Term
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Definition
(1) constitutionally committed to another branch of government
(2) inherently incapable of judicial resolution |
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Term
| Congress's power to tax or regulate state and local government activities |
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Definition
| Only if the regulation applies to both the public and private sector (e.g., minimum wage laws) CMR14 |
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Term
| States' power to tax federal instrumentalities |
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Definition
Direct tax: only with Congress's consent
Nondiscriminatory, indirect tax: permissible if they don't impermissibly burden federal gov't (e.g., state income tax on fed employees)
CMR 15 |
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Term
| Art IV Privileges & Immunities Clause prohibits discrimination by a state against nonresidents in what cases? |
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Definition
1. Only fundamental rights - involving important commercial activities (i.e., pursuit of livelihood) and civil liberties
2. Only protects actual citizens - not corporations or aliens (though they are protected by equal protection, due process, and dormant commerce clause)
CMR 15 |
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Term
| When does the Art IV Privileges & Immunities clause allow a state to discriminate against nonresidents? |
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Definition
| If the state has a SUBSTANTIAL JUSTIFICATION for the different treatment - must show that there are no less restrictive means to solve the problem - CMR15 |
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Term
| 14A Privileges & Immunities clause protects what? |
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Definition
| The privileges and immunities of NATIOnAL citizenship - right to petition Congress for redress of grievances, right to vote for federal officers, right to interstate travel - CMR15 |
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Term
| Dormant Commerce Clause prohibits states from discriminating against or unduly burdening interstate commerce, EXCEPT: |
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Definition
(1) Important state interest: must further an IMPORTANT, NONECONOMIC state interest and there are NO REASONABLE NONDISCRIMINATORY ALTERNATIVES
(2) State as market participant: e.g., buying or selling, hiring, giving subsidies, etc.
(3) Law involving traditional gov't function: e.g., waste disposal - not ALWAYS allowed, but courts apply more lenient standard |
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Term
| Does the Dormant Commerce Clause restrict NONDISCRIMINATORY state laws? |
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Definition
| Yes - any state law that burdens interstate commerce, even if nondiscriminatory, is subject to a BALANCING TEST - burden must not outweigh the legitimate local interest |
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Term
| "Doing business" taxes are allowed if: |
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Definition
(1) taxed activity has SUBSTANTIAL NEXUS w/ taxing state
(2) tax is FAIRLY APPORTIONED
(3) tax DOESN'T DISCRIMINATE against interstate commerce
(4) tax FAIRLY RELATES to services provided by state
CMR23 |
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Term
| What counts as "state action" for purposes of determining a constitutional violation? |
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Definition
(1) exclusive public functions: activities that are traditionally the exclusive prerogative of the state no matter who performs them
(2) significant state involvement: state affirmatively facilitates, encourages, or authorizes acts of discrimination - mere regulation or supervision not enough |
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Term
| When is a state impairment of a private contract invalid? |
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Definition
When it substantially impairs an existing contract - UNLESS:
(1) the legislation serves an IMPORTANT and LEGITIMATE state interest, and
(2) it is a REASONABLE and NARROWLY TAILORED means of promoting that interest |
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Term
| "Liberty" interest protected by due process |
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Definition
(1) loss of significant freedom of action
(2) denial of a freedom provided by the Constitution or a statute
includes right to contract and to engage in gainful employment in addition to freedom from bodily restraint – CMR 28 |
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Term
| What type of process is required by procedural due process? |
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Definition
Three-part balancing test - weighs the following:
(1) the importance of the interest to the individual
(2) the value of specific procedural safeguards to that interest
(3) the government interest in fiscal and administrative efficiency
Generally, FAIR PROCEDURES and an UNBIASED DECISIONMAKER are always required, as well as NOTICE and CHANCE TO RESPOND before termination |
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Term
| When is strict scrutiny applied? |
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Definition
| In cases involving regulations affecting FUNDAMENTAL RIGHTS or SUSPECT CLASSIFICATIONS |
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Term
| What is the strict scrutiny standard? |
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Definition
Law is upheld if it is necessary to achieve a compelling government interest
Burden of proof is on government
CMR32 |
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Term
| When is intermediate scrutiny applied? |
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Definition
| Regulations involving quasi-suspect classifications (gender and legitimacy) |
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Term
| What is intermediate scrutiny? |
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Definition
Law is upheld if it is SUBSTANTIALLY RELATED to an IMPORTANT government purpose
Burden is on government |
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Term
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Definition
Law is upheld if rationally related to a legitimate government purpose.
Burden is on challenger of law. |
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Term
| Standard of review for content-neutral regulations on speech |
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Definition
| Intermediate scrutiny - regulation must advance IMPORTANT interests unrelated to the suppression of speech and must not BURDEN SUBSTANTIALLY any more speech than necessary to further those interests |
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Term
| Standard of review for regulations of conduct related to speech |
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Definition
| Permitted if they are content-neutral time, place, and manner specifications |
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Term
| When is speech regulation overbroad? |
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Definition
When it punishes a substantial amount of protected speech as compared to its coverage of unprotected speech - renders a regulation facially invalid
Note - if reg isn't substantially overbroad, it can still be enforced against unprotected speech.
CMR 43 |
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Term
| When is a regulation unconstitutionally vague? |
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Definition
| When it fails to give persons REASONABLE NOTICE of what is prohibited - applied more strictly when 1A activity is involved |
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Term
| What restrictions are on government funding of speech? |
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Definition
Must fund speech on a viewpoint-neutral basis
Exception: funding for the arts
CMR 42 |
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Term
| Restrictions on government's regulation of conduct in PUBLIC FORUMS |
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Definition
Reasonable time, manner, and place regs will be upheld if:
(1) content-neutral
(2) narrowly tailored to serve an IMPORTANT gov't purpose
(3) leave open ALTERNATIVE channels of communication
CMR44 |
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Term
| Restrictions on injunctions against speech in public forums |
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Definition
| Stricter than regular standard for regulating speech in public forum - if injunction is content-based, it must be NECESSARY to achieve a COMPELLING interest; if content-neutral, must be necessary to important interest |
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Term
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Definition
| Can distinguish b.w broad categories of speech to regulate, but can't distinguish based on content within the categories (e.g., "no religious speech" is okay but not "no Catholic speech") |
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Term
| Restrictions on government's regulation of conduct in LIMITED public forums or NONPUBLIC forums |
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Definition
Government is allowed to reserve the forum for its intended use - regulations are upheld if they are
(1) viewpoint-neutral
(2) reasonably related to LEGITIMATE government purpose - rational basis review |
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Term
| "Inciting imminent lawless action" |
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Definition
| Speech that creates a clear and present danger of imminent lawless action - illegal conduct must be likely and speaker must have INTENDED it - unprotected speech |
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Term
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Definition
| true threats and personally abusive words that are likely to incite immediate physical retaliation in an average person - NOT words that are merely annoying |
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Term
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Definition
3 elements:
(1) appeals to prurient interest (community standard)
(2) patently offensive (community standard)
(3) lacks serious redeeming value (literary, artistic, political, or scientific) (national standard)
CMR45 |
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Term
| Standard for regulation of (truthful and lawful) commercial speech |
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Definition
Upheld only if it
(1) services a SUBSTANTIAL government purpose
(2) DIRECTLY ADVANCES that purpose
(3) is NARROWLY TAILORED to serve that purpose |
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Term
| What is a prior restraint? |
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Definition
| Restraining speech before it occurs, rather than punishing it afterwards - rarely upheld |
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Term
| Standard for prior restraints |
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Definition
Must show that SPECIAL SOCIETAL HARM will otherwise result and must have adequate procedural SAFEGUARDS:
(1) injunction is narrowly drawn, reasonable, and definite
(2) injunction is promptly sought
(3) prompt and final determination of the validity of the restraint |
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Term
| Standard for taxes or regs impacting the press or a subpart of the press |
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Definition
| Can't be based on the CONTENT of a publication unless there is a COMPELLING justification - mere need for revenue is not compelling |
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Term
| Standard for reviewing regulations affecting freedom of association |
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Definition
| Generally not allowed - permissible only if there is a COMPELLING government interest unrelated to suppression of ideas, and it is the LEAST RESTRICTIVE MEANS of protecting the government interest involved |
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Term
| Standard for regulation of electoral process |
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Definition
| If the restriction on 1A activity is SEVERE, apply strict scrutiny, but otherwise, uphold if restriction is REASONABLE and NONDISCRIMINATORY |
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Term
| Standard for limiting election campaign contributions |
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Definition
| Intermediate scrutiny - must be CLOSELY DRAWN to match a SUFFICIENTLY IMPORTANT INTEREST |
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Term
| Standard for government employer seeking to terminate an employee for speech-related conduct |
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Definition
Balancing test: employee's rights as a citizen to comment on public concerns vs government's interest as an employer in efficient performance of public service
If speech DOESN'T concern public matters, gov't gets wide degree of deference
CMR50 |
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