Constitutional Law Flashcards
standards of review
strict scrutiny = least restrictive means necessary to achieve a compelling government interest
intermediate scrutiny = substantially related to an important gov’t interest
rational basis review = rationally related to legitimate gov’t interest
(burden is on challenger to prove law is arbitrary / irrational)
standing
(i) a ‘concrete & particularized’ injury in fact
(ii) causation
(iii) redressability
commercial speech (Central Hudson test)
to determine if 1A applies:
(i) speech is lawful
(ii) not false or misleading
THEN, ask:
(iii) is the gov’t interest substantial?
(iv) regs directly advance gov’t interest
(v) reasonable fit between regs & gov’t purpose
comity clause
Article IV Privileges & Immunities clause
– discrimination against out-of-state commercial activity violates comity clause
The Article IV privileges and immunities clause (i.e., the comity clause) prohibits states from discriminating against citizens of other states by denying them a right of state citizenship. This includes the right to practice a commercial trade or business—but not to pursue a recreational activity.
takings clause
5th amendment bars the government from taking private property unless:
(i) taking is for a public use
(ii) owner receives just compensation (fair market value)
dormant commerce clause
if Congress has not already regulated, states can regulate interstate commerce if regs do NOT:
(i) discriminate against out-of-state residents[FN 1]
(ii) unduly burden interstate commerce
– burden on interstate commerce cannot clearly exceed the local benefits
(iii) regulate wholly out-of-state activity
[FN 1] If the regulation does discriminate against out of state commerce, it is only valid if (1) it furthers a legitimate, noneconomic state or local interest and (2) no reasonable alternatives exist
procedural due process
5th amendment due process clause states that…
…the federal gov’t must give notice & OTBH when depriving life, liberty, or property.
For depriving of property (e.g., govt jobs), procedural due process generally requires that the employee receive:
(1) notice of any alleged misconduct
(2) a pre-termination hearing to respond to the allegation
(3) a post-termination evidentiary hearing to determine if the dismissal was warranted
traditional public forum
In a traditional public forum, the government may only regulate speech if the restrictions:
(i) are content-neutral as to both subject matter and viewpoint,
(ii) are narrowly tailored to serve a significant governmental interest,
(iii) leave open ample alternative channels for communication
Congress’s spending power: Limitations on Congress putting conditions on funds
The spending power has been interpreted very broadly, and Congress can place conditions on spending, but is subject to four limitations:
[Threshold note: spending must be for the general welfare; aka any public purpose]
(1) are clearly stated & unambiguous
(2) are reasonably related to funds’ purpose
(3) do not require unconstitutional activity
(4) not unduly coercive (may not exceed the point at which “pressure turns to compulsion”)
substantive due process
Constitutional doctrine that addresses the deprivation of rights.
— If an ordinary right is deprived (e.g., education, economic, social welfare, employment), subject to rational basis review.
— If a fundamental right is deprived (e.g., free speech, voting, interstate travel, privacy) then strict scrutiny applies.
Congress’s enumerated powers
— commerce power (channels, instrumentalities, substantial effects
— taxing (if reasonably related to raising revenue)
— spending (for general welfare)
— necessary & proper (only as it supports other enumerated powers
— war powers
— plenary power over noncitizens
— enforcement powers (to enforce 13, 14, 15 amendments)
state power to tax imported goods
A state tax on imported goods is valid if
(1) the federal government is still able to speak with one voice in foreign commerce,
(2) there is interstate harmony because the tax satisfies the Complete Auto requirements, and
(3) the tax does not divert import revenue from the federal government.
Complete Auto requirements:
—substantial nexus
—fairly apportioned
—nondiscriminatory
—fairly related
substantial effect on interstate commerce
When Congress attempts to legislate under its commerce clause power because of substantial effects on interstate commerce, SCOTUS has set out a 4-factor test to determine if an activity substantially affects interstate commerce:
(i) activities are economic/commercial in nature - if so, substantial effect is presumed;
(ii) regulation has a jurisdictional element that limits its reach to activities with a direct effect on interstate commerce;
(iii) there are express congressional findings concerning the activities’ effects on interstate commerce;
(iv) there is a strong link between the regulated activities & the effect on interstate commerce
commerce clause
The commerce clause grants Congress broad power to regulate interstate commerce, including:
— channels of interstate commerce
— instrumentalities of interstate commerce
— persons/things moving in interstate commerce and
— activities that substantially affect interstate commerce
when gov’t can restrict inflammatory speech
(1) directed at inciting or producing imminent lawless action
(2) likely to incite or produce such action
