Con Law Flashcards
What power does Congress have regarding interstate commerce?
Congress has the power to regulate interstate commerce.
What tests are used to determine if a state law regulating interstate commerce is constitutional?
- Discriminatory law: usually unconstitutional under strict scrutiny. 2. Burden on interstate commerce: more likely to be constitutional.
What can Congress regulate under its commerce power?
Congress can regulate: * channels and instrumentalities of interstate commerce * persons and things in interstate commerce * anything with a substantial effect on interstate commerce.
Can Congress commandeer states to enforce federal laws?
No, Congress cannot commandeer states; it must regulate directly or indirectly through funding threats.
What is the Dormant Commerce Clause?
States lack the power to discriminate against or unreasonably burden interstate commerce.
What must a state show for a law that discriminates against interstate commerce to be valid?
The law must serve a compelling state interest with no reasonable nondiscriminatory alternative.
What is the market-participant doctrine in relation to the Dormant Commerce Clause?
A state may favor its own residents if acting as a market participant rather than a regulator.
What limitations does Congress face regarding its powers?
Congress’s powers are limited to those given by the Constitution.
What is required to sue under the First, Fourteenth, or Fifteenth Amendment?
State action is required.
What constitutes state action?
State action occurs when: * a state passes a law * officials take action * a private actor performs a traditional government function * private action is closely controlled by the state.
refers to actions taken by government entities, including the executive, legislative, and judicial branches at the federal, state, and local levels.
What are the three standards under the Equal Protection Clause?
- Strict scrutiny 2. Intermediate scrutiny 3. Rational basis.
What does strict scrutiny require?
The government must prove the law is narrowly tailored to achieve a compelling interest.
What is the standard for intermediate scrutiny?
The government must prove the classification is substantially related to an** important government interest.**
What must a plaintiff prove under the rational basis standard?
The law is not rationally related to a legitimate government interest.
What is the relationship between freedom of speech and government regulation?
There must be a government regulation of private speech for First Amendment claims.
What does strict scrutiny mean in the context of speech regulation?
The government must show the regulation is **necessary **to serve a compelling state interest and is narrowly tailored.
What is symbolic speech?
A law regulating conduct that places an incidental burden on speech is constitutional if narrowly tailored to an important governmental interest.
What types of speech are considered unprotected under the First Amendment?
- Inciting immediate lawless behavior 2. Fighting words 3. True threats 4. Obscene speech.
What categories of speech receive less protection?
- Commercial speech 2. Sexual or indecent speech 3. Time-place-or-manner restrictions.
What is the test for commercial speech?
Must meet the Central Hudson test.
What are students’ free speech rights in public schools?
Students have free speech rights, but regulations must be reasonably related to legitimate educational concerns.
What is a presumption against prior restraint?
Stopping speech before it happens is generally presumed unconstitutional.
What rights does the press hold under the First Amendment?
The press has no greater rights than others and may publish lawfully obtained information about public concern.
What does the Fifth Amendment state about eminent domain?
Private property cannot be taken for public use without just compensation.
What constitutes a taking under eminent domain?
A taking can be physical or regulatory.
What is an exaction in the context of property use?
When the government restricts property use as a condition for development.
What does the Eleventh Amendment address?
It precludes** federal jurisdiction** over suits by private parties against states.
Are there exceptions to the Eleventh Amendment?
Yes, such as if a federal statute properly abrogates immunity.
The Central Hudson test
the speech concern lawful activity and is it** non-misleading**. there are three other prongs:
- The government must have a substantial interest.
- The regulation must directly and materially advance the government’s substantial interest.
4 The regulation must be narrowly tailored.
The Central Hudson test is a form of intermediate scrutiny, as the government only has to put forth a substantial governmental interest, rather than a compelling governmental interest as in a strict scrutiny analysis. Furthermore, the government does not have to justify its regulation as the least speech-restrictive means.
