Constitutional Law

Question 1

State Immunity From Federal Law (10th Amendment)

Answer 1

• All powers not granted to the Fed Govt. are reserved to the States (unless prohibited by the Constitution).
• Congress CANNOT compel a State Govt. to implement legislation.
  
  • BUT, Congress MAY induce state govt. action by attaching restrictions and conditions on federal funding pursuant to its spending power.
• Fed. govt. cannot commandeer state officials to carry out federal law (e.g. to carry out fed program)
• 10th Amendment does not bar enforcement of a regulation that applies to the state as well as to private sectors.

Question 2

Congress Spending Power (GR3C)

Answer 2

• Congress has the power to spend for the common defense and general welfare.
• Congress MAY attach restrictions or conditions on States receiving federal funds, BUT must satisfy the following(GR3C):
  
  1. Spending must be for the general welfare;
  2. Condition must be clearly stated;
  3. Condition must be related to the purpose of the program;
  4. Condition cannot induce unconstitutional activity; AND
  5. Condition cannot be so coercive as to turn pressure into compulsion. (is subjective to each state. e.g. how much % of state funds is provided by the fed funding)

Question 3

State Sovereign Immnuity (11th Amendment)(WIMP)

Answer 3

• 11th Amend. prohibits a party from suing a state (or state agency) in Federal Court UNLESS (WIMP):
  
  1. State explicitly consents to waive protection;
  2. Lawsuit pertains to federal laws adopted under Section 5 of the 14th Amendment (due process/equal protection);
  3. Lawsuit seeks only injunctive relief against a state official; OR
  4. Lawsuit seeks money damages from a state official.
• 11th Amend. DOES NOT apply to:
  
  1. Local governments;
  2. A federal lawsuit by a state against another state; OR
  3. A lawsuit by the federal govt. against a state.

Question 4

Commerce Clause (PEC)

Answer 4

• Under the commerce clause, Congress can regulate (PEC):
  
  1. Channels of interstate commerce (highways, phone lines);
  2. People and instrumentalities of interstate commerce (cars, airplanes, pilots);
  3. Economic/commercial activity that has a substantial effect on interstate commerce.
• Federal regulations regarding intrastate commerce will be upheld when (1) there is a rational basis, (2) to conclude that the cumulative impact (aggregation), (3) has a substantial effect on interstate commerce.
  
  • Aggregation CANNOT be used when the activity is not commercial/economic in nature.

Question 5

Dormant Commerce Clause (Negative Commerce Clause)

Answer 5

• A state MAY regulate commerce so long as Congress has NOT enacted laws on the subject matter.
  
  • If such laws are enacted, then any state/local law would be pre-empted by federal law.
• Notwithstanding the above, States CANNOT pass laws that:
  
  1. Discriminate against out-of-state commerce; OR
  2. Place an undue burden on interstate commerce.
• Discriminatory Regulations – Laws that are facially discriminatory or have a discriminatory impact are unconstitutional UNLESS:
  
  1. The burden is necessary to achieve an important noneconomic state interest (no less-discriminatory alternatives are available); OR
  2. The state is a market participant rather than a regulator of economic activity.
• Unduly Burdensome Regulations – Laws that are not discriminatory, but place an undue burden on interstate commerce are UNCONSTITUTIONAL when:
  
  1. the burden on interstate commerce,
  2. burden outweighs benefits to the state/local govt.

*Courts apply this balancing test on a case-by-case basis.

Question 6

Section 5 of 14th Amendment Enabling Clause

Answer 6

• Gives Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the 14th Amendment.
• Congress may not expand existing constitutional rights or create new ones, it may only enact laws to prevent or remedy violations of rights already recognized by the courts.
• If there is no violation of existing rights then trying to remedy will = expanding or creating new rights.

Congress MAY ONLY prohibit behavior that is likely to involve a constitutional violation. There must be congruence and proportionality between the injury to be prevented and the legislative means adopted.

− Congress CANNOT define Constitutional rights or change substantive law.

Question 7

Equal Protection

Answer 7

• Prohibits the govt. from denying citizens equal protection of the laws.
  
  • Applicable to the States→14th Amendment
  • Applicable to Fed. Govt.→5th Amendment
• Discriminatory Classification – exists when:
  
  1. a law is discriminatory on its face;
  2. a law is facially neutral, but is applied in a discriminatory manner; OR
  3. a discriminatory motive exists.
• When laws classify people into groups, apply the appropriate test below based on the type of class:
  
  • Strict Scrutiny→suspect class (race, nationality, alienage classification under state law) or infringes on a fundamental right.
    
    • Govt. must show the classification is necessary to serve a compelling government interest.
  • Intermediate Scrutiny → quasi-suspect class (gender/sex, non-marital children, & most likely sexual orientation/gender identity).
    
    • Govt. must show the classification is substantially related to an important governmental interest.
  • Rational Basis→all other classes.
    
    • Plaintiff must show the classification is not rationally related to a legitimate governmental interest (any conceivable interest is sufficient).

Question 8

Takings (5th Amendment)

Answer 8

• Govt. MAY take private property for public use if it provides just compensation.
  
  • Public use = it’s rationally related to a legitimate govt purpose.
  • Just compensation = fair market value at the time of the taking.
• Possessory (Per Se) Taking – Govt. physically occupies the property (even if it’s just a small portion).
• Regulatory Taking – Three categories:
  
  • Depriving Owner of All Economically Viable Use→Is a per se taking.
  • Penn Central Taking→Court will balance these factors to determine if a taking: (1) economic impact of regulation on claimant; (2) extent of interference with the investment-backed expectations; and (3) character of regulation.
  • Conditions on Approval of a Permit (aka Land- Use Exaction)→DO NOT constitute a taking if:
    
    1. Essential nexus between state interest and permit condition exists (condition relates to legitimate govt interests); AND
    2. Govt. makes an individualized determination that the condition is roughly proportional to advancing the state interest.

Question 9

Governmental Action (State Action)

Answer 9

• P must show that a violation is attributable to govt. action, which applies to all levels of local, state, and federal govt.
  
  • The conduct of private actors is NOT protected by the U.S. Constitution.
• Exception – Courts will find govt. action of a private actor when:
  
  1. It is a traditional public function (powers traditionally and exclusively reserved to the govt.)(e.g. company towns); OR
  2. Significant govt. involvement exists to authorize, encourage, or facilitate private unconstitutional conduct.

Question 10

Public Forums for Speech

Answer 10

• Public Forum = Place traditionally available to the public for speech (i.e. parks, streets, public sidewalks).
  
  • Content-Based Restriction→Must satisfy Strict Scrutiny.
  • Content Neutral Restriction→Govt. MAY regulate time, place, and manner if it satisfies Intermediate Scrutiny.
• Designated Forum = A place not traditionally made available to the public for speech, but the govt. chose to make it available (i.e. school makes a classroom open for club meetings).
  
  • Treated the same as a Public Forum.
• Limited Forum = Non-public forums that were specifically designated by the government as open to certain groups or topics (i.e. municipal meeting rooms).
  
  • Treated the same as a Non-Public Forum. Non-Public Forum = Public places traditionally limited for speech (i.e. military bases, schools, jails, airports). − Government may regulate speech if: (1) reasonable, AND (2) viewpoint neutral.
• Private Property = No right to access another’s private property for speech.

Question 11

Content-Based vs. Content Neutral Restrictions

Answer 11

• Content-Based Restrictions – Govt. regulations regarding the content of speech (subject matter or viewpoint) are subject to strict scrutiny.
  
  • Strict Scrutiny→Govt. must show (1) the regulation is narrowly tailored, (2) to achieve a compelling govt. interest, AND (3) the least restrictive means was used.
• Content-Neutral Restrictions – Govt. MAY regulate the time, place, and manner of content-neutral speech if it satisfies intermediate scrutiny.
  
  • Intermediate Scrutiny → Govt. must show that (1) the regulation is narrowly tailored, (2) to achieve a significant government interest, AND (3) it leaves open alternative channels of communication.

Question 12

Unprotected Speech

Answer 12

• Fighting words = words which by their very utterance:
  
  1. Inflict injury; OR
  2. Tend to incite an immediate breach of the peace.
• Incitement of Imminent Lawless Action = May be outlawed if the speech:
  
  1. Advocates the use of force or illegality;
  2. Directed to inciting/producing imminent lawless action (intent); AND
  3. Likely to incite/produce such action (there is a clear and present danger that a listener will act).
• Obscenity = Material is obscene when it:
  
  • Appeals to prurient interest (sexual interest) of an avg. person under today’s community standards;
  • Is patently offensive; AND
  • Lacks any serious artistic, literary, or scientific value.
  • Mere private possession of obscene material by an adult inside the home CANNOT be made criminal.
    
    • Exception→child pornography

Question 13

Commercial Speech

Answer 13

• Given fewer protection
• Govt. MAY regulate truthful, non-misleading commercial speech if the regulation:
  
  • Directly advances,
  • A substantial governmental interest, AND
  • Is reasonably tailored to serve that interest.
• False/Misleading Commercial Speech → Not protected

Question 14

Speech in Public Schools

Answer 14

• Students DO NOT lose their 1st Amendment free speech rights at school, BUT schools are given great latitude to regulate speech.
  
  • A school MAY regulate speech if it shows that the conduct regulated would materially and substantially interfere with the operation of the school.

Question 15

Prior Restraint

Answer 15

• Occurs when the govt. attempts to prohibit speech before it happens through a court order or licensing requirement.
  
  • Generally disfavored and unconstitutional, except in very limited circumstances (i.e. where national security is at stake).
  • Court orders preventing speech must satisfy Strict Scrutiny.
• Procedural Safeguards for Licensing – Are permitted if:
  
  1. Govt. has an important reason;
  2. Specific, articulated standards to remove discretion; AND
  3. Procedural safeguards are in place, including a prompt final judicial decision when a license is denied.

Question 16

Vague and Overbroad Laws

Answer 16

• Are unconstitutional
• Unduly Vague = does not put the public on reasonable notice as to what is prohibited.
• Overbroad = regulates more speech than is constitutionally permitted.