State Regulation Flashcards
Dormant Commerce Clause - state legislation affecting interstate commerce
The Dormant Commerce Clause is a doctrine that limits the power of states to legislate in ways that impact interstate commerce. If Congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate, so long as the state or local action does not: (i) discriminate against out-of-state commerce, (ii) unduly burden interstate commerce, or (iii) regulate extraterritorial (wholly out-of-state) activity. In this case, there is no federal statute or regulation relevant to this issue. A state or local regulation discriminates against out-of-state commerce if it protects local economic interests at the expense of out-of-state competitors.
When can legislation that discriminates against out-of-state residents be upheld
If a state or local regulation, on its face or in practice, is discriminatory, then the regulation may be upheld if the state or local government can establish that: (i) an important local interest is being served, and (ii) no other nondiscriminatory means are available to achieve that purpose.
When can a state act (not legislate) with discrimination against out of state business
A state may behave in a discriminatory fashion if it is acting as a market participant (buyer or seller), as opposed to a market regulator. If the state is a market participant, it may favor local commerce or discriminate against nonresident commerce as could any private business.
Standard of review: state law that violates dormant commerce clause
A state law that discriminates against interstate commerce is subject to strict review and is virtually per se unconstitutional. A nondiscriminatory state law that imposes an “incidental” burden on interstate commerce will nonetheless be unconstitutional if the benefits of the state law are grossly outweighed by the burdens on interstate commerce.
When does government regulation amount to a taking
Generally, a governmental regulation that adversely affects a person’s property interest is not a taking. However, it is possible for a regulation to rise to the level of a taking, such as when a regulation results in a permanent physical occupation of the property by the government or a third party or when a regulation results in a permanent total loss of the property’s economic value.
Factors for determining if a taking occurred
Even though the ordinance does not constitute an occupation of the property by either the government or a third party, it is still subject to a three-factor balancing test to determine whether the ordinance amounts to a regulatory taking. The following factors are considered: (i) the economic impact of the regulation on the property owner, (ii) the extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding use of the property, and (iii) the character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property.
Can cities bargain with private citizens to gain permission to commit acts that would otherwise be considered takings?
A local government may exact promises from a developer, such as setting aside a portion of the land being developed for a park in exchange for issuing the necessary construction permits. Such exactions do not violate the Takings Clause if there is (i) an essential nexus between legitimate state interests and the conditions imposed on the property owner (i.e., the conditions substantially advance a legitimate state interest), and (ii) a rough proportionality between the burden imposed by the conditions on property owner and the impact of the proposed development. In determining whether there is rough proportionality between the burden and the impact, the government must make an individualized determination that the conditions are related both in nature and extent to the impact.
Regulation of speech in a traditional public forum vs regulation in a designated public forum
A designated public forum is created when a government authority voluntarily opens a space under its control to speech, such as civic auditoriums, publicly owned theaters, or school classrooms that the public is allowed to use afterhours. All of the limits on governmental regulation of speech in a traditional public forum also apply to regulation of speech in a designated public forum. When a public school, as a designated public forum, permits the public to use its facilities, it cannot discriminate against organizations based on its beliefs.
Trespass on government property to protest first amendment violations
The First Amendment protects only speech and expressive conduct. Father was arrested for and convicted of trespassing on government property after entering and remaining in Principal’s office. It is questionable, at best, whether this conduct can be considered protected expression. If it is not considered expressive conduct, the First Amendment will provide no grounds for vacating the conviction.
