Privileges and Immunities Clause & Takings Clause

Question 1

Privileges and Immunities Clause - What is the comity clause?

Answer 1

Prohibits one state from discriminating against the citizens of another state

• Protects interstate travel when an out of state visitor is only visiting another state
• Citizen doesn’t include corp. or aliens
• Does NOT apply to the federal gov’t

Question 2

Privileges & Immunities Clause- What rights are protected by the comity clause?

Answer 2

Nonresident citizens are protected against discrim. with respect to fundamental rights or essential activities

• Pursuit of employment
• transfer of prop
• access to state courts

Question 3

Privileges & Immunities Clause- When may discrimination against out of state citizens be valid?

Answer 3

If the state can show a substantial reason for the difference in treatment. Exists when:

1. The nonresidents cause or are part of the prob. that the stae is attempting to solve AND
2. There are NO less restrictive means to solve the problem

Question 4

Privileges & Immunities Clause - Comity Clause

What are two examples of constitutional non-resident discrimination ?

Answer 4

1. Charging more for recreational licenses (hunting, fishing)
2. Treating non-residents differently to preserve in-state natural resources

Question 5

Privileges & Immunities Clause - Law discriminates with Respect to Fundamental Rights

Answer 5

Clause only protects rights that are fund. to national unity (civil lib. or commercial activities)

• Civil Liberties, OR
• Commercial Activities - Fund. econ. activities that affect one’s ability to earn a livelihood
  
  • Non-econ. activities are not protected by Priv. & Imm. Clause

Question 6

Privileges & Immunities Clause - Corporations & Aliens

Answer 6

Clause doesn’t protect corp. and aliens

• BUT they’re protected by equal protection & Due Process clauses of 14th Amend. as well as Dormant Commerce clause

Question 7

Privileges & Immunities Clause of the 14th Amendment

Answer 7

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US”

• This clause, only relates to freedom to travel

Question 8

Substantive Due Process - The Takings Clause

Answer 8

The gov’t may take private prop. for pub. use if it provides just compensation. A taking can be possessory or regulatory

• Fed. Gov’t = 5th Amend.
• State & Local Gov’t = 14th Amend.

Question 9

Substantive Due Process - The Takings Clause

Possessory Taking

Answer 9

When gov’t confiscates or phys. occupies (Always a taking)

Question 10

Substantive Due Process - The Takings Clause

Regulatory Taking

Answer 10

Gov’t reg. that eliminates the investment backed expectation & economic value of an individuals prop.

• Gov’t must pay just compensation regardless of reas. for reg.
• Mere decrease in value is not enough to find a reg. taking

Question 11

Substantive Due Process - The Takings Clause

Exaction as a Taking

Answer 11

Local gov’t may exact promises from developer. Exactions don’t violate the takings clause if there is:

1. Essential nexus b/w legit. state int. and the cond. imposed on the prop. owner AND
2. Rough proportionality b/w burden imposed by cond. on prop. owner and the impact of the proposed development

(e.g. setting aside portion of land being dev. for a park in exchange for issuing nec. construction permits)

Question 12

Substantive Due Process - The Takings Clause

Regulatory Taking - Regulation existed when prop. Acquired

Answer 12

Prop. owner can bring takings challenge to regulations even if reg. existed when property acquired

Question 13

Substantive Due Process - The Takings Clause

Regulatory Taking - Temp. Denial of Use of Property

Answer 13

Temp. denial of devel. of prop. NOT taking if gov’t action is reas.

Question 14

Substantive Due Process - The Takings Clause

Public Use Requirement

Answer 14

For Poss. or Reg. Taking to be const. it must be for public use

• Requirement satisfied if gov’t acts under reas. belief that taking will ben. pub.

Question 15

Substantive Due Process - The Takings Clause

Just Compensation Requirement

Answer 15

Measured by the Loss to the Owner

• FMV measured in terms of loss to the owner
• Gain to gov’t is not relevant

Question 16

Substantive Due Process - The Takings Clause

Effect of Invalid Taking

Answer 16

Invalid Taking

• Terminate the gov’t regulation &
• Pay owner for damages that accrued when the invalid regulation was in effect

Question 17

Takings clause - Standing

Answer 17

Person must have a property interest that the government takes

• Includes phys. damage to prop. or interference with owner’s rights by gov’t action
• Exception - Public Peril
  
  • Gov’t dest. of private prop. in respnse to pub. peril doesn’t trigger just compensation

Question 18

Takings Clause - Types of Property that fall under the takings clause ?

Answer 18

1. Real Prop.
2. Tangible personal prop.
3. Intangible Property
   
   • Contract & Patent rights
   • Trade Secrets

Question 19

Takings Clause - Regulatory Taking

Per Se Taking

Answer 19

A regulation clearly results in a taking when:

1. Perm. Physical Occupation of the prop. OR
2. Reg. results in a perm. total loss of the prop. econ. value

Question 20

Takings Clause - Just Compensation

Property worthless to the owner but has value to gov’t

Answer 20

May be taken without compensation

Question 21

Takings Clause - Just Compensation

Only a portion of owner’s prop. is taken

Answer 21

Owner may receive compensation for any diminution in value of the remaining portion that is attributable to the taking

• BUT must reduce any compensation by the value of any special and direct benefits conferred on the remaining portion