Constitutional Law

Question 1

Congress’s power to regulate interstate commerce

Answer 1

-Congress has the power to regulate interstate commerce.

Question 2

-When states regulate interstate commerce in the absence of congressional regulation, one of two tests is used to determine if the state law is constitutional:

Answer 2

-if the law is discretionary, 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

Question 3

what aspects of interstate commerce can Congress regulate?

Answer 3

-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, it can regulate anything economic or anything noneconomic that “substantially effects” interstate commerce (even if it is purely “intrastate” – ie. within a state)

Question 4

what can’t Congress regulate?

Answer 4

Congress CANNOT “commandeer” states and force states 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)

Question 5

state’s power to discriminate / burden interstate commerce

Answer 5

-States lack the power to discriminate against interstate commerce or unreasonably burden it (this is the Dormant Commerce Clause or negative Commerce Clause)

Question 6

discrimination against interstate commerce

Answer 6

-if a law discriminates against interstate commerce, it is invalid UNLESS the state can show that the law was necessary to serve a compelling state interest AND that there is no reasonable nondiscriminatory alternative (known as strict scrutiny)
**a state law that discriminates against interstate commerce is usually unconstitutional

Question 7

the law is nondiscriminatory on its face

Answer 7

-if a state law is nondiscriminatory on its face (ie. it imposes the same burden on those in-state and out-of-state) but it still burdens interstate commerce, it is valid ONLY if it serves an important state interest and does NOT impose an unreasonably burden on interstate commerce
**a state law that merely burdens interstate commerce is more likely to be constitutional

Question 8

exception to the Dormant Commerce Clause: the market-participant doctrine

Answer 8

-the market-participant doctrine (ie. 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

Question 9

The limit of Congress’s powers

Answer 9

-Congress’s powers are limited to those given to it by the Constitution:
-it has the power to ENFORCE constitutional rights under its enforcement power found in the Thirteenth, Fourteenth, and Fifteenth Amendments, but it does NOT have the power to expand rights

Question 10

suing under the First, Fourteenth, or Fifteenth Amendment

Answer 10

-general rule: if a P is suing under the First, Fourteenth, or Fifteenth Amendment (for free speech, due process, Equal Protection Clause issues, or voting rights) then the P needs to find a government actor or action “fairly attributable to the government”
(one cannot sue a business or a private individual for, say, violating one’s free speech rights under the First Amendment)

Question 11

state action

Answer 11

-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 (eg. conducting elections, or running a company town – this is pretty narrow), or when private action is closely controlled by the state.

Question 12

the three standards of the Equal Protection Clause (1)

Answer 12

(1) strict scrutiny: the government must prove that the law is narrowly tailored (necessary) to achieve a compelling interest. (the government usually loses under a strict scrutiny analysis)
-strict scrutiny applies to fundamental rights, racial or ethnic discrimination, and alienage when the classification is made by the state
(although there are exceptions for alienage where strict scrutiny does not apply eg. if the public-function doctrine applies or if the law regulates illegal aliens)

Question 13

the three standards of the Equal Protection Clause (2)

Answer 13

(2) intermediate scrutiny: the government must prove that the classification is substantially related to an important government interest.
-This applies to classifications regarding gender and illegitimacy

Question 14

the three standards of the Equal Protection Clause (3)

Answer 14

(3) rational basis: the P must prove that the law is not rationally related to a legitimate government interest. (the P usually loses)
-This applies to every other classification: poverty, wealth, age, education, etc.

Question 15

Freedom of Speech: what phrase to start your essay with?

Answer 15

“The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment”
*remember there MUST be a government regulation of private speech

Question 16

strict scrutiny

Answer 16

-strict scrutiny means that the government must show that the regulation is necessary to serve a compelling state interest and narrowly tailored to that end.
-the government faces strict scrutiny if it engages in the content-based discrimination (forbidding communication about certain ideas) or viewpoint based discrimination (forbidding communication about a certain viewpoint)

Question 17

symbolic speech

Answer 17

-a law which regulates conduct and places an incidental burden on speech is constitutional if the regulation is narrowly tailored to an important government interest and it unrelated to the suppression of the speech.

Question 18

unprotected speech

Answer 18

-a law regulating unprotected speech needs to pass rational basis scrutiny

Question 19

categories of speech which are NOT protected under the First Amendment?

Answer 19

i) speech inciting immediate lawless or violent behavior (“clear and present danger”): speech that is directed at inciting and *likely to incite imminent lawlessness
ii) fighting words: words likely to incite an immediate violent reaction
iii) obscene speech: the test for obscenity examines whether the speech appeals to a pruient 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 (rarely tested)

Question 20

classes of speech that are protected a little less:

Answer 20

-Commercial speech: the law must meet the Central Hudson test, which states that (1) the speech must be lawful and not misleading, (2) the statute must serve a *substantial governmental interest, (3) the statute must directly advance that interest, and (4) the statute must be narrowly tailored

Question 21

classes of speech that are protected a little less:

Answer 21

-sexual or indecent speech: the law must serve a substantial governmental interest and leave open reasonable alternative channels of communication

Question 22

classes of speech that are protected a little less:

Answer 22

-time-place-or-manner restriction: A restriction in a public forum – ie. one historically associated with free speech rights (eg. streets, sidewalks, parks), or a designated public form (eg. a school that opens its doors to after-school activities) MUST be:
—content-neutral, narrowly tailored to serve an important governmental interest, and leave open alternative channels of communication
-a restriction in a nonpublic forum (eg. airports, gov. workplaces, etc. must be viewpoint neutral and reasonably related to a legitimate gov. interest

Question 23

speech in public schools

Answer 23

students have free speech rights; however, speech in schools may be regulated so long as the regulations are reasonably related to legitimate pedagogical (educational) concerns.

Question 24

prior restraint presumption; overbroad; vague

Answer 24

-there is a presumption against a prior restraint (stopping speech before it happens)
-if a law is overbroad (prohibits substantially more expression than is necessary) or vague (a reasonable person could not tell what is prohibited by the law), then it is UNconstitutional

Question 25

rights of the press

Answer 25

-the press have no greater free speech rights than anyone else
-the press may publish info that is lawfully obtained and that is a matter of public concern

Question 26

rights of corporations

Answer 26

-independent political expenditures by a for-profit corporation constitutes free speech protected by the First Amendment

Question 27

Eminent domain

Answer 27

-neither the federal government or the state may take private property for public use without just compensation
-this arises from the Fifth Amendment and is applied to the states through the Fourteenth Amendment
-a “public use” is defined broadly and may include giving land to a private party for commercial development

Question 28

types of taking

Answer 28

-a taking can be physical or regulatory (eg. an exaction)
-a physical taking occurs when there is a permanent physical occupation regardless of what public interests it may serve
-when a regulation deprives an owner of ALL economically beneficial use of her property OR destroys all reasonably investment-backed expectations, it is a taking
-an exaction exists when the government enacts a regulation that restricts the owner’s use of a property as a condition to allowing the owner to develop the land. These are takings unless the government can show a legitimate government interest and “rough proportionality” (ie. the adverse impact of the proposed development is roughly proportional to the loss suffered by the property owner)

Question 29

11th Amendment

Answer 29

-the 11th Amendment precludes a federal court from exercising jurisdiction over a suit by a private party seeking to recover damages from the state.
-there are exceptions to this: eg. if a federal statute properly abrogates immunity