Missed Con Law Question Rules Flashcards
Tax Exemptions for Freedom of Press
FoP is guaranteed by the 1st amendment. Does not prohibit all govt regulation of the press but places limits on that regulation. Broadcasting companies can be subject to general business regulations and taxes but cannot be singled out for special tax. **This tax cannot be allowed unless there is a compelling justification to support it.
Do ex post facto laws apply to civil matters?
No. Ex post facto laws are laws that retroactively alter criminal law.
What does the contract clause prohibit?
Prohibits states from retroactively and substantially impairing contract rights unless the governmental act serves an important and legitimate govt. interest and is reasonable and narrowly tailored means of promoting that interest.
When does private action constitute state action?
Private action may constitute state action where the private actor is (a) performing exclusive state functions or (2) the government is significantly involved in the private actor’s activities.
What constitutes state involvement (entanglement) under the EPC?
Under the EPC in order for a private entity to have significant state involvement to be sued under the 14th amendment, the state must have affirmatively facilitated, encouraged, or authorized the acts of discrimination.
Establishment Clause
State law may not respect the establishment of religion and will be unconstitutional if it fails to pass any of the following: (i) it has a secular purpose, (ii) its primary effect neither advances nor inhibits religion, (iii) it does not produce excessive government entanglement with religion.
What to look out for in Establishment Clause question
The answer choices may go to the three tests that are associated with the Establishment Clause. TIP: look to see if the answer choices are relevant to the tests.
Procedural Due Process
the state must provide some fair process or procedure before it may deprive someone of life, liberty or property. Fair procedure at a minimum requires an opportunity to present objections to the proposed fair, neutral decision maker. **This will include a prior trial where someone has been convicted of violating a statute. No further hearing is necessary when the opportunity to be heard as occurred through a trial or an equivalent.
Does the press have a right to publish info about a matter of public concern?
Generally, yes. This right can be restricted only by as sanction that is narrowly tailored to further a state interest of the highest order. Right will apply even if Information has been unlawfully obtained, so long as, (1) speech relates to matter of public concern, (2) publisher did not obtain it unlawfully, and (3) the original speaker’s privacy expectation’s are low
Commerce Clause
Congress may regulate: (i) the channels of interstate commerce, (ii) instrumentalities of interstate commerce, or (iii) activities that have a substantial effect on interstate commerce. **Third prong will allow the court to uphold it if it involves economic or commercial activity as long as there is a conceivable basis to conclude that the activity in the aggregate will substantially affect interstate commerce.
TIP for Commerce Clause questions
If there is commercial activity involved look first to the third prong and determine if in the aggregate will the activity substantially affect interstate commerce.
Limitation of the Commerce Clause
Congress’s power under the CC does not supersede other powers that the constitution has specifically bestowed on another branch of government. **Note if executive branch is trying to exert a power, Congress cannot justify their subsequent action through the CC bc they cannot supersede other powers of other branches.
Powers of the President to Declare War
Under Art. II Section 2, the president, as commander in chief of the military is able to deploy military forces against any enemy, foreign or domestic.
State Power under the Commerce Clause
CC can place a limitation on the states.
State law vs. Fed. law (Powers under Commerce Clause)
If both are seeking to regulate commerce and a fed. law exists the Supremacy clause comes into play. If Congress authorizes or prohibits the state regulation, then Congress’s determination controls. If not, then you have to determine if the law is preempted.
