Con law

Question 1

Discriminatory commerce clause issue gets what type of scrutiny?

Answer 1

Strict

Question 2

if a law discriminates against interstate commerce, it is valid unless the state can show that the law was…?

Answer 2

necessary to serve a compelling state interest and there is no reasonable nondiscriminatory alternative (STRICT SCRUTINY)

Question 3

if a state law is nondiscriminatory on its face, it is valid only if…?

Answer 3

it serves an important state interest and does not impose an unreasonable burden on interstate commerce

Question 4

market-participant exception

Answer 4

If state is acting as a market participant, it is allowed to favor its own residents

Question 5

How does Congress enforce constitutional rights?

Answer 5

13, 14, 15. Congress cannot EXPAND or CREATE rights.

Question 6

State action rule statement

Answer 6

State action is present when a state passes a law, when a state permits its officials to take action, when a private actor performs a traditional or exclusive government function, or when private action is controlled by the state.

“traditional or exclusive govt function” is NARROW - company town type shit

Question 7

EPC standards of review

Answer 7

SS: GOVT must prove that law is NECESSARY to achieve a COMPELLING govt interest. NARROWLY tailored.

IS: GOVT must prove the classification is SUBSTANTIALLY RELATED to an IMPORTANT govt interest.

RB: PLAINTIFF must prove that the law is not RATIONALLY RELATED to a LEGITIMATE government interest.

Question 8

What do the EPC standards apply to?

Answer 8

SS: Fundamental rights (lol), race, ethnic origin, alienage, privacy

IS: gender, illegitimacy

RB: everything else - poverty, wealth, age, education

Question 9

When does the govt face strict scrutiny in 1A?

Answer 9

Content-based or viewpoint-based regulation

Question 10

Symbolic speech (1A)

Answer 10

A law that regulates conduct and places an incidental burden on speech is OK if the regulation is NARROWLY TAILORED to an IMPORTANT GOVERNMENT INTEREST and is UNRELATED TO THE SUPPRESSION OF SPEECH

Question 11

Unprotected speech under 1A

Answer 11

Subject to RATIONAL BASIS

Incl. incitement of lawlessness or violence, fighting words, true threats, obscene speech.

Question 12

1A commercial speech

Answer 12

(1) speech must be lawful and not misleading, (2) statute must serve a substantial govt interest, (3) statute must directly advance that interest, and (4) the statute must be narrowly tailored.

Question 13

Sexual or indecent (not obscene) speech

Answer 13

SUBSTANTIAL govt interest and leave open REASONABLE alt channels

Question 14

Time/place/manner

Answer 14

PUBLIC FORUM:

(1) content neutral
(2) narrowly tailored for important govt interest
(3) alt channels

NONPUBLIC FORUM:

(1) viewpoint neutral
(2) reasonably related to legit govt interest

Question 15

Permissible “commandeering” through the spending clause

Answer 15

Although Congress cannot command state legislatures, it can encourage state action through the use of the taxing and spending powers. The spending power has been interpreted very broadly, but is subject to five limitations.

First, Congress must spend for the “general welfare,” which amounts to any public purpose. Second, the condition must be unambiguous. Third, the condition must relate to “the federal interest in particular national projects or programs.” Fourth, the condition must not induce the states to act in an unconstitutional manner. Finally, the condition may not exceed the point at which “pressure turns to compulsion.”

Question 16

Domant commerce clause rule statement

Answer 16

The Dormant Commerce Clause is a doctrine that limits the power of states to legislate in ways that impact interstate commerce.

If Congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate, so long as the state or local action does not: (i) discriminate against out-of-state commerce, (ii) unduly burden interstate commerce, or (iii) regulate extraterritorial (wholly out-of-state) activity. In this case, there is no federal statute or regulation relevant to this issue. A state or local regulation discriminates against out-of-state commerce if it protects local economic interests at the expense of out-of-state competitors.

Question 17

Rule statement: if law is discriminatory on its face or in practice…

Answer 17

If a state or local regulation, on its face or in practice, is discriminatory, then the regulation may be upheld if the state or local government can establish that: (i) an important local interest is being served, and (ii) no other nondiscriminatory means are available to achieve that purpose.

Question 18

P sues to stop enforcement of a statute with a long history of non-enforcement - will court hear case?

Answer 18

If an ambiguous law has a long history of non-enforcement, a case challenging that law may lack ripeness.

Question 19

When is 15A the answer?

Answer 19

The Fifteenth Amendment prohibits both the state and federal governments from denying any citizen the right to vote on the basis of race, color, or previous condition of servitude.

Question 20

When is 13A the answer?

Answer 20

enables Congress to adopt legislation rationally related to eliminating racial discrimination

Question 21

11A rule statement

Answer 21

The Eleventh Amendment is a jurisdictional bar that prohibits the citizens of one state from suing another state in federal court. It immunizes the state from suits in federal court for money damages or equitable relief when the state is a defendant in an action brought by a citizen of another state. There are a few notable exceptions, including when a state waives its immunity under the Eleventh Amendment.

Question 22

11A - state official being sued rule statement

Answer 22

When a state official, rather than the state itself, is named as the defendant in an action brought in federal court, the state official may be enjoined from enforcing a state law that violates federal law.

Question 23

dormant commerce clause rule statement

Answer 23

TLDR: facially discriminatory = nope. not facially discriminatory = cost/benefit

The Supreme Court of the United States has long held that the Constitution’s grant to Congress of the power to regulate interstate commerce also limits, by implication, the right of state or local governments to adopt laws that regulate interstate commerce. This is often referred to as the “dormant Commerce Clause.” A state law that discriminates against interstate commerce is subject to strict review and is virtually per se unconstitutional. A nondiscriminatory state law that imposes an “incidental” burden on interstate commerce will nonetheless be unconstitutional if the benefits of the state law are grossly outweighed by the burdens on interstate commerce.

Question 24

Per se taking rule statement

Answer 24

Generally, a governmental regulation that adversely affects a person’s property interest is not a taking. However, it is possible for a regulation to rise to the level of a taking, such as when a regulation results in a permanent physical occupation of the property by the government or a third party or when a regulation results in a permanent total loss of the property’s economic value.

Question 25

Regulatory taking rule statement

Answer 25

Even though the ordinance does not constitute an occupation of the property by either the government or a third party, it is still subject to a three-factor balancing test to determine whether the ordinance amounts to a regulatory taking.

The following factors are considered:

(i) the economic impact of the regulation on the property owner,
(ii) the extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding use of the property, and
(iii) the character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property.

Question 26

Standing rule statement

Answer 26

A federal court cannot decide a case unless the plaintiff has standing to bring it.

To have standing, a plaintiff bears the burden of establishing three elements: (i) injury in fact; (ii) the injury was fairly traceable to the challenged action (causation); and (iii) the relief requested must prevent or redress the injury.

Standing requires a concrete and particularized injury, even in the context of a statutory violation. The injury need not be physical or economic. An injury such as the invasion of privacy may be a sufficiently concrete injury in itself even when extensive damages cannot be proved.

Question 27

Rule statement for when congress can enforce EPC by enacting statutes that prevent states from doin stuff

Answer 27

TLDR: can enforce EPC through ENABLING CLAUSE so long as the regulation is CONGRUENT and PROPORTIONAL

The federal government may exercise only those powers specifically enumerated by the Constitution. The Fourteenth Amendment, Section Five Enabling Clause permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the amendment, but not to expand those rights or create new ones.

In enforcing such rights, there must be a “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end. Accordingly, though Congress may override state government action that infringes upon Fourteenth Amendment rights if the “congruence and proportionality” test is satisfied, its enforcement power would not stretch to prohibit a law that does not violate the Constitution. In other words, as there would be no constitutional injury to prevent or remedy, the proposed law would be both incongruent and disproportionate.

Question 28

State law commerce clause rule statement

Answer 28

State laws that discriminate against out-of-state commerce in favor of in-state commerce—either on their face or in practical effect—are subject to strict scrutiny and thus a nearly per se rule of invalidity. Even if not discriminatory, state laws that affect interstate commerce can also be invalidated if the burden on interstate commerce is clearly excessive in relation to the putative in-state benefits.

Question 29

Market participant exception

Answer 29

State may discriminate in favor of residents when buying or selling goods and services because the state is acting as a market participant rather than a regulator

Question 30

If there’s no per se taking, what is the analysis for a regulatory taking?

Answer 30

1. economic impact
2. interference with use
3. character of the action - i.e., is it for the public good? another good reason?