Constitutional Law Flashcards
How do you know if a state tax on interstate commerce is constitutional?
A state or municipal tax on interstate commerce if it is 1) levied on persons or activities that have a substantial nexus with the taxing entity, 2) fairly apportioned, 3) non discriminatory, and 4) fairly related to the services provided by the taxing entity
Dormant commerce clause
Prohibits states and municipalities from unduly burdening interstate commerce.
This is the counterpart to the actual commerce clause, which grants the power to regulate interstate commerce to Congress.
What is needed for Congress to delegate its powers to another entity?
Congress has broad authority to regulate economic activities since it is presumed that they substantially affect interstate commerce. But Congress can only delegate it’s incidental powers to another entity if it gives that entity an intelligible principle on which to base its regulations.
Intelligible principle
An intelligible principle is a PAS.
A clear statement defining:
- The Policy Congress seeks
- The Agency to carry out the policy
- The Scope of the agency’s authority
Default test for review of a discriminatory law
Under the equal protection clause of the 14th amendment, discriminatory laws are generally reviewed under the rational basis test, i.e. the law must be rationally related to any legitimate state interest.
Any reasonable conceivable purpose that may have motivated the legislature in passing the law will satisfy this test. The purpose does not have to be supplied by the government, and instead can be conceived of by the court.
What to look for to identify discrimination against out-of-state commerce
A state regulation can discriminate against out-of-state commerce three ways. 1) on its face, 2) in its application, 3) in its effect
State burden of proof to defeat a dormant commerce clause challenge
The law must 1) further a legitimate, non-economic state interest, 2) that could not be achieved by reasonable alternatives
Endorsement test
Under the endorsement test, government displays of religious symbols violate the establishment clause when the overall context of the display would cause a reasonable person to conclude that the display endorsed religion.
To what extent are states allowed to regulate elections?
State electoral regulations must comply with the first amendment freedom of association clause (applicable to states through the fourteenth amendment) and the fourteenth amendment equal protection clause.
The standard for reviewing such regulations depends on whether the burden imposed is ordinary (rational basis) or severe (strict scrutiny).
Ordinary/non discriminatory state election restrictions
Voter registration
Photo ID requirement
Disallowing write-in voting
Rational basis is applied
Severe/discriminatory state election regulations
Disallowing third-party candidates
Poll taxes
Property-ownership requirement
Strict scrutiny applies
State regulation of interstate commerce
Congress has the power to regulate interstate commerce. If states regulate interstate commerce in the absence of Congressional regulation, one of two tests is used to determine if the state law is Constitutional.
If the law is discriminatory, it is usually unconstitutional under a strict scrutiny standard. If it is merely a “burden” on interstate commerce, it is more likely to be constitutional.
Congressional power to regulate interstate commerce
Congress can regulate the channels and instrumentalities of interstate commerce, persons, and things in interstate commerce, or anything that has a “substantial effect” on interstate commerce–meaning, Congress can regulate anything economic or anything noneconomic that “substantially effects” interstate commerce, even if it is purely “intrastate”
non-commandeering
Congress cannot, however, “commandeer” states and force them to enforce federal laws. Congress will either have to regulate directly (if within its commerce power) or 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 lack the power to discriminate against interstate commerce or unreasonably burden it. This is known as the Dormant Commerce Clause or the Negative Commerce Clause.
If a law discriminates against interstate commerce, it is invalid unless the state can show that 1) the law was necessary to serve a compelling state interest and 2) there is no reasonable non-discriminatory alternative (strict scrutiny). A state law that discriminates against interstate commerce is usually unconstitutional.
If a state law is non-discriminatory on its face (i.e. it imposes the same burden on those in-state and those out-of-state) but it still burdens interstate commerce, it is only valid if it serves an important state interest and does not impose an unreasonable burden on interstate commerce. A state law that merely burdens interstate commerce is more likely to be constitutional.
Market-participant exception
A tested exception to the Dormant Commerce Clause is the market-participant doctrine (i.e. the state is acting as a market participant or business rather than a regulator).
If the state is acting as a market participant, it is allowed to favor its own residents.
Congress’s power with individual rights
Congress’s powers are limited to those granted to it in the Constitution. It has the power to enforce constitutional rights under the enforcement powers given to it in the 13th, 14th, and 15th amendments, but it does not have the power to expand rights.
state action requirement
state action is required to sue under the first, fourteenth, and fifteenth amendments.
If a plaintiff is suing under the First, Fourteenth, or Fifteenth Amendment, the plaintiff needs to find a government actor or action “fairly attributable to the government”.
One cannot sue a business or private individual for violating rights under these amendments).
when is state action present?
State action is present when a state passes a law, when a state permits its officials to take action, when a private actor is performing a traditional and exclusive government function (e.g. conducting elections, or running a company town, this provision is pretty narrow), or when private action is closely controlled by the state.
