Con Law Flashcards
When can you sue a state?
Under the 11th Amendment, an individual cannot sue a state in a federal court w/o consent, except that local governments are not immune, suits may be brought against state officers for injunctions against unconstitutional action or for personal actions under the color of law, and to enforce the 14th Amendment.
What are the enumerated powers of Congress?
CAMPFTCBDC: commerce (channels, instrumentalities, substantial relationship), admiralty, military, postal, foreign affairs, tax/spend (to raise revenue, even on state if no interference on state’s basic functions), citizenship (DP limits), bankruptcy (shared w/ states), and in DC.
What powers can Congress not delegate?
Appropriating funds, impeachment, and declaring war.
When may a state tax commerce?
If the tax is non-discriminatory to residency, there is a nexus between the state interest and the activity, it is fairly apportioned, and it does not tax mid-stream of commerce (unless there is a break in transit).
When can the federal government tax states?
If the tax is uniform, and the activity taxed is proprietary (one that could also be operated by the private sector).
What is the Privileges and Immunities Clause of Article IV?
It prohibits discrimination by a state against foreign citizens regarding important state rights (commercial activities to pursue a livelihood or civil liberties protections), unless nonresidents are a peculiar source of evil and the regulation is the least restrictive means available (no protection for aliens or corporations here!).
What is the Dormant Commerce Clause?
Under the DCC, a law is per se invalid if it discriminates against foreign commerce unless it furthers a legitimate state interest and is the only means to advance that interest (rigorous scrutiny), or if the state is a market participant. Even w/o overt discrimination, a regulation may violent the DCC if it burdens interstate commerce unless it is pursuing a legitimate state interest and the benefit outweighs the burden on interstate commerce.
*Congress can permit state commerce discrimination expressly, even reversing negative court rulings.
Where might a private person be a state actor?
Carrying on a public function, w/ mutual contacts or symbiotic relationship (business involvement), or by state command or encouragement.
What are the levels of scrutiny in EPC analysis?
Strict: gov’t must prove the law is narrowly tailored to promote a compelling gov’t interest (not overly broad, least restrictive means available)
Intermediate: gov’t (probably?) must prove it’s substantially related to an important gov’t objective
Rational basis: P must prove it’s not rationally related to a legitimate gov’t interest
What is the Mathews test for determining the need for pre-deprivation DP hearings?
Balance the importance of the individual interest involved and the risk of erroneous deprivation vs. the cost to the gov’t of the pre-deprivation procedure and the administrative burden and availability of additional safeguards.
What are the fundamental rights that demand strict scrutiny under substantive DP?
1st Amendment rights, voting (though reasonable qualifications are okay), interstate travel (reasonable requirements for voting, not for welfare), refusing medical treatment, and privacy rights (CAMPER: contraception, abortion, marriage, procreation, education, relations).
What is the Privileges or Immunities Clause of the 14th Amendment?
It protects from a state or federal actor infringing upon rights of national unity (interpreted very narrowly to quite important rights such as the right to work, travel interstate, or vote).
What is the Lemon test for violation of the Establishment Clause?
The primary purpose of the regulation must be secular (or at least mixed), the primary effect doesn’t advance or inhibit religion (incidental effects are okay), and there is no excessive gov’t entanglement.
*Separately, ask would a reasonable person interpret the gov’t action as endorsement of a religion?
How do you approach a freedom of expression question (minus prior restraints on speech)?
First, it must survive a facial attack for being vague, overly broad, or leaving an official w/ unfettered discretion.
If content-neutral: in a public forum, reasonable time/place/manner restraints, narrowly tailored for a significant gov’t interest (least restrictive means); in a non-public forum, must be viewpoint-neutral and rationally related to a legitimate gov’t interest.
If content-specific: gov’t may ban outright if unprotected (defamation, fighting words, commercially illegal or significantly misleading, obscenity, child pornography, incites unlawfulness); if protected, necessary to promote a compelling gov’t interest.
*Commercial speech that is not illegal/misleading must be narrowly tailored to directly advance a substantial gov’t interest.
When may a prior restraint on speech be constitutional?
If it unprotected speech or if it serves an important gov’t interest, and the regulation is not vague or overbroad, gives reasonable notice, is uniformly applied, and gives prompt judicial review w/ the burden on the censor.
