Term
| Essential functions doctrine |
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Definition
Congress can't use one of it's legitimate powers to take away or inhibit the essential function of another branch.
McCardle/Yerger/Klein. |
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Term
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Definition
1. Injury in fact
2. Causation
3. Redressability
4. No third parties
5. No General Grievances
6. Zone of interest. |
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Term
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Definition
| An organization can have standing in two ways. If it's suffered an injury. It's asserting the rights of a member who is injured. |
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Term
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Definition
1. Must be a tax payer
2. Bust be an apportionment of money
3. Violative of the constitution |
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Term
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Definition
1. No advisory opinions
2. Standing
3. Political Question
4. Moot
5. Ripe |
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Term
| Political question doctrine (actual elements) |
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Definition
1. Textual commitment to coequal branch
2. Lack of Judicially manageable standard
3. Impossibility of deciding without an initial policy determination of a non-judicial kind.
4. Lack of respect to coordinate branches
5. The potential for embarassment. |
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Term
| Political question doctrine (burch analysis) |
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Definition
0. Who acted? Is it a power under the const?
1. Determine scope of const. provision
2. Apply canons/precedent.
3. Is the power discretionary?
If action is taken within scope, and no individual right is at issue, it's a political question. |
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Term
| Commerce Clause (three broad areas congress can regulate) |
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Definition
A. Channels (how good moves)
B. Instrumentalities (vehicles)
C. Intrastate Activity substantially affecting interstate commerce |
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Term
| What determines if activity "substantially affecting interstate commerce" |
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Definition
1. Economic Activity
2. Jurisdictional hook
3. Legislative findings
4. Whether or not congress exercising a general police power? |
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Term
| Economic Activity rule under commerce clause (Wickard and Raich) |
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Definition
Economic activity can be aggregated to see if it has an effect on commerce
Wickard - (one wheat farmer breaking quota is trivial, but the combination of all of them would have an effect on commerce) |
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Term
| Jurisdictional hook (commerce clause) |
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Definition
| A jurisdictional hook is a statutory clause requiring the regulated activity have a connection with commerce |
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Term
| Legislative findings (commerce clause) |
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Definition
The court can look at history to determine if something affects commerce.
Heart of Atlanta Motel - racial disc. disrupts commerce. |
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Term
| Congress exercising a general police power (commerce clause) |
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Definition
If congress tries to regulate health, safety, or welfare, then the act can be deemed unconstitutional via the 10th amendment.
If there's a jurisdictional hook, this does not apply. |
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Term
| NLRB case (Commerce clause) |
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Definition
Congress seized steel industry.
"Although activities may be intrastate in nature, if they have a substantial relation to interstate commerce, Congress can't be denied the power to regulate. |
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Term
| Dormant commerce clause (in general) |
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Definition
| The grant of commerce clause power to congress implies the negative converse. This restricts what states can do, even in absence of a Federal Statute. |
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Term
| Dormant Commerce Clause (doctrines) |
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Definition
1. Facially discriminatory statutes,
2. Facially neutral statutes,
3. Market Participant doctrine
4. Tax/Subsidy rules |
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Term
| Facially Discriminatory Statutes (Dormant commerce clause) |
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Definition
If a statute contains a geographic term, it is per se invalid unless the state can show:
1. They're exercising a legitimate interest/police power (Main v. Taylor)
2. the Legitimate interest can not be served as well by less discriminatory means
3. The statute is virtually certain to achieve a legitimate interest.
4. There is no protectionist intent.
5. The state has the burden of proof when challenged. |
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Term
| Facially Neutral Statute analysis (dormant commerce clause) |
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Definition
Determine where the burden is placed, and why.
1. If equal, rational basis/deference test (whether a reasonable legislator would believe the statute would accomplish legitimate interest)
2.If burden is mostly out of state, the state has the burden to justify measure is likely to achieve a legitimate purpose. Challenger has burden to establish purpose can be served as well by available non-disc. means
3. If the burden is exclusively out of state, the state has a burden to prove that the measure is highly likely to achieve a legitimate purpose and cannot be served as well by non-discriminatory means. |
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Term
| Facially Neutral Statute, burden is equal (dormant commerce clause) |
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Definition
| 1. If equal, rational basis/deference test (whether a reasonable legislator would believe the statute would accomplish legitimate interest) |
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Term
| Facially Neutral Statute, burden is mostly out of state (dormant commerce clause) |
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Definition
| 2.If burden is mostly out of state, the state has the burden to justify measure is likely to achieve a legitimate purpose. Challenger has burden to establish purpose can be served as well by available non-discriminatory means |
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Term
| Facially Neutral Statute, burden is entirely out of state |
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Definition
| 3. If the burden is exclusively out of state, the state has a burden to prove that the measure is highly likely to achieve a legitimate purpose and cannot be served as well by non-discriminatory means. |
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Term
| Market Participant Doctrine (general) |
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Definition
| If the state is acting as a market participant and not a regulator it can freely discriminate against individuals |
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Term
| Market Participant Doctrine (analysis) |
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Definition
1. Define the market.
2. The State can favor itself when acting as a private party
3. No downstream regulation (outside of market)
4. Congress can regulate states like private parties under commerce clause
5. State is constrained by other provisions int he constitution. |
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Term
| Tax/Subsidy rule (dormant commerce clause) |
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Definition
1. Must be applied to an activity with a substantial nexus to the state
2. Must be fairly apportioned.
3. Must not discriminate against interstate commerce (ex: adding a surcharge for leaving state)
4. Must be fairly related to services provided by the state.
5. Facially neutral taxes are okay, but, only if they don't contain an exemption for state citizens.
6. Can't link the tax with a subsidy or other account that benefits state citizens |
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Term
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Definition
Look to see if there is a State and Federal Statute at issue. If so, the Supremacy clause makes it so that the State statute is invalid.
preemption can be express or implied |
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Term
| Two types of implied preemption |
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Definition
1. Field - regulation is so pervasive that Congress left no room for the States to supplement it.
2. Conflict - State acts as an obstacle to the accomplishment of Congress's objectives, or it's impossible to comply with state and federal statutes. |
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Term
| Taxing power limitations (Congress) |
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Definition
Congress has the power to collect and lay taxes, but
1. The tax must have geographic uniformity.
2. Can't tax something solely reserved to states or affect state autonomy
Doremus - A tax can't be declared invalid just because it has an ulterior motive, if there is a relation between the tax and the activity. |
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Term
| Spending power (general rule) |
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Definition
Congress has the broad power to tax and spend for the general welfare so long as it does not violate other constitutional provisions.
The spending clause is not limited by Congress's enumerated powers, the only limit is that it must provide for general welfare. |
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Term
| Conditional Spending rules |
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Definition
1. There has to be a public purpose and rational basis
2. The terms of the condition must be unambiguous.
3. The conditions must be related to the national project/program for which the money is spent. (Can't tell state to spend on education when money is for roads.)
4. Can't require entity requesting funds to violate constitutional rights.
S.D. v. Dole(drinking age) - Court said requiring the raising of the drinking age for money for roads had a significant connection. |
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Term
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Definition
Article I, Section 8, shared by legislative and executive.
Congress can declare war, raise armies, manage military, etc.
President is commander in chief, can direct forces and repel attacks. |
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Term
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Definition
The power to wage war extends to every matter and activity so related to war as subsantially to affect its conduct and progress.
1. Can't violate individual rights,
2. Congress can combat the ill effects of war at home |
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Term
| Treaty power (general rule + case) |
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Definition
Established in Missouri v. Holland
1. Treaty is an independent power
2. It authorizes the gov't to bind nation and take actions when there's a national interest involved. |
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Term
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Definition
| Domestic law, they go into effect without any further action by domestic government. |
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Term
| Non-self executing treaties |
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Definition
| The domestic govt. has to act, it identifies the goal of the treaty but leaves execution to the legislature. |
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Term
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Definition
Treaties cannot take away U.S. citizens individual rights.
Reid v. Covert - No military trial for murderous military wife. |
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Term
| Commandeering (general rule) |
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Definition
Congress cannot commandeer the state legislature or executive. Look for an act of congress forcing the state to do something. Analyze every provision of the statute.
Use of commerce and spending is key to determine commandeering. |
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Term
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Definition
N.Y. v. United States - congress cant force legislature to act, but can encourage them.
Printz - Forcing states to absorb the financial burden of federal statutory enforcement is commandeering |
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Term
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Definition
When President acts with approval of congress, his power is limited only by individual rights.
When President acts without congressional disapproval, his power is limited to article 2.
There's a "twilight zone" in between where Congress is silent. |
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Term
| Presidential Seizure (executive order) |
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Definition
An executive order acting alone against Congress. Subject to judicial review.
Youngstown case: Whether the president exceeded authority when he issued an order telling secretary of commerce to take possession of steel mills. |
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Term
| Test for when an executive order is unconstitutional (Youngstown Spectrum) |
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Definition
I. President + Congress approval = only limit individual rights
II. President alone while congress is silent = Article II only, but Congress may have concurrent authority.
III. President - Congress = Article II only. |
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Term
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Definition
1. Individual rights cant be violated
2. The Court can review legality and conditions that hold detainees
3. Congressional acts are limited by separation of powers and essential functions
4. When the president acts with congresses approval, but does not follow their direction, he is limited. |
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Term
| Foreign powers (executive) |
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Definition
1. The president is the sole organ of the federal govt in the field of international relations.
2. No state can exercise foreign affairs power
3. Power vested in the federal govt, requires no act of congress.
4. President can enter into executive agreements, especially in areas of foreign policy and natural security, without congressional approval. |
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Term
| Executive privilege (general rule) |
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Definition
a. Protects conversatiosn between president and his advisors
b. Strongest in areas of foreign affairs, national security, war
c. Case by case determination. |
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Term
| Executive privilege (rules) |
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Definition
1. Court has the power to review scope of the privilege in camera. (US v. Nixon)
2. Claims for privileged information must be specific, no fishing expedition
3. Courts don't have the power to issue an injunction against the president
4. President has immunity from action for damages
5. Acts committed before taking office are not privileged. |
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Term
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Definition
1. Congress must maintain law making abilities.
2. If Congress delegates a power, it must be very specific.
3. After NLRB, Congress can delegate powers
4. No line item veto because that requires president to step in congress's shoes.
5. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked. |
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Term
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Definition
1. All laws must be passed by both houses of congress and signed by Prez.
2. Congress can not act without presentment to the president
3. No one house veto, two house veto, or presidential veto after an act is signed. |
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Term
| Appointment clause (rules) |
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Definition
1. Principal officers must be nominated by President, confirmed by the State.
2. President must be able to remove principal officers at will (myers)
3. Appointments to independent agencies can be protected with "for cause" removal
4. There can only be one layer of "for cause" protection
5. Congress and the president must follow the appointment clause. |
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Term
| Appointment clause (general rule) |
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Definition
| 1.The president is allowed to fire at will for an individual who falls underneath the executive, however you can limit the president’s ability to fire if the individual’s behavior is not just Executive, but also Legislative or Judicial then the President can only fire that person for lack of performance. |
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Term
| Appointment clause (real rule) |
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Definition
| If they are performing executive duties, then pres can fire them, if they're doing legislative duties, congress can fire them, or the can be installed into a 3rd party and insulated with "for cause" removal. |
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Term
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Definition
1. Principal officers must be nominated by President and confirmed by Senate
2. President must be able to remove principal officers at will (Myers case)
3. Principal officers are policy-makers exercising executive functions to see that the laws are faithfully executed
4. Appointments to independent agencies can be protected with “for cause” removal, because independent agencies exercising executive plus either legislative or judicial functions |
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