CONSTITUTIONAL LAW

Question 1

REGULATION OF INTERSTATE COMMERCE & THE COMMERCE CLAUSE

Congress has the power to regulate interstate commerce. 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. 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.

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 noneconomic that “substantially affects” interstate commerce (even if it is purely “intrastate”—i.e., within a state).
• Congress cannot, however, “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 2

DORMANT COMMERCE CLAUSE

Answer 2

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.)
* 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 non-discriminatory 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.

Question 3

EXCEPTION TO THE DORMANT COMMERCE CLASUE: MARKET PARTICIPANT DOCTRINE

Answer 3

If the state is acting as a market participant (i.e., the state is acting as a market participant or business rather than regulator), it is allowed to favor its own residents.

Question 4

BRINGING SUIT UNDER THE 1ST, 14TH, AND 15TH AMENDMENT

state action is required in order to sue under the First, Fourteenth, or Fifteenth Amendment.

Answer 4

• General rule: If a plaintiff is suing under the First, Fourteenth, or Fifteenth Amendment (for free speech, due process, Equal Protection Clause issues, or voting rights) the plaintiff 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.)
• State action: 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 is pretty narrow), or when private action is closely controlled by the state.

Question 5

EQUAL PROTECTION & STRICT SCRUTINY, INTERMEDIATE SCRUTINY & RATIONAL BASIS

the Equal Protection Clause has three standards to be aware of.

Answer 5

• 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 (though there are exceptions for alienage where strict scrutiny does not apply—e.g., if the public- function doctrine applies or if the law regulates illegal aliens).
• Intermediate scrutiny: The government must prove the classification is substantially related to an important government interest. This applies to classifications regarding gender and illegitimacy.
• Rational basis: The plaintiff must prove that the law is not rationally related to a legitimate government interest. (The plaintiff usually loses.) This applies to every other classification—poverty, wealth, age, education, etc.

Question 6

EMINENT DOMAIN

Neither the federal government nor 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.

Answer 6

• A taking can be physical or regulatory (e.g., 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 reasonable 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” (i.e., the adverse impact of the proposed development is roughly proportional to the loss suffered by the property owner).