Con Law Flashcards
Dormant Commerce Clause
State regulation of interstate commerce is valid if it does not:
1. Discriminate against out of state competition
If it discriminates, invalid unless necessary to an important noneconomic gov’t interest (e.g., health & safety) + no less discriminatory alternatives
- Unduly burden interstate commerce
If it does burden, violates DCC if burdens > legit state interest.
Court will consider availability of less restrictive alternatives.
Exceptions:
-Market participant (state is purchaser, seller, subsidizer)
-Congress consent
P&I Clause
State cannot discriminate against non-citizens regarding fundamental rights (earn livelihood, civil rights)
unless substantially related and no less discriminatory alternatives
Corporations and aliens are not protected
Privileges or Immunities Clause
Right to travel
States may not deny their citizens the rights of national citizenship
Contracts Clause
Public Ks: strict scrutiny
Private Ks: intermediate scrutiny (if substantially impaired, law must be reasonable/appropriate to important/legitimate public interest)
Spending power conditions
Through its spending power, Congress can induce state and local gov’t action by placing conditions on the grant of money to those gov’ts. Such grants will not violate 10A if:
1. expressly stated
2. relate to the purpose of the program
3. not unduly coercive
4. do not otherwise violate the Constitution
Free exercise clause
Free exercise clause prohibits gov’t from punishing someone on basis of their religious belief, status, or conduct.
Generally applicable laws are ok
Establishment clause
Gov’t may not directly or indirectly coerce religious beliefs or behavior
No speech or sect preferences (strict scrutiny)
Content-based restrictions
Strict scrutiny (Necessary to achieve a compelling gov’t interest)
Content-neutral restrictions
Intermediate scrutiny
Narrowly tailored (do not burden substantially more speech than necessary)
Important gov’t purpose
Obscenity
- Prurient interest (community standard)
- Patently offensive Prurient interest (community standard)
- Lacks LAPS (national standard)
Public / designated TPM
Public forums are forums that have traditionally been open to the public. Examples: streets, sidewalks, public parks.
Designated public forums are public property that were not not historically open to speech-related activities but have been thrown open by the government for such activities on a permanent or limited basis. Example: public library.
To avoid strict scrutiny, regulation must be:
1. Content neutral + viewpoint neutral
2. Narrowly tailored to serve important gov’t interest
3. Leaves open alternative channels
Limited / nonpublic TPM
Limited public forums are government property not historically linked with speech and assembly but opened for specific speech activity. Example: school gym opened to host debate on particular community issue.
Nonpublic forums are government properties not historically linked with speech and assembly and not held open for speech activities. Examples: military bases, airports, government workplaces, sidewalks on post office property.
To avoid strict scrutiny, regulation must be:
1. Viewpoint neutral
2. Reasonably related to legit gov’t interest
Commercial speech restrictions
Directly advances substantial gov’t interest
Narrowly tailored (reasonable fit)
Symbolic speech
Symbolic speech involves the freedom not to speak or the freedom to communicate an idea using a symbol lor communicative conduct.
Regulation of symbolic speech allowed if:
1. Important gov’t interest unrelated to suppression of speech
2. Prohibits no more speech than necessary
Prior restraints
Stop speech before it occurs
Only allowed if gov’t can show:
1. Irreparable / serious public harm
2. Narrowly drawn standards
3. A final determination of the validity of the restraint
Freedom of association - prohibitions on membership
Must prove person is
1. Actively affiliated
2. Knowing of its illegal activities
3. Has specific intent to further those illegal activities
AAKII = Active, Knows, Intent (illegal)
Rights triggering strict scrutiny
Privacy rights
Right to vote
Right to travel
1A rights
Due process
Deprivation of property occurs if there is an entitlement (reasonable expectation that a benefit will continue) and that entitlement is not fulfilled.
Balancing test:
1. Importance of interest to individual
2. Ability of additional procedures to improve accuracy of fact-finding
3. Gov’t interest (fiscal and administrative efficiency)
EPC: Classifications that merit strict scrutiny
RAN
Race
Alienage
National origin
EPC: Classifications that merit intermediate scrutiny
Gender
Legitimacy
(Undocumented alien children)
Takings Clause
Gov’t may take private property for public use if it provides just compensation.
Public use = broadly defined
Just compensation = FMV at time of taking
Regulatory Taking
(discuss the three subpoints)
Regulatory taking: Regulation affects value or use of person’s property
Leaving no economically viable use = taking
Decreasing economic value = generally not a taking. Consider:
1. Social goals sought to be promoted
2. Economic impact
3. Interference w/ investment-backed expectation
Building/ Development Permit Dedication Requirements (Exactions)
These constitute a taking unless the government can show:
1. Nexus btwn the condition and proposed development (rational basis)
2. Adverse impact of the proposed development is roughly proportional to the loss caused to the property owner from the forced transfer
Temporary Taking
Court considers:
-Economic impact to owner
-Reasonable expectation of owner
-Length of delay
-Good faith of the city planners
