral but has a disproportionate impact on a certain race |
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What standard is applied to affirmative action?
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it's race based - so strict scrutiny applies.
necessary and compelling govt interest Affirmative action programs are OK if narrowly tailored Govt may have compelling interest in correcting past discrimination - has to be specific |
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State discriminates against aliens specifically [brazilians]
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strict scrutiny applies
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Fed govt discriminates against aliens specifically [braziians]
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rational basis applies
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What do you apply when the govt takes away a
-privacy right? -fundamental right? CAMPER |
-Fundamental rights CAMPER
Contraception Abortion Marriage Procreation Education, private Related persons living together Privacy Rights: SPTV -speech -property -travel -vote |
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Free Speech Analysis
Gov't enacts a regulation against speech that is about gay marriage |
This is content-based speech.
It is unconstitutional. Govt can only place content based restrictions for defamation and obscenity. Apply intermediate scrutiny - govt must have an imp interest to protect and the regulation cannot exceed beyond that interest |
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Free Speech Analysis
Govt enacts a regulation against speech on capitol hill between 12 and 2 on fridays. |
This is content-neutral.
Time place and manner restrictions are OK In Public Forums! Speech can be regulated if content neutral but it must be: -content neutral -narrowly tailored to serve an imp govt purpose -leave open other avenues for speech |
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Categories of unprotected speech
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-speech inciting lawless behavior or violence
-fighting words or true threats -obscenity -libel/defamation [public figures must show defamation along with falsity and degree of fault] Child porn |
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Establishment of Religion
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Const does not allow for establishment of religion
Apply the Lemon Test |
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Govt is interfering with religion. What do you do?
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Establishment Clause does not allow for the establishment of religion.
apply the Lemon Test: 1) does the govt action have a secular purpose? 2) the primary effect neither advances or inhibits religion 3) it does not produce excessive govt entanglement with religion |
