CONSTITUTIONAL LAW

Created by

Adam Streva

Cards (40)

Judicial Review - Article III + Marbury v. Madison
"power of judicial review is inherent in the interpretive reviewing of federal courts over legislation"
Political Question Doctrine
non-justiciable political questions will not be decided by the judiciary:
(1) textual, constitutional commitment of the issue to another branch of government; and
(2) lack of judicially discoverable and manageable standards
Congressional Limits on Judicial Power
the Constitution vests Congress the powers to create inferior courts and to make exceptions to the appellate jurisdiction of federal courts
power is "plenary" (i.e. no internal limits) but cannot violate another part of the Constitution
Relationship Between National Government & States
Necessary and Proper Clause:
Congress has the power to make laws that are (1) necessary (i.e. convenient or useful) and (2) proper for executing its other powers (i.e. legitimately related to)
Commerce Clause
Congress can regulate commerce with foreign nations, among states, and with Indian Tribes
The commerce power cannot be used to compel participation in commercial activity
Three interstate commerce activities that can be regulated:
(1) Channels: areas in which interstate commerce moves (i.e. air, road, cyberspace, waters)
(2) Instrumentalities and Persons/Things: items and ways in which items are carried across state lines (i.e. computers, cars, railroads, ships, airplanes)
(3) Activities Having a Substantial Effect on Interstate Commerce: private activities can be regulated if the cumulative impact of the individuals and entities engaging in the activities has a substantial effect on interstate commerce (economic activities > non-economic activities)
Taxing Power
Congress can enact taxing measures that:
(1) raise revenue for the general welfare, and
(2) are not a penalty (i.e. unduly coercive or enacted to discourage certain private behavior)
Spending Power
Congress can spend federal money for the general welfare but it can only impose conditions on federal grants to state if the condition is:
(1) Clear and Unambiguous (i.e. states understand the consequences of accepting/not accepting);
(2) Related to a Legitimate Federal Interest;
(3) Not Unduly Coercive (i.e. does not threaten to cut off other funding if the state does not adopt the policy changes); and
(4) Constitutional (i.e. does not violate any other part of the Constitution)
War & Foreign Powers
Congres can:
(1) declare war;
(2) fund and maintain the armed forces;
(3) confirm high-ranking executive/judicial branch officials;
(4) ratify treaties; and
(5)address post-war problems
Dormant Commerce Clause
states cannot:
(1) Discriminate against interstate commerce unless the state has a compelling interest for enacting the law and there is no less restrictive way of achieving that interest (i.e. strict scrutiny); or
(2) place an undue burden on interstate commerce
Pike Balancing Test
weighs the burdens of a state law against local benefits
Discriminatory
a law is discriminatory if it:
(1) treats out-of-staters different from in-staters or
(2) clearly gives economic protection to in-staters
Neutral
if a law is neutral (i.e. a disproportionate impact that is purely accidental on out-of-staters) then use Pike-Balancing Test
Exceptions to the Dormant Commerce Clause
(1) Market Participant: can discriminate against out-of-staters if state is acting as a participant (i.e. buyer/seller)
(2) Publicly Owned Enterprise: even if state is a regulator, they can discriminate in favor of publicly owned enterprises (i.e. traditional governmental functions)
(3) Express Congressional Authorization: Congress enacts a statute that authorizes discrimination
Privileges and Immunities Clause - Article IV
protects the (1) rights of state citizens (i.e. the right to travel between states) and is (2) limited to fundamental rights (i.e. life, liberty, property, and happiness) and economic activities (i.e. right to earn a living)
Camden Test
(1) bars discrimination against out-of-staters where there is no substantial reason for the discrimination beyond the mere fact that they are out-of-staters, and
(2) whether the degree of discrimination bears a close relation with no less restrictive means
Authority to Make National Policy
Article II Powers:
(1) sign or veto bills (i.e. presentment);
(2) enforce laws (i.e. Take Care Clause);
(3) appoint or remove federal officers;
(4) grant reprieves and pardons; and
(5) command U.S. armed forces
Treaty and Foreign Affairs Powers (Executive)
(1) recognize/not recognize foreign nations;
(2) meet with foreign leaders;
(3) withdraw from treaties (without Congressional consent); and
(4) make international trade/troop agreements
Executive's Relationship to Congressional Powers:
(1) Express/Implied: maximum authority with congressional authorization
(2) Zone of Twilight: presidential authority is less certain with congressional inaction
(3) No Authorization: minimum authority contrary to congressional authorization and only under President's own power
Congressional Limits on Executive
(1) Creation & Funding: Congress creates the cabinet and other offices and also funds these offices through its appropriations
(2) Lawmaking: once a law is made, the President must enforce it and spend the appropriate funds
(3) Impeachment: House requires a majority to impeach and Senate requires a super-majority to impeach (removal then conviction)
(4) Restrictions on Removal: conditions or restrictions on a President's power to remove quasi-legislative/judicial officials
Federal Immunity:
states cannot regulate or tax the federal government or its instrumentalities
State Immunity & 10th Amendment:
states have no immunity from federal regulation but the 10th Amendment grants local police powers and state autonomy from federal overreach
Legislative Commandering:
federal government cannot require states to enact certain legislation but can make conditional/incentive
Executive Commandeering:
federal government cannot require states to perform executive functions (but no commandeering if a law regulates state governments similar to private entities)
11th Amendment:
bars states from being sued for damages in federal court unless:
(1) state consents to being sued;
(2) Congress waives sovereign immunity; and
(3) lawsuit is against a state official to enjoin an official from committing a violation of federal law
Executive Immunity:
Presidents are immune from civil lawsuits based on official conduct but not immune from civil lawsuits based on pre-presidential conduct
"Qualified" Privilege Exceptions:
(1) military/diplomatic secrets;
(2) confidential informants;
(3) generic privilege with intergovernmental documents
No Absolute Immunity:
state criminal prosecutions/subpoenas with a valid legitimate purpose that does not violate separation of powers
Incorporation Doctrine:
nearly all of the rights in the Bill of Rights are applicable to the states because they have been incorporated by the 14th Amendment's Due Process Clause
Types of Incorporation:
(1) Selective Incorporation
(2) Total Incorporation
(3) Total Incorporation + other rights
"almost all of the Bill of Rights have been incorporated through selective incorporation to a result of total incorporation"
State Action
constitutional rights claims under the 5th Amendment (federal) or 14th Amendment (state) can only be brought against a defendant who is a government actor
to determine if there was a state action when a private entity is the actor, courts will consider whether:
(1) private entity performed a public function (exclusively reserved by state);
(2) private entity acted with significant state involvement or entwinement; and
(3) private action was judicially enforced
Economic Substantive Due Process - Lochner Era
Due Process only protects life, liberty, and property (earning a wage is not property)
Slaughter House Cases were a narrow construction of the Due Process Clause
Lochner's maximum hours law for bakers was deemed unconstitutional because it was unreasonable for government to interfere to protect citizens from themselves (i.e. freedom of contract)
Muller and Adkins
Muller v. Oregon's (1908) maximum hours law for women was Constitutional because women could not protect themselves (i.e. women were like children or wards of the states)
Adkins's (1923) minimum wage law for women was unconstitutional because the 19th Amendment "freed" women
For all of Muller's gender-based discrimination, it was an economic protection that was destroyed by Adkins
End of Lochner Era
Due Process Clause does not prevent states from enacting economic policies (i.e. price regulations) to further public welfare as long as those policies are not:
(1) unreasonable; or
(2) arbitrary
because having a paternalistic type of government authority would be deemed as an overreach of federal/state power on the people
Punitive Damages
Due Process Clause bans grossly excessive punitive damages
To determine whether a punitive damages award is a violation of substantive due process:
(1) degree of defendant's reprehensibility;
(2) ratio of compensatory/punitive damages;
(3) compare punitive damages to established penalties
Non-Economic Substantive Due Process
if a law impinges a fundamental right, it must pass strict scrutiny (when no fundamental right is involved then it must pass rational basis)
Fundamental Rights
rights that are:
(1) implicit in the scheme of our ordered liberty, and
(2) deeply rooted in our nation's history and tradition
Examples of Fundamental Rights
parental rights of children (care, custody, and control), family life/cohabitation, contraception, marriage, procreation, consensual adult sex, voting, interstate travel, and access to courts
Strict Scrutiny Test
(1) the government has a compelling interest, and
(2) the means chosen must be narrowly tailored (i.e. necessary and least restrictive)
Rational Basis Review
(1) the government interest must be legitimate, and
(2) the means chosen must be rationally related (i.e. economic, social, and educational interests)