Constitutional Law

Question 1

Congress’s power over interstate commerce:

Answer 1

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 non economic that substantially affects interstate commerce, even if it is purely intrastate.

Question 2

Dormant/negative Commerce Clause

Answer 2

States lack the power to discriminate against interstate commerce or unreasonably burden it.

Question 3

If a state law discriminates against interstate commerce…

Answer 3

It is invalid unless the state can show hat the law was necessary to serve a compelling state interest and there is no reasonable non discriminatory alternative (strict scrutiny).

Usually unconstitutional.

Question 4

If a state law is non-discriminatory on its face but it still burdens interstate commerce…

Answer 4

It is valid only if it serves an important state interest and does not impose an unreasonable burden on interstate commerce.

More likely to be constitutional.

Question 5

Exception to the Dormant Commerce Clause:

Answer 5

Market participant doctrine—the state is acting as a market participant or business rather than a regulator, and is as such allowed to favor its own residents.

Question 6

Congress has the power to enforce constitutional rights under its enforcement power found in the ___.

Answer 6

Thirteenth, Fourteenth, and Fifteenth Amendments.

Note: Congress does not have the power to expand rights.

Question 7

___ is required in order to sue under the First, Fourteenth, or Fifteenth Amendments.

Answer 7

State action.

Plaintiff needs to show a government actor or action “fairly attributable to the government.”

Question 8

State action is present when:

Answer 8

A state passes a law or permits its officials to take action, or when a private actor is performing a traditional and exclusive government function (conducting elections/running a company town) or when private action is closely controlled by the state.

Question 9

Three standards under the Equal Protection Clause

Answer 9

Strict scrutiny; intermediate scrutiny; rational basis.

Question 10

Strict scrutiny

Answer 10

The government must prove that the law is narrowly tailored to achieve a compelling interest.

Applies to fundamental rights, racial or ethnic discrimination, and alienage when the classification is made by the state (unless public-function doctrine applies).

Question 11

Intermediate scrutiny

Answer 11

Government must prove the classification is substantially related to an important government interest.

Applies to classifications regarding gender and illegitimacy.

Question 12

Rational basis

Answer 12

Plaintiff must prove that the law is not rationally related to a legitimate government interest.

Applies to every other classification—poverty, wealth, age, education, etc.

Question 13

If MEE is testing freedom of speech, start your essay with:

Answer 13

The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment.

Remember, there must be government regulation of private speech.

Question 14

Government engaging in content-based discrimination or viewpoint-based discrimination:

Answer 14

Strict scrutiny.

Question 15

A law which regulates conduct and places an incidental burden on speech is constitutional if the regulation is

Answer 15

Narrowly tailored to an important governmental interest and is unrelated to the suppression of the speech.

Question 16

A law regulating unprotected speech needs to pass:

Answer 16

Rational basis scrutiny

Question 17

Categories of unprotected speech:

Answer 17

• speech inciting immediate lawless or violent behavior (“clear and present danger”): directed at inciting and likely to incite imminent lawlessness
• fighting words: words likely to incite an immediate violent reaction
• true threats or words as conduct: defamation, harassment, etc.
• obscene speech: appeals to a prurient interest in sex, depicts/describes sex in a patently offensive way, and lacks serious literary/artistic/political/scientific value.

Question 18

Commercial speech

Answer 18

(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 19

Sexual or indecent speech

Answer 19

The law must serve a substantial governmental interest and leave open reasonable alternative channels of communication.

Question 20

Time-place-or-manner restrictions

Answer 20

Restriction in a public forum (one historically associated with free speech) or a designated public forum (school that opens its doors to such activities) must be content neutral, narrowly tailored to serve an important governmental interest, and leave open alternative channels of communication.

Restriction in a non-public forum must be viewpoint neutral and reasonably related to a legitimate government interest.

Question 21

Speech in public schools

Answer 21

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

Question 22

Prior restraints

Answer 22

Presumption against constitutionality

Question 23

Overbroad or vague laws

Answer 23

Presumed unconstitutional if they prohibit substantially more expression than is necessary (overbroad) or if a reasonable person cannot tell what is prohibited by the law (vague).

Question 24

Rights of the press—free speech

Answer 24

The press has no greater free speech rights than anyone else. The press may publish information that is lawfully obtained and that is a matter of public concern.

Question 25

Eminent domain

Answer 25

Neither the federal government nor the states may take private property for public use without just compensation.

Arises from the Fifth Amendment and is applied to the states through the Fourteenth Amendment.

“Public use” is defined broadly and may include giving land to a private party for commercial development.

Question 26

A taking can be ___ or ___.

Answer 26

Physical or regulatory.

Physical: permanent physical occupation regardless of what public interests it may serve.

Regulatory: regulation deprives an owner of all economically beneficial use of her property or destroys all reasonable investment-backed expectations.

Question 27

Exaction

Answer 27

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.

Takings unless the government can show a legitimate government interest and “rough proportionality” (the adverse impact of the proposed development is roughly proportional to the loss suffered by the property owner).

Question 28

Eleventh Amendment

Answer 28

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 (federal statute abrogates immunity).

Question 29

Can Congress make/encourage states to enact laws?

Answer 29

Congress cannot commandeer states and force states to enforce federal laws. Congress will either have to regulate directly (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).