Law School Outlines - Con_Law Judicial Review

Constitutional Law I. Judicial Review Marbury v. Madison Facts: President Jefferson's Secretary of State refused to deliver a commission granted to Marbury by former President Adams. Marbury was nominated, approved and commission appropriately signed by Adam's secretary of state, Marshall. The commissions however were not delivered prior to Jefferson's inauguration. Upon taking office, Jefferson treated the commissions as nullity-- Marbury then petitioned the Supreme Court for a writ of mandamus, compeling the delivery of the commissions. Issues: 1) was the commssion legal 2) if legal, does the President have the right to withhold 3) if not, does the Supreme Court have the authority to issue the mandamus Beyond the issues above, the main issue is, Does the Supreme Court have the authority under the Constitution, to review Acts of Congress and declare them void if repugnant to the Constitution? Also, a sub issue-- what discretion does the President have in review of action taken? Holding: Re 1- The commission was legal. Marbury was nominated by the President, approved by the Senate and the commission was signed by the Secretary of States Re 2- The issue is what discretion does the President have with regard to political powers conferred by the Constitution? To aid the President in carrying out his duties, he is authorized to appoint certain officers to carry out his orders. Although the acts of these officers in carrying out the orders of the President are not reviewable by the courts, the officers are given by law specific duties. When an individual is harmed by a breach of those duties, they may resort to the courts for remedy. Madison as Secretary of State is one of those officers with a lawful duty. Marbury was harmed by Madison's breach of that duty. --- the question now is; Re 3- although the Court found for Marbury on 1 and 2, the Court does not hold that it has original jurisdiction and can't issue the mandamus. The Judiciary Act of 1789 gives the Court original jurisdiction however the Court holds the Act is not in accordance with Article III of the Constitution and therefore unconstitutional and void. The plaintiff argues that since the Constitution is not restrictive regarding courts jurisdiction, it is up to congress to establish. Marshall rejects this argument reasoning that if the it was up to the legislature, the Constitution would have been written that way. Therefore, for the Court to issue a mandamus in this case it would be exercising original jurisdiction which is unconstitutional. 1 General Rule of Law: The Court has the power, implied from Article VI section 2 of the Constitution, to review acts of Congress and if they are found repugnant to the Constitution, declare them void. Scope of Judicial Review Checks and Balances on Judicial Power Cooper v. Aaron (1958) This case reaffirms the view that the Supreme Court is the ultimate or supreme "interpreter" of the Constitution. The case arises from a Arakansas district court ordering the desegregation of Arkansas schools following the Brown v. Board of Education decision. The Governor opposed the order by declaring Little Rocks Central High School off limits to blacks and called out the National Guard. Further, state officials asserted that they were not "bound" by Supreme Court decision in Brown. In response to that assertion, the Court stated, "It is necessary only to recall some basic constitutional proposition which are settled doctrine. Article VI of the Constitution makes the Constitution the 'supreme Law of the Land.' In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as the fundamental and paramount law of the nation, declared in the notable case of Marbury v. Madison that, "It is emphatically the province and duty of the judicial department to say what the law is. This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system." General Rule of Law: Article VI of the Constitution makes it the supreme law of the land-- therefore any decision by supreme court is binding on all states and courts. II. Limits on Judicial Review Justiciability In Marbury v. Madison, Marshall established the principle that "political questions" are not to be brought before the court. "Questions, in their nature political, or which are, by the Constitution and laws, submitted to the executive can never be made in this court." Three strands exist to deny justiciability: 2 1. textually demonstrable constitutional commitment of the issue to a coordinate political department; 2. a lack of judicially discoverable and manageable standards for resolving an issue; and 3. issues ought to be avoided where they are too controversial or could produce enforcement problems or other institutional difficulties. Baker v. Carr (1962) Facts: the population growth and shift in Tennessee was such that voters claimed that the apportionment of the General Assembly violated their equal protection rights "by virtue of the debasement of their votes." The issue before the Court is whether a constitutional challenge to state apportionment presents a political question and therefore unjusticiable? The is the most important case on political questions. Traditionally the Court refused to review cases involving apportionment issues/statutes since they were all said to present political questions. Holding: The Court holds that this is not an unjusticiable political question. The fact that the suit seeks protection of a political right does not mean it necessarily presents a political question. Review of "political question" cases reveals that the case that are non-justiciable under the political question doctrine are those cases that involve the relationship between the court and the other two branches of government. Two factors to look to in determining justiciability are; a. appropriatness of attributing finality to action of political departments (belief that action by political departments should have the foundation of finality and not be under a cloud of subjection to judicial review); and b. a lack of satisfactory criteria for judicial determination. * non-justiciability is primarily a separation of powers issue * each case must be decided individually regarding political question doctrine. Analysis of cases held to involve a political question reveal: 1. history of issue's management by another branch of the government 2. lack of judicially manageable standards for resolving it 3. the impossibility of deciding the case without an initial policy determination calling for non-judicial discretion; 4. the impossibility of resolving it without expressing lack of respect due other government branches; 5. an unusual need for unquestioning adherence to a political decision already made; or 6. the potentiality of embarrassment from a variety of announcements by different governmental departments on one question. 3 Dissent: Follows opinions of prior decisions holding Guaranty Clause not enforceable by the courts and the equal protection clause provides no clearer guide for judicial examination. The Court is being asked to decide among competing theories of representation and political philosophies-- this is beyond the power of the Court. General Rule of Law: the fact that a suit seeks protection of a political right does not mean it necessarily presents a political question. Nixon v. United States Advisory Opinions Standing Warth v. Seldin Lujan v. Defenders of Wildlife GAO v. Cheney Ripeness and Mootness Jurisdictional Power Ex Parte McCardle III. National/Local Division of Power Boundries McCulloch v. Maryland (1819) Federal Limits on State Power U.S. Term Limits v. Thornton (1995) Facts: Arkansas legislature passes statute limiting congressional terms by denying access to ballot. 4 Procedural Context: Came up through state court system. Ark Supreme Court ruled the statute unconstitutional. US Supreme Court granted certiorari. Term Limits arguments: (1) The 10th Amendment reserves for the states any power not given to the Federal Government- therefore they have the power to add to the qualifications of their representatives over what is defined in the constitution. (2) Even if states are not allowed to add to the qualification of members, the amendment in question is still constitutional because it does not in fact add any qualifications but rather is in accordance with Art I sec 4 cl. 1 and a "permissible exercise of the constitutionally delegated state power to regulate the Times, Place and Manners of elections." Issue: Can a state establish term limits on members of congress from that state? Holding: No STEVENS: (plurality opinion) (1) 10th amendment only reserves those powers to the states, which the states had prior to the adoption of the constitution. He relies on 3 arguments in support: a. Federalist No. 32-- "state governments would retain all rights of sovereignty which they before had…" b. Justice Story (from Martin v Hunter's Lessee) "the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government which the constitution does not delegate to them… no state can say that it has reserved, what it never possessed." Commentaries on the Constitution of the United States. 1858 c. Cites Chief Justice Marshall in McCulloch v. Md. Marshall rejected argument about "Constitutions silence. On state power.. implies that states have "reserved" power." What "never existed and the question whether it has been surrendered cannot arise." (2) Term limits violate fundamental principle of representative democracy by denying the people the right to voter for whoever they want to represent them. (3) Term limits were debated by the framers and it was not their intent (4) Re claim amendment is in accordance with Art I sec 4 cl 1 -- the intent of the amendment is to disqualify members from further service. It attempts to do indirectly what it cannot do directly. KENNEDY: concurs 5 He argues that there are two governments within the country- Federal and state. A member of congress is part of the federal government, which belongs to all the people of the United States. To alter qualifications of members by a state is basically an infringement on the rights of people from other states as the member serves them as well as part of the National government. Dissent THOMAS: (1) Kennedy's interpretation of 10th amendment is wrong. a. The plain language of the 10th amendment and the underlying theory of the Constitution are contrary to Steven's opinion. The authority of the constitution rests in the popular consent of the people "not as individuals composing one entire nation, but as composing the distinct and independent states to which they respectively belong" (Madison in Fed 39) "The Federal Government enjoys no authority beyond what the Constitution confers: the federal government's powers are limited an enumerated." b. Supreme Court has deemed positions taken by Story are more nationalistic than what constitution warrants. Story's view that the only power the states have reserved are those they had before the constitution conflicts with plain language of the amendment and the underlying theory of the Constitution. c. Stevens view of McCulloch decision is wrong. If Marshall's view was that states could not have powers they did not have prior to the constitution, Marshall would not have had to argue the point the states do not have the right/power to tax federal banks. THE TERM LIMITS CASE AND THE MODERN ANTIFEDERALIST REVIVAL Cook v. Gralike (2001) IV. The Commerce Power Article 1, section 8 cl. 3 granted congress the power “To regulate commerce with foreign nations, and among the Several States and with the Indian Tribes.” A weakness of the articles of confederation was no way to control commerce among the states. The actions taken by the states under the Articles of Confederation tended to discourage commerce between the states. There are two limits on the Commerce Clause. 6 1. internal limits: those limits imposed by the clause itself; and 2. external limits: the 10th and 11th Amendments 10th Amendment: ―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.” 11th Amendment: “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 an Foreign State.” When analyzing a Commerce Clause question, two questions must be addressed: 1. Can congress enact subject legislation under the Commerce Clause? And 2. If yes, does it interfere with the 10th or 11th Amendments? Historically 1824-1936 Gibbons v. Ogden (1824) Under New York law, Robert Livingston and Robert Fulton were granted exclusive right to operate steamboats in New York waters in an effort to encourage development of steamboat technology. Livingston and Fulton licensed Ogden to operate a ferry between NYC and Elizabethtown, NJ. Gibbons (once Ogden’s partner) began to operate a ferry under a 1793 federal law in competition with Ogden and in violation of Ogden’s monopoly created by NY law. When federal and state statutes apply, which is controlling? Federal, because of the Supremacy Clause. Issue(s): 1) Is the New York law granting Ogden a monopoly preempted by the federal law? 2) Is the federal law within the scope of the Commerce Clause Holding: 1) yes. Federal law is always controlling because of the Supremacy Clause. 2) yes. Marshal: ―The subject to be regulated in commerce‖. Commerce is more than the buying and selling or the ―interchange of commodities.‖ ―Commerce, undoubtedly, is traffic, but it is something more—it is intercourse. …. and is regulated by prescribing rules for carrying on that intercourse.‖ The commerce to be regulated is that among the states and not that commerce that is internal to the state. It must cross state boundaries. The clause applies ―to the concerns of the nation and to the internal concerns which affect the states generally; but not to those which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a state, then, may be considered as reserved for the state itself.‖ 7 Marshall did not go so far as to say that the grant of the commerce power was an exclusive power of congress, barring all state laws. Instead he ruled that Ogden’s claim was barred because of the federal statute under which Gibbons was authorized to operate. General Rule: Commerce is the intercourse of financial activity across state boundaries, which the Constitution grants congress the power to regulate. Commerce, internal to the state is reserved to the state to regulate. United States v. E.C. Knight (1895) a.k.a. The Sugar Trust Case This suit was brought against E.C. Knight under the Sherman Anti-Trust Act of 1890. Knight acquired approximately 98% of the nations sugar refining capacity, which the government believes gives them a monopoly in violation of the Act. The government contends that controlling 98% of manufacturing capacity in effect a monopoly of the trade or commerce of sugar among the ―several states.‖ The court rejects the government’s argument and finds in favor of Knight, reasoning that the Commerce Clause refers to the commerce of a product and not the manufacturing. "Manufacture is transformation -- the fashioning of raw materials into a change of form for use. The functions of commerce are different." Although the court recognizes that a monopoly of manufacturing involves a certain control over ―distribution‖ it is an incidental and indirect affect and therefore beyond the reach of the Commerce Clause. ―If it be held that regulation of commerce includes the regulation of all such manufacturers as are intended to be the subject of commercial transactions in the future the result would be that Congress would be invested, to the exclusion of the States, with the power to regulate not only manufactures, but also agriculture, horticulture stock raising, domestic fisheries, mining – in shore every branch of human industry.‖ General rule: Commerce Clause does not extend to the manufacturing of a product but rather only the buying and selling and transporting. Counter to the Knight case came the ―Shreveport Rate Case‖ in 1914 aka: Houston E. &W. Ry. Co. v United States (1914) a.k.a. The Shreveport Rate Case The Interstate Commerce Commission (ICC), after setting rates for rail transportation between Shreveport, Louisiana and various points within Texas, ordered several companies within Texas to stop charging proportionately lower rates for hauls within Texas. The plaintiff, Houston E. & W. Ry Co., challenged this direction because the rates were for intrastate traffic and out of regulation reach of congress under the Commerce Clause. The ICC found that the intrastate rate structure "unjustly discriminated in favor of traffic within the state of Texas, and against similar traffic between Louisiana and Texas." 8 The court rejected the argument that intrastate rates were beyond the reach of congress. The court reasoned that under the Commerce Clause congress does have the authority to regulate what has a "close and substantial relation to interstate traffic" and that "control is essential or appropriate to the security of that traffic, to the efficiency of the interstate service, and to the maintenance of conditions under which interstate commerce many be conducted upon fair terms and without molestation or hindrance." Further, "The fact that carriers are instruments of intrastate commerce, as well as of interstate commerce, does not derogate from the complete and paramount authority of Congress over the latter, or preclude the Federal power from being exerted to prevent the intrastate operations of such carriers from being made a means of injury to that which has been confided to Federal Care. Whenever the interstate and intrastate transaction of carriers are so related that the government of one involves the control of the other, it is Congress and not the State, that is entitled to prescribe the final and dominant rule." General Rule: Any intrastate activity that has a substantial impact on interstate commerce is within reach of congressional regulation under the Commerce Clause. Swift & Co. v. United States (1905) -- "stream of commerce" The court upheld an injunction against price fixing by meat dealers, under the Sherman Anti-Trust Act. Holmes: "When cattle are sent for sale from a place in one State, with the expectation that they will end their transit, after purchase in another, and when in effect they do so, with only the interruption necessary to find a purchaser at the stockyard, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the States, and the purchase of the cattle is a part and incident of such commerce. Commerce among the States is not a technical legal conception, but a practical one, drawn from the course of business." General Rule: if the activity is within the "stream of commerce" it is subject to congressional regulation under the Commerce Clause. ****In the late 19th/early 20th century, Congress used the Commerce Clause to attack crime and problems with morality in addition to emerging problems with the national economy. **** Champion v. Ames (1903) - court upheld Federal Lottery Act of 1895, which prohibited mailing, or transporting of lottery tickets across state lines. Hoke v. Unites States (1913) - upheld Mann Act which prohibited the transportation of women in interstate commerce for immoral purposes. 9 In contrast to these decisions upholding laws banning shi0ment of good deemed to reflect harmful practices, the court struck down an act that prohibited the shipment or interstate commerce of goods produced by child labor…… aka Hammer v. Dagenhart (1918) a.k.a The Child Labor Case The father of 2 children employed in a cotton mill in North Carolina got an injunction preventing enforcement of the law that prohibited the interstate commerce of good produced by child labor on constitutional grounds. The court reasons that the fact that goods were intended for interstate commerce, does not give the federal government power to regulate their production. Regulation of production is for local government. The court distinguishes this case from Champion and Hoke in that in those cases it was the product being shipped that was deemed harmful-- in this case, the law is an attempt to regulate the age of employment in the various States which is a local matter. "The commerce power is one to control the means by which commerce is carried on, which is directly the contrary of the assumed right to forbid commerce from moving and thus destroying it as to particular commodities." "…the production of articles, intended for interstate commerce, is a matter of local regulation." Further, "There is no power vested in Congress to require the States to exercise their police power so as to prevent possible unfair competition. … The Commerce Clause was not intended to give to Congress a general authority to equalize such conditions." Holmes dissenting: "If an act is within the powers specifically conferred upon Congress, it seems to me that it is not made any les constitutional because of the indirect effects that it may have however obvious it may be that it will have those effects" "Congress is given power to regulate such commerce in unqualified terms. The question then is narrowed to whether the exercise of its otherwise constitutional power by congress can be pronounced unconstitutional because of its possible reaction upon the conduct of the States in a matter upon which I have admitted that they are free from direct control." Holmes also took a "hands off approach" reasoning "But I had thought that the propriety of the exercise of a power admitted to exist in some cases was for the consideration of Congress alone and that this Court always had disavowed the right to intrude its judgment upon questions of policy or morals." "The act does not meddle with anything belonging to the States. …But when they seek to send their products across the state line they are not longer within their rights. Congress may carry out its views of public policy whatever indirect effect they may have upon the activities of the States." General Rule: manufacturing/production is local and not subject to congressional regulation under the Commerce Clause. This opinion does not continue and is overturned. 10 *** With the election of Roosevelt came the New Deal legislation. The early legislation enacted in response to the Depression, used the Commerce Clause to establish congressional authority. The court however opposed much of this legislation.*** Railroad Retirement Board v. Alton Railroad Co. (1935) By a 5-4 decision, the court struck down the Railroad Retirement Act of 1934, which established compulsory retirement and pension plan for all carriers subject to the interstate commerce act. Rejecting the argument that the pensions were related to the "efficiency of transportation", the court reasoned "…such regulations are really and essentially related solely to the social welfare of the worker, and therefore remote from any regulation of commerce as such" and are not part of the power established in the Commerce Clause. Schecter Poultry Corp. v. United States (1935) -- aka the "Sick chicken case" The court held unconstitutional the National Industrial Recovery Act of 1933, which promulgated "codes of fair competition for the trade or industry." The case arose out of a challenge to the wage and hour requirements established under the Act, by the "Code of Fair competition for the Live Poultry Industry of the Metropolitan NYC area." The plaintiff was a local company that only sold to local merchants. The court held that the Act, unconstitutionally delegated legislative power and that the application of the Act to intrastate activity exceeded the commerce power. The government argued "stream of commerce" however the court rejected this theory in view of the fact that the plaintiff's product was not in the interstate "stream of commerce." The court felt the effects of the law were to far reaching. "If the federal government may determine the wages and hours of employees in the internal commerce of a State, because of their relation to cost and prices and their indirect effect upon interstate commerce, it would seem that a similar control might be exerted over other element s of cost, also affecting prices, such as the number of employees, rent, advertising, methods of doing business etc. All the processes of production and distribution that enter into costs could likewise be controlled." General Rule: the Commerce Clause does not give congress the power to regulate intrastate activity unless it is "in the stream of commerce" or has a substantial effect on the economy. Carter v. Carter Coal Co (1936) The court struck down the Bituminous Coal Conservation Act of 1935, which regulated the maximum hours and minimum wages in the coalmines. The court again took the approach that production was local with only an indirect effect upon commerce and therefore not an activity that was subject to congressional regulation. Since the effect of the Act fell upon production of coal and not upon commerce it exceeded congress's power. "Production is a purely local activity." 11 "But the conclusive answer is that the evils are all local evils over which the federal government has no legislative control. Such effect as they may have upon commerce, however extensive it may be, is secondary and indirect. An increase in the h greatness of the effect adds to its importance. It does not alter its character." Cardoza dissents and his views become the prevailing view in the years to come. "Regulation of prices being an exercise of the commerce power in respect of interstate transactions, the question remains whether it comes within that power as applied to intrastate sales where interstate prices are directly or intimately affected. … Within rulings the most orthodox, the prices for intrastate sales of coal have so inescapable a relation to those for interstate sales that a system of regulation for transactions of the one class ins necessary to give adequate protection to the system of regulation adopted for the other." General Rule: Production is a local activity and beyond the reach of the Commerce Clause. SUMMARY of Commerce Clause interpretation 1824-1936 1. Marshal defines commerce broadly: "Commerce is more than the buying and selling or the ―interchange of commodities.‖ ―Commerce, undoubtedly, is traffic, but it is something more—it is intercourse. …. and is regulated by prescribing rules for carrying on that intercourse.‖ Gibbons v. Ogden 2. Production or manufacturing is considered a local matter and not subject to Commerce Clause power of congress. Knight, Dagenhart, Carter 3. To come under the regulatory power of the Commerce Clause, the activity must be either in: a. "the stream of commerce" Swift; and/or b. have a substantial, direct affect on interstate commerce Shreveport, Schecter THE DECLINE OF LIMITS ON THE COMMERCE POWER 1937-1995 NLRB v. Jones & Laughlin Steel Corp. (1937) The National Labor Relations Board (NLRB) files suit against Jones for unfair labor practice under the National Labor Relations Act. Jones fired two workers for union activity. Jones is a large company that is involved in interstate commerce. However the "production" of the steel is local. The court upholds the Act as constitutional reasoning "Although activities may be intrastate in character when separately considered, if they have such a close and 12 substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control." With this case, the court retreated from the narrow/strict geographical definition of interstate commerce and the requirement for a "direct effect" which it used in Carter and Schecter. According to NLRB, the Commerce Clause power of congress extends to any activity, which has a significant effect on interstate commerce, regardless of "direct" or "indirect". In effect, NLRB is a reversal of Schecter type cases. Now the court bases it's opinions on a combination of the Commerce Clause and the Necessary and Proper Clause-- power to regulate interstate commerce extends to control over intrastate activities when necessary and appropriate to make regulation of interstate commerce effective. General Rule: Commerce Clause gives congress power to regulate any activity, even intrastate production, it the activity has an appreciable effect, direct or indirect, on interstate commerce. Following this decision, the "court packing plan" of Roosevelt failed however all the dissenters in NLRB had left the court and were replaced by Roosevelt. United States v. Darby (1941) Darby was a lumber manufacturer charged with violating the Fair Labor Standards Act of 1938 which regulated the hours and wages of employees in local manufacturing activities. The issues of the case are: 1. Does congress have the authority to prohibit the interstate shipment of goods produced in violation of the act? 2. Does congress have the power to prohibit the employment of workers for the production of goods for interstate commerce when employment terms are in violation of the federal law. The court holds the Act constitutional and that congress, under the Commerce Clause does have the power to regulate the wages and hours of workers engaged in the production of goods destined for interstate commerce and the power to prohibit the interstate shipment of goods produced in violation to the federal law. The court reasons that congress has the plenary power to exclude from interstate commerce any article, which it determines to be injurious to public welfare, subject only to the specific prohibitions of the Constitution. In the Fair Labor Standards Act, Congress determined that the shipment of goods produced under substandard labor conditions in injurious to interstate commerce and therefore has the power to prohibit the shipment of such goods, independent of direct or indirect effect. 13 This case extends the power of congress to exclude from interstate commerce those goods produced under conditions that Congress has determined are harmful to the national welfare. The effect on commerce, not the location of production is the basis for the exercise of federal power. This case overrules Hammer v. Dagenhart. General Rule: Congress has the power to regulate the hours and wages of workers engaged in the production of goods destined for interstate commerce and can prohibit the shipment of goods manufactured in violation of the wage and hour requirements. Wickard v. Filburn (1942) This case is considered the "high watermark" in the broadest interpretation of application of the Commerce Clause and demonstrated the "outer limits" of "affecting commerce." The Agricultural Adjustment Act of 1938 set market quotas for farm production of wheat in an attempt to support wheat prices for farmers. Filburn was fined $117 for exceeding his farms quota (he produced 239 bushels when his quota was 223) Filburn sued the Secretary of Agriculture, Wickard challenging the act because his wheat was used primarily for the purpose of feeding his livestock and making flower for his own consumption and therefore was not part of interstate commerce and not subject to the Commerce Clause. The court upheld the Act, reasoning that even home consumption affected the wheat market and therefore impacted interstate commerce and was subject to regulation under the Commerce Clause. "The effect of the statute before us is to restrict the amount which may be produced for market an d the extent as well to which one may forestall resort to the market by producing to meet his own needs. That appellee'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, taken together with that of many others similarly situated, is far from trivial." Heart of Atlanta v. United States (1964) Hotel in Atlanta challenged law making it illegal to deny rooms to African Americans. Court sustained the law noting overwhelming evidence that discrimination "burdens" interstate commerce. "It is said that the operation of the motel here is of purely local character. But the power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce." 14 Katzenbach v. McClung (1964) Similar to Heart of Atlanta, this case is a challenge to Title II by a restaurant in Birmingham, Alabama, Ollie's Barbecue, which discriminated against African Americans. The district court found no connection between a local restaurant and interstate commerce. The Supreme Court reversed noting again the burdens of discrimination on interstate commerce as well as noting that the restaurant did purchase supplies through interstate commerce and was subject to the law. Also the court reasoned that as long as Congress had a reasonable rationale for passing an Act, the Court was not in a position to overrule that judgment. "Confronted as we are with the facts laid before Congress, we must conclude that it had a rational basis for finding that racial discrimination in restaurants had a direct and adverse effect5 on the free flow if interstate commerce." Hodel v. Virginia Surface Mining and Recl. Ass'n (1981) The Court upholds the constitutionality of the Surface Mining Control and Reclamation Act. The act was challenged with the argument that Congress cannot regulate under the Commerce Clause mining that occurs on private land within the border of a state. The Court upheld the act reasoning that any activity that has the potential to environmentally effect the land across state borders can affect interstate commerce by affecting the value/use of the land and is therefore a proper under the Commerce Clause. Marshall uses "rational basis" of Congress to decide what can be regulated under Commerce Clause- "When Congress has determined that an activity affects interstate commerce, the courts need inquire only whether the finding is rational." Rehnquist notes that Congress's findings must have a rationale basis and is reviewable by the courts. New Limits: 1995 Onward-- United States v. Lopez (1995) The 1990 federal Gun-Free School Zones Act made it an offense for "any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." Lopez was convicted under the act. The issue before the Court is whether or not the Act exceeded Congressional power under the Commerce Clause. 15 Rehnquist wrote the opinion for the majority holding that the act did in-fact exceed the regulatory powers of Congress under the Commerce Clause. Rehnquist referred to a 3-part test to determine if an activity was within the regulatory power of congress. A law passed under the Commerce Clause must relate to: 1. A channel of interstate commerce 2. An instrumentality of interstate commerce; or 3. An activity having a substantial effect on interstate commerce. In this case, based on the above test, carrying a gun into a school zone is a local matter. To find otherwise requires a stretch of logic and a series of inferences and assumptions. Relying on the notion of limited powers of the federal government as enumerated in the constitution, the Court does not find carrying a gun into a school zone to be an appropriate application of the regulatory power granted to congress under the Commerce Clause. Rehnquist requires a jurisdictional nexus-- i.e., there must be a nexus to the law and interstate commerce. "…to require an additional nexus to interstate commerce both because the statute was ambiguous and because "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance."" Kennedy concurs cautioning that generally congress is best authority of what is appropriate regulation under Commerce Clause-- however the Court should intervene when the regulation unduly upsets the balance of power between the states and federal government. Thomas concurs stressing the "substantial effects" test is a New Deal innovation and is not inline with the framers intent. He holds a much narrower view of what congress was authorized to regulate under the Commerce Clause. Dissents: Souter-- considers opinion a step backwards amounting to judicial activism. Stevens-- considers education of youth major impact on education and subsequently impact on interstate commerce Bryer--- "cumulative effect" test. Bryer looks to the cumulative effect of conduct to determine if proper subject for congressional regulation. He believes cumulative effect of guns in a school zone effects interstate commerce and is therefore proper for congressional Commerce Clause regulation. General Rule of Law: the Act exceeds Congressional Commerce Clause regulatory power. 16 United States v. Morrison (2000) This case came before the court from a rape claim at the state-operated VA Polytechnic Institute by a student enrolled at the university against two football players also enrolled at the university. The victim sued in the federal district court under 42 U.S.C. section 13981 that provides a federal civil remedy for victims of gender-motivated violence. This section was part of the Violence Against Women Act of 1994. The issue before the Court is can Commerce Clause regulation of intrastate activity be upheld only where the activity being regulated is economic in nature? The federal government is seeking to regulate areas traditionally regulated exclusively by the states. Rehnquist wrote the opinion for the majority. Regulation and punishment of intrastate violence that is not directed at the instrumentalities of interstate commerce is the exclusive jurisdiction of the local or state government. For Congress to regulate under the Commerce Clause, the activity must be economic in nature and must be an activity that; a. use of channels of interstate commerce, b. regulation or protection of the instrumentalities of interstate commerce or persons or things in interstate commerce, though the threat may come from intrastate activities; and c. the power to regulate those activities having a substantial relation to interstate commerce. The plaintiff argues that section 13981 falls under c above. The court reasons that those cases in which federal regulation of intrastate activity (based on activity's substantial effect on interstate commerce) has been sustained have included some type of economic activity. Even though Congress has numerous findings supporting the serious impact of gender-motivated violence on victims and their families, findings are not enough (or required) to sustain constitutionality of the Act (Commerce Clause legislation). ***Whether a particular activity affects interstate commerce sufficiently to come under the constitutional power of Congress to regulate is a judicial question. **** The Court rejects the argument that Congress may regulate non-economic activity based solely on that activity's aggregate effect on interstate commerce. Thomas concurs: but again asserts that the substantial effect test is inconsistent with the intent of the framers and early Commerce Clause jurisprudence. Dissents Souter a. Congress does have power to regulate based on aggregate effect of activity on interstate commerce, and b. the substantial effect is a determination best made by Congress and not the courts. 17 Bryer Congress passed this act to compensate for the documented deficiencies in state legal systems and tailored the law to prevent its use in areas traditionally reserved to the states. The law represents a state and Federal effort to cooperate to solve a national problem. General Rule of Law: Commerce Clause regulation of intrastate activity may be upheld only where the activity being regulated is economic in nature. 10th and 11th Amendments 10th Amendment reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved t the States respectively, or to the people." In Maryland v Wirt (1968) the Court upheld the 1966 Amendment to the Fair Labor Standards Act, extending the Act to cover employees of state-operated schools and hospitals. The Dissent, Douglas and Stewart, thought the Act was a serious invasion of state sovereignty protected by the 10th Amendment. In Fry v. Unites States (1975) sustained the Economic Stabilization Act increasing wages for public employees. The Court noted that the opinion was narrow and the Act is an emergency measure limited in scope. The Court acknowledged the 10th Amendment is "not without significance." "The Amendment expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States' integrity or their ability to function effectively in a federal system." National League of Cities v. Usery (1976) overturned Maryland v. Wirt, holding unconstitutional the application of a federal law to the state and local governments, otherwise permissible under the Commerce Clause, based on the 10th Amendment. The law was a further amendment to the Fair Labor Standards Act that extended minimum wage and maximum hour provisions to all employees of state and local governments. Rehnquist opinion for the 5-4 majority found the extension to "impermissibly interfere with the integral government functions of these bodies." Garcia v. San Antonio Metropolitan Transit Authority (1985) overturned National League of Cities, holding the application of the minimum wage/maximum hour provisions to the state and local governments is constitutional. Blackmun wrote the opinion for the 5-4 decision noting, "the aftermath of National League of Cities demonstrated that the effort to articulate the boundaries of state regulatory immunity in terms of 'traditional governmental functions' had proved unworkable." "Any rule of state immunity that looks to the 'traditional,' 'integral,' or 'necessary' nature of governmental 18 functions inevitably invites an un-elected federal judiciary to make decisions about which state policies it favors and which one it dislikes. We therefore now reject, as unsound in principle and unworkable in practice, a rule of state immunity from federal regulation that turns on a judicial appraisal of whether a particular governmental function is 'integral' or 'traditional.'" Dissenting, O'Connor (and Rehnquist) reasoned "The true essence of federalism is that the States as States have legitimate interests which the National Government is bound to respect even though its laws are supreme." "With the abandonment of National League of Cities, all that stands between the remaining essentials of state sovereignty and Congress is the latter's underdeveloped capacity for self-restraint." New York v. United States (1992) 10th Amendment trumps Commerce Clause. This case is a New York challenge to the constitutionality of the Low-Level Radioactive Waste Policy Amendments Act of 1985. The act required for States to provide for the disposal of waste generated inside their borders. The Act provided 3 incentives-- the third was that if a State failed to make provision for disposal by a certain date, the State was to take-title to and possession of the waste and be liable for damages suffered by the waste's generator or owner as a result of state's failure to promptly take possession. The issue before the Court is whether the federal government can order state government to enact particular legislation. O'Connor: The federal government may not order a state government to enact particular legislation-- the federal government may not "commandeer" the state legislature. Congress may regulate under the commerce clause, and Congress may provide incentives-- but Congress may not commandeer the state legislatures for the purpose of Congress. "If a power is delegated to Congress in the Constitution, the 10th Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the 10th Amendment, it is necessarily a power the Constitution has not conferred on Congress." Under Articles of Confederation, Congress could only act by ordering states to enact legislation-- the framers decided Congress needed the power to regulate citizens directly and wrote the Constitution that way. The Court, interprets that decision to mean that the federal government does not have the power to direct the states to enact particular legislation. Dissent White: 10th Amendment restrictions on the commerce power are procedural limits, designed to prevent the federal destruction of state governments, not to protect substantive areas of state autonomy. Stevens - dissent and concur: notion that Congress may not order states to implement federal legislation is incorrect and unsound. Federal government regulates state railroads, 19 schools, prisons and elections and in time of war, could command states to supply soldiers. General Rule of Law: Congress may provide incentives but may not commandeer state legislatures and direct the enactment of particular legislation. states must comply with federal laws applicable to citizens individually-- What case does this come from?? Printz v. United States (1997) The Court has shown a reluctance to give unlimited scope to the Commerce Clause as a basis for federal power. The Court is giving greater deference to the 10th Amendment reversing the trend in the 1930's-1990's and emphasizing states rights. 10th Amendment trumps Commerce Clause. Printz challenges the provision of the Brady Handgun Violence Prevention Act that requires the local state law enforcement officials to conduct background checks on prospective handgun purchasers. The issue before the Court is whether the federal government can direct the states to administer a federal regulatory program? Scalia: The federal government cannot direct states to administer a federal regulatory measure. The states are autonomous, sovereign entities not mere instruments of the federal government. The Constitution places the enforcement of federal laws in the federal executive branch. Congress cannot strip this power from the executive branch. Since there is no express constitutional grant of power to Congress to compel state compliance in its regulatory scheme at issue here, the measure is unconstitutional (10th Amendment reserves power to states not enumerated under Congressional power) O'Connor (concurring): notes that the holding does not extend to the mere administrative reporting of data that the state collects anyway. Dissents Stevens: Constitution empowers Congress to respond to a problem- there is no constitutional prohibition against enlisting state officials necessary to make the response effective. Bryer: Congress approach in this instance not unique…. many European federal systems involve local enforcement. Like justifying the overcooking of venison because it was the only way to make horse meat edible. 20 General Rule of Law: The federal government may not compel the states to enact particular laws or administer federal regulatory programs. State Sovereign Immunity 11th Amendment was added after Chisholm v. Georgia (1793) where the Court took original jurisdiction of a suit against Georgia by a creditor from South Carolina seeking payment for goods purchased by Georgia during the Revolution. 11th Amendment reads: "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." In Hans v. Louisiana (1890), the Court "held that the 11th Amendment applied not only to cases within the diversity jurisdiction but also more broadly to cases within the federal question jurisdiction of the federal courts." Under this doctrine, not only is a state protected in a diversity suit but also when the citizen of a state wants to sue the state of residence (same state). Exceptions to Hans created by later opinions: In Ex Parte Young, the Court carved out an exception by allowing that a federal court could issue an injunction (no monetary remedy) against state officials who sought to enforce an unconstitutional state law, on the ground (legal fiction) that the defendant was not really the state but rather the official acting beyond his constitutional authority. In Fitzpatrick v. Bitzer, (1976), the Court held "that Congress could abrogate the stat's 11th Amendment immunity and allow states to be sued directly for retrospective damages, pursuant to its enforcement power under the 14th Amendment. "Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute." The Court in Fitzpatrick however, left open the question if Congress could abrogate a state's sovereign immunity to suits for money damages when it exercised it Art I Sec 8 powers-- such as the commerce power-- as opposed to its civil rights enforcement. Seminole Tribe of Florida v. Florida (1996)-- the Lopez of the 11th Amendment This case overturned Union Gas which followed Fitzpatrick and held that Congress could abrogate states sovereign immunity under the 11th Amendment by allowing states to be sued for monetary damages when the suit arises out of Congressional legislation pursuant to the Commerce Clause 21 Seminole Tribe rejected the claim that Congress acting under its commerce power could abrogate a state's 11th Amendment Immunity. In Seminole Tribe, the tribe sued the state of Florida under the Indian Gaming Regulatory Act, which was passed under the Indian commerce aspect of the Commerce Clause. The Act provided that an Indian tribe may conduct certain gaming activities only in conformance with a valid compact between the tribe and the state. The Act required the states to negotiate in good faith with the Tribe toward the formation of a compact. and authorized the Tribe to sue a state in federal court to compel performance of that duty. Rehnquist, writing the majority opinion, found the Act to be unconstitutional. The Indian Commerce Clause does not grant Congress the power to abrogate states sovereign immunity and cannot grant jurisdiction over a state that does not consent to be sued. It doesn't matter whether the relief sought is injunctive or monetary, a state can't be sued-barred by the 11th Amendment. Rehnquist did however reaffirm Fitzpatrick. Dissents: Stevens, Souter, Ginsburg, Bryer Stevens Argues Congress does have the power to create a private federal cause of action against a State or it's Governor. Souter, et. al Agrues that the political safeguards are working to keep an adequate check on Congress and that in the past, the court has accepted the "plain statement" requirement in those cases where Congress abrogates States sovereign immunity. Alden v. Maine (1999) In this case, the Court extended the state sovereignty immunity bar announced in Seminole Tribe from lawsuits again st states in federal court to lawsuits against states in state court. The decision affirmed the dismissal of suit filed in Maine state court by state probation officers seeking damages for state's failure to pay overtime required by federal Fair Labor Standards Act. The Plaintiffs filed suit in state court after the case was dismissed in federal court under Seminole Tribe. Kennedy Congress, in exercising its Article I powers, may not abrogate state sovereign immunity by authorizing private actions for money damages against non-consenting states in their own courts. "sovereign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself." 22 "Although the Constitution grants broad powers to Congress, our federalism requires that Congress treat the States in a manner onsistent with their status as residuary sovereigns and joint participants in the givernance of the Nation . Private suits against nonconsenting States present the indignity of subjecting a State to the coercive process of judicial tribunals at the instiance of private parties, regardless of the forum. A power to press a State's own courts into federal service to coerce the other branches of the State is the power ultimately to commandeer the entire political machinery of the State against its will. " see pg. 200. V. Other Federal Legislative Powers and Limitations The taxing power Article I Section 8 "The Congress shall have the 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 United States." Child Labor Tax Case (Bailey v. Drexel Furniture Co.) (1922) This case is a challenge to the Child Labor Tax Law of 1919 where companies employing child labor were taxed 10% on net profits. The Act, (Child Labor Tax Law) was enacted following the decision in Dagenhart where the court held the regulation of child labor was reserved to the states and was not proper under the Commerce Clause. The Act was attacked on the grounds that it is a regulation on the employment of child labor in the states- which is exclusively a state function under the Constitution and within the reservations of the 10th Amendment. The defenders of the Act argue that it is a mere excise tax levied by Congress and is valid under the broad taxing power of Congress. The court reasons that if the tax only has incidental regulatory effect, then it is a valid excise. However, if the tax is more of a penalty then it is not within the power of Congress's taxing power. "Taxes are occasionally imposed in the discretion of the legislature on proper subjects with the primary motive of obtaining revenue from them and with the incidental motivfe of discouraging them by making their continuance onerous. They do not lose their 23 character as taxes because of the incidental motive. But there comes a time in the extension of the penalizing features of the so called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment." The Court holds that the Act is a punishment and therefore unconstitutional. The court reasons the principle articulated in MCCullogh v. Maryland is applicable. "Should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government, it would be the painful duty of this tribunal…. to say that such and act was not the law of the land." General Rule of Law: a law passed by congress under the pretext of the exercise of its powers but which is for the accomplishment of objects not within its power, is unconstitutional. ****** The question to ask, "Does the tax have the effect of regulating objects or areas reserved to the states?" ****** The Spending Power United States v. Butler (1936) This case is a challenge to the Agricultural Adjustment Act of 1933. The Act was an attempt to improve the purchasing power of farmers. This was to be accomplished by taxing the processors of agricultural products and using the proceeds to pay farmers who voluntarily limit production. Butler was a cotton processor. The district court held the tax to be valid. The Court reasons that the tax imposes regulation on areas that are purely a state concern. Additionally, the court reasons that the power of taxation was to support the government- not the expropriation of money from one group of people to be paid to another group. The Dissent argues that the tax is being held unconstitutional, not because of the tax itself but rather what the proceeds are to be spent on. The power to spend implies the power to choose between divers possible expenditures-- therefore it should also follow that Congress should have the power to place conditions on the money they spend. General Rule of Law: Congress may not, under the pretext of exercising the taxing power, accomplish prohibited ends- such as the regulation of matters that are purely a state concern and beyond the control of congress. South Dakota v. Dole (1987) In 1984, Congress passed a law directing the Secretary of Transportation to withhold 5% of federal highway funds to states that have drinking ages less than 21. 24 South Dakota challenges the law arguing that the law violated constitutional limits on the congressional spending power and also violate the 21st Amendment. Holding the law constitutional, the court reasons that is within the spending power of congress to put conditions on the money sent to the states as long as the conditions are germane to the purpose of the money. In this way congress is able to regulate areas that may not regulate directly. This is distinguished from Butler in that Congress is not taxing but placing conditions on money spent. Dissent O'Connor does not see the condition of drinking age sufficiently germane to the federal funds to the states for highways and that the law is an attempt by congress to regulate alcohol which Congress can not do. General Rule of Law: Congress may withhold federal highway funds to states with a minimum drinking age less than 21. Congress may place conditions on federal funds distributed as long as the conditions are germane to the purpose of the money. Treaties and Foreign Affairs Missoiuri v. Holland (1920) This case challenged the constitutionality of a law enacted by congress pursuant to a treaty that would otherwise be unconstitutional under the 10th Amendment. In this case, congress passed a law under powers granted by Article I section 8 pursuant to the enforcement of a treaty formed under the power of Article II Section 2. The statute allowed the Secretary of Agriculture to formulate regulations to enforce the Migratory Bird Treaty. The court holds the statute to be constitutional. The treaty is a legal treaty and therefore Congress may regulate as required under the necessary and proper clause to enforce the treaty. Article II section 2 grants the President the power to make treaties and Article VI section 2 declares that treaties shall be part of the supreme law of the land. Therefore, Congress may, enact legislation under Article I section 8 to enforce such a treaty even though the statute apart from the treaty may be unconstitutional under the 10th Amendment. General Rule of Law: Congress can constitutionally enact a statute under Article I section 8 to enforce a treaty created under Article II section 2, even if the statute by itself is unconstitutional. Following this decision there was an "uprising" in the country fearing the use of Art II sec 2 as a way for Congress to override any Constitutional limitations. In response, Sen Bricker put forward an amendment that stated that any provision of a treaty that conflicts 25 with the Constitution shall not have any force or effect. While the Bricker Amendment debate was going on, the Court handed down the Ried v. Covert This case dealt mainly with the congressional power under Art I sec 8 to provide for military jurisdiction over civilian dependents of American servicemen overseas. The government argued "that the challenged statute could be sustained "as legislation which is necessary and proper to carry out the United States obligations under the international agreements."" Rejecting that argument, Justice Black replied "The obviouos and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution." Further, the court found nothing in the supremacy clause (Art VI sec 2) which says that treaties and laws enacted pursuant to treaties do not have to comply with the provisions of the Constitution. This decision seemed to put to rest the debate over the Bricker Amendment and the concerns that treaties may be used as a means to or basis for domestic action affecting individual rights beyond the limits of the Constitution. VI. Dormant Commerce Clause Under this "doctrine" the Court invalidates some "protectionist" state legislation, even in the absence of Congressional action. The clause is the "dormant commerce clause" because nowhere in the Constitution is state power expressly limited from regulating interstate commerce or from imposing any barrier to state protectionism or discrimination against trade. For such limitations, the Court has read into the affirmative grant to congress the power to regulate commerce, judicially enforceable limits on state legislation where congress has not acted. The reasoning is based on history and inferences from the federal structure. Modern cases are organized into three groups. 1. Facially discrimatory legislation. These cases deal with statutes that are overtly discriminatory and protectionist. They are per se invalid/unconstitutional and can only be upheld by proving a compelling state interest. Philadelphia v. New Jersey New Jersey enacted a law that prohibited the importation of solid or liquid waste which was collected or originated in another state. The Court struck down the law holding that laws that are protectionist in nature unduly burden interstate commerce and are unconstitutional. Even though the state may have a justified interest in protecting it's 26 citizens, in cannot enact legislation that discriminates against other states or products based on place of origin when there are other reasonable non-discriminatory means available to accomplish the same purpose. "where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected." Taylor v. Maine The Court upholds Maine statute prohibiting the import of baitfish. The prohibition is based upon the protection of Maine's natural resources. It is believed that imported bait fish will introduce parasites into the Maine waters which will have a negative and substantial effect on one of Maine's natural resources. The Court upholds this facially discriminatory statute because the compelling end is legitimate protection of a states natural resources AND there is no alternative nondiscriminatory way of doing it. 2. Facially neutral but favor local economic interests at the expense of out-of-state competitors. The Court has been willing to look behind state laws to determine if they are protectionist in purpose or effect and if so, invalidate. A finding of "protectionism" is generally fatal to legislation. Can be overcome by a compelling reason- i.e., there is no reasonable alternative. Baldwin v. Seelig Bacchus Imports v. Dias Hunt v. Washington State Apple Advertising Comm'n H.P. Hood & Sons v. Du Mond 3. Facially neutral but place an undue burden on interstate commerce. These cases are decided by applying a balancing test as found in Pike v. Bruce Church. "Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And if the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities." 27 ***** when a state acts as a market participant, it is not subject to dormant commerce clause. **** If a statute is facially discriminatory, the burden is on the state to show a compelling reason. If the statute is facially neutral and has an incidental burden on interstate commerce, the burden is on the injured party to show that the burden is unduly great on interstate commerce. Kassel v. Consolidated Freightways Corp. (1981) Trucking company challenges the constitutionality of Iowa state law prohibiting use of trucks over certain length from operating within state boundaries. This case was looked at in view of Pike balancing test but could also have been looked at in terms of overt discrimination or purposefully discriminatory. The issue before the court was whether the safety regulation effect on interstate commerce outweighed the states interest in safety. The court held that the law unconstitutional when the states safety interest were shown to be out weighed by the degree of interference with interstate commerce. Essentially, the argument was made that the safety concerns were in reality a pretext to keep large trucks off Iowa roads and thereby reducing the amount of road repair required at state expense. The safety concern was further undermined by the exceptions in the statute to allow large trucks to enter cities close to the Iowa boarder. General rule of law: a state safety regulation will be held unconstitutional if its interference on interstate commerce out weighs the safety purpose. Privilege and Immunities Art IV section 2 states "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the several States." This clause serves as a or restraint on state efforts to bar out-of-staters from access to local resources. It provides a means for a non-resident to attack state legislation. State residents can attack state legislation through the political process. To have protection of P&I clause, must be ―out-of-state‖ resident. This clause is similar to the dormant commerce clause-- which prohibits states from discriminating against out-of-state business interests, this restrains states from protecting state resources or benefit of state laws from non-residents. It prevents the "balkanization of the individual states." It is distinguished from the dormant commerce clause in 5 ways: 1. Corporations are not protected under Privilege and Immunity (P&I) clause 28 2. Congress can consent to state practices that otherwise violate commerce clause- however Congress can not condent to practices that violate P&I clause because it establishes individual rights. 3. the standard of review, a "substantial" reason is more strict than the Pike balancing test but not as strict as the standard for discriminatory legislation, "compelling reason." A law that infringes on P&I clause may be held constitutional if the state can show a "substantial" reason for adoption. 4. Court has only held P&I clause to apply to "fundamental rights." (because of self-restraint on the part of the court to preclude excessive litigation) 5. No "market participant" exception for state government as in dormant commerce clause application--- no "market participant" exception to P&I violations as it has to commerce clause scrutiny. United Building & Construction Trade Council v. Camden (1984) Regulation requiring that at least 40% of contractors and subcontractors working on City construction projects have to be Camden residents. The ordinance was challenged under the P& I clause. The issue is does the P and I clause apply to municipal ordinances which discriminate on the basis of municipal rather than state citizenship (based on state citizenship was known to be a violation.) The Court struck down the ordinance because there was no substantial reason. First, court looks to see if ordinance is discriminatory based on residence-- (state argues that since it is based on town residence and not state it should survive P&I challenge. Court rejects this argument reasoning that if allowed, a state could effectually discriminate based on state residency by merely writing the law in terms of towns or counties that cover the entire state.) Finding it did discriminate it looks to second part-is there a "substantial" reason to justify the legilation. Determining there was no such reason, the law was struck down. General rule of law: The privileges and immunities clause applies to municipal ordinances which discriminate on basis of municipal residence. When analyzing in view of P & I clause, two questions: after Is a fundamental right at issue? 1. Is the legislation discriminatory against non-state residents? if yes, then 2. Is there a "substantial" reason for the legislation? Preemption and Consent Where congress has the authority to regulate and does, then any state law regarding same area of legislation is preempted and federal law governs. 29 Three tests / types of preemption (p 319) 1. Express: where legislation expressly assigns jurisdiction-- will use terms such as "exclusive" i.e., "The NRC will be the exclusive regulatory agency for nuclear safety within the United States." 2. Implied-- determined by looking at legislative history, intent of legislationoccupying the field. Was the purpose of Congress to ―occupy the field‖ of the area the legislation concerns? 3. Contradiction: where state and federal laws legislate overlap-- federal preempts. Where federal legislation/regulation exists, states cannot enforce/pass state legislation that conflicts, is inconsistent with, curtails or interferes with the federal legislation. *** Ark Elec Co-Op v. Ark Public Service Comm’n (1983) ―A federal decision to forgo regulation in a given area may imply an authoritative federal determination that the area is best left un-regulated, and in that event would have as much pre-emptive force as a decision to regulate.‖ *** Pacific Gas v. State Energy Commission (1983) This case arose out of a challenge to state legislation preventing new construction of nuclear power plants until a ―method for the permanent disposal of high-level nuclear waste‖ was developed. The challenge was based on the argument that the state legislation was ―preempted‖ by the Atomic Energy Act which gave the Federal agency regulatory authority over nuclear safety. The court held that the Act did not preempt the state from placing a moratorium on nuclear power plant construction for economic reasons. General rule of law: Federal legislation preempts state legislation when the two conflict or cover the same field. Congress may expressly preempt state legislation. More often however, intent to supercede state law can be found: 1. from a scheme of federal regulation so pervasive as to make reasonable the inference that Congress left no room to supplement it; or 2. because the act of Congress touches a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject; or 3. because the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose. *** A state can regulate interstate commerce EXCEPT where it violates Dormant Commerce Clause, P&I or is preempted by Federal legislation. *** 30 VII. Separation of Powers Executive exercise of legislative power Youngstown Sheet and Tube Co. v Sawyer (1952) Faced with imminent steel strike, Pres Truman orders Sec of Commerce to seize steel mills because of fear of steel shortage in face of demands of Korean war. The steel mills challenged the power of the Pres to take this action as being without constitutional authority or prior congressional approval. The President was relying on ―inherent powers‖ of the Presidency and based on his findings that the action was necessary to avert a national catastrophe and that he was acting ―within the aggregate of his constitutional power as the Nation’s Chief Executive and Commander in Chief.‖ 31