What is an enumerated power?
Powers given to the federal government in the constitution
What is preemption?
What is interstate commerce?
What is intrastate commerce?
What is the necessary and proper clause?
Constitutional guidance allowing courts to broadly interpret the scope of the enumerated powers
Which of the following statements is false?
A. If a state law conflicts with a federal law, the state law, the state law will always be wholly preempted resulting in the state law being invalid and unenforceable in all circumstances.
B. Judicial Review is the process by which courts review the constitutionality of government actions.
C. States may act in the following areas:
Matters outside the Enumerated Powers
Matters not prohibited to the States in the US Constitution
Matters within the Enumerated Powers where the Federal Government has approved the State to Act as long as the state's action does not interfere with the Matter.
D. Federal supremacy means that if a court determines that a federal law and state law conflict, the federal law will take precedence over the conflicting state law.
A. If a state law conflicts with a federal law, the state law, the state law will always be wholly preempted resulting in the state law being invalid and unenforceable in all circumstances.
Which of the following actions constitute "state action" related to the US constitution?
A. The state of Texas enacts a statute prohibiting people from discussing politics in public.
B. A private corporation requires its employees to waive privacy rights to the information contained on their work issued laptops.
C. A city clerk refuses to issue a permit to a group protesting something the clerk supports.
Assume the protest requested is scheduled during the time required by the city ordinance and that the protest is to be held in a public park where protests are regularly permitted.
D. A and C only.
E. A, B and C are all examples of state action.
What test do you utilize for regulation of protected non-commercial speech?
Rational Relationship test
Which of the following statements is true?
A. The government may infringe on or restrict a US Citizen's fundamental rights if the government has a "good enough" reason for that restriction.
B. The government (state actor) cannot restrict a US Citizen's fundamental constitutional rights.
C. The higher a US Citizen's constitutional right is valued, the easier it is for the government to enact laws restricting that right.
D. Economic rights are protected against governmental regulation to the same extent that constitutional fundamental rights are protected.
legitimate government interest
Procedural due process requires which of the following
A. An Opportunity to be Heard only.
B. Notice AND an Opportunity to be Heard
C. Notice only.
D. Neither Notice nor an Opportunity to be Heard
Which of the following is a TRUE statement with regard to the Commerce Clause of the U.S. Constitution?
A. The Supreme Court has defined the scope of the Commerce Clause narrowly and, therefore, has restricted the powers of the federal government to regulate business..
B. The Commerce Clause gives the Federal government the right to regulate the economy, interstate commerce and trade with other countries.
C. States may regulate interstate commerce in any area if such regulation is NOT an undue burden on interstate commerce.
D. The Commerce Clause expressly prohibits state regulation of interstate commerce.
B. The Commerce Clause gives the Federal government the right to regulate the economy, interstate commerce and trade with other countries.
Which of the following statements is true?
A. Except in just a few circumstance, in order to conduct a search of a business, an administrative agency must have a search warrant.
B. Interpretative rules of administrative agencies are automatically binding on the private parties the agency regulates.
C. Administrative agencies exist only at the federal level.
D. Legislative rules by an administrative agency are not enforced like statutes.
Congress creates an administrative agency in an ____________________.
A. Administrative Procedures Act
B. Interpretive Rule
C. Enabling Statute
D. Legislative Rule
Which statement is CORRECT regarding administrative agencies?
A. Administrative agencies adopt (make) several types of rules, but the administrative agency can never enforce those rules.
B. An adjudication decision of an administrative agency can be appealed to a court.
C. Legislative rules enacted by an administrative agency generally may exceed the authority granted to the administrative agency in the enabling statute.
D. An enabling statute typically provides very detailed instructions and very limited authority to the newly created administrative agency.
Concerning the "Necessary and Proper Clause", which of the following statements is TRUE?
A. The Necessary and Proper Clause allows courts to broadlyinterpret the Enumerated Powers given to the Federal Government in the US Constitution.
B. DOES NOT affect the Enumerated Powers given to the Federal Government.
C. Is NOT included in the Constitution.
D. The Necessary and Proper Clause requires courts to narrowly interpret the Enumerated Powers given to the Federal Government in the US Constitution.
A. The Necessary and Proper Clause allows courts to broadlyinterpret the Enumerated Powers given to the Federal Government in the US Constitution.
Which of the following items IS NOT a requirement for the government to legally take private property from the citizens of the United States under eminent domain?
a. The government's proposed use or purpose for the property to be taken must be for the public.
B. The government must give the property owner procedural due process (notice and an opportunity to be heard).
C. The government must pay the property owner what the property owner thinks the property is worth.
D. The government must pay the property owner "just compensation" for the property to be taken.
In which of the following instances would the employer or governmental entity be MOST LIKELY to have violated the rights given to individuals and entities under the CONSTITUTION?
A. The US Department of Defense has a policy prohibiting its employee's from posting social media posts showing any information of a classified nature to protect national security and disciplines an employee for a post showing such information.
B. A private employer enforces its "casual business attire" dress code against an employee that insists on wearing board shorts and flip flops to work.
C. A private employer fires an employee for posting negative comments on social media about the employer's products.
D. A city council enacts an ordinance banning all church services anywhere within the city limits.
E. A city fire department requires their firefighters to wear fire resistant gear before entering a burning building for the protection of the firefighter.
Match the following of area governmental regulation with the appropriate ease or difficulty for the government to regulate in that area.
Fundamental Rights
Hard for government to regulate: interest must be compelling
Match the following of area governmental regulation with the appropriate ease or difficulty for the government to regulate in that area.
Protected Classifications (Race, National Origin, Color and Religion)
Match the following of area governmental regulation with the appropriate ease or difficulty for the government to regulate in that area.
Economic Rights
Easy for government to regulate: regulation must meet rational relationship test
Match the following of area governmental regulation with the appropriate ease or difficulty for the government to regulate in that area.
Gender
Match the following of area governmental regulation with the appropriate ease or difficulty for the government to regulate in that area.
Commercial speech
Moderately hard for government to regulate: regulation must meet intermediate test
efore the Occupational Safety and Health Administration (OSHA) can issue a legislative rule regarding safety in the workplace, it must:
A. OSHA must take all the actions listed in these answers prior to the issuance of a regulation.
B. determine that Congress supports the regulation.
C. Provide an opportunity for interested parties to participate in the rulemaking.
D. publish the regulation in the Code of Federal Regulations.
Which of the following types of administrative rules/regulations must be adopted in compliance with the Administrative Procedures Act requiring notice and an opportunity to be heard?
a. interpretive Rules
b. Procedural Rules
c. All these Rules must be adopted in compliance with the Administrative Procedures Act.
d. Legislative Rules
judicial review
process by which the courts examine governmental actions to determine whether they conform to the U.S. Constitution.
Judicial review spans what parts of government
Separation of powers
action refers to actions taken by governments as opposed to actions taken by private individuals. Constitutional protections apply only to state action, (excl. 13th) “State action” includes any actions of the federal and state governments and their subdivisions, such as city or county governments and agencies.
Enumerated powers
“the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Federal Commerce power
Congress has the power to regulate commerce with foreign nations and among the states. This commerce clause has two important effects: (1) it is a broad source of commerce power for the federal government to regulate the economy, and (2) it operates as a restriction on state regulations that obstruct or unduly burden interstate commerce.
State regulation of commerce
a broad source of federal power, the commerce clause also implicitly restricts the states’ power to regulate activities if the result obstructs or unduly burdens interstate commerce.
Taxation w/ state regulation of commerce
commerce clause in conjunction with the import-export clause limits the power of the states to tax. The import-export clause provides: “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports."
The federal government exerts a dominating influence over the national economy through its control of financial matters. In addition to the powers granted in the commerce clause, the sources of federal fiscal regulatory power include (1) the power to tax, (2) the power to spend, (3) the power to borrow and coin money, and (4) the power of eminent domain.
Taxation w/ federal fiscal powers
Spending power w/ federal fiscal powers
Eminent domain w/ federal fiscal powers
Eminent domain is the power of government to take private property for public use upon payment of fair compensation. The power is one of the inherent powers of government in the federal Constitution and in the constitutions of the states. However, the Fifth Amendment limits the power by stating: “nor shall private property be taken for public use without just compensation” and through the Fourteenth Amendment limit also applies to the states.
The U.S. Constitution specifies certain powers that are granted to the federal government. Other, unspecified powers have been reserved to the states. The limitations most applicable to business are: (1) the contract clause, (2) the First Amendment, (3) due process, and (4) equal protection. (contract clause = exclusively state restricts government, other 3 state/federal)
3 levels of scrutiny for limitations on the government
rational relationship requires
legislation have substantial relationship to important governmental objective
“No State shall . . . pass any Law impairing the Obligation of Contracts . . . .” The Supreme Court has used the contract clause to restrict states from retroactively modifying public charters and private contracts. Although the contract clause does not apply to the federal government, due process limits the federal government’s power to impair contracts.
limitations on the government: first amendment
Limitations on the government: first amendment//corporate political speech
The First Amendment’s guarantee of free speech applies not only to individuals but also to corporations, which may not be prohibited from speaking out on political issues. However, the U.S. Supreme Court has upheld a narrowly tailored state statute prohibiting corporations from using general treasury funds to make independent expenditures in elections for public office but permitting such expenditures from segregated funds used solely for political purposes
Commercial speech is expression related to the economic interests of the speaker and his audience, such as advertisements. Commercial speech that does no more than propose a commercial transaction is entitled to a “lesser degree” of constitutional protection, but it is not wholly outside the protection of the First Amendment.
Defamation is a civil wrong or tort consisting of a false communication that injures a person’s reputation. Because defamation involves a communication, the protection extended to speech by the First Amendment applies. Public figures who pursue a cause of action for the tort of defamation or injury to their reputation by publication of false statements must prove actual malice or prove the defendant had knowledge of the falsity of the communication or acted in reckless disregard of its truth or falsity. In a defamation suit brought by a private person (not a public official or public figure), the plaintiff must prove that the defendant published the defamatory comment with malice or negligence.
The Fifth and Fourteenth Amendments respectively prohibit the federal and state governments from depriving any person of life, liberty, or property without due process of law.
substantive and procedural
substantive due process
Substantive due process requires that governmental action be compatible with individual liberties. Where fundamental rights of individuals under the Constitution are affected, the Court will carefully scrutinize the legislation to determine if the legislation is necessary to promote a compelling state interest. Substantive due process addresses the constitutionality of the substance of a legal rule, not the fairness of the process by which the rule is applied.
Equal protection requires that similarly situated persons be treated similarly by governmental action. The Fourteenth Amendment provides that “nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.” the Supreme Court has interpreted the due process clause of the Fifth Amendment to subject federal actions to the same standards of review.
In equal protection cases,
The intermediate test requires the governmental action to have a substantial relationship to an important governmental objective. This test has been applied to governmental action based on gender and legitimacy.
Operation of Admin Agencies
(1) to make rules, (2) to enforce the law, and (3) to adjudicate controversies. The term administrative process refers to the entire set of activities in which administrative agencies engage while carrying out their rulemaking, enforcement, and adjudicative functions.
To address the issues raised by the concentration of these three functions in the same agency and to address questions raised regarding the propriety of having the same bodies which establish the rules also act as prosecutor and judge in determining whether the rules have been violated; also procedural reforms
APA--Rulemaking
process by which an administrative agency enacts or promulgates rules of law. Under the APA, a rule is “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or process law or policy.” Three types of rules are promulgated by administrative agencies: legislative rules, interpretative rules, and procedural rules.
Legislative rules are
not binding but hold weight
apa-procedural rules
non-binding rules issued by an administrative agency establishing its organization, method of operation, and rules of conduct for practicing before it. Procedural rules are also exempt from the notice and comment requirements of the APA.
Admin agencies: enforcement agencies
investigate conduct to determine whether the statute creating the agency or the agency’s legislative rules have been violated. Agencies have traditionally been given great discretion to compel disclosure of information, subject to constitutional limitations.
Adjudication: formal procedure
Limits on Admin Agencies
An important and fundamental part of administrative law is the limits imposed by judicial review upon the activities of administrative agencies. Courts are not supposed to substitute their judgment on matters of policy for the agency’s judgment, but the legislature and the executive branch may address the wisdom and correctness of an agency’s action. Legally required public disclosure of agency actions provides further protection for the public.
Judicial review: limits on admin agencies
the court may either compel agency action unlawfully withheld or set aside impermissible agency action if the error is prejudicial. This process acts as a check on the conduct of an agency.
includes general requirements, questions of fact, and questions of law
General requirements of judicial review
Questions of law: judicial review
Questions of fact: judicial review
Congress may exercise control through its budgetary power; by amending the agency’s enabling statute; by establishing general guidelines such as the APA; by reversing or changing an agency rule through legislation; through review of agencies by Congressional oversight committees; and through Congressional power to confirm high-level administrative appointments. Congress must approve new, major rules before they take effect.
admin agency limits: control by exec branch
The president has the power to appoint and remove the chief administrators of executive agencies. He has less control of independent agencies, because commissioners serve for a fixed term that is staggered with the president’s term of office. The president also controls agencies through the budgeting process. In extreme cases, the president can impound moneys or restructure agencies unless disapproved by Congress.
admin agency limits: disclosure of information
Congress has enacted disclosure statutes to enhance public and political oversight of agency activities. These statutes include: freedom of info act, privacy act, and government in the sunshine act
freedom of info act (disclosure of info)
Privacy act (disclosure of info)
Among other things, this Act generally forbids the unauthorized disclosure of individuals’ personal records that are kept by a federal agency and allows an individual the right to review and copy these records and to find out if they have been disclosed to others
government in the sunshine act (disclosure of info)
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