MEE Constitutional Law

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What are the 3 types of regulations congress may enact under the Commerce Clause
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What are the 3 types of regulations congress may enact under the Commerce Clause
1) May regulate Channels of interstate commerce (interstate highways and phone lines).

2) May regulate the people and instrumentalities that work and travel the channels of interstate commerce. (airline pilots, flight attendants, planes, etc.)

3) May regulate activities that substantially affect interstate commerce.
What is the threshold determination for Congress to regulate under the "substantial effects" category of the commerce clause?
Threshold: Whether the regulated activity is economic or commercial in nature.
Court will uphold congressional regulation of economic or commercial activity IF congress had a rational basis for concluding that the class of activities, in the aggregate, has a substantial effect on interstate commerce.

NOTE: this is an easy standard to meet. However, IF NOT commercial/economic, courts will NOT aggregate to find substantial effect and standard becomes extremely difficult to meet.
Under what condition does a federal statute abrogate a State's Eleventh Amendment immunity from suit?
1. If the statute unambiguously asserts that it does so, AND
2. Congress enacted the statute under a power that may abrogate the 11th Amendment state immunity.
Briefly explain how the principles of federalism relates to congressional regulations?
In Garcia v. San Antonio Metor. the Supreme Court held that Congress may regulate the states on the same terms as private actors. For example, Garcia upheld application of the federal minimum wage and maximum hour law to both public and private employers.
Is it unconstitutional for a congressional act to require a state to adopt policies and regulations to implement the act?
No. So long as the act DOES NOT commandeer the state to regulate private conduct.
Under what powers can Congress abrogate state immunity?
The Supreme court has held that Congress can abrogate state immunity when it exercises its powers under amendments that postdate the Eleventh Amendment. For Example: Section 5 of the 14th Amendment does grant Congress power to do so.
What is a "per se" taking as described in Loeretto v. Teleprompter Manhattan?
A "per se" taking occurs when property is physically taken by the government or the ordinance involves a physical invasion of private property by a third party. (e.g. installation of telephone wires in the building).
What are the three factors under the "Penn Central" balancing test to determine whether compliance with an ordinance would result in a taking?
A Court must balance:
1) the economic impact of the regulation on the claimant,
2) the extent to which the regulation has interfered with distinct investment-backed expectations, AND
3) the character of the government action.
What is the "Dolan v. City of Tigard" test for determining whether an exaction imposed by a government in exchange for a discretionary benefit conferred by the government (i.e. condition on approval of a building permit).
The exaction is NOT a taking if:
1) there is an "essential nexus" between the "public need or burden" to which the proposed development contributes and the condition exacted.
2) the government makes "some sort of individualized determination" that it is roughly proportional, both in nature and extent of the impact.
Can a private company's regulation of individual rights amount to "state action?"
As a general rule, the actions of a private company or a private school would not constitute state action and the protections of the Constitutions would not apply.
NOTE: unless private actor undertakes public function
What situations would a private actor be attributed to that of a "state actor?"There is no bright-line rule, but the Supreme court has said that: where a private actor undertakes a "public function" the Constitution applies to those actions.How is the First Amendment regulated speech different in public schools (and private schools that are subject to 1st Amendment)?Schools have greater leeway to regulate speech of students and teachers than the state would have outside the school context. However, public schools may not force their students to participate in flag ceremonies that would offend the political and religious beliefs of the students or their families.What First Amendment rights might an individual have, leafleting on commercial private property?If the private property falls under the "public function" doctrine, it is treated as government-owned property for First Amendment purposes. Expressive activity is assessed under the "public forum" doctrine, where sidewalks and streets are "traditional public forum" open to the public for expression.What is the standard for a state to regulate expressive CONTENT (speech)?Strict Scrutiny - narrowly tailored to achieve a compelling governmental interest.What is the standard for a state to regulate expressive activity without regard to its content?Intermediate Scurtiny - narrowly tailored to acheive a "significant governmental interest." The regulation must not be the suppression of ideas.Under what condition may a Court uphold an absolute prohibition on a particular type of expression?Strict Scrutiny, "only if narrowly drawn to accomplish a compelling governmental interest." See U.S. v. Grace.Generally, the First Amendment precludes/bars the convictions of individuals who incite or advocate breaking the law unless what three (3) conditions are met?Brandenburg Test (Brandenburg v. Ohio) 1) there is "advocacy" of illegal conduct (not just an abstract expression of ideas), 2) the advocacy calls for "imminent" law breaking, AND 3) the lawbreaking is "likely" to occur. (1. Advocacy; 2.imminent; 3. likely)Under Chaplinsky v. New Hampshire, what kind of language is "unprotected speech" and are excluded from the protection of the First Amendment?"Fighting Words" Words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. POLICY: unprotected because they play little/no part in the expression of ideas.What constitutes "fighting words?"Words that are likely to cause a violent reaction from others.Under what conditions will an "abusive word statute" or "fighting words statute" be held unconstitutional?If the statute is overbroad and unconstitutional on its face. For example: a statute which punishes language that is merely rude or abusive will likely be unconstitutional. Speech that is merely rude or abusive is still protected ("you're a dishonest imbecile").What must public officials/public figures seeking to recover damages in a defamation action prove?"Actual Malice." Knowledge that the publication was false/reckless disregard for the truth. Negligent falsehood is not enough.Does the First Amendment privilege give the press immunity from liability, (even when in pursuit of a news story of public concern) ?No. The First Amendment does not shield the press from liability arising under generally applicable law not aimed at suppression of free speech. "enforcement of such general laws against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons/organizations.Under what conditions is a news media outlet shielded from liability under the First Amendment?The media defendant has "lawfully obtained a private fact, (i.e. identity of a rape victim), the First amendment shilds the media from liability as long as the news story involves a matter of public concern. (1. lawfully obtained info; and 2. matter of public concern)