Constitutional Law - Hogue Fall 2003 Page 1 of 56 Constitutional Law I. The Nature and Sources of the Supreme Court’s Authority A. Judicial Review: The Bases and Implications of Marbury v. Madison 1. Marbury v. Madison i. Authority for doctrine of judicial review. ii. Court claimed a significant new role for itself. iii. Question of scope of judicial review is still open. iv. Courts are most undemocratic of public institutions. a. Cannot get rid of. b. Salary cannot be decreased. v. There is a lack of accountability with regard to the Supreme Court. vi. Marbury was a non-event because it did not strike down anything anyone cared about. vii. Implications of Marbury came later. viii. Court did not strike down a Congressional law until the Dred Scott decision. ix. Facts a. Marbury wants a justice of peace in DC as appointed by last administration. b. Incoming administration refused to acknowledge commission because it had not been delivered to Marbury. c. Just because commission had not been delivered to Marbury does not defeat the claim 1). When a commission has been signed by the President, the Commission is complete. d. The Judiciary Act of 1789 gave the Supreme Court appellate jurisdiction from the Circuit Courts and Courts of the several states. e. Marshall indicates that Constitution only gives the Supreme Court original jurisdiction over specifically indicated matters (which do not apply in this case). All other matters, the Supreme Court only has appellate jurisdiction. f. Marshall indicates that “It is emphatically the province and duty of the judicial department to say what the law is.” 1). In other words, the court is to interpret legislation. g. Marshall also indicates that the courts must decide the operation of law when there is a conflict. h. Marshall indicates that the Constitution is superior to legislation and must govern the case and Supreme Court determines which view prevails. 1). Essentially, Supreme Court is the apparatus for judicial review. i. Marshall claims judicial review of laws passed by Congress – this does not appear anywhere in Constitution.
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Constitutional Law - Hogue Fall 2003 Page 2 of 56 j. The easiest solution to this case would be to say that there is NO JURISDICTION. k. Marshall essentially limited the power of the Supreme Court by making the writ of mandamus unavailable to the Court. l. The Congress did not really care about this and therefore, the case did not raise Congressional or public uproar. m. A close reading of the case reveals a forced reading of the statute and a conscious effort to construct a role for judicial review. n. Marshall poses some examples of why judicial review of Congressional mandates is necessary. All of these deal with flat-out prohibitions. o. Last paragraph indicates that laws made in pursuance of the Constitution could mean that laws must be adopted under the Constitution. Jefferson’s Letters i. Jefferson believed that all three branches are equal in terms of being able to determine constitutionality. ii. Courts have tended to trend lightly when coming up against other branches of government. Jackson’s Veto Message i. Jackson says the opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. Abraham Lincoln i. Lincoln was concerned that the fact that the Supreme Court had decided a case would mean that what they said would always remain law. ii. Lincoln indicated that the voters should be able to decide issues by legislation, even if the Supreme Court had supposedly already spoken as to the Constitutionality of the issue. Roosevelt i. Roosevelt basically said that legislation should continue and the Constitutionality should be left up to the Court. ii. Roosevelt argued that the legislation was the will of the people and the legislature and executive had the duty to uphold the will of the people. iii. Perhaps continuing legislation on the subject would be convincing to the court that the people actually wanted the legislation. iv. If Congress in involved in a standoff with the Supreme Court, the continuing enactment of laws may send a message to the Court. Worchester v. Georgia i. Supreme Court decided that Georgia had no legislative authority over Cherokee Nation lands.
Constitutional Law - Hogue Fall 2003 Page 3 of 56 ii. Even though Supreme Court decided, Georgia continued to do things because they relied on executive branch to enforce, and they did not. 7. Cooper v. Aaron i. Tests the question of how forcefully the Court speaks through judicial opinions. ii. Desegregation of LR, Arkansas school district. iii. Argument was that school district was not bound by the decision because they were not a party. iv. The case goes to the Supreme Court and they basically say that there are no arguments and that school board should shut up and go away. 8. Practical Issues of Judicial Review i. Anastasoff v. United States a. Issue has to do with Rule 28 of 8th Circuit Court of Appeals. b. Rule 28 allows unpublished opinions and indicates that they are not precedent. c. Court finds the Rule unconstitutional. d. Unconstitutionality revolves around the existence of precedent. e. Policy reasons for following precedent 1). Fundamental fairness – like cases should be treated alike. 2). The need for predictability. 3). As an aid to judicial decision-making. f. The Constitutional impediment is that the power to ignore precedent is beyond the powers granted to the judiciary under Article II. g. The court indicates that precedent was well-established and the Framers of the Constitution intended that precedent was part of the grant of judicial power under Article III. h. Article III gave the legal authority to determine the law but, implicit in this, is that courts will follow precedent. i. Even in times when there were no written opinions or reporters, courts attempted to follow precedent. j. Anastasoff gives a texture of legal decisions, bringing in sources to prove the point that they are trying to make. k. Precedent is important in determining doctrines of the Constitution. l. The document itself is just the beginning – Constitutional Law is mainly what the courts have said it is. m. The “law” of the Constitution is what the courts interpret it to be. B. Constitutional and Prudential Limits on Constitutional Adjudication – Doctrines Restraining the Power of the Court 1. Categories tend to overlap each other. 2. Article III allows courts to take up only “cases and controversies”.
Constitutional Law - Hogue Fall 2003 Page 4 of 56 3. Political Question Doctrine i. Baker v. Carr a. Tennessee had not apportioned their General Assembly since 1901. b. Petitioners do not believe that General Assembly is representative of the population. c. General Assembly is the legislative body. d. Issue is whether Supreme Court can hear the case. e. Guaranty Clause – Article IV, § 4 – Congress will guaranty every state “a republican form of government.” f. In this case, the Court could decide that Congress had not done its duty under the Guaranty Clause. g. Luther v. Borden 1). Two groups competing for control of RI government. 2). Plaintiff wanted to recover for trespass of government agents. 3). Supreme Court would not decide issue because the Constitution leaves it up to Congress to decide what the lawful government of RI was. h. The dissent argues that Baker involves a state’s determination of procedures for government and thus, is like Luther. 1). The dissent argues that Supreme Court should not hear case because of the Guaranty Clause. i. Precedent in a previous case of apportionment indicated that Guaranty Clause was implicated. j. The majority indicates that it is an Equal Protection issue, not a Guaranty Clause. k. Why does dissent say that Equal Protection claim is simply a Guaranty Clause in disguise. 1). The dissent argues that there is no claim that everybody is being treated equally, it is a claim that it is unfair. 2). This is a Guaranty Clause claim masquerading as an Equal Protection claim l. The narrow holding of Baker is that the case can go to trial. m. Subsequent litigation indicates that there is a judicially manageable standard of one-person, one-vote. n. Standards for determining if issue is a political question 1). A textually demonstrable Constitutional commitment of the issue to a coordinate political department; 2). Lack of judicially discoverable and manageable standards for resolving the issue;
Constitutional Law - Hogue Fall 2003 Page 5 of 56 3). Impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; 4). Impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; 5). An unusual need for unquestioning adherence to a political decision already made; 6). Potentiality of embarrassment from multifarious pronouncements by various departments on one question. ii. Powell v. McCormack a. Conflict between Constitutional provision for requirements for House of Representatives and Constitutional statement that allowed House to determine qualifications of its own members. b. The Supreme Court found the issue justiciable and found for Powell. c. Court applies Baker v. Carr and finds that Article I, § 5, cl. 1 is “at most a textually demonstrable commitment to Congress to judge only the qualifications expressly set forth in the Constitution.” iii. Goldwater v. Carter a. Issue is whether President can terminate treaty with foreign country without participation of the Senate. b. Constitution is silent as to Senate participation. c. Court holds that the issue is not justiciable. 1). Reasons i). Authority of president in foreign relations. ii). Constitution is silent as to Senate participation. d. Powell disagreed with Rehnquist as to justiciability 1). Reasons i). No textually demonstrable Constitutional commitment of treaty termination powers to the President. ii). No lack of judicially discoverable and manageable standards. iii). Interpretation of the Constitution does not imply lack of respect for other branches of government. iv. Nixon v. United States a. The case does not stand for the proposition the court abdicated the power to review Senatorial processes for impeachment. b. The very act of taking the case negates the act of abdicating.
Constitutional Law - Hogue Fall 2003 Page 6 of 56 c. Nixon argues that the provisions for impeachment call for an actual trial. d. In essence, the Court says that the Senate is the custodian of their impeachment procedure. v. Bush v. Gore a. Presidential election of 2000. b. Interplay between Constitutional considerations and statutory considerations. c. Political candidates do not have due process rights in election recounts, it is actually the voters who hold the due process rights. 4. Advisory Opinions, Standing, Mootness, and Ripeness i. Rule Against Advisory Opinions a. Court has taken a position that it will not render advisory opinions. b. 1793 Request by Washington 1). Washington requested Supreme Court Justices’ opinions upon U.S. neutrality in the war between England and France. 2). Justices refused to offer opinion. 3). Question was whether certain assistance to France or England qualified as being neutral. 4). Supreme Court uses “case or controversy” requirement. 5). Reasoning i). Checks and balances. ii). Court of last resort. c. Supreme Court will not decide “moot” cases. 1). Moot cases are those that a decision will not have any effect on the rights of the parties or the legal relationship between the parties. d. Declaratory judgments are considered a final judgment on the merits and thus, there is something at stake. 1). The judgment affects the rights of the parties or the legal relationships between parties. 2). Hypo – could seek declaratory judgment as to whether porn was obscene. 3). With declaratory judgments, the decision is binding – it is not merely an advisory opinion. ii. Standing to Litigate a. Warth v. Seldin 1). Plaintiffs have challenged the Constitutionality of zoning. 2). The Court indicates that the plaintiffs lack standing.
Constitutional Law - Hogue Fall 2003 Page 7 of 56 3). The claims that the plaintiffs are making are speculative – there does not appear to be an injury suffered. 4). The Court indicates that the minimum Constitutional mandate is that the plaintiffs must have suffered some threatened or actual injury resulting from the allegedly illegal action. 5). Dissent argues that the plaintiffs should be given the opportunity to develop evidence of an injury. 6). Behind the idea of standing is a rational policy for not allowing people to come into court and litigate until they find something to really litigate. b. Lujan v. Defenders of Wildlife 1). ESA – Endangered Species Act. Originally, the law was to be applied in a foreign country. However, the regulation was revised to apply only to actions in the U.S. 2). Plaintiff’s argued that regulation should be applied in foreign countries. 3). Supreme Court indicates that the plaintiff must have suffered an injury, there must be a causal connection between the injury and conduct complained of, and it must be likely that the injury will be redressed by the court’s action. 4). Majority is concerned with allowing a right to sue the government for any generalized grievance. 5). The problem with judicial branch ruling to determine whether executive was doing properly with regard to ESA is that it is violative of separation of powers. 6). Farther away the plaintiffs are from a concrete injury, the more likely it is to be a generalized grievance and the courts will have to decide policy, which is more closely a legislative or executive function. 7). Majority also indicates that redressability is not met because agencies were not parties to the suit and the injury could not be redressed. 8). Blackmun/O’Connor Dissent – The dissent argues that procedural injuries may rise to the level of injury sufficient to confer standing. “There is no room for a per se rule or presumption excluding injuries labeled procedural in nature. c. Friends of the Earth v. Laidlaw Environmental Services 1). Similar to plaintiffs in Lujan. However, none of the injuries were conjectural.
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Constitutional Law - Hogue Fall 2003 Page 8 of 56 2). Harm does not have to be economic. 3). Harm must be personally experienced to qualify as injury. Arlington Heights v. Metropolitan Housing Corp. 1). Detailed housing project for low and middle income housing that was refused based on zoning. 2). Court allows suit because this was an injury in fact. Exceptions to Rigorous Requirement of Standing 1). Generally, Third-Party Standing is not allowed. i). More likely to be allowed the closer the relationship and the greater the identity of interest with the rightholder. ii). Craig v. Boren a). Statute allowed women to buy alcohol at lower age than men. Generalized Grievances 1). Court has a long history of declining to adjudicate claims at behest of plaintiff who is one of millions. 2). Frothingham v. Mellon i). Action by taxpayer to challenge spending by Congress in violation of the Constitution. ii). Court indicated her stake was the same as the general population and thus, she lacked standing to challenge. 3). Flast v. Cohen i). Court allowed generalized grievance because taxpayer raised an alleged Establishment Clause (Constitution) claim. a). Establishment Clause indicates that government cannot prescribe religion. ii). Valley Forge case was similar but addressed the property clause and Supreme Court narrowly construed Flast to only allow standing for generalized grievance for an alleged violation of Establishment Clause. Zones of Interest 1). Supreme Court has indicated that the zone of interests test is purely a prudential standing issue and can be negated by express action of Congress. Congressional Power to Confer Standing 1). FEC v. Akins i). Court concluded that Congressional grant of power of voters to challenge the failure of the
Constitutional Law - Hogue Fall 2003 Page 9 of 56 FEC to treat the American Israel Public Affairs Committee as a public committee subject to certain reporting and disclosure requirements was valid. ii). Injury is informational – directly related to voting, the most basic of political rights and is concrete enough to confer standing. 2). Vermont Agency of Natural Resources v. U.S. i). Court indicates that Congress can assign claims that the government may have for injury to a private plaintiff. i. Legislative Standing 1). Raines v. Byrd i). Issue is the Line Item Veto Act ii). A group of legislators on their own do not have standing to challenge how the executive administers the laws that Congress passes. j. There are some Constitutional challenges that cannot be heard because there is no one who has proper standing. iii. Mootness and Non-Ripeness a. Mootness 1). Requirement of an ongoing dispute. 2). Exception i). Constitutional issues that are “capable of repetition yet evading review”. ii). Rowe v. Wade is an example. Issue would have taken longer than 9 months. iii). Only if there is an exception to mootness granted. 5. Supreme Court Authority to Review State Court Judgments i. Martin v. Hunter’s Lessee a. Land seized from British Loyalists by Virginia. b. One claimant claims title through original British owner. Other claim is from forfeiture. Validity turns on whether seizure was valid. The real issue is the validity of Supreme Court review of State Court judgments. c. § 25 of Judiciary Act allowed Supreme Court to review final decisions of the highest State Courts rejecting claims based on federal law. d. Supreme Court asserted power to invalidate State Court decisions regarding matters that touched on federal law. ii. Power over State Courts is important because of uniformity. Different results could be obtained in interpreting federal law. iii. Decision in Hunter’s Lessee allows Supreme Court to promote uniformity. iv. Cohens v. Virgina
Constitutional Law - Hogue Fall 2003 Page 10 of 56 a. Supreme Court review of state criminal cases. b. Virginia argued: 1). Supreme Court granted ORIGINAL jurisdiction over cases involving states. 2). Since this was an appeal of a case involving a state, Supreme Court was precluded from hearing it. c. Supreme Court (Marshall writing) held that the judicial power of the Supreme Court extends to all cases arising under federal law, whoever may be a party. d. Marshall took a harsh view of state court judge’s bias. 6. Political Restraints on the Supreme Court: May Congress Strip the Court of Its Jurisdiction? i. Article V allows amendments to the Constitution. a. Difficult to accomplish because of supermajority requirements in Congress and the States. ii. Impeachment can be a check on judicial power. a. Ideological disagreement is not seen as proper ground for impeachment. iii. Congress can set size of Court and times at which Court meets. iv. Effective tool to influence Court is the selection process itself. v. Historically, Senate would only reject based upon incompetence or defects in character or temperament. a. This changed with Bork. b. Senate now feels free to probe Constitutional views of Supreme Court candidates. vi. Presidents can select Justices that support their views; however, the justices often turn out to have differing views. vii. Final route is the power of Congress to make exceptions to Court’s appellate jurisdiction. a. Ex Parte McCardle 1). McCardle was in military custody for publishing incendiary and libelous articles. 2). Reconstruction Acts provided for military governments. 3). McCardle brought habeas corpus act under Congressional Act of 1867 which allowed federal courts to hear cases and Supreme Court to have appellate jurisdiction. 4). After argument in Supreme Court, Congress repealed the appellate jurisdiction of the Court. 5). Supreme Court indicated that appellate jurisdiction is impacted by exceptions as allowed by Congress. 6). Without jurisdiction, Supreme Court cannot hear the case.
Constitutional Law - Hogue Fall 2003 Page 11 of 56 b. Ex Parte Yerger 1). Similar situation as McCardle case. 2). Yerger brought original habeas corpus action in Supreme Court as allowed under law. 3). No decision as to Constitutionality because the issue became moot – Yerger was released from military custody. c. Felker v. Turpin 1). Similar to Yerger case. 2). Allowed to bring habeas case in Supreme Court under original jurisdiction. d. United States v. Klein 1). Statute allowed pardon by president to indicate part of rebellion and court must dismiss for lack of jurisdiction. 2). Court held statute unconstitutional i). Interfered with judicial autonomy and ii). Denied effect to presidential pardon and interfered with executive autonomy. e. Plaut v. Spendthrift Farm, Inc. 1). Congress enacted a law that required federal courts to reopen final judgments. 2). Court held that this violated separation of powers. 3). Framers gave judiciary power to decide cases subject to review only by superior courts. 4). Congress cannot force court to retroactively reopen judgments. viii. Constitutional Limits on Congressional Power over Appellate Jurisdiction a. Internal restraints - There is an argument that Article III does not allow Congress to interfere with essential function of courts. 1). Problem is defining what the essential function of the court actually entails. b. External restraints – Congress has the ability to keep some classes of cases out of federal courts. 1). Domestic relations? c. Practical Considerations 1). Threats on appellate jurisdiction are signals to the Court of Congressional displeasure with Court. ix. Modern Congressional Efforts a. Jurisdiction stripping in specific classes of cases 1). Busing 2). Abortion 3). School prayer 4). All proposals have failed.
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Constitutional Law - Hogue Fall 2003 Page 12 of 56 National Powers and Local Activities: Origins and Recurrent Themes A. McCulloch v. Maryland 1. 2nd Bank of U.S. chartered in 1816 2. Maryland legislature imposed a tax on all banks not chartered by Maryland legislature. 3. State brought suit against McCulloch, the cashier of 2nd Bank of U.S. 4. State courts found in favor of Maryland and the case went to the U.S. Supreme Court. 5. First issue – Whether Congress has the power to incorporate a bank? i. Marshall indicated that among the powers of government enumerated in Constitution, incorporation of a bank is not expressly found. ii. However, the Constitution contains great powers conferred on the federal government. iii. Necessary and Proper Clause a. Article I, § 8 b. The clause allows the federal government to do what is necessary and proper. iv. Marshall views necessary and proper more loosely than Maryland’s construction, allowing federal government power to incorporate the bank. v. Act of incorporating the bank is Constitutional. 6. Second issue – Can Maryland tax a federal bank? i. When a state taxes the operations of the U.S., they are not taxing institution they ALONE created, but one that was created by others as well. ii. States have no power to control the operations of Constitutional laws enacted by Congress. 7. The McCulloch decision was landmark because the Supreme Court interpreted the necessary and proper clause to allow Congress to act in a manner appropriate for the nation as a whole. 8. McCulloch decision is i. Respectful to the Constitution; ii. Preserves balance of power; iii. Limiting on the Supreme Court. 9. Problems McCulloch addresses continue to this day. 10. McCulloch has some very famous phrases. i. “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” 11. Which branch of government would determine “necessary” powers? i. If you thought about it, it would probably be the legislature because the country was founded on this principle. ii. The problem arises when the legislature goes beyond or is a pretext. iii. The problem is how to determine when legislature has gone too far.
Constitutional Law - Hogue Fall 2003 Page 13 of 56 iv. Marshall indicates that Supreme Court is watching legislature – what this means is not readily apparent. 12. Second point of McCulloch that State of Maryland lacks power to tax the bank. i. The question is why State lacks power to tax the bank. ii. “The power to tax is the power to destroy” iii. Structure of government itself is what prevents Maryland power to tax the bank. iv. Part cannot tax the whole. 13. Pre-Text Problem/House that Jack Built Problem i. Does not help to identify when the line is crossed by the legislature as to what is necessary. ii. Historical Problems as to whether federal government has power to a. Ability to make Louisiana Purchase b. Interstate highway system. 14. Many clauses, including “necessary and proper” clause offer courts an open-ended opportunity to displace legislature in deciding what can be done. i. If you leave most decisions up to legislature, except for the pre-text problems left to judiciary 15. What did Marshall mean by “it is a Constitution we are expounding”? i. Constitution should provide the overriding principles. ii. The statement indicates that there will be evolution of what the Constitution means. B. Federal Limits on the Scope of State Power 1. U.S. Term Limits, Inc. v. Thornton i. Arkansas passed an Amendment to their state constitution that would limit terms of Congressional representatives. ii. Arkansas Supreme Court found the Amendment was unconstitutional under the federal constitution. iii. Majority focused on a. Uniformity among the states as to eligibility requirements. b. Eligibility requirements are the ceiling. c. National legislators represent the nation as a whole, while they are representing their individual states. Thus, it is important to have uniformity as to eligibility requirements. iv. Dissent argues that a. States can exercise all powers that Constitution does not withhold from them. b. Qualifications Clause is merely a recitation of minimum eligibility requirements. c. Qualifications Clause restricts state power only in that they prevent states from abolishing all eligibility requirements for membership in Congress. v. Default Rules
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Constitutional Law - Hogue Fall 2003 Page 14 of 56 a. Majority – States have no reserved power because power may not be reserved over that which does not exist. b. Dissent – States have all powers except those which Constitution specifically withholds from them. vi. One of the biggest issues is “Who do national legislators represent?” vii. Is it proper for Supreme Court to take this dispute in the first place? a. For majority, this is a national issue and thus, Supreme Court has proper role in deciding. b. For dissent, this is a states-rights issue and Supreme Court should not be involved. 2. Bush v. Gore i. Rehnquist Concurrence a. Concurrence is not consistent with their dissent in Term Limits because Term Limits dissent advocated that state legislature had ability to set eligibility requirements as long as minimum constitutional requirements were met. b. Consistent with majority approach in Term Limits because this is ii. Issue in Bush v. Gore was that Florida state court interference with legislative authority of state. U.S. Supreme Court indicated that state court cannot interfere. The Commerce Power A. Excellent vehicle for looking at how Supreme Court decides doctrine. B. For exams, would only look at how current interpretation of Commerce Clause. C. Early Interpretation of the Commerce Power 1. Gibbons v. Ogden i. Gibbons challenged Ogden’s monopoly of ferry business. ii. Ogden’s claim is NY legislative grant of monopoly. iii. Gibbons’ claim is based on federal coasting trade law. iv. Court has to determine if there is a basis for justifying the federal law. v. Court uses Commerce Clause (Article I, § 8, Clause 3) to justify. vi. Marshall indicates that navigation is a part of commerce and thus, Commerce Clause can be used to allow the federal law. vii. One thing Commerce Clause does not allow regulation of is INTRAstate commerce. viii. The problem is that there is nothing that goes on within one state that does NOT have economic impact on other states. ix. Marshall says that it has always been understood, the sovereignty of congress, though limited to specified objects, is plenary as to those objects, the power over commerce is vested in congress as absolutely as it would be in a single government. a. Marshall believes that Congress is elected and this can be way to limit congressional power. 2. U.S. v. E.C. Knight i. Knight had acquired other companies and controlled 98% of the U.S. sugar refining capacity.
Constitutional Law - Hogue Fall 2003 Page 15 of 56 ii. Court held that commerce follows manufacture. iii. Court is trying to carve out scope of authority allowed to states under the Commerce Clause. iv. In this case, the court indicates that manufacturing is not commerce and Congress cannot regulate this because it is state area. v. If Congress had power over anything to be the subject of commercial transactions, they would have power over “every branch of human industry.” vi. “Commerce depends upon population, but Congress could not, on that ground, undertake to regulate marriage and divorce. vii. This is the beginning of the doctrine of a. Limitation of congress in the exercise of the “Commerce Power” 3. Houston E. & W. Ry. Co. v. United States i. Railroad had rail lines within Texas and between Texas and Louisiana. The railroad maintained lower rates for in-state traffic and charged higher rates for interstate traffic. ii. Court holds that whenever the interstate and intrastate transactions are so related that control of one involves control of the other, Congress can regulate. iii. Effect of the Texas law is to undermine the federal regulatory scheme, thus impacting interstate commerce. iv. Doctrine for this Case a. Congress can regulate intrastate commerce when it affects commerce external to state lines. b. This is doctrine of empowerment. c. Diametrically opposed to previous case. v. Court then tries to settle cases under this doctrine a. Swift & Co. v. United States 1). What to do with stockyards. Farmer sells to stockyard, cattle is then loaded onto trains and sent to other states. Can Congress regulate stockyards? 2). Appears to simply be a step in the process. 3). Court indicates that Congress can regulate because this is part of the stream of commerce. 4). Congress moved to regulate stockyards and Court allowed them to regulate under commerce clause. D. National “Police” Regulation and the Commerce Clause 1. Champion v. Ames i. Federal Lottery Act of 1895 prohibited the transportation of lottery tickets across state line. ii. Man challenged Constitutionality after indictment for shipping Paraguayan lottery tickets from Texas to California. iii. Court indicates that lottery tickets are subject to traffic and are subjects of interstate commerce.
Constitutional Law - Hogue Fall 2003 Page 16 of 56 iv. The problem of this is that it appears to be a pretext for Congress regulating morals through the Commerce Clause. v. Historically, police power is wielded by the state, not necessarily the federal government. vi. This is a difficult (5-4 decision) case for the court. vii. Validates use of the Commerce Clause irrespective of motive. a. Congress does not have to have economic objective in mind. b. They can regulate on moral grounds. 2. Hippolite Egg Co. v. United States i. Confiscation of eggs because they had a deleterious ingredient. ii. Company resisted seizure because they were out of commerce when they were seized. iii. Court indicates that articles which are outlaws of commerce may be seized wherever found. iv. Case is unanimous. 3. Hoke v. United States i. Transportation of women in interstate commerce for immoral purposes. ii. Court holds that this is interstate commerce and can be regulated by Congress. 4. Collectively, these cases indicate that Congress can regulate offensive activities through the use of the Commerce Clause. 5. At this point, Congress is beginning to think about other things that they find offensive. E. Child Labor 1. Two problems i. Drive down wages through use of child labor. a. Unions pressured Congress to address. ii. Impact on children 2. Congress passed law that excludes products made by child labor from interstate commerce. 3. Did not regulate employment of children – sought only to regulate products moving in interstate commerce. 4. Hammer v. Dagenhart i. Father in NC challenged Constitutionality of the federal law. ii. The Court held the law Constitutional. iii. Court holds that power to regulate hours, wages, ages, etc. is purely a state matter. F. How Cases fit Within Doctrine 1. E.C. Knight Doctrine – Limited Power of Congress Doctrine i. Hammer 2. Shreveport Rate Doctrine – Empowerment Doctrine i. Champion ii. Hippolite Egg iii. Hoke
Constitutional Law - Hogue Fall 2003 Page 17 of 56 G. Supreme Court Threatens the New Deal 1. Railroad Retirement Board v. Alton Railroad Co. i. Court invalidated law requiring a retirement and pension plan for all interstate carriers. ii. Pensions have at best a remote relationship to interstate commerce. iii. Thus, there is no nexus between pension and interstate commerce. iv. Wake-up call for FDR administration. v. New Deal was designed to revive economy and this case went against that initiative. 2. Schechter Poultry Corp. v. U.S. i. Everything went on intrastate. ii. Court invalidated National Industrial Relations Act because. 3. Carter v. Carter Coal Co. i. Wage and Hour regulation that applied to coal mining industry. ii. Implied tax on non-compliance in order to enforce the law. iii. Essentially, this tax hurt mines that did not comply to law. iv. Stockholder suit. v. Court held that there was no grant of power to Congress to impose this type of law. vi. Effect of labor provisions falls on production not commerce. 4. Court begins to undergo changes. 5. FDR come up with court-packing plan. i. For every old judge on court, a young judge would be named to help him out. ii. Labor unions did not endorse and other factions, as well. iii. Oldest justice (Brandeis) got pissed off and lobbied against the plan. 6. Right around this time, the composition of the court changed. H. The Decline of Limits on the Commerce Power 1. NLRB v. Jones & Laughlin Steel Corp. i. NLRA passed in 1935 ii. Jones & Laughlin discharged 10 employees in PA. iii. Majority sees this as a direct effect on interstate commerce because the nature of the business is that of a completely integrated enterprise. a. Interstate transportation b. Raw materials from many states c. Shipments to many states d. Basically, this takes the Shreveport Rate approach. e. The Court does not overrule E.C. Knight because Court essentially looks at commerce in a different manner. f. Court indicates that acts which directly burden or obstruct interstate commerce are within the power of Congress. g. Court does not want to invalidate E.C. Knight because they are not willing to make the leap to full Congressional power. 2. United States v. Darby i. Darby challenged FLSA.
Constitutional Law - Hogue Fall 2003 Page 18 of 56 ii. Congress wants to prohibit the interstate shipment of goods produced with below-minimum wage labor. iii. Court overrules Hammer v. Dagenhart (child labor case). iv. Court indicates that Carter Coal does not apply because facts are different. v. This case is following the Shreveport Rate line of cases. vi. 10th Amendment a. Court trivializes the Amendment by indicating that it is not a conferral of power, it is only a residuary clause. 3. Wickard v. Filburn i. Filburn challenged constitutionality of Agricultural Adjustment Act. ii. Filburn was penalized for exceeding quota for wheat on his family farm. iii. Filburn argued that excess was used for internal consumption. iv. Wheat does not even leave the farm – how can federal commerce power reach that far? v. Court says that federal power can reach that far. vi. Effects on national wheat market when all of the family farmers are added up. vii. Court does two things a. Does not treat Filburn in isolation – must be looked at in aggregate. b. Excess production means that they do not buy from market to reduce supply. This contributes to a national problem. viii. This case is of major significance because it is one of the high points of government regulation. 4. Maryland v. Wirtz i. Upheld extension of wage and hour laws to basically all employers. 5. Hodel v. Virginia Surface Mining & Recl. Ass’n i. Court standard of review is only whether there is a rational relationship between regulation and interstate commerce. ii. Extreme deference to legislature. I. Using the Commerce Power for Social Ends 1. Civil Rights Cases i. Title II of Civil Rights Act prevented discrimination in public accommodation. ii. Heart of Atlanta Motel v. United States a. Owner of motel claimed that motel did not have anything to do with interstate commerce. b. Court says that it does have something to do with interstate commerce. 1). Was at confluence of interstate highways. 2). Advertised nationally. c. Case was not hard to decide. iii. Katzenbach v. McClung
Constitutional Law - Hogue Fall 2003 Page 19 of 56 a. Vastly different setting because it was serving essentially only local customers. b. McClung refused to abide by Civil Rights Act. c. Defended on grounds that Commerce power did not reach that far. d. Argument was that this impacted spending and thus, it affected interstate commerce. e. Also, argument was that McClung used food that had traveled in interstate commerce. J. Commerce Power Used to Control Crime 1. Perez v. United States i. Loansharking case. ii. Perez lent money and threatened violence when debtor balked. iii. Court indicates that loansharking has a national impact and thus should be regulated because of the aggregation theory. iv. Dissent argues that all crime is a national problem and this is not enough to justify federal oversight. K. Limits on Commerce Power Since 1995 1. United States v. Lopez i. Issue was the Constitutionality of the Gun-Free School Zones Act of 1990. ii. Lopez is the starting point for current law. iii. Three Broad Categories Congress can Regulate Under Commerce Clause a. Use of interstate channels b. Power to regulate instrumentalities, persons, or things involved in interstate commerce, even if there are intrastate effects. c. Activities having a “substantial effect” on interstate commerce. iv. The third category is the most difficult to visualize. v. The third category is difficult because anything seemingly would affect interstate commerce in some manner. vi. Court indicates that the statute has nothing to do with commerce or economic enterprise and is not part of larger regulation of economic activity. vii. Lack of Congressional findings is also something that majority indicates is a problem. viii. Statute did not have any jurisdictional limits that include connection with interstate commerce. ix. In this case, guns travel in interstate commerce; however, the majority indicates that this does not allow Congress to regulate possession of guns in school zones. a. “The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition
Constitutional Law - Hogue Fall 2003 Page 20 of 56 elsewhere, substantially affect any sort of interstate commerce.” x. Court distinguishes police power as being something reserved to states and thus a reason for not upholding statute. xi. After Lopez decision, Congress added language about interstate commerce to give a jurisdictional nexus to the statute. a. This provision picked up the category two of interstate commerce and thus, this makes the statute more robust with regard to the ability of Congress to regulate possession of a gun in a school zone. xii. Also, after the decision, Congress added specific findings that were designed to indicate just how gun possession in school zones had an effect on commerce. xiii. Since amendment, there has not been a successful challenge to conviction. 2. United States v. Morrison i. Violence Against Women Act ii. Congress made findings of fact that indicated Act was in furtherance of regulating interstate commerce. iii. Reasons for Unconstitutionality of Act a. Non-economic activity b. There is nothing that could not escape the Commerce Clause under the government’s reasoning. iv. Under the government’s reasoning, there is no limit to the power of the Congress to regulate what have been traditionally left to the states. v. States actually supported the Federal regulations because they believed that national action was necessary. 3. What kind of rationale is appropriate to support these cases? i. Arguments for State Control a. States are better situated to deal with problems that vary geographically, by allowing them to craft regulations to deal with the local problems in the appropriate manner. b. If there is a multiplicity of different State views, people could live in State in which the law was as they preferred, as opposed to being governed by Federal law. c. State control would allow for experimentation in law, as opposed to a rigid Federal structure. d. Smaller scale of State government might be more appealing to constituency. ii. Arguments for Federal Control a. Local variation might be undesirable or ineffective. b. Federal control is needed where some States might allow imposition of things like pollution to impact other states. c. Federal government has the incentive to provide goods whose benefits could not completely be captured by any single state.
Constitutional Law - Hogue Fall 2003 Page 21 of 56 d. National government might be better able to insure against catastrophes and to redistribute income among the populations of different states. e. State control might lead to destructive competition and a “race to the bottom”, as indicated in areas such as child labor. f. National regulation might be desirable to overcome tyranny of local majorities. iii. If the federal government took over areas of state concern, boundaries would blur and political responsibility would become illusory. L. External Limits on the Commerce Power 1. These cases deal with regulation on the actual activity of State governments. 2. When looking at the question of whether Congress can regulate state activity, would look at sovereignty and figure that Congress cannot regulate state activity. 3. Coyle v. Oklahoma i. Federal enabling act to allow states to enter union required Oklahoma to have its capital in a certain place. ii. Court found this to be beyond the control of Congress. iii. Congress cannot meddle with “essential attributes of state sovereignty” iv. Question is what are the essential attributes of state sovereignty. 4. There used to be a distinction between things done for a governmental objective versus for a proprietary (profit-making) objective. i. This line has blurred. ii. For example, Georgia could raise money for education by taxes; however, they raise money for education through lottery. iii. Is this governmental or proprietary function? 5. United States v. California i. State-owned terminal railroad system. ii. Court upheld penalty on a CA-owned railroad for a federal violation. iii. Rationale was that since Congress could regulate railroads, they could regulate CA’s railroad. iv. Court indicates that railroads were not an “essential state power” that had immunity from Congressional regulation. 6. NY v. United States i. Taxation of a state-owned water bottling operation. ii. Court upheld because Congress was taxing whoever earned, even if a state. 7. National League of Cities v. Usery i. Application of FLSA wage and hour provisions to public employees in state and local governments. ii. Court indicates that Congress went beyond power by applying FLSA to state employees.
Constitutional Law - Hogue Fall 2003 Page 22 of 56 a. Congress cannot remove State’s authority to regulate employer-employee relations. b. Injurious to public services such as fire and police protection, sanitation, public health, etc. iii. Invasion of “integral governmental sanctions” iv. Dissent indicates that the political process should govern – NOT judicial process. 8. EEOC v. Wyoming i. Wyoming challenged Constitutionality of Age Discrimination in Employment Act application to state employees. ii. Court upheld Constitutionality because federal intrusion was less serious than National League of Cities. 9. Garcia v. San Antonio Metropolitan Transit Authority i. Overruled National League of Cities case ii. Court indicates that imposing limits of Congress’ authority to interfere with state function is not the business of the courts. iii. Court indicates that political process is the appropriate place for these decisions. iv. Dissent argues that political process is not sufficient protection and is inconsistent with the Constitutional system of checks and balances. v. Dissent argues that political changes make Congress insensitive to state and local concerns. a. Reasons 1). Adoption of 17th Amendment that provided for direct election of senators 2). The weakening of political parties at the local level 3). Rise of national media vi. Dissent argues that National Power has become the norm, not the exception. 10. NY v. United States i. Challenge was to Federal Low-Level Radioactive Waste Policy Act ii. Act required states to dispose of waste created within their borders. iii. Three incentives for compliance a. States with disposal sites could impose a surcharge on radioactive waste received from other states. b. States could gradually increase the cost of access to their disposal sites and eventually deny access altogether to waste from States that did not meet Federal guidelines. c. A state that failed to provide for disposal internal to the state could take title to the waste and become liable for it. iv. Key to this case is that Court does not take “essential state powers” or “integral governmental functions” approach. v. The new approach is to determine whether an incident of state sovereignty is protected by a limitation on an Article I power.
Constitutional Law - Hogue Fall 2003 Page 23 of 56 a. This approach is a total abdication of responsibility for articulating a standard. vi. Only if there is an incident of state sovereignty that is immune from Article I protection can a state resist Congressional regulation. 11. Printz v. United States i. Brady Act required instant background checks for firearm purchasers. ii. In interim, while system was being developed, required local law enforcement to make background checks. iii. The Constitution itself does not speak to the precise question of whether Congress can require local authorities to execute federal laws. iv. Scalia looked to early laws and indicated that state judiciary was being used for federal laws; however, the early laws did not require state executive action. v. Scalia also invokes Federalist papers and indicates that States must consent to responsibility for the execution of federal laws. vi. The main issues of the case are a. Who pays for federal law enforcement? b. Whose role is it to enforce federal law? c. Accountability for the law? vii. Scalia also argues that structure of Constitution creates dual sovereignty and if Congress could require local enforcement, it would be violative of this structure if there was not an independent basis such as the commerce clause. viii. Testa Case a. Congress passed law that created a new federal statute to prevent price gouging during WWII. b. Law required federal cause of action under statute to be heard in State court. c. Scalia indicates that Testa stood for the proposition that State courts cannot refuse to apply federal law, as required by the Supremacy Clause. d. Scalia differentiates that this is judiciary being forced to follow federal law, where this is attempting to make the executive enforce the federal law. ix. Why do you suppose Congress used State officers for the interim enforcement of the law? a. For the interim, local authorities might have better access to information. b. Would not cost Federal government anything. x. Interesting that majority argues for conservative concern - states rights; but limiting state rights in this case would help another conservative concern – federal bureaucracy. 12. Reno v. Condon i. Driver’s Privacy Protection Act was passed by Congress to prevent sale of personal information.
Constitutional Law - Hogue Fall 2003 Page 24 of 56 ii. SC laws required the sale of this information. iii. SC argued that this violated the 10th Amendment iv. Supreme Court found law Constitutional, indicating that information is a thing of interstate commerce and can be regulated by Congress. v. Also, Court indicates that the law does not require the States to do something or interfering with State’s executive. vi. Court indicates that this case is more akin to SC v. Baker that allowed Federal regulation of commerce. M. State Sovereign Immunity Limits on Congressional Power 1. Constitution, in enumerating diversity jurisdiction, clearly implies that citizen of another state can sue a state in federal court. 2. After Chisholm v. Georgia, Congress amended Constitution with 11th Amendment that allowed sovereign immunity to States is suits by citizens from other states. 3. Hans v. Louisiana - 1890 i. Not a case in diversity, but a federal question case. ii. Court indicated that 11th Amendment applies to federal question jurisdiction. iii. Consistent application of notion of sovereign immunity supports this decision, NOT the actual Amendment itself. 4. Ex Parte Young - 1908 i. Because you could not sue the state, the state could get away with any violation of the Constitution. ii. Supreme Court created the fiction of allowing suit of state official who is in charge of enforcing law. iii. Supreme Court indicated that this was OK under the 11th Amendment. iv. Would only allow injunctive relief. 5. Edelman v. Jordan i. Edelman’s issue was whether you could get retrospective relief for damages. ii. The Court indicated that retrospective relief in damages was not allowed, but injunctive relief was possible. 6. Fitzpatrick v. Bitzer i. Whether it would be ever possible to get damages against the State in view of the 11th Amendment immunity. ii. Supreme Court said 14th Amendment contained § 5 which allows Congress to enforce Amendment through appropriate legislation. iii. Part of appropriate legislation would be damages for violation. 7. Atascadero State Hospital v. Scanlon i. If Congress is going to abrogate States’ Constitutional immunity, it must be clearly expressed. 8. Pennsylvania v. Union Gas Co. i. Issue was whether Congress could 9. Seminole Tribe of Florida v. Florida i. Supreme Court said that Congress cannot abrogate sovereign immunity of States by allowing suit in federal court against states.
Constitutional Law - Hogue Fall 2003 Page 25 of 56 ii. Overruled Union Gas iii. Rejected claim that Congress, acting under Commerce power, could abrogate a State’s 11th Amendment immunity. iv. Tribe argued that State must negotiate in good faith. v. Supreme Court held that Congress cannot make State negotiate in good faith because State cannot be made a defendant. 10. Alden v. Maine i. Supreme Court elaborated on Seminole Tribe by indicating immunity includes lawsuits against states under a federal cause of action in STATE courts. 11. State sovereign immunity does not bar suits brought even by private individuals under federal statutes authorized by § 5 of the 14th Amendment. 12. Florida Prepaid v. College Savings Bank i. Court held that states had sovereign immunity with respect to patent and trademark infringement actions brought against state entities in federal courts. ii. Could still sue for injunctive relief against a state officer. 13. ADEA and ADA Cases i. Have held that Congress could not subject States to suit under federal law. 14. Congress can still exact waiver by withholding funds to states if they do not waive sovereign immunity. 15. Ex Parte Young is still good law. Federalism-Based Restraints on Other National Powers in the 1787 Constitution A. Other Important Restraints 1. Taxing Power 2. Spending Powers 3. Contain limiting language similar to Necessary and Proper Clause 4. Restriction is that taxing be for the general welfare. 5. Also, there are enforcement clauses in the 13th, 14th, and 15th Amendments that allow enforcement of the article by appropriate legislation. B. Taxing Power 1. A number of issues come up with the power to tax. i. Whether it is appropriate to use taxing powers for anything else except for raising revenue? ii. Whether it is appropriate to use taxing power if it is used as an endrun for other limitations imposed by the Constitution? a. For instance, if the matter is not within the powers of Congress, can taxing power be used to accomplish the same thing. 2. Child Labor Tax Case [Bailey v. Drexel Furniture Co.] i. Congress believes the marginal value of child labor is 10% because this is the amount that Congress decided to assess as a tax for using child labor.
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Constitutional Law - Hogue Fall 2003 Page 26 of 56 ii. Court decides that tax was a pre-text for penalizing the use of child labor and thus, the Court overturned the tax. iii. The Court offers three cases as authority for the proposition that Congress overstepped their authority. a. All cases are examples where tax by Congress was upheld. b. Veazie Bank v. Fenno 1). Court indicated that Congress had authority to regulate currency. 2). Effect of tax was to decrease the value of state bank notes. 3). Essentially, the effect would be to discourage and eliminate the use of state bank notes. 4). Court says that Congress has Constitutional power to regulate the national currency. c. McCray v. United States 1). Imposes tax on margarine. 2). Tax is more harsh on yellow margarine, less harsh on white margarine. 3). White product looked like lard. 4). Congress enacted the law to protect the butter industry. If yellow margarine has higher tax, consumers might be less inclined to purchase it and thus, butter was protected. 5). Motive of this law is to discourage the sale of margarine. 6). This subject matter does not seem to be within power of Congressional authority. 7). Court indicated that tax was not excessive and that Congress could impose the burden as it saw fit. d. United States v. Doremus 1). Narcotic Drug Act was challenged on basis that it was a special tax. 2). Purpose of Act was to discourage the trade in illegal drugs. 3). Taxation seems secondary to the discouraging of the sale/importation of illegal drugs. 4). More like McCray case because Congress did not have express Constitutional authority to regulate. 5). Court indicates that supervision and inspection of drug trade was reasonably related to the enforcement of the tax. iv. The common theme is that these three cases uphold the taxing authority of Congress.
Constitutional Law - Hogue Fall 2003 Page 27 of 56 v. Court is motivated to invalidate the Child Labor Tax because it is an end-run around the invalidity of Congressional regulation of child labor as decided in the Commerce Clause cases. C. United States v. Kahriger 1. Tax on gambling and also included a registration requirement. 2. Majority opinion indicates that tax does not cease to be valid merely because it discourages the activities taxed. 3. Unless there are penalty provisions extraneous to tax need, courts cannot limit Congressional authority to tax. 4. Concurrence indicates that the tax approaches the outer limits of constitutionality because it is attempting to regulate through tax. 5. Dissent argues that congress cannot regulate traditional state areas by wrapping the regulation in taxing power. D. Spending Power as a Regulatory Device 1. United States v. Butler i. Agricultural Adjustment Act ii. Government sought to stabilize farm prices by curtailing production. iii. Tax on processors of agricultural commodities. iv. Tax revenue was spent on benefits to farmers for reducing production. v. Court held Act unconstitutional. vi. Court indicates that the Act is coercive and is a scheme for purchasing submission to federal regulation. vii. Court held that the Act was not a valid exercise of the power to spend for the general welfare. viii. Court indicates that earmarking of money from tax provides standing to litigate the issue. ix. Court struck down the law as unconstitutional. x. Taxing and spending clause contains an apparent limitation on taxing and spending power that it must be for general welfare. xi. Court indicates that Hamilton view of general welfare is correct. Hamilton view was that power to tax and spend is limited only by the requirement that it be for the general welfare. xii. The Court indicates that general welfare has NOTHING to do with the case. xiii. The Court indicates that it invades the reserved rights of the states. xiv. The Court treats it just like the Necessary and Proper clause – it is toothless. xv. Hamilton’s position on general welfare is more broad than Madison’s thought that power to tax and spend is limited to general welfare being confined to those powers committed to the federal government. xvi. The 10th Amendment may act as a constraint. In this case, the 10th Amendment turns out to be the stumbling block. xvii. The Court indicates that agriculture is within the reserved powers of the States. 2. Steward Machine Co. v. Davis
Constitutional Law - Hogue Fall 2003 Page 28 of 56 i. Social Security Act imposed taxes on employers but provided credit for contributions to state unemployment fund that met requirements of Act. ii. Butler case had turned in part on the fact that the Act was coercive. iii. Here, the same argument might apply. iv. The Court indicates that motive does not equal coercion. v. Court says that temptations can be held out and this is not coercion. 3. South Dakota v. Dole i. Current doctrine of the Spending Clause. ii. Congress enacted a law that allowed federal government to withhold 5% of highway construction funds to states that did not have a 21 year-old minimum alcohol drinking age. iii. Court gave four general limits on spending power a. Must be in pursuit of the general welfare. b. Congress must condition funds unambiguously so that the States can exercise their choice knowingly, cognizant of the consequences of their participation. 1). This comes from Pinhurst case. 2). Provision in federal statute that dealt with rights of developmentally disabled individuals. 3). The question was whether the rights were enforceable against the States. 4). The Court found that this was not unambiguously clear that if federal money was taken, the State became liable. 5). If there is a quid pro quo required from the States, Congress must make this plain in order to protect from overreaching by Congress. c. Conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs. d. Other Constitutional provisions may provide an independent bar to the conditional grant of federal funds. iv. South Dakota argues that Congress cannot use spending power to regulate indirectly what it could not regulate directly because of the 21st Amendment. v. Court indicates that the condition imposed is directly related to purposes for which funds are expended – safe highway travel. vi. Court indicates that 5% withholding is not coercive – it is simply mild encouragement for the states to enact 21 year-old minimum drinking age. vii. Dissent a. Dissent argues that Congress cannot regulate the sale of liquor under the 21st Amendment.
Constitutional Law - Hogue Fall 2003 Page 29 of 56 b. Dissent also argues that establishment of minimum drinking age is not sufficiently related to highway construction. c. The dissent indicates that if spending power allows this type of regulation, the power is unlimited. d. Congress cannot condition grants on things that cannot be said to relate to t he expenditure of funds. e. Congress does not have enumerated powers in this area and this regulation is not allowed under Constitution. viii. At 5%, ALL States complied with the provision. This seems to indicate that either the 5% was coercive or the issue of allowing under-21 drinking was not that important to the States. E. War, Foreign Affairs, and Federalism 1. One of the stronger powers of Congress. 2. War Power i. War Power as a Congressional power. ii. Woods v. Cloyd W. Miller Co. a. Title II of Housing and Rent Act of 1947 regulated rents during war. b. This was challenged. c. Court indicated that exercise of war power did not necessarily end with war. d. Concurrence 1). War power is usually invoked in haste without a high degree of legislative probing. 2). When power is invoked to affect liberties, Constitutional basis should be carefully scrutinized. iii. Present-day situation deserves some discussion. a. Congress has not declared war since WWII. b. United Nations was created and condemns aggressive war in UN Charter. c. Article 51 of Charter authorizes individual or collective acts of self-defense. d. Nobody declares war anymore because they do not want to be branded an international outlaw – they invoke Article 51. e. All of the force authorizations invoked an enemy. f. The war on terror did not invoke an enemy. g. Should Court examine Constitutional basis for some of the decisions made in support of war on terror. F. Treaties, Foreign Affairs, and Federalism 1. Missouri v. Holland i. State of Missouri brought suit to prevent federal game warden from enforcing the Migratory Bird Treaty Act.
Constitutional Law - Hogue Fall 2003 Page 30 of 56 ii. Missouri argued that this was unconstitutional interference with powers reserved to the States under the 10th Amendment. iii. District Court held the laws promulgated under the treaty as unconstitutional. iv. The Act prohibited the killing, capture, or selling of certain birds except as permitted by federal regulations. v. The Supreme Court found the Act constitutional. a. Rationale 1). Acts of Congress are the supreme law of the land only when in pursuance of the constitution. 2). Treaties are supreme when made under authority of U.S. 3). In this case, there is a national interest at stake – food supply and insect control. 4). Subject matter is within States only transitorily vi. Fallout from this decision was that people feared far-reaching power of treaties and Constitutional amendments were proposed. a. All failed. vii. Under the Supremacy clause, a treaty made by the President and passed by 2/3 of Senate becomes the supreme law of the land. viii. Regulations at issue in Missouri v. Holland operated outside of scheme of state regulation of hunting. ix. Displacement of State’s regulation by the federal statute was the issue. x. Court indicates that a national interest is involved – food supply and insect control. xi. The subject matter is within States only transitorily. xii. Nothing in Constitution compels the federal government to do nothing and leave this matter to the States. xiii. This kind of expansive, unlimited view of treaty power did not become much of problem until the enactment of U.N. Charter. xiv. U.N. Charter dealt with human rights and the fear was that international treaties such as the charter would be used to get around the inability of federal government to impose on States with regard to civil rights. 2. Reid v. Covert i. Court rejected argument that law providing for military jurisdiction over servicemen’s families was independently supportable because of an international agreement. ii. Under international law, individual sovereign states have right to control everything within their borders. Problem arises when there is military within sovereign. a. Example 1). If tank runs over cab, servicemen would be subject to local law.
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Constitutional Law - Hogue Fall 2003 Page 31 of 56 2). Concern for prejudice against foreign military personnel. 3). Usually, there is agreement that military discipline infractions. iii. Status of Forces Agreement a. Relinquishment of host nation sovereignty in favor of country sending troops – this would be the international treaty in Reid v. Covert. iv. Treaty purported to extend court martial jurisdiction over civilian dependents. v. Essence of Constitutional complaint is that typical criminal safeguards are not present in military (no grand jury indictment, no jury trial, etc.). vi. Court held that no international agreement gave Congress power free from the restraints of the Constitution. vii. Court indicated that treaties and laws made in pursuit of them have to comply with the Constitution. viii. Court majority argued that it was clear that the reason treaties were not limited to those made in “pursuance” of the Constitution was so that agreements made by the United States under the Articles of Confederation. ix. Case stands for proposition that Congress may not take away guarantees in the Bill of Rights by implementing a treaty and then enacting laws in pursuance of this. x. Case did much to allay fears that treaty power was unlimited. xi. Case still left states vulnerable. G. Foreign Affairs Power of Congress 1. Where does Congress’ foreign affairs power come from? i. Sometimes argued that this power came from colonies themselves. ii. Theories say that foreign affairs power just hangs out waiting until there is a robust enough government. Then, the power goes to Congress and Executive. iii. Could also say that the power comes from Constitutional common law – simply the way the law has evolved. Federal Limits on State Power to Regulate the National Economy A. Intent of the Framers of the Constitution 1. Model for all of this is a national zone of free trade among the states. B. Dormant Commerce Clause 1. Invalidation of protectionist state legislation, even without Congressional pre-emption. 2. Why is it called the dormant commerce clause or the negative commerce clause? i. Because the clause is exercised by Congress only upon occasions in which State laws infringe upon the power of Congress to regulate interstate commerce. 3. Congress may consent to state regulation of commerce.
Constitutional Law - Hogue Fall 2003 Page 32 of 56 i. Thus, Congress may assent to the violation of the dormant commerce clause. 4. Congress has the final say in matters of commerce. i. Need for Court intervention in dormant commerce clause cases arises because of a. Congress attention is on other things. b. State action may be below the radar screen. C. Theoretical Underpinnings of Dormant Commerce Clause 1. Courts are needed to protect interests that will be disadvantaged in political process. i. Examples of Groups Protected a. Minorities b. Out of state interests 1). Since they cannot vote, they do not have direct influence on legislature. 2). Out of state interests CAN influence in-state activities because of shared economic interests with in-state activities AND they have the ability to lobby. ii. Courts typically use a rationality review – ANY justification for what the legislature has done. a. Basically, this a toothless review. iii. For political process protection, there is a heightened scrutiny. a. Higher scrutiny is used for things that cannot be trusted to political process. D. Early Developments 1. Gibbons v. Ogden i. Challenge to NY steamboat monopoly law. ii. Court indicates that the power to tax does not take over the power of the other sovereign whereas the exercise of the commerce power does infringe on Congressional authority. iii. Court indicates that there are permissible state regulations that impact commerce. a. Inspection laws b. Quarantine laws c. Health laws d. Regulation of purely in-state commerce iv. In order for Congress to regulate those powers reserved to states, there must be a national purpose or where the power is expressly given for a special purpose. v. Court indicates that the New York law must yield to Congressional law. vi. The conflict was between the NY steamboat monopoly and federal licensing of coastal trade. vii. Supremacy Clause upholds federal law. viii. This case is not a dormant commerce clause case.
Constitutional Law - Hogue Fall 2003 Page 33 of 56 2. Willson v. Black-Bird Creek Marsh Co. i. Black Bird Creek Marsh Co. was authorized by state law to build a dam. ii. Willson owned a sloop that was federally licensed. iii. Sloop broke the dam and Co. won damages in court. iv. Willson contended that the law authorizing the dam violated the Commerce clause. v. Congress had passed no act to regulate commerce that dealt with the ability to dam creeks within states. vi. Court holds that law is not repugnant to the Constitution because there is no conflict between the laws. vii. Main significance of Willson case is the first discussion of the “dormant” commerce clause. 3. Cooley v. Board of Wardens i. PA law required ships entering Port of Philadelphia to employ local pilots to navigate. ii. 1789 Congressional law indicated that state laws enacted afterwards would continue to regulate local use of pilots. iii. Regulation of pilots does impact commerce. iv. Issue was whether the PA law violates commerce clause. v. Congressional Act of 1789 contains a declaration that states retain power to regulate pilots. a. Rationale was that legislation by states was more appropriate for individual states than by national legislation. vi. Court holds that Congressional power to regulate commerce did not deprive states of power to regulate pilots. vii. Congressional legislation manifests an intent to leave regulation of pilots to states. viii. Commerce clause issue is implicated because law can affect the competition for pilots and thus, might affect interstate trade. a. Basically, it increases the cost of doing business. ix. Cooley gives us the thought that there are national activities under the spell of the dormant commerce clause but there are local activities that are unaffected by the dormant commerce clause. x. Cooley indicated that Congress cannot convey commerce power to the states. a. This has been overruled and now Congress may consent to state regulation of commerce. xi. Cooley standard is “national” v. “local”. 4. Court also tries to articulate standard as “direct” v. “indirect” impact on commerce. i. Direct impact is forbidden. ii. Indirect impact is not forbidden. iii. “Whistlestopping” regulations
Constitutional Law - Hogue Fall 2003 Page 34 of 56 a. Court came to different conclusions in two different conclusions. 1). One indicated a direct impact on commerce because it unduly burdened interstate commerce. 2). One indicated an indirect impact on commerce because it was in furtherance of safety. b. No real definition of what is direct and what is indirect. 5. DiSanto v. Pennsylvania i. State law imposed a license fee on travel agents for selling tickets for foreign travel. ii. Court held unconstitutional because it was a direct burden on commerce. iii. Dissent argued that direct-indirect approach was not appropriate and advocated a balancing approach that weighed local interests with maintaining freedom of interstate commerce. 6. Buck v. Kuykendall i. Demonstrates how malleable concept of safety is. ii. Washington state denied a license to an applicant desiring to operate a passenger line between Portland and Seattle. iii. Court found the regulation unconstitutional. iv. Rationale was that license was prohibiting competition, not to improve safety. v. More or less a naked preference for one competitor over another. vi. This is important because it is one of first times that Court inquires into motive and purposes of legislation – this is another wrinkle to dormant commerce clause jurisprudence. 7. Bradley v. Public Utilities Commission i. Ohio denied a license to operate a passenger line between Cleveland and Flint, MI. ii. Court found the regulation constitutional because the stated purpose was for safety and security. a. Evidence was presented that road was congested and the license would increase this problem and impact safety. iii. This just might have been better disguised restraint on competition. E. Facial Discrimination by States 1. Philadelphia v. New Jersey i. New Jersey law forbid importation of solid or liquid waste from out of state. ii. Landfill operators challenged the law. iii. Trial court found the law unconstitutional. iv. Highest state court reversed, indicating that safety was implicated and there was no burden on interstate commerce. v. Supreme Court reversed this decision. vi. Court indicates that out of state waste was no more dangerous than the allowed waste from New Jersey.
Constitutional Law - Hogue Fall 2003 Page 35 of 56 vii. Essentially, Court indicated that New Jersey was enacting protectionist laws that impacted interstate commerce. viii. Court indicates that New Jersey cannot discriminate against interstate commerce unless there is a reason to treat it differently. ix. What New Jersey is trying to do is preserve New Jersey landfills for New Jersey use. x. New Jersey landfill operators want the business and this law will impact the interstate demand for waste and impact their profits. xi. Supreme Court holds that dormant commerce clause forbids state protectionism. xii. Law has always allowed states to protect themselves from importation of noxious substances. a. Have always allowed states to quarantine, etc. xiii. Here, there is no argument that it is a quarantine law because the same stuff that is produced locally is not treated similarly. 2. Maine v. Taylor i. Sustained Maine’s law banning importation of bait fish. ii. Rationale was that Maine had a legitimate environmental interest of state to keep out parasites and non-native species. iii. This is an outlier case. One of the few cases that you can turn to when there is an outright ban on something. 3. Chemical Waste Management v. Hunt i. Alabama law imposed fee on out of state disposers of hazardous waste in Alabama landfills. ii. Court invalidated on similar rationale as Philadelphia v. New York. 4. Oregon Waste Systems v. Department of Environmental Quality i. Oregon law imposed a fee of $2.25/ton on out of state waste versus $0.85/ton on in-state waste. ii. Court invalidated because state did not show that increased amount was related to additional costs inherent in out of state waste. 5. West Lynn Creamery, Inc. v. Healy i. Massachusetts law imposed a fee on ALL sellers of milk to retailers. ii. However, Massachusetts gave rebate to Massachusetts dairies. iii. Scalia’s Concurrence a. Four Items in book. b. Scalia insisted that subsidy of local industry from general tax is OK under negative commerce clause. iv. Court holds that this is a violation of dormant commerce clause. v. Pure subsidies funded from general revenue are valid. vi. This subsidy was funded entirely by tax on milk. vii. In-state interests would not lobby against law if they would get subsidy. a. Therefore, the political process cannot prevent this type of abuse. viii. Rehnquist Dissent a. Political process IS sufficient to keep legislature in check.
Constitutional Law - Hogue Fall 2003 Page 36 of 56 b. Two important interest groups are in state. 1). Consumers 2). Milk Dealers 6. Camps Newfound/Owantonna v. Town of Harrison i. Maine gave property tax exemption to institutions incorporated in Maine but denied it to out of state institutions. ii. Court invalidated iii. Economic burden falls on campers and thus impairs interstate commerce. iv. Narrow split in the decision. 7. South Central Bell Telephone v. Alabama i. Court invalidated Alabama franchise tax that gave AL corporations the ability to reduce tax liability but did not grant same right to foreign corporations. ii. Court held that the law was an impermissible discrimination against interstate commerce. 8. Home Processing Requirements i. Court has repeatedly invalidated state laws that require in-state processing prior to shipment out of state. ii. Problem is that these types of laws impact of any processing services. iii. Foster-Fountain Packing Co. v. Haydel a. Shrimp hulling and de-heading law required process to be done in Louisiana. b. Court invalidated on rationale that this was impermissible favoring of in-state processing because the practical effect is to obstruct and burden interstate commerce. 9. Court has also invalidated many laws that discriminate between in-state and out of state businesses under dormant commerce clause. F. Facial Discrimination by Localities 1. Dean Milk Co. v. Madison i. Madison, Wisconsin ordinance prevented sale of milk unless it was processed within 5 miles of city. ii. Many dairy farms were located in Madison. iii. Madison milk was 10X its needs. iv. Dean Milk challenged the ordinance as violating the commerce clause. v. Dean was located in Illinois and processed their milk there. vi. Madison ordinance provided for a rigorous inspection and Madison contended they were protecting their citizens. vii. State court held that the ordinance did not violate the commerce clause. viii. This is discrimination against interstate commerce. ix. The Court held that there were reasonable alternatives that could be used that are less burdensome. x. Possible Alternatives a. Madison officials could inspect.
Constitutional Law - Hogue Fall 2003 Page 37 of 56 b. Could use Model Milk Ordinance and producers must conform in order to sell milk in Madison. xi. The Court indicates that a less restrictive alternative must be used that does not result in as large an impact on interstate commerce. xii. Dissent a. Does not exclude milk from out of state, only requires conformance in terms of pasteurization within 5 miles of the city. b. Lower courts had found that the ordinance was a good-faith attempt to safeguard public health. c. Alternatives are not as good as current ordinance. 2. Fort Gratiot Sanitary Landfill, Inc. v. Michigan Department of Natural Resources i. Michigan law prohibited landfill operators from accepting solid waste from outside county in which landfill was operated. ii. Court invalidated on same rationale as Philadelphia v. New York. 3. C&A Carbone, Inc. v. Clarkstown i. Clarkstown authorized a private company to build a waste transfer station. ii. Required all waste from town to go to transfer station. iii. Carbone wanted to ship waste to another place which charged less. iv. Carbone defended against injunction by saying regulation violated the dormant commerce clause. v. Majority Opinion a. Ordinance is not saved by having both intrastate and interstate effects. b. The ordinance had the effect of barring the import of the processing service. c. Ordinance does not even allow other processors to invest. It requires that ALL waste go to the single facility. d. Discrimination against interstate commerce is per se invalid unless it can be demonstrated that there are no other means to advance the local interest. e. One alternative would be to enact uniform safety regulations. f. Revenue generation is not an interest that can justify discrimination. g. Town can subsidize but cannot use regulatory power to impact interstate commerce. vi. O’Connor Concurrence a. Regulation discriminates against all competition not just interstate competition. b. However, it is an undue burden on interstate commerce. vii. Dissent a. Regulation does not differentiate based on local versus out of town interests.
Constitutional Law - Hogue Fall 2003 Page 38 of 56 b. Regulation favors ONE entity. c. Anti-competitive but not protectionist. d. Commerce clause was not passed to protect citizens from themselves and should not prevent them from using laws to attack garbage problem. G. Laws Protectionist in Purpose or Effect - State Barriers to Out of State Sellers 1. Baldwin v. G.A.F. Seelig, Inc. i. New York Milk Control Act of 1933 was enacted to stabilize milk prices during the Depression. ii. Set minimum prices to be paid to milk producers by New York dealers. iii. Seelig bought milk in Vermont at lower prices than NY minimum under the law. iv. Law prohibited sale if price was lower than this minimum. v. NY refused to license Seelig unless it agreed to conform to pricing structure. vi. Court held commerce clause barred application of law to out of state milk producers. vii. NY was afraid that all dealers would go out of state for milk, thus defeating the purpose of holding up prices in the law. viii. Majority Opinion a. NY law acts as a customs duty to out of staters. b. This was meant to be avoided with commerce clause. c. Court is concerned that market efficiencies are erased by the law and it acts as a barrier to interstate commerce. d. NY argued that regulation allowed farmers to earn a living income. e. Economic motive is secondary to health. f. Economic welfare is ALWAYS related to health and if economics is an exception to dormant commerce clause, there is no bar to regulation of commerce. g. None of the valid state laws is as drastic as this. h. This law would neutralize free trade among states. i. States may not place themselves in economic isolation by erecting barriers to competition that affect interstate commerce. 2. Use Tax i. Henneford v. Silas Mason Co. a. Kind of an outlier because it has been found by Court NOT to be an impermissible barrier under the commerce clause. b. Court indicates that a tax on use does not restrict importation of products from out of state. c. All that the use tax does is put the out of state purchase on the same footing as the in-state purchase. d. Government activity in the form of a use tax serves to make the tax the same across state lines. Sales tax for goods
Constitutional Law - Hogue Fall 2003 Page 39 of 56 purchased in state = use tax for goods purchased out of state. 3. De Facto Discrimination i. Bacchus Imports, Ltd. v. Dias a. Hawaii law exempted local products from a liquor tax. b. Because intent was to confer benefit on local industry, the exemptions were invalid. c. Courts have the ability to smoke out the state preference schemes. ii. Hunt v. Washington Apple Advertising Commission a. NC law prevented importation of apples which had state inspection. b. Only allowed USDA inspection or nothing. c. Washington, the largest producer of apples had serious problems in marketing in NC. d. Challenged the law as violating the dormant commerce clause. e. NC claimed the law was designed to prevent confusion in the market. 1). However, consumer never saw the labels. f. District Court found for Washington because the law favored local growers and was not justified by interest in eliminating deception and confusion in marketplace. g. Supreme Court affirmed. h. Rationale was based on the effect of the law. i. Effects 1). Increased costs because of change in marketing methods gives NC an advantage. 2). Effect of stripping away advantages gained by WA inspection systems. 3). Law downgrades WA apples in eyes of consumer and thus protects NC growers. j. There were reasonable alternatives to the labeling scheme such as using both USDA and WA labels. iii. Breard v. Alexandria a. Alexandria, Louisiana ordinance prohibited solicitation without consent of occupants. b. Breard (TX) led group of people representing PA company. c. Court upheld ordinance. d. Rationale 1). Regulation limits all solicitation - both local and out of state solicitation. e. Dissent 1). Effect is that regulation is a blanket prohibition on solicitation.
Constitutional Law - Hogue Fall 2003 Page 40 of 56 2). Burdens interstate commerce in favor of local retailers. H. State Barriers to Out of State Buyers 1. Milk Control Board v. Eisenberg Farm Products i. Exact reverse of Baldwin v. Seelig ii. PA law imposed minimum price on sales of milk. iii. Cannot export milk unless you pay local base price. iv. Supreme Court said that this regulation did not violate the dormant commerce clause. v. One consideration was that only a small fraction of milk is shipped outside the state, the statute has little effect on interstate commerce. vi. Another was that if dealers buying milk in PA could get around price controls by the milk going out of state, the statute would not be uniform in operation. vii. In this case, there is no prevention on export of milk from PA. They are only setting a minimum floor for ALL purchases of milk from PA. viii. State is protecting its own farmers by requiring base price to be met. Purpose is not to discriminate against out of state purchasers. 2. H.P. Hood & Sons v. DuMond i. Hood was a Massachusetts milk distributor who obtained milk from NY producers. ii. Hood had 3 depots in NY and wanted to open a 4th depot there. iii. NY denied license on basis of state law that prevented issuance if it would create destructive competition or was not in the public interest. iv. Case is about the power of NY to restrain interstate commerce by denying licensing of facilities in order to protect and advance local interests. v. Commissioner indicated that if license was allowed it would harm Troy, NY dealers. vi. Differs from Eisenberg because these were not just regulations designed to assure a fair price and good quality, THESE regulations curtail volume of interstate commerce to aid local interests. vii. Court indicates that the law serves to deny opportunity and this is enough to restrict interstate commerce. viii. Dissent a. Law does not discriminate against non-locals. b. Act would require Commissioner to evaluate impact on Boston consumers also. c. Effect of the majority holding is to deny a state the ability to protect from destructive competition by licensing denials if the product will be shipped out of state. d. Dissent argues that it must be determined how burdened interstate commerce actually is before making this type of holding. 3. Cities Service Gas Co. v. Peerless Oil & Gas Co.
Constitutional Law - Hogue Fall 2003 Page 41 of 56 i. Looked at a local regulation in OK that was designed to assure that before gas was taken out of ground, it would carry a certain base price. ii. Forced companies to pay more for gas than prevailing rate. iii. Court upheld the law. iv. The Court opinion indicated that OK had a legitimate concern with preventing rapid economic dissipation of gas. v. Similar to Eisenberg case – upheld the State’s ability to impose protections so long as locals pay the higher price also. vi. There is not a discrimination against out of state producers. 4. Court has gone back and forth about natural resource cases. i. In Hudson County Water and Pennsylvania v. West Virginia cases, the Court upheld local ordinances prohibiting the transportation of water from the state’s rivers and lakes to any other state. ii. In Pennsylvania v. West Virginia, the Court invalidated WV law that required local needs to be met prior to any exportation of natural gas because this was a prohibited interference with interstate commerce. 5. Hughes v. Oklahoma i. OK law forbid transport or shipment of minnows for sale outside of OK that were obtained from OK. ii. Court overruled Geer v. Connecticut case which had held that state could prevent killing of certain game for shipment out of the state, even though it impacted interstate commerce. iii. Court indicates that OK law on its face discriminates against interstate commerce. iv. Locals were allowed to take all the minnows they wanted. v. OK failed to resort to non-discriminatory alternatives. 6. New England Power Co. v. New Hampshire i. See notes. ii. NH forbid the company to export based on state law that required energy not to be exported if needed within NH. 7. Sporhase v. Nebraska i. State restriction on export of ground water. ii. Court invalidated, indicating that the restrictions were an explicit barrier to commerce. I. Facially Neutral Laws and Pike Balancing 1. Pike v. Bruce Church, Inc. i. Current formulation of balancing test. ii. Balancing Test a. First question is whether law is protectionist? 1). If it is protectionist in its purpose or practical effect, it is per se invalid. b. Second question is to look at even-handed law and ask whether local benefits outweigh effects on interest commerce.
Constitutional Law - Hogue Fall 2003 Page 42 of 56 iii. This balancing test is where you begin for most dormant commerce clause issues. 2. State Burdens on Transportation i. South Carolina State Highway Department v. Barnwell Brothers a. SC law regulated width and weight of trucks using SC highways. b. Court basically shows high deference to SC’s findings as to the need for the regulations. c. Court upheld the law d. Rationale 1). Highways are of local concern. 2). States maintain their highways. 3). State has a concern for safe and economical operation of highways. 4). Highway regulation is similar to local regulation of rivers, piers, quarantine, and game laws. i). These have been upheld. 5). So long as state does not discriminate, it is allowed. ii. Southern Pacific v. Arizona a. AZ train limit law prohibited operating railroad trains of more than 14 passenger or 70 freight cars. b. Supreme Court invalidated law. c. Court uses balancing test to evaluate and indicates that there is a burden on interstate commerce that outweighs the benefits to AZ. d. Alternatives 1). Break up trains at the border. 2). Conform to minimum length of train in AZ and use shorter trains from Texas to California. i). Extensive impact on interstate commerce. e. AZ claimed that the shorter trains were safer. f. Majority indicates that there is no reasonable relation to safety with the use of shorter trains. g. AZ might have also been looking to regulate the number of train cars to shorten wait at crossings. h. Shorter trains = more trains = more accidents. i. Court indicates that the law goes too far. j. Burden on interstate commerce outweighs benefits to the state. k. Dissent 1). Dissent is very critical of court’s role in usurping legislative findings. iii. Bibb v. Navajo Freight Lines a. Requirement by Illinois that forced the use of contoured mudguards on trucks.
Constitutional Law - Hogue Fall 2003 Page 43 of 56 b. Other states required straight mudguards. c. Court invalidated indicating it was an undue burden on interstate commerce. d. Courts must uphold state safety measures which outweigh national interest in interstate commerce. e. Court looks at what majority of states did. Since most of states used straight mudguards, Illinois law was a burden on interstate commerce. iv. Kassel v. Consolidated Freighways Corp. a. Iowa statute prohibited use of 65-foot double trailers within their borders. b. Consolidated challenged the law, indicating that it was unduly burdensome on interstate commerce. c. Plurality opinion holds that there is a high interstate commerce burden with no countervailing safety interest. d. Legislative history appears to indicate that the law was protectionist to Iowa interests. e. Iowa seems to have hoped to limit highway use by deflecting traffic to other states. f. Iowa is essentially pushing away transient business – pushing away the burdens imposed by interstate commerce using larger trucks. g. Dissent 1). Plurality oversteps authority to review state legislation under Commerce Clause. 2). Intrudes on fundamental rights of states to secure safety of citizens. 3. State Burdens on Trade i. Exxon Corp. v. Governor of Maryland a. Prohibition on producers and refiners of petroleum from operating retail service stations in Maryland. b. Majority Opinion 1). Law does not discriminate against interstate goods, nor does it favor local producers and refiners. c. Importance of this case lies in the statement on p. 293 1). The dormant commerce clause protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulations. It may be true that the consuming public will be injured by the loss of the high-volume, low-priced stations operated by the independent refiners, but again that argument relates to the wisdom of the statute, not to its burden on commerce. ii. Minnesota v. Clover Leaf Creamery Co.
Constitutional Law - Hogue Fall 2003 Page 44 of 56 a. Court upheld a state law that banned the retail sale of milk products in plastic non-returnable containers. b. State legislature found that the use of non-returnable containers was a waste management problem. c. Challenge was that this was economic protectionism since pulpwood industry benefited by the banning of plastic nonreturnable containers. d. Court upheld because there would be benefit for interstate firms, as well as the in-state pulpwood industry. e. Straightforward application of Pike balancing test. 1). There are ample local benefits to offset the interstate burden. 4. State Burdens on Business Entry i. Lewis Case ii. Edgar Case iii. CTS Corporation Case a. Scalia’s dissent argued that Pike balancing test should not be expanded. b. Scalia argues that judiciary is ill-suited to determining if local benefits outweigh burdens on interstate commerce. J. The “Market Participant” Exception to the Dormant Commerce Clause 1. South-Central Timber Development, Inc. v. Wunnicke i. Prior Cases Developing the Market Participant Doctrine a. Cases indicated that if State is a market participant, the dormant commerce clause does not limit regulation by the State. b. White v. Massachusetts Council of Construction Employers, Inc. 1). Court found law that required all construction projects funded in whole or in part by city funds is to be performed by a work force of at least 50% city residents valid. 2). Rationale was that workers worked directly for the city and thus the city was a market participant entitled to determine whom to allow to work. c. Hughes v. Alexandria Scrap Corp. 1). Court upheld a Maryland program designed to reduce the number of junked autos in the state. 2). Rationale was that nothing in the Commerce Clause prohibits a State from participating in the market and exercising rights in favor of its own citizens. d. Reeves, Inc. v. Stake 1). Court upheld South Dakota law restricting the sale of cement from state-owned plant to state residents.
Constitutional Law - Hogue Fall 2003 Page 45 of 56 2). Rationale was that a trader or manufacturer has the right to deal with whoever they wish. ii. Alaska timber sales contracts required purchasers to process timber in Alaska. iii. Logging company challenged the law as violating the commerce clause. iv. Court invalidated the law, indicating that Alaska was regulating a market downstream of the market in which it participated. v. Dissent a. Indicates that using precedent from White, Hughes, and Reeves, State could accomplish the same thing. b. The majority opinion is unduly formalistic because other means could accomplish the same end and this would be OK. vi. If failed as a market participant, would go to Pike balancing test. K. Privileges and Immunities Clause 1. Article IV, § 2 i. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. 2. Differences between Commerce Clause and Privileges and Immunities Clause i. Corporations enjoy no protection under the P&I Clause. ii. P&I Clause is a rights provision, not a grant of authority to Congress, and so is arguably nonwaivable by Congress. iii. Standard of review for P&I Clause denials is arguably stricter than the balancing test used in dormant commerce clause analysis, though not as strict as for discriminatory legislation challenged as a commerce clause violation. iv. Most important is that Privilege and Immunities Clause extends only to “fundamental rights”. v. The Court has not recognized a “market participant” exception to P&I violations. 3. United Building & Construction Trades Council v. Mayor and Council of Camden i. Camden, NJ ordinance required >40% of workers on construction projects to be Camden residents. ii. Passes muster under Commerce Clause. iii. Also applied to subcontractors. iv. Trade Council opposed on Commerce Clause and Privileges and Immunities Clause grounds. v. Dropped Commerce Clause challenge after White. vi. Inquiry becomes whether citizens of other states are treated differently from in-state citizens – this would violate Privileges and Immunities Clause. vii. Fundamental interest protected is employment. viii. Cannot discriminate on basis of citizenship in a fundamental right.
Constitutional Law - Hogue Fall 2003 Page 46 of 56 ix. Although Camden is a municipality, municipality cannot violate Clause because they derive their authority from the State. 4. Toomer v. Witsell i. SC had a discriminatory license fee on residents trawling for shrimp in its waters. ii. Court invalidated on similar basis as Camden case. 5. Hicklin v. Orbeck i. Struck down job preference program by Alaska. 6. Baldwin v. Montana Fish and Game Commissioner i. Different cost for elk-hunting licenses between residents and nonresidents. ii. Court concluded that elk-hunting was not a fundamental right. 7. Supreme Court of New Hampshire v. Piper i. NH had state rule limiting bar admissions to NH residents. ii. Court invalidated the rule, reasoning that the practice of law is a fundamental interest. L. Preemption of State Authority 1. Preemption is when a federal law supersedes state law. 2. Can preempt by i. Express preemption ii. Congressional intention to supersede state law 3. PG&E v. State Energy Resources Conservation & Development Commission i. CA law imposed a moratorium on building nuclear power plants until waste disposal methods are standardized. ii. Federal regulations were involved in safety. iii. CA regulations were focused on economics. iv. Since CA regulations did not intrude on Federal regulations, State was OK to regulate. 4. Types of Preemption i. Express Statement ii. Implied Occupation of a Regulatory Field a. Rice v. Santa Fe Elevator Corp. 1). Police powers of States are not to be superseded unless that was the clear purpose of Congress. 2). Evidence of purpose is indicated by i). Scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. ii). The Act of Congress may touch 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. iii. Implied Preclusion of Conflicting State Regulations a. Hines v. Davidowitz
Constitutional Law - Hogue Fall 2003 Page 47 of 56 1). Where the Federal Government has enacted a complete scheme of regulation, states cannot conflict or interfere with, curtail or complement, the Federal law, or enforce additional or auxiliary regulations. b. Florida Lime Case 1). Florida avocados were certified as mature by federal government but that did not contain minimum California oil content as required by California law for labeling. 2). Majority i). No physical impossibility of complying with both federal and State standards. ii). Maturity of avocados not a likely candidate for federal regulation. 3). Dissent i). Supremacy Clause bars application of California’s legislation. ii). No indication that State law has any purpose other than economic protection for California growers. c. Gade Case 1). Court said Illinois law for licensing workers who handle hazardous waste conflicted directly with OSHA (federal) regulations. 5. Preemption and Foreign Affairs Power i. Crosby v. National Foreign Trade Council a. MA law barred state entities from directly or indirectly doing business with Burma. b. Court invalidated on grounds that Federal law preempted. c. Rationale 1). Congress intended to limit economic pressure against Burma to a certain range. 2). State law is at odds with President’s authority to speak on behalf of U.S. 3). Massachusetts law has caused Europe and Japan to lodge complaints against the U.S. M. Consent to State Laws 1. Modern view is that Congress, under its Commerce power, is able to consent to State regulation of interstate commerce. 2. See p. 323 – 331 of book. 3. Hogue did not review. N. Interstate Relationships 1. Article I, § 10 states that no State shall enter into compacts with another State unless Congress consents. i. Example is New York Port Authority
VI.
Constitutional Law - Hogue Fall 2003 Page 48 of 56 2. However, not all interstate agreements require Congressional consent. i. Many matters upon which different States may agree that can in no respect concern the United States. Separation of Powers A. How the three branches of government work among themselves. B. Article II (Executive) is an unlimited vestiture clause. C. Article I (Legislative) is limited in its scope. D. Separation of powers is not expressly delineated in Constitution – it is an implied assumption. Everything from Constitutional Convention indicates that the Framers intended for separation of powers. E. Executive Encroachment on Legislative Powers 1. Youngstown Sheet & Tube Co. v. Sawyer i. Steel mill employees were threatening to go on strike during the Korean War. ii. President issues order to Secretary of Commerce to seize steel mills. iii. President is stopped in his tracks. iv. Court indicates that Presidential authority must stem from act of Congress or from Constitution. v. The Government argued that presidential power should be implied from the aggregate of his powers under the Constitution. vi. The Government also argued that there was a national emergency and this was an appropriate response to this. vii. Other Presidents had previously seized property in an “emergency”. a. President Roosevelt ordered the seizure of an aviation plant because of a dispute that threatened to strike. viii. The Court indicates that the Congress had expressly declined to allow the president this type of authority in an amendment to the TaftHartley Act. ix. Black’s opinion takes a very formalistic view – no Congressional authority, no power for the President. x. Jackson’s Concurrence a. Three fields of presidential power 1). Acting pursuant to authorization from Congress i). Power at a maximum 2). Acting absent Congressional authority on matters that Congress has concurrent authority. i). Gray area of presidential power. 3). Acting against will of Congress i). Low power of president. b. In this case, there were three statutory policies inconsistent with this seizure. Thus, this case would fit into the third field. c. Under Justice Jackson’s formula, it is possible for something that is not law to have the force of law. xi. Frankfurter’s Concurrence
Constitutional Law - Hogue Fall 2003 Page 49 of 56 a. Frankfurter indicated that how things have been done in the past give meaning to the words of the Constitution. b. “Gloss” modifies how the text reads. c. Looks at what the President has done in the past to determine what is appropriate. d. If President intrudes into Congressional authority and it goes on too long (Congressional adverse possession), President gets to keep the authority. e. This is pretty radical stuff. f. Frankfurter indicates that this standard is not met in this case – the previous examples of seizure did not rise to this level. xii. It is possible for Congress to grant authority to Executive branch. a. Whole field of federal administrative law is Congressional grant to Executive branch. 1). Example is the FCC. b. Congress also can take these grants back. xiii. In the end, Court invalidated the presidential seizure, a strike ensued, the strike settled, and no steel shortage occurred because huge inventories had been built up prior to the strike. xiv. One of the problems with the Government’s position was that the Korean War had not been sold very well. a. Authority of war was implied by Congressional actions – there was no formal declaration of war. b. This seemed to affect the way this case was decided. c. Supreme Court knew this was not a popular war. 2. United States v. Belmont i. Russian corporation deposits money in a New York bank. ii. As a result of Russian Revolution, Russia nationalizes the corporation. Russia asserts that they have seized the assets in the NY bank. iii. USSR wants diplomatic recognition. iv. Agreement between U.S. and Russia a. Russia gave up assets in NY bank to the U.S. b. In return, U.S. recognized. v. NY refused to recognize. vi. Supreme Court held that Agreement was valid. vii. The underlying issue here is that Agreement was made solely by Executive branch without ratification as a treaty. viii. Authority for the decision rested on Constitutional ground that President had authority of diplomatic recognition. ix. In this case, the power was extended to include things that have to be done in pursuit of diplomatic recognition. 3. Dames & Moore v. Regan i. Arose out of Iranian Hostage Crisis
Constitutional Law - Hogue Fall 2003 Page 50 of 56 ii. In order to arrange for release, President Carter agreed to nullify attachments and liens on Iranian assets and to transfer assets to Iran. iii. President Reagan ratified Carter’s actions and also agreed that suspended claims would be presented to International Claims Tribunal that was to be formed as a result of the agreement. iv. Dames & Moore had filed suit in District Court against the Government of Iran. v. District Court attached property to secure the claim. vi. Court of Appeals reversed the District Court, indicating that Dames & Moore did not state a claim because the agreement by Presidents Carter and Reagan had removed this claim as a possibility. vii. Claim essentially went away on unilateral Presidential action. viii. Court indicated that IEEPA and Hostage Act allowed Presidential authority to 1.)nullify attachments and liens and 2.)directed transfer of assets to Iran. ix. Court indicates that these statutes do not provide authority for what the President has done. x. Court holds that President has power to do this because a. The statutes are relevant to indicate Congressional acceptance of executive action. b. U.S. has repeatedly exercised sovereign authority to settle claims of nationals against foreign countries. c. Congress has implicitly approved of executive agreement method in enacting International Claims Settlement Act of 1949. xi. Court follows Frankfurter’s opinion in Youngstown by indicating that Congressional acquiescence allows the Executive branch to act. 4. War Powers i. Power is divided between Congress and the President. ii. President has authority to protect the country and defend from attack. iii. Sometimes, we rely on U.N. to give legitimacy to war – in essence, this appears to take Congress out of the loop and put Executive branch in charge. iv. War Powers Resolution of 1973 a. President may only introduce troops pursuant to 1). A declaration of war, 2). Specific statutory authorization, or 3). A national emergency created by attack upon the United States, its territories or possessions, or its armed forces. b. President must submit report for reasons to use troops within 48 hours. c. President must terminate use of force within 60 days of report unless Congress has
Constitutional Law - Hogue Fall 2003 Page 51 of 56 1). Declared war or has enacted a specific authorization for such use of United States Armed Forces, 2). Has extended by law such sixty-day period, or 3). Is physically unable to meet as a result of an armed attack upon the United States. v. Every President from Nixon to Bush II has denied the Constitutionality of the War Powers Resolution and have only complied when forced to by Congress. vi. Supreme Court will probably never hear a case on this issue because it is non-justiciable. F. Congressional Encroachments on Executive Power 1. Legislative and Executive Actions i. INS v. Chadha a. Provision of Immigration and Nationality Act allowed one House of Congress to veto Attorney General’s determination that an alien should be deported. b. Court invalidated provision because it is legislative in nature and violates the Presentment Clause of U.S. Constitution and violates principles of bicameralism. c. Rationale 1). Bicameralism requires that both Houses of Congress pass legislation. 2). Presentment Clause requires Congress to make bills to be presented for President to sign into law. 3). If President vetoes, Congress must pass by 2/3 majority in order for bill to become law. d. This case basically invalidated a practice which had become commonplace. 1). Over 200 pieces of legislation included this type of provision. e. Only 1 Dissent – Justice White 1). Basically, dissent indicates that this legislative veto is a tool by which Congress can preserve control over lawmaking. 2). This is necessary because of the transformation of U.S. government into one driven by administrative agencies. 3). Dissent argues that if Congress can delegate power Constitutionally, it is difficult to understand why Congress cannot reserve a check on legislative power. 4). If this power is not allowed, it will require Congress to 1.)refrain from delegating, or 2.)write laws with specificity to cover all circumstances.
Constitutional Law - Hogue Fall 2003 Page 52 of 56 5). Concurring opinion in Steel Seizure and Dames & Moore cases are functionalist and could lend support to White’s dissent. f. Court later finds not only one-house vetoes invalid, but two-house vetoes invalid, as well. g. Because this was Congressional action that impacted the liberty of an individual, this might have played into the decision. ii. Clinton v. New York a. President Clinton exercised authority under Line-Item Veto Act to cancel provisions in the Balanced Budget Act of 1997 and Taxpayer Relief Act of 1997. b. Under Line-Item Veto Act, President can cancel 1). Any dollar amount of discretionary budget authority; 2). Any item of new direct spending; 3). Any limited tax benefit. c. Court invalidated Line-Item Veto Act because it allows President to change existing law – this is legislative and violates Constitutional provisions for enacting laws. d. Rationale 1). Act transfers powers to the President that are not allowed under the Constitution. 2). The Act gives President unilateral power to change laws. 3). Violates Article I, § 7 of the Constitution which prescribes the manner in which the way bills become law. e. Presidents over time had asked for the line-item veto power. f. Kennedy’s Concurrence 1). Separation of power was designed to protect citizens liberty from improper power concentration in executive without authority from the citizens representatives in Congress. g. Scalia/O’Connor/Breyer Dissent 1). Big contention by dissent is that President can withhold spending and the Line-Item Veto Act is just another way of allowing this. 2). Act does not encroach on Congress’ power because Congress still has the ability to indicate in laws whether the Line-Item Veto applies and also that they can reinstate the spending with a majority of the House and Senate. 2. Congressional Control Over Executive Officers i. Bowsher v. Synar
Constitutional Law - Hogue Fall 2003 Page 53 of 56 a. In 1985, Congress passed the Balanced Budget and Emergency Deficit Control Act. b. Comptroller acts in an executive function. c. Separation of Powers issue arises because Congress can remove Comptroller by joint resolution and not by impeachment, as required by the Constitution. d. Court invalidated, indicating that it is a violation of separation of powers for Congress to impose executive functions on an officer over whom Congress has the power of removal. e. Dissent 1). Argues that the majority’s approach is overly formalistic. f. Notice that in several cases, arrangements for running the country have been passed by Congress and signed by President, yet they are invalidated by the Supreme Court. 1). Court seems to take the view that formal rules prevent this from happening. 2). Is this an appropriate role for the Court? i). Easy answer is yes. ii). More difficult when there is agreement and what appears to be the will of the people – Does the Court really need to police interbranch disputes? ii. Executive Power to Remove Subordinates a. Myers v. United States 1). Court held law that prevented removal of postmasters by the President without Senate approval unconstitutional. 2). Rationale was that President must be able to execute laws and removing personnel is necessary in being able to execute the laws. b. Humphrey’s Executor v. United States 1). Federal Trade Commission Act specified that Congress could limit Presidential power of removal. 2). Court upheld because FTC was not purely executive – there were aspects of legislative and judicial branches. c. In wake of Watergate, there was the idea that executive branch should not be responsible for policing itself through Attorney General. The outcome of this was the creation of the independent counsel to investigate alleged wrong-doing in the executive branch. d. Morrison v. Olson
Constitutional Law - Hogue Fall 2003 Page 54 of 56 1). Ethics in Government Act provided for the appointment of independent counsel to investigate. 2). Court held that it did not violate separation of powers because it gives the executive branch sufficient control over the independent counsel to render the President able to perform his constitutional duty to ensure faithful execution of the laws. 3). Scalia’s Dissent i). Found a separation of powers issue, arguing that the independent counsel performs an executive function and the President should have complete control over the independent counsel in the performance of his or her duties. iii. Interbranch Appointments a. Mistretta v. United States 1). Commission was created by Sentencing Reform Act to create federal guidelines for criminal sentences. 2). 7 members, 3 of which were to be federal judges. 3). Chosen and removable by President for good cause. 4). Court upheld the Commission 5). Court rejected the argument that the establishment violated the power of Congress to delegate. i). Court indicated that Congress’ delegation was specific enough to meet Constitutional requirements. 6). Court also rejected separation of powers argument. i). Rationale a). Congress’ creation of Commission is not unconstitutional unless Congress gave powers more appropriately performed by other branches. b). Does not impermissibly interfere with functioning of judiciary. c). Power of judges on Commission is not judicial power. d). Constitution only forbids judges from being both judges and legislators. e). Does not threaten impartiality of judicial branch.
Constitutional Law - Hogue Fall 2003 Page 55 of 56 f). President’s appointment and removal powers do not provide significant basis for swaying judges to conform to president’s wishes. 7). Scalia Dissent i). Pure delegation of legislative power. ii). This case creates a new branch of government – it is not a commingling of branches and the government does not allow this. 3. Executive Privileges and Immunities i. United States v. Nixon a. Nixon claimed that he had an absolute privilege to the confidentiality of conversations between him and advisors. b. The Court indicates that the President enjoys a limited presumptive privilege with regard to communications. c. When there is criminal activity, President does not have privilege of communications. d. Communications dealing with military, diplomatic, or national security have presumptive privilege against disclosure. e. Court talks about a balancing test to balance Presidential interest in confidentiality against fair administration of justice in a criminal case. f. Scope of privilege for confidentiality of advisors is not well defined. g. President gets absolute immunity from civil damages liability for his official acts – at least in the absence of explicit affirmative action by Congress. 1). Essentially, this means that you cannot second guess the actions of the President through the filing of a civil action. ii. Gunther argued that the President, as a matter of Constitutional interpretation of Article II, had absolute discretion to determine the scope of executive privilege. iii. Clinton v. Jones a. Activities took place prior to Clinton taking office. b. Originally, District Court stayed any trial until after Presidency had ended but allowed discovery to go forward. c. Supreme Court decided that action should go forward completely. d. Supreme Court held that a sitting President does not enjoy temporary immunity from all civil lawsuits based on his unofficial acts. iv. Impeachment a. Only two Presidents have ever been impeached. 1). Andrew Johnson
Constitutional Law - Hogue Fall 2003 Page 56 of 56 2). William Jefferson Clinton b. Neither impeachment was successful. c. House Proposed Articles of Impeachment for Nixon d. Clinton impeached for obstruction of justice and perjury during Jones case.