100 terms

Constitutional Law MBE

Constitutional Law MBE Michigan
Free Exercise Clause
(1) State govts from requiring office holders or EE's to take religious oath (Article VI restricts federal govts)
(2) States from excluding clerics from holding public office;
(3) Courts from declaring religious belief to be false.

NB: SCOTUS has not defined religious belief; religion need not be organized.
Free Exercise Clause
DOES NOT PROHIBIT CONDUCT REGULATION- no religious exemptions required.
(1) Cannot be used to challenge govt regulation unless regulation was SPECIFICALLY DESIGNED to interfere with religion.

Exceptions: (1) state cannot refuse to grant unemployment benefits to person who quit job for religious reasons; (2) Amish given exemption from compulsory school attendance based on FEC & fundamental right to educate
Establishment Clause
Prohibits laws respecting the establishment of religion.
Establishment Clause (Sect preference)
If the govt action includes preference for one religion sect over another, it is invalid unless it is NARROWLY TAILORED to promote a COMPELLING INTEREST.

Note: if gov't axn may coincide with tenants of local religion, that's ok - may not be a direct sect preference.
Establishment Clause (No Sect preference)
Lemon Test
Govt action is valid if:
(1) has a secular purpose;
(2) has a primary effect that neither advances nor inhibits religion; and
(3) does not product excessive government entanglement with religion.
Establishment Clause
(as applied to cases unconnected to financial aid/education)
Burdens: Law burdening religious group ok; law burdening everyone that includes religious group not ok. (Eg: Sunday closing law)

Benefits: Some government benefits are historically accepted OR govt benefit that has secular purpose (Eg. Sunday closing law). Consider whether benefits are generally available to the public
Establishment Clause
(as applied to govt aid to religious elementary and secondary schools)
Aid is valid if can claim secular purpose of helping with needs of students. Aid is vulnerable if: (1) confer benefit that is not generally available and (2) govt entanglement (state supervises benefit regulation).
Establishment Clause
(as applied to higher education)
Aid is valid (unlikely that aid will promote religious purposes)
Establishment Clause
(as applied to religious activities in public schools)
School-sponsored activity is invalid, but school accommodation of religion is valid.
Freedom of Association and Belief
(Nature of Right)
Govt may not prohibit politically unpopular groups nor unduly burden person's right to belong to group.
Freedom of Association and Belief
(Nature of Right)
Infringement of right justified by COMPELLING government interest, unrelated to suppression of ideas, if infringement is the least restrictive means of protecting government interest.
Freedom of Association and Belief
(Electoral Process)
1. Statute limiting election campaign contribution gets intermediate scrutiny - must be closely draw to match "sufficiently important interest."
2. Limit to amount of money given to political candidate, but not to money spent to oppose/support ballot referendum.
3. No limit on how much candidate spends.
Freedom of Association and Belief
(Core Political Speech)
Regulation of core political speech will be upheld if it passes STRICT SCRUTINY.
Freedom of Association and Belief
(Bar Membership and Public Employment)
1. Does speech involve matter of public concern?
a. Yes --> Balance b/w EE's right as citizen to comment on matter v. govt's interest as ER in efficient performance.
b. No --> Wide deference to govt ER judgment regarding whether speech was disruptive.
Freedom of Association and Belief
(Bar Membership and Public Employment)
1. Official duty - even if EE's speech touches on public matter, if made pursuant to official duty, EE may be punished.
2. Participation in Political Campaigns - federal gov't may prohibit federal executive branch EEs from actively participating in political campaigns.
3. Bans on honoraria - Gov't must show that EEs' rights are outweighed by necessary impact speech would have on gov't operation.
Freedom of Association and Belief
(Bar Membership and Public Employment)
1. Patronage - Public EE may not be hired etc, based on party affiliation, except as to policymaking positions.
2. Standard for conduct cannot be vague.
Freedom of Association and Belief
(Bar Membership and Public Employment)
1. Loyalty Oaths: Cannot be overbroad (prohibiting membership in Communist Party) & vague (supporting flag is valid, because it might conflict with religious, supporting Constitution is ok)
2. Disclosure of Associations - gov't cannot force disclosure of every organizational membership in exchange for employment, except for those relevant. Person can exercise 5th A right, if incriminating.
Freedom of Association and Belief
(School Sponsorship of Extracurricular activities)
Public school sponsorship of associations can be subject to regulation that is viewpoint neutral and reasonably related to a legitimate government interest.
Freedom of Speech and Assembly
(General Principles)
1. Restricts gov't regulation of private speech. Gov't speech is ok - upheld if rationally related to legitimate state interest.
2. Content - Except for certain categories of speech, presumptively unconstitutional to place burdens on speech b/c of content. INTERMEDIATE SCRUTINY - must advance important interests unrelated to suppression of speech AND must not burden substantially more speech than necessary to further interests.
3. Conduct - Regulated by content-neutral time, place & manner restrictions.
Freedom of Speech and Assembly
(Reasonableness of Regulation)
1. Overbroad regulation invalid. If regulation of speech/speech-related conduct punishes substantial amount of protected speech in relation to legitimate sweep, regulation facially invalid. If not substantially overbroad, enforced against people engaging in non-constitutionally protected activities.
2. Vagueness doctrine. Failure to give reasonable notice of what is prohibited=void. Applied strictly when 1st A activity is concerned.
3. Cannot give officials unfettered discretion, must be defined standards.
Freedom of Speech and Assembly
(Scope of Speech)
1. Gov't may regulate symbolic acts undertaken to communicate idea, if it has an important interest in the regulation independent of speech is no greater than necessary.
2. Mandatory financial support. Gov't can tax people and use revenue to express message that TP disapproves of. But people cannot be compelled to subsidize private messages with which they disagree.
Freedom of Speech and Assembly
(Time, place and manner restrictions - regulation of conduct. Public forums/designated public forums)
1. Public forum = public property that has historically been open to speech-related activities (Streets, sidewalks and public parks). Gov't that has thrown open for such activities on permanent/limited = designated public forum.
2. Restrictions must be (i) content-neutral; (2) narrowly-tailored to serve an important government interest; (3) leave open alternative channels of communication.
3. Must still meet vagueness, overbroad and unfettered discretion requirements.
4. Injunctions: if content-based, must be necessary to achieve compelling interest; if content-neutral, must burden no more speech than is necessary to achieve an important gov't interest.
Freedom of Speech and Assembly
(Time, place and manner restrictions - regulation of conduct. Limited public forums/nonpublic forums)
1. Limited public forum = gov't property not historically linked with speech/assembly, but opened for purpose); nonpublic forum = gov't property not historically linked with speech/assembly & not open for purposes.
2. Regulations are valid if (1) viewpoint-neutral; (2) reasonably related to legitimate interest.
Freedom of Speech and Assembly
(Unprotected Speech - Regulation based on Conduct)
1. Inciting Imminent Lawless Action - Clear and present danger of imminent lawless action (LIKELY) and speaker intended to cause it.

2. Fighting words. True threats. Statutes are generally vague/overbroad.

3. Obscenity. S(exy, community standard), S(ickening) & S(tandards of community affronted), S(erious) Value (lack, use national reasonable person standard).

3a. If not obscene and sexually explicit, gov't might limit availability to minors.
3b. Zoning regulate placement of adult entertainment, as long as gov't has substantial interest and ample opportunities remain for these businesses.

4. Defamatory Speech. If about public official/figure/public concern, P must prove all defamation elements PLUS falsity & some degree of fault. IIED is also limited by 1st A.

5. Commercial speech. Unlawful activity or misleading/fraudulent might be burdened. Regulation of speech upheld only if: (1) serves substantial gov't interest (easy to meet); (2) directly advances that interest; (3) narrowly tailored to serve interest (NOT least restrictive means, just reasonable fit).

5a. Complete bans likely stricken down, disclosures may be required.
Freedom of Speech and Assembly
(Prior Restraints)
Prior Restraint = prevent speech before it occurs, rather than punish afterwards.

Gov't must show that some special societal harm would otherwise result.
Freedom of Speech and Assembly
(Prior Restraints)
To be valid, system must provide: (1) standards be narrowly drawn, reasonable and definite; (2) injunction must promptly be sought; (3) must be prompt and final determination of validity of restraint.
Freedom of Speech and Assembly
(Prior Restraints - Obscenity cases)
1. Seizures of books/films: allowed with warrant based on probable cause. Large scale seizures: need full scale adversary hearing and judicial determination of obscenity.
2. Movie censorship. Court allows gov't to establish censorship boards to screen movies, procedural safeguards must be there.
3. BURDEN: when gov't adopts content-based, prior restraint of speech, gov't's burden = restriction is narrowly tailored to accomplish goal.
Freedom of Speech and Assembly
(Freedom of the Press)
1. Press has no greater 1st A freedom than does private citizen. Apply same concepts as prior restraint.
2. Publication of truthful information - right restricted by sanction that is narrowly tailored to further interest.
3. Access to trials. Public/Press have right to attend criminal trials. Right might be outweighed by overriding interest (to protect children).
4. Press may be required to testify before grand jury.
5. Business Regulation Tax - Subject to general business regulations is ok, but not special. If special, need COMPELLING JUSTIFICATION.
6. Broadcasting - Right of viewers/listeners to receive info. Less critical review.
7. Cable television - Intermediate scrutiny, if content-neutral; strict scrutiny - content-based.
8. Internet regulation - Strict standard.
Fundamental Rights (Privacy)
1. Privacy rights - marriage, use of contraceptives, abortion, obscene reading material, keeping extended family together (zoning cannot keep family members, even extended apart; not applicable to unrelated people), parental rights, intimate sexual conduct, refusal of medical treatment.
Fundamental Rights
NO fundamental rights to adultery, incest, prostitution, assisted suicide.
Fundamental Rights (Privacy/abortion)
1. Pre-viability: state may adopt regulation that does not place "undue burden" on or substantial obstacle to woman's right.
2. Post-viability: state can prohibit regulation unless woman's health threatened.
3. Remedy: Court should try to fashion narrower declaratory/injunctive relief v. striking down it all.
4. No obligation for state to finance abortions.
Fundamental Rights (Right to Vote)
Restrictions, other than on basis of residence, age and citizenship, invalid unless pass STRICT SCRUTINY.
Fundamental Rights (Right to Vote)
1. Residency requirements - reasonable time periods (like 30days) are valid. One year is too much.
2. Property ownership - conditioning right to vote on property ownership is invalid.
3. Poll taxes - unconstitutional
4. Primary elections - states may require early registration
Fundamental Rights (Right to vote - dilution of right to vote)
Applies whenever any gov't, state or local, selects representative to gov't body by popular election from individual districts.
Fundamental Rights (Right to vote - congressional elections)
Congressional elections - states must use exact mathematical equality when creating congressional districts. Not true of Congress when it apportions representatives among states - deference, unlike state plans.
Fundamental Rights (Right to vote - state and local elections)
Variance included within districts can't be more than few percentage points.
Fundamental Rights (Right to vote - exceptions)
(1) Appointed officials elected at large and (2) special purpose election (not normal gov't activity, but something like water storage districts)
Fundamental Rights (Right to vote - Gerrymandering)
If racial gerrymandering, use Strict Scrutiny. If benefits race, race can be factor, but not predominant.
Fundamental Rights (Right to travel - Interstate travel)
Right to migrate, and be treated equally. Not every restriction impairs rights to travel. Court reviews under STRICT SCRUTINY?
Fundamental Rights (Right to travel - International travel)
No fundamental right. BUT 5th A protects from arbitrary federal interference, rational basis applies.
Substantive Due Process
5th A applies to federal gov't, 14th A applies to state and local.

When fundamental Right - apply strict scrutiny
In all other cases - rational basis
Equal protection
1. Fundamental Right or suspect classification, apply strict scrutiny (national original, alienage, race)
2. Quasi-suspect category, apply intermediate scrutiny (gender, legitimacy)
3. Everything else - rational basis.
Equal protection (proving intent)
(1) Law is discriminatory on its face; (2) Purposeful discriminatory application of facially neutral law; (3) Discriminatory motive/purpose
Equal Protection (Race and National origin)
1. Affirmative axn - Strict scrutiny. Remedying past discrimination - gov't has compelling interest in remedying past discrimination, not general "past societal discrimination."
2. BUT if no past discrimination exists, it gov't must be NARROWLY TAILORED to COMPELLING INTEREST.
3. Diversity in public education - at university level, race can be considered a plus; at school, no individual assessment, so racial balancing is invalid.
Equal Protection (Alienage) - non-U.S. citizens
Federal classifications - valid, if not arbitrary & unreasonable.
Equal Protection (Alienage) - non-U.S. citizens
State and local classifications - strict scrutiny.
Exception - rational basis applied, if law discriminates against alien participation in state government (voting, jury, elective office) or public policy (teachers, police officers).

Note: technical position is not self-government process. (=distinguishes b/w broad categories of speech, but does not distinguish based on category within category)
Equal Protection (Alienage) - non-U.S. citizens
Undocumented aliens are not suspect classification. Rational basis.
Equal Protection (Gender)
Gender classifications - substantially related to an important gov't purpose. Gov't bears burden of showing exceedingly persuasive justification for discrimination.

Classification benefitting women to remedy past discrimination ok.

Important gov't interests: statutory rape laws, all-male draft.
Equal Protection (Illegitimacy)
Note: a law allowing illegitimate to recover from estate only if parenthood established ok, but preventing them from recovering at all is not.
Judicial Power
Power extends to
(1) interpretation of constitution, federal laws, treaties/admiralty and maritime laws
(2) disputes b/w states, states and foreign citizens, citizens of diverse citizenship.
Judicial Power (Supreme Court)
1. Original Jx - affecting ambassadors, public ministers, consuls, those in which state is party (& NOT where state represents citizens' interests). Congress has given concurrent jx to all these cases, except those between states.
2. Appellate Jx - Writ of Certiorari. Complete discretion: cases from state courts where (1) constitutionality of federal statute/state statute at issue & (2) all cases from federal CoA.
3. Appellate Jx - Rare. When three judge federal district court panels grant/deny injunctive relief. Mandatory.

Note: Congress can modify SCOTUS's appellate jx, but a constitutional amendment is needed to modify SCOTUS' original jx.
Judicial Power (case/controversy requirement)
1. No advisory opinions - must be specific present harm or threat of specific future harm. Challenged axn poses a real and immediate danger.
2. Ripeness - immediate threat of harm.
3. Mootness - must exist at all stages of review. Exception: capable of repetition, but evading review (e.g., pregnancy). and Class Axns - if class representative claim is moot, that's ok if other claims are still viable.
4. Standing - (1) injury-in-fact (not necessarily economic); (2) causation and (3) redressability.
Judicial Power (standing issues)
1. Congressional conferral of standing. (Act may create new interests, but cannot eliminate standing requirements)
2. Standing to enforce gov't statutes (should be w/i zone of interests).
3. Standing to assert others' rights (if (1) difficult for 3rd party to assert rights; and (2) special relationship exists between claimant and 3rd party).
4. Standing of organizations - (1) injury in fact to members that give them right to sue on own behalf; (2) injury related to organization's purpose; (3) individual member participation in lawsuit not required.
5. No citizenship standing merely as "citizens." BUT person might have standing to allege that federal axn violated the 10th A, as long as person has redressable injury in fact.
6. TP standing requisites: Cannot challenge gov't expenditures, exception: CONGRESSIONAL spending on 1st A establishment clause. Note: Congress's Spending Power must be involved.
Judicial Power (Adequate and Independent State grounds)
1. Even if state court judgment has federal issues involved, SCOTUS will not exercise jx if judgment is based on adequate and independent state grounds. Adequate = fully dispositive of case; Independent = decision not based on federal case interpretations of identical federal provisions.
Judicial Power (Abstention)
1. Unsettled question of state law. Temporarily abstain if disposition rests on unsettled question of state law.
2. Pending state proceedings. Federal courts will not enjoin pending state criminal proceedings (&, pending state administrative/civil proceedings involving important state interest), except in cases of proven harassment/prosecutions in bad faith.
Judicial Power - Political questions
1. Definition = issues constitutionally committed to another gov't branch or inherently capable of judicial resolution.
2. Examples: challenges based on Republican Form of Gov't Clause, congressional procedures, whether person elected to Congress meets requirements, President's conduct of foreign policy.
3. Examples of non-political: legislative appointment, arbitrary exclusion of congressional delegate, production of presidential papers and communications.
Judicial Power - 11th Amendment
1. Bars federal courts from hearing private/foreign party's claims against state gov't.
2. Barred = axns in which state is named as party or in which state pays retroactive damages. Even bars suits against state gov't in state court, even on federal claims, unless state consents (federalism principle).
3. Not barred=(1) axns against local gov'ts; (2) axns by US/other states; (3) proceedings in federal bankruptcy courts.
4. Exceptions: (i) axns to ENJOIN state officers from future conduct that violates constitution or federal law, even if it requires prospective payment from state; (ii) axns for damages against officer personally; (iii) Congress removes immunity under Section 5, 14th A, but Congress must make intent unmistakably clear.
Legislative Power - Enumerated and Implied Powers
1. Necessary and Proper (not self-executing).
2. Taxing Power - Must bear some reasonable relation to revenue production OR if Congress has power to regulate activity taxed.
3. Spending Power - any public purpose ("provide for common defense and general welfare"). LIMITED by Bill of Rights. Congress may not LEGISLATE for general welfare.
4. Commerce Power.
5. War and Related Powers - power to declare war, raise and support armies, provide for and maintain navy.
6. Investigatory Power - implied. Must be expressly/impliedly authorized by congressional house. Limited to matters on which it can legislate.
7. Property Power - No express limitation on power to dispose of property, federal takings (eminent domain) must effectuate enumerated power.
8. NO FEDERAL POLICE POWER, except over D.C., federal lands, military bases, Indian reservations.
9. Bankruptcy Power (nonexclusive)
10. Postal Power - Exclusive, can classify and place reasonable restrictions on mail use.
11. Power over citizenship - uniform rules on naturalization. Aliens have no right to enter, and can be denied entry. BUT resident aliens entitled to notice & hearing before deportation. Exclusive power over naturalization, but cannot strip citizenship w/o consent.
12. Admiralty Power. Can give maritime to state jx.
13. Power to coin money and fix weights/measures.
14. Patent/Copyright Power.
Legislative Power (delegation)
Can delegate to executive or judicial branch so long as intelligible standards met (Easy to meet)
Legislative Power (Speech & Debate Clause)
Conduct that occurs in regular course of federal legislative process & motivation behind conduct = immune from prosecution.

Does not cover bribes, speech outside Congress, republication in press of statement originally made in Congress.
Legislative Power (Congressional Veto of executive Axns)

Veto = Overturn executive agency axn without bicameralism or presentment.
Executive Power (Domestic Powers - Appointment & Removal)
1. Appointment - of ambassadors, public ministers & consuls, SCOTUS justices w/ advice and consent of the Senate. BUT Congress may vest appointment of inferior officers in President alone, courts, or heads of department. Congress CANNOT appoint body members w/ adminstrative/enforcement powers.

2. Removal - (1) President can remove high level, purely executive officers at will, w/o Congressional interference, even though Congress might set limits ("good-cause only"). (2) Congress can remove executive officers ONLY through impeachment process.
Executive Power (Pardons)
Federal offenses, but not for impeachment or civil contempt. Can't be limited by Congress.
Executive Power (Veto Power)
If President disapproves (vetoes) acts, act can become law if overriden by 2/3 vote of EACH house.

Pocket veto. If Congress in session, and President does not veto w/i 10 days, bill becomes law. If Congress not in session, President does not veto w/i 10 days, it's automatically vetoed.

Line Item Vote unconstitutional.
Executive Power (Power as Chief Executive - Youngstown)
1. If acts with express or implied authority from Congress - axns likely valid;
2. If Congress is silent as to axn, axn will be upheld unless it usurps another power of gov't branch or prevents another branch from carrying out taks;
3. If President acts against express will, has little authority.

No authority to refuse appropriate funds set by Congress (=Take Care Clause)
Executive Power (External Affairs)
1. War. No power to declare, but may act militarily in actual hostilities against US without congressional declaration. But Congress may limit President under power to enact military appropriation every two years.
2. Foreign Relations - power to represent US in day-to-day foreign affairs.
3. Treaty Power. Need 2/3 of Senate consent. Supreme law of the land if self-executing, state law may not conflict with it; President cannot order compliance w/ treaty if not self-executing. Federal law v. treaty --> last in time prevails.
4. Executive Agreements. Do NOT require Senate Consent. Federal law prevails over executive agreements.
Executive Power (Executive Privilege/Immunity)
Privilege to keep certain communications secret. National security given great deference EXCEPT in criminal proceedings where need for information is demonstrated.

Executive immunity - absolute immunity from civil damages based on any axn he took w/i official responsibilities, but none before he took office. If presidential aides have shared discretionary authority, they share immunity.
Executive Power (Impeachment)
Grounds - treason, bribery, high crimes, misdemeanors. Majority of House required to invoke impeachment charges, and 2/3 Senate Vote required for conviction and removal.
Relatives Spheres of Federal and State Powers
Exclusive Federal Powers: (1) some states power expressly limited; (2) some powers inherently federal

Exclusive State Powers: all powers not delegated to the federal gov't reserved to states.
Relatives Spheres of Federal and State Powers (Concurrent Federal and State Power) (Supremacy Clause)
1. Conflict b/w state and federal - federal prevails.
2. State Prevents Achievement of Federal Objective - true, even if state law had its own valid purpose.
3. Preemption - federal statute may expressly or impliedly occupy the entire field. Express preemption - narrowly construed; implied preemption - deduce Congress' intent, especially in cases involving power of states (health, safety, welfare), courts start with presumption that state police powers not superseded unless Congress makes it "clear & manifest"
Relatives Spheres of Federal and State Powers (Absence of Federal & State)
Constitution might set limits (qualifications for Congress)
Relatives Spheres of Federal and State Powers (Interstate Compact Clause)
Agreements between states. If agreement increases states' power at expense of federal power, congressional approval required.
Relatives Spheres of Federal and State Powers (Full Faith and Credit Clause)
If Judgment entitled to full faith and credit, must be recognized by sister states. Applies ONLY IF: (1) court rendered the judgment had jx over parties and SMJ; (2) judgment was on the merits; (3) judgment = final.
Intersovereign Litigation (US v. State)
US may sue state w/o consent; state cannot sue US w/o consent. Congress can pass legislation that permits this in some situations.
Relatives Spheres of Federal and State Powers (Federal Officer as Defendant)
Suit against federal officer = like against U.S., if judgment would lead to public treasury or interferes with public administration. So, not allowed.

Specific relief against officer allowed if he acted ultra vires.
Relatives Spheres of Federal and State Powers (State A. v. State B)
SCOTUS has exclusive original jx. Consent not required.
Intergovernmental tax and regulation immunities (federal taxation & regulation of state/local gov'ts)
1. Tax applying to both states/private entities = valid.
2. Tax/regulation applying to states only - might be limited by 10th A. EXCEPTION: state activities that violate civil liberties can be congressionally restricted; spending power conditions - valid.

10th A invalidating federal axn is almost wrong answer.
Intergovernmental tax and regulation immunities (commandeering state officials)
Comandeering state officials not allowed because would upset "dual sovereignty" structure (not specifically 10th A).
Intergovernmental tax and regulation immunities (State taxation/regulation of federal gov't)
Cannot directly tax without consent of Congress. Nondiscriminatory, indirect taxes allowed if they don't unreasonably burden federal gov't.
Privileges & Immunities Article IV
Prohibits discrimination against nonresidents UNLESS "substantial justification exists and there are no less restrictive means"

*Corporations not protected by clause, but corporations protected by EPC/DPC/Dormant CC

Only fundamental rights protected = commercial activities (pursuit of livelihood) and civil liberties.
Privileges & Immunities Article IV (Compare with CC)
Analyze under both.
Privileges & Immunities Article (14th A)
Cannot discriminate against national citizenship. Corporations not protected.
Regulation of foreign commerce
Lies exclusively with Congress
Regulation of Commerce by Congress
W.r.t interstate commerce, conflicting state laws superseded; nonconflicting state laws may be preempted.

Congress may allow states to violate CC. Congress may ban regulations that CC would allow. Congress can't allow states to violate civil liberties.
State regulation of Commerce in absence of Congressional axn - discriminatory regulations
If Congress has not acted, state/local gov't may regulate local aspects of interstate commerce. Must NOT discriminate against or unduly burden interstate commerce.

Discriminatory regulations (to protect local economic interests) - invalid. Exceptions: (1) important noneconomic state interests AND no reasonable nondiscriminatory alternatives; (2) state = market participant, NOT regulator; (3) law favors gov't axn that involves performance of traditional gov't fxn (like waste disposal).
State regulation of Commerce in absence of Congressional axn - non-discriminatory regulations
Balancing test.
Valid unless burden outweighs promotion outweighs legitimate local interest. Court asks: less restrictive alternatives available?
State regulation affects free flow of interstate commerce (TEST)
Is there federal regulation that might (i) supersede state regulation or preempt field; (ii) authorize state regulation otherwise impermissible?

No --> does state regulation discriminate/place undue burden on interstate commerce?

Yes --> it's invalid UNLESS (i) furthers important, noneconomic state interest & there is no reasonable nondiscriminatory alternatives; or (ii) state = market participant.

No--> it's invalid IF burden on commerce > state's interest.
21st Amendment
Intrastate regulation - states can control importation of liquor and conditions over which it is sold/used in state. BUT regulations that constitute economic preference for local manufacturers may violate CC.

Interstate regulation - subject to CC

Federal power - Congress can regulate economic txn involving liquor or by conditioning grants of money.
Power of States to Tax Interstate Commerce
Congress has complete power to forbid state taxatin.

Is it discriminatory? violates CC unless authorized by Congress. Might violate P&I Art 4 or EPC.

Is is non-discriminatory? Valid if (1) activity has substantial nexus to taxing state; (2) tax fairly apportioned according to rational formula, which TP has burden of proving unfair apportionment; (3) tax must be fairly related to service/benefits provided by state.
Power of States to Tax Interstate Commerce (Use, Sales, Ad Valorem)
1. Use taxed imposed on goods purchased outside state but used within it - valid (if higher than sales tax, violates CC)
2. Sale - on seller of goods for sales consummated w/i state. Issue: substantial nexus b/w TP and taxing state & whether tax fairly apportioned.
3. Ad valorem - Value of property. Commodities in the court of interstate commerce are exempt. Begins when cargo delivered to interstate carrier or actually starts in interstate journey; break does not destroy interstate carrier; ends when reaches destination, where subject to local tax.
3. Ad Valorem - taxing instrumentalities used to transport goods - (1) taxable situs - instrumentality must have taxable situs if receives benefits from state; (2) must fairly approximate average physical presence of instrumentality of state.
Power of States to Tax Interstate Commerce (Privilege, License, Franchise, Occupational Taxes)
State tax must (1) have substantial nexus to taxed activity; (2) fairly apportioned; (3) must not discriminate against interstate commerce; (4) fairly relate to services provided.
Power of States to Tax Interstate Commerce (Test)
1. Does question refer to federal legislation that might (1) forbid state tax or preempt field, or (2) authorize state taxation?

2. If no, does state tax discriminate against/unduly burden free flow of interstate commerce (no substantial nexus, unfair apportionment, no fair relationship) --> invalid.
Constitutional Restrictions of Power over Individuals (BoR)
Bill of Rights Limit federal power BUT 14th A applies BoR to states EXCEPT: (1)5TH A prohibition of criminal trials w/o grand jury indictment; (ii) 7th A right to jury trial in civil cases.
Constitutional Restrictions of Power over Individuals (13th A)
Prohibits slavery - applies to private and gov't.
Constitutional Restrictions of Power over Individuals (14th/15th A)
14th A - applies to states from depriving any person of life, liberty or property.
15th A - prevents both state and federal govts from denying right to vote on account of color or race.
CC - can prohibit private activity (Racial discrimination)
Section 5 of 14th A - Congress must point to history/patter of state violation of rights and adopt laws that is congruent & proportional (=narrowly tailored). Can't expand new rights.
Constitutional Restrictions of Power over Individuals (State axn requirement)
State axn can be found in private activity if private individuals (1) perform traditionally, exclusive public functions; (2) significant state involvement (affirmatively facilitating discriminatory actions).

Note: states not constitutionally required to outlaw discrimination, just forbidden to facilitate it.
Retroactive Legislation
Contract Clause - prohibits states (only) from enacting laws that retroactively impaires contract rights.

If private: state law that substantially impairs private K is invalid UNLESS legislation serves (i) important/legitimate public interest; and (ii) reasonably tailored means of promoting interest.

If public, same test, but stricter scrutiny.

Ex post facto laws (retroactively alters criminal offense in substantially prejudicial manner for punishing individual for past activity) Law does this if: (1) makes criminal an act that innocent when done; (2) prescribes greater punishment; (3) reduces evidence required to convict people. DPC of 5th/14thA prevents courts from retroactive interpretation.

Bills of Attainder. Inflict punishment (legislative) of individuals without judicial trial. State and federal prohibited.

If retroactive law passes muster under Contract, Ex post facto and Bills of Attainder clauses, must satisfy DPC. If not related to fundamental right - rational basis review.
Procedural due Process
Fair process = notice & hearing. INTENTIONAL deprivation required.

Liberty - loss of significant freedom OR denial of freedom protected by Constitution/statute (e.g, 1st A).

Property = real/personal and legitimate claim or entitlement to benefit.

Type of process depends on (1) importance of interest (2) value of specific procedural safeguards against that interest; (3) gov't interest in fiscal/administrative agency.

E.g., if public employee meant to be removed for cause only under state statute, entitled to notice & pre-termination opportunity to respond to charges & subsequent evidentiary hearings.

Fees waived when imposition would deny fundamental right to indigent, but fees can be imposed when nonfundamental rights are involved.
Taking Clause
5th A: private property cannot be taken for public use without just compensation. Applicable to states via 14th A.

Satisfy "public use:" liberally construed - rationally related to legitimate public interest. Doesn't matter if gov't gives land to private party.

Taking v. Regulation - how to distinguish. denial of all economic value = taking. Temporary denials - not per se taking, court will look at factors (good faith of planners, reasonable expectations of owners, length of delay). Physical appropriate of property = per se taking.

Decreasing economic value = if leave economically viable use for property, not taking.

Remedy. Just compensation measured by loss to owner.
Scrutiny tests
1. SS = law upheld if necessary to achieve a compelling gov't purpose. Burden on gov't.

2. IS = law upheld if substantially related to an important gov't purpose ("exceedingly persuasive justification"). Burden on gov't.

3. RB = law upheld if rationally related to legitimate gov't purpose. Burden on P.