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Con Law Epperson 10


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What article are we in with judicial review
Article III, never expressly grants fed courts power to review C'lity of fed or state law in executive actions
Fed courts are courts of
limited jx
2 primary restrictions on fed judicial power
Art III of C: defines scope of fed authority/also, judical interpret of III has created justiciability doctrines: restrict access to fed courts
CS is other b/c SC can only hear a matter when there is both C'l and statutory authorization. Under III, CS has power to create "exceptions and regulations" to SC's appellate jx
What did MvM do?
Establish authority for judiciary to review C'lity of exec and legis acts (power not expressly enumerated in C)
Actual holding of MvM
UC to hear case as matter of orig jx even though Judiciary Act of 1789 did authorize jx, this provision was UC b/c CS cannot allow original jx beyond sits enumerated in C
Legal or political question in MvM
Bottom line of MvM
Court can declare laws UC, if that law is repugnant to C, it has power to strike it down
What issue does MvM raise
Counter-majoritarian issue: Judicial review puts powr in the hands of a small few who were not elected. the argument here is that courts should be reluctant to set aside the decisions of other, elected organs of govt
Which reading of MvM has prevailed?
Broad: Takes MvM and expands, sC has supreme role
What's the Hand/Wechsler debate?
Basically, Hand says JR should be discretionary. Wechsler says it is mandatory
What does Cooper case do
state officials were not bound by SC's decision in BvB since Ark not party. Holding: SC is supreme arbiter and every branch of the govt and all people must follow our rule…The C is the Supreme Law of the Land and it “emphatically the province and duty of the judicial dept to say what the law is
So, what does Cooper show?
Fed courts have the authority to review the C'lity of state laws and the actions of state officials in addition to state court decisions.
What is the most important limit on federal judicial power?
The Justiciability Doctrines, they determine which matters federal courts can hear and decide and which must be dimissed
Sources of justic doctrines?
Created by SC who interpretted from
1)C'l limits (III Section 2 Clause 1 "cases" or "controversies" requirement
2)Prudential restrictions
So, which ones can and cannot be overridden by CS
C'l limits can't be, prudential restrictions can be
Why have these doctrines?
Separate powers b/t branches of govt and define judicial role/conserve J resoures/improve J decision making by providing concrete contros/promote fairness
What is the polical question doctrine?
Some C'l issues are "political" in nature so non justic. Court feels that C'l interpret should be left to politically accountable branches of govt (prez and CS).
How many cases fall in PQ
What are usually found to involve political questions and therefore non justic (#1)
Guarantee clause cases: Article 4 section 4 "The US shall guarantee to every State in this Union a Republican Form of Govt."
What does guarantee clause actually mean? Think of Luther case
Case raised PQ b/c under clause it rests with CS to decide what govt is established one in state
PQ number 2
Foreign Affairs: when wars end and begin, recognizing different foreign govts, rat of treaties, questions of armed forces abroad, and diplomatic status of foreign reps
Give an example of FA
Goldwater: Prez had authority to terminate treaty without consent of Senate in nonjust pq which is better resolved to exec and legis branches
PQ number 3:
Ratifying C'l Amendments
PQ number 4
Impeachment and Removal from Office. Is all judicial review of impeachment non-justiciable?
Take Nixon case through the 3 PQs strands
Structure of Art I Sec 3 revealed textual commitment of impeachment to the Senate. “Sole.(first strand)” “Try” does not give only one way (2nd strand). Judicial review would be inconsistent with the framer’s creation of impeachment as the only check on the judicial branch by the legislature. (3rd strand)
What did Souter concurrence say with respect to Nixon
Mentions Hand’s view of judicial review and states that not all judicial interference with impeachment process is inappropriate and would be necessary if Senate acted in manner seriously threatening the integrity of its results. =discretionary matter that depends on circumstances
PQ number 5
Reapportionment cases: Originally nonjust, Colegrove v. Green showed that, fell under 1st strand and CS had the exclusive authority to secure fair rep by the States in the House of Reps. Then Baker v. Carr: SC deemed justiciable claims that malapportionment violates EP clause
What if Baker, reapportionment EP claim, had been guarantee clause
So, what makes Baker d/f than Borden
Court found judicial standard for determinin EP claims. No jud stnds for dtermining claims under Guar Clause
When talking about case or controversy requirement talking about
standing, m, ripeness
What are advisory opinions?
These are opinions on the legality of executive or legislative action that does not involve actual case. Essentially an opinion by the court that has no binding effect or lacks concrete legal dispute that it is meant to decide. Some states allow their SC to give advisory opinions, in federal prohibited.
Criteria to avoid being an advisory opinion (2)
a. Must be can actual dispute b/t adverse litigants and there must be a substantial likelihood that a federal court decision in favor of the claimant will bring about some change or have some effect.
Do courts usually need to talk about advisory opinions?
Nope: S, R, and M all stem from same issue
Whether litigant litigant is entitled to have the court decide the merits of the dispute or of particular issues. Comes from Art III’s Case or Controversy Requirement, it’s self imposed prudence.
Requirements for Standing
Remember that some are C'l and cannot be overriden by statute and others are prudential and can be overridden by statute
Talk about the C'l limit on standing with respect to injury:
real and imminent+concrete and particularized to litigant
Mere interest in the problem ok
Nope. Need someone to go skiing there or its speculative
When are aesthetic and environmental injuries sufficient to form standing
as long as P claims to suffer injury personally
Exception to 3rd party standing
Where third party is unlikely to sue/close relationship b/t P and 3rd party (i. Where individ is part of the third party’s C’ll protected activity. Seller of beer )
What's the exception to generalized grievances?
P denied a specific C'l right, may have standing even though e/o injured too. 1st A
When will CS ability to confer standing be shot down
Where do we see it might be possible for CS to confer
If it violates separation of powers
Kennedy Lujan concurrence where he says that at a min, CS must identify the injury it wishes to vindicate and relate the injury to class of persons who can sue
What exactly did Scalia say in Lujan
1. To permit CS to convert the undifferentiated public interest in executive officers’ compliance with the law into an “individual right” vindicable in the courts is to permit Congress to transfer from the President to the courts the Executive’s most important constitutional duty to take care that laws are faithfully executed…This is not in the purview of the judiciary to monitor the wisdom and soundness of executive action.
FEC v. Akin
Information injury was directly related to voting, the most basic political right, is sufficiently concrete, and specific such that the fact that it is widely shared does not deprive CS of C'l power to authorize its vindication in federal courts
When do legislators have standing?
When they have been deprived of something to which they are personally entitled. Not when the assertion is based on loss of political power rather than private right
So, can senators argue that Line Item Veto Act dilutes political power and therefore injury
Nope, even though act said that any member of CS coudl bring an action alleging UC'llity of act
Rationale of Raines Line Item case
affects all equally, other options like repealing or exempting appropriations from the bill
Option left open in Raines
may have standing if vote was nullified or denied in disriminatory manner
Mootness and Ripeness generally:
timing of lawsuit and when review is appropriate. Will often overlap. Stem from case or controversy requirement/prudential concerns
Ripeness doctrine seeks to prevent premature adjudication/Aims to avoid disputes that are insufficiently developed and are too remote or speculative to warrant judicial action/Must have injury in fact
2. Mootness doctrine requires that an actual controversy must be extant at all stages of review, not merely at the time the complaint was filed. So, a case is moot if circs change ending controversy, no longer live controversy. Can be change of law or facts
Two important exceptions to mootness doctrine
Wrongs capable of repetition yet evading review
Voluntary cessation of challenged act: case is not dismissed as moot if D voluntarily ceases unless no reasonable chance he'll resume
Supreme court and state court judgments
Can hear them but it must be a question of federal law. Don't review cases that are adequate and independent state grounds.
Why do we even have to worry about this state court judgment thing?
B/C MvM said Court had power to review C'llity of federal executive actions and fed statutes
Doctrine of interposition
Where state courts would deny the general authoritativeness of the fed courts decisions on the ground that the states right to interpose their own interpretations of the C against federal action
Where does authority to review state court d/cs come from
Not explicitly in C. Authority party comes from Section 25 of Judiciary Act of 1789 which said SC could review state court D/cs. Also set up in lower fed courts. Not in C but framers would have wanted it
What did Martin case do
Established C'l basis for SC to review state court decisions
holding and rationale of Martin
See outline
Holmes view on Martin case
1. Doesn’t think US would come to end if we lost our power to declare an Act of CS void. I do think the Union would be imperiled if we could not make that declaration as to the law of the several states.
What did Cohens case do?
1. Confirmed and expanded the decision in martin
2. Court sustained is jx to review the validity of state laws in crim procs
Holding of Cohens
(a) Judicial Power Extends to all cases arising under the constitution or a law of the US, whoever may be parties (including states themselves)
(b) In ratifying the C, the states have agreed to subject themselves to the jx of the SC on appeals from state courts. States allow themselves to be part of this system and can be called to the SC
What is the checklist for SC to have authority to look at State decisions?
1.Federal question (C’l or Statutory)
a.The case must involve the violation of federal law for the SC to have subject matter jx
b.State courts are final arbiters of state law
How can countermajoritarian theme of SC be a problem?
It is the least accountable branch b/c the 9 justices are not elected but they are making major decisions about how the govt works
So, what weapons are available to the executive and legislative branches in reacting to rulings in which they disagree...ways to hold SC accountable (first way):
1)Amendments to the C to overturn specific SC decisions
a. Art 5 sets out not so easy proc for As
b.(11, 14, 16, 26 good examples
2nd, 3rd and 4th way to hold SC accountable:
Impeachment: Article 2 Sec 4: never been done
Congressional power to set the size of Court (FDR's court packing plan)
Congressional Power to set when the court meets
5th way to hold SC accountable:
Appointments and Confirmation Art II Sec 2 Clause 2: Prez noms Justices to SC, but Art II Sec 2 Cl 2 provides that the appointment not effective unless he gets "Advice and Consent of the Senate"
6th way to hold SC accountable:
Exceptions clause: Article 3 Sec 2 Cl 2: Most significant control over. CS's most powerful tool-ability to regulate appellate jx of SC
Exceptions clause language
See outline (probably needs to be in here)
Is exceptions clause widely used?
Case where exceptions clause was used
Ex Parte McCardle: showed that CS may prevent SC review of C'l issues in certain situations
What are the external constraints on exceptions clause?
1.Public opinion, like if s/t goes against EPA or 1st
2.CS cannot violate sep of powers
a.US v Klein showed that CS cannot restrict SC appellate review when it violates sep of powers.
Subsection II: Powers of Fed Govt: Legislative Powers
New section
Historical Justifications for federalism:
Double security. Vert sep of powers b/t nation and state and horizontal sep of powers b/t fed branches would give double security to the rights of the people by preventing concentrations of power.
Scope of Congressional powers
Limited and defined. CS can only act pursuant to enumerated express or implied power.
Where does CS specifically get its power?
Article I: "All legislative power herein granted shall be vested in a CS of the US which shall consist of a Senate and HoRs
Scope of State powers
1.States may act unless the Constitution prohibits the action
2.10th Amendment: “Powers not delegated to the US by the Constitution, nor prohibited to it by the States are reserved to the States respectively, or to the people
a.The “flip side” of enumerated
3.Residuary Powers: states can enjoy all that are not enumerated by the constitution to be held by the federal
What are the questions to ask when evaluating C'llity of Act of Congress?
a.Does Congress have the authority under the Constitution to legislate?
b.If so, does the law violate another constitutional provision or doctrine?
What are the quesions to ask when evaluating C'llity of State Law
a. Does the legislation violate the constitution?
i.Note: state has the police power which allows it to adopt any law not prohibited by the constitution
CS has both blank and blank limits on its powers
Internal and External
Talk about internal limits on CS's power to regulate private activities
They are the enumerated powers of CS (spending, commerce, section 5, treaty)
Talk about external limits on CS's power
Derived from references to 10th and 11th As
i. Look at the core sovereignties retained under these As
What's the deal with necessary and proper clause?
specific powers of CS may be enlarged by this clause
Talk about McCulloch v. MD
N&P clause issue. According the Marshall, listing all possible powers would be two extensive. Omission of the word expressly in 10th A not accidental, this means powers can be implied
So, McvMd, lack of enumeration:
Does not necessarily mean lack of power
It is the C Blank blankety blan
we are expounding, needs to stand the test of time
Actual N&P clause
See outline
So, what can CS do with respect to N&P clause
May choose any means, not probihited by C, to carry out its express authority
More N&P stuff
see outline
So, what are the judicially enforceable limits on Congressional Power mentioned
a.Court would maintain a role in scrutinizing whether the means chosen by CS were adequately related to legit ends.
b.Court would decide whether Congressional assertions of necessity were a pretext
What does the commerce power do?
Art I Section 8 clause 3: Congress has the power to “regulate commerce with foreign Nations, and among the Several States, and with Indian Tribes.”
Commerce power is the
Most significan power CS has
2 parts to the commerce clause
1.Affirmative: Positive grant to reg commerce b/t states. Broadest grant, lots of reg has been enacted pursuant to this clause.
a.over the coure of history, the SC has adopted varying views as to the meaning of the CC and the extent to which Congressional power under it are limited by the 10th A.
2. Dormant: negative element that allows CS to limit things that will hurt commerce.
History of CC
See outline. basically nothing exceeded the reach of commerce clause for a long time. Then cases made partial return to the more interventionist commerce clause jurisprudence of the pre-New Deal Era:Lopez and Morrison
Pre-1995 CC doctrine
of deferential review
What did Wickard show?
That Court's pre 1937 CC doctrine had been abandoned. We're deferentialing reviewing
What test did Wickard lay out?
Rational Basis test: Whether the activity has a substantial effect on IS commerce looked at in aggregate
What is Wickard claiming?
What is Court saying
That law can't be C'lly applied to him, home consumption not part of IS commerce.
Cumulative effect on IS commerce
What is the actual test?
Whether there is a rational basis for regulation since the activity had an effect on IS commerce in the aggregate.
Talk about the CRA of 64 and CC:
a. In part, it prohibits private employment discrimination based on race, gender, or religion, and forbids discrimination by places of public accommodation. CS enacted it under CC, SC upheld
Reason why this wasn't under section 5 of 14th A?
In Civil Rights cases of 1883, SC held that CS could only regulate state action and not private conduct or discrimination under the 14th A
i.Plus, CS knew SC was deferential to CC power
Talk about Heart of Atl and Katezenbach
Discrimination in these places had direct and adverse affect on IS commerce
Doesn't matter if purely local in character
Using rational basis test
What does upheld Title II of CRA as C'l show
Judiciary's deferential review of commerce power
Question raised in Black's concurrence to both cases: what if everything was local, is that beyond reach of commerce power?
probably not, broad deference. Court would say in aggregate substantially affected IS commerce
What is the current doctrine of the CC look like? Talk about changing tide case
US v Lopez: first time court found a federal law UC under the CC in 60 years. Introduces "substantial effects" test, more bite than standard before
What is the new test we see in Lopez?
Substantial effects test with an economic activity requirement
Reconcile Lopez with Prior decisions:
Test remains the same: Substantial EFFECTS TEST
i. THis is just the first time that something failed.
ii. What changes about the test?
1. Does not look to the aggregate if it is not an economic activity
2. More emphasis on balancing state and federal powers
Talk about the gist of Rehnquist's opinion in Lopez
1.Signal of R's legacy of pushing for more power to the states and less federal power.
2.Cautions about the balance b/t fed/state powers
a. Warns don't assume CS can put in legislation on local issues
Talk about the gist of Thomas's concurrence
1.Looks at how the constitution was interpreted and what it meant in 1789
2.Urges a much narrower view of congressional power than adopted by the majority and states that the substantial effects test is a New Deal Innovation which goes beyond the framers intent
3.Says the Court should return to the limits on the commerce power followed between 1887 and 1937
A bunch more crap about Lopez
See outline
Alright, now time to really get screwed up, talk about Gonzales v. Raich
SC held that application of CSA provisions criminalizing manufacture, distribution, or possession of MJ intrastate growers and users did not violate CC.
So, what's the test in GvR?
rational basis tests: In assessing CS's CC authority, Court need not determine whether respondents' activities, taken in the aggregate, substantially affect IS commerce in fact, but only whether a "rational basis" exists for so concluding.
What was a trick court used in GvR
Used a broad definition of economic activity so they could basically stick anything in there
What case did Court rely on in GvR?
Wickard: commodity meant for home consumption has substantial effect on S and D of nat'l market.
Anyway, in assessing the scope of CS's CC authority, need not determine whehter activities taken in aggregate, substantially affect IS commerce, but only whether "rational basis" exists for so concluding.
How does Court distinguish itself in GvR from Lopez?
See outline
Rehnquist Dissented on GvR--can you figure out why
Probably because we're overstepping our bounds with the state
How to read these cases?
L might be about bad draftmanship. R might too
Overview of the test from Wickard to Lopez
a.Wickard(HoA and Katzenbach)
i.Rational Basis Test: Look at whether the regulated Activity Substantially Effected IS Commerce
i.Gave Rational Basis Test more Bite
1.Look to see if the thing is an ECONOMIC ACTIVITY
a.If not, will not look in the aggregate
2.Will not look at it if it is something which the state is always sovereign
a.Criminal law, family law, education
a.Jx’l Standing
b.Congressional Finding
c.Congressional Finding
i.Proves Court is still using Rational Basis Test
Name other enumerated powers of CS
Spending power, treaty power, power conferred by Section 5 of 14thA
Talk about the Spending Pwr
Imporant regulatory device since it has impact on how federal system actually functions
Tax and Spending Power clause:
Article 1 Section 8 Clause 1
What that aforementioned clauase actually says:
See outline
Analysis of Tax and spending power Clause
States that you can tax and spend for the “general welfare” Implies Congress cannot tax and spend for any reason
For what purposes may CS Tax and Spend (2 debates)
1. Madison’s view: Narrow view: Congress was limited to taxing and spending to carry out the other enumerated powers specifically granted in Article I Section 8 of the C (commerce power, etc
2. Hamilton’s view: Broad view: CS should tax and spend for any purpose that it believed served the general welfare, so long as CS did not violate another C’l provision
Who wins
Conditional spending:
CS has the ability to place conditions on grants to state and local governments so long as the conditions are EXPRESSLY STATED and have some RELATIONSHIP TO THE PURPOSE OF THE SPENDING PROGRAM
What is the case that does conditional spending
SD case withhold 5% of the federal highway funds from any state govt that failed to impose drinking age. SD says that this violated C'l limits on congressional spending pwr
Holding of SD case:
So, what does this mean?
b. Held: C’l condition even if CS might lack the power to impose a national minimum drinking age directly. Condition valid use of Spending Power
c. Rationale: So, objectives not thought to be w/in Article I’s enumerated legislative fields may nevertheless be attained through use of the spending power and the conditional grant of federal funds.
Standards of spending power from this case
See outline
O'Connor's Dissent from SD
1. Narrow view of germaness requirement
2. Establishment of a minimum drinking age is not sufficiently related to interstate highway construction to justify conditioning funds appropriated for that purpose
a. Under and over inclusive: Under inclusive because teens are only part of drunk driving problem and over inclusive because stops teens who are not going to be driving from drinking
3. The requirement needs to say in some way how the money will be spent, so that Congress intent in making the grant will be effectuated
So, what does all this mean?
ii. This could be another battle ground one day⬦
Next up, the treaty power, where is it in C
a. Under Article II, Section 2, clause 2: President has the authority “by and with Advice and Consent of the Senate, to make Treaties, provided 2/3 of the Senators present concur.”
b. Congress has power to ratify treaties
General rules with Treaty:
a. Treaties are the law of the land and prevail over all conflicting state law
b. Treaties can confer upon Congress powers in addition to those granted in Article I
c. State Sovereignty and the 10th Amendment do not limit the scope of the treaty power
d. Limitation: Treaties cannot violate the Supreme Law – the Constitution
What powers were invoked to Enact Treaty in Mizzou case?
i. Article II, Section 2: Treaty Power: Power to make treaties given to prez
ii. Article VI: Supremacy Clause: treaties made under the authority of the U.S. are declared Supreme Law of Land
iii. Article I, Section 8: Necessary and Proper clause: Treaty is a necessary and proper means to execute the power of the government.
Is the 10th A relevant in Mizzou?
Nope, since power to make treaties is delegated EXPRESSLY. If treaty is valid, then the statute is also since it is necessary and proper. The treaty does not contravene any prohibitory words in the C
Talk about state's interest in Mizzou
iii. State’s interest, while sufficient to justify regulation in the absence of federal regulation, is too transitory to preempt nation regulation.
More crap about Mizzou
See outline
Breadth of Authority in Enacting Treaties?
a.Very Broad. There may be matters that an act of CS cannot do but that a treaty can.
b.Thus, CS has an increase in its power via the treaty power
i.Here, treaty was acceptable because it did not contravene any prohibitory words in the C
Treaty cannot violate individual rights under the BoR or violate the C. Ex: Reid v. Covert: No agreement with a foreign nation can confer power on the CS, or on any other branch of Govt, which is free from restraints in the C
What exactly happened in Reid v. Covert
That's a helluva question
Talk about Executive agreements:
Agreements between US and foreign country that are effective when signed by the president and the head of the foreign nations. CS’s role: Congressional approval is not required
One more enumerated power of CS, section 5 of 14thA.
First, a bit of a background. What are the Recon As? Talk about the 13th:
a.13th A: prohibits slavery and involuntary servitude, except as punishment for a crime. Also, gives CS power to enforce it
c.15th A: The rights of citizens of the U.S. to vote shall not be denied or abridged by the US or by any State on account of race, color, or previous condition of servitude.
i.Gives CS power to enforce it.
Talk about the 14th
b.14th A: Provides that all person born or naturalized in US are citz and that no state can abridge the privileges or immunities of such citizens; nor may states deprive any person of life, liberty, or property without due process of law or deny any person of equal protections of the law
i.Section 5: the congress shall have power to enforce, by appropriate legislation, the provisions of this article
Talk about the 15th
c.15th A: The rights of citizens of the U.S. to vote shall not be denied or abridged by the US or by any State on account of race, color, or previous condition of servitude.
i.Gives CS power to enforce it.
What happened in 1883 with those CRs cases?
a.The SC limited CS’s ability to use its powers under the Reconstruction Amendments to regulate private counduct
b.Declared that the 14th A only applies to govt action and that therefore it cannot be used by CS to regulate private behavior.
i.“The 14th A is prohibitory upon the states. Individual invasion of individual rights is not the subject matter of the A”
So, what is CS's power under Section 5 of 14th A?
i.Gives CS power to enforce appropriate legislation to enforce the prohibitions of Section something of 14th A
ii.State actor requirement: CS may only regulate state and local govt under this authority and not private conduct of private individs
1.Prophylactic legislation under Section 5 must have a “congruence and proportionality b/t the injury to be prevented or remedied and the means adopted to that end.”
Which case shows CS's power under section 5 is limited by State Action Requirement?
Morrison VAWA, which was beyond CS's enumerated powers b/c state action requirement missing
Another thing to remember about defense of VAWA
that they defended it as valid under CC as well
What might have made VAWA case stand up under section 5 of 14th?
express recovery against state officials
Holding with respect to CC power: THIS IS UNBELIEVABLY IMPORTANT
i. Commerce Power: Law exceeded the scope of commerce power because CS cannot regulate noneconomic activity based on cumulative impact of interstate commerce
So, VAWA is
Section 5 and 11th
Talked about enumerated powers, next:
Federalism based limits on CS''l Power: The AntiCommandeering Principal
What is the Trigger and Rule:
See if state is the party or if it’s an individ. If state, then this section applies. Rule: Even where CS has the authority under C to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts
CS has both Internal and External Limits on its powers:
1.Internal limits on CS's power to regulate private activities
a. They are all the enumerated powers
External limits
a.Derived from reference to 10th and 11th As
i.Look at the core of sovereignties retained under these As
1.Barrier of State autonomy
b.Some state actions, even though otherwise related to commerce, are nonetheless immune from federal regulation, because of external limits stemming from the structure postulates implicit federal scheme and reflected in 10th and 11th As
What is the Anti-Commandeering Principal?
1.Congress can have a power pursuant to its enumerated powers under Article I (like the commerce power) but congress may not extend regulation to the states if it violates state sovereignty
2.Congress may not commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program
2 views of 10thA over time
See outline
History of 10thA as an external limit on CS's power
See outline
2 cases from 1937-1990, talk about first case
Could fed min wage be extended to state and local govts?[already applied to private individs
Nope, State autonomy defense under 10th A was held sufficient to invalidate the application to state and local governments of a federal law otherwise permissible under the commerce power. State compliance with federal law cannot directly impair its ability to structure integral ops in areas of traditional govt functions.
i. state should be able to decide how to allocate its funds, etc.
problem with this case is that it's tough to apply the test to other cases
2nd case
Overturns first case: case involved the subjection of a muni transit authority to the min-wage and overtime requirements of the Fair Labor Standards Act
Here, structural principals of federalism do not protect the state. Application of fed law to state was C'l
Holding of 2nd case
See outline
2nd case says there's a problem with traditional govt functions test:
unworkable, see outline
See outline on case 2
see outline
You need to learn anticommandeering
see outline
Now we're into powers of the Fed Govt: Federal Limits on State Regulatory Powers
Talk about state powers vs. Federal
a.Police power: means that state can take any action unless there is a C’l prohibition
b.Limitation: 1) Constitution’s protections of individual rights. 2) Article 1 section 10: States cannot
i.Enter treaty, alliance, or confederation
ii.Coin money
iii.Emit Bills of Credit
iv.Grant Title of Nobility
2.Federal: Can only act if there is C’l authority
Talk about the situations where limits on state powers arise from National Govt or other states (Scenario 1):
1. CS has acted
i.CS has passed law and it is lawful exercise of CS"l power, the federal law preempts state or local law
1.Supremacy Clause Congress has exercised CC power
Talk about the situations where limits on state powers arise from National Govt or other states (Scenario 2):
2.CS has not acted
i.Situation: Congress has not acted, or the judiciary has decided that federal law does not preempt state or local law. Really?
ii.Definition: The principal that state and local laws are UC if they place an UNDUE BURDEN ON IS COMMERCE
1.Applies even if CS has not acted
iii.Power stems from the commerce clause
Talk about the situations where limits on state powers arise from National Govt or other states (Scenario 3, again CS has not acted):
b.Privileges and Immunities Clause of Article IV, Section 2: The citizens of each State shall be entitled to all Ps and Is of Citizens of the sev states
i.Definition: The Ps and Is Clause is interpreted as limiting the ability of states to discriminate against out-of-staters with regard to C’l rights or important economic activities including ability to earn a livelihood.
Under the DCC, the Court
invalidates some protectionist state legislation, even in the absence of C’l preemption
So, it's a
Negative implication found in the commerce clause that means in the wake of Congressional silence, states cannot regulate in such a way to limit or discriminate against or unduly burden IS
Where does DCC come from
Not expressly stated, SC has drawn on the negative implications of the grant of power to CS to regulate commerce under Art 1 Sect 8. From this the court has read judicially enforceable limits on state legislation when CS has not acted
When is the DCC relevant?
b.IF CS has legislated:
i.Question is whether the federal law preempts state or local law
Arguments for the DCC
See outline
Why the courts the ones to protect this?
See outline
DCC Test
See outline
If I see state laws that burden IS commerce or discriminate against out of staters use:
DCC, Ps and Is Clause, and Equal Protection of the 14th A (not for me)
What will facial disrimination against IS commerce look like?
Where a statute expressly draws a distinction b/t in-staters and out-of-staters
Examples of facial discrimination
See outline
Facial Discriminatory Test:
(a) Whether a state law is protectionist or if it is aimed instead at local interests with incidental effects:
(i) First: What is the state’s justification for the law
(ii) Next: Evil of protectionism can reside in the means and the ends to examine both
(iii) Third: Could the state have used other nondiscriminatory means to reach the same goal? Ie: New Jersey could have used other means (steep taxes, limits on all waste)
(iv) Finally: Do a cost benefit analysis to see who is being benefited and who is being hurt
Rule from City of Philly
State can’t prohibit importation of waste solely b/c of their source of origin
Again, what is the exception to the ban on facially discriminatory laws?
Quarantine laws: Difference: Laws did not discriminate against interstate commerce as such, but simply prevented traffic in noxious articles whatever their origin. What the hell is the difference???
Talk about Maine v Taylor case:
Notable exception to "virtually per se invalidity." Atypical case where court used heightened level of scrutiny but still found it to be valid law
Holding of Maine v. Taylor
State importation of Batefish Band had a legitimate environmental purpose stemming from uncertainty about possible ecological effects on the possible presence of parasites and nonnative species in shipments of out-of-state baitfish, and that the purpose could not be adequately served in nondiscriminatory ways
What makes Dean Milk interesting?
involves facial discrim by locality and not a state
Rule from Dean Milk:
A locality may not discriminate against IS commerce, even to protect the health and safety of its people, if reasonable alternatives exist which do not discriminate and are adequate to conserve legitimate local interests
Facts of Dean Milk+Holding:
See outline
Rationale from Dean Milk:
Reasonable and adequate alts Madison could have used.
Was it relevant that law discriminated against in staters?
Talk about localities and facial discrimination:
i) Discrimination against IS commerce in favor of local business or investment is per se invalid, save in a narrow class of cases in which the municipality can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest
Where law is not facially discriminatory, Court will do what
Purpose or effect: try to smoke out discriminatory purpose before subjecting it to the virtually per se rule of invalidity
Why was Baldwin v. Seelig not facial discrimination?
I have no idea
Real purpose of law in Milk case that prohibited sale of out of stae milk if it was bought at a lower price than NY minimum?
(i) Real purpose to not for assuring regular and adequate supply of milk – instead it was to protect NY farmers from competition
Talk about Taxes
States can employ taxes on out-of-staters as long as they are not discriminatory
Talk about use taxes
i) Non-Discriminatory use of taxes:
(a) Use Taxes:
(i) States with sales tax often seek to avoid the loss of revenue by imposing a use tax, equal to the sales tax, on in-state use of products purchased out of state
(ii) Henneford v. Silas Mason Co.:
WA had a 2% tax; if person had not paid 2% out-of-state, then had to pay it to use product in state. Holding: OK⬦Tax seen as an equalizer
Local retail sellers will be helped to compete upon terms of equality with retail dealers in other states who are exempt from sales tax
Bacchus case (a 'purpose" case):
(a) Holding: “purpose”: exemption was motivated by intent to confer a benefit upon local industry not granted to out-of-state industry, exemption invalid
(b) Rationale: Court invalidated a Hawaii statute that exempted from the State’s liquor tax a brandy distilled from the root of a shrub indigenous to Hawaii. Also, tax exemption for fruit wine was also found invalid since there was evidence it was enacted to promote the local pineapple wine industry
Effect case with Hunt
(a) Facts: NC law requiring that closed containers of apples bear “no grade other than the applicable U.S. grade or standard.” Law was facially neutral since all apples had to comply. WA apples shipped half of all apples into the state. WA had higher standards of inspection which they advertised on their boxes but under the NC law they could not show this.
Holding of Hunt
(b) Holding: Discrimination was not justified by the asserted local interest in eliminating deception and confusion in the market place/ Law flawed because it had a discriminatory effect rather than protectionist motive
Rationale from Hunt
Law had the practical effect of not only burdening interstate sales of WA apples, but also discriminating against them
i) Discrimination by:
(a) Raising cost of doing business in N.Carolina
(b) Stripped away WA’s competitive and econ advantages of its grading system
(c) Law had a leveling effect which operated to the advantage of local growers
Last part of where we can strike down law:
Facially neutral state laws that "Unduly Burden" IS Commerce: A law that is neither discriminatory nor protectionist may be reviewed and struck down under the court’s residual balancing test
Give examples of this final category
Pike v. Bruce Church, this is where balancing test comes it
What is the balancing test?
Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the claimed local benefits
Please see outline

Deck Info