Constitutional Law MEE Flashcards
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 ?
If it is merely a “burden” on interstate commerce, it is
it is usually unconstitutional under a strict scrutiny standard.
more likely to be constitutional.
Congressional powers over interstate commerce
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).
Dormant commerce clause aka negative commerce clause
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 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.
A tested exception to the Dormant Commerce Clause is the market-participant doctrine
. If the state is acting as a market participant, it is allowed to favor its own residents.
(i.e., the state is acting as a market participant or business rather than regulator)
Key principle #2: Congress’s powers are limited to those given to it by the Constitution. It has the power to enforce constitutional rights under its enforcement power found in the Thirteenth, Fourteenth, and Fifteenth Amendments, but it does not have the power to expand rights.
• Key principle #3: state action is required in order to sue under the First, Fourteenth, or Fifteenth Amendment.
General rule: If P is 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: 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.
the Equal Protection Clause has three standards to be aware of.
Strict scrutiny
Intermediate scrutiny
Rational basis review
EPC
Strict scrutiny test
applies to:
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).
EPC
Intermediate scrutiny:
Applies to:
The government must prove the classification is substantially related to an important government interest.
This applies to classifications regarding gender and illegitimacy
EPC
Rational basis review
Applies to:
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.
Free speech as it applies to the states
Start your essay as follows: “The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment.” Remember, there must be a government regulation of private speech.
content based discrimination on free speech or viewpoint discrimination
Test
Strict scrutiny means that the government must show that the regulation is necessary to serve a compelling state interest and is narrowly tailored to that end.
The government faces strict scrutiny if it engages in content-based discrimination (forbidding communication about certain ideas) or viewpoint- based discrimination (forbidding communication about a certain viewpoint).
