Con Law Flashcards
When is a private party considered a state actor?
The Constitution generally protects against wrongful conduct by the government, not private parties. A private person’s conduct must constitute state action in order for these protections to apply. State action is found when a private person carries on activities that are traditionally performed exclusively by the state, such as running primary elections or governing a “company town.”
Freedom Not to Speak
The First Amendment is applicable to the states through the Fourteenth Amendment and protects the freedom of speech as well as the freedom not to speak. For example, the Supreme Court has held that a child in a public school has the right not to recite the Pledge of Allegiance.
Traditional Public Forum Restrictions
The government’s ability to regulate speech depends on the forum in which the speech takes place. A traditional public forum is one that is historically associated with expression, such as sidewalks, streets, and parks. In a traditional public forum, the government may only regulate speech if the restrictions: (i) are content-neutral as to both subject matter and viewpoint, (ii) are narrowly tailored to serve a significant governmental interest, and (iii) leave open ample alternative channels for communication. Additional restrictions, such as an absolute prohibition of a particular type of expression, will be upheld only if narrowly drawn to accomplish a compelling governmental interest.
Discrimination Based on Gender
Discrimination based on gender is discrimination based on a “quasi-suspect” classification and so is
judged under the intermediate scrutiny standard. In applying this test, the burden is on the state to
show that its different treatment of the sexes is substantially related to an important government
interest and that an “exceedingly persuasive justification” exists for the distinction.
When is different treatment of the genders ok?
Different treatment of the genders by the government (for example separate sports facilities at state
universities) does not violate the equal protection guarantee if the state can show that it has an
“exceedingly persuasive justification” for the different treatment and that the separate facilities offered
are “substantially equivalent.”
The Equal Protection Clause
The Equal Protection Clause of the Fourteenth Amendment provides that “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” This clause applies only to states and localities.
Rational Basis Standard
Laws classifying on the basis of age are reviewed under the rational basis standard. A law passes the rational basis standard of review if it is rationally related to a legitimate governmental interest, a test of minimal scrutiny. It is not required that there is actually a link between the means selected and a legitimate objective. However, the legislature must reasonably believe there is a link. Laws are presumed valid under this standard.
14th Amendment Section 5 Enabling Clause
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.
Standing
Article III, Section 2 restricts federal judicial power to “cases” and “controversies.” 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.
10th Amendment and Commandeering
Congress may exercise only those powers specifically enumerated by the Constitution. Under the Tenth Amendment, all powers not assigned by the Constitution to the federal government are reserved to the states. In theory, this gives the states expansive, exclusive power. In practice, however, the federal government has very broad power to regulate the states. As long as Congress is exercising one of its enumerated powers, Congress may regulate the states, within certain limits. However, Congress cannot “commandeer” state legislatures by commanding them to enact specific legislation or enforce a federal regulatory program. Congress is also prohibited from conscripting a state executive officer directly.
Spending Power and Commandeering
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.”
Dormant Commerce Clause
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.
Market Participant Exception
A state may behave in a discriminatory fashion if it is acting as a market participant (buyer or seller), as opposed to a market regulator. If the state is a market participant, it may favor local commerce or discriminate against nonresident commerce as could any private business.
Dormant Commerce Clause: Undue Burden
A state regulation that is not discriminatory may still be struck down as unconstitutional if it imposes an undue burden on interstate commerce. The courts will balance, case by case, the objective and purpose of the state law against the burden on interstate commerce and evaluate whether there are less restrictive alternatives.
Dormant Commerce Clause: Discriminatory
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.
