Constitutional Law Flashcards
Commercial Speech (1A)
Commercial speech (advertisements, promotions of products and services, brand marketing) is NOT protected if it is:
(1) false
(2) misleading
(3) about illegal products or services.
Other regulation of commercial speech will be upheld only if it:
(1) serves a substantial government interest
(2) directly advances that interest
(3) narrowly tailored to serve that interest
**complete bans unlikely to be upheld due to not being narrowly tailored. does NOT need to be least restrictive means
Government regulation of employee speech
- Was the speech within gov employee’s official duties?
Yes: speech can be punished or regulated based on content, even if it touches on a matter of public concern.
**public concern is defined very broadly.
No: NEXT
- Does the speech involve a matter of public concern?
-
YES: the speech can be punished or regulated only if the government employer’s interest in providing efficient public service outweighs the employee’s interest as a citizen in commenting on a matter of public concern
- This is the only category protected by the 1A. Entitled to procedural due process for a liberty deprivation (free speech) if can make showing that free speech was impinged upon.
- NO: The speech aint protected by the 1A. The government may punish/regulate speech disruptive to the work environment.
Municipal immunity: governmental versus propriety functions
Where municipal immunity still exists, courts have limited its scope by differentiating between “governmental” and “proprietary” functions of the municipality. If the municipality is performing a function that might as well have been provided by a private corporation, the function may be construed as a proprietary one and no immunity will attach. The inference that a function is proprietary will be strengthened where the city collects revenues by virtue of providing the service. Hence, the fact that the city is not collecting revenues or making a profit in operating the garage will make it less likely that the function will be deemed to be proprietary and more likely that it will be deemed to be governmental and thus immune; in other words, it will be more helpful rather than less helpful in the city’s defense.
Commerce clause
permits Congress to regulate any local or interstate activity that, either in itself or in combination with other activities, has an effect on interstate commerce.
Dormant Commerce Clause
Discriminatory: If a regulation discriminates against interstate commerce, it will be invalid unless:
(1) furthers an important, noneconomic state interest AND there are no reasonable nondiscriminatory alternatives; OR
(2) the state is a market participant
(3) Congress has approved that kind of discrimination
(4) involves government action regarding the performance of a traditional governmental function.
Non-discriminatory: if a regulation does not discriminate but burdens interstate commerce, it will be invalid if the burden on commerce outweighs the state’s interest
**make sure there is nothing in the question that demonstrates Congress via legislation has authorized a state regulation otherwise permissible or superseded state legislation.
11A
- 11A prohibits federal courts from hearing most private actions against state governments. This prohibition includes actions in which the state is named a party or in which the state will have to pay retroactive damages
- Congress can abrogate 11A state sovereign immunity pursuant to its power under the 14A.
- An exception to the 11A allows parties to enjoin a state officer from future conduct that violates the Constitution or federal laws.
President’s power over treaties
The President’s action is constitutional pursuant to his power over treaties and foreign relations. The power to enter into treaties is vested in the President, and his power to act for the United States in day-to-day foreign affairs is paramount. Even as to foreign relations that require congressional consent, the President’s powers are much broader than in the realm of internal affairs. No significant judicial control has been exercised over such declarations. Thus, this action of declaring the treaty void is allowable under these broad powers.
**treaties are on par with federal law, and are the supreme law of the land, but that is only important if there is a conflict between state/local law and federal law.
Taxing
A tax, even though enacted for a regulatory rather than a revenue-raising purpose, can be upheld as a “necessary and proper” exercise of Congress’s power to tax under Article I, Section 8, Clause 1. This will be especially true if the revenues derived from the measure are used to cover the expenses associated with the federal regulatory scheme.
Appropriations Power
The President has no power to decline to spend funds specifically appropriated by Congress when Congress has expressly mandated that they be spent, regardless of Congress’s reason for making the appropriation. The President has no “legislative” power in internal affairs, and has a duty under Article II to “see that the laws are faithfully executed.” In contrast, Congress clearly has the power to spend to “provide for the common defense and general welfare.” [U.S. Const. art. I, §8] Hence, the Supreme Court has ruled that there is no constitutional basis for the President to “impound” (i.e., refuse to spend) funds whose expenditure Congress has expressly mandated. [Kendall v. United States (1838)] Here, since the bill included an appropriations provision mandating that funds be spent on the relocation of the training center, the President must carry out the congressional directive.
Field Preemption
Field preemption occurs when Congress shows an intent to occupy an entire field, thus precluding any state regulation. If the law does not state whether state law is to be preempted, the Court will look to the comprehensiveness of the scheme and whether Congress has created an agency to administer over the area.
Regulatory Takings
- Denial of ALL economic usage of land=taking requiring payment of just compensation under 5A
- Some economic usage left = court weighs:
- social goals sought to be promoted
- diminution in value to the owner
- whether the regulation substantially interferes with distinct, investment-backed objectives
From that capstone question
Under the Due Process Clause of the Fifth Amendment, a person has a liberty interest in the exercise of specific rights provided by the Constitution, including freedom of speech. A government employee may not be fired for expressing his views regarding public issues (although the speech can be regulated only if the government employer’s interest in providing efficient public service outweighs the employees interest as a citizen in commenting on a matter of public concern), but can be fired for speech that disrupts the employer’s policies or undermines the employer’s authority.
Time, place, manner restrictions
While the First Amendment protects the freedoms of speech and assembly, the government may reasonably regulate speech-related conduct in public forums through content-neutral time, place, and manner regulation.
To avoid strict scrutiny and be upheld, government regulations on speech and assembly in public forums must be:
(1) content neutral and
(2) narrowly tailored to serve an
(3) important government interest, and
(4) must leave open alternative channels of communication.
If statute gives officials unbridled discretion in determining what is permitted and what is not: NOPE. void on face.
NOTE: even if restricting throughout a town (as in, don’t have to analyze whether a public or non public forum, you can still apply this test–a content neutral restriction is subject to strict scrutiny–PERIOD).
Establishment Clause
Under the Establishment Clause, if there is no sect preference, government action generally will be upheld if . . .
(1) the action serves a secular purpose,
(2) its primary effect neither advances nor inhibits religion, and
(3) it does not excessively entangle government with religion.
There is no sect preference under the school board’s corporal punishment rule here, the rule has the secular purpose of maintaining order in the classroom (the fact that this coincides with the tenets of a local religion does not change that conclusion), its main purpose neither advances nor inhibits religion, and there is no excessive entanglement.
Conditioning grants to states/anti-commandeering doctrine
Such conditions will not violate the Tenth Amendment merely because Congress lacked the power to directly regulate the activity that is the subject of the spending program if the conditions (i) are clearly stated; (ii) relate to the purpose of the program; and (iii) are not unduly coercive.
