Chapter 5, Problems 7 and 4 (graded) Please study the problem found in e-book Chapter 5, problem 7, and answer the

following questions: On appeal to the U.S. Supreme Court, 1. Can the statute survive a constitutional challenge? 2. Is there a "rational basis" for the statute? 3. What effect does the evidence to the contrary have on the statute's constitutionality? We will also read and discuss Chapter 5 problem 4 in this thread, the Pike v. Bruce Church case. Note that this case is available online, but heads-up! The U.S. Supreme Court has overturned a significant part of it. We will talk about this and "judicial review" during the week as well. Much to do! Week 2 - Discussion 1 - Sources of Law and Constitutionality Class: We are working together this week to understand how constitutional protections protect businesses from over-reaching by administrative regulations and statutes. Remember, there are state laws and administrative agencies, and there are federal laws and administrative agencies. They are not one in the same. Furthermore, there are state constitutions and there is the federal Constitution. At times it can be difficult to determine which law applies and in some cases both state and federal law may apply. As background, click here for a diagram of how the U. S. federal court system is set up: http://www.uscourts.gov/courtlinks/ Click here for a diagram of how each state's court system is set up: http://www.ncsconline.org/D_Research/Ct_Struct/Index.html We will be considering the Clover Leaf and Pike cases this week. I also encourage you to check out Problem 8 in Chapter 5 involving an Iowa statute, the Kassel case. Let's assume that the statute proposed by Iowa directly conflicts with a federal statute. Which one would be considered superior and where would the authority come from to support your answer? As you answer this question, consider what standard the U. S. Supreme Court applies when considering the constitutionality of a statute. Ans: This case brief relates to the supremacy clause. The supremacy clause is the section of the United States Constitution stating that the constitution is the supreme law of the land, and no other laws will supersede it. The clause was a departure from the previous federal system in the United States, which was enacted under the Articles of the Confederation. That system included a weak federal government, and was later found to be impractical, which led to the development of the United States Constitution and the inclusion of this clause. Now what

does this mean in simpler words? Well, from my interpretation, it (supremacy clause) means that the federal laws usually have more control over the state and local laws. This definition and reading of the case brief details that the state of Iowa did not prove their argument that the 65 foot trailers were more unsafe than the 55 foot trailers, which led to the state losing the case. To respond to consider what standards the U. S. Supreme Court apply when considering the constitutionality of a statute, it is stated that this Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. With this being said, I think that the forefathers of the U.S. implemented these powerful words because while under England, there were many issues, which led to the separation and to prevent any changes that could have come about after the break from England. It goes back to the supremacy clause. That says when state and local laws are in conflict with federal laws and etc. the federal ones are in control of the sate and local law. However, in many cases it is ruled that state law does not directly conflict wih federal law. In the Kassel Case, however, the state was not able to prove that 65ft trailers were more unsafe the 55ft trailers and therefor lost the case aaccording to casebriefs.com. http://www.casebriefs.com/blog/law/constitutional-law/constitutional-law-keyed-tostone/judicial-efforts-to-protect-the-expansion-of-the-market-against-assertions-of-localpower/kassel-v-consolidated-freightways-corp/2/ In order to understand the role of the courts and how laws/statutes are viewed in light of constitutional principles, we have to walk through the three scrutiny tests: strict, intermediate, and rational basis. Why do you think our founding fathers put the Supremacy Clause into place? What is its benefit to citizens? I believe that the founding fathers put the supremacy clause in the constitution because they wanted the new country to be different than what they had encountered in England and did not want any others to come behind them later and change the ways in which they founded this country. Also, the founding fathers wanted the states to have power outside of the federal power, but wanted to establish that the federal law would be interpreted as the highest law and would trump state law if there was a conflict so that all of the stated would be on one accord in a united fashion with regards to how the federal system interpreted laws. Article VI, Section II provides that This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Retrieved on November 4, 2012, from http://online.vitalsource.com/#/books/9781133170624/pages/50462369. This supremacy clause just goes to show that this law will be the main law and that everyone should recognize it as the supreme law, both federal and state judges. Article VI, Section II provides that This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. To me these areas of law which fall into the "grey area" where Federal Law has not set a precedence based upon the Constitution then State Law would be able to adopt and implement laws and regulations. One such area that comes to mind for me is Education, each state has their own state requirements both for exams implementation as well as teacher certification requirements. I am trying to research more areas that affect business directly but the best example I could think of is Federal Law preventing discrimination based upon race or gender but no Federal Law that stipulates that employers can't take into account prior criminal record. In addition to Garrett's grey area of education. The ones I can think of are possibly immigration, marriage laws, and workplace safety laws. Currently southwest states and Florida are having difficulty with immigration and law is grey from state to state. Gay marriage is a big conflict that has yet to be decided by the U.S. Supreme Court, but they will have the opportunity to grant certiorari this term if they so choose. To date seven states in the United States have legalized gay marriage Connecticut, Indiana, Massachusetts, New Hampshire, New York, Vermont, Washington, as well as the District of Columbia. Maryland has passed the statute also that will be effective January 1, 2012. Retrieved on November 5, 2012 from www.gaymarriage.procon.org It is interesting to note that citizens in some states are determining whether or not they should ban same sex marriages as did California voters with the noteworthy Prop 8 ban, which has led this issue straight to the United States Supreme Court. I would agree that immigration is also an area with conflicts existing between the states and the federal government. It appears that most states that have a significant amount of illegal aliens are deciding to enact severe immigration laws. For example, Arizona enacted such a law in which the United States Supreme Court split their decision on pieces of the legislation. Other states have also decided to pass similar laws Alabama, Georgia, Indiana, South Carolina, and Utah. The Supreme Courts split ruling Monday on Arizonas controversial immigration law did nothing to settle the debate providing little clarity on how far states can go to police their borders and solidifying the topic as a key election-year issue. Retrieved from www.usatoday30.usatoday.com/news/washington/judicial/story/2012-0652/supreme-court-arizona-immigration-ruling-analysis/55825582/1. Thus, the immigration issue will be back before the Court soon.

There is a case that Supreme Court is currently hearing Lozman v. City of Riviera Beach, Florida, the question purposed to court is "Whether a floating structure that is indefinitely

moored receives power and other utilities from shore and is not intended to be used in maritime transportation or commerce constitutes a "vessel" under 1 U.S.C. 3, thus triggering federal maritime jurisdiction." http://www.americanbar.org/publications/preview_home/11-626.html . The court is to determine if the vessels fall under state or federal jurisdiction based on the location of the vessel. This could be classifed in the Supremacy Clause due to court determining which laws the vessels fall under. Some of the areas that I can identify will be in the area of Sherman Antitrust Act. In the case involving market giant Standard Oil, the Supreme Court declared that the purpose of the Sherman Antitrust Act is to prevent monopoly and the acts which produce the same result as monopoly. The Constitutions Supremacy Clause, in turn, requires pre-emption of state laws that conflict with a federal statute. These propositions suggest that state laws which create monopolies should be prime candidates for pre-emption via the Sherman Act. But despite this, monopoly-creating state laws have easily weathered most federal antitrust challenges, even when the state does not regulate the price the monopolist charges. The reason is that the Supreme Courts antitrust decisions on state economic regulation have consistently confused two distinct questions: whether market conduct encouraged by state law violates the Sherman Act, and whether state law conflicts with the Sherman Act and thus is pre-empted. This confusion explains other problems in the Courts antitrust jurisprudence, including the Courts inability to make sense of antitrust claims against municipalities acting as lawmakers rather than market participants Although the Supreme Court has held that the Sherman Acts overarching purpose is to prevent monopoly and the acts which produce the same result as monopoly, the Court has never struck down a state law on antitrust grounds for making a monopoly. References: Standard Oil Co. v. United States, 221 U.S. 1, 61 (1911). ANTITRUST AND THE SUPREMACY CLAUSE. By: Squire, Richard. Stanford Law Review. Oct2006, Vol. 59 Issue 1, p77-132. 56p.

To identify some of the areas/laws where conflicts currently exist and have not yet been decided by the U.S. Supreme Court, I will say that the same sex marriage would be considered an area. I found an article at http://www.cnn.com/2012/09/25/us/scotus-samesex-marriage/index.html, which details that the U.S. Supreme Court may hear the constitutional challenge to a federal law denying any financial benefits to gay/lesbian couples. I chose this particle article because of the publicity that the topic has received over the years and the fact that more and more individuals have evolved in their life and are no longer attempting to hide their sexuality. From a personal standpoint, I do not oppose same sex marriage; an individual cannot help who they have fallen in love with and it is their business as to the relationship that they have with God; not mine, so why should I judge them. Reference: http://www.cnn.com/2012/09/25/us/scotus-same-sex-marriage/index.html

The issue of same sex marriage definitely is an area of concer. There are conflicts between federal law (the Defense of Marriage Act) and state laws around the country. This issue may be decided within the year (or so) at the Supreme Court level. Same-sex marriage is now legal in six states, and tens of thousands of same-sex couples have already gotten married. Yet the vast majority of other states have adopted statutes or constitutional amendments banning same-sex marriage. These mini-defense of marriage acts not only forbid the creation of same-sex marriages but they also purport to void or deny recognition to the perfectly valid same-sex marriages of couples who migrate from states where such marriages are legal. These nonrecognition laws effectively transform the marital parties into legal strangers, causing significant harms. Property rights are potentially altered, spouses disinherited, children put at risk, and financial, medical,and personal plans and decisions thrown into turmoil. To deal with existing same-sex marriages rationally and fairly, it is appropriate to tum to the Constitution - "The right of marriage recognition". The right of marriage recognition would not force any state to create a same-sex marriage, but it would prevent them from inflicting unjustified harms on migratory couples.

If we look at the Loving v. Virginia case as precedent (http://www.oyez.org/cases/19601969/1966/1966_395), how do you all think the issue will be decided? Technically, the DOMA Act would prevail under the Supremacy Clause. However, in Loving there was no federal law at the time, and the Court looked at other constitutional issues involved. If we consider the same sex marriage issue, what are the possible constitutional challenges? Equal Protection? Supremacy? Full Faith and Credit?

Full Faith and Credit. This clause says that every state must recognize and respect the laws and judgments of other states. It would apply to same-sex marriage by forcing every state to recognize same-sex marriages legally performed in other states. It is well known that there are areas that the state and federal law conflict and yet not decided upon, however the federal law is known to be the law of the land, However in area of taxes and tribes the federal law has more power over state laws. The United States passes a law promising to preserve and to protect Indian tribes. State B wants to tax Indian tribes located within its state. Under the Supremacy Clause of the U.S., State B may not tax a federally recognized Indian tribe since doing so would violate the tribe's political interest in which the U.S. has promised to protect. http://litigation.findlaw.com/legal-system/the-supremacy-clause-and-the-doctrine-ofpreemption.html We are looking at recent cases involving the Commerce Clause, but how far does the federal government's interstate commerce power extend? Check out this historical case--right or wrong decision and why? http://www.oyez.org/cases/19401949/1942/1942_59

1. Can the statute survive a constitutional challenge? 2. Is there a "rational basis" for the statute? 3. What effect does the evidence to the contrary have on the statute's constitutionality?

1. Yes, the statue can survive a constitutional challenge.

2. There is a "rational basis" for the statute. Although parties challenging legislation under the Equal Protection Clause may introduce evidence supporting their claim that it is irrational, they cannot prevail so long as it is evident from all the considerations presented to the legislature, and those of which we may take judicial notice, that the question is at least debatable.

3. States are not required to convince the courts of the correctness of their legislative judgments. Rather, those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decision maker.

Other tests would be strict scrutiny and intermediate scrutiny? Intermediate scrutiny is a standard of judicial review used to examine the constitutionality of a law or regulation. The Intermediate Scrutiny test is the next level of test higher than the Rational Basis test discussed by Joseph. Strict Scrutiny is the standard used to determine whether a classification of a group of people or a fundamental right violates due process and equal protection rights under the United States Constitution. Courts use one of two tests to assess the constitutionality of statutes: the strict scrutiny test or the rational basis test. Strict scrutiny test is applied when the law restricts the exercise of a fundamental right. Under the strict scrutiny test, a statute withstands a substantive due process challenge only if the state identifies a compelling state interest that is advanced by a statute. That is even if the government has a state interest that rises to the level of being compelling, if there is a less restrictive way to advance it, the statute fails this test. For example in roe v. wade 410 U.S. 113 93 S. Ct. 705 35 L. Ed. 2d 147 (1973) the state interest in protecting unborn children was not compelling enough to overcome a woman's right to privacy. When the state interest is not sufficiently compelling the law is struck down as unconstitutional. The other tests are the strict scrutiny and middle tier scrutiny tests. Strict scrutiny is when the government has to show a compelling state interest and the statue is necessary to serve that

interest. The middle tier scrutiny test is when the government has to show it is important to a state interest and it is at least substantially related.

Here is a link to a website that I found that goes in more detail.

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm

The Supreme Court struck down the Iowa law as creating an undue burden on interstate commerce.

In plain language, the Iowa court pointed out a couple of significant facts. First, the limitation on truck size didn't improve safety, but in fact made it worse. The accidents were more a function of miles driven, not the trailer length. By forcing trucks to drive around the state or pull the trailers separately, this increased miles driven and thus decreased safety. Second, they pointed out that the many exemptions the state had granted hurt the state's case that the motive was for public good. It said that the many exemptions granted the border cities showed that the state was more interested in promoting the economic advantage of the Iowan trucking industries. The application of the balancing test is important because it will influence how other courts also apply the test. The balancing test considers: 1) whether federal regulation supersedes state involvement and 2) whether the benefits achieved by the regulation outweigh the burden on interstate commerce.