Privileges and Immunities Clause & Takings Clause Flashcards
Privileges and Immunities Clause - What is the comity clause?
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
Privileges & Immunities Clause- What rights are protected by the comity clause?
Nonresident citizens are protected against discrim. with respect to fundamental rights or essential activities
- Pursuit of employment
- transfer of prop
- access to state courts
Privileges & Immunities Clause- When may discrimination against out of state citizens be valid?
If the state can show a substantial reason for the difference in treatment. Exists when:
- The nonresidents cause or are part of the prob. that the stae is attempting to solve AND
- There are NO less restrictive means to solve the problem
Privileges & Immunities Clause - Comity Clause
What are two examples of constitutional non-resident discrimination ?
- Charging more for recreational licenses (hunting, fishing)
- Treating non-residents differently to preserve in-state natural resources
Privileges & Immunities Clause - Law discriminates with Respect to Fundamental Rights
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
Privileges & Immunities Clause - Corporations & Aliens
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
Privileges & Immunities Clause of the 14th Amendment
“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
Substantive Due Process - The Takings Clause
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.
Substantive Due Process - The Takings Clause
Possessory Taking
When gov’t confiscates or phys. occupies (Always a taking)
Substantive Due Process - The Takings Clause
Regulatory Taking
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
Substantive Due Process - The Takings Clause
Exaction as a Taking
Local gov’t may exact promises from developer. Exactions don’t violate the takings clause if there is:
- Essential nexus b/w legit. state int. and the cond. imposed on the prop. owner AND
- 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)
Substantive Due Process - The Takings Clause
Regulatory Taking - Regulation existed when prop. Acquired
Prop. owner can bring takings challenge to regulations even if reg. existed when property acquired
Substantive Due Process - The Takings Clause
Regulatory Taking - Temp. Denial of Use of Property
Temp. denial of devel. of prop. NOT taking if gov’t action is reas.
Substantive Due Process - The Takings Clause
Public Use Requirement
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.
Substantive Due Process - The Takings Clause
Just Compensation Requirement
Measured by the Loss to the Owner
- FMV measured in terms of loss to the owner
- Gain to gov’t is not relevant
