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					Judicial Review (1 of 2) ▪ Article III merely extends the judicial power to “all cases in law & equity, arising under this Const., the laws of the U.S., & treaties made… under their authority. ▪ Judiciary Act of 1789 – Congress created lower fed. cts. but gave them no general juris. in civil cases arising under fed. law ▪ Does the S.Ct. have authority to review Acts of Congress? Hamilton – branch is least powerful, independence of judiciary allows guarding of Const. & individual rights; Jefferson – judges should not be ultimate arbiters of all Constitutional questions; & Judiciary Act – S.Ct. had power to issue writs of mandamus to U.S. officials (which arguably violated Art. III, § 2 setting stage for Marbury ▪ Marbury v. Madison – 1803 – The S.Ct. is empowered to review Acts of Congress & void those that it finds to be repugnant to the Const.. - Judiciary Act’s grant of original mandamus juris. = unconst’l & void; grant of judicial power extends to all cases arising under the Const. & laws of the U.S.; since Const. is superior to any ordinary legislative act, it must govern a case to which both apply; Supremacy Clause, Art VI, §2, states that the Const. & those Acts of Congress made in pursuance thereof shall be the supreme law of the land. Ct. must determine when such acts are actually made in pursuance of the Const.. Power of judicial review is implicit in the Const.. ▪ In more recent times, S.Ct. has asserted broad judicial review power. Once a law is declared unconst’l, cts. simply decline to enforce it. ▪ Cooper v. Aaron – 1958 - both the states and the fed. gov’t are bound by S.Ct.’s decisions Judicial Review (2 of 2) ▪ Bush v. Gore – 2000 – FL S.Ct. ordered manual recount of “undervotes” in all counties” - U.S. S.Ct. held that the manual recount violated Equal Protection and that b/c the deadline for counting allots had elapsed, remanding the case to FL would not be an appropriate remedy. Dissent – political question. ▪ Martin v. Hunter’s Lessee – 1816 – VA didn’t want to follow S.Ct. ruling forcing the state to follow treaties made between U.S. & Britain rather than their own statute that allowed confiscation of Britishloyalist-owned U.S. property in VA. - The S.Ct. has appellate jurisdiction over the highest state courts on issues involving the Const., laws, & treaties. - Judiciary Act of 1789 § 25 – S.Ct. may review final state court decisions that reject claims under the fed. const. & laws – appellate juris. is given by const. to S.Ct. in all cases where it doesn’t have original juris. – all cases involving const., laws, & treaties of U.S. are included in Art. III, so all cases are properly subj. to that ct.’s appellate juris & § 25 of the Judiciary Act is valid. Power is necessary for uniformity of decisions throughout U.S. ▪ Fletcher v. Peck – 1810 – S.Ct. may review state statutes ▪ Cohens v. VA – 1821 – S.Ct. extended Martin to permit review of state court criminal judgments ▪ When S.Ct. reverses state ct. jdmts., it normally remands for “proceedings not inconsistent w/ this opinion” b/c state ct. can review previously undecided issues and reconsider its decision on matters of state law

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Restrictions on Judicial Review (AAA SCRAP) Case or Controversy Requirement (Art III, §2) Advisory Opinions Mootness Ripeness Standing Avoiding Constitutional Decisions Adequate State Grounds Abstention Political Questions

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Political Questions ▪ The requirement of a justiciable Art. III controversy is deemed to carry w/ it a limitation against deciding purely “political questions” & leave the resolution of such to other govt. depts. ▪ Criteria 1. A “textually demonstrable” const’l commitment of the issue to the political branches for resolution 2. The appropriateness of attributing finality to the action of the political branches 3. Lack of adequate standards for judicial resolution of the issue, and 4. Lack of adequate judicial remedies ▪ Pacific States Telephone & Telegraph Co. v. Oregon – 1912 – the S.Ct. cannot address a question of state status (republic or democracy) for it is a political question ▪ Nixon v. U.S. – 1993 – The courts may not review the Senate’s impeachment procedures. And, the use of the word “try” is not an implied limitation on the Senate’s method of trying impeachments. - Art. I, §3, Cl. 6 – Senate shall have sole power in trying all impeachments. - Impeachment = only legislative check on the judiciary – it would be inconsistent to give judicial branch final review authority over Congress’ use of impeachment process ▪ Baker v. Carr – 1962 – Federal cts. have juris. over challenges to electoral districting apportionment plans with regard to FEDERAL elections - a controversy is nonjusticiable when there is a “textually demonstrable const’l commitment of the issue to a coordinate political dept.; or lack of judicially discoverable & manageable standards for resolving it.”
▪ 28 U.S.C. §1251 – S.Ct.’s Original Juris. - cannot be altered by Congress - mainly concerns controversies btwn. 2 or more states ▪ Art. III, §2, Cl.2 & 28 U.S.C. §§ 1251 & 1257– Congress has power to regulate & limit Appellate Juris. - Applies ANY time & ANY stage of proceedings - may even allow Congress to w/draw particular classes of cases from S.Ct’s appellate review ▪ Exparte McCardle – 1869 – Congressional negation of previously granted juris. precludes further consideration of matters brought to the S.Ct. based on that juris. ▪ Review Courts of Appeals – 28 U.S.C. §1254 – By writ of certiorari, appeal by party relying on state stat. held invalid under Supremacy Clause (review restricted to fed. ? presented), & certification fm. a ct. of app. ▪ Review Final Jdmts. of highest state courts – 28 U.S.C. §1257 – By appeal, where st. ct. has found invalid a U.S. treaty or statute, or where st. ct. has found a st. statute challenged under Supremacy Clause valid. or by certiorari when these issues arise, regardless of outcome, or where any title, right, privilege, or immunity is specially set up or claimed under the const., laws, or treaties. ▪ Limits on Congress’s Authority – 1) Congress shouldn’t be able to interfere w/ S.Ct.’s essential role in const’l scheme (incl. interference w/ Ct.’s independence by altering app. juris. in response to opinions) or 2) Congress shouldn’t curtail juris. that may impair litigants’ rights (ex: juris. limits shouldn’t violate DP or EP) ▪ Modern Attempts to Limit S.Ct..’s Juris – not successful (ex: b/c Roe, Miranda, busing, or school prayer) ▪ Limitation of Juris. of Lower Fed. Cts. – Congress has power to create lower fed. cts. so also has power to limit their juris. (only in 1875 did the lower fed. cts. receive gen. juris. to decide fed.?’s) Various times – certain types of cases’ juris. removed)

Congressional Regulation of Judicial Power

Discretionary Review ▪ S.Ct. MUST hear cases on appeal – and even then they are often disposed of summarily ▪ Petitions of certiorari – granted on discretionary basis ▪ Rule of 4 – four justices must wish to hear a case brought on writ of cert. in order for cert. to be granted ▪ S.Ct. Rule 17 – sets forth the type of cases the S.Ct. will likely hear by granting cert. ▪ Supervision of Fed. Cts. – when fed. ct. of app. renders decision conflicting another circuit or state ct. of last resort, or has departed from usual course of judicial proceedings ▪ Control over Fed. Law – when st. ct. of last resort decides fed.? in conflict w/ a fed. circuit or another st. ct. of last resort ▪ Important Cases – when lower ct. decides an important question that S.Ct. has not settled, or when lower ct. decides fed. ? in conflict w/ a S.Ct. decision ▪ Maryland v. Baltimore Radio Show – 1950 - Denial of Certiorari does not imply that the Ct. agrees with the decision below, it only means that no 4 justices agreed to grant cert. Reasons vary and don’t necessarily rely on merits.

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Adequate State Grounds ▪ S.Ct.’s only power over state jdmts. is to correct them where they incorrectly adjudge federal rights - Ct. will not review severable st. issues also decided in the case ▪ To avoid advisory opinions, review is denied where an adequate and independent state ground supports the jdmt. Since a reversal of the federal law interpretation would not change the outcome. - Whether adequate & independent t st. grounds exist = FEDERAL QUESTION - If a decision appears to rest primarily on fed. law, S.Ct. assumes st. ct. felt bound by fed. law unless it clearly states that its decision rests on an adequate and independent state ground. - see Michigan v. Long - 1983

▪ Allocation of govt’l powers  State v. Federal AND Between different govt’l branches ▪ Exclusive FEDERAL - by const’l enumeration or by nature of power (ex. Necessary & Proper Clause) ▪ Exclusive STATE – Under 10th Amend., Fed. govt. may not exercise power impairing states’ integrity or ability to function effectively in fed. system ▪ Concurrent (shared) – most enumerated fed. powers don’t specifically deny st. power in areas covered, but under Supremacy Clause, fed. law trumps any conflicting or inconsistent st. laws. - fed. preemption in an area may occur when uniform national laws are deemed necessary ▪ Denied – Add’l to states limited powers in Art. 1, §10 – the BofR’s & other amendments deny powers to BOTH fed. & st. govts. (ex: establishment of religion; abridgement of free speech) ▪ Necessary & Proper – Art. 1, §1, Cl. 18 - Congress may make all laws N&P to execute enumerated powers & all other powers given by const. to fed. govt.  allows Congress act, although not specifically constitutionally authorized – Scope of N& P clause is subj. of intense debate ▪ S.Ct. has consistently held that this doesn’t grant a new and independent power, but makes effective enumerated powers ▪ McCulloch v. Maryland – 1819 – Even though the const. doesn’t expressly grant Congress the power to incorporate a bank, it can do so under a doctrine of IMPLIED POWERS - the meaning of federalism was initially clarified in this case; no const. grant of auth. For bank, but Congress did create one, then original charter expired after 20 yrs.; 4 yrs. Later, 2nd bank estab’ed & MD wished to tax it – ESTABLISHED IMPLIED POWERS DOCTRINE & stressed supremacy of fed. govt.

Legislative Power (1 of 2)

- N&P now is a grant of discretionary power – BUT must be based on powers granted by const. Legislative Power (2 of 2) ▪ Powell v. McCormack – 1969- Congress cannot change the qualifications for members of Congress specified by the constitution ▪ U.S. Term Limits, Inc. v. Thornton – 1995 – states do not have power to add to the qualifications for members of Congress – states cannot impose restrictions on who appears on general election ballots, so they cannot impose term limits - power to add qualification IS NOT w/in the “original powers” of the states, so it cannot be reserved to the states by the 10th Amendment - McCulloch principle applied here – rejection of argument that Const.’l silence on subj. of st. power to tax corporations chartered by Congress implied that states had reserved power to tax them

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National Commerce Power (1 of 3) ▪ Congress’ power to regulate commerce & tax goods & instrumentalities in commerce is EXCLUSIVE ▪ Overlapping Nature – States granted power to Congress to regulate it w/ foreign nations, Indian tribes & among the several states – if states had not done so, they could have erected trade barriers among themselves (destroying political union) - .S. was intended to be a “common market” made up of individual states - Fed power to regulate commerce among several states overlaps w/ each state’s power to regulate commerce w/in borders. ▪ Early approach to Commerce Clause: state actions allegedly discriminating against/burdening interstate commerce – acted as restraint upon state regulation. 1887 – 1st Interstate Commerce Act (relied upon as basis for affirmative exercise of fed. pwr.) 1890 – Sherman Antitrust Act Problem = defining “interstate commerce” 1824 – Gibbons v. Ogden – a state regulation of commercial navigation that excludes federally licensed operators is unconstitutional - Navigation = commerce - Commerce power of Congress must be exercised w/in territorial jurisdiction of the states, although it cannot reach solely intrastate commerce (DOESN’T STOP @ STATE BORDER) - State inspection laws = recognized in const., but act upon subj. prior to becoming article of com. - COMMERCE = ANY COMMERCIAL INTERCOURSE AMONG THE STATES – C.J.Marshall
National Commerce Power (2 of 3) 1903 –Champion v. Ames (Lottery Case)–Congress has power under CC to regulate undesirable activity - Lottery tickets = commerce; Commerce can be fed.’ly regulated; regulation includes prohibition (so long as deemed adverse to public health/welfare); therefore lottery tickets can be prohibited ▪ Congress may prohibit entry into interstate commerce of: 1- Goods harmful to interstate commerce itself (contagious diseased animals) 2- Harmful commercial items (adulterated or misbranded articles) 3- Non commercial items constituting an “evil” activity (stolen goods) 1914 – Houston, East, & West TX Railway v. US (Shreveport Case) – Congress has power under CC to control intrastate charges of interstate carriers in order to end injurious discrimination against IC ▪ SUBSTANTIAL ECONOMIC IMPACT TEST ▪ CC gives Cong. Power to protect IC from impediments of local control that could destroy IC ▪ Cong. Power over IC extends to all other operations with a close and substantial relation to interstate traffic – and all measures necessary or appropriate to that end including control of intrastate commercial activities that substantially affect interstate commerce 1918 – Hammer v. Dagenhart – Congress may not prohibit the transportation in IC of goods mfg’d by child labor ▪ Congress ≠ general police power & can’t force states to exercise theirs ▪ Goods, themselves, = harmless – not like Lottery Case where lotto tickets = harmful ▪ GEOGRAPHIC VIEW OF INTERSTATE COMMERCE ▪ precluded congressional regulation over activity that begins & ends at all times takes place w/in a single state (Hurt FDR’s New Deal)

National Commerce Power (3 of 3) Just prior to 1936 – Ct. moved to DIRECT/INDIRECT ANALYSIS, an activity taking place solely w/in a state can be regulated IF directly effecting interstate commerce Carter v. Carter Coal Co. – 1936 ▪ RR Retirement Bd. V. Alton RR – 1935 – federal retirement fund for interstate carriers (part of New Deal) held unconstitutional ▪ Schecter Poultry Corp. v. U.S. – 1935 – fair labor code (part of New Deal) approved by President also unconstitutional After 1936 – AFFECTATION DOCTRINE- “AFFECTING Commerce” means burdening/obstructing commerce or free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce – NLRB v. Jones & Laughlin Steel Corp. (1937) 1941 – US v. Darby Lumber – Congress MAY establish & enforce wage & hour stds. for mfr. of goods for IC ▪ 1918 Hammer’s no fed. reg. inside state  Now, affecting commerce = cong. power to control ▪ Federal power extends to intrastate activities directly affecting interstate commerce. 1942 – Wickard v. Filburn – farmer growing small crop for family effects commerce b/c it substituted for would-be-purchases from the open market – combined effect (if many did this) = great effect

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Commerce Power (1 of 3) ▪ Regulation of Police Problems Through Commerce ▪ Congress may exclude from IC products & transactions that can harm health, morals, safety, or welfare of nation (Lottery Case)- approach used to prohibit interstate transport of illegal goods ▪ Perez v. United States – 1971 – S.Ct. upheld law making “loan sharking” a crime & reaffirmed Congress’s extensive power to regulate intrastate activities that affect more states than one - though a transaction is purely intrastate it can be regulated if Congress deems it as affecting IC ▪ Enforcement of the Pure Food & Drug Act – Congress would have to authorize inspection & seizure when the goods are made available for final sale ▪ McDermott v. Wisc. – 1913 – Congress could require labels to meet fed. stds. And be attached to all “unsold” good traveling interstate – this requirement facilitates inspection to enforce fed. laws ▪ US v. Sullivan – 1948 – McDermott reaffirmed and Congress could require a retailer to affix fed. labels to smaller containers into which he distributed goods from a single large interstate container. ▪ Protection of Other Interests Through Commerce ▪ Heart of Atlanta Motel, Inc. v. US – 1964 – Congress may prohibit racial discrimination by private motels that accept out-of-state business by use of the Civil Rights Act & the Commerce Clause. ▪ Katzenbach v. McClung – 1964 – Congress may use its commerce power to forbid racial discrimination by a restaurant on the sole ground that slightly under ½ of the food it serves originates from outside the state in which it operates. (food @ rest, but appl. of “com[ing] to rest” std. applies to only to cases regarding state taxation or regulation, not to federal regulation of commerce) Commerce Power (2 of 3) ▪ Protection of Environment Through Commerce ▪ Hodel v. Virginia Surface Mining & Reclamation Assoc. – 1981 – national surface mining and reclamation standards upheld – valid use of commerce power to protect environment based on congressional findings re: the environment & competitive effects of surface coal mining on interstate commerce ▪ Hodel v. Indiana – 1981 – Ct. also upheld restriction son surface mining prime farmland, even though this portion of the statute applied only to 21,800 acres ▪ Modern Limits on Congressional Power ▪ United States v. Morrison – 2000 – Congress may not provide a federal civil remedy for a gender motivated violent crime on the ground that the aggregate effect of such crimes substantially affected interstate commerce. ▪ United States v. Lopez – 1995 – Congress could not prohibit the possession of firearms w/in a school zone ▪ Possessing a firearm is a criminal, not economic act ▪ Congress has authority to regulate IC, but must show a substantial impact on interstate commerce of the actions it seeks to regulate or proscribe ▪ CANNOT USE A CAUSAL CHAIN allowing congress to regulate any crime whose aggregated impact has substantial effects on any aspect of interstate commerce – (Violence Against Women Act based on findings regarding the serious impact of gender-motivated violence on victims & families, but used but-for causal chain to show impact on IC from these crimes ▪ POLICE POWER WAS CLEARLY LEFT TO STATES – congress has no authority to regulate noneconomic, violent, criminal conduct based solely on conduct’s aggregate effect in IC Commerce Power (3 of 3) ▪ Dissent in Lopez – Souter, Stevens, Ginsburg, Breyer  “the majority has revived a distinction btwn. Commercial and noncommercial conduct, which had been rejected in Wickard” ▪ Statutory interpretation used to avoid constitutional issues (statute doesn’t apply – no coverage of CC issues) - Jones v. U.S. – 2000 – S.Ct. avoided CC issue by holding that a fed. arson statute, applying to bldgs. used in any activity affecting interstate or foreign commerce, did not apply to an owner-occupied residence not used for commercial purposes - Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers – 2000 – the Clean Water Act does not cover non-navigable, isolated intrastate waters used as habitat for migratory birds.

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Legislative Taxing & Spending Power (1 of 3) ▪ Art. 1, § 8 – Congress has power “to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the U.S.” ▪ Congress may use its taxing power to promote any objective WITHIN ANY ENUMERATED POWER. ▪ If they have the power to regulate the taxed activity, the tax is valid even if clearly enacted for regulatory, rather than a revenue-raising, purpose ▪ If Congress has no power to regulate the activity taxed, validity of tax depends on VALIDITY AS A REVENUE-RAISING MEASURE, although incidental regulatory effects are permissible. ▪ Bailey v. Drexel Furniture Co. (The Child Labor Tax Case) – 1922 – Congress cannot use its taxing power to accomplish objectives it cannot reach under any of its other powers. - Raising revenue is maj. purpose of a tax, but many legitimate taxes also have incidental regulatory effects. Such taxes when imposed by Congress are still valid if principal purpose = raise revenue. - Taxes w/ principal purpose of regulating ≠ authorized by const. - If validated, all Congress would have to do is enact a detailed measure of complete regulation of the subject & enforce it by a so-called “tax” - With regard to the req’mt of “knowingly” in statute  Scienter is used in penalties, not taxes ▪ United States v. Kahriger – 1953 – Ct. upheld tax on wagering despite tax’s indirect effect of penalizing professional gamblers. Legis. Hist. showed intent to suppress wagering. Effect considered indirect ▪ After 1936, Ct. expanded view of commerce power, making it less necessary for Congress to use its taxing power to regulate - also Congress has extensive regulatory powers under other provisions

Legislative Taxing & Spending Power (2 of 3) Regulation Through Spending ▪ Art. 1, §8 – General Welfare Power – clause can be invoked only when there is an expenditure of $ appropriated by Congress ▪ CONGRESS MUST TAX FOR REVENUE AND NOT MERELY REGULATORY PURPOSES, AND SPEND FOR GENERAL WELFARE – NATIONAL, NOT LOCAL, CONCERN - But, S.Ct. allows great deference to legis. to decide what is for “COMMON BENEFIT” ▪ Helvering v. Davis – 1937 – Social Security Act provisions upheld, largely by ascribing wide latitude to congress’l determination of nat’l interest ▪ US v. Butler – 1936 – Congress may not use its taxing & spending powers to operate a selfcontained program regulating agricultural production
- power of congress to authorize expenditures of public $ for public purposes is not limited by direct grants of legis. pwr. found in const., but it does have limits. Appropriations can’t be made as means to unconst’l end

- Agricultural production regulation ≠ power granted to Congress, it = left to states - One of the last of the series of cases striking down parts of the new Deal ▪ THIS WOULD LIKELY PASS NOW (wouldn’t be held to be purely local concern) ▪ Steward Machine Co. v. Davis – 1937 – Congress may reduce private employers’ federal tax obligations by crediting payments made only to federally approve state plans. - SS Act provides for fairness by not permitting states w/ security plans to be penalized by double taxation on their business that would result if there were no credit for pmts. to these st. plans. Legislative Taxing & Spending Power (3 of 3) ▪ South Dakota v. Dole – 1987 – Congress may refuse to provide fed. hwy. funds to states that do not adopt fed. age stds. For the sale of alcoholic beverages. ▪ Congress has power to impose conditions on the receipt of fed. funds even to obtain objectives it might not be able to attain directly ▪ Limitations on Spending Powers 1. Must be in pursuit of “the general welfare” 2. Any conditions must be unambiguous, so states may make knowing choices 3. Conditions must be related to the federal interest in particular national programs 4. Conditions must not be barred by other independent constitutional provisions. ▪ Statute @ issue meets 1-3, but 4th is in question (π claims it is barred by 10th Amendment) - But, independent const. bar limitation does not mean that congress may not indirectly achieve objectives it could not achieve directly - #4 means that Congress may not induce states to engage in otherwise unconstitutional behavior (a state can constitutionally raise it’s drinking age)

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Foreign Affairs Power ▪ External/Foreign Affairs Power  Exclusive Fed. Power (not concurrent w/ states) ▪ Art. II, § 2 – President to make treaties + 2/3 Present Senators’ concurrence ▪ Missouri v. Holland – 1920 – Bird treaty w/ Canada challenged by MO – Congress may implement a U.S. treaty to create regulations that would be unconstitutional if the Act stood alone. ▪ Tenth Amendment is not a limitation on treaty power - Under a treaty, Congress may legislate on matters that it otherwise would have no power over - Statute made to implement the treaty is const.’l b/c if treaty = valid, then statute is valid b/c N&P ▪ Supremacy Clause – treaties become supreme law of the land when made under authority of the U.S. (as opposed to Acts of Congress that become supreme law of the land only when made pursuant to the const.) - This raised the possibility that treaties could impinge upon Constitutional Rights, BUT Reid v. Covert – 1957 – a treaty could not confer power upon Congress ≠ provided for in Const.

Intergovernmental Immunities (1 of 3) ▪ McCulloch v. MD – 1819 – Federal government is supreme over states so that bank created by it pursuant to its const. powers is immune from taxation by the states. - Const. & laws made in pursuance thereof = supreme & even controls laws and constitutions of states - A state, which represents only a part of the people of the nation, cannot act to control the whole govt. ▪ GAVE WIDE SCOPE TO THE SUPREMACY CLAUSE – a state law is VOID if it retards, impedes, burdens, or otherwise interferes w/ accomplishment of congressional purpose in enacting fed. law ▪ State Immunity from Fed. Taxes: based on reciprocity, most state functions/activities were exempted from fed. taxation, such immunity Now Restricted ▪ Early Cases – immunity was reciprocal (Collector v. Day – 1871 – state judge’s salary = immune from fed. income taxation – but this was reversed in Graves v. NY ex rel. O’Keefe - 1939) ▪ As states began to undertake functions resembling business enterprises more than sovereign activity, cts. began restricting state immunity (ex: State employees of bi-state corp. formed to build & manage tunnels & bridges req’d to pay fed. incomes tax on salaries – Helvering v. Gerhardt – 1938) ▪ Federal Tax Levied on ALL states is valid if… 1) ≠ discriminate, 2) ≠ unduly interfere w/ or substantially burden traditional state functions,& 3) ≠ apply to revenue uniquely capable of being earned only by one state (sale of mineral water – NY v. U.S. – 1946) Intergovernmental Immunities (2of 3) ▪ User Fees - fed govt may impose fee on states benefiting from a fed. program IF the fee is 1) nondiscriminatory, 2) based on fair approximation of use, & 3) not structured to produce revenue exceeding total cost of benefits conferred - Massachusetts v. U.S. – 1978 – Ct. upheld annual registration tax on all civil aircraft flying in navigable airspace of U.S. including aircraft owned by a state & used exclusively for police functions ▪ State Immunity From Fed. Regulation: S.Ct.’s interpretation of CC has made congressional choices the primary determinant of the scope of national regulation - 1st decision in 40 years to hold fed. law unconst’l for exceeding commerce power was National League of Cities v. Usery – 1976 – and it has since been overruled by Garcia - In Usery, Ct. struck down amendments to Fair Labor Standards Act - Congress interfered w/ integral state govt. functions b/c amendments would have displaced state policies regarding manner in which states chose to deliver services their citizens req’d ▪ Garcia v. San Antonio Metropolitan Transit Auth. – 1985 – Congress may enforce minimum wage & overtime req’mts against local govts.’ mass-transit authority ▪ State Immunity from Fed. Regulation under CC – under Hodel (1981) 1) fed. stat. must regulate states as states, 2) stat. must address matters that are indisputably attributes of state sovereignty, 3) state’s compliance w/ fed. reg. must directly impair its ability to structure integral operations in areas of traditional govt’l functionsa(struck in Garcia 5-4 decision though); & 4) Relation of st. & fed. interests must not be such that nature of fed. interest justifies state submission

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Intergovernmental Immunities (3of 3) ▪ Limits on Congressional Authority ▪ NY v. U.S. – 1992 – provision of act requiring any state failing to regulate waste accd’g to stds. By 1996 must take title generated w/in borders & become liable for all dmgs. Incurred by st.’s failure to take title promptly = unconstitutional b/c Congress may not “commandeer” states by compelling them to enact a federal regulatory program ▪ Printz v. U.S. – 1997 – Brady handgun act req’d local law enforcement officers to conduct background checks, but Congress cannot compel state officers directly to enforce a fed. regulatory program - need consent of states; Congress has power to regulate individuals but NOT states ▪ Reno v. Condon – 2000 – S.Ct. unanimously found Congress has authority to limit disclosure of drivers’ info by st. authorities b/c info. personal info. gathered by state DMVs is “thing in interstate commerce”

Separation of Powers ▪ Const. provides for Sep. of Pwrs. but gray areas exist where responsibilities are shared to some extent ▪ Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case) – 1952 – The president may not, acting under the aggregate of his constitutional powers, exercise a lawmaking power independent of Congress in order to protect serious national interests. - Seizure is too far removed from theater of war; no relevant law to execute; Congress had previously & specifically expressed its will on subject, so President’s inherent legislative powers to act in preserving nation could not overcome lack of absence of any provisioin passed by Congress purporting to deal w/ the situation ▪ Dames & Moore v. Regan – 1981 – The president may, in response to national emergency, suspend outstanding claims in American courts. - Steel Seizure Case – exercise of exec. pwr = closely related to Cong. action; executive power is greatest when exercised pursuant to congressional authority (as here, the IEEPA – International Emergency Economic Powers Act) & weakest when done w/out will of Congress - holding limited to narrow facts

Congressional Action Affecting Presidential Powers ▪ Mistretta v. United States – 1989 – Congress cannot delegate its legislative powers to another branch of govt. - BUT S.Ct. has allowed Congress to delegate rulemaking power to executive agencies ▪ Ex: Yakus v. U.S. – 1944 – Ct. upheld delegation by Congress to an executive branch price administrator the auth. to estab. max prices & rents ▪ Such delegations are uypheld as long as Congress provides an intelligible principle that rulemakers must follow ▪ INS v. Chadha – 1983 – Congress may not employ the legislative veto device to oversee delegation of its constitutional authority to the executive branch ▪ S.CT. MADE BROAD-SWEEPING RULE AGAINST LEGIS. VETOES ▪ There are only 4 instances in the U.S. Constitution where either house may act alone ▪ Impeachment ▪ Trial after impeachment ▪ Ratification of Treaties ▪ Conf. of Pres. Appts. ▪ Re: efficiency of legislative veto – efficiency ≠ overriding value behind the const. ▪ Clinton v. NY – 1998 – Congress may not grant the President a line item veto under Art. 1, § 7 that allows the president to cancel legislation after it is duly enacted and signed - Suspension power in Field v. Clark – 1892 – is different from cancellation power b/c exercise of SP depended on conditions not existing when act was passed (S.Ct. upheld Tariff Act giving Pres. this power b/c duty to suspend under specified circumstances & he was executing Congressional policy)

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Appointments Power (1 of 2) ▪ Art 1, § 2 – Pres. May appoint with the consent of the Senate, ambassadors, consuls, Justices of the S.Ct. and all other officers of the U.S. whose appointments are not otherwise provided for. ▪ Limitation ▪ Buckley v. Valeo – 1976 – Fed. Election Comm. Estab’d bu Fed. Election Campaign Act = unconst’l b/c commissioners, who were appt’d by Congress were exercising “executive powers” making them officers of the U.S. whose apptmt. = subj. to Appointments Clause. If exercising “executive powers” then subject to appointments clause (Pres. Appts. w/ Senate consent) ▪ Bowsher v. Synar – 1986 – Congress may not assign to the Comptroller General the function of determining which accounts of the federal budget must be cut to meet deficit targets. - Congress has a role in appointments, but const. ≠ give Congress an active role in supervising such officers – it can limit President’s powers of removal but ≠ assign that power to itself ▪ Congress can only grant its powers – Congress cannot execute laws so it cannot grant to an officer under its control the power to execute laws

Appointments Power (2 of 2)
▪ Morrison v. Olson – 1988 – Congress may provide for judicial appointment of independent counsel for purposes of investigating and prosecuting federal criminal offenses - Act allowed Atty. Gen to report to Special Division (created by Act) & if necessary, indep. counsel = appt’d ▪ 2 Kinds of officers – Principal and Inferior (if Δ = P, then Act is unconst’l) P = selected by president accd’g Appts. Clause (selected by Pres. + consent of Sentat) I = Congress may allow to be appt’d by Pres. alone, by heads of depts., or by judiciary

▪ Principal v. Inferior Oficers – Considerations… ▪ Δ may be removed by higher executive branch official despite having independent powers ▪ Δ’s auth. = ltd. to specified, ltd. duties. Δ ≠ policymaking auth. & must comply w/ DOJ policies. ▪ Δ’s office is ltd. in juris. to terms of apptmt. Also, ltd. in tenure; does not extend beyond task given. ▪ Δ = inferior officer ▪ Mistretta v. U.S. – S.Ct. upheld creation of U.S. Sentencing Commission as independent commission in Judicial Branch, appt’d by Pres. B/c judiciary has traditionalrole in sentencing, judicial involvement on commission was not incongruous (inconsistent).

War Powers ▪ Interplay & Exact Scope of Exec. v. Legis. Powers in this area are NOT CLEAR ▪ Pres. = Commander In Chief, but only Congress has the power to initiate/declare war ▪ Until Pres. T. Roosevelt sent troops into Panama in 1903, Presidents did not initiate military action vs. foreign states w/out Cong. appv’l (& in WWII – troops sent w/out Congressional action (Korea & Lebanon)) - Each branch has been free to take initiatives to make national policy in this area ▪ BASIC ISSUE  Whether the Pres. has power to use armed forces vs. foreign nation w/out Congressional authorization. ▪ United States v. Curtiss-Wright Export Corp. – 1936 – Congrss may delegate legislative-type power to the Pres. to conduct national affairs. ▪ Since fed. power is exclusive in this realm (states ≠ have concurrent power), Congress may delegate much broader power to the President for conducting foreign affairs than it can for domestic. ▪ War Powers Resolution – 1973 (50 U.S.C. §§ 1541-1548) – Spells out Pres. authority to use armed forces – If President uses aremed forces in foreign nations unders pecificed conditions w/out a congressional declaration of war,he must formally report to Congress. In the absence of congressional action ,the forces must (in most cases) be removed w/in 60 days. (constitutionality hasn’t been considered by S.Ct.) ▪ Campbell v. Clinton – 2000 – Members of Congress may NOT bring suit vs. Pres. for an alleged

violation of War Powers Resolution. (Concurrence (D.C. circuit) this = nonjusticiable & no const’l test exists for “what is war”)

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Privilege & Immunity (1 of 3) Executive Privilege ▪ Not mentioned in Const., but a privilege has been recognized to protect against the disclosure of presidential communications made in the exercise of executive power - Privilege derives from Separation of Powers doctrine & inherent need to protect confidentiality of high-level communications ▪ Pres’l communications re: military, diplomatic, or national security secrets are given utmost deference by cts. ▪ Other presidential communications are only presumptively privileged ▪ United States v. Nixon – 1974 – Executive immunity does NOT give the President an absolute, unqualified general privilege of immunity from judicial process under all circumstances. (Watergate Tapes) - Legitimate judicial needs may outweigh a blanket presidential privilege. ▪ BALANCING TEST: Fair and complete presentation of evidence in criminal trial v. privilege ▪ Nixon v. Administrator of General Services – 1977 – The ex-president may not prevent Congress from regulating the disposition & use of presidential documents by claiming executive immunity. (privilege survives presidential tenure but succeeding Presidents’ opinions bears directly on need to exercise privilege.) Privilege & Immunity (2 of 3) Executive Immunity ▪ Not mentioned expressly in Const. & case law seems to reject any implied immunity under Separation of Powers doctrine ▪ Nixon v. Fitzgerald – 1982 – Absent explicit Congressional action, Pres. = absolutely, rather than qualifiedly, immune from civil liability for his/her official acts. Whistleblower was fired from Dept. of Defense and tried to sue the president. - Proper protection against presidential misconduct is constitutional remedy of impeachment. - Prominence of pres. puts him at target for numerous suits for civil damages ▪ Clinton v. Jones – 1997 – A claim by a private citizen against a president , based on actions allegedly taken before his term began, need not be deferred until the expiration of the President’s term of office. (Jones’ sexual harassment vs. Clinton could commence while Clinton was still president) - Outcome of case ≠ affect scope of official powers of exec. branch; president ≠ above law (amenable to them in private character as citizen and in public character by impeachment) ▪ Harlow v. Fitzgerald – 1982 – presidential aides receive only qualified immunity (absolute immunity is available to such aides where responsibilities of their office include such a sensitive function that such immunity is req’d & the liab. claim is based on performance of that protected function) Privilege & Immunity (3 of 3) Congressional Immunity Under Speech/Debate Clause – Art. 1, § 6 states that Senators & Representatives “shall not be questioned in any other place” for “any Speech of Debate in either House.” ▪ Forbids criminal or civil proceedings vs. members of congress for legislative acts (occurring in regular course of legislative process and/or motivation for those acts) Presidential Impeachment – 2 presidents have been impeached (House) and tried (Senate) (Andrew Johnson in 1868 and William Clinton in 1999) ▪ Matters regarding congressional impeachments involve nonjusticiable political questions - Whether the definition of impeachable offenses includes conduct besides statutory criminal offenses or whether it includes every criminal offense, is left to jdmt. Of Congress) ▪ Roles (House to impeach & Senate to try case) & appropriate sanctions in the event of conviction are left to the discretion of the respective houses

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State Power to Regulate (1 of 14)
▪ Modern approach to CC – Congress has absolute power over interstate commerce, but they may permit a state to exercise this power or may prohibit them from doing so ▪ When congress has, in fact, acted to prohibit state regulation, it has Preempted the Field - Even when congress has not acted, the very existence of the CC forbids state regulation that places an unreasonable burden on IC ▪ States may regulate local transactions even though they affect interstate commerce, subject to certain limitations. ▪ Absence of Federal Regulation ▪ Gibbons v. Ogden – 1824 – Marshall – regulation of IC is an exclusive federal power - Const. allows state power to inspect goods for health & safety, but these laws do not derive from a power to regulate commerce - Even though affecting commerce, laws’ existence does not imply that the states can directly regulate interstate commerce ▪ Cooley v. Bd. Of Wardens – 1851 – Congress may permit the states to regulate aspects of commerce that are primarily local in nature. Reg. of pilots = clearly a reg. of comm..; if Congress’s power to reg. comm.. is exclusive, then Act of 1789 couldn’t confer power upon states to regulate pilots. Correct approach = looking to nature of subjects of power (not nature of power itself). When subj. = national best way to handle is w/ one uniform system. Local subj. is best handled by states. Act of 1789 manifests the understanding of Congress that the nature of this subject (pilotage of local ports) doesn’t require exclusive legislation. (widely ignored opinion @ time, revived in 1869 in Paul v. VA)

State Power to Regulate (2 of 14) ▪ Negative Implications – Cong. may validate st. laws regulating commerce that, in the absence of such consent, would violate CC. ▪ Wilson Act ▪ Leisy v. Hardin – 1890 – before passage of Wilson Act, S.Ct. invalidated IA law prohibiting sale of liquors as applied to Illinois-brewed beer that was sold in original pkg in IA ▪ Wilkerson v. Rahrer – 1891 – after passage of Wilson Act, S.Ct. held that a st. may apply its prohibition laws to sales of intoxicating liquors in the original packages ▪ After passage of McCarran Act in 1945, which deferred & ltd. the applicability of antitrust laws to the ins. business, Ct. held that Act validated state taxes that were discriminatory and invalid under CC decisions. ▪ Prudential Ins. Co. v. Benjamin – 1946 – π NJ co. objected to continued collection of tax of 3% of premiums recv’d from business done in SC, when SC corporations were not similarly taxed. ▪ Regulation of INCOMING Trade – If Congress ≠ acted, states can regulate any phase of local business, even though such regulations may have some effect on IC as long as they don’t 1) discriminate or 2) impose unreasonable burden(s) upon IC. ▪ Requiring Businesses to operate w/in the state to develop state’s economy. Valid under CC so long as it 1) doesn’t burden IC & 2) is necessary to promote a valid state purpose - Protecting business against out-of-state competition is NOT a valid state purpose (but there may be other valid reasons for excluding out-of-state products)
▪ Promotion of Health & Safety (Regulating Incoming Trade) ▪ Quarantine & inspection laws enacted to protect public health  valid if they 1) do not discriminate against or 2) unreasonably burden IC. – Hannibal & St. Joseph RR v. Husen – 1877 ▪ A local statute requiring cattle or meat imported from other states be certified as free of disease by state of origin has been upheld. Burden on IC caused by supplying such a certificate was outweighed by public health objectives. – Mintz v. Baldwin – 1933 ▪ Although a valid “public health” purpose, state law requiring local inspection of slaughterhouses prior to slaughter of livestock destined for local consumption has been held unconstitutional b/c it discriminates against out-of-state slaughterhouses. – MN v. Barber - 1890 ▪ Protection of Resources ▪ State laws enacted to protect local, publicly owned natural resources are traditionally proper exercise of state’s police power and are usually upheld. S.Ct. tends to “balance interests” in favor of such regulations. – Pike v. Bruce Church, Inc. - 1970 ▪ Baldwin v. G.A.F. Seelig, Inc. – 1935 - A state may not protect intrastate producers against low-cost out-of-state competition to assure an adequate and safe supply of an essential commodity. ▪ Direct v. Indirect evaluation is irrelevant when purpose is to suppress competition btwn. the states ▪ States may properly impose regs. to assure health, but not WEALTH. ▪ Use of tax by consumer’s state upheld, even where sales tax has been previously levied the same transaction at the time of purchase outside the state, as long as credit is given for sales tax paid. Henneford v. Silas Mason Co. - 1937

State Power to Regulate (3 of 14)

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State Power to Regulate (4 of 14) ▪ Dean Milk Co. v. Madison – 1951 – A local statute that has a valid purpose but discriminates against IC cannot be upheld if there are nondiscriminatory, yet effective, alternatives. - Ordinance prohibiting sale of pasteurized milk unless processed at an approved plant w/in 5-mile radius of downtown & other req’mts had valid purpose & was within scope of local power (no fed. reg. exists), but regulation had discriminatory effect on IC & reasonable alternatives were available. ▪ Breard v. Alexandria – 1951 – State regulation of door-to-door salesmen that prohibits sales of goods shipped in interstate mail is constitutional as long as it prohibits sales of all goods by such means (doesn’t discriminate). Protection of social welfare = valid objection. ▪ Hunt v. Wash. State Apple Advertising Commission – 1977 – A local statute that has valid, goodfaith purpose but burdens IC must actually achieve its stated purpose in order to be upheld against a CC challenge. When discrim. is shown, burden shifts to state to justify regulation in terms of 1) local benefits flowing from statute & 2) unavailability of non-discriminatory alternatives. ▪ West Lynn Creamery, Inc. v. Healy – 1994 – A state law that imposes a tax on in-state AND outof-state dealers alike, but then distributes the tax proceeds back to the in-state dealers only is unconstitutional. – S.Ct. has consistently struck down state laws imposing protective tariffs that tax imported goods. Such a tax allows in-state dealers to better compete w/ out-of-state producers who offer a product at a lower cost. Although tax = evenhanded, tax paid by consumer state is offset entirely. Result = same as if protective tariff (out-of-state item = more expensive, local dealer benefits) State Power to Regulate (5 of 14 )

▪ Regulation of OUTGOING Commerce – States have also occasionally req’d that their own products be processed w/in the state before being exported. (such regulations haven’t been upheld) ▪ HP Hood & Sons, Inc. v DuMond – 1949 – A state may not suppress interstate shipment of local products as a means of protecting the health & safety of its people. – Impermissible attempt to advance state’s own purely commercial interests by curtailing mvmt. of goods in IC ▪ POLICE POWER ≠ EXTEND TO SUPPRESSION OF COMPETITION ▪ S.Ct. upheld law req’ing min. amt. by pd. to local producers of milk Law attempted to regulate essentially local problem, only a small fraction of milk brought in-state was shipped out = main business affected by regulation was not IC. – Milk Control Board v. Eisenberg Farm Products – 1939 ▪ More compelling state interest = more regulation tolerated ▪ S.Ct. may consider state regulation also furthers nat’l policy/interest -Congress not yet acted in this area ▪ Parker v. Brown – 1943 – S.Ct. upheld state mkt’g program regulating sale of local-grown raisin crop (95% entered IC), emphasizing that state program coincided w/ congressional policies regulating Agriculture during war and raisin production involved essentially local problems. ▪ State laws imposing min. prices on sale of local nat. resources = upheld as proper “conservation” regs.

▪ State law fixing min. prices of all gas taken from local fields = proper measure for conservation although most of the gas was shipped in IC – Cities Service Gas Co. v Peerless Oil & Gas Co. - 1950 ▪ Pike v. Bruce Church, Inc. – 1970 – IF ST. HAS LEGIT. LOCAL PURP. FOR REGULATING & EFFECTS ON
IC = ONLY INCIDENTAL, REG. WILL = UPHELD UNLESS BURDEN = CLEARLY EXCESSIVE IN RELATION TO LOCAL BENEFITS

State Power to Regulate (6 of 14 ) ▪ Regulation to Protect Environment & Preserve Natural Resources - Philadelphia v. NJ – 1978 – A state may not prohibit importation of environmentally destructive substances solely b/c of their source of origin. Reason may be legit., but evils of protectionism is still there. Δ failed to show valid reason for discrimination. ▪ Quarantine Laws – exceptions to general CC rules, but doesn’t apply here b/c QL’s merely prevent traffic in noxious articles, regardless of origin. No harm from mere mvmt. of waste into NJ’s borders. Can’t tell difference in PA and NJ waste. ▪ MN v. Clover Leaf Creamery Co. – 1981 – A state may enact a statute that does not, on its face, discriminate against IC but that does cause a shift in an industry from a predominant out-of-state location to a predominant in-state location. Rational Basis test applied – Δ’s law banning retail sale of milk in plastic, nonreturnable, nonrefillable containers is rationally related to its conservation interests & does not deny EP. Ban applies to ALL plastic container mfg’rs. There is an incidental burden but it is not “clearly excessive.” ▪ Hughes v. OK – 1979 – A state may not prohibit, as a conservation measure, transportation beyond its borders of natural wildlife captured w/in the state. Geer v. CT – 1896 – overruled & state regulation of wild animals must be considered pursuant to same test that pplis to regulation of other natural resources ▪ Consider – 1) Whether the regulation actually discriminates against IC, 2) whether it serves a legitimate local purpose, and if so, 3) whether alternative, less discriminatory means would be as effective

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State Power to Regulate (7 of 14) ▪ CTS Corp. v. Dynamics Corp. – 1987 –A state may adopt an anti-takeover statute that has the effect of making it more difficult for out-of-state entities to take control over a state’s corporations. – CC’s principal focus is to prevent state discrimination against IC. Indiana’s statute ≠ discriminate b/c it applies equally to domiciliaries of IN who make tender offers as well as nondomiciliaries. It is immaterial that most tender offers are made by out-of-state entities. - CC = also concerned w/ statutes that subj. IC to inconsistent activities, but IN’s stat. ≠ present this prob. b/c only applies to corps st. has created, & no other state can reg. voting rights of IN corp. - Statute protects shareholders by letting them decide whether a change in mgmt. would be desirable. ▪ This case retreats from balancing approach used in Pike & subsequent cases.

▪ Traditional State Reg. of Transportation - where the subj. matter is traditionally subj. to local reg., SCt. is more likely to allow state regulation. Transportation = one of most highly regulated areas. ▪ To be constitutional, state regulation must not violate these principles…  Subj. matter must not inherently require uniform national regulation. – Wabash, St. Louis & Pacific Railway Co. v. Illinois – 1886  St. reg. must not discriminate against IC so as to “substantially impede” the free flow of commerce across state lines – Seaboard Air Line RR Co. v. Blackwell – 1917  State interest underlying reg. must not be outweighed by burden on IC – ie: “balance of interests” favors state as opposed to national interest - State’s interest in public safety & welfare, where such is predominant purpose of state law, may justify obstruction of IC. Bradley v. Public Utilities Commission -1933 – a state could restrict Interstate truckers where the high way was already so badly congested by traffic that the proposed service would create excessive traffic hazard - While state interests in protecting public health & welfare are given considerable weight, a state’s interest in controlling competition is NOT. Buck v. Kuykendall – 1925 – a state could not deny an interstate carrier a permit to use its highways simply b/c state determined territory was already adequately served ▪ Southern Pacific Co. v. AZ – 1945 – In balancing effect of a state reg. on IC against state’s safety & welfare interests, a court may consider the efficacy of the reg. in furthering the state’s interest. ▪ St. law may violate CC if it unreasonably burdens IC w/out an offsetting state safety benefit ▪ Modern Approach to Transportation Regulation ▪ Kassel v. Consolidated Freightways Corp. – 1981 – The courts may examine evidence to determine whether a state’s purported interest in safety is real & substantial enough to justify applying its police power to burden IC. ▪ CFC challenged IA statute that, like WI’s law in Raymond Motor Transportation, Inc. v. Rice – 1978 – prohibited use of 65-foot double trailers on IA hwys, w/ certain exceptions. IA (Kassel) defended law as reasonable safety measure in light of Raymond. ▪ A state cannot avoid CC attack merely by invoking public health or safety. Courts are req’d to balance the state’s safety interest against the federal interst in free interstate commerce. ▪ Despite “special deference” usually give to st. hwy. safety regs. and IA’s effort to support safety rationale – the record is no more favorable to IA than was WI’s evidence in Raymond. ▪ IA’s law SUBSTANTIALLY BURDENS IC, so it = unconst.’l. ▪ Burden of Proof – when the challenged reg. significanty burdens IC, the state must meet a heavy burden based on its interests. - Bibb v. Navajo Freight Lines – 1959 – a state may not impose even nondiscriminatory safety regs. that conflict w/ the regulations of most other states where the asserted safety advantages are at best negligible. - Bibb involved mudguards; 45 states permitted conventional straight mudguards, but Illinois req’d use of contour mudguards. Substantial burden on IC ≠ be justified by any compelling state safety considerations

State Power to Regulate (8 of 14)

State Power to Regulate (9 of 14)

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▪ State as Market Participant – S.Ct. has recognized an exception to the normal CC restrictions on state regulation when the state itself becomes a participant in the market. Proper scope = subj. of much debate. ▪ Hughes v. Alexandria Scrap Corp. – 1976 – Ct. permitted MD to impose req’mts on out-of-state junk-car processors than it imposed on in-state. Bounty collected  improve environment in MD. MD didn’t attempt to prohibit flow of junk cars - merely entered mkt. to bid up the value of MD junk cars, this activity = const’l. MD = marketplace participant, not a market regulator, so CC ≠ applicable. ▪ Reeves, Inc. v. Stake – 1980 – A state that itself produces cement may limit sales only to its own residents in a time of shortage. Hughes’ articulation of states as mkt participants v. regulators makes good sense & is sound law. - Const. sets no limits on state power to operate freely in free market - especially true where, as here, the state has acted as a sovereign in meeting the needs of its residents. ▪ Preference for resident buyers is not protectionist, but merely a means of serving its citizens. Nor is a natural resource at stake, so no danger of resource hoarding ▪ South-Central Timber Development, Inc. v. Wunnicke – 1984 – When it sells its own natural resources, a state may not impose post-sale obligations on the purchaser. AK’s requirement that all lumber purchased in their state be processed before being exported = unconstitutional, b/c the CC limits power of states to impose substantial burdens on IC w/out Congressional authorization. No indication here that Cong. intended to give such power to AK. – Distinguish this case from Reeves – Here… foreign comm. = restrained, st. = selling natural resource, & st. imposes restrictions on resale. CC scrutiny must be more rigorous b/c of these factors. (con’t on 11) State Power to Regulate (11 of 14 ) state to impose burdens on commerce w/in mket. in which it participates. AK went too far imposing conditions having subs’l reg. effect outside mkt it entered.Activity ≠ fall w/in MP exception - Protectionist nature of AK’s program = interference w/ IC & foreign commerce in violation of CC. ▪ Privileges & Immunities - Art. IV, § 2, Cl. 1 - “Citizens of each state shall be entitled to all P’s & I’s of citizens in the several states” ▪ Prohibits discrimination by a state vs. noncitizens (or nonresidents) of the state w/ respect to “essential activities” or “basic rights,” unless justified by substantial reason. State must show 1) that nonresidents = peculiar source of evil sought to be avoided, & 2) discrimination bears a substantial relationship to problem ▪ Hunting – a state may can charge nonresidents more than residents for permit ($225 & $39) – Baldwin v. MT Fish & Game Commission – 1978 ▪ If state’s discriminatory scheme = overbroad, it ≠ withstand scrutiny under this clause. Hicklin v. Orbeck – 1978 – hiring preference for residents = overbroad solution for unemployment b/c preference extended to residents ≠ having problem of unemployment ▪ United Bldg. & Const. Trades Council v. Mayor of Camden –1984– The P&I clause applies to municipalities requiring contractors to hire municipality’s own residents to work on their construction projects. – need substantial reason for difference in treatment to be valid; π must 1st show that ordinance burdens P&I protected by the clause. Opportunity to seek employment = fundamental privilege protected by clause. Remand to find merit of Δ’s reasons for discrimination.

State Power to Regulate (10 of 14 )

-

(S.Central Timber – con’t) Fact that st. acted through K ≠ enough – MP doctrine must be ltd. to allowing a

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State Power to Regulate (12 of 14) State Power to Tax – Const. ≠ expressly recognize or reject state’s power to tax IC, except to extent that it vests the power to regulate or destroy in Congress, so S.Ct. examines carefully st. taxes on IC to determine their true nature & effect. While IC must pay its own way, Ct. has to balance state’s right to secure revenue vs. strong nat’l interest in protecting free flow of commerce from state to state & preventing state reg. (through taxation) of any area of commerce that requires uniform national regulation. ▪ 14th Amend. – DP & EP problems arise w/ state taxation of IC w/ regard to jurisdiction. Taxing state must have a sufficient relationship to subj. matter taxed (“minimum contacts”) so subj. matter may be deemed to have a tax situs or nexus in taxing state. ▪ CC – Requires 1) tax not discriminate against IC in favor of IC, 2) tax not be an unreasonable burden upon IC, & 3) tax ≠ result in multiple tax burdens (double taxation) ▪ Import-Export Clause – Art. I, § 10, Cl. 2 provides “No state shall, w/out consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws.” – This = absolute ban ▪ Types of Taxes – Variety; ea. has it’s particular probs., but similar constitutional considerations apply to each ▪ Ad Valorem Property Tax – based upon property value; may be imposed on property used to transport goods interstate (instrumentalities of commerce) – ex: RR cars, boats, or planes – and also may be imposed on goods either before IC begins or after it ends – never while goods are in transit ▪ “Doing Business” Tax – Mere privilege of doing business may be taxable. States commonly impose income taxes on businesses, based on % of revenue earned in taxing state. Other “doing business taxes include privilege, occupation, license, & franchise taxes – could be % or flat fee. (con’t on 13)

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State Power to Regulate (13 of 14)
(Tupes of Taxes – con’t)

▪ Sales & Use Tax – Sleas taxes imposed upon transactions taking place in taxing state. Use taxes imposed upon use of goods purchased out of state then imported. Use tax compensates for loss of sales taxes and deters residents from buying outside the state to just avoid the sales tax. ▪ Severance Tax – Tax on severance or extraction of minerals from state b/c once gone, can’t be replaced. ▪ Hwy & Airport Use Tax – Public commercial facilities that must be maintained by state may be taxed, so long as tax is fair compensation for use of facility. ▪ Spector Motor Service v. O’Connor – 1951 – state cannot apply its franchise tax to transportation co. that did not make deliveries in the state, even if tax was imposed only on co.’s net income attributable to business activities w/in the state. Privilege of doing interstate business in a state could not be taxed, although state could impose tax for use of its hwys. ▪ Complete Auto Transit, Inc. v. Brady – 1977 –A state tax levied on an interstate business for the “privilege of doing business” w/in the state is not per se unconstitutional. - overturned Spector ▪ CAT TEST – Relevant considerations for future cases are… 1. Nexus w/ Taxing State - Is the activity sufficiently connected to the state to justify a tax? 2. “Fairly Related” – Is the tax fairly related to benefits provided by state to taxpayer? 3. Non-Discriminatory – Does the tax discriminate against IC? 4. “Fairly Apportioned” – Is the tax fairly apportioned? - Although not specifically mentioned, S.Ct. continues to recognize that the practical effect of multiple taxation may be to impair IC. Cumulative tax burdens can be discriminatory. State Power to Regulate (14 of 14 ) ▪ Commonwealth Edison Co. v. MT – 1981 – States may provide for their own fiscal needs by imposing a high severance tax upon its unique state resources, the primary incidence of which falls on out-ofstate consumers – Severance tax ≠ immune from CC scrutiny just b/c it affects goods prior to entry into stream of IC – Must satisfy CAT Test ▪ Fair Apportionment – attributed to both DP and CC ▪ Container Corp. v. Franchise Tax Board – 1983 – A state may apply its unitary business & formula apportionment tax laws to foreign subsidiaries of a corp. doing business w/in the state. ▪ State ≠ tax income earned outside its borders, but b/c of imprecision of formal accounting, states = permitted to use formulas to apportion business income. Unitary business formula is used by most states & is constitutional. - 2 distinct aspects of formula: ▪ The “unitary business” concept requires that the out-of-state activities be related in a concrete way to the in-state activities, as opposed to being a mere investment or a distinct business. Some part of the unitary business must be conducted w/in the taxing state. ▪ Formula used to apportion income must be fair – both internally and externally consistent – and must not discriminate against IC or foreign commerce. ▪ Internally – if every juris. used it, no more than all of the unitary business’s income would be taxed ▪ Externally – formula must reflect reasonable sense of how income is generated Substantive Protection of Economic Interests (1 of 8) ▪ Development of Substantive Due Process ▪ Calder v. Bull – 1798 – S.Ct. refused to set aside state legislative action that overrode a judicial probate proceeding – Justices Chase & Iredell differ on nature & origin of Legis. Power Chase – L action is ltd. by social compact that gave L its power (cts. should be able to appeal to natural rights in making const’l decisions) Iredell – Const’l limitations are the only restraint on legis. Action – no reason why cts. should be able to define and apply natural law better than the L ▪ Barron v. Baltimore – 1833 – B of R’s ≠ accord U.S. citizens protection from state gov’t actions - BofR’s only applicable to creating instrumentality – Federally created, thus federally applicable only ▪ State Constitutional Law – most state consts. contain a clause referring to “due process” or “law of the land” – although meant to estab. method of legal procedure, they began to be used to invalidate legislation ▪ Wynehamer v. People – 1856 – NY ct. held a state prohibition statute unconst’l on DP grounds as applied to liquor already owned when statute was enacted

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Substantive Protection of Economic Interests (2 of 8) ▪ 14th Amend. Considerations – 5th Amend. DP merely assured fair leal procedures & applied only to fed. govt. SDP under 14th Amend.’s DP Clause specifically prevents any state from depriving any person of life, liberty, or property w/out DP of law. 14th Am. was adopted to prevent racial discrimination, but braoad lang. used encouraged lawyers to try using it as a restriction on state reg. of business, not merely to attack procedures used, but also to attack substantive fairness of the regulations ▪ Slaughterhouse Cases – 1873 – The Civil War amendments DO NOT grant U.S. citizens braod protection against the actions of state govts. - Strict interpretation of Civil War Amendments – historical setting evaluated – “involuntary servitude” is restricted to personal, not servitude attached to property - 14th Amend. Distinguishes btwn. citizenship of states vs. U.S. – Const. ≠ control power of st. govts over R’s of their own citizens except to require a st. grant equal rights to its own & other states’ citizens - EP clause of 14th Amend. Is intended primarily to prevent state discrimination against blacks – only Congress can extend the scope ▪ Development of Substantive Due Process (SDP) - State cts. were first to accept arguemtns in favor of some sort of SDP ▪ Munn v. Illinois – 1876 – S.Ct. held that DP clause DOES protect private property, but a state may control such property if it is “affected w/ a public interest,” so that a state could set maximum storage chgs. at central warehouse (con’t) Substantive Protection of Economic Interests (3 of 8)
(Development of SDP – con’t)

- Eventually, S.Ct. began to scrutinize substantive rights affected by legis. b/c there existed “fundamental rights” that were entitled to judicial protection ▪ Allgeyer v. LA – 1897 – S.Ct. invalidated st. law prohibiting insurance for LA property by any co. not licensed to do business in LA b/c statute deprived π of his liberty to contract, w/out DP of law ▪ SDP – w/ Lochner (supra), the S.Ct. applied following concepts of DP - Ends or purposes – Is the purpose of legislation legitimate, appropriate or necessary? Did the law promote in some way the health, safety, welfare, and/or morals of the people? - Means – Were the means used to accomplish the legislation’s purpose reasonable & appropriate? – Was there a real and substantial relationship btwn. the means used and legitimate end? - Effect – What was the effect of the law on the liberty & property of the parties involved. If effect = too drastic, then law violated DP. ▪ Lochner v. NY – 1905 – A state cannot generally prohibit private agreements to work more than a specified number of hours. ▪ general right to K = clearly part of individual liberty protected by the 14th Am. ▪ BUT R to hold both property & liberty = subject to such reasonable conditions as may be imposed by a govt. pursuant to its police powers - Law challenged made no reference to health, safety, morals, or welfare of the public – Individual’s liberty must impose some restraint on police power Substantive Protection of Economic Interests (4 of 8) ▪ Judicial control over Legislative Policy ▪ After Lochner, S.Ct. began substituting its jdmt for legis. jdmts in a variety of cases involving economic regulation. Most legis. held unconst. Involved reg. of labor, prices, & entry into business ▪ Maximum Working Hours - Muller v. Oregon – 1908 – Law fixing max. work hrs. for women upheld – distinguished Lochner by special state interest in healthy women - Bunting v. Oregon– 1917–Lochner overruled (no reference, SDP survived)–gen. max. work hr. law upheld ▪ “Yellow Dog” Contracts - Coppage v. Kansas– 1915 – state law prohibiting employers from req’ing employees to agree not to join labor union (“yellow dog” K) violated DP b/c interfered w/ R to make Ks - Adair v. U.S. – 1908 – invalidated similar fed. law ▪ Min. Wage - Adkins v. Children’s Hospital– 1923 –Fed min. wage law – freedom of K interfered w/ in violation of DP ▪ Business Entry & Economic Regulations - New State Ice Co. v. Liebmann– 1932 – Ct. invalidated restraints on competition that curtailed entry into particular type of business - Weaver v. Palmer Bros. Co.– 1926 – although S.Ct. recognized validity of state interest in curtailing bus. practices that might defraud or endanger consumers, Ct. invalidated an absolute ban on use of shoddy (cut up or torn) fabrics for bedding – ban = purely arbitrary since other secondhand materials could be used if sterilized & labeled

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Substantive Protection of Economic Interests (5 of 8) ▪ Decline of SDP – some time after Lochner, S.Ct. changed its earlier view and began to apply less strict scrutiny to economic regulation. Instead, S.Ct. granted deference to legis. determinations of need and reasonableness ▪ It takes a lot to invalidate an act of congress (overcome deference)– must show that the legislation is not rationally related to a legitimate state purpose ▪ Nebbia v. NY – 1934 – A state may strictly control retail prices, even where such control inhibits the use of private property and the making of Ks - As long as S.Ct. finds the law to havea reasonable relationship to proper legislative purpose, to be not arbitrary or discriminatory, & to have means chosen that are reasonably related to the ends sought then DP is not offended - No area is outside province of st. reg. for police power purpose, including direct regulation of prices ▪ W. Coast Hotel v. Parrish – 1937– a state could, consistent w/ DP, impose a min. wage on emplmt Ks ▪ U.S. v. Carolene Products Co. – 1938 – Congress may prohibit the interstate shipment of food products that it deems injurious to public health] ▪ Lincoln Federal Labor Union v. Northwestern Iron & Metal Co. – Ct. upheld statute prohibiting employers from entering into “closed shop” Ks so as to exclude non-union workers ▪ S.Ct. upheld a probably overly restrictive optician-optometrist regulation in Williamson v. Lee Optical of OK – 1955, a restrictive reg of business of debt adjusting in Ferguson v. Skrupa – 1963, and a local-ownership legislative scheme in ND State Board v. Snyders’ Drug Stores, Inc. - 1973 Substantive Protection of Economic Interests (6 of 8) ▪ “Taking” of Property Interests – 5th Amendment provides, in part, that private property may not be taken for public use w/out just compensation – acts as restriction on both fed. & st. power of eminent domain ▪ Property R’s include tangible & intangible interests ▪ Public Use – Govt. may only exercise its power of eminent domain for a public use; broadly defined by S.Ct. If asserted use of property is rationally related to a conceivable, articulated public purpose, the Ct. will defer to the legislative findings. ▪ Taking – Govt. action may affect property R’s w/out constituting a taking. Mere regulation that limits use of P (ex: Zoning Laws) is not normally considered a taking under the 5th Am. Ct. merely determines whether justice & fairness require that public compensate private owner for the loss. ▪ Berman v. Parker – 1954 – The govt. may, as part of a planned redevelopment, take private property that, by itself, neither imperils health or safety nor contributes to the existing blighted conditions. – Cong. has power over D.C. much like power of state over its territory – S.Ct. had to consider whether this exercise of plice power exceeds specific const.’l limitations. ▪ Is power being exercised for public purpose? Is just compensation given? - Public welfare includes aesthetic values… legis. may deem it in the public interest to promote beauty… ▪ Eminent Domain = means to that end ▪ Hawaii Housign Auth. v. Midkiff – 1984 – S.Ct. permitted HI legislature to use ED to allow tenants who owned their homes, but not land under them, to purchase the real estate demonstrating Ct’s modern view of “public” use Substantive Protection of Economic Interests (7 of 8) ▪ Regulation as “Taking” ▪ PA Coal Co. v. Mahon – 1922 – The state cannot regulate mining so as to restrict a mineral rights owner’s ability to extract coal – Contract & DP clauses = affective – Govt. can only enact laws affectin g property values to some extent - Whether Taking or Not--- depends on case  in this case, Act goes too far b/c to make it commercially impracticable to mine coal is nearly the same as appropriateing or destroying it ▪ Keystone Bituminous Coal Assoc.v. DeBenedictis – 1987 – A state may not prohibit, w/out compensation, the mining of coal that would have the effect of causing subsidence of surface land - A land use regulation = TAKING, if it… 1. does not substantially advance legitimate state interests, or 2. denies an owner an economically viable use of his land ▪ Penn Central Transportation Co. v. NY City – 1978 – A city may restrict development of individual historic landmarks beyond applicable zoning regulations, w/outa “taking” requiring pmt. of “just compensation” – ▪ 2 considerations – 1) nature & extent of impact on π & 2) character of govt’l action ▪ Lucas v. SC Coastal Council – 1992 – The govt. must compensate a private landowner if the govt’s regulation prohibits all economically productive or beneficial uses of the land. ▪ Functional basis for allowing govt. w/out making compensation, to affect property values through reg is recognition that govt. could not operate if it had to pay for every change in law affecting property values, but this basis ≠ apply where govt. deprives landowner of all economically beneficial uses

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Substantive Protection of Economic Interests (8 of 8) Regulation as “Taking” (cont.) ▪ Loretto v. Teleprompter Manhattan CATV Corp. – any permanent physical intrusion by govt = taking requiring compensation

Contracts Clause (1 of 2) ▪ Art. I, § 10 – No state may pass any law that impairs the obligation of Ks – only applies to states but S.Ct. has held that the DP Clause of 5th Am. Is broud enough o extend a similar prohibition ot fed. action – Lynch v. U.S. – 1934 ▪ Development – K Clause was major restraint on state economic reg. in 19th century. Applied to both private & public Ks. More recently, the S.Ct. has applied a BALANCING TEST APPROACH (not all substantial impairments of Ks are unconst.’l) ▪ Home Bldg. & Loan Assoc. v. Blaisdell – 1934 – A state may alter existing Kual obligations in order to respond to emergency conditions. ▪ Legis. impairing Ks may be upheld when 1) state legis. declares emergency exists, 2) state law is enacted to protect a basic societal interest, not a favored group, 3) the relief is appropriately tailored to the declared emergency, 4) imposed conditions are reasonable, & 5) the legislation is ltd. to duration of emergency ▪ U.S. Trust Co. v. NJ – 1977 – A state may not impair the obligation of its own Ks based on its own determination of reasonableness & necessity ▪ K clause ≠ require states to adhere to K surrendering an essential attribute of its sovereignty ▪ Allowing a state to reduce its financial obligations whenever it wanted to spend the money for what it =regarded as an important public purpose would negate all K Clause protection ▪ Allied Structural Steel Co. v. Spannaus- 1978 – The K clause precludes state legislation that significantly expands duties created by private K. Contracts Clause (1 of 2) ▪ Modern Trend ▪ Despite apparent revivial of K clause in U.S. Trust Co and Spannaus – the Ct. generally deferes to state power. ▪ Energy Reserves Group v. Kansas Power & Light Co. – 1983 ▪ Court applied 3-part test 1- If the state substantially impairs a Kual relationship, it must have 2- A significant & legitimate public purpsoee for doing so 3- If it does, and the Kual adjustment is reasonable and appropriate Then the cts. will defer to the state unless the state itself is a party to the K. ▪ Exxon Corp. v. Eagerton – 1983 – Ct. rejected from passing through to purchasers an increase in severance tax, thereby preventing producers from taking advantage of existing K provisions for such a pass-through. Ct. held that the alleged impairment of Kual obligations was incidental to a generally applicable rule of conduct and not a direct attack on the original Ks. Law ≠ const.’ly diff. from laws regulating rates, which override Kual prices.

Stopped at LL p. 105 – Due Process & Indiv. Rights

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Description: Notes and outlines from Con Law I