MEE Constitutional Law

Question 1

Type the rule for interstate commerce. Who has the power to regulate it? If states regulate interstate commerce the absence of congressional regulation, what two tests are used to determine if it’s constitutional?

Answer 1

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 usually unconstitutional under a strict scrutiny standard. If it is merely a “burden” on interstate commerce, it is more likely to be constitutional.

Question 2

What are the three types of things Congress can regulate re: interstate commerce?

Answer 2

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).

Question 3

Can Congress commandeer states? What can they do instead?

Answer 3

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).

Question 4

What does the Dormant Commerce Clause mean for states?

Answer 4

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.)

Question 5

What happens if a state law discriminates against interstate commerce?

Answer 5

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).

Question 6

What happens if a state law is nondiscriminatory on its face, but still burdens interstate commerce?

Answer 6

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.

Question 7

What are four other exceptions to the Dormant Commerce Clause?

Answer 7

(i) State as a Market Participant

(i) Traditional government function exception

(iii) Subsidies

(iv) Federal/Congressional Approval

Question 8

What are Congress’s powers under the Thirteenth, Fourteenth, or Fifteenth Amendments?

Answer 8

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.

Question 9

What is required to sue under the First, Fourteenth, or Fifteenth Amendment?

Answer 9

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.”

Question 10

Define state action.

Answer 10

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.

Question 11

Define strict scrutiny and when it applies.

Answer 11

Under strict scrutiny, the government must prove that the law is narrowly tailored (necessary) to achieve a compelling interest.
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).

Question 12

Define intermediate scrutiny and when it applies.

Answer 12

The government must prove the classification is substantially related to an important government interest. This applies to classifications regarding gender and illegitimacy.

Question 13

Define rational basis review and when it applies.

Answer 13

The plaintiff must prove that the law is not rationally related to a legitimate government interest. This applies to every other classification—poverty, wealth, age, education, etc.

Question 14

How does the First Amendment apply to the states?

Answer 14

The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment

Question 15

When does a government regulation of speech face strict scrutiny?

Answer 15

The government faces strict scrutiny if engages in content-based discrimination (forbidding communication about certain ideas) or viewpoint- based discrimination (forbidding communication about a certain viewpoint).

Question 16

When is the regulation of symbolic speech constitutional?

Answer 16

A law which regulates conduct and places an incidental burden on speech is constitutional if the regulation is narrowly tailored to an important governmental interest and is unrelated to the suppression of the speech.

Question 17

What types of speech are not protected under the First Amendment?

Answer 17

Speech inciting immediate lawless or violent behavior; fighting words; true threats or words as conduct; and obscene speech.

Question 18

What standard do regulations of unprotected speech need to pass?

Answer 18

Rational basis review.

Question 19

Define speech inciting immediate lawless or violent behavior.

Answer 19

Speech that is directed at inciting and likely to incite imminent lawlessness.

Question 20

Define fighting words.

Answer 20

Words likely to incite an immediate violent reaction.

Question 21

Give examples of true threats or words as conduct.

Answer 21

Defamation, harassment, and other forms of “words as conduct.”

Question 22

Define the test for obscene speech.

Answer 22

The test for obscenity examines whether the speech appeals to a prurient interest in sex, whether it depicts or describes sexual conduct in a patently offensive way, and whether it lacks serious literary, artistic, political, or scientific value.

Question 23

What standard are regulations of commercial speech tested under?

Answer 23

The law must meet the Central Hudson test, which states that (1) the
speech must be lawful and not misleading, (2) the statute must serve a substantial governmental interest, (3) the statute must directly advance that interest, and (4) the statute must be narrowly tailored.

Question 24

What standard are regulations of sexual or indecent speech tested under?

Answer 24

The law must serve a substantial governmental interest and leave open reasonable alternative channels of communication.

Question 25

What two standards are time, place, or manner restrictions tested under?

Answer 25

A restriction in a public forum—i.e., one historically associated with free speech rights (e.g., streets, sidewalks, parks), or a designated public forum (e.g., a school that opens its doors to after-school activities) must be content neutral, narrowly tailored to serve an important governmental interest, and leave open alternative channels of communication.

A restriction in a nonpublic forum (e.g., airports, government workplaces, etc.) must be viewpoint neutral and reasonably related to a legitimate governmental interest.

Question 26

What standard are regulations in public schools tested under?

Answer 26

While students have free speech rights, speech in schools may be regulated so long as the regulations are reasonably related to legitimate pedagogical (educational) concerns.

Question 27

What rights do the press have?

Answer 27

The press has no greater free speech rights than anyone else. The press may publish information that is lawfully obtained and that is a matter of public concern.

Question 28

What rights do corporations have?

Answer 28

Independent political expenditures by a for-profit corporation constitutes free speech protected by the First Amendment.

Question 29

What happens if there is a prior restraint, an overbroad law, or a vague law? Define each.

Answer 29

There is a presumption against a prior restraint (stopping speech before it happens). If a law is overbroad (prohibits substantially more expression than necessary) or vague (a reasonable person could not tell what is prohibited by the law), it is unconstitutional.

Question 30

Define eminent domain and where the right arises from.

Answer 30

Neither the federal government nor the state may take private property for public use without just compensation. This arises from the Fifth Amendment and is applied to the states through the Fourteenth Amendment.

Question 31

What is a public use?

Answer 31

A “public use” is defined broadly and may include giving land to a private party for commercial development.

Question 32

Explain when a taking occurs.

Answer 32

A taking can be physical or regulatory (e.g., an exaction). A physical taking occurs when there is a permanent physical occupation regardless of what public interests it may serve.

Question 33

When does a regulation rise to the level of a taking?

Answer 33

When a regulation deprives an owner of all economically beneficial use of her property or destroys all reasonable investment-backed expectations, it is a taking.

Question 34

When does an exaction exist?

Answer 34

An exaction exists when the government enacts a regulation that restricts the owner’s use of a property as a condition to allowing the owner to develop the land.

Question 35

When does an exaction not rise to the level of a taking?

Answer 35

Exactions are takings unless the government can show a legitimate government interest and “rough proportionality” (i.e., the adverse impact of the proposed development is roughly proportional to the loss suffered by the property owner).

Question 36

What does the Eleventh Amendment do?

Answer 36

The Eleventh Amendment precludes a federal court from exercising jurisdiction over a suit by a private party seeking to recover damages from the state.

Question 37

What are two exceptions to the general rule about the Eleventh Amendment?

Answer 37

Congress may expressly repeal state immunity if acting to enforce rights under the 13th, 14th, and 15th Amendments.

And when a state official, rather than the state itself, is named as the defendant, the state official may be enjoined from enforcing a state law that violates federal law, or may be compelled to act in accord with federal law despite state law to the contrary.