Con Law Flashcards
Tax under Commerce Clause
A tax is valid under the Commerce Clause if: (i) the tax does not discriminate against interstate commerce; (ii) there is a substantial nexus between the activity taxed and the taxing state; (iii) the tax is fairly apportioned; and (iv) the tax fairly relates to services or benefits provided by the state.
Congress may regulate states buy imposing explicit conditions on the grant of money to state or local governments so long as the conditions are
(i) clearly stated, (ii) related to the purpose of the program, and (iii) not unduly coercive.
Such conditions will not violate the Tenth Amendment merely because Congress lacked the power to directly regulate the activity that is the subject of the spending program.
Tax on press and broadcasting companies
they can be subject to general business regulations and taxes but generally may not be singled out for a special tax. Moreover, a tax impacting on the press or a subpart of the press cannot be based on the content of the publication absent a compelling justification.
Fundamental rights
All first amendment rights
the right to interstate travel
privacy related rights
voting
*Fundamental rights can be enumerated in the Constitution or unenumerated. Whether an unenumerated right is fundamental depends on whether it is deeply rooted in the nation’s history and tradition and essential to the concept of ordered liberty.
substantive due process
Guarantees that laws will be reasonable and not arbitrary. Derives form the 5th and 14th amendment. When a law limits the rights of all persons, do substantive due analysis. When a fundamental right is limited, the law or action is evaluated under strict scrutiny. In all other cases like economic rights, education, or physician assisted suicide, rational basis is applied.
Privacy related rights
- Marriage
- Procreation
- Use of Contraceptives
- Rights of Parents
- Keeping Extended Family Together
- Obscene Reading Material (in home) (not child porn)
Rational basis
The law is upheld if it is rationally related to a legitimate government purpose. Usually valid unless arbitrary or irrational.
The person challenging the law has the burden of proof.
Ex. Age, disability, poverty, economic,
Intermediate Scrutiny
Applies when regulation involves quasi-suspect classifications. The law is upheld if it is substantially related to an important government purpose.
Usually courts place the burden of proof on the government.
Ex. sex/gender, legitimacy
Strict Scrutiny
Applies when regulation affects fundamental rights or involving suspect classifications. The law is upheld if it is necessary (least restrictive way) to achieve a compelling government purpose. usually invalidated if there is a less burdensome alternative to achieve the gov’ts goal.
The burden of proof is on the gov’t.
Ex. Race, national origin, alienage(unless about participation in functioning state gov’t, school teacher, cop, etc.) AND all fundamental rights
“narrowly tailored to achieve an overriding gov’t purpose” and “necessary to achieve a compelling gov’t purpose”
The contracts Clause
prohibits states form retroactively and substantially impairing contract rights unless the governmental act serves an important and legitimate gov’t interest and is a reasonable and narrowly tailored means of promoting that interest.
Private action may constitute state action where
the private actor is performing an exclusive state function or the government is significantly involved in the private actor’s activities.
Laws favoring minorities
The Equal Protection Clause prohibits government discrimination absent a compelling interest, and laws that favor a minority are subject to the same strict scrutiny standard as laws that discriminate against a minority. However, the Supreme Court has found that remedying past discrimination against a minority-either by the government or by the public-is a compelling interest. Therefore, a government program favoring a minority will be upheld if it is narrowly drawn to remedy past discrimination.
Implied Preemption
will be found where it was the intent of the federal government to occupy the entire field with its regulation, the state law directly conflicts with the federal law, or the state provisions prevent achievement of federal objectives.
For regulations involving health, safety, and welfare, the Court will presume that state police powers are not preempted unless that was the clear and manifest purpose of Congress when it enacted the federal law.
Establishment Clause
The Establishment Clause prohibits government sponsorship of religion, meaning it cannot aid or formally establish a religion. Like the Free Exercise Clause, it compels the government to pursue a course of neutrality toward religion.
Look to whether the state action is neutral and/or coercive with regard to religion, whether it is consistent with historical practice, and whether the Founders would have considered it acceptable.
Due Process Clause
Under the Due Process Clause of the Fourteenth Amendment, the state must provide some fair process or procedure before it may deprive a person of “life, liberty, or property.” Fair procedure at a minimum requires an opportunity to present objections to the proposed action to a fair, neutral decisionmaker. Whether a prior evidentiary hearing is required and the extent of procedural requirements is determined by weighing (i) the importance of the individual interest involved, (ii) the value of specific procedural safeguards to that interest, and (iii) the governmental interest in fiscal and administrative efficiency.
