Chp4 - Chapter 4: Constitutional Authority to Regulate...

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Unformatted text preview: Chapter 4: Constitutional Authority to Regulate Business Constitutional Law Constitutional q Public Law q Deals with rights & Deals powers of government powers q Source of power to regulate business §1: Constitutional Powers of the Federal Government Federal q Constitution established a federal form Constitution federal of government with checks and balances among three branches: executive, legislative and judicial. executive, q National government has limited, National enumerated powers delegated from States. Federal Legislative Powers Federal q Enumerated (Article I, Section 8) q States have the rest (Tenth amendment) Exclusive Federal Power Exclusive q Bankruptcy q Postal Service q Patents & Copyrights q Currency q Wage War q Treaties Concurrent Power Concurrent q Taxation q Spending q Police Power Police (regulate public health, safety, & welfare) (regulate U.S. Commerce Clause U.S. q Power to regulate interstate commerce Power defined in Gibbons v. Ogden (1824). Gibbons (1824). q Expansion to private businesses began with Expansion Wickard v. Fillburn (1942). Wickard (1942). q Today, Commerce Clause authorizes the Today, national government to regulate virtually any business enterprise, including internet. q Limits: U.S. v. Lopez (1995), Alden v. Maine Limits: U.S. Alden (1999). (1999). This means congress can regulate even LOCAL business activity IF such activity directly or indirectly impacts interstate commerce. impacts NOTE: Vast Power in Congress State Commerce State q States possess inherent police powers to States regulate health, safety, public order, morals and general welfare. morals q State laws that substantially interfere State with interstate commerce will be struck down. down. q Raymond Motor v. Rice (1978). U.S. Supremacy Clause U.S. q Article VI of the Constitution Article “Supreme Law of the Land.” “Supreme q In case of direct conflict between state In and federal law, state law is invalid. and q Congress can preempt states. Preemption Preemption How to determine congressional intent to How preempt the field? preempt q Its express statement in legislation q By inference from    Persuasiveness of federal regulation Need for uniformity Danger of conflict between concurrent Danger federal & state Regulations federal §2: Business and the Bill of Rights the q Bill of Rights are not absolute. Bill q Originally the Bill of Rights was a limit Originally on the national government’s powers. on q During the early 1900’s, the Supreme During Court applied the Bill of Rights to the States via the “due process” clause of the 14th amendment. the Free Speech q First limit on governmental power q Symbolic Speech – gestures, movements, Symbolic clothing, other forms of expressive conduct clothing, q Texas v. Johnson (1989). (American flag burning) q R.A.V. vs. City of St.Paul (1992). (bias(1992). motivated disorderly conduct) motivated Commercial Speech Commercial q q Advertising is protected speech, but less Advertising protected. protected. Restrictions must: Restrictions q Implement substantial government Implement interest; interest; q Directly advance that interest; and q Go no further than necessary. q Bad Frog Brewery (1998). (1998). Corporate Political Speech Corporate Afforded significant protection by the first amendment but not to the degree of speech of natural persons. natural q First National v. Bellotti (1978) (Corp. contributions to political referenda) contributions q Consolidated Edison v. Public Service Commissi (1980). (bill inserts to express corp. (1980). views) views) Political Speech Restrictions Are Subject To Strict Scrutiny To q State must have compelling State legitimate interest legitimate q State must use means that are least State restrictive restrictive Unprotected Speech Unprotected q Certain types of speech are not Certain protected by the first amendment: protected q Slander. q Pornography, Obscenity. q Fighting Words. Freedom of Religion Freedom Second limit on governmental power q First amendment prohibits the First “establishment” and guarantees the “free exercise” of religion. exercise” q The first amendment does not require The complete “separation of church and state.” complete q First amendment mandates accommodation First of all religions and forbids hostility toward any. Freedom of Religion Freedom q First amendment guarantees the “free First exercise” of religion. exercise” q Employers must reasonably Employers accommodate beliefs as long as employee has sincerely held beliefs. Self-Incrimination Self-Incrimination Third limit on governmental power q Fifth amendment guarantees no person Fifth can be compelled to testify against himself in a criminal proceeding. himself q Does not apply to corporations or Does partnerships. partnerships. q Verniero v. Beverly Hills Ltd (1998). Searches and Seizures Searches Fourth limit on governmental power q Fourth amendment requires warrant Fourth with “probable cause.” q Warrantless exceptions exist for Warrantless “evanescent” evidence. “evanescent” q Searches of Business: generally Searches business inspectors must have a warrant. Due Process Due Fifth limit on governmental power q 5th and 14th amendments provide “no person shall be deprived of life, liberty or property without due process of law.” law.” q Procedural and Substantive issues. Procedural Due Process Procedural q Procedures depriving an individual of Procedures her rights must be fair and equitable. her q Constitution requires adequate notice Constitution and a fair and impartial hearing before a disinterested magistrate. disinterested Procedural Due Process Procedural COURT LOOKS AT: 1. Importance of individual interest involved 2. Adequacy of existing procedural protections AND AND Probable value of additional safeguards 3. Governmental interest in fiscal & Governmental administrative efficiency administrative Substantive Due Process Substantive q Focuses on the content or substance of Focuses legislation. legislation. q Laws limiting fundamental rights Laws fundamental (speech, privacy, religion) must have a “compelling state interest.” “compelling q Laws limiting non-fundamental rights Laws require only a “rational basis.” require Equal Protection Equal Rational Basis Test. Rational q Applied to matters of economic or Applied social welfare. social q Laws will be constitutional if there is Laws a rational basis relating to legitimate government interest. q WHS Realty v. Morristown (1999). Equal Protection Equal q Intermediate Scrutiny. q Applied to laws involving gender or Applied legitimacy. legitimacy. q To be constitutional laws must be To substantially related to important government objectives. government  (EXAMPLE: Illegitimate teenage pregnancy). Equal Protection Equal Strict Scrutiny. Strict Laws that affect the fundamental rights of Laws similarly situated individuals in a different manner are subject to the “strict scrutiny” test. q Any “suspect class” (race, national origin) must serve a “compelling state interest” which includes remedying past discrimination. q Equal Protection Equal Right Involved 1. Economic Test Test Gov. action must bear a rational Gov. rational relationship to a legitimate state legitimate interest interest 2. Arbitrary Arbitrary Classification (Gender, Gov. action must bear substantial Gov. substantial relationship to important Gov. important objective objective Legitimacy) Legitimacy) 3. Fundamental Rights Fundamental (Bill of Rights) Voting, Interstate Travel, Access to Crim. Justice OR Suspect Classification OR Gov. action must promote a Gov. compelling / overriding Gov. interest (very strict scrutiny) (very Privacy Privacy q Fundamental right not expressly found Fundamental in the constitution, but derived from 1st, in 5th and 14th amendments. q Laws and policies affecting privacy are Laws subject to the compelling interest test. subject ...
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This note was uploaded on 04/07/2008 for the course BUSINESS 3201 taught by Professor Danos during the Spring '08 term at LSU.

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