Con Law

Question 1

difference between Art IV vs. 14A privileges and immunities clauses

Answer 1

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)

Question 2

what is the dormant commerce clause?

Answer 2

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)

Question 3

two ways dormant commerce clause can be violated

Answer 3

1. discriminatory law (favoring in state over out of state Econ interests)
2. nondiscriminatory law (Pike balancing test - will be upheld UNLESS challenger shows law’s burden on interstate commerce clearly exceeds its local benefits)

Question 4

Pike balancing test

Answer 4

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

Question 5

when does a private actor qualify as a government actor?

Answer 5

1. private actor performs trad govt function, OR
2. government is significantly involved in private actor’s activities

Question 6

what constitutes significant involvement for the purpose of determining whether a private actor is engaged in state action?

Answer 6

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

Question 7

suspect classes

Answer 7

ethnicity, citizenship, race, nationality

Question 8

how does the question of whether info was lawfully obtained affect 1A analysis when the press publishes documents?

Answer 8

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

Question 9

standard of review & outcome: state law discriminating against out of state business (pursuant to congressional authorization)

Answer 9

rational basis review
overturned under EPC; promoting in state business by discriminating against out of state business is not a legit govt interest

Question 10

a discriminatory state law (favoring in state > out of state interests) will be unconstitutional under the dormant commerce clause UNLESS…

Answer 10

congress authorized, or

1. the law furthers an important or legitimate nonecon state interest; AND
2. there is no reasonable, nondiscriminatory alternative to achieve that interest

Question 11

first amendment protection on expressive conduct & permissible level of regulation

Answer 11

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)

Question 12

a person may only be punished or deprived of public employment based on political association if that individual…

Answer 12

1. is an active member of a subversive organization
2. has knowledge of the org’s illegal activity, and
3. has a specific intent to further those illegal objectives

Question 13

three categories of forum for speech regulation purposes

Answer 13

1. traditional
2. designated
3. nonpublic / limited public

Question 14

define traditional public forum

Answer 14

historically associated with expression, such as sidewalks, streets, and parks

Question 15

define designated public forum

Answer 15

one that has not historically been used for speech-related activities, but which government has opened for such use

Question 16

level of permissible regulation on speech in a public forum

Answer 16

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

Question 17

in public forums, when will absolute prohibitions on a particular type of expression be upheld?

Answer 17

only if narrowly drawn to accomplish a compelling governmental interest

Question 18

permissible level of regulation in a nonpublic forum

Answer 18

regulation okay of
1. viewpoint neutral (subject matter regulation ok)
2. reasonable - rationally related to a legitimate governmental interest

Question 19

general dormant commerce clause test

Answer 19

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

Question 20

if a state or local reg is discriminatory, then the regulation may be upheld if the state or local government can establish that:

Answer 20

1. an important local interest is being served; and
2. no other nondiscriminatory means are available to achieve that purpose

Question 21

test to determine whether state tax on IS comm comports with commerce clause

Answer 21

1. substantial nexus (between activity taxed and taxing state)
2. 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)
3. nondiscrimination (no direct commercial adv to local business over interstate competitors - unless congress authorizes)
4. fair rel to services provided by taxing state

Question 22

when there is a state tax on interstate commerce type activities, what three areas should you look to for analysis?

Answer 22

1. dormant commerce clause
2. comity clause
3. equal protection clause

Question 23

when does a state tax violate the EPC?

Answer 23

discriminatory tax on out of state business, even if authorized by congress
must pass rational basis test (legitimate state purpose)

Question 24

rational basis scrutiny

Answer 24

policy is constitutional unless
- not rationally related to
- legitimate interest

Question 25

intermediate scrutiny

Answer 25

policy unconstitutional unless
- substantially related to
- important interest

Question 26

strict scrutiny

Answer 26

unconstitutional unless
- necessary to achieve
- compelling interest

Question 27

threshold inquiry for EPC challenge

Answer 27

did the government action treat similarly situated persons differently?

Question 28

what are the fundamental rights subject to strict scrutiny?

Answer 28

voting
interstate travel
privacy
first amendment

Question 29

what suspect classes receive strict scrutiny?

Answer 29

ethnicity
citizenship
race
nationality

Question 30

test for regulatory taking

Answer 30

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