Con law MEE Rules

Question 1

What can Congress do under its commerce power?

Answer 1

Under its commerce power, Congress can regulate

Anything economic AND

Anything noneconomic that “substantially affects” interstate commerce.

Question 2

Congress’s power source and enforcement

Answer 2

Congress’s powers are limited to those given to it by the Constitution.

It has the power to enforce constitutional rights under its enforcement power found in the 13th, 14th, and 15th Amendments.

But it does not have power to expand rights.

Question 3

Commerce Clause

Answer 3

Congress has the power to regulate interstate commerce through:
1. Channels of interstate commerce
2. Instrumentalities of interstate commerce
3. Activities that have a SUBSTANTIAL EFFECT on interstate commerce.

Question 5

Dormant Commerce Clause

Answer 5

If Congress is silent, states may regulate commerce.

However, if a state regulation discriminates against interstate commerce, it is usually unconstitutional as it must undergo a strict scrutiny analysis.

If the regulation is NONDISCRIMINATORY ON ITS FACE, it undergoes a burden-benefit analysis and is more likely to be held constitutional.

Question 6

Exception for Dormant Commerce Clause

Answer 6

When the state is acting as a market participant
AND
when the law favors a government entity performing a traditional government activity

Rational Review

Question 7

Discrimination against Interstate Commerce

Answer 7

If a law discriminates against interstate commerce, it is invalid unless the state can show that the law was necessary to serve a compelling state interest and there is no reasonable nondiscriminatory alternative.

Strict Scrutiny

If a state law is NONDISCRIMINATORY on its face but it still burdens interstate commerce, it is valid only if it serves an IMPORTANT state interest and does not impose an unreasonable burden on interestate commerce.

Intermediate (Burden v. Benefit)

Question 8

Strict Scrutiny

Answer 8

The government must prove that the law is narrowly tailored or necessary to achieve a COMPELLING governmental interest.

The gov usually loses under a strict scrutiny standard.

Question 9

Equal Protection Clause

of the 14th Amendment

Answer 9

The Equal Protection Clause of the 14th Amendment prohibits the government from denying citizens equal protection of the laws.

When the government makes laws that classify people into groups, the constitutionality of the law will be evaluated according to the type of classification made.

Question 10

What does Strict Scrutiny Apply to in an EPC analysis?

Answer 10

FAR

• fundamental rights,
• racial or ethnic discrimination, and
• alienage.

Question 11

Intermediate Scrutiny

EPC analysis

Answer 11

The government must prove the law is SUBSTANTIALLY RELATED to an IMPORTANT government interest.

Applies to classifications of gender and illegitimacy.

Question 12

Rational Basis

EPC analysis

Answer 12

The PLAINTIFF must prove that the law is NOT rationally related to a legitimate government interest.

The plaintiff usually loses under rational basis

Applies to every other classification.

Question 13

Application of First Amendment

Answer 13

The First Amendment applies to government regulation of private speech

Question 14

Content-based speech restrictions

Answer 14

A content-based restriction seeks to forbid communication about certain ideas or content.

Content-based restrictions are usually subject to strict scrutiny.

Question 15

Content-neutral speech restrictions

Answer 15

Content-neutral restrictions do not seek to forbid the content of the speech and usually restricts the time, place, or manner that the speech may be expressed (see below).

Question 16

Public forum for speech

Answer 16

Public Forum
Places historically associated with expressive conduct.

Streets
Sidewalks
Parks

Question 17

Designated Public Forum

Answer 17

Forums the government chooses to open:

Schools

State fairgrounds

Question 18

Nonpublic Forum

Answer 18

A forum not historically associated with the free exchange of ideas.

• military bases
• school mailboxes
• advertising space sold on city buses
• airports
• government workplaces
• sidewalks on postal service property
• prisons

Question 19

Equal Protection

Answer 19

The Fourteenth Amendment provides that no state shall deny to any persons within its jurisdiction the equal protection of the laws.

Question 20

Free Speech

Answer 20

The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment.

Question 21

Eminent Domain

Answer 21

A restriction on takings arises from the Fifth Amendment and is applied to the states through the Fourteenth Amendment.

Question 22

Content-Neutral Regulation for Free Speech
Time, Place, and Manner Test

Answer 22

If a regulation is content-neutral, then the Court’s time, place, and manner test will be applied.

Under that tests, a speech regulation is constitutional if the government

is promoting a SUBSTANTIAL government interest and the

regulation is narrowly tailored to achieve that interest and
(the challenged law would achieve the government’s interests less effectively if it were less over- or under-inclusive, and the Court defers to the government’s judgment on this issue.)

leave ample alternative channels of communication.

Court has held that both aesthetic preservation and traffic safety are substantial government interests under the time, place, and manner test.

Question 23

Procedural Due Process

Answer 23

The Due Process Clause of the 14th and 5th Amendments guarantees that no person shall be denied life, liberty, or property without due process of law.

Thus, a fair process (notice and hearing) is required for a government agency to individually take a person’s life, liberty, or property.

Only intentional (not negligent) deprivation of those rights violates the Due Process Clause.

Property includes more than personal belongings and realty. A deprivation occurs if a person has a legitimate claim or entitlement that is not fulfilled.

Question 24

Substantive Due Process

Answer 24

A governmental regulation that infringes upon a fundamental right is subject to the strict scrutiny standard of review, while a governmental regulation that does not infringe upon a fundamental right is subject to the rational basis standard of review.

Question 25

Congress's Spending Power

Answer 25

Congress can condition federal funds to states and require states to implement certain regulations. Permitted as long as the condition is related to the purpose of the funds Condition must not be coercive Commandeering—states might claim that Congress is violating the 10th Amendment by forcing the state legislature to pass specific legislation A valid exercise of the Spending Power does not constitute commandeering

Question 26

Delegation of Legislative Power

Answer 26

Congress may delegate its powers to an agency as long as it provides reasonably intelligible standards

Question 27

Executive Power-Domestic Affairs

Answer 27

President has appointment and removal powers, the pardon power, the commander in chief power, and the duty to execute the law

Question 28

Executive Powers-Foreign Affairs

Answer 28

President has the power to conduct foreign negotiations, to deploy troops overseas, and to make executive agreements

Question 29

Privileges and Immunities Clause

Answer 29

Prohibits states from discriminating against nonresidents, unless it is necessary to achieve an important government interest. Only applies to INDIVIDUALS

Question 30

10th Amendment and Commandeering

Answer 30

All powers not expressly given to the federal government are reserved to the states. Federal government cannot “commandeer” state legislatures and force them to pass legislation. Exam Tip 2: This concept often arises with the Spending Power. The federal government can condition federal funds to persuade the state legislature. As long as it is a valid exercise of the Spending Power, it is not commandeering.

Question 31

Unduly Burdens interstate Commerce

Answer 31

If a statute is not discriminatory, the law may still be invalid if it causes an “undue burden” on interstate commerce. A court will balance: a) The purpose of the statute; b) The burden on interstate commerce; and c) Whether there are less restrictive alternatives

Question 32

Exaction

Answer 32

Local government may exact promises from a developer in exchange for construction permits. Does not constitute taking if there is: * An **essential nexus** between legitimate state interests and the conditions imposed. AND * A **rough proportionality** between the **burden on the owner** and the **impact on the community**.

Question 33

Compensation for a Taking

Answer 33

Property owner is entitled to the fair market value of the property at the time of the taking If only a portion has been taken—owner entitled to compensation for land actually taken and any loss in value of the land still owned

Question 34

Zoning and Variances | under 5th amendment

Answer 34

Local governments have the power to pass zoning ordinances, so long as they are reasonably related to a legitimate government purpose (health, safety, morals, and general welfare). Variance May be granted to allow the owner to continue the nonconforming use of the land The owner must show an undue burden if the variance is not granted Takings Clause Claim- Must show that the zoning ordinance amounts to a regulatory taking

Question 35

Substantive Due Process

Answer 35

Whether the government's action impermissibly infringes on an individual's rights. Fundamental rights (life, liberty, property, voting, travel, privacy) apply strict scrutiny Nonfundamental rights- apply rational basis review.

Question 36

EPC Discrimination requirement

Answer 36

Discriminatory intent—strict or intermediate scrutiny (depending on classification) Disparate impact (no discriminatory intent)—rational basis review

Question 37

Strict Scrutiny

Answer 37

Applies to any law involving classifications based on race, ethnicity, and national origin or a law that implicates fundamental rights The government must show it is: * The least restrictive means * To achieve a compelling government interest

Question 38

Intermediate Scrutiny | EPC

Answer 38

Applies to laws involving gender and non-marital children The government must show it is: Substantially related To an important government interest **Gender discrimination**—must also show an **“exceedingly persuasive justification”** (i.e., intermediate scrutiny with bite) Must also show that facilities are substantially equivalent

Question 39

ENABLING CLAUSE

Answer 39

Under the 14th Amendment, Section 5-- Congress may pass legislation to enforce equal protection due process rights (overriding state statutes)

Question 40

Symbolic Speech—Expressive Conduct

Answer 40

Regulation is valid if: 1) It furthers an important government interest; 2) The interest is unrelated to the suppression of ideas; and 3) The burden on speech is no greater than necessary

Question 41

Overbreadth

Answer 41

A statute regulates more speech than necessary to protect a compelling government interest

Question 42

Vagueness

Answer 42

A statute fails to provide a person of ordinary intelligence with fair notice of what is prohibited

Question 43

Prior Restraints

Answer 43

A prior restraint prohibits speech before it occurs. Must seek to avoid a particular harm Must have procedural safeguards in place *Standards must be narrowly drawn, reasonable, and definite*

Question 44

Right Not to Speak

Answer 44

Protected by the First Amendment Example 14: The Supreme Court has held that a child in a public school has the right to not recite the Pledge of Allegiance.

Question 45

Less-Protected Speech: Commercial Speech

Answer 45

Commercial speech may be prohibited if is false, misleading, or unlawful Protected commercial speech can only be regulated if: * The government interest is substantial; * The regulation directly advances the interest; and * The regulation is narrowly tailored

Question 46

Obscenity

Answer 46

the average person, applying contemporary community standards finds the speech: * Appeals to the **prurient interest**; * Depicts sexual conduct in a **patently offensive way**; and * **Lacks serious literary, artistic, political, or scientific value**

Question 47

Incitement to Violence

Answer 47

Advocates use of force or unlawful action if: * Directed to inciting or **producing imminent lawless action**; and * Is **likely** to incite or produce such action (i.e., creates a clear and present danger)

Question 48

Fighting Words

Answer 48

by their very nature, likely to incite an immediate breach of the peace

Question 49

Defamation

Answer 49

There are constitutional limitations on defamation actions when the plaintiff is a public official or public figure, or the speech involves a matter of public concern.

Question 50

Traditional Public Forum

Answer 50

Sidewalks, streets, parks Content-based regulations are subject to strict scrutiny. Content-neutral regulations are subject to the time, place, and manner test; must be: * Narrowly tailored; * To serve a significant government interest; and * Leave open ample alternative channels for communication

Question 51

Non-public Forum

Answer 51

Government can regulate content in a non-public forum, so long as it is viewpoint neutral

Question 52

Establishment Clause

Answer 52

Prohibits the government from establishing a religion, preferring a particular religion over another, or preferring religion over non-religion

Question 53

Free Exercise Clause-Belief

Answer 53

A person’s beliefs are absolutely protected. A person’s belief must be genuine.

Question 54

Free Exercise Clause

Question 55

Free Exercise Clause-Conduct

Answer 55

Laws that intentionally target religions conduct are subject to strict scrutiny. Laws that are generally applicable, but happen to impact religion, are subject to the rational basis test.