Constitutional Law

Question 1

state action requirement

Answer 1

• -> The Constitution generally protects against wrongful conduct by the government, not private parties.
• -> private person’s conduct must constitute state action in order for these protections to apply.
• -> State action is found when a private person carries on activities that are traditionally performed exclusively by the state, such as running primary elections or governing a “company town.”

Question 2

the first amendment is applicable to states through …

Answer 2

the 14th amendment

Question 3

first amendment protects…

Answer 3

the freedom of speech as well as the freedom not to speak

Question 4

traditional public forum

Answer 4

A traditional public forum is one that is historically associated with expression, such as sidewalks, streets, and parks

Question 5

traditional public forum - regulation rule

Answer 5

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, and
(iii) leave open ample alternative channels for communication

**Additional restrictions, such as an absolute prohibition of a particular type of expression, will be upheld only if narrowly drawn to accomplish a compelling governmental interest.

Question 6

The Equal Protection Clause of the Fourteenth Amendment provides…

Answer 6

that “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

Question 7

equal protection clause applies only…

Answer 7

to states & localities

Question 8

A law passes the rational basis standard of review if…

Answer 8

it is rationally related to a legitimate governmental interest
–> test of minimal scrutiny

• not required that there is actually a link between the means selected and a legitimate objective
• BUT, legislature must reasonably believe there is a link
• **laws are presumed valid under RB standard

Question 9

The federal government may exercise only those powers…

Answer 9

specifically enumerated by the Constitution

Question 10

The Fourteenth Amendment, Section Five Enabling Clause permits Congress to…

Answer 10

pass legislation to enforce the equal protection and due process rights guaranteed by the amendment
–> BUT NOT to expand those rights or create new ones

Question 11

standard for congress enforcing rights under enabling clause

Answer 11

In enforcing such rights, there must be a “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end.
–>must be constitutional injury to remedy or prevent in order to override state reg violating 14th amendment

Question 12

Dormant Commerce Clause

Answer 12

limits the power of states to legislate in ways that impact interstate commerce

Question 13

If Congress has not enacted legislation in a particular area of interstate commerce, then states are free to regulate, so long as the state/local action…

Answer 13

does NOT:

1. discriminate against out of state commerce
2. unduly burden interstate commerce, or
3. regulate wholly out of state activity

Question 14

A state or local regulation discriminates against out-of-state commerce if…

Answer 14

it protects local economic interests at the expense of out-of-state competitors.

Question 15

A state regulation that is not discriminatory may still be struck down as unconstitutional if…

Answer 15

it imposes an undue burden on interstate commerce.

Question 16

court’s standard for determining validity of state reg that is not discriminatory but imposes undue burden on IC

Answer 16

courts will balance, case by case, the objective and purpose of the state law against the burden on interstate commerce

+ will evaluate whether there are less restrictive alternatives.

Question 17

If a state or local regulation, on its face or in practice, is discriminatory, then the regulation may be upheld…

Answer 17

if the state/local gov can establish that:

1. an important local interest is being served, &
2. no other nondiscriminatory means are available to achieve that purpose

Question 18

market participant exception to DCC

Answer 18

A state may behave in a discriminatory fashion if it is acting as a market participant (buyer or seller), as opposed to a market regulator.

If the state is a market participant, it may favor local commerce or discriminate against nonresident commerce as could any private business.

Question 19

11th amendment

Answer 19

The Eleventh Amendment is a jurisdictional bar that prohibits the citizens of one state from suing another state in federal court.

immunizes the state from suits in federal court for money damages or equitable relief when the state is a defendant in an action brought by a citizen of another state.

Question 20

When a state official, rather than the state itself, is named as the defendant in an action brought in federal court, the state official may…

Answer 20

be enjoined from enforcing a state law that violates federal law

Question 21

rule - when gov regulation adversely affects person’s property

Answer 21

generally, not a taking

but, may rise to level of taking, such as when a reg results in a permanent physical occupation of the property by the gov or a 3P or when a reg results in a permanent total loss of the prop’s economic value

Question 22

three-factor balancing test to determine whether ordinance amounts to a regulatory taking

Answer 22

(i) the economic impact of the regulation on the property owner,
(ii) the extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding use of the property, and
(iii) the character of the regulation

**(iii) includes degree to which it will benefit society; how reg distributes burdens & benefits among prop owners; whether reg violates any of owner’s essential attributes of prop ownership

Question 23

can a local gov condition the approval of a building permit on the grant of an easement on property?

Answer 23

yes - a local gov may exact promises from a developer in exchange for issuing the necessary construction permits

does not violate takings clause IF there is:

(i) essential nexus between legitimate state interests & conditions imposed on the property owner (i.e., conditions substantially advance legitimate state interest), &
(ii) a rough proportionality between burden imposed by conditions on property owner & impact of proposed development.
* *gov must make individualized determination that conditions are related both in nature & extent to the impact