Con Law Flashcards
State Action Requirement
If a plaintiff sues under the First, Fourteenth, or Fifteenth Amendments (e.g., for free speech, due process, equal
protection issues, or voting rights), the plaintiff must show state action. State action is present if the state passes a law, if a private actor performs a
“traditional and exclusive” government function (e.g., a company town), or if private action is closely controlled by the state.
11th Amendment
Is a jurisdictional bar that prohibits:
- Citizens of one state or foreign country from suing another state in federal court for money damages OR Injunctions; AND
- Suits in federal court against state officials violating state law.
EXCEPTIONS:
- Consent
- Injunctive relief involving a state official rather than the state itself the state official may be enjoined from enforcing a state law that violates federal law or may be compelled to act in accordance with the federal law.
- Individual damages- If the official has to pay no the state.
- Congress may abrogate state immunity from liability if it clearly and expressly acting to enforce its rights created by the 14th amendment.
Dormant Commerce Clause
If a state passes a discriminatory law strict scrutiny applies. The law will be struck down unless the state can show the law was necessary to serve a compelling
state interest and there was no reasonable nondiscriminatory alternative. The law is usually struck down.
► If a state passes a law that is a burden on commerce but instaters and out of staters are treated equally then a balancing test is used. The law is more likely to be upheld.
Equal Protection
The Equal Protection Clause applies to the states
through the Fourteenth Amendment and the federal
government through the Due Process Clause of the
Fifth Amendment.
Requires Govt. Intent to discriminate
- discriminatory on its face
- Discriminatory application
- Discriminatory motive.
Strict scrutiny: the burden is on the government
to show the law is necessary for a compelling
government interest.
(FAR) fundamental rights when a
class is involved, alienage if a state is
discriminating (unless the public function
doctrine applies, in which case the standard is
rational basis), and race.
Intermediate scrutiny: the burden is on the
government to show the regulation is substantially
related to an important government interest.
(GI) gender and illegitimacy.
Rational basis: The burden is on the plaintiff to
show the law is not rationally related to a
legitimate government interest.
classifications based on age, education,
and wealth.
Takings Clause (Eminent Domain)
The government may not permanently take private property for public use without just compensation.
A taking can be physical or regulatory.
A taking is regulatory if a regulation deprives one of all economic value.
An unconstitutional exaction is also a regulatory taking.
1st Amendment Free Speech- Regulation Based on Conduct
Content-based- forbidding communication of specific ideas); OR
Conduct based- regulations of the conduct associated with speech. Time Place and Manner Restrictions.
Content-based restrictions are presumptively unconstitutional except for unprotected speech. Strict Scrutiny.
Content Neutral- intermediate scrutiny.
Time, Place and Manner Restrictions - Public Forums and Designated Public Forums
Public Forums- public sidewalks, streets, parks.
Designated Public Forums- schools rooms after school
May regulate speech in public forums and designated public forums if
- are content-neutral
- narrowly tailored to serve an important government interest
- Leave open alternative channels of communication.
Time, Place and Manner Restrictions - Limited Public Forums and Nonpublic forums
Limited Public Forums- govt property that has not been historically linked with speech and assembly but has been opened for specific speech activity.
Nonpublic forum- govt property that has not been historically linked with speech and assembly and is NOT open to the public for a specific speech or assembly.
Regulations must be;
- Viewpoint neutral; AND
- Reasonably related to a legitimate government purpose.
Unprotected Speech
- Fighting Words(true threats, likely to result in immediate physical relation)
- Incitement of imminent lawless action (intent and likey)
- Obscenity
- Defamatory speech;
- Some commercial speech( unlawful and misleading)
Complete bans will be unconstitutional.
If lawful and not misleading then - substantial govt interest.
- Directly Advances that interest;
- narrowly tailored.
Exclusive State Powers
Reserved Powers - the 10th amendment provides that all powers not assigned by the Consitution to the federal government are reserved to the states, or to the people.
Federal Regulation- Generally Congress can regulate the states with any of its enumerated powers. Congress can’t command states to enact certain legislation but it may encourage states to enact those regulations through the taxing and spending power.
Commerce Power
Congress has the power to regulate all foreign and interstate commerce.
- Channels of interstate commerce
- The instrumentalities of interstate commerce
- Activities that have a substantial effect on interstate commerce.
For the 3rd prong the court will uphold regulation of economic or commercial activity and
2. On a rational basis theory that the activity in the aggregate substantially affects interstate commerce.
