MEE Essentials: CON Flashcards
Dormant Commerce Clause: Discriminatory Law Standard + Usual outcome
1) Strict scrutiny AND 2) no reasonable non-discriminatory alternative
Usually UNCONSTITUTIONAL
Dormant Commerce Clause: Non-Discriminatory Law Standard + Usual outcome
If nondiscriminatory on face but still imposes burden, valid only if:
1) serves IMPORTANT state interest +
2) does not impose UNREASONABLE BURDEN
Usually CONSTITUTIONAL
Market-participant doctrine
A state can favor its own residents if it acts as business/market participant and NOT regulator
Can Congress expand rights? Which rights can it enforce?
CANNOT expand rights
CAN enforce 13A, 14A and 15A
For what amendment lawsuits is state action required?
1A, 14A, 15A
Must sue GOVT ACTOR or action “FAIRLY ATTRIBUTABLE TO THE GOVT”
State Action occurs when?
1) state passes law
2) state officials act
3) private actor performs TRADITIONAL AND EXCLUSIVE govt function OR
4) private actor CONTROLLED by state
To which groups does SS apply?
Fundamental rights
Race/ethnicity
Religion
Alienage when made by STATE
When does RB apply to alienage?
–illegal alien regulation
–Congress regulating citizenship
–public-function doctrine (states deciding whether aliens may participate in local govt)
Opening line for speech essay re: 1A application to states
The First Amendment applies to states through the Due Process Clause of the 14th Amendment
What standard applies to content-based regulation
Strict scrutiny
What standard relates to viewpoint-based regulation
Strict scrutiny
Symbolic speech standard
1) narrowly tailored
2) IMPORTANT govt interest
3) suppression not related to interest
Unprotected speech standard
rational basis
Four types of unprotected speech
1) incitement of lawlessness/violence
2) fighting words
3) true threats/defamation
4) obscenity
Incitement of violence vs. fighting words
Incitement of violence = clear and present danger, likely to incite imminent lawlessness
fighting words = likely to incite imminent VIOLENT reaction
True threats/defamation
Defamation, harassment, and other WORDS AS CONDUCT
Obscene speech
1) appeals to prurient interests
2) describes sex in patently offensive way
3) no artistic/political/scientific value
Commercial speech standard
1) lawful and not misleading
2) substantial govt interest
3) directly advances govt interest
4) narrowly tailored
Sexual or indecent speech (not to level of obscenity) standard
1) substantial gov interest
2) reasonable alternative channels
Public forum/time place manner restriction standard
1) content neutral
2) narrowly tailored
3) IMPORTANT govt interest
4) alternative channels
Non-public forum standard
1) viewpoint neutral
2) rational basis (reasonably related toLEGITIMATE govt interest)
Presumption of unconstitutionality for what qualities in statutes
1) prior restraint
2) overbroad
3) vague
1A publishing rights of press
Same free speech as people
Can publish info that is 1) lawfully obtained
2) matter of public concern
Political expenditures by corps: 1A protection?
YES
Physical taking
PERMANENT PHYSICAL OCCUPATION of land
How is Takings Clause applied to states?
Arises in 5A, applied to states through 14A
When is a regulation a taking?
When it deprives owner of
1) ALL ECONOMICALLY BENEFICIAL USE or
2) destroys reasonable INVESTMENT-BACKED EXPECTATIONS
OR: regulatory taking (economic impact/interference/character)
Exaction defintion + standard
Exaction = regulation restricts owner’s use as condition of development or zoning
Standard: legitimate govt interest + roughly proportional
