ConLaw Flashcards
What is the 13th Amendment and what does it do?
Pursuant to the Thirteenth Amendment, Congress has the power to adopt legislation rationally related to eliminating the “badges or incidents” of slavery.
This allows Congress to regulate private and government action, including racial discrimination!
What’s the difference between the EPC and 13th Amendment for the purposes of racial discrimination?
EPC: Private discrimination is allowed, and can only sue under EPC if there is state action.
13th: Private discrimination is not allowed, with Congress specifically controlling private conduct.
What is the Takings Clause and how is it incorporated to the states?
A taking without just compensation violates the Takings Clause.
The Due Process Clause of the Fourteenth Amendment has incorporated the Takings Clause of the Fifth Amendment, thereby making it applicable to the states and their subdivisions.
For the purposes of a physical taking, does granting the public a permanent easement count?
Yes!
When do state an municipal zoning laws survive challenges under the Takings Clause?
EX: Having certain requirements to permits?
1) Legitimate Government Interest
2) Does not deny owner the economically viable use of the land
These are regulatory takings!
What is the ripeness doctrine?
A federal court will not consider a claim before it has fully developed.
I.E. If a party has failed to actually be harmed, or has failed to take reasonable and available steps to avoid harm, the claim is premature.
Is seeking a declaratory judgment as a form of relief violate the case or controversy requirement?
No
What procedural due process procedures are required for a public employee who is discharged only for cause?
All that is required is a prompt post-termination hearing.
Pre-termination hearing is NOT required, especially in light of the justification for immediate discharge.
What is “commandeering” and is it allowed?
Under the 10th Amendment, Congress or the federal government CANNOT force states to enact laws against their will. (AKA Commandeering!)
However, through the Spending Power the federal government and “encourage” by promising or withholding federal funds.
For the purposes of the 1st Amendment, is the opening of private property to the public convert it into a public or limited public forum?
No!
I.E. A mall is not a public forum!
May a state constitution expand individuals rights granted by the US Constitution?
Yes! Although they cannot contract/limit them.
Does Congress have a federal police power?
No! This is reserved only for the states.
TIP: In what instances may an answer that includes the Necessary and Proper Clause be correct?
Look for when it is being used in conjunction with another enumerated power!
For example, look to see whether legislation could be necessary and proper to execute Congress’s spending power!
When may residency restrictions infringe on the fundamental right to interstate trave?
Although reasonable residency restrictions may be imposed to obtain governmental benefits, durational requirements that deny basic necessities of life to newcomers of the state violate the fundamental right to travel.
May Congress abrogate (cut short) a state’s immunity, and therefore allow private actions for damages against a state?
If so, when?
Generally, no!
EXECPTIONS
1) Legislation regarding civil rights re: 13th, 14th, and 15th Amendment
2) Acting pursuant to Bankruptcy Clause
3) State consents
This is when abrogating is allowed.
What does the Dormant Commerce do?
It limits states from impacting interstate commerce. Only commercial activities. Includes:
1) Discriminates against out of state commerce
2) Unduly burden instate commerce
3) Purposefully regulates extraterritorial activity.
What are the exceptions to laws that could violate the Dormant Commerce Clause?
1) Legitimate state/local interest, where no reasonable alternatives are available
2) State themselves are participating in the market the law affects
What is the Contracts Clause?
Prevents state legislative actions from enacting laws that RETROACTIVELY impair contractual rights.
In contrast, there is no Contracts Clause violation by limiting or impairing people or corporations from entering into new contracts.
Does the Contracts Clause apply to the federal government?
No!
Do the Privileges and Immunities Clause (either Article IV or the 14th Amendment) apply to corporations?
No!
What does the Privileges and Immunities Clause of Article VI prevent?
Prevents states from performing economic discrimination from out-of-staters. This includes:
1) Infringing on exercise of fundamental right
2) Engagement in essential activity (earning a living), absent substantial justification.
Is it regulating someone’s business and ability to make money? Or something recreational?
What may a prior restraint on speech be upheld?
1) Speech that represents clear and present danger of imminent lawless action (incitement of violence)
2) During wartime and national security crisis to protect imminent and irreparable harm
After Congress properly delegates it’s authority to an agency, what is required for it to make decisions affecting or relating to the agency’s authority?
Legislative power must be backed with:
1) Bicameralism (Both houses of Congress agree)
2) Presentment (given to President)
Otherwise, it is a legislative veto, which is impermissible.
May Congress allow Congress to override state laws concerning federal elections?
Yes, under Article I Section 4! This does not count as commandeering.
What are the fundamental rights?
1) Right to Travel
2) Right to Vote
3) Right to Privacy, which includes:
- Marriage
- Sexual Relations
- Controlling Child Upbringing
- Families living Together
- Contraception (maybe not anymore…)
All subject to strict scrutiny!
Under the 1st Amendment, may a city ban all adult entertainment, without limitations?
No! Even if it has legitimate reasons for the ban, or even if other neighbor cities allow such establishes.
City can still reasonably regulate. But stay away from blanket bans!
What is the test for determining whether the constitutionality for **commercial speech regulations?
1) Commercial speech must be lawful, not false or misleading
2) Asserted government interest must be **substantial
3) Regulation must directly advance interest
4) Regulation must be narrowly tailored
When may the state regulate content-based regulation?
Strict scrutiny!
1) Compelling Interest
2) Necessary to achieve interest
3) Narrowly tailored
Includes messages on a billboard!
When are the few times content based regulations are constitutional?
1) Obscenity
2) Subversive Speech
3) Fighting Words imminent breach of peace)
4) Defamation
5) Commercial Speech
What is the state action doctrine?
Occurs when a private actor is considered a government actor, and therefore bound by the constitution.
1) Private actor performs a traditional and exclusive government function
OR
2) Government is significantly involved in private actor’s activities.
Is a one-time grant by the government enough to convert private action to state action?
No! No matter how substantial.
When may the government limit the time, place and manner of speech in a public forum?
If it passes intermediate scrutiny!
1) Limitation is narrowly tailored
2) To achieve a substantial government interest
3) With ample and alternative avenues of communication
What is a direct tax and what is required for it to be constitutional?
A direct tax is a tax on a person or property.
Requirements:
1) Apportioned evenly among states where the tax is enforced
2) Reasonably related to raising revenue
