Constitutional Law Flashcards
Congress has the Power to Regulate Interstate Commerce
Congress can regulate: 1. The channels and instrumentalities of interstate commerce, 2. Persons and things in interstate commerce, and 3. Anything that has a “substantial effect” on interstate commerce = anything economic or noneconomic that “substantially affects” interstate commerce (even if purely intrastate)
Commandeering Principle
Congress cannot commandeer and force states to enforce federal laws. Congress must either 1. regulate directly (if within commerce power) or 2. regulate indirectly by threatening to take away funding if the state does not adopt a law (under Congress’s spending Power).
Dormant Commerce Clause
States cannot discriminate against interstate commerce or unreasonably burden it. State/Local Law regulating IC is invalid if: - Discriminates against out of state competition, or - Unduly burdens interstate commerce, or - Regulates wholly out of state activity. Exceptions: TGIF, Napping is my Plan, Cya; State law burdening interstate commerce is valid if: - if law involves performance of Traditional Government Functions - It is Necessary to an compelling/important state interest, - State is acting as a Market Participant, or - Congress has unmistakably granted permission
Exception to DCC
TGiF, Napping is My Plan, Cya - Law involves a traditional government function, - Necessary to serve a compelling/important state interest - State is acting as a Market Participant - Congress has unmistakably granted permission *Market Participant Doctrine - i.e. the state is acting as a market ppt or business rather than a regulator. In this case, the state is allowed to favor its own residents.
Congress’s powers are limited to those given to it by the Constitution. - STIL I SIPP (WEBACCC) Whisky Everyday Because Always Cry Can’t Comfort
Spending Taxing Investigatory Legislative Speech & Debate Immigration Property Postal War & Defense Eminent Domain Bankruptcy Admiralty Commerce Copyright Civil Warn Amdts Note: Highly Tested = 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 the power to expand rights.
1st, 14th & 15th Amendments all require what?
State Action. General Rule: If a plaintiff is suing under 1,14,15, the plaintiff needs to find a *government actor* or action “fairly attributable to the govt”. (one cannot sue a business or private individual for, say, violating one’s free speech rights under the First Amd.)
When is State Action Present? P, P, PEG
State Action is present when: 1. a state passes a law, 2. a state permits its officials to take action, 3. a private actor is performing a *traditional and exclusive* govt function (conducting elections/running a company town), or 4. private action is closely controlled by the state.
Equal Protection Standards
SS: The *govt* must prove that the law is *narrowly tailored (necessary)* to achieve a compelling interest. - this applies to fundamental rights, racial/ethnic discrimination, & alienage when classification made by state. IS: The*govt* must prove that the classification is *substantially related* to an *important govt interst*. – applies to gender and illegitimacy. RB: The *plaintiff* must prove that the law is *not rationally related* to a *legitimate* government interest. Applies to everything else (poverty, wealth, age, education)
Freedom of Speech - Opening Statement
The First Amendment applies to the states through the Due Process Clause of the 14th Amendment *There must be a govt regulation of private speech*
Freedom of Speech - Standard
Strict Scrutiny: SS means that the government must show that the regulation is *necessary* to serve a *compelling state interest* and is *narrowly tailored* to that end. The govt faces SS if it engages in content-based discrimination (forbidding communication about certain ideas) or viewpoint-based discrimination (forbidding communication about a certain viewpoint)
Symbolic Speech
A law which regulates conduct and places an incidental burden on speech is constitutional if the regulation is *narrowly tailored* to an *important governmental interest* and is unrelated to the suppression of the speech. Ex: Burning US flag & Cross is protected unless intended to threaten. Public nudity not protected.
Unprotected Speech - FIDO
A law regulating unprotected speech needs to pass *rational basis* scrutiny. The following are not protected under the first: FIDO 1. *Fighting words*: those likely to incite immediate violent reaction 2. Speech inciting immediate lawless or violent behavior (“clear and present danger”): speech that is *directed at inciting and likely to incite imminent lawlessness. 3. *True threats or words as conduct*: defamation, harassment, and other forms of “words as conduct”. 4. *Obscene Speech*: Test - whether speech appeals to a prurient interest in sex, whether it depicts or describes sexual conduct in a patently offensive way, and whether it lacks serious literary, artistic, political or scientific value. | PeePee Art
Speech in Public Schools
Speech in public School: May be regulated so long as the regulations are reasonably related to legitimate pedagogical (educational) concerns.
Lesser protected categories of Speech: Commercial Speech | LSAN
Commercial Speech: Central Hudson Test - The speech must 1) be lawful and not misleading, 2) the statute must serve a substantial govt interest, 3) the statute must directly advance that interest, and 4) be narrowly tailored.
Lesser protected categories of Speech: Time place or manner restriction Public CNA vs. Nonpublic Forum VR
A restriction in a public forum (one historically associated w/ free speech rights - sidewalk, street, park) or a designated public form (school for after school activities) must be *content neutral, narrowly tailored* to serve an *important govt interest*, and leave open *alternative channels of communication*. A restriction in a non public forum (airport, govt workplace), must be *viewpoint neutral* and *reasonably related to a legitimate governmental interest*.
