Constitutional Law "SmartBarPrep" Rule Statements Flashcards
State Sovereign Immunity (11th Amendment)
• The Eleventh Amendment prohibits a party from suing a state or a state agency in federal court UNLESS: (a) the state explicitly consents to waive its Eleventh Amendment protections; (b) the suit pertains to federal laws adopted under Section 5 of the Fourteenth Amendment; (c) the suit seeks only injunctive relief against a state official for conduct that violates the Constitution or federal law; OR (d) the suit seeks money damages from a state official.
• The Eleventh Amendment DOES NOT apply to: (a) local governments (counties, cities, towns); (b) federal suits brought by one state against another state; and (c) a suit by the federal government against a state.
• The Supreme Court has held that Congress CANNOT abrogate state sovereign immunity EXCEPT for federal laws adopted under Section 5 of the Fourteenth Amendment. To determine whether Congress validly
abrogated State immunity, two issues must be resolved: (1) whether Congress unequivocally expressed its intent to abrogate the immunity; AND (2) if it did, whether Congress acted pursuant to a valid grant of constitutional authority.
Intergovernmental Immunities/State Immunity from Federal Law (10th Amendment)
Under the 10th Amendment, all powers NOT granted to the Federal government are reserved to the States (unless such powers are expressly prohibited by the Constitution).
Congress CANNOT compel state governments to implement legislation, BUT Congress may induce state government action by attaching restrictions and conditions on federal funding grants pursuant to its federal taxing and spending powers (Congress has the broad power to tax and spend for the general welfare).
The Supreme Court has held that the Federal Government may regulate state activities on the same terms as private actors so long as it does not seek to control or influence (commandeering) the manner in which States regulate private parties. A federal regulation CANNOT require the States in their sovereign capacity to regulate their own citizens, require the state legislature to enact any laws or regulations, or require state officials to assist in the enforcement of federal statutes regulating private individuals. A federal mandate requiring state personnel to alter their own activities is not an unconstitutional commandeering.
Federalism-Based Limits on State Authority/Negative Commerce Clause
A state or local government may regulate intrastate commerce, as long as Congress has not “enacted laws on the subject matter.”
If Congress has enacted laws on a particular matter, any state or local laws would be pre-empted by federal law. Notwithstanding the above, state and local governments generally CANNOT pass laws that: (a) discriminate against out-of-state commerce; OR (b) place an undue burden on interstate commerce.
Discriminatory Regulations: A law is deemed discriminatory when it is either (a) facially discriminatory, OR (b) the law has a discriminatory impact because it favors in-state commerce over out-of-state commerce.
State and local laws that
discriminate against out-of-state commerce are UNCONSTITUTIONAL, UNLESS: (a) the burden on interstate commerce is narrowly tailored to achieve a legitimate, non-protectionist state objective (there are no less-discriminatory alternatives available); OR (b) the state or local government
is a “market participant” rather than a regulator of economic activity (a state may favor its own citizens regarding state programs, state businesses,
or when it is the entity buying or selling goods).
The Supreme Court has held that states CANNOT use discriminatory means to accomplish even a legitimate environmental purpose (i.e. prohibiting the disposal of out-of-state waste in-state).
Unduly Burdensome Regulations: State and local laws that are not discriminatory, but still place an undue burden on interstate commerce are UNCONSTITUTIONAL when (1) the burden on interstate commerce, (2) is clearly excessive to the putative benefits to the state/local government. Courts apply this balancing test on a case-by-case basis.
Governmental Action (“State Action”)
When alleging a constitutional violation, a plaintiff MUST show that the violation is attributable to government action (also known as “state action”), which applies to ALL levels of local, state, and federal government. Generally, the conduct of private individuals or entities DO NOT constitute state action and is NOT protected by the U.S. Constitution. The Supreme Court has held that running a private school or college is not “state action,” even when said school is funded primarily by government funds.
Courts will find “state action” for private conduct when the conduct involves either: (a) a traditional public function – powers traditionally and exclusively reserved to the government; OR (b) when significant government involvement exists to authorize, encourage, or facilitate
private conduct that is unconstitutional (i.e. government enforcement of certain private contracts, entanglement or joint action between a state and private actor, and encouragement of private discrimination). Examples of a traditional “public function” include holding elections and where a corporation operates a privately owned “company town” that provides typical services of the government
Equal Protection Analysis
The Equal Protection Clause of the 14th Amendment (applicable to the States) and the 5th Amendment (applicable to the federal government) prohibits the government from denying citizens equal protection of the laws.
To determine if a discriminatory classification against a group of people exists, one of the following must be shown: (a) the law is discriminatory on its face; (b) the law is facially neutral, but is applied in a discriminatory manner; OR (c) a discriminatory motive, when the law is facially neutral but creates a disparate impact.
• When the government makes laws that classify people into groups, the constitutionality of the law will be considered using one of three different levels of scrutiny: (a) Rational Basis; (b) Intermediate Scrutiny; OR (c) Strict Scrutiny.
o Strict Scrutiny: The court will apply strict scrutiny when: (a) a classification is based on a suspect class (race, national origin, or alienage in some instances); OR (b) when the law infringes on a fundamental right for a class of people (i.e. right to vote, exercise of religion, have access to the courts, and interstate travel). Alienage (legal non-citizen status) is generally a suspect class only when a State is involved (as Congress has power over aliens under the Constitution). A State may limit a non-citizen’s participation in a function of the government, which is subject to rational basis review. Under strict scrutiny, the government must show that the classification is necessary to serve a compelling government interes o Intermediate Scrutiny: When a classification is based on a quasi-suspect class (gender/sex, non- marital children, and most likely sexual orientation/ gender identity), the court will apply intermediate scrutiny. Under intermediate scrutiny, the government must show that the classification is substantially related to an important government interest (the interest MUST be the government’s actual interest in passing the law). The Supreme Court has held that a State may treat men and women differently and provide separate facilities (bathroom facilities, separate sports teams), BUT the State must demonstrate: (1) an exceedingly persuasive justification for separate treatment; AND (2) that the facilities are substantially equivalent. In addition, a State can use a compensatory purpose to justify an otherwise discriminatory classification but only if members of the gender benefited by the classification actually suffer a disadvantage related to it. The standard to use for a classification based upon a person’s sexual orientation or gender identity is unresolved. In past cases, the Supreme Court has used a rational basis standard. However, recently in Bostock v. Clayton County (2020), the Supreme Court ruled that the Title VII of the Civil Rights Act prohibition of employment discrimination “because of sex” protects gay, lesbian, and transgender individuals. This decision likely means that discrimination based upon sexual orientation or gender identity is subject to Intermediate Scrutiny, as the Supreme Court has used Intermediate Scrutiny in past cases for “sex” classifications. o Rational Basis: For all other classes (age, disability, wealth, undocumented aliens), the court will apply the rational basis test. Under rational basis, the plaintiff must show that the classification is NOT rationally related to any legitimate government interest (any conceivable interest is sufficient, even if it is not the government’s actual interest in passing the law).
Takings (5th Amendment)
Under the Takings Clause of the 5th Amendment, the government may take private property for public use if it provides “just compensation.”
o A taking is deemed for public use when it is rationally related to a conceivable public purpose (public-purpose test). The right to compensation is triggered even when a third-party (not the
government) is given the right to occupy the property by the government taking. The Supreme Court has held that the government MAY transfer property from one private party to another if it’s for future public use and that’s the purpose of the taking. Public purposes may include public safety, public health, morality, peace and quiet, law and order, economic interests, or aesthetic values.
o Just compensation is measured by the fair market value of the property to the owner AT THE TIME OF the taking (relocation/moving costs are not included).
• Two types of takings exist:
• Possessory (per se) takings occur when the government physically takes or occupies the property, even if it’s just a small portion of the property. The physical invasion or appropriation must be permanent.
• Regulatory takings occur when the regulation (e.g. zoning ordinance) goes “too far.” The Supreme Court has divided regulatory takings into three categories.
o Depriving Owner of All Economically Viable Use (a per se taking): A regulation that completely deprives an owner of all economically beneficial use of her property is a per se taking. The government MUST pay just compensation for such “total regulatory takings,” UNLESS nuisance and property law independently restrict the owner’s intended use of the property.
o Penn-Central Taking: Courts will determine whether a regulatory taking occurred by balancing private and community interests under the three Penn Central factors: (1) the economic impact of the regulation
on the claimant; (2) the extent of interference with distinct investment-backed expectations (the owner’s primary expectation of use for the property); AND (3) the character of the governmental action
The Supreme Court in Penn Central recognized that the government may execute laws and programs that adversely affect recognized economic values in a wide variety of contexts. The Court has upheld land-use regulations (i.e. zoning laws) that destroyed or adversely affected recognized real property interests in instances where the government reasonably concluded that the health, safety, morals, or general welfare would be promoted by prohibiting particular contemplated uses of land.
o Conditions on Approval of a Permit (a.k.a. Land- Use Exaction): Conditions placed on the approval of permits DO NOT constitute an uncompensated taking under the 5th Amendment if: (1) there is an essential nexus between the state interest and the permit condition – the exaction (easement demanded) would substantially advance the same government interest that would furnish a valid ground for denial of the permit; AND (2) the government makes an individualized determination that the condition
is roughly proportional (in nature and extent) to advancing that state interest.
The Supreme Court has found the required nexus between a conditioned easement (bike path) and a city’s attempt to reduce traffic congestion by providing for alternative means for transportation.
