CONLAW Flashcards
Commerce Clause
Congress has the power to regulate (a) the channels and (b) instrumentalities of interstate commerce as well as (c) any activity that substantial affects interstate commerce.
For economic/commercial activity, the effect is aggregated; for non-economic activity, it is not.
Dormant Commerce Clause/Negative implication of Commerce Clause
Where Congress has not legislated, a state may take action that:
- is nondiscriminatory
- does not unduly burden interstate commerce; and
- does not regulate wholly out of state activity.
On discrimination (1):
a) facially discriminatory action must be necessary to an important state interest and no other nondiscriminatory means available;
b) facially neutral action, incidental burden on interstate commerce must not be clearly excessive in light of the putative local benefit.
Equal Protection Clause
(applicable to states via 14th and fed govt via the 5th)
The EPC prohibits government from denying individuals equal protection of the law.
Constitutionality is based on the classification:
- suspect class (race, ethnicity, national origin & alienage (state only)) - strict scrutiny means least restrictive means to achieve compelling government aim.
- quasi-suspect class (sex, nonmarital child status) - intermediate scrutiny means action substantially related to an important government interest
- everything else (age, sexuality, etc) - challenger must show no rational relation to a legitimate government interest.
Free Speech – First Amendment
(applicable to states via 14th)
Protects from government interference in free speech and expressive conduct. Treatment depends on whether it is:
- Content-based restriction
- viewpoint based restriction
- time place manner restriction
Free speech - Content Based Restriction
strict scrutiny unless
- symbolic speech (flag burning/nudity) - regulation must be narrowly tailored to an important governmental interest that is unrelated to supression of speech
- unprotected type (fighting words, incitement to violance, defamation obscenity)
-
less protected type (3):
- commercial speech - four-part test: (i) concern lawful activity, not false nor misleading; (ii) substantial government interest; (iii) the regulation must directly advance the asserted interest; and (iv) the regulation must be narrowly tailored to serve that interest.
- public school speech - regulations must be reasonably related to legitimate pedagogical concerns
- indecent/secual speech - regulation must serve a substantial government interest and leave open alternative channels of communications
Free speech - Viewpoint based restriction
Unconstitutional
Free speech - time place manner restrictions
Constitutionality depends on location:
- public forum - traditional (eg sidewalks) and designated (eg classroom after hours) - restrictions must be (a) content neutral (both subject and viewpoint neutral); (b) narrowly tailored to serve a significant government interest; and (c) leave open alternative channels
- nonpublic forum (eg govt offices, jails) - restrictions must be viewpoint neutral and reasonably related to a legitimate government interest
Religion - Establishment Clause
- Regulation must be neutral.
- Government must have a secular legislative purpose;
- primary effect must not be to advance or inhitbit
- must not foster excessive government entanglement,
Religion - Free exercise clause
Genuine beliefs are absolutely protected but conduct is not.
Neutral state laws of general applicability that have the incidental effect of interfering with one’s ability to engage in religious practices are subject only to the rational basis test
Due Process (5th Amendment; APplies to states via 14th)
Government shall not deprive a citizen of equal protection of the laws. Two types: procedural and substantive.
procedural DP - govt can’t intentionally deprive life, liberty, or property (incl. public education and public employment) without notice and opportunity to be heard
substantive DP - laws should be reasonable and not arbitrary. Governmental action that infringes upon a:
(a) fundamental right is generally subject to strict scrutiny (govt must shaw law is necessary for a compelling interest). Fundamental rights:
- privacy - (McSofa - Marriage, Contraception, Sexuality, Obscenity at home, Family relations, Abortion)
- right to vote
- interstate travel
- refuse medical treatment
(b) everything else is subject to rational basis for (plaintiff must show law is not rationally related to legitimate govt interest). Education is not a fundamental right!
Takings (5th amendment, applies to states via 14th)
government may not take private property without just compensation (may seize pfor its own direct use, or to transfer the property to another private party).
Such a seizure is permissible if it is rationally related to a conceivable public purpose and just compensation is provided.
Taking can be physical or regulatory (regulation deprives one of all economic value or unconstitutional exaction)
Standing
requirements:
- injury in fact
- causation
- redressability
- Case ripe & not moot
- Not seeking an advisory opinion
- organizational standing - at least one member has standing and action related to org’s purpose.
Sovereign Immunity (11th amendment)
The eleventh amendment is a jurisdictional bar that prevents suit for money damages or injunctive relief against a state unless:
(1) the state consents
(2) Congress has expressly authorised in exercise of its enforcement powers of the 13/14/15th amendments or
(3) state official is sued for injunctive relief only in respect of their professional duties; or
(4) state official is sued solely in their personal capacity and will pay damages personally.
Supremacy Clause
Federal law is supreme law of the land.
States may not pass laws:
- that conflict with federal law
- that interfere with a federal objective
- in areas where COngress has intended to “occupy the field”
Federal immunity
A state cannot regulate or tax the federal govt (eg fed does not need to comply with state environmental regulation)
Can tax federal employees on the same basis as everyone else
