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Con Law

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pierceb's version from 2015-07-26 00:02

TESTS

 

Question Answer
What is the test for upholding a Congressional tax?Congress tax upheld if (i) bears some REASONABLE RELATIONSHIP to REVENUE PRODUCTION or (ii) if Congress has the POWER TO REGULATE the taxed activity. Note: Absent a specific restriction, by very hesitant to rule against a tax measure on the exam.
Congressional Commerce Clause TestFederal law may either: (i) regulate CHANNELS of interstate commerce; (ii) the INSTRUMENTALITIES of interstate commerce and persons or things in interstate commerce; or (iii) regulate activities that have a "SUBSTANTIAL EFFECT" (intrastate activity) in interstate commerce.
Privileges and Immunities Clause of Art. IVA violation of this clause is whether there is (1) a substantial justification and (2) it is narrowly tailored with no less restrictive means. Law must be "intentionally protectionist" in nature. Only concerns "fundamental rights" --i.e., rights relating to important "commercial activities (such as pursuit of a livelihood) or "civil liberties."
Dormant Commerce Clause or Negative Commerce Clause (State regulation of interstate commerce)If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce if the regulation: (i) does NOT DISCRIMINATE against out-of-state competition to benefit local economic interests; and (ii) it is "NOT UNDULY BURDENSOME.
DCC: Necessary to important State InterestDiscriminatory law will be upheld if: (i) furthers an IMPORTANT, NON-ECONOMIC STATE INTEREST and (ii) there are NO REASONABLE NONDISCRIMINATORY ALTERNATIVES available.
DCC: State as Market ParticipantState may prefer its own citizens when ACTING AS A MARKET PARTICIPANT
State TaxationFirst, if Congress has not acted, and tax discriminates, it is invalid. But it is valid if, (1) it does not discriminate against interstate commerce and (2) there must be (i) a SUBSTANTIAL NEXUS between the activity and the state; (ii) tax is "FAIRLY APPORTIONED" (based on a rational formula) and (iii) there is FAIR RELATIONSHIP between the tax and the services or benefits provided to the state.
Congressional Condition on Gifted MoneyThe condition must: (i) SERVE a PUBLIC purpose; (ii) be UNAMBIGUOUS; (iii) related to a FEDERAL purpose, and (4) does not violate an independent bar.
Prior RestraintGenerally, strict scrutiny. But, the government also must show that is it: NECESSARY to prevent direct, immediate, and irreparable harm.
Freedom of AssociationRegulation requires (i) COMPELLING interest; (ii) UNRELATED to the SUPPRESSION of free speech; and (iii) cannot be achieved by a less restrictive means.
Public Forum and Designated Public Forum(1) content-neutral; (2) NARROWLY tailored to achieve some IMPORTANT government interest; and (3) leaves open ALTERNATIVE channels of communication.
Non-Public forums and Limited public forums (open fir expressive activities on a particular topic at a particular time)(1) Viewpoint neutral and (2) RATIONAL basis test
Lemon Test(i) secular purpose; (ii) primary effect neither advances of inhibits religion, and (3) no excessive entanglement between government and religion.
Establishment Clause Religious Sect PreferenceStrict Scrutiny
Commercial SpeechRegulation of commercial speech will be upheld if: (1) serves a SUBSTANTIAL GOVERNMENT INTEREST; (2) DIRECTLY ADVANCES that interest and (3) NARROWLY TAILORED to serve a SUBSTANTIAL INTEREST.
Symbolic SpeechGov. may regulate if (i) has an IMPORTANT INTEREST in the regulation INDEPENDENT of the speech aspects of the conduct and (ii) the INCIDENTAL BURDEN on speech is no greater than necessary.
What are types of unprotected speech?(1) Inciting Imminent Lawless Actions (i. imminent illegal conduct is likely, and the speaker intended to cause it); (2) TRUE THREATS (speech intended to intimidate); (3) FIGHTING WORDS (abusive words likrly to incite immediate physical retaliation); (4) OBSCENITY; (5) DEFAMATORY SPEECH (about a public official or public concern: i. falsity and ii. defendant fault); (6) COMMERCIAL SPEECH; (7) PRIOR RESTRAINTS.
ObscenitySpeech that describes or depicts sexual conduct that, taken as a whole, by the average person: (i) appeals to the PRURIENT INTEREST in sex, using a community standard; (2) is PATENTLY OFFENSIVE and an affront to contemporary community standards, and (3) LACKS SERIOUS VALUE (ie., literary, artistic, political, or scientific), uses a national reasonable person standard.
Supremacy Clause / Preemptioni. If a state law conflicts with federal law, the state law is void under the supremacy clause. Also, a state law is void if: (1) actual CONFLICT between state and federal law; (2) state law PREVENTS the achievement of a FEDERAL OBJECTIVE; or (3) Congress intended to OCCUPY a particular field (e.g., Immigration).
Under Taking Clause, how is "public use" defined?Liberally construed: As long as it is RATIONALLY RELATED to a legitimate public purpose. (e.g., health, welfare, safety, moral, social, economic, political, or aesthetic ends.)
memorize

DIRECT QUOTES

 

Question Answer
Congress Spending PowerCongress may spend to "provide for the common defense and general welfare." This spending may be for ANY PUBLIC PURPOSE.
Congress Commerce PowerUnder the Commerce Clause, Congress has the power to regulate commerce with"foreign nations and among the several states, and with the Indian tribes."
Eminent Domain/Taking ClauseUnder the Fifth Amendment, private property "shall not be taken for a public purpose without just compensation."
Fourteenth Amendment Due Process ClauseNo state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Privileges and Immunities Clause of Article IVThe Privileges and Immunities Clause of Article IV prevents discrimination by states against "citizens of the several states." Thus, it prohibits discrimination by a state against nonresidents.
Fourteenth Amendment Privileges or Immunities Clausei. The Fourteenth Amendment Privileges or Immunities Clause provides that “no state shall make or enforce any law which shall abridge upon the privileges or immunities of the citizens of the United States....”
Congress Taxing PowerCongress may "lay taxes, imports and excises" capable of raising some revenue.
1st Amendment Freedom of AssociationGives persons the right to join together with other persons for EXPRESSIVE or POLITICAL activity.
Procedural Due ProcessThe Due Process Clause of the Fifth Amendment, as applied to the state through the Fourteenth Amendment, prohibits the state government from depriving “any person of life, liberty, or property, without due process of law.” (Must be an intentional deprivation from a specific person, not through mere negligence.)
Equal Protection ClauseThe Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny any person within its jurisdiction the equal protection of the laws.”
First AmendmentThe First Amendment of the U.S. Constitution, as applied to the states through the Due Process Clause of the Fourteenth Amendment, limits the government’s power to interfere with the freedoms of speech, association, and religion.
Regulation of Speech(First Amendment intro) + ...limits government regulation of speech. However, the freedom of speech is not absolute under the First Amendment. Government can regulate speech if the regulation is necessary to achieving a compelling government interest.
Fourth AmendmentThe 4th Amendment gives people the right to be secure in their "persons, house, papers, and effects" from unreasonable searches and seizures.
The Free Speech Clause of the United States Constitution restricts......government regulation of private speech.
The Contract ClauseProhibits STATES from enacting any law that retroactively impairs contract rights. (ONLY applies to state legislation, not court decisions)
memorize

STATE ACTOR

 

Question Answer
What is the general rule to state actors and enforcing constitutional rights?Except for the Thirtheenth Amendment, which prohibits slavery no matter who is doing the enslaving, ALL OTHER constitutional rights are protections only against the government. Essentially, if there is NO STATE ACTION, constitutional rights DO NOT apply.
PUBLIC FUNCTION DOCTRINE?A private entity is performing a governmental function traditionally done by the state (e.g., running a town or holding an election for public office.)
SIGNIFICANT INVOLVEMENT DOCTRINEIf private and state actors are SO ENTWINED (e.g., working together as partners or joint-venturers).
memorize

COMMON AMENDMENTS

 

5th Amendment: Miranda – Right against self-incrimination - Eminent Domain (Taking Clause) - Double Jeopardy
Question Answer
6th AmendmentRight to counsel (criminal cases only); Confrontation Clause
10th AmendmentAll powers not granted to the feds are given to the states or to the people - Gives states...the right to exercise Police Powers and tax.
11th AmendmentSovereign immunity to the states; prevents people from suing the state for money damages IF the state is acting under legitimate powers.
13th AmendmentAbolished slavery - Prohibits slavery no matter who is doing the enslaving.
14th AmendmentDue Process & Equal Protection, also P&I Clause “No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
15th AmendmentCannot deny people the right to vote based on RACE (can still deny women the right to vote—until the 19th Amendment.
memorize

FIRST AMENDMENT - FREE SPEECH CLAUSE

 

Question Answer
What does the Free Speech Clause do?The Free Speech Clause of the United States Constitution restricts government regulation of PRIVATE SPEECH.
How is the Free Speech Clause applied to the states?Due Process Clause of the Fourteenth Amendment
What is symbolic speech?Speech that is undertaken to COMMUNICATE AN IDEA.
When may the government regulate symbolic speech?(i) has an IMPORTANT INTEREST in the regulation INDEPENDENT of the speech aspects of the conduct and (ii) the INCIDENTAL BURDEN on speech is no greater than necessary.
What is commercial speech?where the speaker is more likely to be engaged in commerce. (i.e., signs advertising real estate and other commercial signs)
When may the government regulate commercial speech?Generally, afforded first amendment protection if TRUTHFUL. UNLAWFUL or MISLEADING or FRAUDULENT speech may be burdened; any other regulation of commercial speech will be upheld if: (1) serves a SUBSTANTIAL GOVERNMENT interest; (2) DIRECTLY ADVANCES that interest; and (3) is NARROWLY TAILORED to serve that subtantial interest. (narrowly tailored does NOT mean least restrictive means...just must be a REASONABLE FIT between the goal and the means chosen.)
memorize

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