Con Law

Question 1

Commerce Clause

Answer 1

Congress can regulate the channels and instrumentalities of interstate commerce, persons and things in interstate commerce, or anything that has a “substantial effect” on interstate commerce—meaning, it can
regulate anything economic or anything noneconomic that “substantially affects” interstate commerce (even if it is purely “intrastate”—i.e., within a state). (July 2012)

Question 2

Anti Commandeering Principle

Answer 2

Congress cannot, however, “commandeer” states and force states to enforce federal laws. Congress will either have to regulate directly (if within its commerce power) or regulate indirectly by threatening to take away funding if the state does not adopt a law (under Congress’s spending power).

Question 3

Dormant Commerce Clause

Answer 3

States lack the power to discriminate against interstate commerce or unreasonably burden it.

Question 4

If a law discriminates against interstate commerce, it is invalid unless the state can show that:

Answer 4

1. the law was necessary to serve a compelling non economic state interest and
2. there is no reasonable nondiscriminatory alternative (strict scrutiny). ***A state law that discriminates against interstate commerce is usually unconstitutional.

Question 5

If a state law is nondiscriminatory on its face (i.e., it imposes the same burden on those in-state and out-of-state) but it still burdens interstate commerce, it is valid only if:

Answer 5

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

***A statelaw that merely burdens interstate commerce is more likely to be constitutional. (

Question 6

A tested exception to the Dormant Commerce Clause is

Answer 6

1. the market-participant doctrine (i.e., the state is acting as a market participant or business rather than regulator). If the state is acting as a market participant, it is allowed to favor its own residents.
2. Congressional Approval

Question 7

Congress’s powers are limited to those given to it by the Constitution. It has the power to enforce constitutional rights under

Answer 7

its enforcement power found in the Thirteenth, Fourteenth, and Fifteenth Amendments, but it does not have the power to expand rights. (Feb 2015)

Question 8

State Action

Answer 8

If a plaintiff is suing under the First, Fourteenth, or Fifteenth Amendment (for free speech, due process, Equal Protection Clause issues, or voting rights) the plaintiff needs to find a government actor or action “fairly attributable to the government.” (One cannot sue a business or a private individual for, say, violating one’s free speech rights under the First Amendment.)

Question 9

State Action is present when:

Answer 9

1. a state passes a law
2. when a state permits its officials to take action,
3. Public Function: when a private actor is performing a traditional and exclusive government function (e.g., conducting elections, or running a company town—this is pretty narrow), or
4. when private action is closely controlled by the state.
5. Entanglement: When the state and private actor are intertwined

Question 10

Strict Scrutiny

Answer 10

The government must prove that the law is narrowly tailored (necessary) to achieve a compelling interest. (The government usually loses under a strict scrutiny analysis.)

Question 11

Strict scrutiny applies to:

Answer 11

1. fundamental rights
2. racial or ethnic discrimination,
3. and alienage when the classification is made by the state (though there are exceptions for alienage where strict scrutiny does not apply—e.g., if the public function doctrine applies or if the law regulates illegal aliens).

Question 12

Intermediate scrutiny:

Answer 12

The government must prove the classification is substantially related to an important government interest.

Question 13

Intermediate Scrutiny applies to :

Answer 13

classifications regarding gender and illegitimacy

Question 14

Rational basis:

Answer 14

The plaintiff must prove that the law is not rationally related to a legitimate government interest. (The plaintiff usually loses.)

Question 15

Rational Basis Applies to:

Answer 15

his applies to every other classification—poverty, wealth, age, education, etc. (Feb 2015)

Question 16

Content Based and View Point Based Level of scrutiny

Answer 16

Strict scrutiny means that the government must show that the regulation is necessary to serve a compelling state interest and is narrowly tailored to that end.

Question 17

Content Based Discrimination

Answer 17

forbidding communication about certain ideas o

Question 18

View Point Based Discrimination

Answer 18

rforbidding communication about a certain viewpoint

Question 19

Symbolic Speech

Answer 19

a law which regulates conduct and places an incidental burden on speech is constitutional if the regulation is narrowly tailored to an important governmental interest and is unrelated to the suppression of the speech.

Question 20

Unprotected Speech

Answer 20

A law regulating unprotected speech needs to pass rational basis scrutiny

Question 21

Unprotected Speech Categories

Answer 21

• Speech inciting immediate lawless or violent behavior (“clear and present danger”)
• Fighting words
• True threats or words as conduct
• Obscene speech

Question 22

Speech inciting immediate lawless or violent behavior

Answer 22

1. substantial likelihood the speech will cause imminent illegal activity
2. The speech is directed at causing imminent illegal activity

Question 23

Fighting words

Answer 23

: words likely to incite an immediate violent reaction.

Question 24

True Threats

Answer 24

intended to intimidate

defamation, harassment, and other forms of “words as conduct.”

Question 25

The test for obscenity examines whether

Answer 25

1. the speech appeals to a prurient interest in sex
2. whether it depicts or describes sexual conduct in a patently offensive way, and
3. whether it lacks serious literary, artistic, political, or scientific value.

Obscene speech is not usually tested.

Question 26

Commercial speech: the law must meet the Central Hudson test, which states that

Answer 26

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

Question 27

Sexual or Indecent Speech

Answer 27

the law must serve a substantial governmental interest and leave

open reasonable alternative channels of communication.

Question 28

A restriction in a Public Forum must be:

Answer 28

1. content neutral
2. narrowly tailored to serve an important government interests
3. leaves open adequate alternative channels of communication

Question 29

Restriction in a non. public forum must be:

Answer 29

1. must be viewpoint neutral and
2. reasonably related to a legitimate governmental interest.

Question 30

Speech in Public Schools

Answer 30

students have free speech rights; however, speech in schools may be regulated so long as the regulations are reasonably related to legitimate pedagogical (educational) concerns. (Feb

Question 31

Prior Restraint

Answer 31

a presumption against a prior restraint (stopping speech before it happens).

Question 32

Overbroad

Answer 32

If a law is overbroad (prohibits substantially more expression than necessary) or vague (a reasonable person could not tell what is prohibited by the law), it is unconstitutional.

Question 33

Rights of the press:

Answer 33

The press has no greater free speech rights than anyone else. The press may publish information that is lawfully obtained and that is a matter of public concern.

Question 34

Rights of corporations:

Answer 34

independent political expenditures by a for-profit corporation constitutes free speech protected by the First Amendment.

Question 35

Eminent domain.

Answer 35

Neither the federal government nor the state may take private property for public use without just compensation. This arises from the Fifth Amendment and is applied to the states through the Fourteenth Amendment.

Question 36

Public Use under Eminent Domain

Answer 36

A “public use” is defined broadly and may include giving land to a private party for commercial development.

Question 37

Physical Taking

Answer 37

occurs when there is a permanent physical occupation regardless of what public interests it may serve. (Sept 2020)

Question 38

Regulatory Taking

Answer 38

When a regulation deprives an owner of all economically beneficial use of her property or destroys all reasonable investment-backed expectations, it is a taking. (Sept 2020)

Question 39

An exaction exists when

Answer 39

the government enacts a regulation that restricts the owner’s use of a property as a condition to allowing the owner to develop the land. These are takings unless the government can show a legitimate government interest and “rough proportionality” (i.e., the adverse impact of the proposed development is roughly proportional to the loss suffered by the property owner). (Feb 2014)

Question 40

11th Amendment precludes:

Answer 40

a federal court from exercising jurisdiction over a suit by a private party seeking to recover damages from the state. There are exceptions to this (e.g., if a federal statute properly abrogates immunity or federal officer).