Con Law Flashcards
If a state or local regulation, on its face or in practice, is discriminatory…
the regulation may be upheld if the state or local government can establish that:
(i) an important local interest is being served, and
(ii) no other nondiscriminatory means are available to achieve that purpose.
market participant
A state may behave in a discriminatory fashion if it is acting as a market participant (buyer or seller), as opposed to a market regulator.
If the state is a market participant, it may favor local commerce or discriminate against nonresident commerce as could any private business.
Dormant Commerce Clause
Doctrine that limits the power of states to legislate in ways that impact interstate commerce.
If Congress has NOT enacted legislation in a particular area of interstate commerce, then the states are free to regulate, so long as the state or local action does NOT:
(i) discriminate against out-of-state commerce,
(ii) unduly burden interstate commerce, or
(iii) regulate extraterritorial (wholly out-of-state) activity.
Def when state law discriminates against out-of-state commerce
protects local economic interests at the expense of out-of-state competitors
Non-discrim law may still be struck down if
A state regulation that is not discriminatory may still be struck down as unconstitutional if it imposes an undue burden on interstate commerce.
Determining “Undue Burden” on IC
The courts will balance, case by case,
(1) the objective and purpose of the state law
(2) the burden on interstate commerce
(3) whether there are less restrictive alternatives.
State Action via Private Party
The Constitution generally protects against wrongful conduct by the government, not private parties. A private person’s conduct must constitute state action in order for these protections to apply.
State action
(1) a private person carries on activities that are traditionally performed exclusively by the state (primary elections or governing a “company town.”) OR
(2) state acting as joint venture with private party (encouraging, promoting)
government’s ability to regulate speech
depends on WHERE the speech takes place
Traditional Public Forum
One that is historically associated with expression, such as sidewalks, streets, and parks.
Government can reg if restrictions are:
(i) content-neutral as to both subject matter and viewpoint,
(ii) narrowly tailored to serve a significant governmental interest, and
(iii) leave open ample alternative channels for communication.
Additional restrictions, such as an absolute prohibition of a particular type of expression, will be upheld ONLY IF narrowly drawn to accomplish a compelling governmental interest.
Equal Protection Clause of the 14th Amendment
only to states and localities (5th A for fed gov)
Look to WHAT classification is to determine scrutiny
Rational Basis
Rationally related to a legitimate governmental interest, a test of minimal scrutiny. (presumed valid)
It is NOT required that there is actually a link between the means selected and a legitimate objective BUT the legislature must reasonably believe there is a link.
14th Amendment §5 Enabling Clause
Permits Congress to pass legislation to enforce the equal protection and due process rights but NOT to expand those rights or create new ones.
There must be a “CONGRUENCE and PROPORTIONALITY” between the (1) injury to be prevented or remedied and (2) means adopted to achieve that end.
** if no constitutional injury to prevent or remedy, the proposed law would be both incongruent and disproportionate.
Congress may override state government action that
infringes upon Fourteenth Amendment rights
Eleventh Amendment
prohibits the citizens of one state from suing another state in federal court re:
(1) money damages or
(2) equitable relief
Exceptions to 11th A
state waives its immunity under the Eleventh Amendment.
11th A: suing state official
May be ENJOINED from enforcing a state law that violates federal law if state official named as D in the federal court action
Dormant Commerce Clause Generally
S.Ct says Constitution’s grant to Congress re: Commerce Clause also limits right of state or local governments to adopt laws that regulate IC.
DCC: Discriminatory
State law that discriminates against IC is subject to STRICT SCRUTINY and is virtually per se unconstitutional.
DCC: Non-Discriminatory
A nondiscriminatory state law that imposes an “incidental” burden on IC will be unconstitutional ONLY IF:
Burdens on IC > substantially > benefits of state law
Per Se Taking
Occurs when:
(1) permanent physical occupation of the property by the government or a third party or
(2) when a regulation results in a permanent total loss of the property’s economic value
Regulatory Taking Factors
(i) economic impact of the regulation on the property owner,
(ii) extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding use of the property, and
(iii) character of the regulation, including:
(a) degree to which it will benefit society,
(b) how the regulation distributes the burdens and benefits among property owners, and
(c) whether the regulation violates any of the owner’s essential attributes of property ownership
exaction
(i) ESSENTIAL NEXUS between LEGITIMATE state interests and conditions imposed AND
(ii) ROUGH PROPORTIONALITY b/w burden imposed by conditions and the impact of proposed development.
Exaction: rough proportionality
government must make an individualized determination that the conditions are related both:
(1) in nature and
(2) in extent of the impact
Exaction: Essential Nexus
conditions substantially advance a legitimate state interest
