Constitutional Law

Question 1

Congress’s Power Pursuant to Commerce Claus

Answer 1

Congress can regulate the channels and instrumentalities of interstate commerce, persons and things in interstate commerce, or anything that has a substantial effect on interstate commerce

• It can regulate anything economic or anything noneconomic that substantially affects interstate commerce

Question 2

Commandeering

Answer 2

Congress cannot commandeer states to enforce federal law.

• Congress will either have to regulate directly or regulate indirectly by threatening to take away funding if states do not adopt a certain law

Question 3

Dormant Commerce Clause

Answer 3

States lack the power to discriminate against interstate commerce or unreasonably burden it

• If a state law discriminates against interstate commerce, it is invalid unless the state can show that the law is NECESSARY to serve a COMPELLING state interest and there is no reasonable nondiscriminatory alternative (SS)
• IF a state law is nondiscriminatory on its face but 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

Question 4

Market Participant Exception

Answer 4

If the state is acting as a market participant, it is allowed to favor its own citizens

Question 5

Congress’s powers are limited to:

Answer 5

Those given to it by the constitution

• It has the power to enforce constitutional rights under its enforcement power found in the 13th, 14th, and 15th amendments, but it does not have the power to expand rights

Question 6

Suits pursuant for Free Speech (1st), EPC (14th), or Voting Rights (15th)

Answer 6

If a P is suing pursuant to any of those amendments, P needs to find a government actor or action fairly attributable to the government

• 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 traditionally government funciton, or when private action is closely controlled by the state

Question 7

Three Standards Pursuant to Equal Protection Clause

Answer 7

SS: applies to fundamental rights, racial or ethnic discrimination, and alienage when the classification is made by the state
- gov must prove narrowly tailored to achieve compelling interest

IS: Gender and illegitimacy
- gov must prove classification is substantially related to important gov interest

RB: every other classification (poverty, wealth, age, education, etc.)
- P must prove no rational relationship to legit gov interest

Question 8

The First Amendment applies to the states through:

Answer 8

The Due Process Clause of the Fourteenth Amentment

• government regulation of private speech

Question 9

Content BASED or VIEWPOINT based Discrimination

Answer 9

Forbidding communication about certain ideas or viewpoints

• Subject to SS

Question 10

Symbolic Speech

Answer 10

Law that regulates conduct and places an incidental burden on speech is constitutional if the regulation is narrowly tailored to an important government interest and unrelated to suppression of speech

Question 11

Unprotected Speech

Answer 11

Law regulating unprotected speech needs to pass rational basis

• Speech inciting immediate lawless or violent behavior
• Fighting words
• True threats or words as conduct (defamation, harassment)
• Obscene speech

Question 12

Commercial Speech

Answer 12

(1) speech must be lawful and not misleading,
(2) law must serve a substantial governmental interest,
(3) law must directly advance that interest, and
(4) law must be narrowly tailored

Question 13

Sexual or Indecent Speech

Answer 13

Law must serve substantial government interest and leave open reasonable alternative channels

Question 14

Time-place-or-manner restriction

Answer 14

Public Forum: must be content neutral, narrowly tailored to serve an important governmental interest, and leave open ample channels of communication

Nonpublic Forum: Viewpoint neutral and reasonably related to legit governmental interest

Question 15

Speech in Public Schools

Answer 15

May be regulated so long as regulations are reasonably related to legit pedagogical concerns

Question 16

Prior Restraints

Answer 16

Prior restraints on speech are unconstitutional unless:

Question 17

Overbroad or Vague

Answer 17

If a law is overbroad or vague such that a reasonable person could not tell what is prohibited, it is unconstitutional

Question 18

Rights of Corporations

Answer 18

Independent political expenditures by a for-profit corporation constitutes free speech protected by the First Amendment

Question 19

Eminent Domain

Answer 19

Neither the federal government nor the state may take private property for public use without just compensation

• Arises from the Fifth Amendment and is applied to the states through the Fourteenth Amendment
• “Public use” is defined broadly and may include giving land to a private party for commercial development

Question 20

Physical Taking

Answer 20

Occurs when there is a permanent physical occupation regardless of what public interests it may serve

Question 21

Regulatory taking

Answer 21

When a regulation deprives an owner of all economically beneficial use of her property or destroys all reasonable investment back expectations, it is a taking

Question 22

Exaction

Answer 22

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 gov can show a legit government interest and rough proportionality

Question 23

11th Amendment

Answer 23

Precludes a federal court from exercising jurisdiction over a suit by a private party seeking to recover damages from the state