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.
A person’s “right” to a driver’s license
Because the government has taken control of who may drive automobiles on public roads, which is a sufficiently important area of human activity that persons have a liberty interest in it, the government must provide fair procedure to those who are specifically barred from engaging in the activity. In applying the Mathews v. Eldridge balancing test, the Court has held that the state generally must afford a prior hearing before a driver’s license is suspended or terminated. However, where the suspension is based on prior judicial determinations that traffic laws were violated, the driver has already had prior evidentiary hearings before unbiased decisionmakers on the significant factual issues involved. The governmental interest in keeping unsafe drivers off public roads and in not relitigating issues already fairly decided outweighs the driver’s interest in keeping her driver’s license.
Can law create presumptions against a person
If the government “presumes facts” against a person so that she cannot demonstrate that she is qualified for some important benefit or right, the “irrebutable presumption” may be unconstitutional. If the presumption involves a fundamental right or a suspect or quasi-suspect classification, it will likely be held invalid under a strict scrutiny or intermediate scrutiny analysis. If some other right or class is involved, it will likely be upheld under the rational basis standard.
Right to publish information about a matter of public concern
the press has a right to publish information about a matter of public concern, and this right can be restricted only by a sanction that is narrowly tailored to further a state interest of the highest order. The right applies even if the information has been unlawfully obtained in the first instance, as long as (1) the speech relates to a matter of public concern, (2) the publisher did not obtain it unlawfully or know who did, and (3) the original speaker’s privacy expectations are low.
Commerce Clause
Congress may regulate: (i) the channels of interstate commerce; (ii) the instrumentalities of interstate commerce, as well as persons and things in interstate commerce; or (iii) activities that have a substantial effect on interstate commerce.
Regulation on activities that has a substantial effect ton interstate commerce
the Court will uphold the regulation if it involves economic or commercial activity as long as there is a conceivable basis for concluding that the activity in aggregate substantially affects interstate commerce.
SCOTUS appellate jurisdiction
extends to reviewing the decision of highest court of a state where the validity of state legislation is called into question not he ground that it is unconstitutional or contrary to federal statutes
Cases that SCoTUS will not hear
The SC will refuse jurisdiction if it finds adequate and independent nonfederal grounds to support the state decision, because a different interpretation of the federal statutes would have no effect on the judgment rendered by the state court, so that the Supreme Court, in effect, would be rendering an advisory opinion.
Standing - injury
Under the Supreme Court test, the person must have an injury in fact-both a particularized and a concrete injury that will be remedied by a decision in his or her favor. A person challenging the constitutionality of a statute does not need to violate it and await prosecution as the sole means of seeking relief. Where there exists a clear threat of prosecution if the person fails to comply with the statute (such as previous prosecutions of others), injury in fact is established. Physical, economic, environmental, and loss of constitutional and statutory rights all count as viable injuries for standing purposes.
Standing - advisory opinions
Federal courts can hear a matter only if there is a case or controversy (non-advisory opinion, ripe, moot, standing). congress can’t require federal courts to perform administrative or nonjudicial functions.
