Chapter 4 Constitution

Business Law 255 with Jenkins at Ohio University

About this deck

By: Brian LeMoine
Created: 2012-01-22
Size: 41 flashcards
Views: 14

About StudyBlue

STUDYBLUE makes things that make you better at school. Things like online flashcards with photos and audio. Things like personalized quizzes and friendly reminders about when (and what) to study next. Think of it as a digital backpack™: access to all of your study materials online and on your phone. STUDYBLUE exists to make studying efficient and effective for every student, for free. Join us.

“I have used this website for three exams, and I see a huge difference in my test results.”
Naj

Sign up (free) to study this.

US Constitution

Establishes a government of strictly enumerated powers included powers to protect and foster economic interests.

Powers of the government to make laws

Congress:: The House of Representatives and the Senate

Regulation of our economy

Committed to congress in Article I Section 8

Separation of Powers

refers to distribution of governing power among three co equal branches of government.

In order: Legislative power is invested in Congress --> executive power is invested in the President--> judicial power is invested in the Supreme Court

Limits of federal government in regulation of citizenry

first ten amendments and Article I Section 9

Congress

Two Chambers; House of Representatives (lower House) and Senate (Upper house)

number of Reps for each state determined by decennial census

Each state has 2 senators

President Duties

signs congressional acts into law and nominates federal judges

may veto a bill passed in Congress

Supreme Court duties

interprets Constitution and federal laws; has the power of judicial review

Checks and Balances

designed to prevent one branch of govt from gaining too much power

further disperses power throughout the govt

President may veto a bill passed in congress; congress may override veto with 2/3 vote in each chamber;

Impeachemnt

President and federal judges may be removed by action of both chambers of congress

Nature of Federalism

Constitution creates a govt of federalism; 2 classes of sovereigns (fed and state); this was a solution to the failure of the Articles of Confederation which created a weak central govt

the states retain a high degree of administrative freedom

Distribution of Powers

Federal powers exercised through Congress, strictly enumerated, Article I section 8

Federal powers important to business

the power to regulate interstate and international commerce

borrow money of the credit of the US

establish bankruptcy laws

issue patents and copyrights

State police powers

right of states to regulate public safety, health, welfare and morals

allow states to regulate intrastate business activities

Powers that are considered concurrent

The federal and state governments, both may tax businesses and spend money for the general welfare

Privileges and Immunities clause

to protect nonresidents from discrimination by the states in the nonresidents dealing with residents

Full faith and credit clause

judicial acts and rights secured in one state are honored in all states

Commerce clause

gives congress the broadest authority to regulate commerce among the states and, therefore, business

Power is either active or dormant

are the goods moving in interstate commerce or is the intrastate activity, in the aggregate, likely have substantial impact on interstate commerce?

Congress could prohibit such activities where the disruption of interstate travel was substantial

Ex) Heart of Atlanta case

Dormant Commerce Clause

what happens when a state legislative act burdens interstate commerce?

a state may not treat and out of state business different from an in state business as a matter of public or legislative policy

Supremacy Clause

Under Article VI, the US Constitution, and the laws made thereunder are teh "supreme law of the land"

If a Business is subject to Regulation by both federal and state laws which must the business obey? May the business choose which law or regulation?

Under the Preemption Doctrine (under Supremecy Clause)

to the extent the two regulations overlap, the Federal Law applies

IN the case that 2 laws overlap if they address the same subject matter, in whole or part

The federal statutory scheme displaces the state scheme regardless of which came first

This is the case if Congress has completely exhausted the field or reserved the field to itself

Not a complete overlap - State scheme viable with no conflict with Fed

Basic Aspects of Constitutional Limitations

Bill of rights limits power of Congress to regulate private behavior

Otherwise proper federal or state action may be unconstitutional if violates one of the ten amendments comprising Bill of rights

There must be state action

State Action

state must take some action having an effect on an individuals Constitutional rights or protections

Strict scrutiny

Intermediate scrutiny

Strict scrutiny

Is the states action necessary to accomplish a compelling state interest and is it the least burdensome means to achieve that interest?

Intermediate Scrutiny

is the states action substantially related to an important governmental interest?

Rational relationship

is the governments action rationally related to a legitimate exercise of governmental authority?

Freedom of Speech

the First Amendment protects private entities from punishment by the government for speaking freely

Neither the govt nor ints agents may suppress speech based upon its viewpoint; speech may be subject to reasonable time, place and manner restrictions

Political speech

lies as the heart of a democratic society

market place of ideas is the highest political value

attempts to suppress such speech must pass strict scrutiny

Commercial Speech

proposing a commercial transaction, receives less protection than political speech

must not be misleading and must propose a legal transaction to receive Constitutional protection, subject to intermediate scrutiny

Due Process

5th and 14th Amendments

the government may not deprive a person of life, liberty or property without due process of law.

procedural and substantive

Procedural due process

did the individual have notive of the intended deprivation; was there a hearing before the action was taken; and did the individual have an opportunity to appeal an unfavorable disposition of the hearing?

Substantive due process

is the deprivation fair to the individual

may a state enact a law which deprives married couple of access to artificial birth control methods?

is an excessive punitive damages award a violation of substantive due process?

Equal Protection

People who are similarly situated must be treated similarly before the law

all laws create classifications some people are benefited by a law and some are burdened

Subject to strict scrutiny

if a state action creates a suspect classification or infringes a fundamental right

Suspect classification

race religion, alienage, national origin, ethnicity

Fundamental rights

1st amendment rights, rights to vote or right to interstate travel

subject to intermediate scrutiny if

state action creates classifications based upon sex, gender or legitimacey

rational basis scrutiny

where state action affects social welfare and or economic matters, action is subject to?

Court monitored limitations

some legislative acts, such as the USA patriot act, permit the government to monitor private communications

About this deck

By: Brian LeMoine
Created: 2012-01-22
Size: 41 flashcards
Views: 14

About StudyBlue

“I have used this website for three exams, and I see a huge difference in my test results.”
Naj