CON LAW 1

1
CON LAW 1

• Professor Kwan
• TA Robert Van Maerssen
• robertvm_at_attbi.com

2
Review Schedule

• Wednesdays 3-4
• Room 2203

3
Review Schedule

• Number of Review Sessions
• 8 Sessions
• Dates of Review Sessions
• 2/19, 2/26
• 3/5, 3/19, 3/26
• 4/9, 4/16, 4/23

4
Session Topics

• 2/19 Intro and Marbury Review ?
• 2/26 Nature and Scope of the Supreme Courts
  Authority ?
• 3/5 National Powers and Local Activities ?
• 3/19 The Commerce Power
• 3/26 Federalism-Based Restraints on other
  National Powers
• 4/9 Federal Limits on State Power to Regulate
  (DCC)
• 4/16 Separation of Powers
• 4/23 Substantive Due Process

5
Topics of Discussion

• Judicial Power
• Article III, Sections 1 and 2
• Judicial Review
• Marbury v. Madison
• Constitutional and Prudential Limits
• Constitutional
• Article III, Section 2 Case and Controversy
• 11th Amendment
• Prudential
• Courts own sense of self-restraint in the
  exercise of its judicial review powers
• Supreme Court Authority to Review State Court
  Judgments
• Political Restraints on the Supreme Court

6
Judicial Power

• Article III, Section 1
• Establishes the judicial power in one supreme
  court and those inferior courts as Congress
  establishes
• Article III, Section 2
• Extends judicial power to
• Original Jurisdiction ambassadors, public
  ministers and counsuls, and where a state shall
  be a party
• Appellate Jurisdiction all the rest.

7
Topics of Discussion

• Judicial Power ?
• Article III, Sections 1 and 2
• Judicial Review
• Marbury v. Madison
• Constitutional and Prudential Limits
• Constitutional
• Article III, Section 2 Case and Controversy
• 11th Amendment
• Prudential
• Courts own sense of self-restraint in the
  exercise of its judicial review powers
• Supreme Court Authority to Review State Court
  Judgments
• Political Restraints on the Supreme Court

8
Judicial Review

• Doctrine of Judicial Review
• Courts have the power to invalidate governmental
  action as repugnant to the Constitution.
• Marbury v. Madison (1803)
• The Court declared that it is the Supreme Court,
  not Congress, which has the authority and duty to
  declare a congressional statute unconstitutional
  if the Court thinks the statute violates the
  Constitution
• Cooper v. Aaron (1958)
• Recent ruling that the SC is the ultimate or
  supreme interpreter of the Constitution and that
  states cannot overturn the Courts constitutional
  interpretation.
• Dickerson v. Unites States (2000)
• The Court held that Congress cannot overturn the
  Courts constitutional interpretation by statute.
• Taken together, Cooper and Dickerson stand for
  the proposition that neither Congress nor the
  States can act to overturn a decision of the SC
  on an issue of Constitutional Law (except via
  Article V of the Constitution)

9
Topics of Discussion

• Judicial Power ?
• Article III, Sections 1 and 2
• Judicial Review ?
• Marbury v. Madison
• Constitutional and Prudential Limits
• Constitutional
• Article III, Section 2 Case and Controversy
• 11th Amendment
• Prudential
• Courts own sense of self-restraint in the
  exercise of its judicial review powers
• Supreme Court Authority to Review State Court
  Judgments
• Political Restraints on the Supreme Court

10
Const. Prudential Doctrines

• 1. What constitutional questions may be litigated
  to a federal court?
• The Political Question Doctrine
• 2. When may a Constitutional question be
  litigated?
• Ripeness
• Mootness
• Abstention
• 3.Who may litigate a constitutional claim?
• Standing

11
Political Question Doctrine

• Modern Approach Baker v. Carr (1962)
• Court notes several factors to determine
  justiciability
• 1. A textually demonstrable constitutional
  commitment of the issue to a coordinate political
  dept (see Nixon v. US)
• 2. A lack of judicially discoverable and
  manageable standards for resolving it
• 3. The impossibility of deciding without an
  initial policy determination of the kind clearly
  for nonjudicial discretion
• 4. The impossibility of a courts undertaking
  independent resolution without expressing lack of
  respect due coordinate branches of government
• 5. An unusual need for unquestioning adherence to
  a political decision already made or
• 6. The potentiality of embarrassment from
  multifarious pronouncements by various
  departments on one question.

12
Case or Controversy Requirements 1

• 1. Advisory Opinions
• Self-Imposed limits to avoid nonessential
  interpretation of the Constitution.
• Rescue Army v. Municipal Court of LA
• 2. Standing
• Courts scrutinize the parties bringing suit to
  ensure that they have a concrete and
  particularized interest in the case
• Lujan v. Defenders of Wildlife
• 1. Injury in Fact
• 2. Causal connection fairly traceable
• 3. It must be likely that the injury will be
  redressed by a favorable decision

13
Case or Controversy Requirement 2

• 3. Mootness
• Requires that an actual controversy must be
  extant at all stages of review, not merely at the
  time the complaint is filed.
• Exception 1 (Roe v. Wade)
• Capable of repetition, yet evading review
• Exception 2 (Friends of Earth v. Laidlaw)
• Injunctions and returning to his old ways
• Exception 3
• Collateral consequences, as in the case of a
  defendant who has already served his sentence.

14
Case or Controversy Requirements 3

• 4. Ripeness
• The Court will not anticipate a question of
  constitutional law prior to the necessity of
  deciding upon it or pass judgment upon issues
  that may or may not arise sometime in the future.
• United Public Workers v. Mitchell (1947)
• Laird v. Tatum (1972)

15
Topics of Discussion

• Judicial Power ?
• Article III, Sections 1 and 2
• Judicial Review ?
• Marbury v. Madison
• Constitutional and Prudential Limits ?
• Constitutional
• Article III, Section 2 Case and Controversy
• 11th Amendment
• Prudential
• Courts own sense of self-restraint in the
  exercise of its judicial review powers
• Supreme Court Authority to Review State Court
  Judgments
• Political Restraints on the Supreme Court

16
Supreme Court Authority to Review State Court
Judgments

• The SC may review state court opinions, but only
  to the extent that the decision was based on
  federal law.
• Martin v. Hunters Lessee (1816)
• State courts ALONE interpret state law, unless
  the state law is drawn into question on the
  ground of it being repugnant to the Constitution,
  treaties, or laws of the US.
• If there is an adequate and independent state
  ground for the state courts decision, the SC
  will deny review because a reversal on federal
  grounds would not change the outcome and would
  hence be an advisory opinion.
• Michigan v. Long (1983)

17
Topics of Discussion

• Judicial Power ?
• Article III, Sections 1 and 2
• Judicial Review ?
• Marbury v. Madison
• Constitutional and Prudential Limits ?
• Constitutional
• Article III, Section 2 Case and Controversy
• 11th Amendment
• Prudential
• Courts own sense of self-restraint in the
  exercise of its judicial review powers
• Supreme Court Authority to Review State Court
  Judgments ?
• Political Restraints on the Supreme Court

18
Political Restraints on the Supreme Court

• Can Congress take APPELLATE jurisdiction away
  from the Supreme Court? YES!!!
• Ex Parte McCardle (1869)
• If Congress wishes to prevent the SC from hearing
  cases involving a particular topic, it may do so
  by excluding such cases from that courts
  appellate jurisdiction.
• Plaut v. Spendthrift (1995)
• Congressional power to remove jurisdiction does
  have separation of powers limitations if
  attempted to apply retroactively.

19
Extra Need to Know

• Marbury v. Madison holding
• Marshalls justification for judicial review
• Implications of Bush v. Gore
• Application of the Political Question Doctrine
• Standings Enabling Statutes (ok prd/not con)
• Standings Jus Tertii, Taxpayer Suits
• Standing in the Political Process

20
Topics of Discussion

• Nature and Scope of the Supreme Courts Authority
  
• REVIEW INFORMATION
• National Powers and Local Activities
• Federalism
• Implied Powers
• McCulloch v. Maryland (1819)
• State Oversight of the Federal Government
• U.S. Term Limits v. Thornton (1995)
• The Commerce Power
• Introduction

21
REVIEW INFORMATION

• HANDOUT 1
• How to approach a problem
• HANDOUT 2
• Sample Problem

22
National Powers and Local Activities

• Federalism
• Under the Tenth Amendment, all powers not
  delegated to the national government are retained
  by the states and the people.
• Why???
• The Constitution was designed to replace the weak
  federal government provided for in the Articles
  of Confederation with a stronger federal
  government, while maintaining a robust
  governmental role for the states.

23
Federalism

• Congresss Powers
• Article 1, Section 8
• The Congress shall have the power to lay and
  collect taxes
• To borrow money
• To regulate commerce with foreign Nations,
• To declare war
• To promote the Progress of Science and useful
  Arts, by securing for limited times to authors

24
Federalism

• The States Powers
• States have broad police powers to legislate for
  the health, morals, and well-being of their
  citizens the federal government does not.
• Or do they???

25
Implied Powers

• Implied Powers
• By the doctrine of Implied Powers, the federal
  government may validly exercise power that is
  ancillary to one of the powers explicitly listed
  in the Constitution, so long as this ancillary
  power does not conflict with specific
  Constitutional prohibitions.
• Thus, EVERY federal statute must have as its
  basis one of the enumerated powers.

26
Implied Powers

• McCulloch v. Maryland
• CJ Marshall made it clear that congressional
  power is not limited to the express grants of
  Article 1, Section 8, but includes such power as
  is necessary and proper to the effectuation of
  the express powers
• First Holding Congress did have the power to
  charter a national bank.
• Second Holding State of Maryland lacked the
  power to tax the national bank.

27
Implied Powers

• The standard set forth in McCulloch is still in
  force today. The Courts will not strike down a
  congressional action (and the Courts will show
  great deference to Congress generally not
  inquiring into the Legislatures motives) so long
  as Congress has employed a means which is not
  prohibited by the Constitution and which is
  rationally related to objectives that are
  themselves within constitutionally-enumerated
  powers.

28
State Oversight of the Federal Government

• Conversely, the individual states, as states,
  basically have NO power to restrict the federal
  government.
• Or do they???

29
State Oversight of the Federal Government

• U.S. Term Limits v. Thornton (1995)
• A highly divided court 5-4
• Stevens, writing for the majority, held that the
  power to add qualifications is not within the
  original powers of the States, and thus is not
  reserved to the States by the Tenth Amendment.
• No State can say that it has reserved what it
  never possessed.

30
State Oversight of the Federal Government

• U.S. Term Limits v. Thornton (1995)
• To the dissent, the states have all the powers,
  including any over the federal government, except
  those the Constitution withholds from them.
• Where the Constitution is silent, the power is
  reserved to the States.

31
State Oversight of the Federal Government

• Conversely, the individual states, as states,
  basically have NO power to restrict the federal
  government.
• Or do they??? NO!!!! The states have no power,
  as states, to restrict the federal government.

32
The Commerce Power

• The Interpretation of the Commerce Power from
  1824 to 1936
• The Decline of Limits on the Commerce Power from
  1937 to 1995
• New Limits on the Commerce Power Since 1995
• External Limits on the Commerce Power

33
The Commerce Power

• Before we dig deep into a lot of history, whats
  the rule?
• A particular congressional act comes within
  Congress commerce power if both of the following
  are true
• 1. The activity being regulated substantially
  affects commerce, and
• 2. The means chosen by Congress is reasonably
  related to Congress objective in regulating.

34
Implied Powers

• The standard set forth in McCulloch is still in
  force today. The Courts will not strike down a
  congressional action (and the Courts will show
  great deference to Congress generally not
  inquiring into the Legislatures motives) so long
  as Congress has employed a means which is not
  prohibited by the Constitution and which is
  rationally related to objectives that are
  themselves within constitutionally-enumerated
  powers.

35
The Commerce Power

• Commerce Power Modern Quick and Dirty
• The Interpretation of the Commerce Power from
  1824 to 1936 (3 prongs)
• The Decline of Limits on the Commerce Power from
  1937 to 1995 (Girls Gone Wild)
• New Limits on the Commerce Power Since 1995
• External Limits on the Commerce Power

36
Commerce Power Modern Quick and Dirty

• Federal power with respect to the regulation of
  commerce is derived from the Commerce Clause
  (Article 1, Section 8, Clause 3).
• The Commerce Clause grants to Congress the power
  to regulate commerce with foreign nations and
  among the several states, and with the Indian
  tribes.

37
Commerce Power Modern Quick and Dirty

• Modern Commerce Clause Analysis
• NLRB v. Jones Laughlin Steel Corp. (1937)
• The Court articulated in 1937 the modern commerce
  clause analysis, known as the affectation
  doctrine.
• The Courts position became that Congress has the
  power to regulate any activity, whether it be
  interstate or intrastate in nature, so long as it
  has any appreciable (substantial) effect whatever
  on interstate commerce.

38
Commerce Power Modern Quick and Dirty

• A particular congressional act comes within
  Congress commerce power if both of the following
  are true
• The activity being regulated substantially
  affects commerce, and
• The means chosen by Congress is reasonably
  related to Congress objective in regulating.

39
Commerce Power Modern Quick and Dirty

• The Court, under U.S. v. Lopez, recognized three
  broad categories of activity where Congress may
  regulate under its commerce power.
• Congress may regulate the use of the channels of
  interstate commerce.
• Congress may regulated the instrumentalities of
  interstate commerce.
• By using the Necessary and Proper Clause in
  connection with the Commerce Clause, Congress may
  regulate any economic activity that has a
  substantial relationship with interstate commerce.

40
The Interpretation of the Commerce Power from
1824 to 1936

• 1824
• Gibbons
• 1887
• Road Map of Knight, Shreveport, and Swift
• Morality and Criminality (Mo Cr)
• Champion Lottery Case, Hippolite, and Hoke
• The First of the New Deal Cases (1st of ND)
• Railroad Retirement, Schecter Poulty, and Carter
  Coal
• FDR Court Packing and the Results (FDR)

41
The Interpretation of the Commerce Power from
1824 to 1936 --1824

• Up until 1895, the Supreme Court had practically
  no occasion to consider Congresss powers under
  the Commerce Clause.
• The scope of the Courts discussions arose in
  cases dealing with limits on state action
  affecting interstate commerce.

42
The Interpretation of the Commerce Power from
1824 to 1936 --1824

• Gibbons v. Ogden (1824)
• Although the Gibbons opinion contained some
  discussion of the Commerce Clause as a limitation
  upon state powers, its principal holding was its
  broad-sweeping view of congressional power under
  the Commerce Clause.
• Marshall stated that no area of interstate
  commerce is reserved for state control.
• This means that Congress has NO power over the
  completely internal commerce of a state but DOES
  have power over all interstate commerce.

43
The Interpretation of the Commerce Power from
1824 to 1936 --1887

• So affirmative exercise of the national commerce
  power was rare before 1887.
• What changed???

44
The Interpretation of the Commerce Power from
1824 to 1936 --1887

• What changed???
• Congress started to regulate commerce in response
  to industrialization, transportation, and
  communication.
• These developments gave rise to the Interstate
  Commerce Act of 1887 and the Sherman Anti-Trust
  Act of 1890.

45
The Interpretation of the Commerce Power from
1824 to 1936 --1887

• ROADMAP
• Knight Sugar Trust Case (1895)
• Local vs. Interstate
• Used in the 1930 blocking New Deal legislation
• Shreveport Rate Case (1914)
• Local vs. Substantial Economic Effects
• Used in 1937 to reverse direction in NOT blocking
• Swift v. United States (1905)
• Stream of Commerce

46
The Interpretation of the Commerce Power from
1824 to 1936 --1887

• ROADMAP
• Knight Sugar Trust Case (1895)
• Local vs. Interstate
• Used in the 1930 blocking New Deal legislation
• Shreveport Rate Case (1914)
• Local vs. Substantial Economic Effects
• Used in 1937 to reverse direction in NOT blocking
• Swift v. United States (1905)
• Stream of Commerce

47
The Interpretation of the Commerce Power from
1824 to 1936 --1887

• US v. Knight (The Knight Sugar Trust Case)
• Knight (1895) challenged the Sherman Act.
• Knight case justified national regulation of
  local activities on the basis of their
  relationship to interstate commerce.
• Knight essentially limited interstate commerce to
  transportation across state lines (thus narrowing
  the position taken by the Court in Gibbons),
  holding that manufacturing and production
  were not interstate commerce.

48
The Interpretation of the Commerce Power from
1824 to 1936 --1887

• Knight Sugar Trust Case
• The Knight approach looked at the formal, logical
  relationship between the local and the
  interstate.
• The Knight approach was later used to block New
  Deal legislation in the 1930s.

49
The Interpretation of the Commerce Power from
1824 to 1936 --1887

• ROADMAP
• Knight Sugar Trust Case (1895)
• Local vs. Interstate
• Used in the 1930 blocking New Deal legislation
• Shreveport Rate Case (1914)
• Local vs. Substantial Economic Effects
• Used in 1937 to reverse direction in NOT blocking
• Swift v. United States (1905)
• Stream of Commerce

50
The Interpretation of the Commerce Power from
1824 to 1936 --1887

• Houston EW Railway v. US (1914) aka Shreveport
  Rate Case
• Shreveport Rate challenged the Interstate
  Commerce Act of 1887.
• Shreveport Rate case justified national
  regulation of local activities on the basis of
  their substantial economic effects.
• The Court ruled that the Commerce Power
  necessarily embraces the right to control the
  operation of all matters having a close and
  substantial relation and effect on interstate
  traffic and commerce.

51
The Interpretation of the Commerce Power from
1824 to 1936 --1887

• Shreveport Rate Case
• The Shreveport Rate approach emphasized that
  whenever the interstate and intrastate
  transactions are so related that the government
  of one controls the other, Congress, and not the
  state, must regulate the transactions.
• The Shreveport Rate approach was later used in
  1937 to reverse direction when the Court was
  deciding the New Deal cases.

52
The Interpretation of the Commerce Power from
1824 to 1936 --1887

• ROADMAP
• Knight Sugar Trust Case (1895)
• Local vs. Interstate
• Used in the 1930 blocking New Deal legislation
• Shreveport Rate Case (1914)
• Local vs. Substantial Economic Effects
• Used in 1937 to reverse direction in NOT blocking
• Swift v. United States (1905)
• Stream of Commerce

53
The Interpretation of the Commerce Power from
1824 to 1936 --1887

• Swift Co. v. US (1905)
• The court held that some local activities are
  controllable because they could themselves by
  vies as in commerce or as an intergral part of
  the current of commerce.
• Stafford v. Wallace (1922) affirmed Swift
• The stockyards are but a throat through which
  the current flowsthe stockyards and the sales
  are necessary factors in the middle of this
  current of commerce.

54
The Interpretation of the Commerce Power from
1824 to 1936 Mo Cr

• Congress used the commerce power increasingly in
  the late 19th century not only to deal with the
  emerging problems of a national economy, but also
  with problems of morality and criminality such as
  gambling, prostitution, and theft.

55
The Interpretation of the Commerce Power from
1824 to 1936 Mo Cr

• Champion Lottery Case (1903)
• Lottery tickets subject of traffic
• Hippolite Egg (1911)
• Prevention of physical movement AND...
• Hoke v. United States (1913)
• quality of police regulations
• GREAT ESSAY EXAM ????

56
The Interpretation of the Commerce Power from
1824 to 1936 1st of ND

• The Court initially rejected New Deal regulation
  under the commerce power as seen in
• Railroad Retirement Board v. Alton (1935)
• Schechter Poultry v. United States (1935)
• Carter v. Carter Coal (1936)

57
The Interpretation of the Commerce Power from
1824 to 1936 1st of ND

• FDRs Attempt to Combat the Depression by use of
  the Commerce Power
• Railroad Retirement Board v. Alton (1935)
• Retirement and Pension Plan
• Schechter Poultry v. United States (1935)
• Codes of Fair Competition
• Court rejected Swift stream of commerce and
  Shreveport affecting commerce Court utilized a
  direct/indirect analysis.
• Carter v. Carter Coal (1936)
• Wage and Hour Requirements

58
The Interpretation of the Commerce Power from
1824 to 1936 -- FDR

• FDR proposed legislation to allow him to appoint
  an extra justice for every justice over 70 years
  old who did not resign.
• The legislation never passed, but it prompted a
  change in the Courts analysis of New Deal
  legislation.

59
The Decline of Limits on the Commerce Power from
1937 to 1995

• The Court abandoned the geographical
  (manufacturing is local) and direct vs.
  indirect concepts.
• The Court opened the floodgates to new
  legislation based on the Commerce Clause, and
  during this time placed virtually no limits on
  Congress power to regulate.

60
The Decline of Limits on the Commerce Power from
1937 to 1995

• NLRB v. Jones Laughlin Steel Corp (1937)
• The Court articulated in 1937 the modern commerce
  clause analysis, known as the affectation
  doctrine.
• The Courts position became that Congress has the
  power to regulate any activity, whether it be
  interstate or intrastate in nature, so long as it
  has any appreciable (substantial) effect whatever
  on interstate commerce.

61
The Decline of Limits on the Commerce Power from
1937 to 1995

• The Court set virtually no limits on Congress
• US v. Darby (1937)
• LOCAL Labor Standards of employees in local
  manufacturing activities
• Overruled Hammer v. Dagenhart (1918)
• Wickard v. Filburn (1942)
• Home-grown and home-consumed wheat (outer limits)
• Maryland v. Wirtz (1968)
• de minimus enterprise concept (aggregate,
  cumulative effect)
• Hodel v. Virginia Surface Mining (1981)
• Courts need only inquire whether the finding is
  rationale
• Heart of Atlanta Motel v. US (1964)
• Ban on discrimination in LOCAL public
  accommodations
• Perez v. US (1971)
• Intrastate loan sharking enforced by threats of
  violence

62
New Limits on the Commerce Power Since 1995

• When Justice Rehnquist became the Chief Justice,
  the Court began to emphasize the importance of
  states in the federal system by finding
  limitations to congressional power.

63
New Limits on the Commerce Power Since 1995

• United States v. Lopez (1995)
• The Act is this case is a criminal statute
  (knowingly possessing a concealed handgun in High
  School) that has nothing to do with commerce.
• The only way to find an effect on commerce in
  this case is to pile inference upon inference,
  and the result would be to uphold a general
  police power for Congress
• Solid Waste v. US Army Corp of Eng (2001)
• United States v. Morrison (2000)

64
New Limits on the Commerce Power Since 1995

• The Court, under U.S. v. Lopez, recognized
  (guiding limitations) three broad categories of
  activity where Congress may regulate under its
  commerce power.
• Congress may regulate the use of the channels of
  interstate commerce.
• Congress may regulated the instrumentalities of
  interstate commerce.
• By using the Necessary and Proper Clause in
  connection with the Commerce Clause, Congress may
  regulate any economic activity that has a
  substantial relationship with interstate
  commerce.

65
The Commerce Power

• Commerce Power Modern Quick and Dirty
• The Interpretation of the Commerce Power from
  1824 to 1936 (3 prongs)
• The Decline of Limits on the Commerce Power from
  1937 to 1995 (Girls Gone Wild)
• New Limits on the Commerce Power Since 1995
• External Limits on the Commerce Power

66
External Limits on the Commerce Power

• Limits on Congressional Power
• State Autonomy
• New York v. United States (1992)
• Printz v. United States (1997)
• State Sovereign Immunity
• Seminole Tribe of Florida v. Florida (1996)
• Alden v. Maine (1999)

67
External Limits on the Commerce Power

• State Autonomy Limits on Congressional Power
• Until 1976, the Court continued to reject
  challenges to federal regulations allegedly
  interfering with state autonomy.
• US v. California (1936)
• The sovereign power of the states is necessarily
  diminished to the extent of the grants of power
  to the federal government in the Constitution.

68
External Limits on the Commerce Power

• State Autonomy Limits on Congressional Power
• But then in 1976 the Court held that a federal
  law permissibly based on the commerce power
  nonetheless infringed impermissibly on state
  autonomy.
• National League of Cities (1976)

69
External Limits on the Commerce Power

• State Autonomy Limits on Congressional Power
• In the early 1980s, however, the Court rejected
  challenges based on National League and sustained
  applications of several federal laws.
• Hodel v. Virginia Surface Mining (1981)
• FERC v. Mississippi
• EEOC v. Wyoming

70
External Limits on the Commerce Power

• State Autonomy Limits on Congressional Power
• In 1985, National League of Cities was overruled.
• Garcia v. San Antonio (1985)
• But the majority in Garcia suggested that some
  judicial intervention might still be appropriate
  to compensate for possible failings in the
  national political process.

71
External Limits on the Commerce Power

• State Autonomy Limits on Congressional Power
• Recall in Hodel v . Virginia Surface Mining
  Justice Marshall noted that the challenged
  program did not commandeer the legislative
  processes of the States by directly compelling
  them to enact and enforce a federal regulatory
  scheme.
• In New York v. US, the Court for the first time
  invalidated a federal law on just such a ground.

72
External Limits on the Commerce Power

• State Autonomy Limits on Congressional Power
• New York v. United States (1992)
• Low-Level Radioactive Waste Policy Amendments Act
  
• The Court held that the federal government may
  not compel the states to enact or administer a
  federal regulatory scheme.
• No matter how great the federal interest, the
  Constitution does not give Congress authority to
  require the states to regulate. Congress must
  regulate directly, not by conscripting state
  governments and state officials cannot give this
  authority by consenting to the federal statute.

73
External Limits on the Commerce Power

• State Autonomy Limits on Congressional Power
• Printz v. United States (1997)
• Gun Control Act
• Congress cannot compel the states to enact or
  enforce a federal regulatory scheme. Congress
  cannot circumvent that prohibition by
  conscripting the states officers directly. The
  structure of the Constitution gives Congress the
  power to regulate individuals, but not states.

74
External Limits on the Commerce Power

• State Sovereign Immunity Limits on Congressional
  Power
• Eleventh Amendment
• The judicial power of the United States shall not
  be construed to extend to any suit commenced or
  prosecuted against one of the United States by
  Citizens of another State, or by Citizens or
  Subjects of any Foreign States.

75
External Limits on the Commerce Power

• State Sovereign Immunity Limits on Congressional
  Power
• Eleventh Amendment
• The Court has refused to allow Congress, when
  acting under its commerce power, to abrogate a
  states Eleventh Amendment Immunity.

76
External Limits on the Commerce Power

• State Sovereign Immunity Limits on Congressional
  Power
• Eleventh Amendment
• Seminole Tribe of Florida v. Florida (1976)
• Indian Gaming Regulatory Act required states to
  negotiate in good faith with an Indian Tribe or
  else the Act allowed the Indian Tribe to sue the
  state in Federal Court to force the state to
  negotiate in good faith.
• The Court rejected the claim that Congress acting
  under its commerce power could abrogate a states
  Eleventh Amendment immunity.

77
External Limits on the Commerce Power

• State Sovereign Immunity Limits on Congressional
  Power
• Eleventh Amendment
• Alden v. Maine (1999)
• The Court extended the state sovereign immunity
  bar announced in Seminole Tribe from lawsuits
  against states in federal courts to lawsuits
  against states in state court.
• The Court held that private citizens cant sue
  states unless states consent.

78
Session Topics

• 2/19 Intro and Marbury Review ?
• 2/26 Nature and Scope of the Supreme Courts
  Authority ?
• 3/5 National Powers and Local Activities ?
• 3/19 The Commerce Power ?
• 3/26 Federalism-Based Restraints on other
  National Powers
• 4/9 Federal Limits on State Power to Regulate
  (DCC)
• 4/16 Separation of Powers
• 4/23 Substantive Due Process

79
Federalism-based Restraints on Other National
Powers

• The Taxing Power as a Regulatory Tool
• The Spending Power as a Regulatory Tool
• War, Foreign Affairs, and Federalism

80
The Taxing Power as a Regulatory Tool

• Like the regulation of interstate commerce, the
  taxing (and spending) powers have been used to
  attempt to influence state regulatory policy
  sometimes as an alternative to regulation under
  the commerce clause that the Court is likely to
  hold unconstitutional.

81
The Taxing Power as a Regulatory Tool

• Article I, Section 8
• The Congress shall have the power to lay and
  collect taxes, duties, imposts, and excises, to
  pay the debts and provide for the common defense
  and general welfare of the United States.

82
The Taxing Power as a Regulatory Tool

• Under the taxing power, Congress is given a
  far-reaching ability to tax in order to raise
  revenue. Congress may also regulate via
  taxation. Even if Congress principle motive is
  to regulate rather than tax, so long as the tax
  produces some meaningful revenue and any
  regulatory provisions accompanying the tax are
  reasonably related to the taxs enforcement, the
  tax will probably be upheld.

83
The Taxing Power as a Regulatory Tool

• Since every tax has a regulatory effect, the test
  for validity is whether the tax is primarily
  fiscal or regulatory.
• Bailey v. Drexel Furniture (1922)
• The Court found that the important thing is the
  motive of Congress.
• If the purpose is for revenue, then the tax is
  valid.
• If the tax is primarily to regulate, it is
  unconstitutional

84
The Taxing Power as a Regulatory Tool

• United States v. Kahriger (1953)
• The Court found that a federal tax is still valid
  even if it discourages specific activity and
  produces little revenue so long as the tax does
  in reality raise some revenue, it is
  presumptively valid.
• tax does not cease to be valid merely because
  it discourages or deters the activities taxed.
  Nor is the tax invalid because the revenue
  obtained is negligible

85
The Spending Power as a Regulatory Tool

• Article I, Section 8
• The Congress shall have the power to lay and
  collect taxes, duties, imposts, and excises, to
  pay the debts and provide for the common defense
  and general welfare of the United States.

86
The Spending Power as a Regulatory Tool

• Congress has authority to impose conditions on
  the receipt of federal funds, even to attain
  objectives it might not be able to attain
  directly.
• However, the power may not be used to induce the
  States to engage in activities that would
  themselves be unconstitutional.

87
The Spending Power as a Regulatory Tool

• South Dakota v. Dole (1987)
• The spending power is not confined to enumerated
  areas, but still must be for the general welfare
  of the United States.
• The Court lists four limitations
• The exercise of the spending power must be in
  pursuit of the general welfare as written in
  the Constitution itself.
• Congress must condition the funding unambiguously
• Must be related to the federal interest in
  particular national programs or projects.
• Other constitutional provisions may provide an
  independent bar to the conditional grant of
  federal funds.

88
War, Foreign Affairs, and Federalism

• Article I, Section 8
• 1 The Congress shall have Power
• 11 To declare War
• 12 To raise and support Armies, but no
  Appropriation of Money to that Use shall be for a
  longer Term than two Years
• 13 To provide and maintain a Navy
• 14 To make Rules for the Government and
  Regulation of the land and naval Forces
• 15 To provide for calling forth the Militia to
  execute the Laws of the Union, suppress
  Insurrections and repel Invasions
• 16 To provide for organizing, arming, and
  disciplining, the Militia

89
War, Foreign Affairs, and Federalism

• Article II, Section 2
• 1 The President shall be Commander in Chief of
  the Army and Navy of the United States, and of
  the Militia of the several States, when called
  into the actual Service of the United States

90
War, Foreign Affairs, and Federalism

• Under the Necessary and Proper clause, the
  president and Congress have wide power to prepare
  for and wage war, and to control the after
  effects.
• Woods v. Cloyd W. Miller (1948)
• Congress invoked its war power to cope with a
  current condition (Housing and Rent Act) of which
  the war was a direct and immediate cause.

91
War, Foreign Affairs, and Federalism

• Whenever Article I powers prove insufficient to
  reach a local problem, may the national
  government overcome that obstacle simply by
  making a treaty with a cooperating foreign
  government?
• Reid v. Covert (1957)
• This case answered the question that the failed
  Bricker Amendment attempted to answer as to
  unratified executive agreements.
• No agreement with a foreign nation can confer
  power on Congress, or on any other branch of
  Government, which is free from the restraints of
  the Constitution.

92
Session Topics

• 2/19 Intro and Marbury Review ?
• 2/26 Nature and Scope of the Supreme Courts
  Authority ?
• 3/5 National Powers and Local Activities ?
• 3/19 The Commerce Power ?
• 3/26 Federalism-based Restraints on other Nat.
  Powers ?
• 4/9 Federal Limits on State Power to Regulate
  (DCC)
• 4/16 Separation of Powers
• 4/23 Substantive Due Process

93
Federal Limits on State Power to Regulate the
National Economy

• State Regulation and the Dormant Commerce Clause
• Overview
• Early Developments
• Modern Approach
• The Privileges and Immunities Clause of Article
  IV
• Congressional Ordering of Federal-State
  Relationships by Preemption and Consent

94
State Regulation and the Dormant Commerce Clause
- overview

• The powers of the federal government are, for the
  most part, specifically mentioned in the
  Constitution they are delegated powers.
• The power of the states is residual i.e., under
  the Tenth Amendment the states have all power not
  specifically given to the federal government.

95
State Regulation and the Dormant Commerce Clause
(1) - overview

• Under the DCC, the Court invalidates some
  protectionist state legislation, even in the
  absence of Congressional preemption.
• For such limitations, the Court has drawn on the
  negative implications of the grant of power to
  Congress to regulate interstate commerce.

96
State Regulation and the Dormant Commerce Clause
- overview

• The Supreme Court interprets congressional
  silence on state commerce-related conduct which
  somehow affects interstate commerce and asks
• Has the state sought to regulate or tax
  interstate commerce in a manner that would be
  better left to Congress?

97
State Regulation and the Dormant Commerce Clause
(2) - overview

• A state regulation which affects interstate
  commerce must satisfy each of the following three
  requirements in order to avoid violating the DCC
• The state regulation must pursue legitimate state
  ends and
• The state regulation must be rationally related
  to that legitimate state end and
• The regulatory burden and discrimination imposed
  by the state on interstate commerce must be
  outweighed by the states interest in enforcing
  its regulation.

98
State Regulation and the Dormant Commerce Clause
(3) - overview

• Threshold Questions in DCC Analysis
• Does the challenged state law on its face
  discriminate against out of state interests?
• If yes, the challenged state law is ipso facto
  unconstitutional,
• Unless the state can show that the challenged
  state law serves a legitimate local purpose and
  no nondiscriminatory alternative means is
  available.

99
State Regulation and the Dormant Commerce Clause
(4) - overview

• Threshold Questions in DCC Analysis
• If the challenged state law is facially neutral,
  but the challenged state law gives preference to
  local commerce, the Court will look to see if
  there is a protectionist motive.
• If yes there is a protectionist motive by the
  state legislation, then the challenged state law
  is unconstitutional.

100
State Regulation and the Dormant Commerce Clause
(5) - overview

• Threshold Questions in DCC Analysis
• If the challenged state law is facially neutral,
  does it nonetheless unduly burden interstate
  commerce?
• Court applies the Pike Balancing Test

101
State Regulation and the Dormant Commerce Clause
- overview

• Modern Courts Approach and Answering Exam
  Questions
• Laws the facially discriminate against
  out-of-state commerce.
• Laws protectionist in Purpose or Effect
• Laws that are facially neutral and Pike Balancing

102
State Regulation and the Dormant Commerce Clause
early development

• Early Developments
• Gibbons v. Ogden (1824)
• Purpose Inquiry - Police vs. Commerce
• Wilson v. Black-Bird (1829)
• Cooley v. Board of Wardens (1851)
• Subject Inquiry - Local vs. national subject
  matters

103
State Regulation and the Dormant Commerce Clause
early development

• Early Developments
• Cooley v. Board of Wardens
• The Court said Congress has absolute power to
  regulate interstate commerce. Congress may
  permit a state to exercise this power, or, in its
  sole discretion, prohibit a state from doing so.
  
• Where Congress has acted to prohibit state
  regulation, Congress is said to have preempted
  the field.
• Even where Congress has not preempted the field,
  the very existence of the Commerce Clause forbids
  state regulation that places an unreasonable
  burden on interstate commerce.
• The determinative factor is the subject of the
  regulation local subjects are more freely
  regulated by states than national subjects.

104
State Regulation and the Dormant Commerce Clause
- modern approach

• Modern Courts Approach
• Modern dormant commerce clause decisions hold
  unconstitutional some but not all state
  regulations that burden interstate commerce.

105
State Regulation and the Dormant Commerce Clause

• Modern Courts Approach and Answering Exam
  Questions
• Laws the facially discriminate against
  out-of-state commerce.
• Laws protectionist in Purpose or Effect
• Laws that are facially neutral and Pike Balancing

106
State Regulation and the Dormant Commerce Clause

• Modern Courts Approach and Answering Exam
  Questions
• Laws the facially discriminate against
  out-of-state commerce.
• Laws, fees, and taxes that facially discriminate
  against interstate commerce are virtually per se
  invalid.
• Philadelphia v. New Jersey (1978)
• Law

107
State Regulation and the Dormant Commerce Clause

• Modern Courts Approach and Answering Exam
  Questions
• Laws the facially discriminate against
  out-of-state commerce.
• Laws, fees, and taxes that facially discriminate
  against interstate commerce are virtually per se
  invalid.
• Exception Maine v. Taylor (1986)
• Out-of-State bait fish.
• Legitimate local purpose AND no nondiscriminatory
  alternative available

108
State Regulation and the Dormant Commerce Clause

• Modern Courts Approach and Answering Exam
  Questions
• Laws the facially discriminate against
  out-of-state commerce.
• Laws, fees, and taxes that facially discriminate
  against interstate commerce are virtually per se
  invalid.
• Chemical Waste v. Hunt (1992) - Fees
• West Lynn Creamery v. Healy (1994) Taxes
• Foster Fountain v. Haydel (1928) In state
  processing requirement
• Dean Milk v. Madison (1951) Facial
  discrimination by localities is also barred

109
State Regulation and the Dormant Commerce Clause

• Modern Courts Approach and Answering Exam
  Questions
• Laws protectionist in Purpose or Effect
• Laws that are protectionist in purpose or
  practical effect are virtually per se invalid.
• Scenario 1 State barriers to out-of-state
  sellers
• Scenario 2 State barriers to out-of-state
  buyers

110
State Regulation and the Dormant Commerce Clause

• Modern Courts Approach and Answering Exam
  Questions
• Laws protectionist in Purpose or Effect
• Laws that are protectionist in purpose or
  practical effect are virtually per se invalid.
• Scenario 1 State Barriers to out-of-state
  Sellers
• States may not protect local economic interests
  by laws that have the effect of limiting access
  to local markets by out-of-state sellers.
• Baldwin v. Seelig (1935) - purpose
• Henneford v. Silas Mason (1937) - purpose
• Bacchus Imports v. Dias (1984) - purpose
• Hunt v. Washington Apple (1977) - practical
  effect

111
State Regulation and the Dormant Commerce Clause

• Modern Courts Approach and Answering Exam
  Questions
• Laws protectionist in Purpose or Effect
• Laws that are protectionist in purpose or
  practical effect are virtually per se invalid.
• Scenario 2 State Barriers to out-of-state
  Buyers
• States may not protect local economic interests
  by laws that hamper out-of-state buyers seeking
  access to a states products and resources,
  including natural resources.
• H.P. Hood Sons v. Du Mond (1949)
• Sporhase v. Nebraska (1982)

112
State Regulation and the Dormant Commerce Clause

• Modern Courts Approach and Answering Exam
  Questions
• Laws that are facially neutral and Pike Balancing
• If a state has a legitimate local purpose for
  regulating and the effects on interstate commerce
  are merely incidental, the regulation will be
  upheld unless the burden clearly exceeds the
  local benefits.
• Pike v. Bruce Church (1970)
• Predecessor cases to Pike involved transportation
• South Carolina Highways v. Barnwell (1938)
• Southern Pacific v. Arizona (1945)
• Bibb v. Navajo Freight (1959)

113
State Regulation and the Dormant Commerce Clause

• Modern Courts Approach and Answering Exam
  Questions
• Laws that are facially neutral and Pike Balancing
• If a state has a legitimate local purpose for
  regulating and the effects on interstate commerce
  are merely incidental, the regulation will be
  upheld unless the burden clearly exceeds the
  local benefits.
• State Burdens on Trade
• State Burdens on Business Entry
• Market Participant Exception to the DCC

114
Session Topics

• 2/19 Intro and Marbury Review ?
• 2/26 Nature and Scope of the Supreme Courts
  Authority ?
• 3/5 National Powers and Local Activities ?
• 3/19 The Commerce Power ?
• 3/26 Federalism-based Restraints on other Nat.
  Powers ?
• 4/9 Federal Limits on State Power to Regulate
  (DCC)
• 4/16 Separation of Powers
• 4/23 Substantive Due Process

115
Federal Limits on State Power to Regulate the
National Economy

• State Regulation and the Dormant Commerce Clause
• Overview
• Early Developments
• Modern Approach ?
• The Privileges and Immunities Clause of Article
  IV
• Congressional Ordering of Federal-State
  Relationships by Preemption and Consent

116
The Privileges and Immunities Clause of Article IV

• Article IV, Section 2
• The Citizens of each State shall be entitled to
  all Privileges and Immunities of Citizens in the
  several States.

117
The Privileges and Immunities Clause of Article IV

• The Privileges and Immunities Clause serves as a
  restraint of state efforts to bar out-of-staters
  from access to local resources.
• United Building Construction Trade Councils v.
  Mayor and Council of Camden (1984) 2 part test
• Supreme Court of New Hampshire v. Piper (1985)

118
The Privileges and Immunities Clause of Article IV

• The Privileges and Immunities Clause prohibits
  discrimination by a state against noncitizens of
  the state with respect to essential activities or
  basic rights, unless justified by a substantial
  reason.
• To justify an exception, the state must show that
  the nonresidents are a peculiar source of evil
  sought to be avoided, and that the discrimination
  bears a substantial relation to the problem.

119
State Regulation and the Dormant Commerce Clause
- Compared

• Modern Courts Approach and Answering Exam
  Questions
• Laws protectionist in Purpose or Effect
• Laws that are protectionist in purpose or
  practical effect are virtually per se invalid.
• Scenario 1 State barriers to out-of-state
  sellers
• Scenario 2 State barriers to out-of-state
  buyers

120
The Privileges and Immunities Clause of Article IV

• Like the DCC and the Commerce Clause, but
• Extends to fundamental rights, not to all
  commercial activity.
• Does not apply to corporations
• No market-participant exception PI still apply
• Fundame