CON LAW Flashcards
Dormant Commerce Clause
If Congress has not enacted laws regarding the subject, a state may regulate local transactions that affect interstate commerce if the regulation does not discriminate against out of state residents and does not unduly burden interstate commerce.
Dormant Commerce Clause - Discriminatory Regulations
A regulation that discriminates against interstate commerce in order to protect local economic interests will not be upheld unless: 1) it furthers an important; 2) non-economic state interest (health/safety); and 3) there are no reasonable nondiscriminatory alternatives available.
Laws designed to protect against interstate competition; laws requiring local operations; and laws limiting access to instate products have been held to discriminate.
Dormant Commerce Clause - Market Participant Exception
A state may prefer its own citizens when it acts as a market participant (buying or selling products, hiring labor, giving subsidies).
Dormant Commerce Clause - Nondiscriminatory Regulations
Balancing Test
A nondiscriminatory law that burdens IC will be valid unless: 1) the burden on IC outweighs the state’s nondiscriminatory interest and 2) there are less restrictive means to achieve the state goals.
A nondiscriminatory law that does not burden IC is valid.
Privileges and Immunities Clause Art. IV
Prohibits a state from denying nonresidents the privileges and immunities that it affords its own residents with respect to civil liberties or ability to earn a livelihood. Discriminatory state law may be valid if: 1) the state has a substantial justification for the different treatment (nonresidents are a part of the problem the state is trying to solve) and 2) there are no less restrictive means.
- The clause does not protect aliens or corporations.
- Ex. requirement that private contractors on city projects employ a certain percentage of city residents substantially interferes with the right
Takings Clause
1) Taking
• Possessory Taking
• Regulatory Taking
• Partial Taking
2) Private Property - The Fifth Amendment is implicated here because P’s property is private property.
3) Public Use - The government’s exercise of its eminent domain power is valid so long as it is rationally related to a legitimate public purpose (health, welfare, safety, economic, aesthetic reasons).
4) Just Compensation - If the court determines there is a taking for public use, the government must pay just compensation. Just compensation is measured by the fair market value of the property at the time of the taking.
Per Se Taking
The 5th Amendment, applicable to the states through the 14th Amendment prohibits the government from taking private property for public use without just compensation.
There are two forms of per se takings:
1) Possessory Taking - occurs when the government confiscates or physically occupies the land.
2) Regulatory Taking - occurs when a government regulations permanently deprives an owner of ALL economic use of the property.
* Temporary denials of all economic use do not constitute a per se taking. The court will weigh all the relevant circumstances - 1) planner’s good faith, 2) reasonable expectations of the owners, 3) length of the delay, 4) the delay’s actual effect on the value of the property - to determine whether just compensation is required.
Partial Taking
Regulations that decrease the value of property do not constitute a taking if they leave an economically viable use for the property. Courts consider:
• Economic impact of the regulation on the property;
• whether the regulation substantially interferes with the owner’s reasonable investment backed expectations; and
• Government’s goals sought to be promoted (balance of burdens and benefits).
Procedural Due Process
Step 1: Is Process Due? - The 14th Amendment prohibits the government from denying life, liberty (deprivation of significant freedom - speech, religion, assoc.), or property (entitlement to a continued receipt of a government benefit) without due process of law.
The deprivation must be intentional (at least reckless) and afford no remedy.
Step 2: (Balancing Test)- To determine what process is due, the court will consider : 1) the importance of the interest to the individual; 2) probative value of additional safeguards; and 3) state’s interest
DP requires at least the opportunity to present objections to the proposed government action to a fair and neutral decision maker.
Substantive Due Process
All people have fundamental rights. The Due Process clause prohibits states from hindering a person’s fundamental rights without due process of law.
Equal Protection
EP Clause provides that all persons are entitled to equal protection of the laws. EP arises when the government treats similarly situated individuals differently based on a classification of individuals.
EP - Classification
The level of scrutiny applied differs based on the classfication. Suspect Classifications based on (RAN) Race, Alienage, or National origin receive strict scrutiny. Quasi-Suspect Classfications based on (LEG) Legitimacy, Education for undocumented children, or Gender receive intermediate scrutiny. All other classifications (WADES - Wealth, Age, Disability, Economic regulations, or Sexual orientation) receive rational basis review.
EP - Discriminatory Intent
In order for strict or intermediate scrutiny to apply, there must be intent by the government to discriminate. Intent may be shown by: 1) a law that is discriminatory on its face; 2) discriminatory application of a facially neutral law (discriminatory impact alone is insufficient); or 3) discriminatory motive behind the law (evidence of a history of discrimination).
EP - Standard of Review
Suspect class - If discrimination involves a suspect classification, strict scrutiny applies (same test under SDP).
Fundamental Right - A regulation that does not classify, but burdens a fundamental right is subject to strict scrutiny. Rights deemed fundamental under the EP clause are right to privacy, 1st Amendment rights, right to vote, and right to interstate travel.
Quasi-suspect class - If discrimination involves a QSC, intermediate scrutiny is applied where the government must prove that the law is substantially related to an important government interest.
- When the discrimination is based on gender, the SC has found that the government must show an exceedingly persuasive justification, not rely on broad generalizations about gender.
Other classifications - in all other cases, the law will be upheld unless the challenger can prove that the law is not rationally related to a legitimate government interest.
Facial Attacks - Prior Restraint
A prior restraint is a law that restricts speech before it occurs. The state must show that a special societal harm would result otherwise. To be valid, the system of prior restraint must provide the following safeguards:
- Standards must be narrowly drawn, reasonable, and definite;
- Injunction must be promptly sought; and
- Prompt and final determination as to the validity of the restraint.
