Constitutional Law

Question 1

State Action Requirement

Answer 1

Because the Constitution generally applies only to governmental action, to show a constitutional violation “state action” must be involved.Note:This concept applies to government and government officers (if they’re acting officially, even if unlawfully) at all levels— local, state, or federal.

• State action can be found in actions of seemingly private individuals who:
  
  • Perform exclusive public functions, or
  • Have significant state involvement (If it is 50% government 50% private it DOES not count, you need to see mostly government)
    
    • wherever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens, or where there is sufficient entwinement between the state and private party.

Question 2

11th Amendment State Sovereign Immunity

Answer 2

The Supreme Court has held that the doctrine ofsovereign immunityreflected in the Eleventh Amendmentbars a private party’s suit against a state in federal and state courts.Similarly, sovereign immunity bars claims against a state in federal and state agencies.

Exceptions: express waiver; actions against local governments; suits by other states or the federal government; certain actions against state officers

Question 3

Dormant Commerce Clause

Answer 3

• States lack the power to discriminate against interstate commerce or unreasonably burden it. (This is known as the Dormant Commerce Clause or negative Commerce Clause.) For a regulation to discriminate against interstate commerce, it must treat economic interests from within the state differently from economic interests form outside of the state.
  • 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 there is no reasonable nondiscriminatory alternative (strict scrutiny). ***A state law that discriminates against interstate commerce is usually unconstitutional.
  • If a state law is nondiscriminatory on its face (i.e., 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 unreasonable burden on interstate commerce. ***A state law that merely burdens interstate commerce is more likely to be constitutional.
  • market-participant exception: If the state is acting as a market participant, it is allowed to favor its own residents.

Question 4

The Commerce Clause

Answer 4

• The Commerce Clause gives Congress the power to regulate existing commercial activity; it does not give Congress power to compel activity. Congress can regulate the
  
  • Channels and instrumentalities of interstate commerce,
  • Persons and things in interstate commerce,
  • Anything that has a “substantial effect” on interstate commerce
  • Congress is allowed to regulate Intrastate activity if the regulation has
    
    • A rational basis on which congress could conclude that the activity in the aggregate substantially affects interstate commerce
    • Unless it is an area that is traditionally regulated by state or local government.
      
      • Ex. Congress cannot criminalize intrastate domestic violence against women, even though in the aggregate such violence substantially affects interstate commerce because of the loss of work, travel, and spending by victims.