Important Clauses

Question 1

Takings Clause

Answer 1

5th Amendment
1) Direct gov. appropriation
2) Regulatory Taking
3) Temporary Restrictions
4) Conditional Permits

Question 2

Regulatory Taking

Answer 2

General –does it deprive property owner of all econ. beneficial use of land?
Balance (Penn Central):
-Economic impact
-Inference with investment-backed expectations re: land
-Character of gov. action
OR
Reg. req. permanent physical invasion (ex. cable lines) = almost def. taking

Question 3

Taking: Conditional Permits

Answer 3

Need
1) logical nexus AND
2) rough proportionality

Question 4

11th A

Answer 4

State sovereign immunity–private citizens cannot sue state for monetary relief w/out state’s consent

Exception: Congressional authorization under Recon. Amendments

Question 5

Supremacy Clause

Answer 5

Valid fed. law preempts state law if designed w/ intent to preempt state law–“occupy the field”

Question 6

10th Amendment

Answer 6

Mainly–anti-commandeering

Can’t force states to act in sovereign capacity–can’t force states to legislate or enforce specific laws (ex. federal laws)

Question 7

Commerce Clause

Answer 7

-Channels of interstate commerce (highways, waterways, air traffic)

-Instrumentalities of interstate commerce–what travels in i. comm. (cars, trucks, boats, etc)

-Activities that substantially affect interstate commerce (substantial effect, cumulative effect, comprehensive scheme)

CANNOT regulate intrastate noneconomic activity (that is not part of comprehensive scheme
CAN reg intrastate economic (ex. loansharking–sub. effect on comm)

Under umbrella = valid–true motive irrel. (ex. to punish)

Question 8

Taxing Power

Answer 8

Impose + collect taxes to pay debts + spend for gen welfare

Raises revenue (objective test) OR
Designed to raise revenue (subjective test) OR
Congress has power to regulate what being taxed (regulatory test)

True purpose irrel. if meet test

Question 9

Spending Power

Answer 9

CAN place conditions on receipt of fed funds IF
1) Spending serves gen. welfare AND
2) Condition unambiguous AND
3) Condition related to goal of fed program (relatedness) AND
4) Amount in question not so much that state “coerced” into acceptance

Can also use re: highways/transport (ex. small local bridge

Question 10

Dormant Commerce Clause

Answer 10

States CANNOT discriminate v. out of state economic actors

Comm. Clause + D.P. Clause of 14th

Two types:
1) Discrim. on face = state must show compelling interest + necessary
2) Applied evenhandedly–OK, unless burden on. interstate comm. clearly excessive v. “benefit”

Question 11

Due Process Clause of 14th

Answer 11

-Violations of the Bill of Rts by state gov
-Dormant Commerce Clause (+ Commerce Clause: state discrimination v. out of state econ. actors)
-Procedural D.P and substantive D.P. (state)
-Also protects non-citizens + corps.

Question 12

Due Process Clause of 5th

Answer 12

Violations of the Bill of Rights by federal gov
Procedural d.p. and substantive d.p. (federal)
Also protects non-citizens + corps

Question 13

Privileges or Immunities Clause

Answer 13

14th A
V. limited–only applies to privileges of U.S. citizenship

-Travel across state lines + estab residence in new state (NOT discrim. v. non-residents: that’s priv. and imm)
-Petition Congress
-Vote for fed office
-Assemble
-Enter public lands

DOES NOT apply to corps, non-citizens

Question 14

Privileges and Immunities Clause

Answer 14

Article 4
“The citizens of each State shall be entitled to the Privileges and Immunities of Citizens of the Several States”

Prohibits state discrim. v. non-residents re rts/activities fund. to nat’l union (ex. employment, taxes, licenses)

Uncon. UNLESS show sub. relation to sub. state interest
N/A re: corporations

Question 15

Privileges and Immunities Clause vs. Dormant Commerce Clause

Answer 15

Priv. + Immunities Clause = re: discrim. v. out-of-state residents re: fund. activities
N/A re: corporations

Dormant Commerce Clause = re: interference w/ flow of out-of-state commerce/econ. actors
Applies to corporations

Question 16

Contract Clause

Answer 16

“No state shall…pass any Law…Impairing the Obligation of Contracts”–A. 1 Sec. 10

Only re: state legislation
Consider
1) Severity of impairment
2) Importance of public interest

Question 17

Ex post facto Laws

Answer 17

2 clauses–fed. gov + states

Applies to retroactive criminal laws

CANNOT
1) Criminalize act not crime when committed
2) Impose greater punishment
3) Decrease evidence required for conviction
4) Extends criminal SOL when previous SOL expired

Question 18

Bills of Attainder

Answer 18

2 clauses–fed. gov + states

Leg act imposing punishment w/out trial on named individuals or easily ascertainable group

Q: is act equivalent to legislative punishment? (vs. subpoena, etc.–non-punitive)