Con. Law Rule Language

Question 1

Commerce Clause Powers (CIA)

Answer 1

Through the Commerce Clause, Congress can regulate:
1.) the channels and
2.) instrumentalities of interstate commerce, persons, and things in interstate commerce, or
3.) anything that has a substantial effect on interstate commerce–meaning, it can regulate anything economic or anything noneconomic that “substantially affects” interstate commerce (even if it’s purely intrastate).

Question 2

Anti Commandeering Clause

Answer 2

Congress cannot “commandeer” states and force states to enforce federal laws. Congress will wither have to regulate directly (if within its commerce power) or regulate indirectly by threatening to take away funding if the state does not adopt a law (under Congress’s spending power).

Question 3

Dormant Commerce Clause
–Discriminatory Law
–Non discriminatory Law

Answer 3

“State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid as violations of the negative implications of the Commerce Clause.”

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

“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 interstate commerce”

Question 4

Market Participant Doctrine

Answer 4

This doctrine is an exception to the dormant commerce clause where a state is acting as a market participant or business rather than regulator. IF the state is acting as a market participant, it is allowed to favor its own residents.

Question 5

State action requirement. What constitutes “state action?”

Answer 5

If a plaintiff is suing under the 1, 14, or 15 amendment, the plaintiff needs to find a government actor or action “fairly attributable to the government.”

State action is present when a state passes a law, when a state permits its officials to take action, when a PRIVATE actor is performing a “traditional and exclusive” government function, or when private action is closely controlled by the state.

Question 6

Strict Scrutiny

Answer 6

The government must prove that the law is narrowly tailored (necessary) to achieve a compelling state interest.

Question 7

Intermediate Scrutiny

Answer 7

The government must prove the classification is substantially related to an important government interest.

Question 8

Rational Basis

Answer 8

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

Question 9

1A General Application Language

Answer 9

The 1A applies to the states through the DPC of the 14th Amendment.

Question 10

Unprotected Speech Standard

Answer 10

A law regulating protected speech needs to pass rational basis scrutiny.

Question 11

Categories of Unprotected Speech

Answer 11

1. Speech inciting immediate lawless or violent behavior
2. Fighting Words
3. True threats
4. Obscene Speech

Question 12

Speech Inciting Immediate Lawless or Violent Behavior

Answer 12

This is speech that is directed at inciting and likely to incite imminent lawlessness.

Question 13

Fighting words

Answer 13

Theis is speech likely to incite an immediate violent reaction

Question 14

True Threates

Answer 14

These are words that amount to defamation, harassment, and other forms of words as conduct

Question 15

Obscene speech

Answer 15

The test for obscenity examines whether the speech
1. appeals to a prurient interest in sex,
2. whether it depicts or describes sexual conduct in a patently prurient interest in sex,
3. whether it depicts or describes sexual conduct in a patently offensive way, and
4. whether it lacks serious literary, artistic, political, or scientific values (using a national standard).

Question 16

Three types of Forums where Speech Occurs

Answer 16

Public forum ( streets, sidewalks, parks)
Designated public forum (schools)
Non Public forum (airports, government workplaces)

Question 17

Standard for Speech Restrictions in Public and Designated Public Forums

Answer 17

The restriction must be content neutral, narrowly tailored to serve an important governmental interest, and leave open alternative channels of communication.

Question 18

Standard for Speech Restrictions in non public forums

Answer 18

Must be viewpoint neutral and reasonably related to a legitimate government interest

Question 19

Standard for speech restrictions in public schools

Answer 19

The regulations are reasonably related to legitimate pedagogical concerns.

Question 20

Eminent Domain definition and application

Answer 20

Neither the federal government nor the state may take private property for public use without just compensation. This arises from the 5th amendment and is applied to the states through the 14th amendment.

Question 21

11th Amendment

Answer 21

The 11A precludes a federal court from exercising jurisdiction over a suit by a private party seeking to recover damages form the state.

Question 22

Establishment Clause

Answer 22

“The Establishment Clause prohibits government sponsorship of
religion, meaning the government cannot aid or formally establish a
religion. Like the Free Exercise Clause, it compels the government to
pursue a course of neutrality toward religion.”

Question 23

Free Exercise Clause

Answer 23

“The Free Exercise Clause prohibits government from punishing
someone on the basis of their religious belief or related religious
status or conduct.”

Question 24

Two steps of determining a violation of the establishment clause

Answer 24

1. Is the government action NEUTRAL toward religion?
2. If not, is there a long standing history of the action being accepted, or would the Founding Fathers have found the government action to be acceptable?

If the answer to BOTH questions is no, then there has been a violation.

Question 25

Due Process

Answer 25

“Under the DPC of the 14th Amendment, the state must provide some fair process or procedure before it may deprive a person of life, liberty, or property.”

Question 26

Congress’s Spending power (language)

Answer 26

“Article I, Section 8 gives Congress the power to spend to provide for the common defense and general welfare.”

Question 27

Bicameralism

Answer 27

The enactment of laws by Congress requires passage of the law in both houses of Congress and approval of the law by the President (AKA “presentment requirement”).

Question 28

Privileges OR Immunities Clause

Answer 28

The Fourteenth Amendment Privileges OR Immunities Clause prohibits states from denying their citizens the privileges or immunities of national citizenship, including the right to interstate travel.

The right to travel includes the right of newly arrived citizens of a state to enjoy the same privileges and immunities as are enjoyed by other citizens of the state.

Question 29

Privileges AND Immunities Clause

Answer 29

Privileges AND Immunities Clause of Article IV prohibits discrimination against nonresidents.

Question 30

4 Requirements for a state imposed tax to be valid under the Commerce Clause (assuming there is no issue with preemption)

Answer 30

1. The Dax does not discriminate against interstate commerce;
2. there is a substantial nexus between the activity taxed and the taxing state;
3. the tax is fairly apportioned; and
4. the tax fairly relates to services or benefits provided by the state.

Question 31

Supremacy Clause

Answer 31

“The Supremacy Clause of Art. 6 provides that validity enacted federal laws supersede conflicting state and local laws.”

“The Supremacy Clause prohibits states from adopting laws that interfere with federal laws–even ones that seek to support the same interest as the federal scheme–when Congress has preempted the field.”

Question 32

Equal Protection Essay Language (Definition)

Answer 32

“The 14th Amendment EPC prohibits STATES and subsidiary state governments and entities from treating similarly situated people in a dissimilar manner without adequate justification.”

Question 33

The three elements of justiciability

Answer 33

1. Standing
2. Ripeness
3. Mootness

Question 34

Ripeness Elements (2)

Answer 34

1. The issues are fit for a judicial decision AND
2. The plaintiff would suffer substantial hardship in the absence of
   review

Question 35

Components of Standing (3) ICR

Answer 35

Standing has three major components:
1. injury,
2. causation, and
3. redressability

Question 36

3 requirements for the Government to make restrictions of speech in public forums.

Answer 36

Must Be:
1. Content neutral;
2. narrowly tailored to achieve a compelling state interest; and
3. must leave open alternative channels of communication clause.

Question 37

Exceptions to Mootness (3)

Answer 37

1. It is capable of repetition yet evading review;
2. The defendant voluntarily stops the conduct complained of (but is free to resume it)
3. Class actions (the representative can continue even though the representative’s case has been resolved).

Question 38

Three types of federal preemption: (FEF)

Answer 38

1. Federal Preemption: where a federal law and state law are inconsistent and it is impossible to comply with both.
2. Express Preemption: Where federal law expressly forbids state law.
3. Field preemption: where federal legislation in a given field is so comprehensive it appears as though Congress intended to preempt the entire field.