MEE one sheet con law

Question 1

Congress Commerce Powers

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

Congress’s powers under Commerce Clause

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

Commandeering

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

State power under Dormant Commerce Clause

Answer 4

1) 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). ***A state law that discriminates against interstate commerce is usually unconstitutional.

2) If a state law is nondiscriminatory on its face (i.e.,iti mposes 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. ***A state law that merely burdens interstate commerce is more likely to be constitutional.

Question 5

Common exception to Dormant CC

Answer 5

Market participant - If the state is acting as a market participant, it is allowed to favor its own residents.

Question 6

Plaintiff Suing under 1st/14th/15th Amendment

Answer 6

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.” (One cannot sue a business or a private individual
for, say, violating one’s free speech rights under the First Amendment.)

Question 7

State action required to sue under 1st/14th/15th Amendment

Answer 7

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 8

EPC Clause 3 standards

Answer 8

1) Strict Structiny
2) intermediate
3) rational basis

Question 9

EPC: Strict Scrutiny

Answer 9

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 10

1st Amendment

Answer 10

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

Remember, there must be a government regulation of private speech.

Question 11

Strict Scrutiny - 1st Amendment

Answer 11

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

Question 12

Symbolic Speech

Answer 12

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 13

Unprotected Speech

Answer 13

A law regulating unprotected speech needs to pass rational basis scrutiny.

Question 14

Unprotected Speech Categories:

Answer 14

1) Fighting Words
2) True Threats
3) Obsenity
4) incitement

Question 15

Incitement

Answer 15

Speech inciting immediate lawless or violent behavior (“clear and present danger”): speech that is directed at inciting and likely to incite imminent lawlessness.

Question 16

Fighting Words

Answer 16

words likely to incite an immediate violent reaction

Question 17

True threats or words as conduct

Answer 17

defamation, harassment, and other forms of “words
as conduct.

Question 18

Obsenity

Answer 18

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. Obscene speech is not usually tested.

Question 19

Commercial Speech

Answer 19

(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 20

Time Place Manner Restrictions

Answer 20

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 21

Speech in public schools

Answer 21

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

Question 22

Prior Restraint

Answer 22

stopping speech before it happens

Question 23

Overbroadness

Answer 23

prohibits substantially more expression than necessary

Question 24

vagueness

Answer 24

a reasonable person could not tell what is prohibited by law

Question 25

Right of press

Answer 25

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 26

Takings

Answer 26

A taking can be physical or regulatory (e.g., an exaction). 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. These 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 27

11th Amendment

Answer 27

The Eleventh Amendment precludes a federal court from exercising jurisdiction over a suit by a private party seeking to recover damages from the state. There are exceptions to this (e.g., if a federal statute properly abrogates immunity)