Con Law Flashcards
Anti Commandeering Principle
Fed gov. cannot force state legislatures to act against their will.
ex: Congress passes act, requiring every state to enact legislation prohibiting employment discrimination. Unconstitutional
(but gov can spend $20 mill in funds to bribe)
Timing of Due Process hearings - sometimes, a hearing must occur BEFORE deprived of property
Pre-deprivation hearing – Welfare Benefits,
Non-emergency revocations of Driver’s License
sometimes, hearing can occur AFTER the action (takes away), so long as hearing is PROMPT and FAIR
terminating disability benefits, disciplinary suspensions from public secondary school
Alienage - standard of review
strict scrutiny -
*2 huge exceptions - discrimination allowed if by…
1) Federal gov., bc Congress has plenary power over citizenship, immigration, and naturalization -
Rule: federal classifications based on US citizenship will be upheld, unless arbitrary & unreasonable
or
2) state and local participation in gov. functions - non-US citizens can be barred from these jobs - ie gov functions, voting, serving on a jury, woking any kind of gore law enforcement position (parol officers) or as public school teachers
Unprotected Speech Categories
cold old igloos don’t freeze
commercial, obscene, incites violence, defamation, fighting words
There are many powers of Congress, but the 3 big ones for the bar are: Taxing, Spending, and Commerce
i) pick taxing power when the law involves a tax
ii) pick the spending power whenever fed. money is spent or disbursed (expenditure/appropriation)
iii) When in doubt pick the commerce power
ex: fed law that states that every state receives fed highway funds has to limit its speed to 65 mph – strongest argument that congress has power is? taxing and spending clause
- but if law simply caps the highway speed at 65 w/o saying anything about federal highway funds Commerce
Which protects corporations? Priv and Immunities Clause or Dormant Commerce Clause?
Dormant commerce clause - protects out of state individuals, as well out of state businesses form serious discrimination (serious discrimination typically involves public employment)
Non-serious discrimination: states can discriminate with regards to..
states abasing out of state individuals if recreational opportunities, such as hunting licenses or state park access
Discrimination of an out of state individual is considered serious, if state discriminates…
Serious discrimination by states typically involves private EMPLOYMENT
Rule: There can be no legal reqt of residency for private employment. States cannot require that you live or reside in the state to work in the state.
Ex of violations of resid reqs: admission to the bar; other occupational licenses, law that requires all cab drivers to live in the city – not valid
2.However, PUBLIC employment CAN require residency reqs
oEx of public employment: a city hiring only city resid or req. a certain % of city Rez on city construction–but NOT ALL
Dormant Commerce Clause
Rule: In absence of federal regulation, state regulation of commerce is valid, so long as:
1.No discrimination against out-of state interests
ex include: forbidding sale of only-out-of state products
otaxing out of state products at a higher rate
orequiring that manufacturing be performed in-state
♣ex: state law said that metal in that state must be processed in the state (ie refined) before it could be shipped out of state.
-state law is unconstitutional bc disc against out of state metal refiners
♣law limiting landfills to in state garbage is unconstitutional bc it discrm against out of state gargabe
- State reg. does not unduly burden interstate commerce; and
oNon-discriminatory state reg of commerce almost always upheld
oOnly when it is so outrageously costly relative to the benefits of the reg is a non-discriminatory state reg struck down as undue burden on interstate comm
obalancing test, but non-discriminatory regulations are rarely ever struck down
- State reg does not apply to wholly extraterritorial activity
oA state may not reg conduct occurring wholly beyond its borders
oEx: Connecticiut tried to legislate that beer sold in Connecticut could not be sold at a price diff from the price of beer sold in other states
Exceptions to no discrimination by states against out of state corp/ind
State as Market Participant: when state is buying or selling goods/services, it can choose to deal w only in-state persons
oEx: sale of cement produced by state-owned plant only to instate purchasers
oGarbage stored in state-owned landfill limited to in-state garbage; law requiring 5% of local workforce on state-financed construction products
Subsidies: A state can always choose to subsidize only its own citizens (for ex: welfare benefits or in state college tuition)
Federal Approval: if Congress consents that’s fine, even if it discriminates against out-of-state intersts
P has sued D in a court of the state in which both parties reside. P alleges only a cause of action arising under a federal statute, although state law provides a similar cause of action. The federal statute provides that claims under the statute can be brought in any court of competent jdx.
The statute has not yet been interpreted by any federal court.
Should the state court hear the case?
Yes, because state courts may not discriminate against cases arising under federal law.
State courts have broad jdx, including the power to hear cases involving federal causes of action. Furthermore, a state court may not discriminate against a case solely because it arises under federal law.
*State courts may hear cases involving federal claims even if a federal court has not decided the issue.
What is a Taking & protected by which Amend.?
5th Amendment - Takings Clause - applicacable to the states thru the 14th
prohibit’s the government’s (1) taking (2) private land (3) for public use (4) without just compensation.
Total Taking
per se taking - gov (1) permanently physically intrudes on the prop, or (2) deprives owner of all economic value, requiring land to be left in natural state.
Partial Taking
Regulation of property does not req just compensation.
Diff b/w a Taking & Reg depends on degree of gov interference.
Cxts use Balancing Test to determine whether Reg considered Taking:
(1) Economic Impact of Reg on Prop Owner (2) Reg Interferes w/ Reasonable, Investment-Backed Expectations (3) Character of Regulation
