Economic Liberties

Question 1

Level of Scrutiny for Laws Affecting Economic Rights

Answer 1

RBR

Question 2

The Takings Clause Definition

Answer 2

The government may take private property for public use if it provides just compensation.

Question 3

Takings Clause Analysis

Answer 3

Is there a taking?
1. Possessory taking: Government confiscation or physical occupation of property is a taking.
2. Regulatory taking: Government regulation is a taking if it leaves no reasonable economically viable use of the property.

Is it for public use?

Is just compensation paid?

Question 4

Contracts Clause Definition

Answer 4

No state shall impair the obligations of contracts

NOTE: Applies only to state or local interference with existing contracts

Question 5

State or local interference with PRIVATE contracts

Answer 5

Must meet intermediate scrutiny:
- Does the legislation substantially impair a party’s rights under an existing contract?

• If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?

Question 6

State or local interference with GOVERNMENT contracts

Answer 6

Must meet strict scrutiny

The ex post facto clause does not apply in civil cases
* i.e., a law that criminally punishes conduct that was lawful when it was done, or increases punishment for a crime after it was committed