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ARE 309Ted Feitshans 04-1
ARE 309 Unit 2Sources of Law
• Constitutional government– Highest source of law
• Federal government• North Carolina government
– Relationship between federal and state government
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Federalism
• Source of federal power– Constitution– Ceded by states upon ratification– States did not cede all power (sovereignty)– Principle of dual sovereigns (States are not
units of the federal government)
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Federalism
• Federal government one of limited powers– Limited to those granted in the Constitution
• State power limited only by:– Respective state constitutions– Explicit or implicit limits in the federal
Constitution
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Federalism
• Supremacy clause (Article VI)– concurrent authority– preemption
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Constitutional sources of federal environmental law
• No environment clause
• Commerce clause– authority for most federal environmental
laws
• Spending power
• Others– Admiralty power
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Constitutional limitations on federal & state environmental
powers• Contract
– Limitation on the ability of states to impair contracts
• 5th Amendment takings clause (applied to states through 14th)
• 4th Amendment (applied to states through 14th)– prohibition against unreasonable searches and
seizures• 5th and 14th Amendment due process clauses• Equal protection clause (14th Amendment)
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NC Constitution
• No explicit prohibition against uncompensated takings– alone among 50 states– implicit prohibition
• Explicit environmental protection clause– Art. XIV, sec. 5. Conservation of natural
resources– No private right of action created
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Treaty making power
• Art. II, sec. 2– President makes treaty– Advice & consent of Senate (2/3 vote)
• Absent consent of Congress, states may not:– make treaties– agreements with other states (interstate
compacts)
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Legislative power
• Federal– vested in Congress
– subject to Presidential veto
• State– vested in General Assembly
– subject to limited veto by Governor
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Judicial power
• Federal– vested in U.S. Supreme Court &
inferior courts
• State– vested in NC Supreme Court &
inferior courts
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Judicial power
• “common law” vs “civil code” systems
• stare decisis
• precedent
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Executive power
• President– power to make treaties and issue
executive orders
• Governor– power to issue executive orders
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Administrative agencies
• Federal and state– issue regulations
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County and municipal governments, health
boards, special districts• ordinances
• rules