Mee One Sheets Flashcards
Key principle #1:
Congress has tpower to regulate interstate commerce. When states regulate interstate commerce in the absence of congressional regulation, one/two tests is used to determine if state law is constitutional. If 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.
- Congress can regulate *channels & instrumentalities *of interstate commerce, persons & things in interstate commerce, or anything that has a “substantial effect” on interstate commerce—meaning, it can regulate anything economic/anything noneconomic that “substantially affects” interstate commerce (even if it is purely “intrastate”—i.e., within a state).
- Congress cannot, however, “commandeer” states & force states to enforce fed laws.
- Congress will either have to regulate directly (if within commerce power) or regulate indirectly by threatening to take away funding if state does not adopt a law (Congress’s spending power).
- States lack power to discriminate against interstate commerce or unreasonably burden it. (Dormant Commerce Clause/negative Commerce Clause.)
- If a law discriminates against interstate commerce, it is invalid unless state can show that law was necessary to serve a compelling state interest & there is no reasonable nondiscriminatory alternative (strict scrutiny).
- A state law that discriminates against interstate commerce is usually unconstitutional.
- If a state law is nondiscriminatory on its face (imposes same burden on those in-state & 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.
- A tested exception to the Dormant Commerce Clause is the market-participant doctrine (i.e., the state is acting as a market participant/business rather than regulator).
- If state is acting as a market participant, it is allowed to favor its own residents
Key principle #2:
- 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 13th, 14th, & 15th Amends, but it does not have power to expand rights
Key principle #3: state action is required in order to sue under the First, Fourteenth, or Fifteenth Amendment.
- General rule: If P is suing under 1st, 14th, or 15th Amend (for free speech, DP, EPC issues, or voting rights) P needs to find a gov action /action “fairly attributable to the gov.” (One cannot sue a business/private individual for, say, violating one’s free speech rights under 1st Amendment.)
- State action: 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 & exclusive gov function (e.g., conducting elections, or running a company town—this is pretty narrow), or when private action is closely controlled by the state.
Key principle #4: the Equal Protection Clause has three standards to be aware of.
- Strict scrutiny: The government must prove that the law is narrowly tailored (necessary) to achieve a
compelling interest. (The government usually loses under a strict scrutiny analysis.) 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 publicfunction
doctrine applies or if the law regulates illegal aliens). - Intermediate scrutiny: The government must prove the classification is substantially related to an
important government interest. This applies to classifications regarding gender and illegitimacy. (July
2011) - Rational basis: The plaintiff must prove that the law is not rationally related to a legitimate government
interest. (The plaintiff usually loses.) This applies to every other classification—poverty, wealth, age,
education, etc.
Key principle #5: Freedom of speech is heavily tested in Constitutional Law MEE questions! A few times,
freedom of speech has been tested in the context of a trespass or a criminal claim.
Start your essay as follows: “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
Strict scrutiny
means that the government must show that the regulation is necessary to serve a
compelling state interest and is narrowly tailored to that end. The government faces strict scrutiny if it
engages in content-based discrimination (forbidding communication about certain ideas) or viewpointbased
discrimination (forbidding communication about a certain viewpoint).
Unprotected speech: A law regulating unprotected speech needs to pass rational basis scrutiny.
The following categories of speech are not protected under the First Amendment:
- Speech inciting immediate lawless or violent behavior (“clear and present danger”):
speech that is directed at inciting and likely to incite imminent lawlessness. (July 2009) - Fighting words: words likely to incite an immediate violent reaction. (July 2009)
- True threats or words as conduct: defamation, harassment, and other forms of “words
as conduct.” (July 2009) - Obscene speech: 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.
Symbolic speech:
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
Some classes of speech are protected—just a little less:
§ Commercial speech: 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.
§ Sexual or indecent speech: the law must serve a substantial governmental interest and leave
open reasonable alternative channels of communication.
§ Time-place-or-manner restriction: 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
Speech in public schools:
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
Principles to keep in mind:
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.
Rights of the press:
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.
Rights of corporations:
independent political expenditures by a for-profit corporation constitutes free
speech protected by the First Amendment
Key principle #6: Eminent domain. 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. A “public use” is defined broadly and may include giving land to a private party for
commercial development.
- 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. (Sept 2020) - 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. (Sept 2020) - 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)
Key principle #7:
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).
