Con law Flashcards
Standard for constitutionality of a tax passed by Congress
1) Bears some reasonable relationship to revenue production; OR
2) Congress has power to regulate the taxed activity
Congress may spend:
For any public purpose, pursuant to General Welfare Clause
When is a state tax on companies engaged in interstate commerce valid under the Commerce Clause?
A state “doing business” tax is valid as long as it does not discriminate against nonresidents or unduly burden interstate commerce
–> states can’t use tax to help in-state businesses
A state tax will be valid if:
ii) Activity taxed has a substantial nexus to the taxing state
iii) Tax must be fairly apportioned (based on the extent of taxable activity/property in the state)
iv) tax fairly relates to services or benefits provided by the state
What is the Import-Export Clause?
Authority of a STATE to tax foreign commerce on imported or exported goods
What can the court consider in determining whether one can claim protection for their religious beliefs under the Free Exercise Clause?
- only the sincerity of their beliefs
Court CANNOT consider:
- the truth of the beliefs
- whether the religion is “established” or traditional”
- whether religion is derived from a supreme being
Can one claim an exemption from a law because it imposes a burden on his religious practice?
No - if the statute is a neutral law that incidentally burdens one’s religious practice, and the law is constitutionally applied to everyone else.
*State does NOT have to establish a substantial and important interest or lack of alternative means if the law is neutral – the law will apply to this individual.
If a law has a preference for one religious sect over another, is the law unconstitutional? Which 1st Amendment clause?
Strict Scrutiny – Law is invalid under the Establishment Clause unless it is necessary to promote a compelling interest
If a law/program does not have a religious sect preference but involves religion in some way, what standard to review constitutionality?
Lemon test - To be upheld under Establishment Clause:
i) primary purpose of the law is secular
ii) its primary effect neither advances nor inhibits religion; and
iii) it does not produce excessive government entanglement with religion
– to invalidate a law under Establishment Clause, would argue that one of these 3 requirements is not met, so this is a law respecting the establishment of religion
When will SCOTUS decline certiorari to review a case that is decided on both state and federal issues?
Only if the case has an independent state ground to decide the case, and the state ground is adequate BY ITSELF to support the decision – so that SCOTUS’s review of the federal ground would have NO effect on the outcome of the case
Can Congress put conditions on giving grants to states? What is the standard?
Congress may condition grants as long as the conditions are:
- clearly stated
- related to the purpose of the program
- not unduly coercive
How does Congress have the power to legislate under the 13th Amendment?
The Enabling Clause of 13th A. gives Congress the power to proscribe almost any private racially discriminatory action that can be characterized as a badge or incident of slavery
Remember that 14th A (EP clause) only applies to state action!
What must the state show to have a valid durational residency requirement for dispensing benefits?
Strict scrutiny because it limits the fundamental right to travel, which includes being treated equally if they become residents of a state.
– the requirement must be tailored to promote a compelling interest (definitely NOT rational basis)
Examples:
- one year waiting period to receive welfare payments = INVALID
- one year waiting period to get state-subsidized medical care = invalid
- one year waiting period to get divorce = valid
- 30 day residency requirement to vote in state elections = valid
What is the standard for durational residency requirements for free education?
Only rational basis review because education is not a fundamental right
Can a state discriminate against aliens?
No, not without a compelling state interest
Areas where SCOTUS has upheld discrim against aliens: voting, jury duty, elective office, police officers, primary & secondary school teachers (rational basis applies)
When is a regulation of speech in a limited public form or nonpublic forum constitutional under the 1st A?
As long as regulation is:
- viewpoint neutral; and
- reasonably related to the purpose served by the property & not designed merely to suppress a particular point of view
Regulation CAN be based on the subject matter (content) of the speech
Clear and present danger test
Govt CAN regulate and punish speech if:
i) it is directed to producing or inciting imminent lawless action; and
ii) there is a substantial likelihood of imminent illegal activity
- -> if so, then the state can restrict and punish such speech
What is the standard for upholding state statute regulating foreign commerce?
ALWAYS INVALID!
Congress has EXCLUSIVE power over foreign commerce
– State CANNOT restrict or burden goods in the stream of foreign commerce
A state may regulate local aspects of interstate commerce if the law…
Under Commerce Clause -
1) must not discriminate against interstate commerce (i.e., favors in-state businesses or discriminates against nonstate residents) - unless it is necessary to achieve an important govt purpose
and
2) must not unduly burden interstate commerce – balancing test: the benefits produced by the state legislation must outweigh the incidental burden on interstate commerce
Two exceptions:
- Congressional approval of discrimination
- Market participant exception
Free Exercise Clause vs. Establishment Clause
Establishment Clause: Does the statute/program impermissibly advance religion?
Can Congress pass a statute limiting federal courts’ ability to hear a case?
Yes - Congress is explicitly authorized to restrict the jurisdiction of the federal courts under Article III
Can Congress pass legislation defining certain conduct as a violation of rights protected under the 14th Amendment?
No - Congress can only enact laws to prevent or remedy violations of rights already recognized by the courts
- Only the courts have authority to define the scope of rights protected
- Congress cannot interfere with judicial remedies
Spending power
- Tax and spend for the general welfare
- can put conditions on receiving grants
- Congress can indirectly regulate where it cannot directly legislate
Argument: “statute is an undue burden upon interstate commerce” - what does this apply to?
Test for validity of STATE regulation of interstate commerce
Congress’s commerce power - which test do you use to determine whether activity has a “substantial effect” on interstate commerce?
Commercial (economic) activity - may be regulated if there is a conceivable rational basis that the activity in aggregate substantially affects interstate commerce
Non-commercial activity – govt must show a factual finding that this non-economic activity has a substantial economic effect on interstate commerce
Supremacy clause
a) Supercession – a fed law will supercede an inconsistent state law, but in certain areas, state can give greater protection than required by federal law
b) Preemption – a fed law will preempt a state law where Congress fully intends to occupy the field
- - Implied preemption will be found where:
i) it was the intent of Congress to occupy the entire field (legislative history)
ii) state law directly conflicts w. the federal law; OR
iii) state law interferes/prevents achievement of federal objectives
- If a federal law is comprehensive and Congress created an agency to oversee the field, preemption will often be found.
- Ex. federal regulation of advertising for health + safety has nothing to do with state’s regulatory interest in preventing fraudulent advertising = no preemption.
What must ∏ show to have standing?
To assert standing, the ∏ must establish a concrete personal stake in the outcome. To do that, plaintiff must establish: injury in fact and causation (or redressability), meaning that relief sought would eliminate the harm alleged
Does a person have standing to challenge the validity of a statute if she has not yet been prosecuted for it?
Yes - there is injury in fact if there is a clear threat of prosecution if she fails to comply with the statute
– she does not need to violate it and await prosecution before seeking relief (e.g., seeking injunction against state officials to not enforce the statute)
When can a plaintiff assert third-party rights?
i) Close relationship btwn ∏ and 3rd party’s rights
ii) Special need to adjudicate
– i.e., ∏ has suffered injury and that injury adversely affects her relationship with third parties, resulting in an indirect violation of their rights
