Federal Con Law Flashcards
10th Amendment Federalism
The 10th amendment gives States the general authority to regulate for the health, safety, morals, and general welfare - as long as those powers are not delegated to the federal government by the constitution.
Federalism principles are violated when the federal government usurps control from the individual states. The federal government may not commandeer the state governmental process.
Anti-commandeering limitation prevents the federal government from commanding the state to do its bidding, if federal law mandates that states legislate or enact policy then it is unconstitutional.
If Congress regulates or taxes a state as a state then the regulation or tax is invalid (intergovernmental immunity)
Comity Clause
The Comity Clause or the privileges and immunities clause of Article IV, prohibits a State from discriminating against out-of-state citizens concerning essential activities. (i.e., owning property, traveling, access to courts, working/making a living)
Citizens does not include corporations or aliens.
Commerical Speech
Commercial speech, such as advertising, is entitled to an intermediate level of First Amendment protection as long as it is not illegal, false, or misleading.
Commercial speech may only be regulated if the Government can show the regulation directly advances a substantial government interest in way that is narrowly tailored to meet that interest.
In this context, narrowly tailored means there is a “reasonable fit” between the ends and the means.
Dormant Commerce Clause
Under the Commerce Clause, Congress has the power to regulate the channels, instrumentalities, and any activity that substantially affects interstate commerce.
Under the DCC, 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 does not (i) discriminate against out-of-state commerce, (ii) unduly burden interstate commerce, or (iii) regulate extraterritorial activity.
If the law is discriminatory on its face the State has the burden to show that there is an important local interest and there are no other nondiscriminatory means to achieve that purpose.
If the law has a discriminatory effect that burdens interstate commerce the courts will balance the local interest against the burden on interstate commerce.
Dormant Commerce Clause Exception
Market participant exception is when a state enters the market as a buyer or seller of goods or services, that state is allowed to discriminate in favor of in-staters within the confines of a narrowly-defined market.
State and local regulations may favor state and local government entities when performing traditional government functions, such as waste disposal.
Equal Protection
The Due Process Clause of the Fifth Amendment (federal government) and The Equal Protection Clause of the Fourteenth Amendment (state action) provides that no person shall be deprived of any right because of race, ethnicity, national origin.
These are suspect classes that are subject to strict scrutiny. To pass strict scrutiny the government must show that law is necessary to achieve a compelling governmental interest (narrowly tailored and least restrictive mean)
Gender and illegitimacy are quasi-suspect classes which means the law must be substantially related to important interest. In the case of gender, the interest needs to be exceedingly persuasive.
Any other group is a non-suspect class (i.e., age) and are subject to rational basis. The rational basis test requires the law to be rationally related to a legitimate governmental interest.
Prior Restraint
A prior restraint is a government regulation that stops speech before it occurs.
Permit Scheme
A permit scheme is an allowable time, place, manner restriction.
A permit scheme that allows a governmental official to restrict speech must provide definite standards as to how to apply the law in order to prevent governmental officials from having unfettered discretion over its application.
An ordinance that imposes more than a nominal fee or requires costly insurance for using a public forum (obtaining permit) to engage in protected speech violates the First Amendment.
Religion Intro
The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” the Establishment Clause and the Free Exercise Clause are applicable to the states through the Due Process Clause of the Fourteenth Amendment.
When the government chooses one religion over another or religion over non-religion strict scrutiny applies.
Establishment Clause
A governmental action that benefits religion is valid if it has a secular (non-religious) purpose, it neither advances or inhibits religion, and it does not result in excessive government entanglement.
Free Exercise Clause
The Free Exercise Clause of the First Amendment has been construed to include two freedoms: the freedom to believe and the freedom to act.
The freedom to believe in any religion or none at all is absolutely protected and cannot be restricted by law.
State laws that intentionally target religious conduct are subject to strict scrutiny. Neutral laws of general applicability that have an impact on religious conduct are subject only to the rational basis test.
Under the Florida Religious Freedom Restoration Act, the government must not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, unless the government shows it is in furtherance of a compelling governmental interest by the least restrictive means.
Speech Intro
The First Amendment provides that Congress shall make no laws…abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances which is applicable to the states through the 14th Amendment.
Protected speech includes written, oral, and visual communication, as well as expressive
Conduct such as picketing and protesting.
Expressive conduct (symbolic speech) receives less protection. The regulation must further an important governmental interest, unrelated to the suppression of ideas, and the burden is no greater than necessary.
Speech: Content Based
The government may not engage in content-based regulations of speech, content-based restrictions are subject to strict scrutiny (compelling government interest that is narrowly tailored).
Speech: Time, Place, Manner Restriction
In a public forum, the government may impose reasonable restrictions on the time, place, and manner of protected speech as long as the restrictions are content‐neutral as to both subject matter and viewpoint, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication
Traditional public forums are those that are historically associated with expression, such as sidewalks, streets, and parks. Designated public forums are forums the government has opened up for speech related activities.
Regulation of speech in non-public forums are held to a lesser standard and are constitutional if they are view-point neutral and reasonably related to a legitimate government interest.
Speech: Vague and Overboard
Vague laws are ones that give no clear notice of what is prohibited. Overbroad laws are ones that burden substantially more speech than is necessary. Vague and overbroad laws are invalid due to the “chilling effect” on protected speech.
Unprotected Speech
Obscenity - Reasonable person applying local community standards would find that the work, taken as a whole, appeals to the prurient interest, sexually explicit in a patently offensive way, and lacks serious literary, artistic, political, or scientific value
Fighting words - words that by their very nature are likely to incite an immediate breach of the peace
Incitement - speech that is directed to inciting or producing imminent lawless action and likely to produce such action
