MEE Essentials: CON

Question 1

Dormant Commerce Clause: Discriminatory Law Standard + Usual outcome

Answer 1

1) Strict scrutiny AND 2) no reasonable non-discriminatory alternative

Usually UNCONSTITUTIONAL

Question 2

Dormant Commerce Clause: Non-Discriminatory Law Standard + Usual outcome

Answer 2

If nondiscriminatory on face but still imposes burden, valid only if:

1) serves IMPORTANT state interest +

2) does not impose UNREASONABLE BURDEN

Usually CONSTITUTIONAL

Question 3

Market-participant doctrine

Answer 3

A state can favor its own residents if it acts as business/market participant and NOT regulator

Question 4

Can Congress expand rights? Which rights can it enforce?

Answer 4

CANNOT expand rights

CAN enforce 13A, 14A and 15A

Question 5

For what amendment lawsuits is state action required?

Answer 5

1A, 14A, 15A

Must sue GOVT ACTOR or action “FAIRLY ATTRIBUTABLE TO THE GOVT”

Question 6

State Action occurs when?

Answer 6

1) state passes law
2) state officials act
3) private actor performs TRADITIONAL AND EXCLUSIVE govt function OR
4) private actor CONTROLLED by state

Question 7

To which groups does SS apply?

Answer 7

Fundamental rights
Race/ethnicity
Religion
Alienage when made by STATE

Question 8

When does RB apply to alienage?

Answer 8

–illegal alien regulation
–Congress regulating citizenship
–public-function doctrine (states deciding whether aliens may participate in local govt)

Question 9

Opening line for speech essay re: 1A application to states

Answer 9

The First Amendment applies to states through the Due Process Clause of the 14th Amendment

Question 10

What standard applies to content-based regulation

Answer 10

Strict scrutiny

Question 11

What standard relates to viewpoint-based regulation

Answer 11

Strict scrutiny

Question 12

Symbolic speech standard

Answer 12

1) narrowly tailored
2) IMPORTANT govt interest
3) suppression not related to interest

Question 13

Unprotected speech standard

Answer 13

rational basis

Question 14

Four types of unprotected speech

Answer 14

1) incitement of lawlessness/violence
2) fighting words
3) true threats/defamation
4) obscenity

Question 15

Incitement of violence vs. fighting words

Answer 15

Incitement of violence = clear and present danger, likely to incite imminent lawlessness

fighting words = likely to incite imminent VIOLENT reaction

Question 16

True threats/defamation

Answer 16

Defamation, harassment, and other WORDS AS CONDUCT

Question 17

Obscene speech

Answer 17

1) appeals to prurient interests

2) describes sex in patently offensive way

3) no artistic/political/scientific value

Question 18

Commercial speech standard

Answer 18

1) lawful and not misleading

2) substantial govt interest

3) directly advances govt interest

4) narrowly tailored

Question 19

Sexual or indecent speech (not to level of obscenity) standard

Answer 19

1) substantial gov interest

2) reasonable alternative channels

Question 20

Public forum/time place manner restriction standard

Answer 20

1) content neutral
2) narrowly tailored
3) IMPORTANT govt interest
4) alternative channels

Question 21

Non-public forum standard

Answer 21

1) viewpoint neutral

2) rational basis (reasonably related toLEGITIMATE govt interest)

Question 22

Presumption of unconstitutionality for what qualities in statutes

Answer 22

1) prior restraint
2) overbroad
3) vague

Question 23

1A publishing rights of press

Answer 23

Same free speech as people

Can publish info that is 1) lawfully obtained
2) matter of public concern

Question 24

Political expenditures by corps: 1A protection?

Answer 24

YES

Question 25

Physical taking

Answer 25

PERMANENT PHYSICAL OCCUPATION of land

Question 26

How is Takings Clause applied to states?

Answer 26

Arises in 5A, applied to states through 14A

Question 27

When is a regulation a taking?

Answer 27

When it deprives owner of

1) ALL ECONOMICALLY BENEFICIAL USE or

2) destroys reasonable INVESTMENT-BACKED EXPECTATIONS

OR: regulatory taking (economic impact/interference/character)

Question 28

Exaction defintion + standard

Answer 28

Exaction = regulation restricts owner’s use as condition of development or zoning

Standard: legitimate govt interest + roughly proportional