CONSTITUTIONAL LAW

I.

CONSTITUTION A. DESCRIPTION 1. Written Constitution a. It is the oldest, continuous written Constitution in existence. a. Supremacy Clause The Constitution is the supreme law of the land, and its ultimate application is left to the Supreme Court. c. Written clauses restrict freedom of government organizations, i.e. lay out enumeration of powers 3. No Legislative Review Constitution is not open legislative review, the Supreme Court. serves as the ultimate interpretive authority for Constitutional meaning 4. Based on Federalism rather than Nationalism a. Limits Constitutions control at state level b. Enumeration of National Powers - Government is organized into 3 Branches with enumerated powers limiting their governmental powers creating a system of checks and balances. B. 2 Categories of Constitutional Questions 1. Challenges to Action by the National Government D is the government or a government official a. Doctrine of Enumerated Powers - Action not authorized by the Constitution If the power used cannot be traced back to specific powers granted to that governmental body, then it is unconstitutional b. Separation of Powers Action, even though authorized by Constitution, is being performed by the incorrect governmental body c. Unconstitutional Power Action is forbidden by Con 2. Challenges to Actions Taken by State Governments a. Pre-Emption Doctrine State has legislated on something that is Constitutionally pre-empted and assigned solely to the National Government (i.e. entering Treaties, maritime law, declaring war or peace, etc.) b. Supremacy Clause State action conflicts / interferes with national action (Art VI 2 Supremacy Clause) c. Affirmative Limitations on States Power State is forbidden from taking action due to affirmative limitations placed on it by Constitution (The Untitleable)

II.

CONSTITUTIONAL AUTHORITY A. SUPREME COURT AUTHORITY Article VI 2 the Con is the supreme law of the land. In Marbury v. Madison, the S.C. said, it is emphatically the province and the duty of the judicial department to declare what the law is. 1. Federal Legislation & State Actions Federal courts have authority to review whether federal legislation and state actions are Constitutional. Marbury 2. State Court Decisions Federal courts have authority to review state court decisions if case arises out of a federal question and there are no independent and adequate state grounds for courts decision. Article III; Martin v. Hunters Lessee 3. Policy behind Judicial Review Since the Constitution is silent, it is more practical to have an ultimate arbiter, and that should be the Supreme Court, because they can protect the interests of the minority because they are not subject to political pressures. a. Countermajoritarian Rule Emphasizes democratic nature of the Constitution. Since judges are not elected, they are appointed, even if they are appointed by elected individuals; the rule is still Countermajoritarian b/c they are not held accountable to the people.

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b.

2
Rule of Deference p67 [Congresss acts] were its necessity less apparent, none can deny its being an appropriate measure; and if it is, the degree of its necessity, as has been very justly observed, is to be discussed in another place. i.e. it is more appropriate for the legislature to decide what is an appropriate means for enforcing its power under the Commerce Clause, the voters review the Acts of Congress. 1 Yes, since the right is conferred w/the Presidents seal delivery is not an essential aspect of this legal right; therefore he has a right to the commission. 2 Yes sometimes, the Political Question Doctrine forbids review of some disputes. 3 (a) Yes 3 (b) 13 of the Judiciary Act says that S.C. has the authority to hear this matter, but Art. III of Con interprets Con as saying the S.C. does not have jurisdiction. Constitutional issue is which body of law takes precedent? Constitution trumps the Act of Congress.

Marbury v. Madison (p. 29), (1803) Jefferson (new President) refused to deliver via Madison the commissions for Justices of the Peace appointed by Adams (old President) this included Marbury. Marbury sues in S.C. for a write of mandamus to compel Madison to deliver the commission. 3 Issues: 1. Has the applicant a right to commission he demands? 2. If yes, and right has been violated, do laws of US afford a remedy? 3. If yes, is it a mandamus issuing from this court? To answer this: (a) Is this the right of writ? (b) If yes, does S.C. have the jurisdiction to issue it? B. CONGRESSIONAL AUTHORITY 1.

EXCEPTIONS CLAUSE -Under Art. III, 2, Congress has power to limit the appellate jurisdiction of S.C by not affirmatively addressing SC jurisdiction; it may not expand the S.C.s jurisdiction beyond the federal judicial power. Ex-Parte McCardle. a. Check on the Exceptions Clause if the bill of rights b. NOTE: Justice Douglas contended that there is a serious question whether the McCardle case would command a majority view today Glidden.

Congresss ability to Limit the SCs authority Ex Parte McCardle (83)(1869), McCardle wrote for Under Art. III 2 Con grants Congress the plenary a newspaper right after the Civil War during power to make exceptions to the SCs jurisdiction. reconstruction, his articles were highly critical of However, it may not expand the SCs jurisdiction beyond federal governments use of its authority. He was the federal power. arrested and detained; the trial was over whether or Judiciary Act of 1879 [Limits jurisdictions over cases not his detention was lawful. and controversies] Lists cases where the SC does have This is the most authoritative interpretation of the jurisdiction and by not listing cases excludes SC Exceptions Clause. jurisdiction over them, i.e. jurisdictional stripping bills. [Examples of jurisdictional stripping bills is in the The Exceptions Clause, Art III 2 Handout that he gave us] NOTE Justice Douglas contended that there is a serious question whether the McCardle case would command a majority view today Glidden Klein (87)(1872) To establish a claim of seized property in the Civil War, a P had to show proof of loyalty to the Union Congress tried to change the effect of the Presidential pardon The jurisdictional exception at issue here violated the principle of separation of powers in 2 ways 1. By usurping a judicial function 2. By encroaching upon a presidential prerogative

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2.

NECESSARY AND PROPER CLAUSE: , Article 1, 8: a. Under the "Necessary and Proper" clause of Article 1, 8, if Congress is seeking an objective that is within the enumerated powers of the Constitution (i.e., commerce clause, taxing, spending, war, treaty, equal protection), then Congress can use any means that are rationally related to the objective Congress is trying to achieve provided it is not specifically prohibited by the Constitution. McCulloch v. Maryland. b. Doctrine of Enumerated Powers Just b/c it is not expressly stated does not mean it does not fall under the N & P Clause, i.e. Implied Powers, Policy: This goes largely to the Rule of Deference, there is a wide ranging discretion about means to effectuate enumerated powers, Rationale Basis test Congress has power to regulate through the Commerce Clause (Art I, 8, sc3) the N & P Clause, Art I 8 sc18 c. Example: Congress can raise and army and navy. Congress makes law to have national bake sale for army and navy. Nothing in constitution about bake sale, but congress can make a bake sale to raise army. 2. Can Maryland tax the Bank, i.e. can a state tax the national government? In this case, with a targeted tax, the SC held that Maryland cannot tax the national bank, but it is still to be determined whether or not a broader tax would be allowed. P70 Targeted tax = the power to destroy b/c it gives Maryland the authority to tax a federal entity, i.e. people in other states as well Maryland. Supremacy Clause federal objectives should prevail b/c the federal government should have the ability to go about its business without being impeded by states. First Issue Holding = Courts interpretation of Commerce Clause under McCulloch Using the N&P, p67, When it comes to ascertaining whether a particular act is within the powers of Congress i.e. so long as Congresss choices are reasonable and related to some purportedly Conl power the courts will sustain the act of Congress at this point a generous interpretation. SEE APPENDIX for Constitutional Interpretation Analysis using this case.

McCulloch v. Maryland (1819)(61) Maryland is alleging that the Bank of the US has refused to pay a state tax, specifically can James McCulloch, a cashier of a branch of the bank. John James sued on behalf of himself and the state of Maryland quitam. Issues: 1. Can Congress charter the Bank of the US, i.e. is the Bank of the US created by Congress Conl? Art I, 8, - Nothing says that Congress has the power to charter a national bank, but other powers listed such as the power to levy taxes. So you look to Implied Power; Art I, 8 sc18th Clause = Congress uses the Necessary and Proper Clause in order to achieve the means necessary to follow through with their powers listed under the Commerce Clause. The Doctrine of Enumerated Powers Congress cannot overstep their bounds, however, Necessary & Proper Clause allows Congress to create means with which to achieve goals. Pretext Argument Is it the SCs job to act as a lie detector to see whether or not Congresss stated means are pretext? No. - Rule of Deference Art 10 all powers listed not listed goes to states does NOT limit Congresss power to create a Bank C.

STATE COURT AUTHORITY Federal courts also have the power to review state court decisions, but only if the case arises out of federal law and there is no independent and adequate state grounds for the courts decision. Article III; Martin v. Hunters Lessee. 1. The Appellate power of the US must extend to cases arising under the Constitution, the laws and the treaties of the US, thus the SC has appellate jurisdiction over Constitutional decisions by state courts. SC has judicial review of state courts.

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2. 3.

25 of the Judiciary Act (which authorizes the exercise of jurisdiction in the specified cases is supported by the Constitution) SC has judicial review of acts of Congress, i.e. National Government. Federal and State courts must follow the decisions of the S.C. SC has judicial review of state and federal courts. SC examines 25 and finds it constitutional, responding to each argument Argument 1 Con says all cases, if VA were correct then jurisdiction would be some cases Art III Art VI 2 all judges are bound by Con Con contemplated SC review of state cases shown w/all cases b/c Con doesnt say lower federal courts must exist (Art I, 8) so these cases must have meant state cases Argument 2 Art I 10 has provisions that limit state sovereignty w/regards to other branches of government, follows would apply to judiciary as well Argument 3 You cant instill upon a general power a restriction which is not found in the terms in which the power is granted ************ Con suggests that state courts can be partial/unfair b/c otherwise diversity jurisdiction would not exist Practical Argument: Judicial system requires uniformity throughout federal cases

Martin v. Hunters Lessee (51), (1816) Hunter claims title comes from state of VA, Martin claims title through a grant from Britain, a grant recognized as valid in a treaty with between the US and GB. TC Finds for Martin, treaty valid. AC Finds for Hunter, VAs property rights had vested before treaty through an Act of Compromise w/GB. S.C. of US Finds treaty valid, remands to AC w/direction to find for Martin. AC of VA says No! SC says that 25 of Judiciary Act says that SC is highest appellate court in the land. VA says 25 unconstitutional b/c of 3 Arguments listed by #: 1. Art III could specifically deny state courts the authority to hear the cases listed and it doesnt, 2. 25 encroaches upon VAs sovereignty 3. It is dangerous for SC to have power over everything

Cohens v. Virginia, SC does have the authority to review judgments of state courts AND where states are parties. Cooper v. Aaron Took the power of the states to interpret the Constitutionality of their laws away, i.e. States are involved and bound by SC decisions, only SC can review Constitutionality of laws.

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III. A. B. C. CASE / CONTROVERSY REQUIREMENTS Art III 2 provides that power shall extend to enumerated cases and controversies.

POLICY Designed for docket control, ensures cases are not abstract / hypothetical, promote judicial restraint. DIFFICULT FACT PATTERN [w/cases involving the govt]: the govt has or hasnt done to someone else and it has an adverse on me. FOUR ELEMENTS: 1. 2. ACTUAL CONTROVERSY The SC may not issue advisory opinions. STANDING The party invoking federal jurisdiction bears the burden of establishing both Article III and Prudential Standing requirements. Lack of standing does not indicate a judgment on the merits (a subsequent lawsuit could be filed for same injury by party who would be granted standing). a. ARTICLE III STANDING. Allen v. Wright 1. Injury in Fact / Threat of Injury in Fact Requires a Distinct & Palpable injury Requires a legal injury under common law or statute (includes a wide variety of economic, aesthetic, environmental, and other harms, NOT an academic exercise). Lujan v. Defenders of Wildlife, Federal Elections Commissions, Aikens. Nexus is an important limitation to standing requirements. If injury affects opportunity and ability, then standing is available. When government is not properly regulating a third party, there must be more than just a denial of opportunity or diminished ability. But, when a party is directly denied opportunity or is diminished ability, there is standing. 2. Fairly Traceable to Ds behavior Causation, Simon Eastern Kentucky Welfare Rights Organization, 3. Injury Likely to be redressed by a favorable decision from the Court Test: Whether the relief sought from the court will alleviate the Ps injury? b. PRUDENTIAL STANDING Standing requirements that are beyond the constitutional minimum. [Narrows Article III Standing] Injury must be: 1. Arguably within the zone of interests protected or regulated by the statutory or Constitutional provision at issue. Ps claim must be protected by the Zone of Interest of the law invoked. Not really considered. Not be too generalized it must be particular and not shared by all or almost all citizens. Policy: You should not litigate where a more appropriate remedy is political. Generalized grievances can be granted standing if injury is concrete. FEC v. Aikens (denial of information), but not if it is abstract. Lujan v. DOW (report which would not affect building projects). Generalized grievance + Concrete Injury = Standing under Article III/Maybe Standing under Prudential, if Congress doesnt override. 3. P cannot litigate for 3rd Party, Jus Tertii

2.

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c.

Exception: Associational Standing. Hunt v. Washington State Apple. Requires: i. One or more of its members has standing ii. Issue to be litigated is germane to the organization or associations purpose iii. Individuals used to establish standing do not necessarily need to participate in litigation, [Difficult to recover damages on of other individuals] Congress MAY WAIVE prudential standing by specifying who has the right to sue. FEC v. Aikens. NOTE: Remember to check statute for waiver (i.e. any citizen may sue for a violation of this statute).

No Standing: Injury is too abstract and not traceable or redressable. Allen v. Wright (92)(1984) [5-3 Issues: Whether or not the Ps have standing? opinion] opinion/Marshall did not P wants the Court to require the IRS more aggressively control participate] Class action suit by granting exempt status. POLICY: Traditionally SC extremely African American Families for those cautious of telling IRS how to regulate enforcement of tax exemption families with black children in public statutes. schools under desegration orders by Structured law enforcement of executive branch raises separation of Courts or DHS. Millions. IRS powers argument. Problem from the outset. allowed private schools to claim taxISSUE: Whether the Ps have standing to sue? exempt status even upon proof school An asserted right to have the government act in accordance with the was discriminating. IRS is not law is not sufficient standing alone to confer jurisdiction on a federal knowingly allowing race court. discrimination, they are simply not Plaintiffs alleged two injuries: stigmatic and diminished ability to doing enough to catch these schools. attend integrated public schools. Bob Jones University v. United Stigmatic injuries are generalized grievances so that there is no States court sustained a law standing. disqualifying schools from receiving Diminished ability to attend integraged public schools is an injury in tax exempt charitable status to fact, but is not traceable or redressible, because of the long chain of institutions intentionally connection leading to the IRS and many things could have prevented discriminating against on the basis of attendance of public schools. race. Standing: Injury is fairly traceable and redressible. US v. SCRAP (107)(1973) Members injury was fairly traceable based upon their use and Environmental groups could enjoyment of park. challenge ICC failure to suspend Fairly attenuated, but had standing.. surcharge on RR freight rates as Might not command a majority today. unlawful. Members used forests. No Standing: Injury not redressible. Too abstract. Simon v. Eastern KY Welfare Rights Organization P argue hospitals should not be charitable organizations b/c hospitals were acting as for profit entities and not providing enough care to indigents.

Court held that is speculative whether changing the tax status would increase the care and treatment offered to indigents.

No Standing: Separation of powers argument. Rizzo v. Goode (1976)(95) Well established rule that government is traditionally granted the widest latitude in the disptatch of its own internal affairs.

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Goes to merits, not standing. Reinforces separation of powers argument, which seems to be why ct tightening up its standing requirements Court uses standing instead of political question, but would also be denied under political question Lack of Standing for Different Types of Injuries. Lujan v. DOW(97)(1992)There is an ISSUE 1: Plaintiffs alleged impairment of ability to observe ESA Act imposing obligations on federal endangered species in their native habitat. agencies to make sure any action funded HOLDING 1: Impairment of ability to observe native species is by the agency wont interfere with sufficient for claim of injury in fact. Sierra Club v. Morton (107) endangered species created by secretary (1972). However, the construction has not taken place, therefore of interior. no injury in fact. Someday plans are not enough to establish Old rule: Anywhere on continent. injury in fact. New Rule: Anywhere w/in territory of ISSUE 2: Ecosystem/Animal nexus. Anybody that occupies US. a contingent ecosystem to the one affected by agency or has an DOW was able to bring case based on interest in studying or seeing the animals action has standing. Associational Standing (see outline above HOLDING 2: Fails under Lujan v. National Wildlife, must for requirements). actually visit the land (no plane tickets). Anyone who visits zoo Nexus is an important limitation to cant have standing. standing requirements. If injury affects ISSUE 3: Vocational nexus It is possible and plausible that a opportunity and ability, then standing is person who works with a particular animal threatened by a federal available. Legitimate arguments, decision is facing a perceptible harm or works in the very area of insufficient facts. the world where the species is threatened, may have standing. Actual Injury. Aesthetic InjuryHOLDING 3: D did not establish. Failure to get plane tickets. Environmental injury is okay, but you ISSUE 4: P claims violation of procedure - Procedural Injury. actually have to use the environment. Under statute, US Aid reqired to consult with department of the Threatened injury is okay, but must be interior about the agencys action, and receive a biological imminent opinion. MOST IMPORTANT - HOLDING 4: Court has limited Congress ability to determine who has rights to sue though standing requirements. Extreme Cases where standing was allowed based on denial of opportunity and diminished ability. Questions why no standing in Allen v. Wright. Regents of UCA v. Bakke (112)(1978) guy goes to medical school and is denied admission. Brings suit based on reverse discrimination. Northeastern Fla. Ch. Of Associated General Contractors v. Jacksonville (1993)(112) ability to get a contract with minority set aside, would they have gotten the K? Gratz v. Bollinger (2003)(113)challenging admissions at University of Michigan he didnt even apply. Generalized Grievances: Specific v. Abstract Injury FEC v. Aikens (1998)(105) Claimed When its a generalized grievance and abstract, there is no injury by through inability to obtain injury. Lujan. inforamtion that Aikens claims the statute HOLDING: When its a generalized grievance and concrete, it requires an agency to make public. is an injury. Also applies to prudential standings requirements. US v. Richardson (108) (1974)CIA budget not available which goes against Article I, Section 1. No standing because he didnt suffer a particular concrete injury. Also, unlike Aikens, Congress did not grant standing. The doctrines do not change, the courts just change their interpretation of what constitutes standing. Distinctions the Courts are drawing are not very clear, especially whether they arise from the Constitution. (Makes Prof. uncomfortable).

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City of Los Angeles v. Lyons (1983)(108)Arrestee sued for use of chokehold. 3. a. Entirely speculative whether he would be arrested again w/ use of chokehold. Injury must be in fact or imminently threatened harm.

POLITICAL QUESTION The Court will not hear political questions. Determining if political question: Per Baker v. Carr, to identify whether the issue is considered a political question that should not be decided by the Court, the court looks at whether there is: i. A textual commitment to an alternate branch of the government; and/ or a. Nixon v. US: Congress has the sole power of deciding to impeach someone judicial branch has no power to look at this decision (it is a political issue). b. Effectiveness of Amendments.

ii.

b.

An absence of judicially discoverable and manageable standards to decide the issue; a. Bush v. Gore: cant come up with a method to recount votes properly, so no judicially manageable standards. b. Resolves Luther v. Gordon (Guarantee Clause, Article IV, Section IV), as reason why Courts may be reluctant to interpret and enforce the Guarantee Clause (of republican form of government). c. Connects to Marbury in discretion. Whether the Constitution gives us criteria on the Constitutionality of the presidential veto. Since it does not, it cannot be reviewed iii. Other secondary things to consider: 1. Impossibility of deciding without a policy determination that is not for judicial discretion (for another branch of government). 2. No way for an independent resolution without showing lack of respect for another branch. Luther v. Gordon. 3. Need for unquestioning adherence to a decision already made (primarily international affairs and war declarations, i.e. Iranian hostages could not sue due to presidential treaties - Stephanie). 4. Potential for embarrassment from a variety of announcements by different governmental departments on one question. Note: Dont confuse things having to do with politics and political questions!! RARE! Things having to do with politics are not necessarily political questions.

District lines justiciable under one person, one vote standard. Reynolds v. Simms (1964)(136) Requires one person, one vote under the Equal Protection clause roughly similar populations in judicial districts. Court will deal with gerrymandering under one person, one vote standard that is judicially manageable since no possible remedy through normal political process. Baker v. Carr (119)(1962)In TN voting strength The district plan encroached on the residents in TN in such given to districts. 1901 Plain creates legislative a way that it would be impossible for a remedy through districts. Popluation changed so significantly, normal political processes. Suggested in McCulloch. legislature contained disproportionate number of Court is willing to deal with gerrymanding problem and it representatives. No allegation of disparate is justiciable controversy. treatment to a particular racial group. If rural Eventually develops one person, one vote standard, so interests control legislation, not willing to give up that it is a judicially manageable standard. power through redistricting. What to look for if case before court is nonjusticiable?

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Under McColloch v. Maryland is there an effective political remedy when the power is wrongly distributed and difficult to change due to entrenchment of particular group makes political solution less probable? Under Marbury v. Madison Certain executive acts that the Court is not inclined to review. This is not an act by executive, but an act by legislature of TN. Case is justicable. Guarantee Clause, Article IV, Section IV, Presidident and Cognress have authority to determine republican form of government. Not justiciable. Luther v. Borden (120)(1849)Claims in RI of 2 Court wont deal with claim since it would be called to entities being legitimate government. P claimed decide which contending faction in RI was lawful trespass against D. D admitted, but claimed government. authority on part of government to enter the land. Would create a chaos due to illigitimate acts of Congress chose to seat representatives of the government . charter government to sit in federal congress. Article IV, Section IV Guarantee Clause - vests The President called out millitia to suppress Congress and President with authority to decide what other government faction. constitutues a republican form of government (really only says United States, not just Congress or President). Possibly would have contradicted acts of other branches with ruling. Court would not know standard to decide republican government. Article I, Section III, Clause 6, Senate has sole authority to impeach. Not justiciable. Nixon v. United States (1993)(124) Nixon sued Textual commitment criteria strong basis for finding for failure of Senate to try him for impeachment this to be a political question. Artilce I, Section III, Clause 6 before a committee. He claimed he was not tried Senate shall have sole authority Bringing case before by senate as required by Article I, Section 3 and Court would be adverse to framers intent that Sentate be should have been tried in the same manner as sole authority for impeachment. criminal. Judically manageable standards criteria - Court also Case ultimately dismissed for lack of describes how difficult it would be to identify a manageable jurisdiction. Constitutional guarantee of being tried standard for the procedure of trying an individual. in the Senate means whatever the Senate decides to Justice Suters dissent what if they flipped a coin? Not do. This decision actually interprets the a trial on an impeachment. Can imagine that there be some constitution and the meaning of Article I, Section criteria (by identifying outliers, flipping coin, declaring king III. Could be viewed as a decision on the merits. v. republican form of govt, etc Is there such a thing as the political quesiton doctrine or is there a decision that states the constitution does not give you a remedy, which would be a decision on the merits. Court decides ejectment from Congress. Is the PQ doctrine really a question of politics or is it simply whether the constitutional issue invoked does not allow a remedy? Powell v. McCormick (1969)(126) Powell This only requires judicial interpretation of the denied a seat in Congress because of misbehavior. Constitution and Court consistenly intrepets Constitution in He brought judicial challenge b/c Congress can ways different than other branches of government. only refuse to seat on on Article I, Section 2 There is a textually demonstrable constitutional requirements of age, citizenry, and residency commitment of the issue to a coordinate political requirements. Powell wins. department and the scope of such a commitment. This is not a political question. Vieth v. Jubelirer (137)(2004)Plaintiffs challenging map being drawn for redistricting PA. Alleging unconstitutional political gerrymandering. Organizing districts in a way not to equally Does political gerrymandering raise to the level of a political question? Article I, Section IV allows Congress to make or alter regulations of the Manner of Holding Elections. Congress

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represent parties and gives advantage to one political party, to pollute the vote. Census mandates redistricting. Any allegation that Renyolds v. Sims one person, one vote standard is violated? No. Is this a claim that some ethnic or racial minority is disadvantaged? No.

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is allowed to override a state redistricting plan or make rules. Best way to interpret case, Justice Kennedys opinion: No political question and no standards to apply. Decides the case on the merits, not on the doctrine. NOT ON EXAM!

Bush v. Gore (144)(2000) FL S.Ct. ordered a revote of undervotes cast in FL counties. 5-4 vote decided 2000 Presidential election. ISSUE 1: Various methods of recounting votes HOLDING 1: FL SCT has right to order recount, but th violates Equal Protection Clause of 14 manner in which it was being implemented was arbitrary as Amendment and Due Process Clause. the standards for counting votes were not uniform. ISSUE 2: Article II, Section 1, Clause 2, each HOLDING 2: There is a direct grant of authority by state shall appoint in such Manner as the Congress to legislature of states. FL SCTs Order was Legislature thereof may direct, the number of unconstitutional infringement of Constitutions grant of electors. Direct grant of authority in Constitution power to states legislature to FL legislature and FL SCT decision is unconstitutional infringement on power of legislature. 4. Question of TimingNOT ON EXAM! a. Ripeness Bars court from deciding cases that are premature, too speculative or remote to warrant judicial intervention (i.e. Lujan v. DOW, suing for housing discrimination when you havent applied for an apartment). b. IV. MootnessPrevents Court from hearing cases where the controversy has been resolved (i.e. suing to get into school youve graduated from).

CONGRESSIONAL POWERS A. POLITICAL SUPERVISION OF THE SUPREME COURT 1. Amendments: If 2/3rds of both the Senate and the House propose an amendment OR if 2/3rds of the states of the states call for a constitutional amendment AND the amendment is ratified by of the states, Successful Amendments that have overturned S.C. Decisions a. XI - limiting jurisdiction of the federal courts to hear suits brought against states b. XIV deeming Americans of African Descent citizens of the United States c. XVI Expanding the power of Congress to tax d. XXVI setting the voting age

3 Policy Views on whether the Constitution Should Be Amended Madison: We do not need Washington: Proposed Consitutionall amendments only when they amendments b/c the Constitution is amendments should be would remedy huge structural defects. sufficiently flexible as it is. welcomed. 2. 3. 4. Appointment of Justices to the S.C. S.Ct. Justices are appointed by the President and subject to consent by Congress. Impeachment Art III, 1 Life Tenure Federal Judges are Appointed for Life

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5.

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Informal Control of Sitting Judges and Self-Imposed Limits [SC is generally sensitive to the mood of the country and does not generally continue for a long time if it faces intense popular disagreement]

B.

COMMERCE CLAUSE Federalism in Action 1. Benefits to Federalism a. More efficient to allow various jurisdictions to allow government to adjust the manner in which it addresses problems b/c of geography, population, natural resources b. Permits local differences to be taken into account c. Checks and balances - dividing authority is more supportive of individuality 2. Forms that federalism might take (not mutually exclusive) a. Neither state nor nation may have power to act i. Matters that simply are off the table in terms of authority ii. Bill of Rights (which does not address States powers) iii. If regulation violates the 1st Amendment, neither state govt nor Congress may adopt it b. National government may be given exclusive power to regulate in some manner i. Some grants of authority given to Congress that are later denied of the states ii. What about powers in Article I, 8, Commerce Clause are those powers meant for just Congress? iii. Perhaps not exclusive powers of Congress, but a provision that would allow Congress to share authority w/ states iv. Which law would rule in the event of a conflict? The Supremacy Clause = Congress c. States may enjoy some exclusive powers of their own i. Is it an empty set? Are there things that are exclusively w/in the authority of the state to which national power does not extend? Is there anything states can do that the national government cannot? What might those subjects be?

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3.

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COMMERCE CLAUSE: Three Categories Congress Can Regulate: Consistent with the great weight of our case law, the proper test requires an analysis of whether the regulated activity substantially affects interstate commerce Lopez. Per Lopez, Congress may regulate three broad categories of activity under the Commerce Clause of Article I, 8: a. The use of channels of interstate commerce (Gibbons); the channels of interstate commerce are the places where interstate commerce occurs. Examples: Navigable waters, highways, waterways, air traffic, radio frequencies, internet, trucking companies, airspace/commercial travel in planes, Waterways - Gibbons v. Ogden Railroads Shreveport Rate Cases The instrumentalities of interstate commerce or the persons and things in interstate commerce, even though the threat may come only from intrastate activities (Shreveport Rate Cases; Katzenbach); instrumentalities are things that facilitate interstate commerce Examples: Planes, trains (Shreveport Rate Cases), automobiles, trucks, telecommunications (telephones, etc.), internet, radiowaves, stock, insurance, cattle; US v. Bass (transportation of gun requires criminal received gun in interstate commerce; potentially very large category since many articles used every day in interstate commerce) Those activities that have a substantial relation to or substantially effect interstate commerce. (Wickard; Morrison; Lopez; Darby; Katzenbach; Ollies BBQ; Heart of Atlanta Hotel; Jones & Laughlin Steel) ANALYSIS: Lopez Substantial Effects Test 1) Is the regulated activity commercial (economic)? Court makes a distinction. If the activity is not apparently economic, the government must inform them. 2) If yes, did Congress have a rational basis to conclude that the class of activities of which the regulated activity is a part has a substantial effect on interstate commerce? (Rational basis + aggregation principle) Environmental issues: Biodiversity (potential effect) argument: the availability of a large number of animal and plant species has a substantial effect on interstate commerce. Each species is important under this argument b/c it is the number of species that matters, not the characteristics of any particular species. Having a great number of species could lead to cure for AIDS, etc. Ecosystemcould be considered interstate commerce if ecosystem greatly affects interstate commerce, and species is vital to the ecosystem.

b.

c.

3)

If its not economic, is there a jurisdictional element (jurisdictional hook)

which would ensure, through a case-by-case inquiry, that the [activity] affects interstate commerce? Jurisdictional Hook (i.e. no guns vs. no guns that have been transported in interstate commerceconnection between activity and interstate commerce) Likely sustained. A requirement that the thing being regulated has been moved in interstate commerce? Notes following Morrison gives answer. In view

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14
of Courts of Appeal, yes. But, S.Ct. hasnt addressed. Sustaining gun free school zone acts as amended. U.S. v. Dorsey, 418 F.3d 1038 (9th Cir. 2005). MIGHT NEED CASE-BY-CASE INQUIRY: BUT look at jurisdictional hook language on p. 212: jurisdictional element which would ensure though case-bycase inquiry, that the firearm possession in question affects interstate commerce Reminiscent of Hamer v. Dagenhart Looking back at pretext?

4)

If no jurisdictional element, is the activity an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated? Aggregation principle and Rationale Basis still available. If no jurisdictional element and if not part of a larger regulation, has Congress made findings that demonstrate a fairly direct link between the regulated activity and interstate commerce? If yes, sustained if connection to interstate commerce is direct. NOTE: Legislative findings showing only an attenuated link between the activity and interstate commerce are not sufficient (Morrison). i. If its non-economic, the Court goes into an aggressive mode and requires a showing of the connection. ii. Court will not apply the rational basis test when it is not economic activity. iii. The characterization must be fairly direct. Not some attenuated version of the effect Court will not pile inference upon inference An indirect line of causation is insufficient. Too tenuous and remote. Congress went too far.

5)

POLICY: First principle, the doctrine of enumerated powers, there is a limit to federal power. If test to apply leaves one government power limitless, youve either got the wrong test or youre not applying it right. It is not clear which is the conclusion of the Lopez Court. Rational basis is a mediation between giving carte blanche authority to Congress and complete deference to their acts and requiring the government to prove that the act is connected to Commerce. P. 212 where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained. Even Wickard, which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way. If the activity is non-economic, the rational basis does not apply. We need robust proof of the connection with intrastate commerce if it wants to substantiate it. 2. Historical Developments Effecting the Commerce Clause a. Civil War After the Civil War, Congress more willing to exercise power to control interstate commerce b/c the effects of regulation less likely to cause war (war over) b. New Deal Era Depression and political maneuvering (stacking the bench) made Court more generous to Congressional regulation under the Commerce Clause. Formalist v. Realist Approaches a. FORMALIST A textualist approach. Court examines the statute and the regulated activity to determien whether certain objective criteria are satisfied. When looking at reach of federal power, it looks at each term (commerce, among

3.

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15
several states, regulates) and defines the terms of the grant looking at internal grants of power. [Not concerned with real effects of regulation, i.e. EC Knight]. Objective. TEST: i. Is Congress regulating commerce? ii. Is it commerce among the several states? -Is it completely internal to the state? (NO.) -Does not affect other states? (NO.) iii. Is it regulation? Knows NO limit only limit one might expect ot be found by this power is one that is enforced through the poles. Marshall. [or external limit enforced by Courts].

b.

REALIST A functional appropach. Attempts to determine actual economic impact of regulation or actual motivation of Congress; would uphold legislation even if formal definition is not met. [Concerned with real effects of regulation, i.e. Wickard]. Subjective. Formalist Focuses on the formal happenings. i.e. in EC Knight technicially owning 98% of sugar production doesnt occur among the several states (since it is production) and doesnt cross state lines. FORMALIST = TEXTUALIST = INTERNAL

Realist (Functional) Focuses on whether it practically affects commerce. i.e. in EC Knight owning 98% of sugar production definitely affects interstate commerce REALIST = FUNCTIONAL = EXTERNAL 3.

Tests for Challenging Congressional Regulations 1. 2. Substantial Effects Test Does this effect other states commerce (thus allowing for regulation of intrastate commerce)? Gibbons v. Ogden, 1824. Rational Basis Test Scutiny of the linkage between what Congress has chosen to regulate and interstate commerce; If the Court can immagine a reasonable relationship between what Congress is trying to regulate and interstate commerce, it is acceptable regulation. No necessity to provide hard evidence by government. Aggregation Principle Effects of the entire class matter, rather than individuals of the class. So, even if the single farmer did not substnaially effect interstate commerce, if all farmers in the class will, it will substantially effect interstate commerce. Dont look at just the individual before the Court, but look at the effect of the activity in aggregation. Regulation: Dormant commerce clause invalidating NY monopoly law. TEST: Effects Test does this effect other states commerce (thus allowing for regulation of intrastate commerce).

3.

Effects Test: Still good law today. Gibbons v. Ogden (1824) (p170)Congress passes law allowing Gibbons to operate a Ferry, but NY has given Ogden a monopoly. Court declares the monopoly unconstitutional and says that Gibbons has right to operate a ferry.

Commerce/Manufacturing Distinction; Direct/Indirect Test (Regulation of Morals) Hammer v. Dagenhart (1918)(p. REGULATION: Not okay because child labor occurred 174)Court says that Congressional Act before placed in interstate commerce. prohibiting interstate transport of goods TESTS: Commerce/Manufacturing Distinction;

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produced by factories using child labor is unconstitutional. The evil has ended once the goods are manufactured and before they are placed in commerce. Justice Holmes dissent says formalist approach should not look at intent and should remain strictly formal (should uphold the law). Overruled by US v. Darby (FLSA). BAD LAW

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Direc/Indirect Test This is manufacturing, not commerce, Congress cannot regulate. BAD LAW! Formalist approach (but looks at intent). Morals Case: Congress is using commerce clause as pretext to regulate morals. 10th Amendment allows states to regulate child labor . REGULATES SHIPMENT OF GOODS. HIGH WATER MARK Courts willingness to police Congress (constrast with Wickard).

Aggregation Doctrine; Clear and Substantial Effect; Rejects Direct/Indirect through Aggregation; and Manufacturing National/Local Test Wickard v. Filburn (1942) (p. 175) Filburn was Court upheld Act on basis of Aggregation Doctrine ordered to pay a penalty imposed by the saying that if all farmers did the same, there would be a Agricultural Adjustment Act for producing wheat substantial effect on the economy. in excess of his assigned quotas. He argued the Aggregation Principle applied. The collective regulations could not be constitutionally applied to consumption of excess wheat on farms has substantial his crops because part of his crop was intended for impact on the interstate market for wheat. Wickards home use and consumption and not interstate small impact is enough to bring his activity within the commerce. regulated whole. REGULATION: Okay. Rational Basis test applied. While the government REGULATION OF INDUSTRY. supplied hard evidence of the relationship between Wickards activities and interstate commerce, they were LOW WATER MARKCourts willingness to not required to do because if the Court can immagine a defer to Congressional regulation (contrast with reasonable relationship, it is acceptable regulation Hammer). Direct/Indirect Test; Substantial/Insignificant Test; Commerce/Manufacturing Test United States v. E.C. Knight (1895)(p.187) US Production is not related to interstate clause. Object of invokes Sherman Act to set aside sugar company regulation is not directly related to interstate commerce. acquisition of 98% of Sugar Refineries. Court says Because it is only indirect, it is not constitutionally this is not covered by the Sherman Act because it is sustainable by conjoining the Necessary and Proper only manufacturing. Clause with the Commerce Clause. REGULATION: Not okay. This deals with Formalist Approach. manufacturing. Limited by NLRB v. Jones & Laughlin Steel. Direct/Indirect Test Shreveport Rate Cases [Houston East & West Texas Railway v. US] (1914) (p. 188) The ICC set a maximum rate applying equally to shipments from Dallas or Marshall to Shreveport. REGULATION: Okay.

Court ruled that regulation between Dallas and Marshall was permissible. Congress can regulate intrastate commerce where there is an inseparable relationship between intrastate and interstate commerce. RR being regulated is interstate carrier, thus viewed by court as an instrumentality of interstate commerce. RR has close and substantial relation to interstate commerce traffic. If not an instrumentality, use EC Knight test (direct/indirect test).

Direct/Indirect Test Coronado Coal v. United Mine Workers (1925) (p. 188) Court upheld application of the Sherman

Regulation: Okay. Striking miners intended to interfere with commerce.

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Act to a strike against mine operators, calling it a local act, but one that indended direct interference with commerce. Stream of Commerce Theory Initiated Stafford v. Wallace (1922) (p. 189 ) Packers and Stockyards Act of 1921 was held constitutional because it is within the stream of commerce. (Distinguished from production in EC Knight). Direct/ Indirect: (Regulation of Morals) Champion v. Aimes (p. 190) (1903) Federal Lottery Act of 1895 prohibited interstate transportation of foreign lottery tickets. Champion was indicted for shipping a box of Paraguan lottery tickets from Texas to California. The Court declared the Act constitutional. Formalist approach. Congress will not examine motives behind legislation. Direct / Indirect Test

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Stockyards are the throat through which the current flows in the stream of commerce. Regulation upheld. Precedent for NLRB v. Jones & Laughlin Steel.

Regulation: Okay. Lottery tickets shipped across state lines. TEST: Stream of Commerce carried on through interstate commerce. Direct/Indirect. The carrying from one State to another by independent carriers of things or commodities that are ordinary subjects of traffic and, which have in themselves a recognized value in money, constitutes interstat commerce. GOOD LAW. DISTINGUISHED FROM HAMMER V. DAGENHART: Hammer which is realist and functional in its analysis, looks at motive of congress. Champion can be distinguished since Hammer legislation would invade state authority by eliminating all child labor, whereas Champion still allows state lotteries, just prohibits interstate shipping of tickets, thus not a serious limitation of state soveriegnty. Stream of Commerce; Direct/Indirect ALA v. Schechter Poultry (p. 193) (1935) New deal case where court ruled that live poultry codes set up through NIRA to regulation working conditions in the poultry industry were unconstitutional where they applied to NY poultry company at the end of the stream of commerce. Court begins to look at both formalism and functionalism to make decisions on commerce authority. Effects of regulating the local wholesale is not direct or close enough to be controllable by Congress but questions of degree are important.

Regulation: Not okay. NY poultry company at end of stream of commerce with an indirect effect on commerce. The opposite of EC Knight. Centerpiece to New Deal regulation. Internal argument: Court has burden to determine meaning of terms commerce among several states and regulate based on Gibbons (textual). External argument: Congress power is limited by constitutional grants and cannot transcended based on the 10th Amendment (this is province of the state). This is later rejected by Darby.

National/Local; Stream of Commerce; Direct/Indirect; Severability Carter v. Carter Coal Co. (p. 195) (1936) Regulation: Not okay. Congress attempts to set up local coal boards to Mines are local and are before stream of commerce. regulate labor conditions, declaring that mining has Manner of degree has no bearing. No consideration of direct effect on interstate commerce. Court the extent of the effect but the relation between the invalidates these provisions on basis that this is activity and the effect on interstate commerce. Production local and mines are at beginning of stream of is off limits. commerce. IMPORTANT: SEVERABILITY. Notion of Severability: In this case, you cannot excise one portion of the statute. Two provision: price-fixing and labor provisions.

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The majority of justices address the labor and not the price fixing and will not excise one portion of the statute. Not severable. More like Hammer and could not be a plainer example of a formalist approach.

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IS PURPOSE OR MOTIVE RELEVANT? Relevant Hammer v. Dagenhart, Carter v. Carter Coal Ambiguous Gibbons (Congress can do whatever it wants, as long as regulating commerce) Irrelevant Champion ARE THE EFFECTS ON INTERSTATE COMMERE IMPORTANT? No Unless direct EC Knight, Schechter, and Carter Coal Maybe Shreveport Rate Case or Special Rule for Instrumentalities Definitely Wickard v. Filburn (Modern view). Close and Substantial Effect on Commerce; Rejects Stream of Commerce and Commerce/Manufacturing Distinction - Triumph of Functionalist Approach NLRB v. Jones & Laughlin Steel Corp. (p. 200) Regulation: Okay. Labor regulations of steel (1937) The NLRA regulates labor relations. corporation with plants in many states. Charged D with unfair labor practices for firing Silently overruled Carter and Schechter as not employees seeking to unionized. controlling. Justice Hughes, who wrote Schechter, says must Replaced the old stream of commerce and consider effects on interstate commerce so indirect manufacturing/commerce tests with new test: Close and and Substantial Relationship to Commerce. The question is necessarily one of degree Holdings are very fact specific, due to the nature of the How are the activites Congress is trying to Defendants national business operations. regulate really affecting interstate Commerce? Looks at Wagner Act on case-by-case basis. Affectation Doctrine; Clear & Substantial Effect (Regulation of Morals) US v. Darby (p. 204) (1941) Darby was a Regulation: Okay. Wage and labor provisions. lumber manufacturer, some of his goods were later Overrules Hammer. Carter is implicitly overruled. shipped in interstate commerce. He was indicted Tests: Affectation Doctrine and Clear & Substantial for violating wage and hour provisions of FLSA. Effects PRETEXT ANALYSIS DOES NOT APPLY: p. Court says that efforts to promote fairness are okay. 205 (Important quote). Purpose to level competition among states. TENTH AMENDMENT DOES NOT APPLY: Courts conclusion is unaffected by 10th Amendment b/c it p. 206 (Important quote). is not a prohibition that would otherwise restrict KEY POINTS: congressional power because it merely states relationship 1. Motive Not justicially reviewable, subverts between state and federal governments. pretext argument of Hammer v. Dangenart Rationales: (overruled). 1. Goal is to prevent interstate trade in goods and the means 2. 10th Amendment No independent barrier to is regulating wages and hours. Are these measures regulation of interstate commerce. reasonably adapted to a legitimate end? Yes. 3. Generous analysis of the means Congress may 2. Affects Test This activity affects interstate use to regulate interstate commerce. commerce, a broader test. 4. Extends Congressional power to reach activities which affect interstate commerce in some significant way. Aggregation Principle in Employment Cases

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Maryland v. Wirtz (p.206) (1968)Where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.

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Note 2b. No individual instances of employment will be carved out and ignored as long as regulatory scheme as a whole is a proper exercise of power.

Is a constitutional record necessary to establish Aggregation Principle? No. Perez v. United States (p. 207)(1971) As long as the person regulated is a member of the class Clarification of Wirtz and Wickard. Closer to test regulated and the class as a whole has an effect on interstate for civil rights cases. Justice Douglas tells us after commerce, Court has no power to excise, as trivial, looking at leglislative history that prevented individual instances of the class. extortionate credit practices (loansharking), it is Case by Case Analysis championed in Jones v. Lauglin is not necessary that Congress make a record that the abandoned. Courts can examine to determine the Interpretation of aggregation principle in Wickard. constitutionality of an action. Jurisdictional Hook United States v. Bass (p. 207)(1971)Not a constitutional decision, but Constitution serves as a background for Court to adopt certain principles. It is a statutory interpretation question. Looks at possession, transport and receipt by a felon of a gun. Language of the statute reproduced on p. 207.

Do the receives, possesses and transport have to be shown to have occurred in interstate commerce? YES. This is a jurisdictional hook required. There must be a jurisdictional hook to give rise to the regulation by Congress. This interpretive principle is applied sometimes by the Court. When Congress does not speak clearly as to the application of the statute, the Court.

Affectation Doctrine; Aggregation Doctrine; Clear & Substantial Effect (essentially Rational Basis) Heart of Atlanta Motel v. US (p. 208)(1964) Regulation: Okay. Public Accommodations. Katzenbach v. McClung (p. 209)(1964) Affectation Doctrine; Aggregation Doctrine; Clear & Companion cases where Court ruled Congress had Substantial Effect (essentially Rational Basis) power to regulate public accommodations under This is a rational basis test: Did Congress have a rational 1964 Civil Rights Act on basis that their food basis for concluding that there was a substantial effect on products were shipped in interstate commerce and interstate commerce? that they affected interstate commerce in various ways. How obstructions in commerce may be removed what means are to be employed is within the sound and exclusive discretion of the Congress. It is subject only to one caveat that the means chosen by it must be reasonable adapted to the end permitted by the Constitution. We cannot say that its choice here was not so adapted. The Constitution requires no more. THE DOCTRINE: Substantial Effects Test. US v. Lopez (p. 211) (1995) Lopez was convicted for knowingly carrying a handgun in a school zone. Defense was that the statute cannot be constitutionally applied to him. He facially challenges the entire statute. Government tries to link violence in schools to interstate commerce by showing the effects of violent crime on the economy. Government must show Consistent with the great weight of our case law, that the proper test requires an analysis of whether the regulated activity substantially affects interstate commerce (p. 212 quote). A bald prohibition of guns in school zones.

Legislation: Not okay. Regulation of Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained. To come within this standard, the activity being regulated must itself be economic in nature or an essential part of a larger regulation of economic activity. Three categories of activities that Congress can regulate under commerce power: channels of interstate commerce, instrumentalities of interstate commerce, and economic activity that has a substantial relationship with

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Kennedys dissent states that this analysis is really about protecting traditional areas of state sovereignty. Majority implicitly agrees that the legislation should be subject to greater scrutiny if it invades area of traditional state concern. Substantial Effects Test US v. Morrison (p.222) (2000) Violence against Women Act. Allows a federal remedy for women who are assaulted. Rape by student athletes of Morrison and got no relief through school processes or tort law. The connection is too tenuous. Line from cause to effect is not direct enough to justify regulation.

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interstate commerce. If the activity is non-economic, the rational basis does not apply. If Congress wants to regulate a non-commercial activity, they must provide robust proof of that need.

Regulation: Not okay. Violence against women not an economic activity. Congress must show a substantial effect on interstate commerce. Congress argues the but for causal chain in the occurrence of violent crime for interstate commerce. Congress reasonings and studies are not enough. Congressional findings will not save the day unless they are direct and substantial. Indirect circular arguments. Cases where Congress is trying to regulate non-economic activity, Congress cannot assume the aggregation principle is available. Wickard principle of aggregation not available, so Congressional findings are inapposite.

Substantial Effects Test Gonzalez v. Raich (packet)(2005)2 pieces of legislation, Controlled Substances Act (Fed) and Compassionate Uses Act (CA). Marijuana a Type 1 controlle substance (strictest classification under CSA). Ps want one type of activity removed from CSA (do not contest act). Dictionary definition: Economics refers to the production, distribution, and consumption of commodities . Ps concede CSA is regulating commerce. Concede it is within larger regulatory scheme. Take issue with small portion of regulation (use of marijuana for medicinal purposes in accord with Compassionate Uses Act). POLICY: Economic activity might be a little bit different. But, once you buy into aggregation principle and rational basis test, there is very little Congress cannot regulate under the commerce clause. Trying to find a line is very difficult. 4.

Court will not excise one portion of a statute when the entire purpose of the larger statutory scheme statute is to regulate interstate commerce. Congress can regulate things that have a substantial effect on interstate commerce. Statute is part of a larger regulatory scheme intended to regulate interstate commercial activity involving controlled substances. Issue: The question presented is whether the power vested in Congress to make powers that are necessary and proper includes the power to prohibit the local[use of marijuana]. Mere fact that it is economic activity is not enough to invoke rational basis (seeds). If it is part of a large legislative scheme, it is a broad deferential standard to Congress (not judges purpose to determine the tightness of the legislation to the things regulated therein).

STATE REGULATIONDORMANT COMMERCE CLAUSEunder the dormant commerce clause, states are restricted from discriminating against, or unduly burdening interstate commerce. A. Background 1. Key concerns of framers and animated Constitution and developing a stronger national government a. New union looked like a confederation of independent states than a nation. b. Economic policies contributed to view, tariffs between states and protectionism 2. Desired for economic barriers to be eliminated.

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B.

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Theories to Apply a Dormant Commerce Clause (Examine the Statute) 1. Purely Political Theory Promotes idea that citizens are part of a nation working toward national purposes. Some state statutes are incompatible with the ideal of a unified nation (i.e. protectionist statutes) 2. Purely Economic Theory Barriers inhibit economic stability (prohibits trade wars between the states and prohibits interference with efficient disposition of resources throughout the country; want all states to achieve maximum economic performance) 3. Mixed Theory of Political and Economic Theory: protectionist legislation form the operation of political process understood as distorted in ways that lead to the enactment of economically inefficient statutes. Barnwell Brothers Appropriate for Court to step in and give Congress power under commerce clause and coupled with the NP clause to preempt state legislature. Exclusive Power Theory Consequence would be radical disempowerment of the states. 1. Consequences of Exclusive Theory falls by the wayside. Radical disempowerment of the states, especially in light of commerce clause interpretation under Gonzalez and Lopez. 2. Over time this has erroded. Cooley v. Board of Port Wardens. States cannot regulate in those areas where national treatment is necessary. If there is room for local treatment in objects of legislation, states can regulate it. No need for national rule regarding pilotage laws. 3. Court has recognized concurrent authority of states with federal government to regulate commerce.

C.

Gibbons v. Ogden (1824)(170) Justice Thomas suggested states are constitutionally disempowered to regulate commerce. Suggested Exclusive Power Theory. If there was no regulation, Ogden would have argued that he does not need a federal statute to engage in the practice and he can challenge NY statute as unconstitutional as contrary to the exclusive power of Congress to regulate commerce.

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D.

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Preemption determining what implications are when Congress says something and when they have not. 1. TEST: Has Congress specified in the statute? a. Has Congress specified in the statute? i. If no, it is a commerce clause analysis. ii. If yes, look at preemption. b. If express, does it specify the Congressional criteria? i.e. Are the states standards either as or more stringent, as specified? c. If implied preemption, Court attempts to determine Congressional intent, look for field preemption and conflict preemption. 2. Types of Preemption: a. Express Preemption: Congress states expressly what states may do. [No states may regulate this subject matter or States may regulate subject to some caveat.] i.e. Clean Water Act (federally mandated pollution controls). States are free to impose own standards, but must be AS or MORE stringent. Conflict Preemption (Implied): Congress has stepped in to regulate a particular area, but has not addressed the appropriateness of state legislation. i. When a conflict between state and federal regulation, Courts will hold that there is preemption. ii. Primary Example Gibbons v. Ogden (Federal statute v. NY statute). According to Supremacy Clause, federal statute trumps. iii. TEST: a. Impossible to comply with both state and federal law. b. State objectives impede, obstructs or frustrates federal objectives. Field Preemption (Implied): Congress has regulated a field so completely that a Court is willing to conclude that the entire area is preempted and no state may regulate. Primary ExampleNuclear power regulation for safety reasons.

b.

c.

3.

Judicial Decision on Commerce Clause Challenge not necessarily final a. If a challenge is rejected, those who oppose state regulation may secure federal legislation preempting it. b. If a challenge is sustained, those who support state regulation may secure federal legislation permitting it. c. Anomoly: With Federal Acts, Court has last word. This is a regulation of interstate commerce that is discriminatory and must be struck down. Court denied states ability to regulate.

Leisy v. Hardin (1890)(232)State cannot exercise their power to tax items of interste commerce so long as the items remained in their original packages. While state has power to regulate consumption and sale of alcoholic beverage, it could not prevent importation as long as it is in its original package.

Wilson Act Liquor imported into a state shall upon arrival [be] subject to local laws as if it had been locally producd, and shall not be exempt therefrom by rason of being in original packages. Congress overruled the Courts decision of the original package rule in Leisy v. Hardin.

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In re Raherer, Court held that Wilson Act was constitutional exercise of Congress exlcusive power to regulate interstte commerce. When are states efforts to regulate unconstitutional? City of Philadelphia v. New Jersey (1978)(236) New Jersey law prohibiting solid waste from outside the state. Your trash is your problem. NJ is New York and Philadelphias trash dump. State is trying to protect the health and welfare. NIMBY at state level. To determine if its protectionist or affects interstate commerce? COSTS: Local landfill operators Out of state waste producers BENEFITS: Out of state landfill operators In state waste producers

NJ law is protectionist because it imposes on out-of-state commercial interests the full burden of conserving the states remaining landfill space. Where simple economic protectionism is affected by state legislation, a virtually per se rule of invalidity is established. Where simple economic protectionism is effected by state leglislation, a virtually per se rule of invalidity has been erectedThe clearest example of such legislation is a law that overtly blocks the flow of interstate commerce at a States borders POLICY: Justice Rehnquist states there is no distinction between quarrantine cases and trash cases. States should be able to preclude economic bads from entering. If the state discriminates on the basis of economic origin, it is per se discriminatory. (Court has moved away from economic bad analysis).

ANALYSIS 1. If FACIALLY discriminatory OR discriminatory PURPOSE it is Invalid per se, i. DEFINITION: If the statute is facially discriminatory, legislates on the basis of geographic origin of the service or product, or has a discriminatory purpose against out of states, it is virtually per se invalid. ii. TO AVOID INVALID PER SE PRESUMPTION: State has the heavy burden of proving: 1) Legitimate Purpose: that the measure is virtually certain to achieve its legitimate purpose; and 2) NO Alternatives: that the purpose cannot be served well by available, less discriminatory means. City of Philadelphia v. NJ. Policy: Avoid protectionism,. C&A Carbone, Inc. (See Exceptions, below.) The extent of the burden that will be tolerated depends on the extent of the local interest involved and are there reasonably alternative means of achieving the states objective. Philadephalia. iii. POLICY: Court worried about economic balkanization, with no integrated economy. Might impose intolerable costs on states of origin. Court worried about retaliation through trade wars.

2.

If not DISCRIMINATORY (facially or purpose), apply the Flexible ApproachIs the burden on interstate commerce such that the statute should nevertheless be declared unconstitutional? Are the costs on interstate commerce are excessive based on the benefits granted to the state? a. But where other legislative objectives are credibly advanced and there is no patent discrimiantion against interstate trade, the Court has adopted a much more flexible approach, the general contours of which were outlined in Pike v. Bruce Church. Apply Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970) Quote Definition Assessment on whether the burden placed on interstate commerce by legitimate state interests and its effects on interstate commerce are only incidental, it will

b.

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c.

d.

be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefitsIf a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Historical Development: 1. Applies a rational basis test to determine if state is acting in a sphere that is appropriate. South Carolina v. Barnwell. 2. Then applies a balancing test between the local benefits and the burdens placed on interstate commerce. Southern Pacific Co. v. Barnwell. 3. Then, look at reasonable alternatives to states regulation to see if there is a less burdensome way to regulate the matter. Id. Policy Developments: 1. Under Cooley, examine the subject matter of local legislation and consider if it is appropriate or more appropriate for national legislation. 2. If want to legislate on national matter, such as RRs, it must coordinate efforts with other states to reduce burdens. 3. Southern Pacific Co. suggests it will examine the most stringent state standards and see if the incremental difference that burdens commerce is outweighed by the local benefits. (i.e. 16 cars or 8 cars). 4. Examine how to make these policy determinations (legislation would save 3 lives annually v. $18 million per year to comply). Is this a legal judgment or a policy judgment? Should it be left to the Courts or the states? Is this the Courts role? 5. Alternative way to deal with the problem. Rather than asking the Courts, ask Congress to regulate and preempt the area. Is there a less discriminatory or burdensome way to accomplish? Court says no. There could be an inspection system, but the Court finds that it is not adminsitratively feasible to have an inspection system that will do the job of a complete ban.

TIER 1: Allowed facially discriminatory law. Maine v. Taylor(1986)(240) Prohibits bait fish from outside state from being imported into Maine. Similar to Quarrantine laws. On its face, it is geographic. States justification, out-of-state bait fish have parasites that in-state do not. Shipment might wreak havoc upon Maines aquatic ecosystem.

TIER 1: Prohibited geographic discrimination. Sporhase v. Nebraska (239)(1892) Nebraska Court says cannot discrimination based on economic prohibits sending groundwater to other states unless destination in regulating resources. the other state allows reciprocal sending. Appropriate remedy is judicial challenge not legislative protectionism. TIER 1: Prohibited legislation due to Discriminatory PURPOSE Disparate Effects Hunt v. Washington State Apple (p.256) Regulation: Not okay. (1977)Two major rivals in apple market (North Regulation applied to all apple growers, no matter their Carolina and Washington State). Challenge to law geographic origin so not discriminatory on its face. that required USDA labels and standards instead of Discriminatory Purpose is that it disparately effects out Washington State Standards that are higher. of state apple growers over others. Is there preemption by US FDA laws? No. Statutes with discriminatory effect will be struck Important to remember, but not discussed. down even if not facially discriminatory. Is North Carolina taking it upon itself to give US Three discriminatory effects: 1. adding costs; 2. FDA laws preemptive effect? deprives economic good will by virtue of superior p. 258 notes following case indicates that statue economic grade standards; 3. has a leveling effect of

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was enacted at request of NC apple growers, not confused consumers. Court does not explicitly call it protectionist or discriminatory, but colors the whole opinion.

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downgrading Washington apples with apples of less quality. MADDENING: does not tell us what the test is.

TIER 1: Rejected facially discriminatory legislation and REQUIRES STATE TO MAKE CLEAREST SHOWING OR CONCRETE EVIDENCE. An idea not explicit in the Constitution (Dormant Commerce Clause) is found to trump an idea explicitly in the constitution (21st Amendment states can regulate alcohol). Granholm v. Heald (2005)(Supplement)MI law Geographic discrimination raises presumption of regulates and prevent shipment of wine directly unjustified economic protectionism. (Virtual per se rule. instate by out of state producers, while allowing Under Maine v. Taylor, can escape by showing a good instate wineries to directly ship wine to consumers. reason and no alternative regulation.) 21st Amendment EXPLICITLY grants authority NY and MI give reasons 1. limit alcohol access to to the states to regulate importation. minors; 2. out of state will avoid sales tax. Court finds both inadequate. No design to have the amendment displace the ordinary working of the commerce clause to limit There must be concrete evidence that direct shipping will discrimination or economic protectionism. cause these issues. Court rachets up the showing required by state. Courts require the clearest showing to justify discriminatory state regulation. MORE than Maine v. Taylor. State being held to VERY high burden. Court reinforces Philadelphia analysis with a more demanding burden on states to justify reason for discriminatory regulation. TIER 1 VS. TIER 2 ANALYSIS: Difficult determination when local protectionism is involved. Court extends Philadephalia Rule to cover local interests. See Law Journal. C&A Carbone, Inc. v. Clarkstown (240) (1994) Closing the market completely to out-of-state competition Clarkstown subsidized a private waste transfer completely burdens interstate commerce. station to collect solid waste. City passes flow Discrimination against interstate comerce in favor of local control ordinance that all waste must pass business or investment is per se invalid, save in a narrow through 4 facilities located w/in town jurisdiction. class of cases in which the municipality can demonstrate, W/o the ordinance, Carbone would have shipped under rigorous scrutiny that it has no other means to materials to out-of-state destinations at lower cost. advance a legitimate local interest. Justice Souters Dissent it is dubious that Arguments must be rejected absent clearest showing economic protectionism is the motivation of the that the unobstructed flow of interstate commerce itself is statute. unable to solve the local problem. Justice OConners Concurrence: There is no State and local governments may NOT use their discrimination here (agrees w/dissent) b/c here no regulatory power to favor local enterprise by prohibiting in-state class favored over out-of-state class. patronage of out-of-state competitors or their facilities. OConner applies balancing test and concludes Close call, 5-4 vote. violates Commerce Clause, makes economically Economies of scale are found in other utilities, also in bad sense. trash by achieving environmental goals. PROF thinks this is a draw! Agrees with Could regulate, but would be expensive. Justice Kennedy Souters reasoning, but would not change said that the statute could have been effective without majoritys ruling. Replacing competition with discriminating on its face by giving it financial subsidies or monopoly citys do it all the time, water, gas, etc. very low taxes. Subsidies are okay if come out of general It might not be so bad to extend to trash. This is revenues and not earmarked taxes. not a dormant commerce clause issue. Court should have stayed out of it. TIER 1: Geographic Discrimination on its face. Dean Milk Co. v. Madison(1951)(245): HYPOS:

Geographic discrimination on its face.

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City of Clarkstown. There are four waste processing facilities in town. City passes ordinance that all waste has to be processed at any one of the four. It must be one of 4 located w/in towns jurisdiction What if only one is chosen and there are several others inside and out side the town?

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Case cited by S.Ct. that resembles this case. Dean Milk. Madison, WI had requirement that all milk sold in city must be located within 5 miles of city. Economic discrimination of instate v. out of state. Another step required. In-state discrimination just as much as out of state discrimination. Just go down to jurisdictional unit acting. Ask is city prefering its own to all others? Court includes all discrimiantion, even on a local basis. Other interests not represented in that government. It impedes access to the regulatory body because local entities have greater representation at enacting level. Hard to say that discriminatory intent is geographic, since equally discrimination against in-city/in-state and out-ofcity/out-of-state. Doesnt necessarily eliminate geographic discrimination.

What if it must be processed at only 2 out of 4 located in the city? What if 2 have more state of the art equipment? Why still objectionable? West Lynn Creamery, Inc. v. Healy (1994)(247)Imposed uniform tax and gave refund to in-state dairy producers. Thats unconstitutional as well. If neutral tax went into general pot, and not earmarked for return to in state dairy producers, it would be okay. Why?

Lack of political fix is a main concern. If it comes out of general revenues, there are many competing interests from the revenue and it is sufficient to ensure that economic protectionism would not be basis for using tax revenues. Ordinary political safeguards are thought to be enough for general taxes b/c you can address it though ordinary political processes (i.e. the polls, voting, complaining).

Facially Neutral Statutes with Significant Effects on Interstate Commerce South Carolina Hwy Dept. v. Barnwell Brothers TEST: #1. Has the state identified a legitimate state (1938) (255) Weight and size limitations placed on interest for the legislation. trucks that can be used on South Carolina highways. Whether the state legislature has acted within its Some intrastate carriers could not use trucks inSouth province? At this time, yes, no federal interest in Carolina. Limits applied both to in state and out of highways. state trucking firms. Not geographic discrimination, #2. Whether the means of regulation chosen are but will significantly affect intersate commerce. reasonably adapted to the end sought. Rational basis test and invoking N&P clause. Legislation was upheld. If rational basis, then must give deference to state Modern View: Kassel v. Consolidated Freightways legislatures. Corp (1981). Southern Pacific Co. v. Arizona (1945)(255) State regulated number of cars on RR in order to protect safety of RR workers. Modified by Kassel. Is there a legitimate state interest? Certainly protection of RR workers. Is there a rational basis? Yes. Balancing test develops. Balance the putative local benefits against the burdens based on interstate commerce. No denial of state legislation, but must show that the benefits exceed the burdens. Benefits must exceed the costs. It does not work. Race to the bottom, RR would have to choose least number to avoid dismantling trains at states border. Very substantial cost. Regulation: okay.

Exxon Corp v.

CONSTITUTIONAL LAW
Governor of Maryland (p. 259) (1978) Early 1970s major gasoline shortage due to OPEC oil embargo. Gas was being rationed and prices soaring. The Statute prohibits gasoline refiners and producers from operating retail gas stations. If they already own them, they have to divest. Exxon HYPO what if TX enacted the same legislation as MD? Would that have a serious impact upon the commerce?

27

ANALYSIS: 1. Is there facial discrimination? No. MD refineries and producers would be affected equally (practically there are none). 2. Are there discriminatory effects? Yes. No gas reserves or refineries in state of MD. Only entities outside MD are affected. Court looking at something else? Can they sell gas in the state? Yes. Just not by retail, by wholesale. No disruption to interstate commerce since flow of gas not prohibited focuses on product market. Dissent focuses on service market. 3. Is there a legitimate state interest? Yes. There is a shortage of supply. If refiners and producers operate stations, they will get the gas during times of short supply. State of MD is concerned this will exacerbate the shortage and not distribute gas in an effective. This is a legitimate state interest. 4. Is the legislation reasonably related to a legitimate state objective? Yes.

The effects cannot be alleged to be as discriminatory as they are in MD since there are a LOT of in-state producers and refiners thus as discriminatory in-state as out-of-state Compare to Hunt, where any state (other than WA) if enacted the statute, would have the same result. Idea should the accident of geography in MD (where there are no refiners and producers) preclude them from allowing the statute? Hunt No Yes Yes ?No? Yes. (implied) The legislation seems to have discriminatory effects and the legislation is not reasonably calculated to address legitimate state objectives. Exxon No No (Dissent says yes) Yes (gas supply) Yes. [No discussion in case. Suggests that there are.] Yes. No-not explicitly The legislation may have similar discriminatory effects (protect from prime competitor) but is reasonably calculated to address legitimate state objectives. Kassel No (applies to all trucks) A bit with exemptions No (a bit) Yes (highway safety) ?Dicy. Are there any safety benefits from this statute? No. No-whats left to balance? Legitimate state interests hint at protectionism (exceptions for border states).

Facial Discrimination Discriminatory Effects Legitimate state objectives? Legislation Reasonably Related to legitimate State objectives? Alternatives Balancing? Distinguished Explains different outcomes Both casesout of state interests bear all of the costs. Court believes State in Exxon not Hunt.

Raymond Motor Transportation, Inc. v. Rice (243)(1978)Close in time.

Unanimously found truck length statute unconstitutional.

Burden on Interstate Commerce is outweight by insignificant safety benefits. Kassel v. Consolidated Freightways Corp. (p. 265) Regulation: not okay. Regulation does not provide any (1981) Plurality opinion. State statute limits significant safety benefits and it also imposes heavy burdens length of trucks (double trucks). on interstate commerce. Classic multi-factor constitutional analysis in Iowa argued Barnwell: rational basis between regulation

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which no single factor seems to be determinative. Rehnquist says the relevant comparison should be the benefits of limiting the size in genral; no regulation compared to IAs regulation. If done this way, truck length limitation is reasonably related to highway safety. Does it yield significant safety benefits? Yes. Prof sees Rehniquist will uphold every piece of legislature as long as it passes the RBT. Creative argument for attorneys. Hints in Kassel that rational basis still might apply. States w/out bordering states (FL, HI, etc.) would turn out differently. HYPO: What if the statute is not something like truck length? What if its vehicle emissions? CA suddenly telling everyone they can only have X amount of CO2 emissions and government hasnt gotten into business of regulating this. All the other states allow unlimited emissions. Then auto produces would have to make a special car just to CA. Is it plausible to argue economic protectionism?

28
and benefits it is attempting to achieve. IA statute bears disproportionately on out of state interests b/c discrimination in Special Exemptions (border cities allowed to have large trucks) and (mobile homes produced in the state can be transported out in larger vehicles than can be used to come in to state). The Plurality compares the benefits from the 65 feet to 55 feet yield any safety benefits? Compares what other states are doing versus what the state before it is doing. Does it yield incremental safety benefits? No. Does it balance? Doesnt need to if not reasonably related. 2 lives vs. $12.6 million. Four justices believe balancing is the way to go. Five justices do not agree. But is not a benefit to CA and CA alone not entirely clear that this is a regulation that favors insiders vs. outsiders If challenged under Commerce Clause, why not appropriate to argue RBT? Is the states interest in avoiding the ill-effects global warming reasonable? YES Is the regulation legitimate to reach that interests (the states objective)? YES its a reasonable first step.

CONSTITUTIONAL LAW
V. A. Taxing and Spending Power of Congress

29

Taxing Power 1. CONGRESS HAS WIDE DISCRETION: With passage of 16th Amendment (allowing federal income tax), there is not much limit on taxing power. 2. REMEDY IS USUALLY POLITICAL: McCulloch v. Maryland Courts should not normally assess legality of taxes imposed by states. Remedy for abuse of tax powers is normally political. This is a powerful check on Congress ability to tax, new taxes are very difficult to support politically. 3. PRINCIPLE ISSUE: Can taxing and spending powers be used to support objectives that Congress cannot other achieve through the using other methods (i.e. via Commerce Clause). TAXING AND SPENDING POWER ANALYSIS: TEST 1) Is the recipient coerced into complying w/ conditions attached to spending? a. Not in Dole test, but independently in the framework of the Courts analysis. This factor drives conclusion in Butler and Steward Machine. b. If coercion involved, not necessarily a reason to say its not w/in powers. Coercion can cross into the area of regulation c. Steward Machine what counts as coercion is substantially modified. At some point inducement might turn into compulsion or coercion, but doesnt tell us where that point might be. d. PROFESSOR: if there is truly no coercion, then who cares the state is making a voluntary choice to obey by the conditions or not not really able to figure out what this is all a/b IF YES, are the conditions otherwise w/in Congress spending powers? a. It is sometimes acceptable if the recipient is coerced b/c there is another power available to Congress. b. Example: Butler would be sustainable today, after Wickard, since regulation of agricultural production is now within the Commerce Clause. IF NO, the Dole test: (exact language on p. 291) 1) Does it promote the General Welfare? Butler. a. Court has never struck down a spending program for failing to meet this criteria. b. Courts should defer substantially to Congress on what constitutes general welfare. c. Williams astonished if Court would develop adequate criteria for what sort of things establish general welfare sees it as a political matter* (political question doctrine) 2) Are the conditions stated in an ambiguous way? a. If yes, they would probably be construed not to be conditions at all. b. If Congress intents to interfere with the sovereign rights of the States, it must do so in an unambiguous manner. See Pennhurst, where findings did not clearly equate to conditions on receipt of funding. 3) Are conditions related to federal interest in particular projects or programs? a. RATIIONAL BASIS TEST: Very deferential review. Conditions must be related to the actual Act, not some unrelated activity. b. Departs a little bit from Cardozos formation in Steward Machine. i. Steward under 21 drinking limit must be related to highway funding (ct found it related)

B.

2)

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ii.

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Appears loosely like a rational basis going to resemble the test that is applied in some Commerce Clause situations (larger regulatory scheme part) iii. OConnors dissent wants a more rigorous test with conditions be closely related to actual spending program. Says there is no reasonable relationship in Steward. PROFESSOR: If court required to relate conditions to spending programs based on federal concerns this might be the place where they could do it. Better way of ensuring Congress isnt intruding in areas of state concern (*Williams) This is the element where most litigation would occur. Sabri v. US Federal crime to bribe state or local official of governmental unit receiving more than $10K. GOOD EXAM QUESTION (Like US v. Perez Corrupt commercial activities). Analyze that under the commerce clause. It analyzes under the Dole framework. Rigorous policing these conditions would be a way to tighten up this analysis.

c. d. e.

4)

Violate affirmative limits on congressional power? a. Cannot violate the Bill of Rights (i.e. giving money to build particular churches; not coercive, conditions reasonably related, but STILL violates 1st Amendment Prohibition on Establishing Religion) b. Dispute regarding law schools being required to allow army recruitment because of open discrimination against homosexuals. FAIR v. Rumsfeld. Court found no violation. c. Rare cases. Dont worry about this element.

Hammer v. Dagenhart (1918)(174)Court struck down Child Labor Act for transporation of goods made by child labor.

Signals in prior decision involving tax authority. Congress decided if it did not have this power under the Commerce Clause, it would try to reach it through the taxing power. Bailey v. Drexel Furniture Co. (1922)(p. 281) In Main point was the coercive nature of the tax 10% on the interim, Congress decided to impose a Child all profits. This was a punitive tax and coerced compliance Labor Tax Act. If cant reach it through the with child labor regulations, so that taxing authority was Commerce Power, we will seek objective through deemed unconstitutiuonal. the tax power. McCulloch the power to tax is the TEST: 1) Tax cannot be so high as to be coercive and tax power to destroy. Defined child labor the same cannot be a pretext to an unconstitutional exercise of taxing way as Child Labor Act. Enacted 10% tax on power to regulate an objective Congress could not otherwise entire net profit. achieve by penalizing falure to comply. Congressional efforts were transparent. 2) Tax should be designed to generate substantial revenue. Congress had already been denied the power under Its not entirely clear that revenue would be generated. the Commerce Clause, so this was also unconstitutional exercise of taxing power. When a taxing measure has the primary purpose of generating revenue, any other purpose or regulation within the statute will be given the greatest deference pursuant to the Necessary and Proper Clause. United States v. Doremus (p. 280) (1919) Whatever motive Congress might have had other than to Harrison Act regulated sale and distribution of tax is not reviewable. narcotic drugs. Act required special forms and Argument like Darby, not really worried about motive, charged tax. Doctor challenged and claimed that worried about purpose. Congress real motive was to regulate the use of Revenue keeping and forms were all upheld on theory that narcotics. they were N&P to ensure that tax was actually paid. After Gonzalez, Congress given blank check to Regulatory measures in statute are justified by purpose to

CONSTITUTIONAL LAW
regulate drugs. Outdated type of argument being advanced. Not presently a good argument.

31
raise money. Very deferential approach to Congress taxing authority. Consistent with McCulloch v. Maryland with N&P clause.

Congress cannot regulate through coercion an area it could not otherwise regulate. US v. Butler (1936)(p. 283)Agricultrual It is not contended that this provision grants power to Adjustment Act taxes producers. Tax goes into an regulate agricultrual production upon the theory that such earmarked fund that subsidizes farmers willing to legislation would promote the general welfare, but privately contract with the government to limit government concedes that the phrase to provide for the their production. This is a tax and spend program. general welfare qualifies the power to lay and collect (2 years before Jones v. Lauglin Steel and 6 years taxes. before Wickard v. Filburn) Providing for the general welfare is a restraint on the Goverened by EC Knight Congress cannot taxing and spending power BUT not spending power has regulate production. been struck down for failure to pursue the general welfare. Settled Power to spend must be to advance WHY UNCONSTITUTIONAL: 1) Invades powers general welfare. traditionally reserved to the states 10th Amendment (not The general welfare is not restricted to Article I, true today under Darby); 2) Coerces complaince with regulatory conditions. Section 8 enumerated power, but cannot invade internal limits of Constitution that prohibits Conditional appropriation of money Congress can Congressional action, i.e. 10th Amendment. place restrictions on money it gives. It just cannot Preexisting condititions only. Farmers did not have to spend Idea that Congress cant coerce compliance the money in a particular way. through the spending power to achieve objectives that would be denied under its other spending powers. Coercion=regulation, basis for forcing compliance. This is a sanction, not a spending program. Farmers punished for not limiting production. The Condition on Spending must bear a substantial relation to the PURPOSE of the program. Steward Machine Co. v. Davis States challenge stating coercion due to 1) to adopt an unemployment (1937)(p.288) Social Security Act. insurance program and 2) that meets federal standards. Tax on employers to pay money for Regulation: okay. Federal Unemployment Insurance. If Every tax is in some measure regulatory by imposing an economic the employer made contributions on impediment to something taxed vs. something not taxed. It is a temptation qualified state unemployment fund, or motive, but determining it would result in an endless legal inquiry they get a 90% credit for federal The Court refuses to engage in analysis that drove Butler. unemployment tax. What about the minimum criteria requirement? TEST: The Distancing from Butler in terms of CONDITION must bear a subtantial relation to the purpose of the when a spending program coerces, program. Without the conditions, govt cannot be sure that the program every tax is in some measure will alleviate the federal burden. [If state funding related and regulatory inappropriate, then it might be unconstitutional]. p. 290 Cordozo Is the adoption of criteria related to the subject matter and fairly within the scope of national policy and power? Establishes the 4 Part Analysis of Spending power. South Dakota v. Dole (1987)(291)Statute to withhold 5% of federal highway Is this coercion? No. funds for states unless they impose a minimum drinking age of 21. Congress cannot 5% is hardly coercive. regulate this directly by commerce clause due to the 21st Amendment which gives 4-Part Test. states regulatory power over alcohol. Congress resorts to spending power Conditions listed must be unambiguous. Pennhurst State School & Hospital v. Halderman In federal legislation, there were a number of conditions (1981)(296)Federal spending in aid of state attached to the federal funding that states were required to programs to assist mentally disabled persons. meet. States had to submit a program to the federal agency.

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Halderman challenged states receipt of federal funds since it did not protect the rights of mentally disabled as outlined in statute.

32
Statute had findings that established rights of mentally disabled. Court held that Congress did not intend state to be bound to protect rights. List of rights would be an ambiguous condition, so did not bind the state.

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X.

33

10th AMENDMENT AS A FEDERAL BASED LIMITATION OF CONGRESSIONAL POWER 1. FEDERAL SOVERIEGNTY ISSUESWhether the 10th Amendment or the structure of the Constitution might impose some restraints on Congress power (Conferred by Article I, Section 8)? A. Treaty Power: Under the Necessary and Proper clause, Congress has power to implement the provisions of a treaty though legislation even when there is no independent power to pass such legislation. Missouri v. Holland.

Is this federal sovereign power sovereign somehow restricted by the 10th Amendment. Missouri v. Holland (1920)(330)Missouri challenges Missouri states that it violates the 10th statute that implements Migratory Bird Treaty between US Amendment. and Britain (b/c going into Canada at time). Challenge to Treaty power is an independent form of power statute to regulate taking of migratory birds within the that is not constrained by the commerce power. jurisdiction of the state. Prior statute called Migratory Bird Treaty is not self-executing, therefore Congress Act was struck down by District Court. Wildlife was implements legislation, MBTA (Migratory Bird viewed as property of the state. Significant inroad of Treaty Act). sovereignty of state protected by 10th Amendment. In order to make treaties, it is absolutely President invokes Treaty power and Congress enacts same necessary to be able to enforce them througout your law under same power. own coutry. Congressional power under the N&P Hammer v. Dagenhart era. Clause is invoked to legislate, and in all other 10th Amendment is a truism Darby. Is there an powers vested by this Constituion in the invisible radiation from the terms of the 10th Amendment? Government of the United States. NO! HYPO: Treaty for human rights. Aggressive measures preventing violence against women. Congress reenacts Violence Against Women Act that was held unconstitutional under the Commerce Clause in Morrison. MO v. Holland suggests that VAWA as part of treaty would not represent a violation of 10th Amendment. This would be N&P under such a treaty. Lopez and Morrison represent rather weak limitations on Congressional power. BUT it is limited by requirement that it must be a treaty with another nation willing to agree. This will be a RARE problem.

2.

ANTI COMMANDEERING ACT ANALYSIS Congress cannot commendeeer the legislative powers of the state. (Can induce with incentives, can preempt, can financially induce as long as meets the Dole test). Legislature cannot be commandeered to crate legislation that meets federal standards. New York v. United States. 2 Strands of Cases: 1. Garcia cases: No Commandeering. The Court leaves these cases alone because all legislatures in some way will affect state legislation and they wish to: a. Avoid political questions (there is no justiciable standard to determine a core governmental functions this is unique to each state government) b. Leave legislation to be rejected/accepted through political safeguards. c. Garcia overruled National League of Cities, where it was held that the Commerce clause does not allow Congress to legislate in areas of traditional governmental functions. National League of Cities. Overruled by Garcia. But see OConner dissent in Garcia and tries to resurrect this case in New York v. United States. d. NOW: State soveriegn interests are more properly protected by procedural safeguards inherrant in the structure of the federal system than by judically created limitations on federal power. Garcia.

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34
TEST: When state acting in a private manner and the statute is generally applicable to others acting in the same way (i.e. possessors of information), it does not violate the Anti-Commandeering Principle. New York does not apply since it is not a core function. Stated Another Way: [Does the legislation affect everyone (is it generally applicable), or is the state is acting in a private manner? If yes, the Court will not find Commandeering. POLICY: Analysis starts to look like National League of Cities (state run railways), but invokes Garcia as general applicable law.

e. 2.

NY v. US cases: Commandeering. The court will hold the legislation violates the AntiCommandeering Act in some cases. a. How can Garcia and New York be reconciled this is not a case in which Congress has subjected the State to the same legislation applicable to private parties. Regulation of states as states not as an employer as in Garcia. b. RULE EXPANDED: Congress cannot use states administrative structure to implement and enforce federal law. Printz v. United States. c. TEST: 1) Is the state targeting only the states or things that can be run by states (i.e. zoning boards, CLEOs) [Disparate effects can be an argument here for whether or not something can only be run by states] If No: No Commandeering. If Yes: move on to next part of test: 2) Does the legislature only affect the judicial processes of the states (judicial functions)? If Yes: No Commandeering. If No: Move On: 3) Does the legislation affect legislative (NY v. US) or administrative processes (Printz, CLEOs)? If No: No Commandeering. If Yes: Move On: 4) Can the state opt out of performing the tasks required by the legislature without any retaliatory action by the federal government? (i.e. states that comply dont have to pay federal taxes, careful, is it coercion or just a carrot on a stick to get the states to do it) If Yes: No Commandeering. If No: Commandeering. CONCLUSION: Legislation Must Survive Each Of These Tests In Order To Be Found to Violate Anti-Commandeering Act d. POLICIES: a. Accountability issues: who enforces, who determines whether a reasonable effort has been made. New York and Printz. b. Shifts fiscal burdens. Printz. c. Power of the federal government would be augmented immeasurably if it impresses officers of state government into service. Printz. Consent is not sufficient to defeat the application of the anti-commandeering principle. It is individual rights that are protected, not states interests.

FLSA applied to state as private employer is Unconstitutional. National League of Cities v. Usery (1976)(334) Although FLSA substantially affects interstate commerce, FLSA required that states and governments as it is unconstitutional for infringing on traditional aspect of

CONSTITUTIONAL LAW
private employers were bound to uphold standards. Could Congress apply FLSA to states as employers? Darby sustained the act as applied to private employers. Overruled by Garcia. But see OConner dissent in Garcia and tries to resurrect this case in New York v. United State. Core of Sovereignty Hodel v. Virginia Surface Mining Association (1981)(334) TC held that statute interfered w/ the traditional governmental function of land use regulation. United Transportation Union v. Long Island RR (1982)(334) Proposition that maintaining the RR was essential to the infrastructure of economic and social activities in NY as is setting wages and hours of state employees. Testa v. Katt (1947)(334) State commissions required to enforce federal standards.

35
state sovereignty. Relationship between employer (the state) and its (govt) employees are at the core activities of states as semisovereigns Congress cannot reach. TEST: Commerce clause does not allow Congress to legislate in areas of traditional governmental functions. Overruled in Garcia.

Held: Federal statute regulating the operation of strip minds was constitutional since it did not affect State as States and therefore did not violate a states constitutional immunity from regulation. Held: Railway Labor Acts collective bargaining provisions to the state-owned Long Island RR were constitutional Running RR is not a core governmental function or an essential element of commercial activity. Mandatory consideration requirement on grounds that Congress had the power to preempt state regulation entirely, or adopt less intrusive scheme of PURPA.

Procedural safeguards inherent in federal system protect state sovereignty. No judicial intervention. Garcia v. San Antonio Metropolitan Transit State soveriegn interests are more properly protected by Authority (1985)(335) No facts. procedural safeguards inherrant in the structure of the Cases above demonstrate that the examination of federal system than by judically created limitations on federal power. core state functions is a political question due to lack of justifiably manageable standards available NOT PROPER FOR JUDICIAL INQUIRY: Rejected as to the Court. unsound in principle and unworkable in practice, a rule of state immunity from federal regulation that turns on a What would justify judicial intervention? Bad judicial appraisal of whether a particular government political process (i.e. appropriation rider). or a function is integral or traditional. breakdown in political processes in a significant way, perhaps judicial intervention might be Procedural safeguard is in the Senate (states are necessary (small window). represented equally). OConners Dissent: New York v. United States (1992)(337)Lowlevel radioactive waste regulation (LLRQPAA). NIMBY. How do you locate a radioactive waste disposal site? LuLus (Locally Undesireable Land Uses). States could not find waste sites due to public opposition. Congress imposed upon states an obligation to make and implement policy to handle its own waste. How can Garcia and New York be reconciled this is not a case in which Congress has subjected the State to the same legislation applicable to private parties. Regulation of states Article I, Section 8, Clause 10 No state can enter into pacts w/out Congressional approval. Anti-Commendeering Principle: Congress cannot commendeeer the legislative powers of the state. (Can induce with incentives, can preempt, can financially induce as long as meets the Dole test). Legislature cannot be commandeered to crate legislation that meets federal standards. States were given no opt out provision and thus were required to carry out federal regulation. POLICY: Accountability issues: state governments would be politically accountable for federal imposed

CONSTITUTIONAL LAW
as states not as an employer as in Garcia.

36

programs. [If citizens do not understand, democracy faces much bigger problems Prof]. New York v. United States Worries him (p.343-344). OConner opens a window to overrule Garcia. In determining whether the Tenth Amendment limits the ability of Congress to subject state governments to generally applicable laws, the Court has in some cases stated that it will evaluate the strength of federal interests in light of the degree to which such laws would prevent the State from functioning as a sovereign; that is, the extent to which such generally applicable laws would impede a state governments responsibility to represent and be accountable to the citizens of the State OConner suggests there is some life to National League of Cities. Printz v. United States Legislation: Brady Act CLEO (Chief Law Enforcement Officer) of each state must make a reasonable effort upon request of gun dealer to conduct a background check on a purchaser during 5 day waiting period. This falls within the NY anti-comendeering principle. Congress cannot use states administrative structure to implement and enforce federal law. Mild extension of a fairly clear rule. Legislates against only state officials, CLEOS. POLICY: Same New York accountablility issues: who enforces, who determines whether a reasonable effort has been made, shifts fiscal burdens, and power of the federal government would be augmented immeasurably if it impresses officers of state government into service. Consent is not sufficient to defeat the application of the anti-commendeering principle. It is individual rights that are protected, not states interests. Does it commendeer? State official must be responsible to ensure that the information is not disclosed. Alternatively, if want to market the information, must create provision for getting consent from drivers. BUT Court upholds statute: 1) Regulating state as a possessor of information, not as states. Subject to Garcia since the statute it is generally applicable to all possessors of information, not just states. 2) State is not acting in a sovereign capacity, but in a commercial manner. New York does not apply since it is not a core function. Looks like National League of Cities analysis(state run railways), but invokes Garcia as generall applicable law.

Reno v. Condon (351)(2000) Drivers privacy act - prohibits state officials from selling or distributing information used to get drivers license to marketers, but permits disclosure if they concent, and restricts private entities that receive information from states.

Federal Energy Regulatory Commission v. Mississippi (1982)(334)Relies on Testa v. Katt. State commissioners have to apply federal standards. Requires them to consider, not adopt federal standards and publish reasons why the standards were not adopted.

Upheld: No coercion. No imposition on substantive sovereignty. Only procedural limitations (thin). Commissions are acting like little courts with regard to utility disputes. Mandatory consideration was upheld on idea that Congress could preempt altogether. Certain provisions of the Public Utilities Regulatory Policies Act constitutional state commission could be required to enforce federal standards. Judicial Processes of State Government Can be Commandeered. Testa v. Katt (1947)(334) Congress commanded This is not commandeering since: state courts to consider federal claims. Constricted Article VI, Supremacy Clause, federal law trumps state to perform a federal function. law. Judicial function is neutal one of applying law, not

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making policy choices. EEOC v. Wyoming (1983)(334)

37

Application of the Age Discrimination in Employment Act to state in employees is constitutional b/c act did not impair states abilities to structure their integral operations to a degree making the act unconstitutional. The costs of eliminating mandatory requirement policies were said to be neither direct nor obvious.

3.

Constitutional Challenge Might Be Mounted On The Grounds That Power Was Undertaken And Performed By Wrong Branch A. Montesquieu says that all powers must be separate and compartmentalized. Pristine framework of task: 1. Legislature Power Article I 2. Executive Power Article II 3. Judicial Branch Article III Not separation of Powers, BUT Checks and Balances. No strict separation. Each power overlaps. Things are not quite as simple as they seem 1. President has veto power. 2. Legislation has appointments power (Congressional oversight of president). 3. President and Legislature appoint Judiciary. 4. Judicial Branch oversees these processes through process of judicial review. 5. What about administrative agencies? Execute law, adjudicate disputes, impose civil penalties, create regulations, etc. Serious and difficult questions about scope of Presidential Power: i.e. Wiretapping program, not authorized by Congress i.e. Troops to Iraq (no specific Congressional declaration later ratified) i.e. No war since WWII has been declared When is Presidential Action Sustained? A. HISTORICALJUSTICE BLACK ANALYSIS: Basic proposition is Enumerated Powers. Presidential Action must be 1) Specifically authorized by an Act of Congress 2) By the Constitution. Either a. take care b. Commander-in-Chief; and c. Executive Power CURRENT ANALYSIS (adopted in Dames and More v. Regan) JUSTICE JACKSON ANALYSIS: Spectrum. Framework for assessing constitutionality of executive conduct. When a President acts pursuant to an act of Congress, Presidential power is at its zenith. Likely to be sustained. When Congress is silent, Congress has neither approved nor disapproved, President is in a zone of twilight. Depending upon the circumstances and a range of imponderables, act might be sustainable. Leaves open the possibility of emergency action. Ad hoc review: fact specific and case specific analysis. Express Congressional Prohibition. Presidential power at its lowest ebb and can only be sustained if President can find a source of authority in the Constitution that is so robust to

B.

C.

D.

B. 1) 2)

3)

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overcome Congressional prohibition, showing Congress action is unconstitutional. (i.e. President shall have no say over who is appointed in his cabinet. President appoints his cabinet anyway. Intrusion by Congress into his domain.) Youngstown Sheet & Tube Co. v. Sawyer (1952) Multiple Opinions. (361) Nationwide steel strike. President Bases for finding this is a legislative act: Article V concerned that steel strike would shut down requires expenditures come from legislation or Congress production. Issued executive Order allowing Sec. should raise and support troops. of Commerce to sieze all steel mills on the theory that a breakdown of production would seriously compromise the Korean War effort and the national defense. Justice Black Basic proposition is Enumerated Powers. Presidential Action must be 1. Specifically authorized by an Act of Congress President admitted no statute applied. 2. By the Constitution. Either the take care Commander-in-Chief and Executive Power. clauses. Critical step taken by Black is to put power into one category, judicial, executive, or legislative. Presidents power to take care that the law is faithfully executed refutes the idea that he is to be a lawmaker. Justice Jackson Framework for assessing constitutionality of executive conduct. When is presidential authority most likely to be upheld? Later becomes a spectrum. 1) When a President acts pursuant to an act of Congress, Presidential power is at its zenith. Likely to be sustained. 2) When Congress is silent, Congress has neither approved or disapproved, President is in a zone of twilight. Depending upon the circumstances and a range of imponderables, act might be sustainable. Leaves open the possibility of emergency action. Ad hoc review: fact specific and case specific analysis. 3) Express Congressional Prohibition. Presidential power at its lowest ebb and can only be sustained if President can find a source of authority in the Constitution that is so robust to overcome Congressional prohibition, showing Congress action is unconstitutional. (i.e. President shall have no say over who is appointed in his cabinet. President appoints his cabinet anyway. Intrusion by Congress into his domain.) Justice Frankfuter Gray area where Congress has acquiescence in Presidential action that is been unbroken over time. Judicial gloss. DISSENT: Vincent, Reed and Minton It was an emergency and he is allowed. Both cases involve Congressional silence. Not prohibition. Considered, but did not grant. Dames & Moore v. Regan (1981)(372) This could be treated as a gloss on the executive President negotiated Iran Hostage Crisis. Part of power (Frankfurter) for long, unbroken practice agreement that all disputes would be heard by Iran acquiesced in by Congress. No disapproval of Presidents Claims Tribunal and all property transferred off action. Executive power might be deemed to include shore. President Carter negotiated and President unbroken line of practice by Presidents acquiesced in by Regan made the compliant executive order. There Congress. is no Congressional action that allows President to Absence of Congressional Action might allow President take actions to implement agreement. A contrary to deal with situation appropriately and invite Presidential ruling would mean that the federal government authority to be suitably invoked. lacks the power to negotiate the agreement. Court Nature of problem: international. Foreign policy issue. does not want to make this decision. Significant authority under Constitution for President to PROF WILLIAMS: Congressional silence is not engage in foreign relations and treaties principle agent of always permission. If not explicit action, either US foreign policy. This is also a political question. conclusion is fiction. It might mean that houses are Adopts Justice Jackons framework for congressional evenly spit. go-it-alone action. Practically, this could be treated as a treaty, but this was never ratified by the Senate. However, practically speaking, NAFTA was never been ratified by Senate.

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Reject Black. Accept Justice Jackons opinion as most persuasive.

Delegation Doctrine: If Congress delegates too broadly to President, it will not be upheld on separation of powers. United States v. Curtis-Writght (1936) Action Delegation challenge. Challengers say the delegation is by President to indict and charge people for selling too broad. arms to Bolivians. Does President have authority? Authority over domestic acts delegate specifically. One year before Court strikes down the NIRA in Authority over international acts delegate broadly. Schechter Poultry. The Act was found Can President make it a crime to sell arms to Bolivia unconstitutional b/c it exceeded power under without legislative powers? This is Category 2, not likely Commerce Clause and unconstitutional delegation to be sustained. Congress has authority under N&P to of legislative power to executive. enact legislation on his own. APPENDIX: I. MARBURY v. MADISON ANALYSIS Article III allows Congress to enlarge the original jurisdiction of the Supreme Court Marbury wins writ issued Article III prohibits Congress from enlarging the original jurisdiction of the Supreme Court Depends on who to enforce the limitations of the Constitution is the court authorized? If judicial review permits court to pass upon the Constitutionality or legality of an action Marbury loses. If no judicial review Marbury wins. Marbury loses.

Judiciary Act 13 does grant SC original jurisdiction

Judiciary Act 13 doesnt grant SC original jurisdiction

Marbury loses b/c theres no jurisdictional basis for the suit. Unless it doesnt take an act of Congress to confer jurisdiction upon the Supreme Court. Then we ask if Article III can be invoked by a litigant? In Marburys case, he wouldnt be allowed.

II. METHODS OF CONSTITUTIONAL INTERPRETATION Example: McCulloch I. PRECEDENT Doesnt really appear in McCulloch, but it is the most significant approach Usually the first thing that you look at: Ask yourself whether it has already been decided, a common law approach to Constitutional interpretation? Precedent reigns in the federal court system attempt to interpret holdings narrowly or broadly, distinguishing cases, reasoning by analogy, etc. Stare decisis II. TEXT Looking at Art I 8, power to regulate interstate Comparing Articles to Each Other commerce and such. Coupled with Art.I 8s If Commerce Clause look to the N&P Clause necessary & proper clause, specific enumerated

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Look to the admission and omission of words, i.e. expressly

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powers, More subtle uses of text here, the 10th Am. and the omission of the word expressly, suggest that a more generous rule be applied. p63 of McCulloch - This was used a lot, (pink quote bottom p63) Many variations to this approach:

III. ORIGINAL INTENT When the text is ambiguous or where it seems to be unambiguous, you might be able to discern the meaning by looking at what the framers intended. Problems: Who are the framers? The ones who wrote the text? Or was it the people voting in the ratifying process? Sometimes this goes under the meaning original meaning, we might look to ordinary meaning and see how the words would be used in general discourse at the time the Constitution was written Strict Construction approach if the framers didnt intend to prohibit something, it should not be prohibited - Problems: Todays world has things that the framers could not have anticipated, i.e. airlines, internet, genetics, etc. - Sometimes people pull out quotes from Jefferson or Madison and so forth to try to prove their case and what they think the framers meant IV. STRUCTURE AND RELATIONS Reason from what kind of relations are established in the Constitution and the structure of the Constitution what is meant, i.e. what is the structure of the Constitution supposed to do? Create an effective government therefore it should be interpreted as a tax code, somethings different b/c its a Constitution, Semi-wrapped up in the idea of living constitution,

In McCulloch the idea that Congress is intended to be effective, so you shouldnt interpret it that strictly - the debate between MA and the opposing party about the Constitution, does the power emanate from the people or from the state, Marshall - The government of the Union is emphatically and truly a government of the people But what dies this mean? - How trusting ought the court to be about various Constitutional actors? The court concluded that the stated are where Congressional power has its roots it would tend to say that the states ought to be the primary place to which people turn in order to get things done while the federal government should be turned to only occasionally i.e. maybe the states are the bad guy and the federal government the savior The idea of deference, there is another place where these ideas can be debated, i.e. in the legislative branch, the court is probably not the best place for the debate this goes directly towards the relations between the branches and the structure of the government BIG ISSUE: Is it determinative not on the second question? Supported by the Supremacy Clause, federal government trumps state law. In McCulloch We can reinforce democratic

V. REPRESENTATION REINFORCEMENT

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The Constitution ought to be interpreted in a way that reinforces the Constitutions commitment to democratic principals which means? - enhances a government by the people for the people

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principals by the courts unwillingness to decide whether a tax is too high, this is the peoples job by accepting a tax or not BUT: Only citizens of MA would be able to vote on this tax, and it is a National Bank, it is not an adequate safeguard for the interests that are being taxed. i.e. no taxation without representation McCulloch: In this case, p65, last full paragraph, recipe for living Constitution theory: This provision is made in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. Does not tell us what it good, though. In McCulloch, p61 It has been truly said, that this can scarcely be considered as an open question, entirely unprejudiced by the former proceedings of the nation respecting it The idea of the bank had been discussed by the very framers of the Constitution, p62, top of page, i.e. the best and brightest had thought about this for a long time, the court ought to give a large measure of deference to this practice that had been sustained

VI. LIVING CONSTITUTION The Constitution should be interpreted in a way that helps Congress address the problems of the day merely b/c the framers of the Constitution couldnt have dreamed of the problems that Congress must deal with in present day

VII. LONGSTANDING PRACTICE If the President and all the Constitutional actors have been engaged in some practice for a long time, then this may suggest that it is Constitutional (Me: such as Miranda rights, supplemental jurisdiction)

III. STATUTORY ANALYSIS OF NEW YORK: Structured Approaches: 1) MONETARY surcharge (stick) and spending program (carrot) Congress' ability to do this under CC - allows states to impose a tax on out-of-state waste Portion of surcharge collected by states to be turned over to earmarked fund administered by federal government money then give to states who meet certain milestones toward dealing w/ problem of LL radioactive waste Surcharged as federal "tax" since a portion going to federal government conditional spending program a condition of the "spending power" Ct adopts framework established by South Dakota v. Dole Conditions of spending must be related to some national product or purpose "conditions imposed are reasonably related to the purpose of the expenditure" (doctrinal clarification) Congress "choosing" to allow states to regulate interstate commerce but states can decline to regulate, it's their choice. Congress is not saying "You have to impose a surcharge, if not XYZ will happen to you" no coercion 2) ACCESS States can gradually increase their access costs and eventually forbid the importation of out-of-state waste for disposal purposes ( Philadelphia v. New Jersey) Absent congressional authority this would be violation of dormant commerce clause Lopez category #2- regulating the instrumentalities of interstate commerce persons or things States are allowed to do this, but are not compelled to do this NO coercion, again states have the CHOICE Congress chose to let them deal w/it if they wanted to

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3) THE "TAKE TITLE" PROVISION Presents a choice to these states: 1) Provide for disposal of its own waste: through citing its own disposal facilities that meet federal standards or regional agreements w/ other states (amended legislation Congress gave the okay to do that) 2) "Take title" take ownership of waste generated w/in their state by private parties own waste and they have to figure out what to do w/ it (designed to put pressure on states to get rid of it) What if the state doesn't want to do either of these? Too bad there's no "opt out" option which is a problem, according to the ct What justifies provisions? Commerce power activity might have substantial effect upon interstate commerce CONGRESS CANNOT DO THIS Why? 1) States might have a choice in how to implement federal program, but it still HAS TO implement: It's coercion! 2) Because this could fall under commerce power, isn't it properly coerced? (Recall Butler, where problem when Congress trying to regulate something commerce power couldn't

reach but there commerce power can reach this)

This is not directed at the actual participants of interstate commerce (private entities) but at the states themselves designed to force the State to regulate "commandeering" the The anti-commandeering principle Congress can't commandeer the legislative processes of the state into creating federal regulatory programs Why is it impermissible for Congress to regulate the States as States? Why would the take title provision commandeer legislative processes of state? State would have to adopt statutes authorizing minimum federal standards, criterion for establishing sites, etc some legislation for deciding this disposal sites. States might have to appropriate money to cover their liability in these issues makes a claim upon the fiscal resources of the states which is generally under the control of the state legislature constrains state legislature's choice of which programs should be funded