Con Law Flashcards
difference between Art IV vs. 14A privileges and immunities clauses
IV: comity clause; bars state discrimination against citizens of OTHER states, relating to rights of STATE citizenship (e.g. travel, property)
14: no state shall make or enforce law which abridge P&I of citizens of the US; prevents interference with state’s own citizens rights of NATIONAL citizenship (e.g. interstate travel, const rights)
what is the dormant commerce clause?
the negative implication of the commerce clause (i.e. the implication from the grant of commerce regulation power to Congress that states can’t unduly burden interstate commerce)
two ways dormant commerce clause can be violated
- discriminatory law (favoring in state over out of state Econ interests)
- nondiscriminatory law (Pike balancing test - will be upheld UNLESS challenger shows law’s burden on interstate commerce clearly exceeds its local benefits)
Pike balancing test
used in Dormant Commerce Clause assessment when law does not discriminate against out of state commerce
challenge successful if challenger shows that law’s burden on IS comm clearly exceeds local benefits
when does a private actor qualify as a government actor?
- private actor performs trad govt function, OR
- government is significantly involved in private actor’s activities
what constitutes significant involvement for the purpose of determining whether a private actor is engaged in state action?
when government
1. has mutually beneficial relationships with private actor
2. creates a nexus by affirmatively facilitation or authorizing private action
3. is pervasively intertwined in private actor’s management or control
suspect classes
ethnicity, citizenship, race, nationality
how does the question of whether info was lawfully obtained affect 1A analysis when the press publishes documents?
1A shields media from crim and civ liability for publishing LAWFULLY obtained private facts and other truthful info involving matters of public concern.
if truthful but unlawfully obtained, protected if 1. info involves matter of pub concern and 2. publisher neither obtained it unlawfully nor knows who did
standard of review & outcome: state law discriminating against out of state business (pursuant to congressional authorization)
rational basis review
overturned under EPC; promoting in state business by discriminating against out of state business is not a legit govt interest
a discriminatory state law (favoring in state > out of state interests) will be unconstitutional under the dormant commerce clause UNLESS…
congress authorized, or
- the law furthers an important or legitimate nonecon state interest; AND
- there is no reasonable, nondiscriminatory alternative to achieve that interest
first amendment protection on expressive conduct & permissible level of regulation
expressive conduct subject to lesser degree of protection than speech
regulation upheld if
(i) regulation is within the government’s power to enact
(ii) regulation furthers important governmental interest
(iii) governmental interest is unrelated to suppression of ideas
(iv) burden on speech is no greater than necessary (i.e. narrowly tailored)
a person may only be punished or deprived of public employment based on political association if that individual…
- is an active member of a subversive organization
- has knowledge of the org’s illegal activity, and
- has a specific intent to further those illegal objectives
three categories of forum for speech regulation purposes
- traditional
- designated
- nonpublic / limited public
define traditional public forum
historically associated with expression, such as sidewalks, streets, and parks
define designated public forum
one that has not historically been used for speech-related activities, but which government has opened for such use
level of permissible regulation on speech in a public forum
government may impose reasonable restrictions on time place or manner of protected speech, provided restrictions are
1. content neutral as to both subject matter and viewpoint
2. narrowly tailored to serve a significant governmental interest and
3. leave open ample alternative channels for communication of information
in public forums, when will absolute prohibitions on a particular type of expression be upheld?
only if narrowly drawn to accomplish a compelling governmental interest
permissible level of regulation in a nonpublic forum
regulation okay of
1. viewpoint neutral (subject matter regulation ok)
2. reasonable - rationally related to a legitimate governmental interest
general dormant commerce clause test
if congress has not enacted legislation in a particular area of IS comm, states are free to regulate so long as doesn’t:
1. discriminate against out of state commerce
2. unduly burden interstate commerce or
3. purposefully regulate extraterritorial activity
if a state or local reg is discriminatory, then the regulation may be upheld if the state or local government can establish that:
- an important local interest is being served; and
- no other nondiscriminatory means are available to achieve that purpose
test to determine whether state tax on IS comm comports with commerce clause
- substantial nexus (between activity taxed and taxing state)
- fair apportionment (according to rational formula such that interstate comm does not pay taxes greater than local commerce by virtue of having to pay tax in multiple states)
- nondiscrimination (no direct commercial adv to local business over interstate competitors - unless congress authorizes)
- fair rel to services provided by taxing state
when there is a state tax on interstate commerce type activities, what three areas should you look to for analysis?
- dormant commerce clause
- comity clause
- equal protection clause
when does a state tax violate the EPC?
discriminatory tax on out of state business, even if authorized by congress
must pass rational basis test (legitimate state purpose)
rational basis scrutiny
policy is constitutional unless
- not rationally related to
- legitimate interest
intermediate scrutiny
policy unconstitutional unless
- substantially related to
- important interest
strict scrutiny
unconstitutional unless
- necessary to achieve
- compelling interest
threshold inquiry for EPC challenge
did the government action treat similarly situated persons differently?
what are the fundamental rights subject to strict scrutiny?
voting
interstate travel
privacy
first amendment
what suspect classes receive strict scrutiny?
ethnicity
citizenship
race
nationality
test for regulatory taking
when government substantially restricts use of private property based on totality of circumstances -
1. gov’t or action’s character or nature
2. impact on property
3. interference w owner’s reasonable investment-backed expectations
