Constitutional Law
Professor Antowiak
A. The Articles of Confederation – Effective in 1781, initial document of the United States.
It calls itself a treaty of union between the several states. A Continental Congress (only one
branc of government) was established. Each state delegation consisted of 2-7 people, but each
state only had one vote. States were permitted to have individual relations with foreign
governments. There was no legislative or judicial branch of government, and there was no
power to regulate interstate commerce. The Articles were a failure. One state could put a
tariff on the goods of another state; each state coined its own money; law protected individual
pockets. Cutthroat competition among the states. As a result, there were calls for a strong
national government.
B. The Philadelphia Convention, 1787 – Conservative men attended; landowners and
creditors (not debtors) in order to resolve a dispute between MA and VA over the Potomac
River. At this meeting, a call for a stronger national government occurred. Washington was
elected president of the Convention. 55 men attended, average age 43. As president,
Washington refused to allow newspaper reporters into the Convention; in effect, it was a
public relations blackout. Washington was the man, he told the delegates to keep their notes
from the days close to them so they wouldn‘t get leaked.
a) The problem: How federal power was to be enforced? How do we set up this government?
How do we legitimatize it and allay people‘s fears of a new government?
b) The Constitution begins with ―We the people …‖ This was vastly different from the
Articles of Confederation which enumerated power in the states. “We the people” is a
powerful statement of political theory. This happened during the enlightenment
period—political power comes from the people because of reason/rational thought. Reason
was the God of the enlightenment—truth comes from reason, not God, therefore truth
comes from people. Sovereignty arises from the people.
c) September 17, 1787 – the Constitution was signed
d) Article I – The power of Congress, a statement of democratic boundaries of federal power.
§8—Lists the power of Congress. The most pervasive and powerful clause of the
Constitution: § 8 (3) To regulate Commerce w/in foreign Nations, and among the several
States, and w/ the Indian Tribes.
e) Article II – Regulates power between the several states.
f) Article III – The judiciary—one Supreme Court and such other inferior courts as Congress
may establish from time to time. §3—deals w/ rare cases in which USSC has original
jurisdiction.
g) Article IV – a catchall, Full Faith and Credit Clause
h) Article V – Amendment procedure
i) Article VI – Supremacy Clause: are the supreme law of the land—critical article b/c it says
to the people the Constitution is the final word.
j) Article VII – Ratification procedures.
C. The Bill of Rights was not written/passed until 1789. Why were they not included in the
original document? First ten amendments weren‘t in affect until 1791.
Southern states wanted these rights and would not sign unless they were included—then the
rest of the states followed.
a) The reason they did not put a set of rights in the Constitution was because they
did not think they needed to; they believed the government would self-correct.
b) There would be so much internal dispute, they believed, that rights would be protected.
c) This was all meant to stop tyranny; stop creation of a single power.
d) To limit government, they created two governments – a state and federal entity.
e) The idea being that they would go to war with each other over political turf & power, they
assumed conflict would occur b/w Federal and Statethey split Federal into 3 branches,
nominally equal at war each otherthe structure of the gov‘t would make us, the
individual free—they would leave us alone as they fought w/ each other. ―They split the
atom of sovereignty.‖ ~ Justice Kennedy—to protect individual liberty.
f) Federalism, Separation of powers – two pillars created.
g) First 8 Amendment: are very specific protections against the Federal gov‘t.
h) The 9th Amendment – Response to the concern that there are rights that have not been
enumerated. (Hamilton‘s concern).
i) 10th Amendment – Talks about the rights and interests of the states; it is there because
people distrusted federalism as a means of keeping the states as viable entities. It is a
statement that the states must exist as independent viable sovereigns.
j) Thomas Hobbes – Law generating from the people, see Leviathan
D. The Federalist Papers – A group of letters to the editor, written anonymously by Madison,
Hamilton, etc. urging adoption of the Constitution. They contain the basic political
philosophy of the enlightenment contained in the Constitution.
a) Paper #51 – Asks what is it that is going to maintain the division of power in this
government? You cannot have an external control, contriving the interior structure of
government as it several constituents be the means of keeping the ambitions separate.
―Ambition must be made to counteract ambition.‖ Politicians will lust for power; men are
inherently evil. The idea of dividing political power b/w Federal & State (two gov‘t fight
each other while the individual remains free).
b) Paper #84 – Hamilton defended that were no bill of rights.
c) Federalism is a hot topic in Con Law. The primary goal is check the tendency of all in
government to seek the Crown—everyone has a seed inside them of wanting more power.
It is a way to preserve individual freedom.
d) What is the role of the court in all this? We must preserve the principles of federalism &
the separation of powers—twin pillars of individual freedom.
E. History of the Court:
a) 1789 – 1835 The USSC is dominated by John Marshall. The Marshall era resonates
today; he made it a point to say that the Constitution must be interpreted to give its full
benefit to those who enacted it. He established the USSC as the arbitrar of the
Constitution; it was not something that was given. He talked about the Constitution as a
dynamic document. In 1789 the USSC was not the hot place to be.
b) 1835 - 1864 – Roger Tanney, legacy is the Dred Scott decision (side-stepped slavery b/c
politically they couldn‘t deal w/ it—they thought slavery would die it, but it didn‘t). 13th,
14th, & 15th Amendments passed after the Civil War.
c) 1865-1890 – During the industrial revolution / there were great social problems.
d) 1953 – present – The focus of the USSC has been on individual matters and rights. The
Court is struggling with an idea of what do you do with a Constitution that has the first 8
Amendments dealing with rights and liberties. The 9th Amendment speaks of ―other‖
rights but they are not enumerated. The Court is attempting to discover these new
rights—interpreting the Constitution is the key function.
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JUDICIAL REVIEW
A. The USSC has taken on the power of JUDICIAL REVIEW. They can say, ―what you have
written conflicts with the Constitution, and it is null and void‖ to any branch of government.
They can do this under the Supremacy Clause. This power originated in John Marshall.
John Marshall was a political genius; one of the two pillars of his genius is Marbury v.
Madison.
B. Marbury v. Madison (1803)
a) Adams (Federalist) appointed several Justices of the Peace as his tenure was ending.
Jefferson (Anti-Federalist) took office and James Madison was Secretary of State.
b) Marbury was to be appointed Justice of the Peace. Madison would not honor his
appointment and did not give him his Commission (a piece of paper.) Adams‘ Secretary of
State should have given Marbury his Commission (this was John Marshall)
c) Adams‘ Secretary of State – John Marshall (same USSC Justice who wrote this opinion!)
This is a conflict of interest and illustrates how low the reputation of the USSC was at the
time.
d) This whole case is about getting a piece of paper and those tactical decisions Marbury and
his attorney made about getting it. John Marshall saw this case as a way to make an
important decision; it has been cited in every USSC session.
e) File a writ of mandamus in the USSC, under Article III of the US Constitution, § 2:
i) "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in
which a State shall be a Party, the supreme Court shall have original Jurisdiction. In
all the other Cases [within the judicial power of the United States], the Supreme Court
shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and
under such Regulations as the Congress shall make."
f) But does this section apply to Marbury? Is Marbury a minister or consul? No … at that
time, those terms were reserved for foreign officials.
g) So, under the Judiciary Act of 1789, § 13:
i) "The Supreme Court shall also have appellate jurisdiction from the circuit courts and
courts of the several states, in the cases herein after provided for; and shall have power
to issue writs of prohibition to the district courts...and writs of mandamus...to any
courts appointed, or persons holding office, under the authority of the United States."
h) If Marshall had sent this writ to President Jefferson, Jefferson would have laughed and
not obeyed. Marshall knew this would happen; it would have been the first instance
where one branch of government confronted the other. Marshall knew that if he was
going to pick a fight with the biggest gorilla in town, he‘d better do so carefully because he
has no backup.
i) Three questions in the opinion:
i) Does Marbury have a right to the commission? It was signed, sealed and delivered.
The appointment was complete once signed and sealed. The non-occurring delivery
was a mere formality. By law, Marbury was entitled to a four year term. Since he was
appointed for a fixed term, his appointment was irrevocable and conferred a vested
property right in him. By withholding the commission, Madison was violating the law.
ii) If he has a right to it, does the law provide a remedy for the violation of his legal
rights? Marshall‘s response articulated a basic principle of American law. The answer
is yes. The essence of civil liberty consists in the right of every individual to claim the
protection of law, whenever he receives an injury.
iii) Is asking the USSC for a writ of mandamus the correct remedy?
(1) Could you make an argument that Marbury did not have a right to the
commission? Yes, Adams was not longer present; easy to argue that he has no
right.
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(2) Does he have a remedy? One can argue that the Judiciary Act of 1789 does not
provide a remedy. The Act speaks of appellate jurisdiction! Marbury filed suit in
the first instance in the USSC, asking for original jurisdiction. The argument
would be that USSC can only issue writs of mandamus when considering an issue
on appeal.
j) When in front of the USSC, default to the NON-constitutional issue first. In this case,
Marshall confronts the constitutional issue head on.
k) No mere act of Congress can trump that which is in the Constitution. ―The exercise of this
original right is a very great exertion; nor can it, nor ought it, be frequently repeated. The
principles, therefore, so established, are deemed fundamental. And as the authority
from which they proceed is supreme, and can seldom act, they are designed to be
permanent.‖
l) Authority comes from the people. This is classic enlightenment theory.
His argument for why the USSC should have this power (as opposed to the other
branches) is a procedural argument. In the final analysis, the decision rests in the courts
for the resolution of controversies. It is a statement about the nature of the judicial
system.
m) Why should the Court/courts have the power to declare acts of the other branches null and
void (as opposed to the other branches having the power)? The Court does not go out and
get the unconstitutional laws; we must bring them to the Court.
n) Courts can play the role of keeping politics fair.
o) Institutional arguments have been made since Marbury as to why the USSC should have
this power of judicial review (as opposed to other branches) – USSC has to sit and wait for
cases to be brought to them; courts are seen as detached from issues, and have the ability
to wait and watch/analyze them without being involved in them; more contemplative
body; courts are in the best position to be the referees.
DOCTRINES OF JUSTICIABILITY: STANDING, RIPENESS/MOOTNESS &
POLITICAL QUESTION
a) The justiciability doctrines reflect the allocation to courts of the duty to decide cases or
controversies but not to intrude on the domain of other branches.
b) The Constitution does not explicitly require that a litigant have standing and that her
case be ripe or not moot. The doctrines reflect the belief that courts should confine
themselves to deciding matters presented in an adversary context which enhance judicial
resolution and furnish … a safeguard against premature or ill-advised decisions in the
constitutional field.
c) Standing – Addresses the ―who‖ question; is the litigant before the Court the right party
to invoke jurisdiction?
d) Ripeness/Mootness – Addresses the when question; is the question ripe for judicial
attention?
e) Political Question Doctrine – Discriminates on what grounds; certain topics are
beyond judicial competence regardless or who raises them or when they are brought to
court.
POLITICAL QUESTION
A. Political Question Doctrine
a) The political question doctrine states that certain matters are really political in nature
and best resolved by the body politic rather than suitable for judicial review, it should be
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called the doctrine of nonjusticiability, holding that the subject matter is inappropriate for
judicial consideration
i) Example: the guaranty clause is nonjusticiable
b) ―The intimate political relation, subsisting between the President of the United States and
the heads of departments, necessarily renders any legal investigation of the acts of one of
those high officers peculiarly irksome … The province of the court is, solely, to decide on
the rights of individuals, not to enquire how the executive, or executive officers, perform
duties in which they have a discretion.”
c) ―Questions, in their nature political, or which are, by the constitution and laws, submitted
to the executive, can never be made in this court.‖
d) Political Question Doctrine is one firmly rooted in the principle of separation of
powers. In all cases, we will see the USSC say that the two pillars of our society are:
i) Separation of Powers: requires the court to look at the subject matter of the case. If
another branch of government has a right to the issue, the USSC will not decide the
issue.
ii) Federalism
e) The political question doctrine puts certain questions outside the bounds of judicial
decision based on the subject matter involved.
f) The doctrine does not withdraw from review all matters with political overtones.
g) Political questions are those which are committed to, or decided by a political branch, and
not the judiciary.
Six strands of the political question doctrine (from Baker v. Carr); all must be
present to find a political question:
1. A textually demonstrable constitutional commitment of an issue to a coordinate political
department
2. A lack of judicially discoverable and manageable standards for resolving it
3. The impossibility of deciding without an initial policy determination of a kind clearly for
nonjudicial discretion
4. A court‘s inability to resolve an issue without expressing disrespect for a coordinate
branch
5. An unusual need to defer to a prior political decision
6. A situation where government must speak in one voice
A. Baker v. Carr (1962)
a) Baker concluded that it is the relationship between the judiciary and the coordinate
branches of the Federal Government, and not the federal judiciary‘s relationship to the
states, that gives rise to the political question
b) Issues/questions within the case:
i) Jurisdiction: Under Article III, the federal courts have jurisdiction invoking
constitutional questions (subject matter jurisdiction) (because of an asserted violation
of the XIV Amendment)
ii) Standing: Does the P have standing? Standing is a second way in which federal
courts voluntarily pull back their hand from a matter. Jurisdiction is legally imposed
by the Constitution. Did Baker have standing to bring this lawsuit? Yes, because his
vote is being affected by a Constitutional violation.
iii) Justiciability: Is the issue justiciable? Attorney General will argue that this is a
political question. This question is not rooted in Constitutional provision. It is a
doctrine that the court has developed under the political question doctrine.
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c) Facts: Plaintiffs, residents of several counties, filed a complaint against defendants, state
officers and election officials, alleging that a state statute arbitrarily and capriciously
appointed representatives without reference to any logical or rational formula and that it
deprived them of the equal protection of the laws in violation of U.S. Const. amend. XIV.
d) Procedural History: The trial court granted defendants' motion to dismiss, finding that it
lacked subject matter jurisdiction and that the complaint failed to state a claim upon
which relief could be granted.
i) The court reversed and remanded, holding that the complaint's allegations of a denial
of equal protection presented a justiciable constitutional cause of action upon which
plaintiffs were entitled to a trial and a decision. The right that plaintiffs asserted was
within the reach of judicial protection under U.S. Const. amend. XIV.
ii) The court further found that if discrimination were sufficiently shown, the right to
relief under the Equal Protection Clause would not be diminished by the fact that the
discrimination related to ―political‖ rights.
e) What is it that the political question doctrine is supposed to further?
i) Separation of powers – one of the two structural protections of liberty for
individuals so that one branch of federal government does not intrude onto territory of
another branch of federal government.
f) The USSC has the last word; if it decides that an issue is justiciable, the issue may be
heard.
g) Baker on the political question doctrine: In determining whether a question falls
within the political question doctrine, the appropriateness under our system of
government of attributing finality to the action of the political departments and also the
lack of satisfactory criteria for the judicial determination are dominant considerations.
The nonjusticiabilty of a political question is primarily a function of the separation of
powers.
B. INS v. Chada (1983)
a) Chada attacks the one house veto procedurally.
b) The INS‘s first argument to throw the case out – is this a political question? No, it is not a
political question because what we are doing here is enforcing a constitutional provision.
This is something we can decide to the point that we will enforce proper constitutional
procedures.
c) If the legislature can pass law without the President, separation of power is compromised.
d) Look at the Constitution; are there not a number of instances where one house is
permitted to act?
i) Yes, but these instances are specifically delineated.
ii) For example, it is Congress who has the power of impeachment. When the
Constitutions speaks of one branch which has the power to do something, they are
very specific – this indicates that those who wrote the Constitution thought about the
exceptions; they did not list a catch all phrase. Thus, the exceptions must be strictly
limited.
e) This is a brilliant form of argument when you are interpreting a statute. “We presume the
law making body was rational; they thought of all exceptions and did not include a catch
all phrase.”
C. Bowsher v. Synar (1986)
a) If Congress was allowed to pass such a law, what you would have in this case is the
executive branch executing its own laws, which leads to expanding Congressional powers.
b) The Gramm-Rudman-Hollings Act was unconstitutional on the ground that the Act
imposed executive functions on the Comptroller-General – functions that could
constitutionally be exercised by the officer removable by Congress.
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c) The trial court ruled that the Comptroller General's role in the deficit reduction process
violated the constitutionally imposed separation of powers.
d) On direct appeal, the court affirmed. Responsibility for execution of the Act was placed in
the hands of the Comptroller General. Congress retained control over such execution and
thus intruded into the executive function in violation of separation of powers.
e) The Act was unconstitutional because it gave the Comptroller General, an officer of the
legislative branch over whom Congress retained removal power, the ultimate authority to
determine the budget cuts to be made, functions plainly entailing execution of the law in
constitutional terms.
D. Morrison v. Olson (1988)
a) Appellant independent counsel challenged a decision of the United States Court of
Appeals for the District of Columbia Circuit that reversed the trial court's decision and
held that the independent counsel provisions of the Ethics in Government Act, 28 U.S.C.S.
§ 591 et seq, were invalid.
b) The Special Division appointed appellant as independent counsel to investigate appellees
for violations of federal criminal laws pursuant to the Ethics in Government Act of 1978,
28 U.S.C.S § 591 et seq. Appellant caused a grand jury to issue and serve subpoenas on
appellees. All three appellees moved to quash the subpoenas, claiming that the
independent counsel provisions of the Act were unconstitutional; therefore the officer who
issued them had no power to issue subpoenas, hence appellees did not have to respond to
them. The trial court dismissed appellees' motions, but the appellate court reversed the
decision when it found that the Act was invalid.
c) Supreme Court reversed the appellate court's decision when the Court found that:
i) the Act did not violate the Appointments Clause for Congress to vest the appointment
of independent counsel in the Special Division;
ii) the powers exercised by the Division under the Act did not violate U.S. Const. art. III;
and
iii) the Act did not violate the separation-of-powers principle.
d) Under Article 2, § 2 an executive may appoint an official. He may not, however, dismiss
such an appointment without cause.
i) Cause must be shown for independent counsel.
e) The argument in this case was that this scheme was unconstitutional because it unduly
limited the president; the Court said that no it does not because independent counsel is
not a policy maker… his sphere of influence is limited to just ―this case.‖ An independent
counsel investigates certain instances of misconduct.
E. Nixon v. United States (1993)
a) Petitioner, a former federal judge, challenged his impeachment conviction. Petitioner
argued the impeachment proceedings violated the authority of the Senate under the
Impeachment Clause, U.S. Const. art. I, § 3, cl. 6, to "try" all impeachments because
the whole Senate did not take part in evidentiary hearings.
b) The Court held the controversy was a nonjusticiable political question as there
was a textually demonstrable constitutional commitment of the issue to the legislature
and a lack of judicially discoverable and manageable standards for resolving it.
i) The Impeachment Clause granted sole authority over impeachments to the Senate,
and did not require or provide a means of judicial review (if the Constitution HAD
prescribed a specific set of steps or procedures that the Senate was to follow, and it
was clear that they had not, this would NOT have been a nonjusticiable political
question). As impeachment was designed to be the only check on the judiciary by the
legislature, it was counterintuitive to have judicial review of impeachment
proceedings. There were no discoverable standards for judicial review of impeachment
proceedings, and fashioning relief was difficult.
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c) Issue: Is this a justiciable issue?
i) Nixon was seeking to have the USSC order the Senate to give him a full trial.
ii) Does the Constitution require a full trial by the Senate? No.
iii) They focused on the language – the Senate has the ―sole‖ power of impeachment.
iv) Impeachment is one of the only checks on the judicial branch – THUS it is
counterintuitive to say that the judiciary has the power of judicial review.
d) Last consideration is finality; somewhere along the line it must end. Impeachment is the
end of the line. We‘re not going to ―keep the door open‖ to possibly reinstate someone who
has been impeached.
e) Outcome: Order affirming that petitioner's request for invalidation of impeachment was a
nonjusticiable political question was affirmed because there was a textually demonstrable
constitutional commitment of impeachment to the legislature and a lack of discoverable
standards for judicial review of impeachment proceedings.
F. Clinton v. NY (1998)
a) Line Item Veto – (calculating things in the budget) Passed when President Clinton was in
office; and Clinton exercised this veto, causing Clinton v. NY to ultimately end up in the
Supreme Court. This law was unconstitutional according to the Supreme Court.
b) According to Kennedy, ―Liberty is always at stake when one or more of the branches seek
to transgress the separation of powers. Separation of powers was designed to
implement a fundamental insight: concentration of power in the hands of a single branch
that is a threat to liberty.
G. Summary:
a) All of the above questions speak to the political question doctrine. If there is a political
question, the Court should get out of the case. In each of these cases, the substantive
questions that the Court addressed had to do with the political structure and whether it
met constitutional standards. The Court served as a referee. The Court washed its hands
of the substantive discretionary arguments. This is the distinction to keep in mind in
these cases.
b) Article III of the Constitutional imposes judicial limits on the federal courts. All of the
above comes from the two words: case and controversy. The use of these words implies
something important about how the Court sees its own role. It has the big stick of judicial
review.
c) The courts wait for issues to come to them and then they make a determination whether
there is a real dispute between interested adversarial parties.
d) A just verdict is whatever a jury awards him after a fair trial. The appellate courts will in
rare circumstances overturn such a verdict. We are a process orientated country. We love
process. In the USSC, we believe that process does something for us.
e) In this country, we want a good fight. Why do we want a good fight? Because a good fight
defines issues. We do not speculate; we deal in the concrete and by doing that we limit the
court. This thing about case or controversy is a crucial structural protection against the
court going off into areas that it was not invited into and whipping out the cloak of judicial
review when it has no business to do so.
f) We do justice by process this means that the courts are not supposed to render advisory
opinions. Nor will they weigh in on issues that are moot.
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Area of Decision Political Question NOT a Political Question
Foreign Affairs and the War The decision whether or not war if there has been no conclusive
Making Power should formally be declared may ―governmental action‖ then a
be a political question court can interpret the treaty and
may find that it provides the
answer
Amendments to the Constitution IF statutes do not provide for a The court is not entirely excluded
judicial role and if the power of from the Amendment process
Congress to enact such statutes is
not the matter in dispute, it may
be the rule that all Amendment
questions relating to the
constitutionality of acts of
Congress affecting the
Amendment procedure should be
regarded as political
The Origination Clause The court should be able to
engage in the prosiac judgment of
creating judicially manageable
standards to determine where a
bill ―originates‖ or if it is for
―raising revenue‖
Ripeness / Mootness
A. Ripeness
a) Is the issue a current controversy that is ripe for litigation?
b) Ripeness deals with the timing of the lawsuit. Courts cannot consider constitutional
issues prematurely. Ripeness endeavors to limit judicial review to cases brought at the
―right‖ time. A constitutional question is ripe for judicial review only when the
governmental act being challenged has a direct adverse effect on the individual making
the challenge.
c) Ripeness responds to a separation of powers concern by postponing judicial intervention
until it is clear a live dispute exists.
d) Fitness for review pivots in part on whether the claim turns on contingent events or
whether the facts have sufficiently developed to make harm definite.
e) Ripeness turns on two factors:
i) What would be the hardship to the parties of withholding judicial consideration?
ii) How fit are the issues for judicial determination?
B. Mootness
a) Mootness addresses a timing question: When is a suit appropriate for adjudication?
i) Whereas ripeness asks whether the suit is ready for review, mootness considers
whether the case of controversy has disappeared.
ii) ―We have no power … to adjudicate a case that no longer presents an actual, ongoing
dispute between the named parties.‖
b) The Court has recognized an exception to the mootness doctrine when the underlying
dispute is ―capable of repetition, yet evading review.‖
i) The exception requires:
(1) that the challenged action be too short in duration to be fully litigated before its
cessation or expiration and
(2) there was a reasonable expectation that the same complaining party would be
subjected to the same action again.
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c) Courts do not apply the mootness doctrine when a party voluntarily stops the challenged
conduct during litigation without creating the reasonable likelihood that it will not later
resume that activity.
C. Standing
a) May the person coming into court bring the action?
b) There are two groups of standing issues:
i) Constitutional requirements Constitutional requirements of Standing (every
person must meet these):
(1) Personal injury – the person who brings the action must have suffered some
injury (personal stake in the outcome an injury and a fairly traceable causal
connection b/w injury and conduct that P challenges)
(a) must meet Article III definition of case or controversy
(2) That injury must be fairly traceable to the acts of the government or government
entity they are suing
(3) The injury must be redressable by the court this is met if it is shown if #2 is
met.
ii) Prudential requirements
(1) You should ensure that the person is truly asserting their own rights and not
those of a third party. (Without such a limitation, the courts would not be limited.)
(2) You cannot just have a general grievance of widespread concern – when the
asserted harm is a generalized grievance all share in substantially equal measure
(large class of citizens), that harm alone normally does not warrant the exercise of
jurisdiction.
(3) The claim must be in the zone of interest protected or regulated by the
constitutional guarantee in question.
c) As an aspect of justiciability, the standing question is whether the plaintiff has alleged
such a personal stake in the outcome of the controversy as to warrant his invocation of
federal-court jurisdiction and to justify exercise of the court's remedial powers on his
behalf.
d) The U.S. Const. Art. III judicial power exists only to redress or otherwise to protect
against injury to the complaining party, even though the court's judgment may benefit
others collaterally. A federal court's jurisdiction therefore can be invoked only when the
plaintiff himself has suffered some threatened or actual injury resulting from the
putatively illegal action.
D. Warth v. Seldin (1975)
a) Petitioners sought review of a decision from the United States Court of Appeals for the
Second Circuit, which held that none of the petitioners had standing to prosecute an
action claiming that respondents excluded low income persons from living in respondent
town in contravention of various constitutional and statutory rights.
b) Petitioners, various organizations and individuals, brought an action against respondent
town, and against members of respondent town's planning and zoning boards. Petitioners
claimed that respondents' zoning ordinances effectively excluded persons of low and
moderate income from living in the town, in contravention of petitioners' constitutional
rights and in violation of 42 U.S.C.S. § § 1981, 1982, and 1983.
c) The lower court held that none of the petitioners had standing to prosecute the action. The
court affirmed, holding that the facts alleged failed to support an actionable causal
relationship between respondents' zoning practices and petitioners' asserted injury.
i) In contrast to cases where plaintiffs challenged zoning restrictions applied to
particular projects that would supply housing within their means, and of which they
were intended residents, in this case petitioners were unable to demonstrate that
unless relief from the allegedly illegal actions was forthcoming, their immediate and
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personal interests would be harmed. Thus, the court held that petitioners failed to
meet threshold standing requirements and affirmed the judgment below.
d) They were unable to prove a nexus between the clients‘ income and their inability to find
housing. The argument is hypothetical; there is no identifiable claim here.
e) The problem in this case is their inability to get housing cannot be traced to the actions
of the zoning board. The more speculative the claim, the more watered down the injury
and thus, it should be resolved in a political realm. It is not within the province of an
Article III court.
f) Taxpayers of Rochester claim that by not allowing those low income residents to move, the
Rochester taxpayers must pay more to support these residents who do not pay taxes. But
the city of Rochester is not a defendant in this suit – the defendant is saying that he is
being sued for an injury not traceable to Penfield.
g) There is a third group that sues here – the builders‘ association. Their claim is that they
have been deprived of substantial business opportunity and profits because they have not
been allowed to build the low income housing. But were their projects pending at the time
the claim was denied? No, it was speculative. No builder filed an application for a zoning
ordinance.
i) Can something like an association, being a separate legal entity from its members,
have standing? Yes, only if a significant number of its members could have brought
suit. See page 54, Note 5
h) How could you ever have a poor person who has standing here? If you have a developer
who agreed to sell to the poor person; the poor person puts down 5 bucks as a deposit –
which thus meets the constitutional requirements of the matter.
E. Flast v. Cohen (Taxpayers) (1968)
a) Taxpayers in Establishment Clause cases may sue with standing if they are taxpayers.
i) The taxpayer standing case is one in which a citizen is trying to use their taxpayer
status to get around the principle that citizens do not generally have standing to
challenge a government action that they believe is unconstitutional
b) For standing to exist under Flast:
i) the taxpayer must attack an expenditure under the Taxing and Spending Clause,
(1) a taxpayer will be a proper party to allege the unconstitutionality only if exercises
of congressional power under the taxing and spending clause of Art.I, §8, of the
constitution (logical link b/w taxpayer status and type of legislative enactment
attacked)
ii) the taxpayer must demonstrate that the challenged expenditure exceeds a specific
constitutional limitation on that power
(1) taxpayer must establish a nexus b/w that status and the precise nature of the
constitutional infringement alleged show that the challenged enactment exceeds
specific constitutional limitations imposed upon the exercise of the congressional
taxing and spending power and not simply that the enactment is generally beyond
the powers delegated by Congress by Art.I, §8
F. Federal Election Commission v. Atkins (Voter Standing) (1981)
a) Voters challenged FEC rule which allowed political action groups to withhold those who
they gave money to.
b) Litigants have standing as voters to sue to compel a government agency to require a third
party to disclose information allegedly helpful in voting.
G. Quitam suit –I
a) If a company does work for the government, and an employee finds out that you are
robbing government blind. And he wants to bring a lawsuit against company to recover
money for the government. Can the government allow a private individual to bring this
lawsuit? yes under this theory
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i) really the claim is a contractual claim by the government and all that the government
is doing is assigning the claim to a private person will to mount the litigation and
recover in part. See Vermont Natural Resources Association v. The United
States.
b) Exceptions Clause – To what extent may Congress limit habeas corpus jurisdiction in the
federal courts? Congress cannot just tell the courts that they can‘t consider cases of which
they have jurisdiction over.
c) Habeas corpus proceedings - Both federal and state prisoners, when they have exhausted
their direct appeal rights, may seek to come into federal court and file a habeas corpus
petition.
H. Lujan v. Defenders of Wildlife (1991)
a) Appeal on writ of certiorari from a judgment of the United States Court of Appeals for
Eighth Circuit, which reversed a lower court's grant of petitioner Secretary of the
Interior's motion to dismiss respondent wildlife organizations' action for declaratory relief
under § 7(a) of the Endangered Species Act of 1973, 16 U.S.C.S. § 1536(a)(2).
b) Petitioner, the Secretary of the Interior, promulgated a new interpretation § 7 of the
Endangered Species Act of 1973 (Act), 16 U.S.C.S. § 1536(a)(2), which required
consultation only for actions taken in the United States or on the high seas.
c) Respondents, wildlife conservation organizations, filed suit seeking declaratory judgment
and injunctive relief to restore petitioner's initial interpretation. The district court
granted petitioner's motion to dismiss for lack of standing, but the circuit court reversed.
d) On writ of certiorari to the United States Supreme Court, the circuit court's decision was
reversed and remanded because:
i) Court reasoned that respondents lacked standing under Article III of the Constitution
to bring an action, as respondents failed to establish all three prongs required for
standing. The burden of proof was not met regarding causation and redressability of
respondents' injury. Therefore, petitioner's motion for summary judgment should have
been granted.
e) Paragraph 2, page 57 – the Court recited the constitutional requirements of standing and
applies them.
f) Is petitioners‘ motion just a general grievance? Are the petitioners asserting that they are
losing something here? Is it an injury? Yes, there is an injury – it does not have to be
much of an injury BUT does it become something that could be cognizable in court to
grant someone standing
I. How to Determine Sufficient Injury:
a) When you do the calculus as to whether there is a sufficient injury – it is injury times its
speculative nature (you discount the injury by the remoteness/speculative nature). Is the
injury of such a nature and quality that rises to the constitutional level to merit standing?
i) Injury X speculative nature = Constitutional limit for standing
b) What is the second reason that there is no standing in this case?
i) The redressability of the issue.
ii) I sue the Secretary of the Interior, and if I won, there is no guarantee that my
problem/injury would be solved. Is the injury fairly traceable to the actions of the
government? Here, no – not enough.
c) Congress is going to help here; why can an ordinary person bring suit? Could Congress
pass a law to allow a citizen to bring this case; could the Congress pass a law to allow a
citizen standing in this issue? If they did, would the court have a problem with that? Yes,
Congress cannot trump constitutional rules of standing. Congress cannot give you what
the Constitution cannot.
d) In First Amendment cases, the courts have expanded the notion of what injury in fact is
because the courts are afraid that where there laws that limit speech are vague or broad,
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people are afraid to speak = a chilling effect. In free speech, we want people to feel freer to
speak. The notion of injury is expanded.
CONGRESSIONAL POWER
A. Article I begins by providing that ―All legislative Powers herein granted shall be vested in
Congress.‖
a) The language of Article I would suggest that no other branch possesses any legislative
power – a false impression.
b) The President participates in Treaty Power.
B. Congressional authority is thus limited to those powers granted. The federal government is
limited to the authority delegated to it.
C. The doctrine of implied powers (recognized in McCulloch), is confirmed by the Necessary and
Proper Clause.
D. Article I confers not only those powers specifically enumerated but also those reasonably
implied – the legislative power vested in Congress exceeds the express grants Article I lists.
E. Article I, Clause 18 authorizes Congress ―To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any Department of Officer
thereof.‖
a) Key: ―Let the end be legitimate, let is be within the scope of the Constitution, and all
means which are appropriate, which are plainly adapted to that end, which are no
prohibited, but consist with the letter and spirit of the Constitution are constitutional.‖
F. McCulloch v. Maryland (1819)
a) McCulloch (D), a federal bank cashier, refused to pay a state tax levied on the Bank of the
United States by the state of Maryland.
b) Rule: The states have no power to burden the operation of federal laws designed to
execute powers vested in the federal government by the Constitution.
c) Maryland asks the question in reverse: What authority do you, as the federal
government, have to incorporate this bank?
i) Maryland, by passing a statute which imposed a state tax on the federal bank, seeks to
trump the federal statute which chartered that federal bank.
d) The Bank of the US is a means, not an end. The ends are enumerated in the Constitution,
and means necessary to achieve those ends must be permitted.
i) One of Congress‘ powers is that of making ―all laws which shall be necessary and
proper for carrying into execution the foregoing powers, and all other powers vested by
this constitution, in the government of the US, or in any department thereof.‖
e) Maryland argues that federal power is derived from the states
f) McCulloch argues that federal power, as enumerated in the Constitution, is derived from
the people.
g) If Marshall bought Maryland‘s argument it is over BUT the position of the US is that both
the states and the government derive their power from the ultimate source of authority –
the people.
h) As the powers of the federal government do not come from the states; we are to read this
document as the people wrote it, we are to understand that its sphere the federal
government‘s powers are supreme.
i) 10th Amendment Argument: The word ―expressly‖ is no longer in the 10th Amendment
(it was in the Articles of Confederation). Thus, when you knock out one pillar of the
state‘s argument (that power is derived from the states) and when you see that the word
―express‖ is not in the 10th Amendment, the Constitution is not to be narrowly interpreted.
i) “The powers not delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the people.”
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j) Where does the power to charter the bank come from? You look at the other powers
granted the government – post offices, tax, to coin money, etc.
i) The US government says look at what is written and we are implying a power from
that which is written. ―Implying from that which is written.‖ It is am implied power.
k) Maryland‘s next argument – the Necessary and Proper clause. ―This is not a properly
chartered federal bank in the first place, therefore we can tax it. Who ever said we needed
a federal bank system anyway?‖
i) The necessary and proper clause says to the Congress, if you want to do something,
you better be able to prove that it was necessary and within your specific grants of
power.
ii) Congress, however, is always going to say it is necessaryWHO decides what is
necessary?
iii) The Court must decide.
l) This creates the next issue – Marshall says that MD is wrong as to how you read the
Necessary and Proper clause. It is not a clause to be read narrowly. If this clause should
be read on as a restriction on the incidental powers of the Constitution, then the
Constitution becomes nothing more than a splendid bauble. To read this clause as MD
read it is not in line with the Constitution. The only way to read the clause is to create
the ability for courts to imply power and Congress to have a broad spectrum of options to
implement the powers they have to carry out necessary functions.
i) Nutshell summary by Marshall – second paragraph page 96 – “Let the end be
legitimate, let it be within the scope of the Constitution, and let all means which are
appropriate, which are plainly adapted to that end, and which are in line with the
Constitution, be constitutional.”
(1) Under the above test the federal laws are valid so long as they bear a reasonable
relationship to an enumerated power of the government.
(2) Structure of the Constitution: the necessary and proper clause followed the
enumerated powers: the framers of the constitution thus treated the necessary
and proper clause as an additional power, another enumerated power the need
to provide additional law-making powers for the execution of other powers
ii) Are your means legitimate and plainly adapted? What does this mean? Does this give
the government unlimited discretion?
(1) No. There must be a rationale relation from the power to the means chosen
to implement them – a logical chain of inferences.
m) Where would you look for prohibitions as to the means?
i) The Bill of Rights – specific prohibitions regarding how the government can conduct its
business.
n) Last part of the opinion – if this is a legitimate exercise of federal power, can the state tax
it?
i) Obviously not – the power to tax is the power to destroy. And how do you know the
state cannot trump the legitimate actions of the federal government? The Supremacy
Clause.
ii) The constitution established the supremacy of federal law states cannot possess
incompatible powers that might be hostile to the federal actions
o) What Marshall announces here is at the core of all substantive due process analysis. This
case gave birth to the rational basis test. It is his conception that the federal
government cannot do what it damn well pleases; it must make an argument that its
means are rationally related. And at that point, the Court must say that separation of
powers means that the government can do as it will.
G. US Term Limits v. Thornton (1995)
a) Issue: May a state limit the terms of its representatives elected to federal office?
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i) Judicial review of states.
b) Majority Opinion: The people created the federal government, the people created a new
right to elect people to Congress. If the people wanted to limit that right by allowing
states to set term limits, it would have said so.
c) Kennedy‘s Concurrence: The people have no reserve over the federal government when the
federal government acts within its sphere.
d) Thomas: Unless the Constitution would prohibit the states from doing this, the states may
do so. The people give power to the federal government from their states, according to
Thomas.
e) Amendment IX: ―The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.‖ (Notice that is says nothing
about the states.)
f) Social contract theory does not presuppose the existence of states; it is the notion that I as
the individual agree with another, and from that agreement we create government. That
is the conception and it has nothing to do with states.
EXECUTIVE POWER
A. Notes:
a) Expediency is the heart and sole of executive power; in a crisis, the President may quickly
respond. This is a good thing and a bad thing.
b) History of the presidency – George Washington set a standard by choosing not to run for a
third term, though he could have.
c) The pinnacle of presidential power occurred in Lydon Johnston, according to Antkowiak.
He was crude, corrupt – went to E. Texas State Teachers College.
d) Can the President execute a law that Congress has not approved? No – like a Chada
argument – you cannot assume or imply a law because this would be a lawmaking
function. However, the court tends to accept this argument.
B. Ex parte Milligan (1866)
a) Habeas corpus – ―You have the body‖ – the court issues the writ and it is sent to the
jailor, to release the body.
b) Petitioner prisoner was arrested and confined in a military prison. At trial, the prisoner
objected to the authority of the military commission to try him, but he was sentenced to
death. He filed a petition for discharge from unlawful imprisonment in the Circuit Court
of the United States for the District of Indiana. The judges of the Circuit Court for Indiana
filed a certificate of division and certified questions to the Court.
c) The prisoner argued that the military commission did not have jurisdiction to try him.
d) It was also argued that the Indiana circuit court did not have authority to certify
questions and that the Court did not have jurisdiction to hear and determine them.
i) The Court held that the circuit court had jurisdiction to entertain the prisoner's
application for writ of habeas corpus and to hear and determine it.
ii) The judges of the circuit court also had the duty to certify the questions on which they
could not agreed to the Court for final decision.
iii) After reviewing the Constitution, the Court determined that the commission was not a
court vested with judicial power by Congress, and therefore the prisoner's rights were
infringed upon when he was tried by the commission.
iv) The prisoner's rights were further infringed upon when he was denied a trial by jury.
v) Court held that the appropriate remedy was to issue the writ of habeas corpus.
(1) Moreover, because the military trial of the prisoner was contrary to law, on the
facts stated in his petition, the prisoner should have been released from custody.
e) The Court held that the proper orders were entered in the last term, and, accordingly, a
writ of habeas corpus should be issued and that the prisoner should be released from
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custody. Further the Court held that the commission did not have jurisdiction to try and
sentence the prisoner because Congress did not sanction the commission.
f) Milligan‘s argument
i) why did I not get a trial by jury
ii) where are my constitutional rights?
g) The Court expresses the importance of the matter – ―a question of the framework of
government, and principles of liberty.‖
h) This case was right after the Civil War, during Reconstruction. The Court said that the
president‘s need to jail this man, does not derive from the need to execute laws, nor was
this is a time of marshal law, and this person was a citizen, NOT a military man, charged
with treason.
i) Milligan does not hang, goes before a trail in civil court.
C. US v. Curtis Wright Corp. (1936)
a) Congress passed a law which gave the president unlimited discretion not to sell arms to
certain countries (like Bolivia).
b) The Corp. filed suit saying that the president did not have such power.
c) The Court said that where the President is managing the internal affairs of the country,
the president must look to Congress for power, and Congress must look to Art. I, Sec. A.
d) The Court also said, however, that when the nation was formed, it took from England the
power to operate in the international sphere – it passed form the sovereign of one to the
sovereign of another and here, it passed to the President. The President can deal in
foreign affairs – and greater deference is due to the President.
D. Congress has the power to declare war – but how many times has the president committed
troops without a declaration of war? Over 100 times since the 1930s, and he does so under
this authority. He has great power in foreign affairs
E. Ex parte Quirin (1942)
a) Issue: Was it constitutional for the government to place the petitioners, who were charged
with offenses against the law of war, to stand trial before a military tribunal without a
jury?
b) In this case, the Court distinguished between lawful and unlawful combatants.
i) Lawful combatants – including the armed forces of enemy nations are subject to
capture and detention as prisoners of war.
ii) Unlawful combatants – includes enemy combatants who, without uniform, come
secretly through the lines for the purpose of waging war by destruction of property,
etc. and are not entitled to the status of prisoner of war and are subject to the trial
and punishment by military tribunal.
F. Youngstown Sheet and Tube Co. v. Sawyer (1952)
a) Does the President of the US have the authority to order the seizure of the nation‘s steel
mills under the commander-in-Chief clause and other Constitutional provisions?
b) Was there a law in place that authorized the President to seize the mills?
i) Nono act of Congress permits such an action, and in debating the Taft-Hartley Act,
Congress rejected an amendment which would have allowed the seizure technique to
be used in labor disputes to prevent work stoppages.
c) The Constitution does not contain the express language authorizing a seizure, and a
seizure of power cannot be inferred from the aggregate of the President‘s powers under
the Constitution.
i) The Constitution does not permit the President to seize private property to prevent the
consequences of a labor dispute – this would be effect allowing the President to MAKE
LAW. The President is not allowed to make law.
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d) The simple answer to this is that there was not law that he was executed and the
President is not allowed to make law. though congress has the ―necessary and proper‖
authority to carry out laws this does NOT apply to the executive branch
e) Second argument: What about the president‘s inherent power as Commander in Chief. It
is true that the president is the Commander in Chief, but he cannot seize private
property.
i) Here, the USSC must interpret the word COMMANDER. What does that word mean?
ii) Here, the USSC is asking who has the power? They are acting like a referee as they
should.
f) When you have a presidential powers issues, it is useful to use JACKSON‘s analogy and
structure because it helps to show you were the President stands. Is the President with
Congress, against Congress or independent.
Jackson’s Categories and Inherent Power Limitations
Jackson identified three separate categories of presidential action with different legal
consequences:
1) Presidential action pursuant to congressional authority (Presidential authority at its
maxium)– ―When the President acts pursuant to an express or implied authorization of Congress,
his authority is at a maximum, for it includes all that he possesses in his own right plus all that
Congress can delegate.‖ Presidential action here is presumptively valid. A challenger bears the
burden of demonstrating that the federal government lacks the power to do what its political
branches have authorized.
2) Presidential action where Congress is silent – ―When the President acts in absence of either a
congressional grant or denial of authority he can only rely upon his own independent powers, but
there is a zone of twilight in which he and Congress may have concurrent authority, or in which its
distribution is uncertain.‖ This situation resembles the Dormant Commerce Clause. Where
Congress leaves the field to the President, the efficacy of executive action will depend on the
imperatives of events and contemporary imponderables rather than on abstract theories of law.
3) Presidential action contrary to congressional directions – ―When the President takes
measures incompatible with the express or implied will of Congress, his power is at its lowest ebb,
for then he can rely only upon his own constitutional powers minus any constitutional powers of
Congress over the matter.‖ Here the President‘s claim depends on the relative merits of his claim
vs. Congress‘ authority to act.
G. United States v. Nixon (1974)
a) Nixon refused to turn over tape recordings and documents which were subpoenaed in the
course of the Watergate investigation.
b) Rule: The president does not enjoy an absolute generalized privilege which would allow
him to shield all communications from a subpoena in a criminal proceeding.
c) Because the special prosecutor had demonstrated a specific need for the evidence sought
by way of subpoena and had complied with the requirements of Fed. R. Crim. P. 17(c), it
was proper to compel production and to examine the material in camera. The legitimate
needs of the judicial process outweighed executive privilege.
d) The problem in this case is that Nixon asserted executive privilege was his, and it was his
to define. The Court quoted Marbury in response, reminding Nixon that the Court was
the one to define executive privilege. The Court needs to balance executive privilege with
the needs of the state in a criminal proceeding. The president said there could be an in
camera review, but the tapes were to be released.
H. Dames & Moore v. Regan (1981)
a) President Reagan issued an executive order suspending all US citizens‘ claims pending
against the government of Iran.
b) Rule: The president has the power to suspend pending claims again foreign governments
where such action is necessary to the resolution of a major foreign policy dispute where
Congress has acquiesced
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c) Congress implicitly approved this; Congress had routinely acquiesced.
d) This case illustrates Jackson‘s opinions in the Youngstown case – looks at the relationship
between the president and Congress vis a vie disputed powers. Does the federal
government have the power to do what they are doing? Twilight zone area – Congress has
really not said anything; where Congress has not acted, or has acquiesced, there is more
room. Where Congress has said no, Congress has drawn a fine line around Article II
power.
e) When the President acts in the absence of congressional authorization he may enter a
zone of twilight in which he and Congress may have concurrent authority, or in which its
distribution is uncertain.
I. Nixon v. Fitzgerald (1982)
a) The President is absolutely immune from prosecution from acts he takes as President.
However, Congress can by statute permit certain suits against the President.
i) Reason: The president is too easy of a target; this would limit the executive functions,
impede govt. functions if president does something improper in office he can be
impeached – this is his punishment
J. Clinton
a) Clinton attempted to use the above rule from Nixon v. Fitzgerald for alleged acts by him
against Paula Jones while he was governor. Clinton sought to postpone Jones‘s civil suit
against him until after he left office.
b) Clinton argued that he was too busy to be bothered with a civil suit and he asked for a
delay.
c) Rule: (there is no curtailment of powers) A sitting President does not enjoy temporary
immunity from all civil lawsuits based on his unofficial acts.
K. Hamdi v. Rumsfeld (2004)
a) Issue: Does a US citizen have a due process right to challenge his classification and
detention as an enemy combatant before a neutral decisionmaker?
b) 5 justices rule that the detention of those people had been authorized by contract – that is
one debate.
c) 8 out of 9 said you simply cannot defer to presidential power in this area; you cannot say
that the President has the unlimited discretion to say that certain people need to be
detained under Article II – but 5/9 say there was congressional authorization – which
means the President is within his realm.
d) 5/9 said that due process requires that enemy combatants get
i) notice of their status, and
ii) opportunity to dispute that classification.
e) So they decide that there must be some process due people to challenge their status as
enemy combatants.
f) Every individual detained by the US has a right to this minimum process. And the
habeas corpus process has NOT been suspended – thus this process is clearly due.
g) Also separation of powers argument: The Court should not get involved says one said
because this is a military decision; but the Court rejects the notion that they have a
severely limited role in these cases – this is not mandated – the Court will inquire into
matters of procedure and due process, that is what Courts do, and that is what the USSC
will do, so that a rational fact finder can make a conclusion.
L. Tenant v. Doe (March 2005)
a) Two foreign nationals claimed they were spies for the US, in their home countries, for the
US. The file suit against the CIA, because they claim the CIA did not keep them
financially supported, as contracted. They claim this is a contract dispute.
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b) USSC throws the case out without a hearing and trial – relying on Totten v. US which
held that where an action is brought about a contract with a spy, that is a matter within
Presidential discretion for which the court should defer.
i) This is an area committed to the discretion of the executive branch; this is a
circumstance in which presidential power vis a vie foreign policy matters, which the
Courts says it will not question.
THE COMMERCE CLAUSE
A. The Commerce Clause, Article I, §8
B. The Commerce Clause was considered a critical part of the Constitution. And it has been
interpreted in a very, very broad manner over the years.
C. The Commerce Clause is two things
a) like everything else in Art. I Sec. 8, a grant of power to the federal government and
b) standing alone, without federal law on the books, the CC operates to limit the power of the
states – this is called the ―Dormant Commerce Clause.‖
D. The most important cases decided by the USSC in the last 15 years have dealt with federal
powers issues under the Commerce Clause.
E. Commerce is commercial intercourse in and among the nation, according to Marshall.
Commerce/commercial intercourse among the states, cannot stop at the external boundaries
of each state and must be introduced into the interior. However, there is some commerce
which is completely national and interstate. But there are also some activities that are close
to interstate, thus the federal government can reach. The federal government has no power to
go into completely intrastate commerce if it does not effect interstate commerce.
a) There is
i) some commerce which by itself is completely interstate, but also opens another door ,
ii) some activities which are so integrally involved interstate that even though they are
conducted locally, they can be regulated,
iii) completely in one state federal government has no power
F. There are 3 ways that an item, person, or activity may come under the federal commerce
power:
a) Congress set regulations, conditions, or prohibitions regarding the permissibility of
interstate travel or shipments if the law does not contravene a specific constitutional
guarantee
b) The federal government may also regulate any activity, including ―single state‖ activities,
if the activity has a close and substantial relationship to, or effect on, commerce
i) Can be based on economic relationships or economic impact
c) Congress may regulate single-state activities that otherwise have no effect on commerce if
the regulation is ―necessary and proper‖ to regulating commerce or effectuating
regulations relating to commerce
G. There are 2 different types of state or local laws that affect commerce: (Barriers against
interstate competition are normally invalid)
a) State laws that operate as discrimination in the nature of a tariff for trade barrier against
out-of-state competition; and
b) State laws affecting interstate commerce that operate (or appear to operate) in an even-
handed manner but that impose some burdens (often called ―incidental‖ burdens) on
interstate commerce
H. Summary of SC cases:
a) Any state or local aw that involves discrimination against out-of-state economic interests
will only be upheld if the state can prove that the discrimination in the law is necessary to
promote a significant or important interest; but
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b) The economic enrichment of the local persons does not constitute any legitimate state
interest
Antkowiak’s Analytical Framework for Commerce Clause Analysis
The Validity of Federal Statutes Passed Under the Clause:
1) Does the Act regulate an area that Congress has properly found to be either:
a. The Channels of Interstate Commerce
b. The Instrumentalities of Interstate Commerce
c. An area that substantially affects Interstate Commerce (Lopez)
2) Do the means chosen rationally relate to the ends?
3) Does the regulation offend the exercise of a fundamental right? (2nd Semester)
4) Was the regulation passed in proper order? (INS v. Chada)
5) Does the regulation offend the 10th Amendment principles of federalism? Key term:
commandeer (NY v. US, Printz v. US)
6) Does it violate the 11th Amendment?
Federal Power Limitations from the 11th Amendment:
General Rule: It prohibits a suit:
a. Against a state
b. By its own citizen or those of another state
c. In federal court, in a federal agency, or in a state court where the cause
of action is based on a federal statute
Exceptions:
a. Where cause of action is based on a statute validly passed pursuant to
the 14th Amendment
b. Where the federal government itself sues the state
c. Where the suit is for injunctive relief against a state official
d. Where the state expressly waives sovereign immunity
A. NLRB v. Jones & Laughlin Steel Corp. (1937)
a) Jones is a large, diversified steel producer; heart of activity in Pittsburgh. The NLRB
found that Jones had engaged in unfair labor practices, in violation of the NLR Act, by
firing employees for their union activities. The NLRB (government agency) ordered Jones
to end discrimination.
b) Issue: Is an Act allowing federal supervision of labor relations a permissible exercise of
commerce power?
i) Yes – Acts that grow out of labor disputes are not immune. It is the effect on
commerce, not the source of injury, which is the criterion. Congressional power to
protect interstate commerce is not limited to transactions that are an essential part of
the flow of interstate commerce; the congressional power is plenary and may be
exerted to protect commerce. Economic effect, no matter how slight, gives Congress
the power to regulate.
c) Jones argued that the Act is unconstitutional, Congress did not have the authority to pass
this Act, it is an ultra vires, they are trying to regulate manufacturing (which is not
commerce) and thus Jones does not have to follow the Act.
d) NLRB contends that when workers strike, it will effect everyone – iron ore comes form the
Great Lakes, coke comes from WV (all needed to produce steel) and then the produced
steel goes everywhere (like the Golden Gate Bridge). This is the heart of steel production.
There is thus a SUBSTANTIAL EFFECT on interstate commerce.
e) This Act is therefore a proper exercise of the Commerce Clause because this is an Act to
promote industrial peace. Instead of a strike, under this Act, the worker have an
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alternative legal means for redress. Otherwise, without this redress, the heart of
interstate commerce would be affected.
B. United States v. Darby (1941)
a) Fair Labor Standards Act tries to outlaw child labor. Darby‘s argument – Hammer v.
Dagenhart.
b) Darby, a lumber producer, challenged an indictment charging him with violating the
FLSA.
c) Issue:
i) Does Congress have the power to prohibit shipment in interstate commerce of lumbar
manufactured by the employees whose wages do not meet the minimum as prescribed?
ii) Does it have the power to prohibit the employment of workmen engaged in the
production of interstate commercial goods at other than prescribed wages and hours?
(1) Yes – The commerce power extends not only to regulations that aid and protect
commerce but also covers regulations which prohibit or inhibit commerce.
d) Does Congress‘ motive really matter? Congress has plenary power of interstate commerce
i) p. 145 this passage reminds us of John Marshall ―let the ends be legitimate‖—it is
within the power of Congress to regulate interstate commerce, this is not our business
(almost a political question)
(1) this passage adopted a new mode of interpretation
(2) Question: did Congress make a rational judgment and effect interstate commerce?
e) The commerce power also extends to intrastate activities that have a substantial effect on
interstate commerce. Congress may choose means reasonably adapted to the attainment
of the permitted end.
f) Darby‘s last attempt: The Court gives no effect to the 10th Amendment in this case. The
10th Amendment is kind of like a vampire, in this case they put a stake through its heart
and call it a truism. But the 10th Amendment comes back to find Congressional action
that it can strike down; it is a viable basis to argue why a statute is unconstitutional.
C. Wickard v. Filburn (1942)
a) A case often thought to demonstrate the outer limits of the affecting commerce rationale.
b) Facts: his wheat, his family eats the excess wheat and it doesn‘t leave the land can fed.
govt. tell him how much wheat he can grow on his land? Because if he didn’t grow it he
would have bought it from somewhere else
c) legal theory where the fed. govt. has a law to go this far? Big Picture—effects everyone,
the price, interstate commerce national market in wheat, if this is flooded then the price
will go down and people will go out of business, so govt. is effecting the supply side by
limiting the gross volume of supplies and hopefully raising the price
i) Govt. presumes that wheat is grown by many and concern with the total volume of this
which is what is regulated this won‘t work if individuals can opt out
ii) Justify this by regulating interstate commerce and even though an individual‘s
activity is local in the overall and aggregate it effects interstate commerce and the
govt. can regulate it
d) The question in this case would merit little consideration since Darby except for the fact
that this Act extends federal regulation to production no intended in any part for
commerce but wholly for consumption on the farm.
e) this case talks about the aggregate principal where commercial activity is regulated,
Congress may regulate in the aggregate which means all transactions large and small,
including consumption can be regulated by interstate commerce
i) The farmer‘s own contribution to the demand for wheat may be trivial by itself is not
enough to remove him from the scope of federal regulation where as here, his
contribution may be aggregated – it is far from trivial. This is the aggregation
approach.
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D. The Civil Rights Act 1964
a) using the commerce power for social ends: the ban on discrimination in public
accommodations in the Civil Rights Act of 1964
b) 14th Amend. cannot reach private action and it is a limitation on govt. action
c) Prohibits racial discrimination in public places
d) This Act was upheld based on the Commerce Clause, not by the 14th Amendment or the
Bill of Rights.
e) The Act was upheld in Heart of Atlanta Motel v. United States (1964)
i) The article in commerce was people in this case.
E. Using the commerce power to control crime:
a) Perez v. Untied States (1971)—loanshark situation, this is a local activity extortioner
extension of credit this case upheld a statute that made it a crime to extortionate credit
transactions, an activity otherwise known as ―loan sharking‖
i) Why are you in Fed. Court? Because it is an aggregate situation to determine this
the Supreme Court looks at the Congressional record which supports a statute and
this activity (loan sharking) affects interstate commerce
F. Simple 3 Part Test for whether a Fed. Statute was constitutional under the
Commerce Clause:
a) Did Congress have a rational basis to affect interstate commerce
i) Tremendous defference given
b) Were the means rationally related to the ends
i) Legislatures are not allowed to act irrationally
ii) This is NOT a substantial limit on Congress—it only means that Congress has to be
able to make a rational, logical connection b/w the means and ends
c) Did it violate Amendment 1-8?
G. Hobbes Act (1951)
a) making it a crime for a person by extortion (under a color of political right; meaning
someone with authority would abuse his power) to affect interstate commerce.
i) Can be used to prosecute almost any political figure who demands money for political
functions
b) Class Hypo: punchboards that were sold by 3 guys each club‘s assets were diminished
and they couldn‘t buy the liquor which affected interstate commerce
c) Class Hypo: guy w/ pistol and picked-up by DUI with prior felony conviction how did
the gun affect interstate commerce
i) Smith and Wesson firearms manufactured in Mass.—it was recovered in PA and never
manufactured there since the gun crossed state lines that is enough! This is still
good law!
H. The Depletion of Assets Theory – PennDot chair extorts 150 dollars from person to whom he
offered a contract to clear roads for 1500 a season. Contractee knows that if he does not make
a donation to PennDot chair, he will not get the contract. Does this affect interstate
commerce?
a) Yes, under the depletion of assets theory because that person will not, for example, be able
to buy gas which comes from TX. This person, as a business entity, is rendered unable to
buy goods from other states because of a depletion of assets.
b) An entity that buys interstate goods and if there is an extortion that takes money from
them, this depletes their assets.
Limits on Commerce: The 10th Amendment
A. Printz v. United States (1971)
a) Deals with Brady Bill which required local law enforcement officers to do a background
check when buying a gun. A local sheriff balks at being told what to do by federal law.
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This is after a debate on unfunded mandates – federal government requiring states to do
something, and not paying for it. If state law does not require this, should a local sheriff
have to enforce federal law? The USSC agrees under the theory of dual sovereignty.
b) Dual sovereignty is a concept that arises in other areas of the law as well. After being
acquitted in state court for distribution of cocaine, may a D be brought into federal court
on the same charges? Yes. Double jeopardy has to do with putting someone on trial twice
by the same sovereign. The state and federal governments are different sovereign. In PA,
state prosecutors cannot prosecute you after you have been prosecuted by the federal
government - but this is by statute, not a constitutional principle.
c) In Printz, imagine what would happen if the federal government could control all local
police departments – it would tend to decrease the power of the executive branch, and
enlarge the power of the federal government. It is a question of federalism and a question
of separation of powers. Here the Court expands and say you cannot commandeer the
police power of the states. (Just as they cannot conscript the state legislative branch as in
New York.)
d) Here they are not redefining what commerce means. It is not a debate over whether
Congress can require checks of people for buying guns. The point is HOW they went
about doing it. The result would be the same if Congress has passed the law authorizing
the warrantless search of homes for firearms. Congress can regulate this, but they cannot
do so by violating the 4th Amendment.
B. National League of Cities v. Usery (decided in 1976overruled in 1985)
a) Congress passed a law that extended min wage requirements to state and local
governments. State and local governments were pissed. They brought and action against
the Secretary of Labor who enforced these laws; and the USSC struck the law down as
unconstitutional.
b) The wages of an employee obviously affect interstate commerce. No one in this case
argued that the area regulated did not affect interstate commerce. The USSC said though,
that you cannot have a regulation that offends some other area of the Constitution. Here,
the USSC said that they violated the 10th Amendment.
c) The 10th Amendment became an affirmative limitation on the power of Congress
invading the province of the states.
i) It tells us that there is something that Congress cannot do with the Commerce
Clause can‘t treat states as a subdivision of the Federal Govt. if they did they would
destroy federalism
ii) 10th Amend. becomes a source of power—congress cannot go a certain distance into the
power of the states
iii) Examples: can‘t tell it how to appropriate its own funds, realm of functions to the
separate and independent existence of the state, telling the state what to pay its own
employees crossed this line
iv) A test evolved in 3 Parts: this is eventually abandoned!
(1) Regulate states as state—directly applicable to state action
(2) Fed. regulation had to affect matters indisputably attributes of state sovereignty
(3) Compliance by the state would directly impair its ability to structure integral govt.
functions in areas of traditional state operations
Following this case the court established that a federal law would only be held to be an undue
extension of the commerce power and inapplicable to state and local governments consistently
with the 10th Amendment if the federal law:
1. regulated “the states as states”
2. addressed matters that were “indisputably attributes of state
sovereignty”
3. required state compliance with the federal law in a manner that
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directly impaired a state’s ability to “structure integral operations in
areas of traditional function.”
Balancing test: the ct. will uphold the law when the federal interests were sufficiently
important to justify the impairment of state or local government autonomy
C. Hodel v. VA Surface Mining (1981)
a) a regulation that regulates the states as states, indisputably part of the state sovereignty
so that the state is impaired in their ability to structure integral governmental relations.
If the federal government does that, they are in violation of the Constitution. not in
class
b) The CC cannot be the means by which Congress destroys federalism.
c) This is how the federal government is going to take over all functions, and we the USSC
cannot allow them to do this.
D. Garcia v. Metropolitan Authority (overrules National League of Cities 1985)
a) If the court can‘t draw a test under the 10th Amend. how do you preserve federalism?
b) Who will do it? Not the Supreme Court, not the President states are represented in the
Fed. Govt. by the Representatives in Congress, no real worry about the states being
preserved b/c the political structure is preserved in the govt. however look at what is
happening
c) By saying this test won‘t work, we are not saying that federalism is not important. But
say that we the Court have tried to enforce federalism and have failed; what then, is the
primary means to preserve federalism under the Constitution. It is the structure of the
federal government itself.
d) The principal means chosen by the framers to ensure the role of the states lies in the
federal government itself. Congress is made up of members of states; there is a
fundamental presumption that Congress will not take steps to undermine state power.
There is no judicial solution but rather, a political solution. The Court should not be
anxious and try to jump in and find a resolution.
e) They put the state back into the 10th Amendment. also make note that Article VI of the
Constitution protects state governments from having their territory altered by the federal
government Article IV and the 10th Amend. together limit the scope of congressional
power to order states to make certain basic governmental decisions, such as where eac
state may locate its capital
f) Ct. leaves open the possibility that the 10th Amend. might be used again as an affirmative
limitation
g) At the end of the decision, however, the USSC said they did not have to define affirmative
limits on federal action affecting the states under the CC. They did not put the stake in
the whole way. This lasted until 1995 with Lopez
i) Up until this point, federal laws were very broad.
E. New York v. United States (1992)
a) The law told state legislatures that they must pass laws that deal with disposal of this
waste.
b) Issue: Does the use of a ―take-title‖ provision to compel the states to follow federal
guidelines constitute an unconstitutional exercise of commerce power?
c) The USSC says yes; it strikes down the statute as unconstitutional.
d) New York contends that the 10th Amendment limits the power of Congress to regulate in
the way it has chosen by this statute. Here, Congress has chosen to compel the states to
regulate an area. Congress may offer incentives, or encourage a state to regulate
in a certain way – including the conditioning of federal funds on such
regulation. Congress cannot force a state government to pass legislation.
e) The 10th Amendment restrains the power of Congress, but this limit is not derived from
the text of the Amendment, which is a tautology. In this case, the 10th Amendment directs
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the Court to determine whether an incident of state sovereignty is protected by a
limitation of an Article I power.
f) Regulating radioactive waste can indeed be regulated by Congress under the commerce
power. However, this is not the question in this case –the problem is how they did it.
Congress may not simply commandeer (the operative word) the legislative processes
of the states by directly compelling them to enact and enforce a federal regulatory
program.
g) States are not mere political subdivisions of the United States – state governments are
not regional offices of the federal government. (See page 191).
F. United States v. Lopez (1995)
a) Pass in federal law no guns in schools, Lopez is convicted in Federal Ct. and convicted
and sentenced to 1 yr in jail argues that this is unconstitutional – against any kid in
any school in any part of the country
b) In this case, they take on the big issue: Did Congress have power to pass this law?
c) The Constitution creates enumerated powers; the federal government‘s power is few and
defined. Congress may only regulate the channels of interstate of commerce
(airline routes), the instrumentalities, the goods themselves. And also, the goods
must SUBSTANTIALLY AFFECT COMMERCE. The act must substantially affect
commerce.
d) 3 areas of the CC permitted legislation by Congress:
i) Channels of interstate Commerce—airline routes, no child labor goods
ii) Instrumentalities of interstate commerce, or people or products that travel in
interstate commerce—railroad tariffs
iii) Regarding the regulation of single state activities that have a substantial effect on
interstate commerceAbility to regulate where the area effects Congress—this goes
back to the J&L case we forgot ―substantial‖ it is something that substantially
affects commerce
(1) Who makes this decision as to what substantially affects commerce? It is the
COURT. We do not leave it to Congress. This decision has nothing to do with the
10th Amendment.
iv) How do guns in schools effect interstate commerce? Guns in school can effect learning,
and then children will not learn and better jobs will go to overseas people—increase
insurance costs this can be used to argue the regulation of anything in this society
(p. 157)
v) Renquiest: to imply this type of statute you must apply ―inference upon inference‖
this law is struck down!!!
vi) The P tried to argue Wickard. But this did not work because we are not talking about
commercial activity. And because they were talking about the aggregate model, what
they can regulate in the macro, they can regulate in the micro.
vii) Congress in this case has not even tried to make findings to prove that this law affects
interstate commerce. The government‘s effort to try to argue that somehow this affects
interstate commerce is ―specious and dangerous.‖
viii) Under this theory that the government presents, it is difficult to perceive any
limitation on federal power. And the last paragraph, they say that ―this would be
absurd‖ if Congress were allowed to pass curriculum for all schools.
ix) This is not an effort by the Court to use the 10th Amendment to say that there is a
limit on federal power on state‘s sovereignty; what it is a limiting of federal power.
They are going to exercise more control over what is regulated. We must stop with the
inferences on inferences.
x) They struck down this law by reinstituting the federal power (not the 10th Amend.)
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xi) Lopez modified the standard for determining the scope of the federal commerce power
to regulate intrastate activity in 2 ways:
(1) The majority ruled that congress can regulate only single state activities that as a
class have a substantial effect in interstate commerce
(2) The federal judiciary would give less deference to the congressional decision to
regulate single state activity if the activity was not commercial or economic in
nature
G. Immediate Aftermath:
a) Jones v. U.S.: made it a crime to destroy a building use in commerce by fire (maliciously)
i) How do you argue that burning a home effects interstate commerce?
(1) Hurts the persons job
(2) Article in commerce itself—mortgage, insurance, heat
H. Materials that made it
i) Ct. said if they interrupt this law to reach a private home it is unconstitutional—if it is
interpreted not to reach a home it can be saved something engaged in commercial
activity that is a federal crime
I. United States v. Morrison (2000)
a) Problem with violence against women act – it is not commercial activity that can be
regulated in the aggregate. This is not a component of commercial activity. Yes, she
cannot buy interstate goods if she is dead. But this is not commercial activity. Could
Congress have passed a law? Yes – transporting a women for purposes of treatment after
a beating. But this is no specific interstate commerce hook in the statute under the same
theory of Lopez.
b) After Lopez and Morrison, everyone was waiting for the other shoe to drop – this is the
Reich case. To what degree has Reich reinstated pre-Lopez law.
i) Use aggregate principles—economic commercial activity being regulated this is
criminal, not commercial
ii) If this was constitutional the ct. could pass laws about child rearing, divorce—clearly
are outside of the realm of govt.
iii) Issue: Whether Congress may regulate gender-motivated violence under the
Commerce Clause?
iv) No crime of violence affects interstate commerce:
(1) The statute is in question does not regulate any interstate activity.
(2) the statute does not confer the requisite jurisdictional requirement
(3) the statute does place substantial burdens on interstate commerce.
v) Is Morrison consistent with Wickard? In one sense, yes Wickard regulates an
economic activity, seen to have a substantial effect on interstate commerce.
(1) On the other hand, see Souter‘s dissent he contends that this case is not
consistent with Wickard because ―supply and demand for goods in interstate
commerce will also be affected by the deaths of women … which results in a
reduction in the work force … rape victims lose their jobs … Thus, violence against
women may be found to affect interstate commerce and affect it substantially.‖
(2) The Court has to say that the area they have regulated is simply not commercial
enough to be drawn into the aggregate principle.
c) Aggregate principle = Wickard v. Filburn (the localized activity of the farmer can be
regulated because it is economic/commercial activity.)
i) Morrison Holding: ―We reject the argument that Congress may regulate
noneconomic, violent criminal conduct based solely on that conduct‘s aggregate effect
on interstate commerce. The Constitution requires a distinction between what is truly
national and what is truly local.
J. Gonzales v. Raich (2005)
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a) Respondents, claiming a violation of the Commerce Clause, sought injunctive and
declaratory relief prohibiting enforcement of the federal Controlled Substances Act (CSA),
21 U.S.C.S. § 801 et seq., to the extent it prevented them from possessing, obtaining, or
manufacturing cannabis for their personal medical use. A district court denied a motion
for a preliminary injunction, but the United States Court of Appeals for the Ninth Circuit
reversed.
b) Respondents were California residents who suffered from a variety of serious medical
conditions and had sought to avail themselves of medical marijuana pursuant to the terms
of the Compassionate Use Act, Cal. Health & Safety Code § 11362.5 (2005). After an
investigation, county officials concluded that one respondent's use of marijuana was
entirely lawful under California law; nevertheless, federal agents seized and destroyed all
six of her cannabis plants. The Court held that the regulation of marijuana under
the CSA was squarely within Congress' commerce power because production of
marijuana meant for home consumption had a substantial effect on supply and
demand in the national market. Given the enforcement difficulties in distinguishing
between marijuana cultivated locally and marijuana grown elsewhere, 21 U.S.C.S. §
801(5), and concerns about diversion into illicit channels, the Court had no difficulty
concluding that Congress had a rational basis for believing that failure to regulate the
intrastate manufacture and possession of marijuana would leave a gaping hole in the
CSA. Congress was acting well within its authority of the Commerce Clause, U.S. Const.,
art. I, § 8.
c) PH: The judgment of the Court of Appeals was vacated. The case was remanded for
further proceedings.
d) Pot is a schedule I narcotic – meaning there is no known medical use (heroin is also a
schedule I). Thus, under federal law, it is illegal to hold pot. Coke is a schedule II –
meaning there is a medical use.
i) Some states have said that pot is a schedule II – meaning it is legal to have for a
limited medical purpose. This flies in the face of federal law state law and federal
law conflict. We must then knock out the federal law as unconstitutional, otherwise
federal law controls under the Supremacy Clause.
e) The federal law is attacked on the basis that is regulates a small amount of personal pot,
which is outside the reach of the Commerce Clause.
f) It does not matter whether the article in question is legal or illegal. Congress has broad,
plenary power over everything.
g) One side: It is a purely local activity, they do not buy/sell across interstate lines, they do
not bother anyone.
h) Government: The Court held that the regulation of marijuana under the CSA was
squarely within Congress' commerce power because production of marijuana meant for
home consumption had a substantial effect on supply and demand in the national market.
This is commercial activity; this is like Wickard. Congress is trying to regulate interstate
commerce of pot and we are trying to eliminate it. We need to choke intrastate commerce
because that ultimately becomes interstate.
i) Also, the state‘s law is itself commercial – they allow doctors to prescribe it, which is
commercial.
j) Was this really the states‘ purpose? Argue that this is health care, it is not commerce.
The use of pot is medicinal.
k) Must argue that that which is being regulated is COMMERCIAL.
l) The issue is what is and what is not commercial. Structure arguments in terms of the
process that the Court is going to use. This court tells us of a rational basis test.
m) Was this an area within Congress‘ purview? The Court cannot wash its hands of its
obligation to make a judgment – here they agree with Congress. Wickard decides this
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case; this is the same thing – regulating a commodity. Congress is trying to
regulate/prohibit the use of pot. The power to regulate is the power to prohibit OR
promote (as in Wickard).
n) Ps here have a hard time in convincing the Court that Congress did not have a
RATIONAL BASIS.
o) Congress was trying to regulate violent activity in Lopez and Morrison which is not
commercial activity. They have commercial IMPLICATIONS, but they are not commercial
ACTIVITY.
p) Look at the area and categorize it – is it commercial or is it personal?
q) Can Congress tell you not to grow more than 2 tomatoes in your backyard? They are
inherently evil says Congress. This is the problem that Raich leaves us with.
r) The categorical approach is the key to using the aggregate principle theory; the Court still
makes the final subjective judgment as to whether the area regulated is or is not
commercial and therefore subject to this aggregate approach.
K. Reno
a) States collected DOV information and were selling to commercial entities. A federal law
passed that said you cannot sell this information. The states contended the federal
government was attempted to commandeer the state legislative branch. The Court
disagreed – it simply prohibited the states from doing something; the federal government
can regulate if it is consistent with its power under the Commerce Clause.
b) Again, this does not deal with the constitutionality of the means; it is a question of
whether it was within the power of Congress and the CC to do this, and the Supremacy
Clause does the rest of the work in this case.
Limits of Commerce: The 11th Amendment
A. The Judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the united States by Citizens of another
State, or by Citizens or Subjects of any Foreign State‖
a) Acts to bar suits brought against state governments in the federal courts it does not
grant the states true immunity, for it does not exempt them from the restrictions of
federal law
b) If the 11th Amend. appliesthe suit may be heard in federal court if the state consents
c) Congress may create federal causes of action against states without their consent if such
causes of action are necessary to enforce Constitutional rights, such as those in the 14th
Amend.
B. Questions to Ask:
a) Is the P one to whom the Amendment applies?
i) The Amend. bars suits by citizens of other states or foreign nationals
ii) If the state brings an action against the private person the suit does not come under
the restrictions
b) Is the suit truly against the state?
i) Agencies of the state count but its political subdivisions do not (no municipal
corporations, counties and school boards)
ii) To determine if an agency is entitled to share in the state‘s 11th Amend immunity ask
if the stat has a legal obligation to bear the debts of the enterprise if the answer is
no then the 11th Amend. is not implicated
c) Is the suit seeking relief in a manner that is barred by the Amendment?
i) Federal suits at law for return of improperly collected state taxes are barred
ii) The 11th Amend. does not permit any suits in federal court against states and those
agencies that are ‗arms of the State,‖
d) Has the State waived its immunity?
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e) Is there a valid federal statute in the area that overrides the immunity?
C. Chisholm v. GA (1793)
a) The courts construed the federal courts to be amenable to suits between a citizen of one
state, against another STATE. But states enjoy sovereign immunity in their own state
courts against their own citizens. Hence, the 11th Amendment – preserves state sovereign
immunity which is a pre-Constitution idea. In England, you could not sue the King
because the King owned the courts. There was immunity for the sovereign.
D. Antowiak’s Outline: Federal Power Limitations from the 11th Amendment
a) General Rule: It prohibits a suit:
i) Against a state (PA)
(1) Against a state, state agency (ex: PA bureau of prisons)
(2) It does not apply to political subdivisions of the state
ii) By its own citizen or those of another state (people from OH, or PA citizens)
(1) This is the extension to the meaning of the 11th Amend.
(2) Hans v. LA: a broad prohibition against a suit against a state by citizens of the
state itself, another state, or foreign nation
iii) Where: In federal court, in a federal agency, or in a state court where the cause of
action is based on a federal statute (cause of action)
(1) Federal statutes often times create causes of action—these can be litigated in state
court
b) Exceptions: Congress can authorize a suit to a state or state agency under the 14th
Amend.
i) Where cause of action is based on a statute validly passed pursuant to the 14th
Amendment (Congressional suit)
(1) Section 5. the 14th Amend. is 2 things:
(a) Creates an enforceable constitutional right to claim their state is violating their
fed. constitutional rights AND
(b) Grant of power to Congress
(2) Where the federal government itself sues the state
(3) Where the suit is for injunctive relief against a state official
(a) Ex Parte Young: you can bring a suit against a state official for injunctive relief
(not damages) only
ii) Where the state expressly waives sovereign immunity by express action, they are not
immediately inferred, but may be expressed
(1) Where the state waives sovereign immunity is a contested area; Congress usually
wants states to waive their 11th Amendment protections
(2) 11th Amendment and relationship to spending power – See Coslow
1st Exception: 14th Amendment
A. City of Boerne v. Flores (1997)
a) Lawsuit b/c state court buildings had no access for people in wheelchairs, sued under
American‘s with Disabilities Act—is this suit barred by the 11th Amend.
b) 1st Level: ct. looked at the problem: under equal protection there hasn‘t been scrutiny to
physical disabilities as more worthy of heightened protection—seems like age
c) Argue that there should be some equal protection granted here: right to be heard,
inability to access courthouse b/c of no access for wheelchairs rights to enforce
fundamental express rights is limited proper use of Congressional power
d) If Congress passes a law under the 14th Amendment it must demonstrate congruence and
proportionality; the statute must be properly identified as a 14th Amendment violation.
The remedy must be proportionate to the problem identified.
e) Other Cases:
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i) Disability claim not tied to a substantive right the court didn‘t want to hear about it
ii) Family and Medical Leave Act: illegible employee 12 weeks unpaid leave to assist a
spouse in health condition, or your own extensive analysis said that this is a gender
based discrimination issue Congress has addressed against men—this is proper under
the 14th Amend. to implement this—11th Amend. presents no bar to the lawsuit
B. Kimel v. FL Board of Regents (2000)
a) Age discrimination suit against a FL agency invoking certain provisions against a federal
statute—can this suit proceed under the claim that he 11th Amend. bars it?
b) Whether or not this particular grant of power is to be interpreted in the liberal way John
Marshall first interpreted Congressional power liberally?
i) What you can legislate under the 14th Amend. is what the 14th Amend. standing alone
can reach
ii) Example: employed by ALCO, 45 years old, new position opened up, you apply, you
and a 23 year old—you don‘t get it and sue
(1) No 11th Amend. b/c its not a suit against the state
(2) Brother works for PenDot, he brings the same suit against 23 year old‘s brother—
now this is an 11th Amend.
(3) First look at the 14th Amend.
(a) PenDont‘s attorney: Federal laws have to be hooked onto something in the
Constitution
(b) 11th Amend. will run right through the Commerce Clause if it is raised
(c) Ps counsel: Argue substantive protection under the 14th Amend. for age
C. Doctrine of Congruence and Proportionality: Test of whether or not the congressional
solution meets the 14th Amend. problem that Congress has identified
a) A congressional law passed under the 14th Amend. has to be congruent under 14th Amend.
Identify an issue that the 14th Amend. actually reaches
b) solution has to be proportional to the problem identified
c) There is no showing of a systemic violation that is in violation of the 14th Amendment, and
therefore the 11th Amendment provides immunity. A statute like this one is passed by
Congress under both grants of power. It is passed under the Commerce Clause, not under
the 14th Amendment. –no proper congruence nor proportionality not a proper law
against 14th Amend., but is valid under the CC
i) Example: ALCO would go, PenDot would fail
D. Federal Maritime Commission v. South Carolina State Ports Authority (2002)
a) State sued by private cruise ship company—enforced 11th Amend.—agency but it is a
functional equivalent
b) P. 213—11th Amend. is a further device to enforce federalism which is necessary to the
prevention of tyranny, that is why we have it!
c) The Court extended the reach of state sovereign immunity from judicial proceedings to
adjudications within federal administrative agencies. Sovereign immunity is an aid to
protection of liberty. The dignity of the state is affronted by this action.
d) The Commission itself might be able to bring suit against SC, but the private party
cannot. This is important to the protection of individual liberty.
E. Tennessee v. Maine
a) What constitutional claim can handicap people make other than under the 14th
Amendment? Are they protected the same way people are according to race? No. They are
not going to win on the status argument.
b) There is a fundamental right to access to the courts; it is a component of substantive due
process (not procedural). You have to be able to get into court; otherwise your rights don‘t
really exist. If you are barred at the courthouse door, your rights are pointless.
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c) If Congress says open the courthouses, people have a 14th Amendment right to get into the
courthouse to do business; thus the 11th Amendment bar is shut down.
TAX AND SPENDING POWERS
Taxing Powers
A. 3 Restrictions on the taxing power of Congress:
a) Direct taxes and capitation taxes must be allocated among the states in proportion to
population;
b) All customs, duties and excise taxes must be uniform throughout the United States; and
c) No duty can be levied on exports from any state
B. U.S. v. Kahriger (1953)
a) tax on bookies, Congressional purpose to suppress wagering
b) Ct. approved tax provision, unless the provisions are so constraneous that it is obvious
that the purpose of Congress was not to raise revenue, as long as there is revenue
producing activity on its face we will defer to Congressional judgment
c) This changes the approach—give more deference
d) The Constitution gives the Federal Government a broad power to tax for all national
purposes.
e) The phrase ―general welfare‖ is broad – it comprehends almost any exercise of taxing
power.
f) Congress, not the courts, assess the general welfare; courts will upset Congress‘
conclusion only in extreme cases.
g) Purpose of Taxation: Governments tax to obtain revenue to fund government spending.
h) John Marshall – ―The power to tax involves the power to destroy.‖ ―It is not only the
power to destroy, but it is also the power to keep alive.‖
i) Taxation also provides a means to regulate; a tax might suppress an undesirable activity.
j) The Child Labor Tax Case posed the problem whether Congress could, under its tax
power, reach an activity beyond its power otherwise? Congress sought to use its taxing
power to accomplish what the Court said it could not achieve under the Commerce Clause
and the tax was found invalid. The tax was void, not because it was not a tax for the
general welfare, but because an improper motive lurked behind it.
k) A tax is not invalid merely because it regulates, discourages or deters activities taxed,
even though it generates little revenue and treats raising revenue as a secondary purpose.
The Spending Power
A. Congress has the power to spend money for the general welfare—fairly broad things that
don‘t have to be run through the CC analysis
a) Examples: Social Security, Federal Funding for Elections
B. The same clause the confers the power to tax also conveys the power to spend. It provides
―the Congress shall have power … to pay the debts and provide for the common defense and
general welfare of the United States …‖
C. The spending power can be broad but there has to be some limitations
D. South Carolina: if your condition is not germane to your project then it is not allowed
a) Is the spending done for the general welfare?
b) If the state is given the money on condition, the states have to have a clear choice to
comply or not
c) The conditions are not legitimate if they are unrelated to the federal interest, in particular
the national project or program being funded
E. Butler (1936)
a) construed the Spending & Taxing Clause In this case, the Court held that the spending
power was not limited to the purposes set out in Article I‘s specific grants of legislative
power but rather extended beyond those grants so long as exercised to provide for the
general welfare.
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b) Holding: a federal expenditure for an end Congress could not directly attain was held
invalid. The spending scheme was unconstitutional because its purpose was to regulate
agricultural production, and end prohibited to Congress under the then prevailing
interpretation of the 10th Amendment.
c) Overturned the new holding is that funds disbursed to advance Congress‘ vision of the
general welfare are not suspect because they bring action in an area Congress cannot
regulate directly. Congress may condition expenditures on terms it sets.
i) This case is good law only insofar as it defined a broad power of the federal
government to spend for the general welfare
ii) It is NOT good law insofar as it found the 10th Amend. to be a restriction on the federal
spending power
iii) Today: a federal spending law will be upheld so long as it arguable might help the
welfare of the country, and the federal spending law does not violate a specific check
on the federal power
F. South Dakota v. Dole (1987)—modern 4-part test to measure the validity of a federal
spending law
a) Upheld the power of Congress to use conditional spending to withhold federal highway
funds from states that allowed the purchase or possession of alcoholic beverages by
persons under the age of 21
b) The 10th Amendment is not a prohibition on the conditional spending of the federal
government
c) 4 Part Test:
i) The spending power should be used for the general welfare
(1) The Court would not second guess a congressional judgment as to whether a
disbursement of federal money might help the welfare of the people in the United
States
ii) If Congress wants to place conditions on the granting of money to a state or local
government Congress must do so unambiguously, so that those governmental
entities could make a knowing choice in deciding whether or accept the conditional
grant
iii) ―Our cases have suggested that conditions on federal grants might be illegitimate if
they are unrelated to the interest in particular national projects or programs
iv) A federal spending program would be invalid if the statute (or any conditions placed on
the persons who received the money from the spending program) violated an
“independent bar” to the spending power that was set forth in the Constitution
or the Amendments to the Constitution
G. Coslow Case: restrictions on the states as far as discrimination against persons who are
physically handicapped – state found a common condition, the question of waiving sovereign
immunity for suit under this
a) How should a waiver of sovereign immunity be construed? Narrowly, because if you
broadly construe the waiver of sovereign immunity the federal govt. will have enormous
power
b) Putting this under the spending clause is not proper—what does this have to do with
sovereign immunity to get this money? It is not germane, not related enough to the
spending of the money to be a power exercise of the spending clause
c) Important point for the state: waiver is not a general waiver, it is in fact limited to
―agency by agency, department by department basis‖—it has to be narrow to the
particular purposes of the act—focus on matters germane to the federal program
H. Federal School District v. Murray: individuals with disabilities education act, certain
lawsuits followed against states—lawsuit was proper for state that received money for
purposes of sovereign immunity
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a) Whether in suit a P could recover fees they paid an expert witness—court look at the
statute and said no! would have to pay witness fees, but not expert witness fees
b) Tells us something about the interpretation of the spending clause—once the state takes the
money and has the difficulty of being a defendant in the lawsuit, it can find some solace in
a reasonably narrow interpretation of what it has exposed itself to by looking at the terms
and conditions of the statute and not having them read broadly.
THE DORMANT COMMERCE CLAUSE
A. There is no dormant commerce clause in the Constitution. The dormant commerce clause
analysis comes entirely from the Court‘s interpretation of Article I, § 8. Commerce problems
pushed the Constitution into being. Much of the push of the Constitution had to do with
giving a central authority greater power than a State; the thing was the economy. The
markets were growing, this is a rich nation – and you could not have this when a state like
NC was protecting its cotton or tobacco. Thus, power had to be given to an entity that could
take cognizance of national concerns.
B. Supreme Court has said that there are times that when a state passes some law that has
effects, purposes, intentions, that intrude into an area that the Constitution of the United
States reserves for the fed. govt. and Congress under the CC, the CC operates not just as a
grant of power to Congress, standing alone with no congressional statute alone someone can
raise the CC as a basis to strike down state legislation, by saying the state‘s enactment of this
intrudes into an area reserved for Congress
C. Cooley v. Board of Wardens (1851)
a) A penalty must be paid if boats coming into port in PA do not have a PA pilot, fee assessed
if the boat didn‘t have a pilot
b) States have police power, to regulate aspects of the economy, Congress has CC—when do
these conflict?
c) PA‘s argument Port of Philly is difficult, this is a safety regulation. There was not a
direct congressional act that superseded this state law. This is a true dormant commerce
clause issue. When a federal law is in conflict, the Supremacy Clause rules. In this case,
you must look to see whether the state law infringes upon congressional power where
Congress has exclusive power.
d) The Court talks about issues of practicality. What is being regulated? Whether or not this
is a circumstance in which local rules are proper. Do you need a national rule? Or can
some local needs be accounted for without unduly burdening the economic system that the
commerce clause was intended to foster? Who should make this determination? Congress
or the Court? If Congress passes a law, what is then the Court‘s role? The Court asks
whether Congress has the ability to make this law / the law is constitutional. And federal
law prevails under the Supremacy Clause.
e) In this case there was no great impact on interstate commerce by requiring this local
regulation, no need for a national rule the court pointed out: we rules this b/c there is
no national policy in place, no law of Congress that regulates this area, if there were the
focus would be if the fed. law were Constitutional—the Supremacy clause would trump
anything
f) Cooley doctrine: looks to the nature of the subject of the challenged regulation as the
crucial factor in determining its validity (although a state might be regulating a local
subject matter, the legislation could still be discriminatory in purpose or effect, thereby
favoring residents over non-residents)
i) Doctrine of Selective Exclusiveness: if the item is such that national uniformity is
necessitated, then Congressional power is exclusive. If, the item is matter of a
peculiarly local concern allowing a diversity of treatment, then states may regulate the
area, in the absence of congressional preemption
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g) Pitfalls:
i) There is no litmus test to determine when a subject is appropriate for national as
opposed to local regulation
h) Many cases came up: courts started to see common themes
i) States concerned about protecting their industries—even where the intent wasn‘t
there, circumstances existed where the impact was too big
D. Edwards v. California (1941)
a) involved a CA statute that made it a crime to knowingly bring an indigent person into the
state—b/c of the Depression and people were pouring into CA for jobs that weren‘t there
and the CA social system was being burdened by this
b) Attack: the state can regulate health, safety and welfare of its citizens, it has tried to wall
itself off from a national social problem, horde its own recourse—and do so explicitly by
burdening interstate commerce, the state has shut off interstate commerce in people to
horde its own resources
i) The political system of CA can‘t correct this, ―the nation has to sink or swim together‖
ii) States are not free to become islands under themselves, for economic or other purposes
What is the proper role of the Court?
1) Analyze federal law, determine whether it is constitutional, Supremacy Clause prevails
over state law.
(a) The Court looks to see whether Congress has the power over the states. (Does it
look the other way – and determine whether the states have the power?)
2) Is there a sensibility to the idea that Court plays a role in the absence of congressional
power? How can the Court look at a state without the Supremacy Clause and tell them they
cannot do something?
(a) The Court can look at the MOTIVE of state legislation and determine whether
the state law protects the safety and welfare of its citizens or whether it is really
a protective statute that discriminates against out of state commerce.
Modern Courts look to three groups:
1) The Court has shown clear antipathy to over discrimination against out of state interests.
2) The Court has likewise invalidated laws that favor local economic interests at the expense of out of
state competitors even when they do not take the form of overtly discriminatory statutes. A finding
of protectionism is generally fatal to state regulations.
3) The Court has also struck down facially neutral laws that unduly burden interstate commerce,
applying a balancing approach.
A. Southern Pacific v. Arizona (1945) look at p. 290
a) When there is no clear rule the judge has to balance the interests this is bothersome b/c
this is not a normal type of legal judgment—typically the legislature makes judgments
comparing economics and safety
i) Ct. says you have to look at the nature and state of the burden
b) In deciding whether a state law places an unreasonable burden on interstate commerce,
and hence cannot be sustained, the Court must balance the nature and extent of the
burden which would be imposed by the statute against the merits and purposes to be
derived from the state regulation.
c) The AZ train limit law prohibited operating railroad trains of more than 14 passenger cars
and 70 freight cars. This is the safest length of a train. The state sued the company to
recover the statutory penalties for violating the law.
i) There is not a congressional piece of legislation on this point, nor has Congress passed
a law—can‘t go to the Supremacy Clause
ii) How should the court go about forming a rule to judge whether a state on its own can
do something like this?
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d) An easy approach: Constitution gives Congress the power to regulate interstate
commerce, is there a federal law, is it Constitutional? If it is and there is, then it trumps
it—opposite the states can do whatever they want! what would happen if they did
this?? Congress will come back and pass laws again and again.
e) The USSC held the law unconstitutional even though the motive was pure (it
was a safety statute) but its effect was discriminatory.
f) “The matters for ultimate determination are the nature and extent of the BURDEN which
the state regulation of interstate trains, adopted as a safety measure, imposes of interstate
commerce, and whether the relative weights of the state and national interests are involved
are such as to make inapplicable the rule, generally observed, that the free flow of interstate
commerce and its freedom from local restraints in matters requiring uniformity of
regulation are interests safeguarded by the commerce clause from state interference.”
g) The serious impediment to the free flow of commerce by the local regulation of train
lengths and the practical necessity that such regulation, if any, must be prescribed by a
single body having nation wide authority are apparent.
h) The Court must decide the SUBSTANTIAL EFFECT by looking at all of this evidence.
Congress however usually looks at all this evidence! The Court is thus wandering into
strange ground. This wanders into the POLITICAL QUESTION REALM. This is the
problem here.
i) In this case, the Court does not go with a categorical approach – they look at the facts of
the case. And say, ―Here examination of all the relevant factors makes it plain that the
state interest is outweighed by the interest of the nation in an adequate economical and
efficient railway transportation services, which must prevail.‖
B. Dean Milk v. Madison (1951)
a) A locality may not discriminate against interstate commerce, even to protect the health
and safety of its people if reasonable alternatives exist which do not discriminate and are
adequate to conserve legitimate local interests. (especially when reasonable alternatives
exist which do not discriminate and are adequate to conserve legitimate local interests)
i) When regulating to protect the health or welfare of its people, a state or local
government only has to use the means with the least burden on commerce if the party
challenging the state or local law can demonstrate that the sate or local government
could achieve exactly equal benefits through a law that would not place a great burden
on commerce
b) A WI ordinance barred the sale of pasteurized milk unless it had been processed and
bottled at an approved plant within five miles of Madison.
c) Dean Milk from IL challenged the ordinance.
d) It was concluded that the law imposed an undue burden on interstate commerce.
e) On its face, it may be seen as a health and safety measure – but at least now, all milk
produced in the US must accord with certain safety measures. This is thus an economic
barrier protecting a major local industry.
f) Can this measure be constitutional if we decide that the character of local interests is
substantial?
g) Plus, this is not the least restrictive alternative? No – Madison officials could inspect out
of region milk. Or Madison could rely on federal standards.
h) Madison is discriminating against out of state and in-state (farther than 5 miles away)
milk. A municipality NOT a state is attempting this discrimination.
C. Bibb v. Navajo Freight (1959)
a) Trucks are throwing up all sorts of debri, there are accidents that happen b/c of this, pass
a law that trucks have mud guards
b) Test:
i) Is it evenhanded? Yes – it applied to all trucks.
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ii) Legitimate interest – Highway safety is the interest.
iii) Balance: Does the burden exceed the importance of the local interest served? In this
case, the court found that no other state was requiring the thing at the time. This
would have been an enormous burden. It was purely decided on the proof of the
relative burden v. the safety. The state of IL loses in this case. The burden overcame
the state argument that this was necessary for highway safety.
(1) Do other states require these?—if so the burden is not that big of a deal
(2) If other states don‘t use them the burden becomes much greater and this creates
an argument: what if a state has a great innovation that would be a tremendous
thing to help drivers, brake lights example—this is a burden upon interstate
commerce, it costs too much money you can‘t do it
(3) theory behind federalism—states can be places where ideas are tested out, if they
work maybe Congress will make it a national thing, or it will fall by the wayside
the above example shows that this doesn‘t always happen
c) once you get behind the first 2 test prongs you are dealing with degrees
Dormant Commerce Clause Test: (Pike) If there is no federal law in conflict or if the federal
law is invalid, the state regulation may still be struck down under the Commerce Clause unless it
passes the following test:
1) Is it evenhanded as to Interstate Commerce?
2) Does it serve a legitimate state interest?
3) Does the burden placed on Commerce not exceed the importance of the local interests
served? (balance)
4) Is it the least restrictive alternative?
Note: This test does NOT apply where the State is the actor regulated and is functioning as a
market participant.
A. This test favors the government:
a) It places the burden of proof on the person who challenges nondiscriminatory state laws
under negative commerce clause principles
b) The law must place aclearly excessive burden on interstate commerce the person
attacking the law must demonstrate the public good produced by the law is so slight that
the burden on interstate commerce should be considered truly excessive
B. A court is supposed to ask if a state law operates even handedly; if it effectuates a legitimate
state interest. Then, whether the burden the local law places on interstate interest exceed the
interest served. Then lastly, is it the least restrictive alternative?
C. Scalia and Thomas will argue that 3 and 4 of the test should be eliminated and that it is
improper for a court to entertain these issues. This is in their view somewhat of a political
question. Their view is that if there really is an excessive burden, let Congress step-in.
D. Key consideration–what is the proper role of the court? To what extent should a court get
involved in these questions?
E. Two broad approaches to DCC problems
a) Keep hands off, unless the state has overtly gone out of the way to impede interstate
commerce. On the face of its statute, it would discriminate against interstate commerce.
And in this case, the state would admit that they are protecting their own state, or come
up with a bad lie. (Scalia and Thomas) This would create pressure on the Feds to pass
new legislation. Otherwise state legislation would operate effectively.
b) However, if you say that the test is as we have stated, then you must ask whether or not
the court has a competence to decide these questions of net effects. What is the net effect
of state law on interstate commerce vs. the local concern that it has. This is a cost-benefit
analysis and you are asking the court decide on broad principles. This is what we do; this
is the tension in this area because it causes courts to step out of their easy way.
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F. Philadelphia v. New Jersey (1978)
a) The Court held unconstitutional a 1973 New Jersey law which prohibited the importation
of most solid or liquid waste which originated or was collected outside the limits of the
state.
b) Where simple economic protectionism is effected by state legislation, a virtually
per se rule of invalidity has been erected.
i) State laws that are basically protectionist in nature unduly burden interstate
commerce and thus are unconditional
c) Use the 4 past test:
i) Is it evenhanded? No, there is one consideration, did it come from out of state (can‘t
dump it) in state (you can dump it).
ii) Does it serve a legitimate state interest? NJ states it is environment-- economic
protectionism; NY will argue that it is a health and safety/environmental/welfare
measure.
iii) What is the relative burden on interstate commerce? The burden on interstate
commerce is absolute, it is more than substantial. It is a BAN; nothing can
come interstate. The burden is absolute. Can you ban interstate commerce for
environmental reasons? Is out of state waste worse than in state waste that will be
processed? when you balance a ban it will tip against the law
iv) Is it the least restrictive alternative? Environmental protection is a legitimate
interest. Is there a better alternative? Yes – they can regulate volume and perhaps
type of waste put in NJ landfills; or think of safety inspections or that groundwater is
not being affected.
d) All four parts of the test are violated; the environmental reason is a cover-up. This was
pure economic protectionism. (9-0 ruling)
e) Example: instead of the regulation saying no outside waste, a guy in NJ can make money
on his land as a landfill but the state refuses to issue him a permit b/c of the 1,0000 limit
i) it is evenhanded: no superficial discrimination
ii) legitimate local interest: environmental protecting the use of the land (zoning), and
toxins
iii) balance test: look at the other states around can argue that it might decrease the
amount of interstate commerce—burden
(1) local interest: attorney would talk about environmental concerns you can
counter that with what the other states do
(2) burden vs. local interest tips in favor that NJ must construct a new plan that is
less restrictive of interstate commerce
(3) can also look to legislative intent
G. Maine v. Taylor (1986)
a) Holding – The ban on the importation of out of state baitfish had a legitimate
environmental purpose stemming from uncertainty about possible ecological effects on the
possible presence of parasites and nonnative species in shipments of out of state fish, and
that the purpose could not be adequately served in nondiscriminatory ways. can‘t bring
in a fish from out of state
i) If a state can demonstrate that it needs to keep a product out of the state in order to
protect significant local interests, other than the economic well being of in-state
persons or businesses, it may exclude the out-of-state products
b) This discriminates against interstate commerce on its face
c) How would you quantify the effect on interstate commerce—1 bad fish could wipe out the
entire ecosystem, there is no less restrictive alternative
d) Maine understands that this was indeed a ban. But in point 3, they make a case that they
did not have a lesser restrictive alternative.
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e) An overt discrimination of interstate commerce is legitimate this never happens!
H. Recent Case: CA wineries can‘t ship to you b/c PA won‘t let you have wine shipped in from
out of state to your home, can only get it at state store
a) Is this law Constitutional?
i) It is not evenhanded
ii) Local interest is to promote PA wine—economic protectionism
(1) Law discriminates against it in terms of shipping
(2) No less restrictive alternative
(3) Both state laws went down!
I. In C & A Carbone v. Clarkstown (1993)
a) The town was directed to adopt an ordinance that all non-hazard non-recyclable waste
must go to this landfill. This was a flow control ordinance. The company was setting up
the landfill and would sell to town in 5 years.
b) Carbone, a private trash guy sought to ship out of state (which was cheaper) and the town
sought to enjoin him from doing so.
i) Does it matter that we are talking about waste going out of state? No. Does interstate
commerce only flow one way? No.
c) Issue: did the city have the power in the 1st place to pass this statute, are they operating
in their constitutional sphere of authority ANY injured party can bring the suit
i) Bars interstate commerce in trash. It by necessity freezes out interstate commerce.
d) Tests:
i) Is this evenhanded?
(1) No, because you have a situation in which this is a local act that discriminates not
only against the interstate people but against intrastate people also this means
that it is NOT evenhanded
ii) The ordinance does not serve a legitimate state interest. The burden on
interstate commerce is a complete bar! This is a BAN on interstate
commerce.
e) Does Carbone have STANDING to bring this suit in federal court? He is injured,
the injury is fairly traceable to the ordinance but is this merely an intrastate dispute?
Does he have to bring in a trash guy from another state? Is he in fact raising claims that
others could make? Is he raising a 3rd party issue; is it beyond what he could raise in his
own right? Or is his injury closely related to the injuries of others? These cases also
require standing.
i) The town is going to argue that it is necessary to provide safe waste handling – it is a
health a safety measure. But this is a weak argument.
J. West Lynn Creamery Inc v. Healy (1994)
a) If this is a tariff disguised as a rebate = effective tax. Thus, it is a simple matter of facial
discrimination.
b) The state is obviously trying to give a benefit to local producers.
c) Hypo: Can MA provide free vet services to in-state cows that produce milk? What is CT‘s
argument? What is MA‘s argument? Does this burden interstate commerce?
d) Look at Dormant Commerce Clause test.
i) This would be a ―subsidy‖ that discriminates against interstate commerce. It is a
protective tariff or customs duty. The service acts to produce milk produced out of
state more expensive.
ii) Is this law evenhanded? Yes. It is not the intent to discriminate against out of state
dairies. Can MA lawfully provide services to out of state cows? No – MA taxpayers are
paying for the service.
iii) What is the purpose of the statute from MA‘s perspective? Health and safety. A
legitimate state interest.
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iv) What is the burden on interstate commerce? Per MA, low.
v) MA is not getting into the business of producing milk here. It is a governmental
service, like providing roads.
vi) It is the notion of federalism that states will provide a range and difference in services.
(1) For example, say MA has a very good education system. Must MA dumb down its
education system so as to not provide a competitive advantage?
vii) It is unlikely that a court will hold MA paying for vet services unconstitutional.
K. Camps Newfound/Owatonna v. Town of Harrison (1997)
a) A ME statute provided a property tax exemption to benevolent and charitable institutions
incorporated in the state, but denied a full exemption to any institution conducted or
operated principally for the benefit of persons who are not residents of ME.
b) If the basis of the law discriminates on the basis of the origin of commerce – here we are
discriminating against camps that have out of state clientele. It is not an evenhanded law.
(ME will argue that it is evenhanded.)
c) What is the relative burden? It makes camps that service out of state campers more
expensive – it is not an absolute bar on interstate commerce but it is a substantial burden.
If you own property for the camp, you have a big tax bill to pay.
d) Why does ME make this distinction in its law? Is there some public policy that ME can
articulate? Perhaps ME wants to keep the camps in-state; are they trying to promote
charitable institutions? Yes – we are trying to promote charity and they perform social
services that but for the charities we fear the state may have to provide. They perform
counseling, education. They help prevent the formation of street gangs, etc.
i) SO why does ME not give the exemption across the board? Because they would not
have to go into another state and provide services if a charity in another state was not
providing the services.
ii) This seems like an extension of the West Lynn Creamery case.
e) The USSC however held that this policy/statute was unconstitutional – but it drew two
bitter dissents.
Cases dealing with Milk and Milk Pricing:
A. Depression: family farms going belly up b/c they couldn‘t get enough money for their product,
some sort of price regulation was necessary; you could produce and sell it very cheaply and
the market could collapse and monopoly was possible states need to prop up the price of
milk
B. Baldwin v. Seeling: (1935)
a) Giant Eagle wants to buy milk from diaries to sell, if they bought it from a NY dairy there
was a mandated minimum price—GE couldn‘t negotiate with an in-state dairy to pay less;
GE was free to buy from out-of-state supplier, if they paid them less/gallon then the in-
state then they could not re-sell the milk
b) Holds that states may not protect local economic interests by limiting access to local
markets by out of state sellers – even in the absence of facial discrimination.
c) Is it discriminatory on its face? No.
d) Is it discriminatory? Yes. If you understand the purpose of the law to prop up the local
dairy industry by preventing price competition for the product – you start to see a
protectionist measure.
e) What economic circumstance prompted this statute? Local dairy industry was apparently
not doing so well because big dairies form other states were coming in and underselling
the local farms.
f) Pretty substantial effect on local interests. Puts a hurt in in-state competition and milk.
g) Held unconstitutional because it suppressed or mitigated competition between
the states.
h) What is the purpose of this statute?
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i) Is there a disincentive to interstate commerce? No. But this probably helped local
farmers not to be grossly undercut by big farms.
ii) It does not really regulate anything about interstate commerce. The purpose is to
maintain a broad base of intrastate milk companies.
i) ―The Constitution was framed under the dominion of a political philosophy less parochial
in range. It was framed on the theory that the people of the several states must sink or
swim together, and that in the log run prosperity and salvation are in union and not
division‖
C. Henneford v. Silas Mason (1937)
a) Compensating Use Taxes: does not smother competition but removes the artificial
competitive disadvantage that the state‘s own tax laws would otherwise impose on
products produced in the state; the state tax simply subjects imported goods to the same
nondiscriminatory tax that in-state goods already have to pay these taxes are
nondiscriminatory and are not used to compensate for natural competitive advantages of
another state
i) this is different from the situation in Baldwin
b) What is the argument for this? Are they trying to burden interstate commerce? They are
trying to prevent local buyers from being tempted to go out of state to place orders in order
to escape the local sales tax. Here, WA is attempting to level the playing field.
c) There is no burden on interstate commerce. It is an attempt to level the playing field.
They are not attempting to place a burden on commerce. They are not telling out of state
retailers what to sell their goods for. They are saying to their own residents – we have a
2% sales tax no matter what. You do the math – if OR is selling cheaper, you can go there
and buy and then pay tax in WA.
i) Test:
(1) Evenhanded: ―level the playing field‖ anyone who buys something pays a 2% tax
to the states unless its paid to someone else this creates no greater burden
(2) Legitimate State Interest: did do much to identify this
(3) Didn‘t bother to do much balancing
ii) As long as you didn‘t touch the underlying transaction per se, there is somewhat of a
disassociation with the commerce that matters, in these cases you have to drop a
footnote when we talk about the market participant exception, does that or does that
no in fact go backwards and influence a lot of these decision, the states are putting
down their own tax; the state is acting in its own direct self-interest
D. PA Milk Control Board v. Isenburgh:
a) minimum price on milk sold, no matter where it came from—all milk sold had to be sold at
a state minimum price! A seller in PA on the WV boarder who want to buy milk from him,
they want a volume discount can you do this or must you sell for the state minimum
price?
b) Test: this regulation passes!
i) Evenhanded? Yes, it doesn‘t matter b/c it is all milk sold in PA (it doesn‘t say you can‘t
go buy it in another state)
ii) Legitimate state interest? Supporting the milk industry in PA
iii) can you make an argument that this policy enhances interstate commerce? This is a
healthy economy, trying to promote the business generally, if there is cost competition
may promote interstate milk
c) Balance: ct. took a careful look to see what actual effect this state min. price had there
was little milk going out of PA anyways, didn‘t find they guy that who could claim he
wanted the deal that this was a significant impediment.
A. Hunt v. WA State Apple Commission (1977) (contrast to Henneford)
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a) NC says that apples in sealed containers must bear no grade other than the United States
Dept. of Agriculture seal that these are grade A apples this is b/c in WA they had its
own grading system, and they would put on applies packed and produced in WA the
U.S.D.A. grade and their own (which was claimed to be better for the consumer to grade
the apples)—now WA apple producers have to take out their seal before it gets there,
which costs money
b) The NC law while neutral on its face, discriminated against WA growers in favor of their
local counterparts and concluded that this discrimination was not justified by the asserted
local interest in eliminating deception and confusion in the marketplace.
c) What is the burden on interstate commerce? It is not quite a ban, but it is a de facto ban.
It is a huge burden on WA and other state apple companies. The burden is extensive.
d) Is there a least restrictive alternative if your goal is good apples and prevention of fraud?
Yes – you can inspect in state after delivery and the AG of NC can prosecute fraudulent
apple labeling if you accept other state‘s labeling standards.
e) Test:
i) Evenhanded: on its face all canned applies can only bear the U.S.D.A. grade and
nothing else! This seems to apply over all
ii) Legitimate State Interest: to ensure the quality of the applies—putting the WA state
grade would be a problem b/c it is a different standard, who knows what it is measured
by…argue that this is consumer protection
iii) Balance: costs of changing packaging would put them at a competitive disadvantage,
all NC would need to do is check out the WA grading system
iv) If your underlying interest is health and safety you can go through this in a different
way
(1) You had a lesser restrictive alternative—approve the WA standard
B. Hughes v. Oklahoma (1979)
a) D arrested for transporting OK minnows outside the state.
b) What is D attorney‘s going to do? It will allege the unconstitutionality of the statute which
makes transporting minnows a crime. Will say that it exceeds the authority of the CC.
c) Why is the statute unconstitutional? It is unconstitutional on its face!
d) Run through dormant commerce clause test:
i) The statute exceeds OK power. It is discriminatory on its face because it does bars the
transport of minnows across state lines. It discriminates against interstate commerce.
ii) What is Oklahoma‘s state interest? Economic protectionism – they are hoarding
minnows. Plus, It is a natural resource – it is an environmental protection to preserve
the environment for minnows. Why does this argument fail?
iii) Does the burden placed on Commerce not exceed the importance of the local interest
served? This part asks the court to balance the effect on interstate commerce on one
hand v. the purported legitimate interest. This is a COMPLETE BAN which cannot be
balanced against the purported legitimate state interest.
iv) This is NOT the least restrictive alternative
e) The OK law passes none of these tests your Honor, and my client must be discharged.
f) This is an easy interstate commerce argument out of a little criminal case in OK.
C. Minnesota v. Cloverleafe Creamery: (1981) (court sided with the state)
a) Represent the out of state dairy
i) Is this law discriminatory on its face? No.
ii) Do they have a legitimate interest? Is this really trying to help the pulpwood industry?
On its face, there is a legitimate environmental interest.
iii) The burden is very great – millions of dollars to change packaging. Does the
legitimate interest supersede the burden? All other dairies would have to do the same
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thing. Plus this is propping up the pulpwood industry. The environmental argument is
not really as weighty as it may seem. Plastic does degrade says the out of state dairy.
iv) The dairy is going to say the state can do better regulation of the landfill; the state is
going to say there is no other alternative.
D. New England Power Company v. New Hampshire (1982)
a) Power plants located in NH can‘t sell power outside the state b/c of an energy crunch
(1970s-80s), out-of-state customers can‘t buy power—regulatory commission of a privately
owned power plant they want to sell to out-of-state, only to residents
b) You represent a company in MA that wants to buy power from the power company (and
has done so in the past).
c) Test: (9-0 Supreme Ct. Opinion)
i) The statute is NOT evenhanded as to Interstate Commerce. It is a complete ban on
interstate commerce.
(1) NH is attempting to protect its economic interest. It is hoarding state power.
Their only legitimate interest is making sure there is enough power for its state
citizens. (Possibly – but this is superficial) this is what the commerce clause was
put in the constitution to prevent
ii) Balance: The burden on commerce far exceeds the local interest.
iii) Instate interest vs. out-of-state interest
(1) As soon as you have a BAN you have an enormous weight on the local interest
iv) There is NO alternative.
(1) Therefore, the law is unconstitutional.
(2) Less restrictive alternative must be seen in conjunction with the legitimate
interest.
E. Healey vs. The Beer Institute
a) a state is concerned with its beer drinkers, put up a regulation that effects out-of-state
shippers and requires them to affirm that the price—at the moment they charge them, no
higher than they charge to any other state
b) PA Statute: says to Anheiser Bush—we think you are charging PA wholesalers more
money than you charge WV and OH, if you ship beer here you have to affirm to the state
that the prices you are charging are no greater than what you are charging to OH or WV
wholesalers if you don‘t affirm it then you can‘t ship in here
c) Test:
i) Evenhanded:
(1) to whom does this regulation apply? Out-of-state shippers, by definition – PA is
trying to put a limit on the basis of price affirmatives
(a) PA would argue a legitimate state interest—protect consumers from price
gauging VS. Beer would say they are prejudicing them
(i) Balance: effect on commerce vs. local interest
1. Not a ban
(ii) Beer: the nature of the burden they are suffering, what are shipping costs
in different states, the demand, this regulation is telling the company to
forget about their cost basis PA will tell you what your basis has to be in
the hope that our citizens won‘t have to pay more money
1. Protectionist Element: price of the wholesaler – some citizens might go
across state borders, PA is trying to protect their wholesalers
a. The balance is not here
d) the beer company (shippers win)
F. Class Example:
a) state looks at its landfills, a lot of it biodegrades but some stuff does not, plastic jugs from
milk biodegrade after 2,000 years this is causing a problem
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b) pass a law saying that all milk sold in this state must be sold in a biodegradable
container give a list of things you can use that biodegrade faster
c) you represent a big dairy out of state and you put that milk into plastic, a piece of your
market is going out the window unless you convert what you put it in into something else
d) Represent the state – Why is the law constitutional?
i) It is evenhanded because it apples to all companies making milk, not just out of state
companies.
ii) It does serve a legitimate, environmental state interest
(1) the milk company will want to have as facts that the ban effects other states
(2) if the state only sold in glass therefore it only effects out-of-state
iii) Balance: The burden does not exceed the importance of the local interest served –
because you can still ship in state with the right cartons
Economic Burden: this is not based solely upon a legal argument you need more
facts, how many milk suppliers this would effect, numbers, you need to gather
evidence
(1) Environmental Burden: the state wants to show that the conversion from
plastic to another alternative is not difficult, environmental scientist who tells you
the impact of this, how bad is it? How much better is it to have biodegradable
stuff?
iv) You need to weigh whether there might be a less restrictive alternative if there is
not evenhanded and there is a legitimate state interest, stop here, if Congress finds a
problem and passes a law then it can be their problem
I. IO Case:
a) find only a small safety benefit from limiting the length of the trucks—struck down as
unconstitutional
b) highway safety is generally a local manner, even when the state is not just serving
protectionism, if there is a burden on interstate commerce that exceeds the local interest
the state should look to a less restrictive alternative, this would cost millions more in
expense—not a concurrent offset with safety
c) Concurrent Opinion: don‘t like the idea of a judge taking testimony on truck length—how
does he or the legislature know about this?
i) Suggestion: Maybe the better thing is for the dist. ct. to look at the legislative record
of what the state legislature used and determine if this is reasonable or not
(1) What is wrong with this is that the legislature doesn‘t concern themselves with
interstate commerce
(2) Legislative history does not really exist in the states like you would find in the
congressional record
(3) The issue under point 3, might not have been addressed in the state legislature
J. Class Example:
a) you have a state and they found that in the past it is difficult to get construction
materials, the state has tried to induce private companies to come into the area, but its
not working out
b) State decides that it needs cement—the state goes into business and start operating a
cement plant, start selling it, this is fun!
c) People from the neighboring states start to buy the cement but now we realize we have an
increase for the demand of cement cement plant decides to fill the orders or our state
residents first, what is left we will sell to out-of-state people
d) Builder in the neighboring state relies upon this cement and can‘t get his cement
e) The purpose here is for the state to regulate the state – not to make money, it doesn‘t get
involved in the profit motive in the same way
f) Test:
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i) Evenhanded: no
(1) State interest: economic protectionism—this is not legitimate
ii) Balance:
(1) Effect on interstate commerce: ban
iii) No less restrictive alternative b/c there is not legitimate state interest to comply
g) Do they win? NO! Market Participant Exception the Pike test does not apply if the
state is a market participant
i) The state owns the business, why does this make all the difference in the world?
ii) If you are the merchant you can sell to whomever you want, this is the way it has
always been
iii) Theory: a private cement plant unaffected by a state legislation could choose to sell to
whomever it wants – this is the law of Reeves vs. State
MARKET PARTICIPANT EXCEPTION TO THE DORMANT COMMERCE CLAUSE
Market Participant Exception
1) Long Rational Basis Area Reg.
a. Channel
b. Inst.
c. Substantial affect
2) means end
3) Fundamental right?
4) passed properly
5) 10th amend.
6) 11th amend cannot serve to undermine state sovereign immunity
i) If this passes you have a federal law that preempts state law, if
not then you need a back-up plan does the state law pass the 4-
part Pike test? At the end of this you are not done, if 1 or more
aspects are defended by the state on the basis that they were
simply market participants, their purpose was to act as a player
in the market—this is the trap door and they can get out of it
7) 1 more step pasted the exception privileges and immunities clause
A. The court created the market participant theory to describe why a state giving economic
subsidies to businesses domiciled in the state does not violate the commerce clause when
the state passes laws to regulate the market, the dormant commerce clause restricts state
power when the state enters the market to buy and sell goods and services, it can spend its
money as it sees fit, and thus it can decide to spend its money to favor its own citizens
a) Example: deciding to burn in its state house furnaces only coal produced within the state
rather than buying the coal for a cheaper price from an out-of-state coal producer
B. In a series of modern cases, a divided Court carved out a significant exception from the usual
commerce clause scrutiny: the Court‘s concern about detecting parochialism was found
inappropriate when the state functioned not as a regulator of the market by rather as a
market participant.
C. The impact of the regulation was felt in situations where the state itself produced goods for
commerce or where it engaged in a program of subsidies or other economic incentives to aid
in-state businesses.
D. Under the exception, states are allowed to favor in-state interests or burden commerce.
E. If a state acts as a market participant, not as a regulator, the DCC does not apply and the
state may favor its own citizens. It applies where the state operates a business or purchases
or sells goods or services or otherwise acts in a proprietary capacity.
F. Example: Reeves Inc. Stake – SD owned an operated a cement plant. The state decided to
supply SD customers before furnishing cement to other during a shortage. A Wyoming
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concrete distributor challenged the preference as violating the DCC. The Court rejected the
contention, distinguishing between the state as market participants and regulators. The
limitations on state prohibitory and embargo power apply to state restrictions on commerce in
a free market, not commerce that owes its existence to the state itself.
G. The market participant exception may also apply when the state sponsors a program that it
brings into market. In White, Boston was able to require that 50% of the work force on city
sponsored jobs be city residents.
H. The market participant exception protects a state only from the DCC scrutiny. If affords no
defense to the P and I Clause
I. States are governments—the function of govt. is to fulfill the needs the private sector
doesn‘t fill, they build roads, police protection
J. There are taxes for money purposes—it is assumed that the govt. is providing services to
regulate society not for the same motivation that a private sector would
K. Congressional Statute: that you can‘t discriminate out of state when selling cement
a) Rational basis? No discrimination is sales in interstate
b) Means rational to the end
c) 10th Amendment: Commandeering a state?
L. South Central Timber Development, Inc. v. Wunnicke (1984)
a) Alaska won‘t sell timber to a company who is shipping to Japan, they want it processed
locally denying a sale to someone on the basis of the fact that this is an out-of-state
buyer
b) Under the standard test this loses
c) Alaska would argue the market participant – is this the same exception?
i) Isn‘t processing in the lumber market the same thing?
ii) If a private party can do this, why can‘t a state?
iii) The state won‘t touch the buyer if he goes to someone else and sells it to Japan
d) How is this different than the standard market participant exception?
i) What is the difference b/w market regulation and being a player?
ii) Same theory in Reeves doesn‘t support this situation somewhere along the line this
is to build up state economies
iii) Call this a downstream regulation (p. 314)
M. Old Cases:
a) NJ this would fall under the exception (landfill only for NJ)
i) Can they make you not dump any excess landfill out of state this is additional
regulation
ii) What if NJ owned the power plant—could they sell only to NJ residents? Yes!
N. Class Example:
a) Dean Milk: a state college said they would only buy milk pasteurized within 5 miles of the
college Yes they are market participants; HOWEVER what if they say we are a state
college we are going to give you free tuition if you are a state resident but you have to
agree to work at a job in PA for 5 years after graduation No! can‘t restrict what a
student does with a degree after you give it to him (same as Alaska regulating what
happens to the wood)
b) You can give discriminatory rates to whomever they want b/c it is there land fill!
O. White
a) Required a certain % of employees be city residents. When building in Boston
b) This is challenged under the commerce clause—goes the same way as Reeves vs. State if
you were a private company, you could choose a company that had half of its people who
lived in the city, similarly the city of Boston can make the decision to employ on the
company who has employees who live in the city
c) The court resolves it in favor of the city under a market participant theory.
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d) The people who argue it raise a claim that the MA/Boston clause violated the Privileges
and Immunities clause. The USSC ignored the issue.
e) Footnote: Privileges and Immunities? Why in the word didn‘t someone argues this here?
i) it was raised and argued, but the SC ignored it!
f) 14th Amendment & Article IV, Section 2 two Privileges and Immunities clauses
in the Constitution.
i) It is in the Constitution to provide for a sense of comity (Article IV). It applies in
circumstances where a state has given a benefit to a citizen based on his residency in
the state and that same benefit is denied to other citizen of another state.
g) Citizens = people, not corporations.
i) A corporation may not raise a privileges and immunities challenge; nor may
a person who may live in a state but who is not a US citizen. An alien does
not have an equal protection claim either.
ii) A P & I claim can only be raised by a citizen.
h) The courts have come up with a statement as to what sorts of things a person can claim is
being denied to them under the P&I clause
i) It applies to matters of fundamental national interest, the restriction of which would
hinder the formation and development of a single union/the United States. What does
this mean?
ii) Say OH passes a law that prohibits a lawyer who is not a resident of OH to practice in
OH.
iii) Or can you as a PA resident go to WV to hunt deer – but what if WV does not give
licenses to PA residents.
PRIVILEGES AND IMMUNITIES CLAUSE:
A. Example: suppose that a state has a law that says corps that are incorporated under the laws
of its state are entitled to sell goods and services at turnpikes, if you are not registered in PA,
you cannot operate a business at turnpikes P&I clause does NOT apply
a) P&I does not apply to corporations
b) It applies to citizens, not to aliens
B. To what does the P&I clause apply? Broad 2 part test:
a) 1st part: Fundamental national interest—the restraint of which would hinder the
development a single unit of the U.S. 1st ask whether the P&I clause applies?
Underlying meaning have to do with the development of the economy
i) Example: hunter wants to go to WY and hunt a moose but the license is $200, where
your cousin who lives there is charged $2.50, the only basis of the state‘s
discrimination is where you live. you are denied
ii) WY attorney general would say : the P&I clause does not apply b/c the activity of
hunting is a recreational activity, if it was banning someone from practicing law in
that state then it would be violated b/c the practice of law is a trade or skill, and this is
what the P&I was enacted to protect
iii) The P&I is talking about allowing the individual to pursue a livelihood, based upon
residency—your argument is enhanced if you explain that the activity has something
to do with pursuing a livelihood, allowing people to provide their trades
b) 2 nd part: If it does apply the question then becomes is it a slam dunk?
i) Example: you have a moose emporium, P&I applies you would have to argue that
the business suffers as a result of that discrimination which you have to prove this is
not it!
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ii) Attorney General admits that the business is effected, and P&I applies, discrimination
and injured: can the state justify this discrimination? What is the legal standard?
How much do you have to prove that you regulation is the least restrictive alternative
(1) Characterize the nature of the interest that you are protecting
(a) The interest must be substantial
(i) State: point out how this doesn‘t have to be life and death compelling
(ii) Moose owner: this just can‘t be legitimate, they have to have a substantial
reason to do this
(b) in the middle: if this was a case of 1st impression and you were trying to push
the meaning of substantial when it is laid next to the mischief it is causing on
the other side causing the Moose man to be put out of business, it better be
significant OR precedence find what substantial means, argue by analogy
when you come to an argue about the meaning of the word
(i) in relative terms to what it is doing in this case or
(ii) argue by analogy
(2) How closely your means to ends have to be to fit it
(a) Where you have a substantial interest and the means have to be closely and
substantially related, how do you argue that?
(i) Moose: it must be defined to that specific interest, narrow and focus your
statute, if you go outside that you are hurting the ability to function as an
economic player
(ii) State: can‘t have it be perfect, not way out of line, but have carefully looked
at the statute to serve the interests no more
C. How does P&I differ from the application of the Dormant Commerce Clause Test:
a) CC: provides greater protection for the client attacking the state; in the following
respects:
i) the CC covers anything, not just a matter of fundamental, national interest example:
Hughes and his minnows
ii) the Dormant CC does protect corporations; P&I protects only individuals
iii) under P&I in almost every case where it will be applied and argued about there is
facial discrimination, it is not evenhanded, usually under the DCC where it is not
evenhanded the state is in a world of trouble under this test, but in P&I the case goes
on and the state can prove that facial discrimination serves those fundamental
interest and does so by means substantial and closely related thereto
b) Does P&I provide broader protection for the client attacking the statute in some ways: 2
ways:
i) Under P&I there is NO market participant exception!
ii) It is possible for Congress to pass a law that would allow a state to have a regulation
that would violate the Pike test, however, Congress cannot pass a law that would
authorize the state to violate P&I (this is less important than the 1st way)
c) Contrast P&I with the11th Amend.
i) 11th Amend. does not apply to counties, municipalities, cities it protects suits against
the state and its agencies, not against political subdivisions
ii) P&I does protect the citizen against cities, counties, school districts, municipalities a
citizen can claim that the city‘s regulation violates P&I
(1) Example: can someone who lives in the same state but not the same city raise
P&I? Yes
(2) Camedon NJ: factually this is a layover of the White case the big question: you
have a city that sees people are fleeing downtown, a local ordinance that says any
contractor has to employ as 40% of its workforce live in the city—this limits the
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contractors that can come into the city, is this a matter for P&I? yes! If it does
apply, what does both sides have to prove?
d) Remember: You must be an out-of-state resident to raise this claim!
i) Coferlid: the P&I clause was a broad based guarantee of natural immunities anyone
anywhere could raise this if their rights were violated by any govt.
(1) The court went back to this during the abortion cases in the 20th century
e) P&I was a protection for the economy as well as a substantive issue if you looked at it
just as economic you would give that right to everyone, a broad-based personal right to
protection you would also afford a broad-based standing
i) MAJORITY VIEW: not sure whether P&I covers the broad based political rights, we
now have the 14th Amend. which is where a broad based personal jurisprudence should
be AND we are worried about federalism and not having a chokehold on the
economy compromise is to read it narrowly—P&I stops discrimination to non-state
residents, a limited reading on who can raise this claim
(1) This is not all good new to the city
D. Baldwin v. Fishing & Gaming Commission (1978)
a) Could buy a license in Montana for $4 to shoot 1 elk
b) A nonresident had to pay $151 to shoot an elk and 2 deer (license)
c) Is this a P&I problem? No! The court said it did not because it was not a matter of
fundamental national interest. If you are representing the out of state hunter and you find
out you cant argue P and I, what do you do?
d) Run a dormant CC argument.
e) Why would you really have a differential in price for license? Who enforces this? The
Game Commission – and Montana residents already support this state commission.
Montana citizens have to pay Game Commission wardens, etc – and because out of state
residents do not – this is a balanced contribution.
f) Does the market participant fit in this? Montana may own/control the land if it is state
land; but what if they are allowed to shoot on private land?
i) Theoretically, you could argue that Montana is selling a product – a license. In federal
criminal law, a license dispensed by a state is property of the state. Thus, Montana
can say that they are in the business are selling licenses.
ii) The market participant theory is predicated on the idea that if a private corp. can do
something, why can‘t the government also?
(1) Alaska argument – Downstream regulatory stream; we don‘t care about selling the
license.
iii) For the market participant theory to be operative, it operates under the theory that
that which a private corp/entity can do, a government can do. you might have an
argument if it is state owned game lands
iv) the state is selling the licenses
v) In many other ways, when a government acts like a government entity – it is told that
it cannot do so. But in this circumstance, we turn a blind eye.
E. United Building Trades Council v. City of Camden (1984)
a) The city of Camden has local ordinance that says contractors in city of Camden that work
there, 40% must live in Camden. Under DCC, the city of Camden would win. They could
select a contractor that had 40% of employees that live in the city. If a private company
can do it, so can a city under the market participant exception.
b) Test:
i) This is pursuing a livelihood—the same thing the P&I clause was created to prevent
ii) City has to argue a substantial and legitimate interest, the 2nd part is that the
restriction that the interest is substantially related to the ends 2 more jobs is great!
2nd argument for the city is that they want people to move back into the city
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(1) Contractor wants to convince the court that the substantial related means is to
have this 40% and will satisfy what they want to do no guarantee that there are
people who can take these jobs
(2) Contractor wants proof that this 10% increase in jobs for city residents will help
the city
c) But now, in this case, unlike in White, they address P&I. It is a municipality. P&I
applies (unlike the 11th Amendment).
d) What is your first worry? You do not put a corporation as your claimant. A corp. does not
have rights under P&I. You must bring the claim against the individual workers who
cannot get work in Camden.
e) Now what – what national interest is being stepped on? Is it cognizable under P&I. Is this
the same thing as the practice of law? If you are the city of Camden, why is it not? The
problem is you must look at this categorically – what is it that Camden limits? It limits
the opportunity to practice one‘s trade = viable, proper national interest.
f) On page 320, the court says, outlines the P&I argument v. the CC.
g) Counsel for the city‘s argument/interest must be specifically definedWhat is city‘s
reason that they purport for this regulation? They contend that its ordinance is necessary
to counteract grave economic and social ills. This is seed money, this is money we are
putting back into the city via construction and via the residents of the city who will use
the buildings. And they contend that they do not unreasonably harm nonresidents,
because they still have access to 60% of the jobs. They are trying to stop middle class
flight.
h) How do they prove this? Can they argue this theoretically? Better if we have crime rates,
unemployment numbers, census data. Can call city officials, residents, the state economic
development office. You need to develop a very full record on this point – the city of
Camden has the burden of showing that there is an evil associated with giving this work
to out of city contractors and it is in part that evil which has contributed to the social ills
you have suffered.
i) Also remember this is limited to only city contracts – not all construction. Burden - must
prove that limited city contracts to city construction workers will remedy an evil that has
been caused. This is not an easy thing to prove.
j) Look at the other side – how do you argue against the theory of this from the other side.
Go out to other extrinsic factors. Camden must define the problem and then the solution.
Counsel for the construction company is going to say - really? Employing city workers is
really going to cure all these social ills? This is absurd says the lawyer – giving a few city
projects is not going to cure this so called major ill; it is a fly speck solution.
k) As counsel in this cases, before you open mouth, better be sure you are not overplaying
your hand – must define the problem that your solution substantially meets – not just
generally meets!
l) You must define your target problem with the range of the remedy you seek to fix the
problem. Here, the MEANS DO NOT FIT THE ENDS.
m) The USSC says that they are some problems with the theory and that they do not have a
record – so there is a remand here for a hearing.
B. SC of New Hampshire v. Piper (1985)
a) You must live in the state to practice law in the state; Out of state lawyer wants to be
admitted to NH bar but not allowed by the state.
b) This is P&I b/c it is one‘s livelihood
c) NH argument – nonresident members of the bar would be less likely to become familiar
with state rules and procedures, to behave ethically and be available for court
proceedings.
i) Want to regulate the ethics of the bar, can do this without having people live there
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d) We want to make sure people show up on time and you have to live here to do that
e) Person representing the lawyer would argue that the lawyers have to pass the state bar
exam, take CLE credits there are means far more related to the ends
f) The USSC said the means do not relate substantially to the ends.
g) Note that the clause does not prevent discrimination against non-state residents where 1)
there is a substantial reason for the difference in treatment and 2) the discrimination
practiced bears a substantial relationship to objective.
C. Londane:
a) P&I violation: people who work in NY had to pay income taxes—if you lived and worked
in NY you could deduct your alimony payments and reduce your state income tax—if you
worked in NY but lived in NY you couldn‘t deduct your alimony
b) USSC said this was unconstitutional—impacts those out of state, constitutional burden
D. Look at – Hillside Dairy Inc. v. Lyons, 123 SC 2142
a) This has 1 interesting point: on its fact the scheme didn‘t say they would charge different
rates to out-of-state milk suppliers
b) since it wasn‘t on its face it wasn‘t P&I—9th circuit
c) SC—if it puts a different burden on an out-of-state resident, no matter what it says, if
that is how it operates a P&I claim can lie there sent it back down
d) This case is about a CA milk regulating scheme. Interesting points – CA purported that a
federal law authorized CA to pass a law that would otherwise violate the DCC.
e) Congress can pass a law that would authorize the state to do something that would violate
DCC but it cannot authorize a state to violate P&I.
f) If you purport that there is a federal law that authorizes you to violate DCC, that law
must be very specific.
g) Second interesting point – the court said about P and I cases, in a lot of circumstances, the
P&I will arise in facts in which the local or state org is discriminatory on its face. BUT it
is not necessarily true that a regulation that is not discriminatory on its face is outside
P&I.
E. Chalker (TN)
a) There is a higher tax imposed on business that had their principle offices outside the
state. The court said that you cannot look at the one the face discriminatory language of
the statute, if in operation a local or state statute discriminates against out of state
people, and P and I claim can be made. You must look at the practical effect of that law. If
it discriminates against out of state residents, you have an argument under P and I.
b) The court decided to send back – must look at DCC analysis in this case. Must also look
again P&I can be raised in this CA dairy case.
c) Claims under P&I made in TN case by corps were dismissedP&I claim made only by an
individual.
F. Class Example:
a) Let us assume that you have a client who is plagued by some regulation that is passed by
a state of local government and they do not want to abide by it – and they hire me to get
out of this.
b) The template to apply is:
i) You take the easy direct route first. Is there is a federal law that would conflict with
this local legislation. If yes, and my client would adhere to federal law, then the
federal law if in conflict with state law and would trump it under the Supremacy
Clause and all is OK. Does federal law preempt state law?
ii) Of course, my client may not want to abide by any law. So determine whether the
federal law was valid. The overall test for whether a federal law is valid under the CC
– 1) whether there was a rational basis / or a regulation of channels of interstate
commerce. 2) Then look whether there is a proper means to ends – a due process
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connection. Almost always found. 3) Ask whether federal law violates Bill of Rights 4)
Whether it was enacted properly? . 5) Whether it violated the 10th Amendment. 6)
Look to see whether the 11th Amendment would apply in any way in terms of remedies
it would authorize.
c) Now first consideration is DCC – would state regulation pass DCC under 4 part test.
Amended at the end is the market participant exception to see whether that would save
state law.
d) One more constitutional estoppel along the way – P&I – and whether state law violates P
and I. Run P and I tests.
e) Run through this template and give client an answer. Make arguments along the way.
PREEMPTION
Federal Preemption:
A. Supremacy Clause: Art. VI establishes the primacy of federal law over state or local law
a) Wherein a federal law and a state law relate to the same subject matter you must consider
the preemption issue:
i) A court will find that the federal law preempts the state law OR
ii) The court will rule that the state law was not preempted by the federal law
B. the federal govt. has decided a matter and the states should stay out!
C. The supremacy clause trumps any state law
D. Example: the govt. can tap your phone if you are under surveillance, there is a passage that
allows states to also regulate wire tapping and to make it more difficult for state officials to
tap phones, the fed. law declares itself the bottom line, the state can make it more difficult
a) PA wire tap statute is more difficult than the federal wire tap law
E. Leading case: Pacific Gas and Electric vs. State Energy Commission—CA decides they
will put a mortuary on energy plants until the govt. comes up with a safer way
a) Challenge that the atomic energy act of 1954 preempts this CA statute, the ct. is now left
with a question of whether or not the fed. statute does preempt?
i) What is the first thing you will look at? Whether there is a federal statute…what if
there is not a specific black and white conflict? Look to the intention of congress
(1) Look to see if Congress is specifically preempting a state law
(2) Federal Preemption is statutory interpretation
ii) What is the second thing you would look at? The breadth of the statute
(1) If you are the party wanting the federal act to preempt the state act the fed.
statute combined with the regulations has meticulously covered that they don‘t
need state regulation in this area, the type of regulation here is so pervasive that it
allows the ct. the reasonable inference that congress left no room for state
supplement
b) What if you have a situation where it doesn‘t fill out everything, can there still be
preemption? (it is not explicit)
i) 1st argument: look to explicit terms
ii) 2nd argument: council has lined up federal regulations, under this can you say look
at what Congress has done? What do you want the court to look at as a matter of
substance?
(1) 2 Parts:
(a) The area itself regulated is one uniquely in the federal interest
(b) The specific object of this legislation demonstrates a clear intent that it be
federal only
(i) In this the ct. doesn‘t have anything tangible, you are weighing the
constitution itself (Art. I Sec. 8) and asking whether this is an area uniquely
carved out for federal legislation only—this line is a wavering one
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(ii) Scalia: wants a dormant commerce clause to have 2 parts—in this area it‘s
the same idea if Congress didn‘t tell the states to stay out then let them
go
c) PA vs. Nelson: (1956)
i) you have to look to the absence of the specific preemption,
ii) then look to the need for the fed. govt. to occupy the area uniformly, and
iii) look to the danger of state laws conflicting with the federal scheme
d) Conclusion of the case: new nuclear plants was left to the states CA acted within its
authority
F. Crosby vs. The Trade Council: (2000)
a) Mass. decides that the govt. of Burma is oppressive and they impose a ban on businesses
within Mass. buying Burma goods
b) You are Wal-Mart in Mass. and you get a great deal on golf balls from a plant in Burma do
you do this or comply with Mass. law?
c) Challenge the law: you would argue that the Mass. law is invalid b/c the fed. govt. allows
trade with Burma
i) Law doesn‘t say that a state can‘t pass a law about buying from Burma
ii) You are in the 3rd and 4th levels:
(1) Argue that the fed. govt. should decide how the trade in the country will be
regulated – there is a checker board (some states allow and others do not) the
focus is Constitutional boundaries, designated to do lists – this is
international relations (foreign commerce)—states cannot do this on their own, the
U.S. must do this as one voice
d) Mass. law was preempted
G. Sprietsma v. Mercury Marine: (2002)
a) a boat passenger dies after falling and having a bad encounter with the propeller blades
according to coast guard regulations the propeller didn‘t have to have a guard; estate
brings a suit common law tort negligence; there is a fed. boat safety act with a clause that
precludes state regulations ―no cause of action can lie under a state or local law or
regulation‖
b) Marine: says you can‘t do this federal preemption
i) Coast guard silence—in the absence of a regulation that says there is no need for a
guard…the absence of a regulation is not to be inferred as a preemption, the ct. takes a
very strict construction of the federal statutes by explicit words and by implication
c) Estate of the client: is not preempted by this state or local law or regulation means
positive law, state statute, state enactment it doesn‘t mean state common law and the
court allows this to proceed
d) Common law issue goes to products liability which states have complete jurisdiction over
e) P in this case prevails!
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