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BLS Exam 1 Part 2
Chapter 44 and 5
Terms in this set (49)
- Provides that powers that the U.S. Constitution does not give to the federal government are reserved to the states.
What case is the authority for the Judicial Branch's judicial review process?
Marbury v. Madison
Judicial checking legislative
- Judicial branch can declare laws passed by congress unconstitutional
Judicial checking executive
- judicial can declare acts passed by the executive unconstitutional
Legislative checking judicial
- legislative can impeach judges, pass amendments to override judicial rulings
Legislative checking executive
- can refuse to approve presidents budget, can override presidential vetoes, can impeach and remove the president
Executive checking judicial
- appoints federal judges and can pardon federal offenders
Executive checking legislative
- can veto laws passed by legislative, can call special sessions of congress
The Supremacy Clause
Federal Laws trump State Laws.
both federal and state government have the power to regulate the same subject matter. Federal laws are a minimum requirement
When the federal government decides to regulate an area of concurrent authority exclusively and the state law is unconstitutional
The Commerce Clause of the Constitution
gave Congress the authority to regulate commerce with foreign nations and among the several states
What are the three activities Congress may regulate under the Commerce Clause:
1. Use of the channels of interstate commerce
2. Instrumentalities of interstate commerce (agents of commerce) and persons/things in interstate commerce
3. Activities substantially affecting interstate commerce (NLRB v. Jones)
NLRB v. Jones & Laughlin Steel Corp held
- An example of the broadest use by Congress of the Commerce Clause. Congress can regulate labor relations at a manufacturing plant because a work stoppage at the plant would seriously affect interstate commerce
National Federation of Independent Business v. Sebelius (Affordable Care Act)
- US Supreme Court deemed the Affordable Care Act constitutional under Congress' tax and spend powers (the individual mandate is likened to a tax) but not its commerce clause powers, holding that Congress has the authority to regulate commerce, not compel it.
US v. Lopez
- An example of the court narrowing the use by Congress of the Commerce Clause. Congress exceeded its commerce clause authority when it passed the Gun-Free School Zone Act - banning the possession of guns within 1,000 feet of any school. Reasoning: It had nothing to do with commerce, or any sort of economic enterprise
Brzonkala v. Morrison held
- US Supreme Court decision that held that parts of the Violence Against Women Act of 1994 were unconstitutional because they exceeded the powers granted to the US Congress under the Commerce Clause and the Fourteenth Amendment's Equal Protection Clause.
State's Police Power
· power to safeguard the health and welfare of its citizenry. E.g., state criminal laws, building codes, zoning laws, etc
The Privileges and Immunities Clause:
Prohibits states from discriminating against citizens of other states when those nonresidents engage in ordinary and essential activities. Unless there is a good reason to do so. Travel between states, Right to sue
The Full Faith and Credit Clause
- States "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." Unless it violates a State's public policy.
The Contract Clause
- States that government may not pass any "Law impairing the Obligation of Contract." Unless protecting welfare of citizens. Courts interpret this clause to mean that no law can be passed that will unreasonably interfere with existing contracts
Bill of Rights
These prohibit the federal government's regulation of individual freedoms including that of business
1. Why is speech so importantly protected in this country?
a. Check on Government Power - free and open discussion in a democratic society. When government can restrict speech it finds offensive or dangerous, officials can easily use that power to serve their own partisan purposes.
b. Individual Autonomy - free speech supports notions of autonomy, self-fulfillment, self-realization, moral independence, liberty.
Self-Governance. Encourages public debate.
Obscenity, Defamation, "Fighting words"
Citizens United v. Federal Election Commission US Supreme Court in 2010 held:
Political Speech by a corporation is protected (federal campaign financing legislation limited corporate contributions to a candidate is unconstitutional) because corporations are "associations of citizens."
Central Hudson Gas & Electric Corp. v. Public Service Commission of New York
- Commercial Speech is protected as long as it is: Not related to an illegal activity, Not misleading, No Substantial government interest is directly served by a restriction on commercial speech and if so, is the restriction as narrow as possible? Examples: Bad Frog Brewery, the Slants
Hate Speech is
- Protects citizens from unreasonable search and seizure. Ensures that government issues warrants only with probable cause. Same for businesses.
Pervasive regulation exception- industry has history of breaking the law or regulation then a warrantless search is not unreasonable. Can have warrantless searches to ensure that firms uphold regulation
- industry has history of breaking the law or regulation then a warrantless search is not unreasonable. Can have warrantless searches to ensure that firms uphold regulation
The Fifth Amendment -
Ensures that government does not put citizens on trial except by indictment of a grand jury.
Gives citizens the right not to testify against themselves (privilege against self-incrimination).
Prevents government from trying citizens twice for the same crime (double jeopardy).
Creates the right to due process.
Procedural due process
- requires that government use fair procedures when taking life, liberty or property of individual or corporations
Substantive due process
- basic fairness of laws that may deprive an individual of her life, liberty or property
- when government takes private property for public use, it must pay the owner "just compensation" (fair market value) for its property.
Corporations do not have the 5th amendment right to
not testify against the company. need to testify if you are an officer of a business you have no protection you have to testify against the business.
- substantive and procedural rules created by these bodies
Referred to as the unofficial fourth branch of government. Congress through "enabling legislation", a statute that specifies names, functions, and specific powers of agencies. Congress delegates Constitutional-given powers to the agencies
Administrative Procedures Act
- imposes specific guidelines on agency rule making.
which is a statue that specificizes the name function and specific powers of the new agency. Broad powers for the purpose of serving the public interest
Governed by board of commissioners one of whom is chair. Commissioners are appointed by president, with advice and consent of U.S. Senate. Narrow focus
executive branch of government, under a cabinet-level department; (cabinet-level agency). Head of Executive Agencies are appointed by the president with the advice and consent of the US Senate and may be discharged by the president at any time.
(notice-and-comment rule making): Proposed rule published in Federal Register, with opportunity for public comment.
order to appear at a time and place and provide testimony
Subpoena duces tecum-
an order to appear and bring specified documents
- enabling statutes delegate judicial power to agencies to settle or adjudicate individual disputes that an agency may have with businesses or individuals. Appeals courts generally defer to the findings of the administrative law judge.
the 4 limitations on agency power
1. Legislative- congress has ability to change the rules the agency makes, overturn the rule;
2. Judicial- circuit courts reviewing the agency; interested parties may challenge administrative rules in the courts which may review the agencies findings of facts its interpretation of the rule
3. Informational- freedom of information act, government in sunshine act, and privacy act
4. Political- leadership can change at whim of president; the senate must approve nominees for agency heads,
Freedom of information act
- requires that federal agencies publish in the Federal Register specific places where the public can access agency information. Any individual or business may make a Freedom of Information Act request. Information may be obtained regarding how an agency acquires and spends its money
Government in sunshine act
- Act requires that agency meetings be open to the public if the agency is headed by "collegiate body" (in other words, two or more persons, with the majority appointed by the president upon the advice and consent of the Senate). Such agencies must keep records of any closed meetings.
- a federal agency may not disclose information about an individual to other agencies or organizations without the individual's written consent.
arguments against the broad powers of the administrative agencies
1. Nondelegation- lawmakers delegate rulemaking authority to another branch of government
2. Judicial deference- A court accepts an agency's interpretation of a statute or regulation, even if the court would have arrived at a different interpretation.
3. Executive control of agencies
4. Procedural Rights- Agency rulemaking and enforcement impact individual procedural rights
5. Agency Dynamics- Structure and function of the agencies
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