Con Law Outline (Fall)

L516 Constitutional Law

PRE-CONSTITUTION
The Constitution cannot be understood unless we understand why we took up arms against the British in a successful revolution.

John Dickenson
Most reluctant to declare independence, and was author of olive branch petition. Declaration of Independence was unanimous was because people who disagreed, like John Dickenson, stayed home to not embarrass the movement. He also immediately went out and raised a regiment to fight for the continental congress. Parliament had laid duties (tariffs) on glass and paper. Dickenson said that an external tax created by parliament is valid as parliament has a right as sovereign to lay duties to regulate commerce/mercantilist trade. He says, however, that an internal tax directly on the people is taking property and invalid. Parliament says “well, if we can’t tax you, then we can increase the duties and get the money anyways!” This is where Dickenson’s argument comes in. He says that duties can be laid but not to solely raise revenue. He says the nature of the thing—not what you call it—is what it is (can’t be pretextual) He says that the purpose of a tax is to raise revenue, while the purpose of the duty is to regulate behavior. Colonists believed that the parliament was deeply corrupted and was lying about what they were doing.

James Otis' Speech
James Otis’ speech resonated with people of all classes, in that it articulated something they hadn’t really been able to put into words. His letter sets the stage for the revolution. He also uses “check and balance” for the first time as far as we know. Also, this is the only revolution fought for a legal cause—it was the lawyers who took up arms. James Otis explained the sources of colonists’ rights: God, natural laws, common law, and parliamentary acts. He also spoke out against the Writs of Assistance (general search and seizure, did not need probable cause) – turning point to focus Americans on their rights as Englishmen. He said that law is the legitimating mechanism of a nation. Permanent legal principles that allow someone to have authority over someone else. Liberty is a community’s right to rule itself. Consent only comes through representation in Parliament. Slavery is when property (taxes) are taken away w/o consent.

Declaration of Independence
The Declaration of Independence is a legal document in two senses: It’s an international legal document, and a british legal document, as its made in the form of a traditional english petition to the king. First ¶ is a legal ¶, asserting that they would become independent under international law. Only subjects to international law at the time were sovereign states; colonies had no standing. The declaration of independence was asking the international community to acknowledge them as a new legal entity. Jefferson wisely puts this first, almost as a threshold issue. Dutch were the first to give recognition by lowering its colors in respect to an American ship passing by. The declaration sets out the ultimate purpose of man, then explains that government flows from that purpose, not the other way around. Up until the time of the declaration, the revolution had been fought on legal terms. The declaration also is based on legal terms. So the next challenge was to create a structure for government based on these legal arguments.

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Articles of Confederation
Starts out by establishing sovereignty of the states, rather than the people centric sovereignty of the constitution. It says that the union would be perpetual, and secession was not thought; they were in it for the long haul. Most of the powers given to the “united states” are foreign, so it existed internationally as an entity, but domestically, it might not have been a single entity. There was no office of the president, rather it was a committee with a presiding officer, and congress had a legislative and judicial and executive function. Also there was a lot of turnover in the system, short terms, etc. made it very inefficient.

Northwest Ordinance
While the constitutional convention met in Philadelphia, the confederation congress continued to meet in NY, passing their greatest triumph, the NW ordinance. It was re-passed by first congress under US constitution. This document established the gov’t over the NW territory. All the states gave up their claims to the US in the confederation congress so the confederation congress had to pass laws regulating the territory. 5 states formed from the NW territory were subject to the ordinance. NW ordinance setup how territories could join the nation. And, most important thing was that when new states joined they would be equal to the other states. Eastern states knew that eventually they would be outnumbered, which southern states feared because of their hold on slavery. It also had a kind of bill of rights attached to the inhabitants of the states: Article I - Freedom of worship; Article II - common law rights; Article III - religion had to be encouraged because a republic cannot last unless the people possess a modicum of virtue; and Article VI - no slavery, which testifies to the fact that the framers wanted slavery to be geographically limited.

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THE CONSTITUTION
Article I - Sets out legislative powers; congress is limited to the powers enumerated. Article II - Executive duties/powers; powers are not enumerated. Article III - Judicial branch; Supreme Court is the only court required by law. Core Powers - Each branch has central core functions that the other branches are not permitted to impede. If a core function is invaded, the branch being invaded has a right to action. Partial Agency - Gives each branch some limited power in the other branches (e.g. presidential veto). Prevents one branch from becoming more powerful than any one other branch. Protects the core functions of each branch.

Constitutional Convention
Different interests were presented. Some wanted strong states rights, some wanted to do away with the articles of confederation. All votes were by state, but needed a quorum of the state delegation to have a vote for your state. Hamilton was left for NY in the middle because other anti-federalists left. Out of the 50 who started, 35 stayed through to the end. There was a vote between the VA and NJ plans, and the VA plan won, but after resolutions, the two plans were truly melded together/compromised. Most say that they got the best of both plans. Had a hard time figuring out how to elect the president. Didn’t want popular vote, since that leads to plebiscitary tyranny. That’s why they came up with the electoral college system (first was bad, changed by 12th amendment to elect president and VP together). Had a question about separate federal judiciary or just a supreme court. They let congress decide, and now we have a separate federal judiciary.

Thoughts on Government
Great ideas found in this document written by Adams: two houses of legislature; the reason government is instituted is happiness of people; independent judiciary; an executive veto on legislature; and judges appointed by governor with advise and consent of council. Why should judges have less checks and more independence than other branches? Judges should be more learned/experienced, exemplary moral, patience, calmness, coolness. The framers had great trust in the character of judges in how they would exercise their power, but were distrustful of legislatures, etc. The question is whether their optimism was well founded based on what has happened since.

Virginia Plan
Presented first. (“He who sets the agenda sets the conclusion”). This plan goes right for a national government, getting rid of the articles of confederation. It’s a larger state plan with a strong national government (e.g. it says the national government could veto state laws). A proposed council of revision would meet to determine whether or not to veto acts of the legislature, and the council would be formed by the executive and judges.

New Jersey Plan
Proposed to protect the smaller states; three fifths rule was proposed; independent judiciary/supreme court established. Makes the Constitution the supreme law of the land. Also, local judiciary would take an oath to enforce the constitution. This was rather than making the vetoing of state laws (Virginia plan) a political issue.

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This concept is found in the supremacy clause of article VI of the constitution. All agreed on national gov’t having: direct power to tax, control commerce, ind. judiciary, and able to form an army.

Resolution of Congress of the Confederation
Once constitution went back to confederation congress in NY, they unanimously supported the document and submitted it to the states. The confederation congress, no matter what the delegates had done, unanimously ratified the end of the confederation and the going forward with the constitution.

Ratification of Constitution
Rather than go to state legislatures, they called for a popular vote from the people to call for an election for a convention in each state to determine to ratify (which is what John Adams did with the Mass. constitution). What’s the legal significance of going to the people of the several states rather than the state legislatures?? When the people of the several states ratify the federal constitution, they ipso facto (by the act) change their state’s constitutions, because some powers were transferred to the federal government. Only the people had the power to do this, not the legislatures, since legislatures were a product of the state constitutions. legally speaking, only the people had the power to do this.

The Federalist Papers
Federalist 10 (Madison)
Anti-federalists argued that the new government was focusing too much power in the center, because it cannot be a republic because republics by definition must be small. A large republican gov’t would not be responsive to the people, so therefore the best we can hope for is a loose confederation of states. Madison starts by talking about faction. Federalist 10 shows how much 18th century Calvinism was influencing the framers. Unlike the French who thought that civilization was the restraint on the freedoms of man to be truly virtuous. The framers say that the cause of vice is innate in the person; vice is within people. The classical authors agreed that passions within are not necessarily rational or logical. Federalist 10 is how to structure the governing mechanism based on the self-interest of people, even if they aren’t entirely self-interested. Goal is to control the effects of the sinful nature of man, and give opportunity to the benevolent good aspects of man.

Federalist 47 (Madison)
Montesquieu wrote “the spirit of the laws” praising the British constitution because it had a separation of powers. Because the branches were so separate, and one couldn’t take over the other, that prevented a constellation of forces that could lead the government to become tyrannical. The anti-federalists argued that the overlapping of the branches of government could lead to the branches taking over each other. Federalist 10 + 47 shows how the structure of government can be used to preserve liberty.

Federalist 51 (Madison)
Here Madison does something even more sophisticated, he harnesses passions to pit them against each other—“But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department necessary 4

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constitutional means and personal motives to resist encroachments of the others. The provision for defenses must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition.” This argument is why the federalists didn’t think we needed a bill of rights. The desire for one became so powerful though, that some wouldn’t ratify without a promise to pass one later. Why else didn’t they think a bill of rights was necessary? Because of a basic rule of statutory interpretation: inclusio unius est exclusio alterius (the inclusion of one thing excludes all others). Fundamental rule of statutory interpretation. If you say X is not allowed, then everything non-X is allowed. Essentially, the constitution is a document of enumerated powers (Article I, Section 8 —“powers herein granted”). So they would say, we don’t have the power to pass a law against religion, so you don’t need a bill of rights. The reason you have bills of rights in state constitutions is because they don’t have enumerated powers. If your legislature can legislate on everything, then you need a bill of rights to create exceptions. On top of this, they said it was dangerous to have this list of rights, because the congress would then operate up to the limits of those listed rights. Congress will do everything else up to those listed powers. The ninth amendment was added to the bill of rights to say “inclusio unius est exclusio alterius wouldn’t apply here”, to attempt to prevent Congress from overreaching its powers. He also mentions that the society will be broken into so many parts that factions won’t arise.

Separation of Powers
Three mechanisms by which separation of powers is enforced: (1) partial agency; (2) self-restraint (Marbury); and (3) non-compliance.

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THE SUPREME COURT AS COURT
Marbury v. Madison
The Constitution is law, not just an organization of government. And is found in conflict with a later act passed as law, so the court has to resolve the issues. This is why Marshall has to talk about the nature of the law of the Constitution. Why did Marshall have to argue for judicial review? Jefferson made the innovation, and was arguing for his political agenda, that the court could not second guess what congress was doing. Marshall was defending traditional judicial review against this political argument of Jefferson. Under Article III, what exceptions can Congress make to appellate jurisdiction? Congress cannot make exceptions to appellate jurisdiction to expand original jurisdiction. The only exception would be to take away the Supreme Court’s appellate jurisdiction in some areas, making the highest court to hear a case would be a lower court. In fact, the judiciary act does this. In short, Congress can’t give the court more jurisdiction, but can take it away. So how is this a power grab by the court? It isn’t, it gives Congress a means to knock the Supreme Court out of hearing controversial cases altogether. So, Marshall did not invent judicial review, and did not grab for power. It’s a very conservative and virtue based opinion, as Marshall says his job is to say what the law is when it falls under his jurisdiction.

Issues of the Case
Though jurisdiction is normally discussed first, in this case it’s not because other issues needed to be tackled: (1) does Marbury have a right to the commissions? and (2) If so, do the laws offer a remedy? then (3) is Marbury is entitled to the remedy that he wants? The third issue depends on (a) the nature of the writ (remedy was writ of mandamus to make the president give the appointment), and (b) the power of the court. First question was: Were madison’s acts legally examinable? Was madison under a legal duty? Yes, we found he was. Second question is now: Can we issue an order to an executive official to do something? Is that an invasion of the executive branch?

Article III, Section 2
¶1 — Judicial power shall extend to all cases, in law and equity. Cases affecting ambassadors, other public ministers and consuls (In Personum Jurisdiction), admiralty and maritime cases (Subject Matter Jurisdiction). Controversies with U.S. as a party, between states, between citizens of different states, citizens of the same states claiming lands, foreign states, etc. — In Personum Jurisdiction ¶2 — Refers back to list of cases, cases affecting ambassadors, etc. are given to Supreme Court under original jurisdiction, and in all others (listed prior), they have appellate jurisdiction.

Original & Appellate Jurisdiction
Last sentence of §13 of the Judiciary Act of 1789 includes mandamus powers under the appellate jurisdiction of the court, not original. And appellate jurisdiction revises or corrects the proceedings of a lower court. In Marbury, Marshall explains that even though a writ of mandamus may be issued to a court, and in

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that sense would be appellate jurisdiction, when it is issued to direct the delivery of the commission would be original jurisdiction. As a result, the Judiciary Act of 1789 attempted to expand original jurisdiction. But can the legislature expand the original jurisdiction of the Supreme Court? If Congress can change the jurisdiction of the supreme court, then much of the wording of the constitution is just a waste of words, since the congress can change it at any time. This references a rule of statutory interpretation, that extra wordiness, mere surplasage, is not really allow. All words in a statute should mean something. So a construction of a statute that renders these words useless can’t be the right construction.

Juticiability Doctrines
As a court, the Supreme Court is subject to justiciability doctrines (what the court is competent to decide): Finality of Decisions, No Advisory Opinions, Political Question, Standing, Ripeness, and Mootness.

Limits on Judicial Review
The Fears at the Founding
Anti-Federalists
Brutus hit the papers first, and his arguments had some traction, which is why Hamilton responded in Fed. 78. Brutus thought that the courts would be too powerful. We can see that Brutus understands pretty well how a court acts, and how a statue is interpreted.

Federalists Papers 78
Where in 78 has Hamilton disagreed with Brutus? He thinks that the judiciary is the weakest of the three branches, and it is more likely to be overwhelmed by the other two, because it doesn’t control the sword (executive power) or the purse (legislative power). He believes that the legislature operates by will (passions) and the executive operates by force (power, troops, enforcement), but that the judiciary only operates by judgment. Judges serve under good behavior (doesn’t mean “nice guy”), which is a term of art—it meant “you cannot be fired”. This is preferred as if their salaries could be reduced, they would be beholden to the other branches. Hamilton agrees that the judiciary is independent, and that in the main, the normal checks and balances do not apply to the judiciary. Amendments would be hard to get, and impeachment is also difficult, and appointment power was only granted to prevent appointment of cronies. He believes they have to be independent because they’re so weak. Brutus may ask, and did, however, “what makes these people free of the passions that the other branches have??” Hamilton responds that judges won’t be so dangerous because the very craft of judging limits the judge. It’s a self limiting type of function.

Self-Regulation of Judges (What Binds Judges?)
These principles create a self-enforcing craft that is self-binding, if adhered to. The mechanism to check these principles is the appellate process, as they’re probably checking these principles against the lower court’s judgment. (1) Law of Statutes (or regulations) — all kinds of treatises, etc. why do courts pay attention to these? because they are bound by them. (2) Law of the Court (stare decisis) — in most cases precedent binds; it’s very rare that it does

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not. there are all kinds of mechanisms as to how to follow or distinguish precedent. For both of these two, rather than judging their will, they’re looking at what’s out there and judging on it (3) Law of Process — civil procedure rules limiting what the court can hear or what it can do (4) Law of the Subject (doctrine) — very complex areas of law and rules of the substance that bind the court to decide a particular case before it (5) Law of the Case (res judicata) — can’t change a case that’s been decided; the law of the case is binding on those parties (6) Law of the Judge (judicial ethics) — recusing from cases you’re too close to; it’s an internal restraint on what judges can do. is he limited to the written law? or unwritten law as well? (7) Law of Law (principle of legality) — courts will study a law to see if it meets minimal aspects of what it makes binding law. It can’t be vague, or it’s called absurd. law has certain internal elements that make it what it is, and the judge will enforce that. (8) Law of Reason - in the Anglo-American system of justice, judges have to give reasons. They have to be completely (or at least pretend to be) transparent. The judge has to put themselves out there and show they have reasoned their way; congress doesn’t have to do this. Courts have to justify themselves, which is an extraordinary limitation. (9) Law of the Constitution — underlying basis of our system, always a background principle even in other topics (1st amendment and libel, for example)

Modern Court's View of Itself
In Cooper v. Aaron, Justice Burger says you are bound by the Constitution because we say so. Burger says the Constitution is what we say it is, while Marshall says that the Constitution is outside himself. Is this different from Marbury or not? There is a subtle difference, but it’s significant. In this case, uncharacteristically, each justice signed the opinion to give it more force.

Congress and the Court
Writ of Habeas Corpus
Habeas Corpus is a powerful, ancient, and precious right for Englishman. You cannot hold the body of a prisoner absent a legal justification to do so, and “they” have a right to demand you explain or produce the person held under his liberty. If someone is in jail and thinks they are being held illegally, he files a Writ of Habeas Corpus and that forces the government to give cause for why you’re being held.

Pardon Power
The President has the power to pardon someone found guilty of a crime. This power is a core power of the president, and can’t be undermined or qualified by Congress.

Ex Parte McCardle
This case is significant as the entire reconstruction scheme hinged on how it would turn out. Also, it illustrates how the core powers of the three branches of government work together. In Milligan, the court said it was unconstitutional to suspend habeas corpus or try a civilian in military court if there’s a civilian court operating. The Supreme Court had appellate jurisdiction at that time and could review denial of the writ. In McCardle, Congress then changed the law and limited the Court’s appellate jurisdiction

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during the case, which they’re allowed to do, to prevent them from reviewing writs of habeas corpus. The court then said they were bound by the law and couldn’t review the denial of the writ because they had no jurisdiction. Congress removed appellate jurisdiction with regards habeus corpus relief prohibited under the act of 1867. He also says that if the legislature exercises a legitimate power, the court is not allowed to review, as a constitutional matter, what the congress had done. Congress’ exception power is a partial agency power to check the court, and is meant to be defensive (per Madison in Federalist).

Three Kinds of Rights
There are three kinds of rights: (1) Civil Rights — legal rights to common law rights; rights of being part of the city/polity. rights to contract, right to labor, right to own property, right to sue and be sued, right to follow a trade, etc. (rights of englishmen). this is what lincoln said was the minimum, the completion of the revolution. (2) Political Rights — separate from civil rights, and optionally given by the state. (3) Social Rights — social relationships. marriage is regulated as a social relationship. you don’t have the right to marry anyone you please.

Pennsylvannia v. Wheeling Bridge
Congress has the power to regulate internal nagivable waters. The court said the bridge, authorized by the state, was a nuisance to travel on the water. So the congress declares that the bridge is not a nuisance. The court says congress wasn’t interfering with the decision, but was changing the underlying law, which it has the power to do. So, the rule is, if the underlying law is changed, the court has to follow it.

U.S. v. Klein
Issues in Klein are if Congress can limit Presidential Pardon power, and whether a pardon can be used in evidence as an affirmation of guilt. The court says that congress can’t tell the president who he can pardon. Pardon power is a judicial power of the president, he determines the legal position/status of a person when he pardons. Also, the pardon can’t be used in evidence as a pardon completely eliminates the acts done by the person as if they never happened. [Exam] How could the congress written the law to avoid the decision in Klein? (good exam question). They could have repealed the original act—they can’t keep the original act and make it come out their way. They’d have to remove their right to recover property under the underlying law. The motive to do it doesn’t matter, so someone couldn’t say that the repeal was just pretext.

U.S. v. Sioux Nation
Treaty in 1868, land given to Sioux, and no changes would be made without approval of 3/4 of adult males. There was a change with only 10% of the Sioux, causing them to lose land. They weren’t allowed to recover in the court in 1942. In 1946 they filed again, and they said they were entitled to review, but couldn’t because of 1942 decision. Congress then passes an act saying they should have de novo review, and the court should hear he case again. Congress could have just given them money, but they passed it off to the courts instead. The court holds that it’d be wrong for congress to prescribe a rule of decision in an ongoing case, or to act as an appellate body and tell the court to hear something again. The court said they weren’t re-opening the case, but were rather waiving the right to have the case dismissed on grounds of res judicata (they could do that because the US was the defendant in the case). Res 9

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judicata is a procedural right of a winning party, not something the court would do sua sponte. Dissenting, Rehnquist says that the law says to the court of claims to hear the case again, directing the court to hear a close case. It wasn’t just waiving res judicata like Blackmun said, rather, they were telling the court to do something.

A.I.G. v. Iran
Iranian hostage crises where Iran seizes American assets. American companies want to sue Iran, so they attach/seize the assets of Iran in America to give them quasi in rem jurisdiction. President Carter blocked removal of assets. The U.S. and Iran reached an agreement, which required the U.S. to terminate the legal proceedings, so the president by executive order quashes the legal proceedings, settling the claims. The American companies lost out on their attachments, so they sue saying you can’t take away our rights and duties by executive order, because that would undermine the court. The court holds that the president does have the power to suspend claims of americans against a foreign sovereign. The president has the power to enter into agreements and treaties with foreign governments, and in this case, finalizing the agreement modified the law. Can those agreements modify domestic law? In this case, yes.

Memorial Hospital v. Heckler
Hospital sues for unpaid medical cost for a patient and while the case was on appeal (after judgment for the hospital was found in the trial court), Congress enacted an act that disallowed the reimbursement. Trial court held Congress could not change the law in an ongoing case.

The Supreme Court said that courts are obligated to apply law (otherwise valid) as they find it at the time of final judgment, including, when a case is on review, the time of appellate judgment. Until appellate rights are exhausted, even an otherwise valid judgment may be negated by supervening legislation.

Spotted Owl Cases (Robertson v. Seattle Audobon)
In this case the question is whether congress instructs courts to reach a particular results identified by caption and file number, which was actually in the law. Congress not only legislated a forest management plan, but also directed the courts to find that that plan satisfied the environmental laws underlying the ongoing litigation. Congress can only modify the underlying law but cannot prescribe a rule of decision in a particular way. Here, the court found that Congress did not prescribe an outcome but only changed the underlying law. The caption and file number of the ongoing case was only used for convenience to reference the sections of the statute at issue.

Plaut v. Spendthrift Farm
An untimely claim (past statute of limitations) was filed and the party lost the case. Legislation was passed saying cases should be re-opened. The court (Scalia) holds that Congress may pass acts that affects decisions that are pending (even pending appeal), but not those that are already decided, so they can’t be re-opened having already passed the statute of limitations. Scalia reinstates for the first time since Klein, that the court

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cannot be told a rule of decision. The only case in his way is Sioux, so he tries to limit that. Scalia says that because the “judicial power is one to render dispositive judgments,” the Federal law “effects a clear violation of separation-of-powers.” The statute was unconstitutional because it overturned a Supreme Court decision and gave relief to a party that the Court had said was entitled to none. This case is important because the court in Sioux and Robertson (Spotted Owl) gave congress wide berth to change law, and in 1995, the court gets its back up, and starts to draw some lines where congress had had fairly wide discretion in the past.

Dickerson v. United States
Congress tried to overrule Miranda. The court disagreed, saying that the decision in Miranda was a Constitutional one and therefore cannot be overruled by Congress. The miranda rule was fundamentally that confessions have to be voluntary, and that this is how confessions will be voluntary. Congress then passes a law saying that the court just has to determine if a confession was voluntary, and the court says no, the decision was a constitutional decision regulating the executive powers.

Pledge Protection Act
Is the Pledge Protection Act constitutional? [Final exam] usually ask two questions: one is a standard fact kind of question, another is evaluative—“is the pledge protection act constitutional or not?” Pledge Protection Act of 2003: “No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance, as defined in section 4 of title 4, or its recitation.”

Inferior Courts
Congress under Article I has the power to establish tribunals inferior to the Supreme Court. This is sort of a partial agency interaction between Congress and the Supreme Court, as Congress creates the lower courts.

The President and the Court
When is the president justified in not complying with the decisions of the court? Presidential powers have widened, but they haven’t yet said that they just won’t follow a supreme court decree. Noncompliance is expanding in the executive branch with regards to congress, but not with regards to the court yet. If the President does not support decisions of the Court, he cannot overrule their decision, but he can take action that might remedy the outcome that is within his Constitutionally granted power (e.g. granting of a pardon). A few specific examples are below.

Jefferson
Can the president prevent the execution of laws passed by congress? Jefferson pardoned printers who were put in jail, and congress paid back the fines. They checked the court, but through their own powers, he didn’t avoid enforcing the law.

Jackson
Jackson didn’t like the banks, but the court said they were constitutional. So Jackson said yeah

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sure, but we don’t have to renew its charter, so congress didn’t.

Lincoln
Lincoln says that Dred Scott didn’t get his freedom, and that we can’t interfere with that because of res judicata. Secondly, Lincoln said that the court’s dicta saying that slavery can’t be regulated by congress isn’t binding, and that congress can just pass another law.

Roosevelt
In gold clause cases, FDR expected the court to strike down acts, and the court upheld the legislation, to his surprise. FDR had drafted an executive decree if the decision had come down differently.

Other Limits on the Court (The Amending Process)
The amending process serves as another limit on the judicial review of the Supreme Court, as the Constitution can be changed which would change how the Court decides cases (similar to changing underlying law).

Limits on the Supreme Court: Political Questions
[Outline] This falls under the self-restraint check on the court. The court can have jurisdiction over a case, but refrain from judging. The political question doctrine (or doctrine of non-justiciability) was first mentioned in Marbury v. Madison, where Marshall says that where the president has discretion, the courts can’t intervene. What’s an example of a power that we’ve studied so far that’s non-justiciable? The pardon power is an example, as you can’t do anything about it. The political question doctrine means that the political process is the check. Not only the electoral process (throw the bums out!), but that the political branches are the ones who decide the issues, such as foreign affairs issues. Or where the president orders soldiers into battle and they try to say that the war isn’t legal, the court says “go to congress”.

Guarantee Clause
The Constitution guarantees States: (1) popular rule; (2) a republican form of government (no monarch); and (3) rule of law. This allows states wide latitude to innovate, so long as they have these three basic elements. In Luther v. Borden and in Colgrove v. Green the Supreme Court has said that enforcement of the Guarantee Clause is a political question and is non-justiciable. After Baker v. Carr, the Guarantee Clause is not a political question anymore.

Luther v. Borden
RI revolution, which gov’t is legit, court says it’s not up to them.

Colgrove v. Green
The court holds that apportionment is a political question.

Baker v. Carr
Before Baker v. Carr, reapportionment was determined to be a political question because legislatures were supposed to figure out how they were to be elected.

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Frankfurter argued that the court shouldn’t become an administrative body, drawing lines and enforcing rights around the country. Brennan believes that they should become that kind of quasiadministrative body. This case provides a good summary of the political question cases, even though the opinion dramatically changes how political questions are handled. Political question cases are found where: “(1) there is a textually demonstrable constitutional commitment of the issue to a coordinate political department (veto, impeachment); OR (2) a lack of a judicially discoverable and manageable standards for resolving it (dissent focuses onto this point); OR (3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion (foreign affairs); OR (4) the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government (asking for Nixon tapes, papers in the executive branch); OR (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.” If any of these are found, then that’s a reason for the court to stay out of the case. Brennan gets out from under the doctrine because he isn’t looking at whether a political question is present, but rather that the political question can’t be completely removed.

House of Representatives (Seating Qualifications of Legislators)
Powell v. McCormack
Powell elected from Harlem for 12 consecutive terms. Became somewhat corrupt, ran committees with an iron fist, had relatives put on congressional payroll, took flights to the Bahamas on government pay, etc. So a committee was held to determine what to do. The House refused to seat him, but not on the grounds of the qualifications in the Constitution. The Warren court said that the issue was justiciable, as house is the judge of the qualifications of age, citizenship, and residency, but only to these qualifications. It’s not a political question, but Congress does not have the power to alter the Constitutional qualifications of a member of Congress When Powell tries to get his seniority back in another case, the House threatens non-compliance with the supreme court’s decision. The judge dismissed the claim because the House has the right to punish him.

Foreign Affairs
Goldwater v. Carter
Carter denounced the treaty with Taiwan, and Goldwater brings suit to say that the Senate should have 2/3 vote to get out of treaty too. A Plurality of four on the court said that the senate didn’t have this right, and that it’s the a political question for the president to decide.

Trial of Impeachment
Nixon v. U. S.
Judge Nixon claims he wasn’t “tried” before the Senate because he was tried before a committee. The question is whether the Senate has the sole power to determine how to try its cases. [Rehnquist] The court holds that the issue is non-justiciable on both textual and prudential grounds because the plain meaning of the word “sole” is that the Senate alone has the authority to determine how to try the case (its procedures).

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FEDERALISM
Supreme Court Reviewing State Court Judgments
Martin v. Hunter's Lessee
Here Justice Story is saying that the Supreme Court is at the top of the court system and says that because the legislature has power to pass federal laws that remove some state sovereignty, then analogously the court can hear these cases as well. “It is the case then, not the court, that gives us jurisdiction”—the Supreme Court can hear any case that involves federal law.

Cohens v. Virginia
The judicial power extends to all cases arising under the Constitution or a law of the U.S., whomever the parties may be.

Congress and the States
Necessary and Proper Clause
Clause was included to give Congress the power to organize the government; to carry into effect the powers granted the government by the Constitution. Congress organizes the branches of the government (procedure and structure of the courts, administrative agencies, etc.) through this clause. The laws passed by Congress under this clause must promote an end (be a means to an end) that is within the Congress’ enumerated powers. There may be other ends (extraneous objectives) that come out of the means of the legislation, but they do not render the act unconstitutional. Congress cannot use this clause to enact any law that it deems “reasonable”, only laws that are “appropriate” for carrying into execution other powers.

McCulloch v. Maryland
McCulloch was the head of the Maryland branch of the national bank who refused to pay the tax passed by Maryland. Suit was brought against him by Maryland, and it went all the way up to the Supreme Court. Hamilton and Marshall had long argued that there are implied powers granted to Congress in the Constitution, but the Necessary and Proper clause was put in the Constitution because of the experience under the Articles of Confederation where Congress was forbidden to use ancilliary powers. The Necessary and Proper clause also allowed the Congress to organize the government: the federal judiciary, administrative offices under the executive branch. The clause is (1) a granted power to organize the other branches of government, and (2) it is an affirmation of the implied powers of Congress to effectuate its own enumerated powers. Congress is still limited by Article I (powers "herein granted"). There are three points we should take from McCulloch: (1) there should be a plain connection between the means and the ends; and (2) Congress shouldn't be allowed to use Necessary and Proper clause pre-textually to get around some limit on its powers; and (3) States cannot regulate those people outside of it's sovereign control (this is shown when Maryland taxes the bank, as the people of the other states aren't represented in Maryland). For the most part, subsequent to McCulloch, particularly in the 20th century, the means and the ends don't have to be very close, and they use the rational basis test (minimal scrutiny) to find

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out if the means are at least somewhat related to the ends.

U.S. v. Comstock
This case is troubling. Was there an extrinsic due process restraint such as due process or something in the bill of rights? Does the necessary and proper clause allow congress to order the civil commitment of mentally ill and sexually violent federal prisoners beyond their federal prison term? [ Justice Breyer, for the court] holds that yes, the congress does have that power. Merely a convenient and logical extension of federal power over people who are already in federal custody. What is a legitimate purpose of punishment? The majority presumes the purpose is safety of the public. Assuming the safety purpose, it’s logical under the necessary and proper clause to keep them in custody. The extrinsic issue of how we know they’re dangerous isn’t covered. What test does justice Breyer use to determine the connection between the means and ends? He looks at whether Congress could have reasonably concluded that it was necessary to do this. This is a speculative minimum rationality version of the rational basis test, not just minimum rationality. [Concurrence by Kennedy and Alito] Kennedy wants the rational basis test to be “at least as exacting” as the rational basis test in the commerce clause. He believes there has to be objectively a rational connection between the means chosen and the ends sought to be achieved. He wants it to be a demonstrated link in fact, based on empirical demonstration. [Dissent by Thomas, joined in part by Scalia] Thomas and Scalia dissented, writing that the statute intrudes on the states’ sovereign police powers—the necessary and proper clause can’t be used to facilitate powers not enumerated in the Constitution. Thomas says there needs to be a specific enumerated power for the necessary and proper clause to be used (the majority was doing a kind of bootstrapping—e.g. you put people in prison under the N&P clause because of drug laws under the commerce clause, and then you can use N&P again to keep him in prison longer). If you keep using N&P to connect to N&P reasoning, you can add layers and layers of regulation getting further from an enumerated power. He wants a direct relationship, even if it’s a minimum scrutiny test, and a specific delegated end (enumerated power).

Qualifications for Legislators
U.S. Term Limits v. Thornton
Issue is whether a state can add qualifications to those already provided in the Constitution. Both Stevens and Thomas agree that the State governments retained rights of sovereignty that were not already granted to Congress. They disagreed whether the ability to add qualifications to legislators was reserved by the States. Stevens first argues about when you know something is reserved, which he says is whether the State had the power in the first place--did the States have the power before ratification? Thomas disagrees with the definition of reserved, and says if it's not strictly in the Constitution, then the power is in the states. He says the states couldn't have had the power to add qualifications because before 1787 there was no Congress to add qualifications to. Rather, Thomas says whatever you grant to Congress in the Constitution, the rest is left open (inclusio unius). Stevens then argues that Congress intended the Constitution to be the exclusive source of qualifications for members of Congress, thereby divesting the States of any power to add 15

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qualifications. So the question is whether the Framer's intended that the qualifications be exclusive to Congress? Steven's third argument is that the House is to represent all the people of the United States. But House reps are residents of States, and have to represent the people of a State, so this isn't a very good argument.

The Commerce Clause
Elements of the Commerce Clause
Congress has the power to regulate commerce among the several states. The power is to (1) regulate. The thing regulated must be (2) commerce, and must be (3) among the several states-interstate.

Regulate
Regulate - To prescribe the rule by which commerce is to be governed. This is decided by congress and is a political question; it is non-justiciable according to Marshall; it is not a judicially determinable rule.

Commerce
Buying, selling, and trafficking goods, and the incidents thereto, such as navigation. Its limitation is in its definition. Instrumentalities of commerce, methods of commerce.

Qualitative
The thing itself is commercial and is in commerce. Quality of the thing, the nature of the thing (same as Marshall’s definition above).

Quantitative
The thing itself is not commercial and not in commerce, but it effects commerce. Anything that has an effect on commerce is commerce, such as manufacturing.

Causal
Justice Cardozo wants a test to examine the immediacy of the effects of commercial activity. If we just look at all effects of acts on commerce, then everything becomes commerce and under the commerce power. So Cardozo wants affects to be measured in degrees. This can overlap with with the quantitative approach, as something can have an immediate affect and substantial affect.

Jurisdictional
If a thing is transported in interstate traffic, it can be regulated, whether it is commercial or not. The court has really never cut back on this power, and the court will not scrutinize the purpose.

Necessary and Proper Clause
Someone may choose the qualitative definition of commerce, but then use N&P to reach some local activities that effect commerce. For the most part we will put this aside, because the court and the academics on the court wrote mainly that this was a commerce power issue. Only in the last 5-10 years has the Supreme Court started to focus on this clause as a way to solve Commerce Clause problems.

Among the States (Interstate)
Commercial intercourse, i.e. commerce that involves more state than one. It doesn’t apply to internal commerce, and touches the whole journey of the good, not just when it crosses a border.

Qualitative Era (Before the New Deal)

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Gibbons v. Ogden
NY legislature grants a monopoly to Ogden operate steamboat in NY waters. Gibbons wanted to operate his steam boat in NY waters. Gibbons ferries were licensed under a federal navigation act from 1793. Issue is whether federal statute pre-empts the NY law granting a monopoly. Because the navigation act would trump the NY monopoly under the supremacy clause, Ogden has to argue that commerce does not include navigation, so the navigation act was outside Congress' powers to regulate. Marshall says that commerce includes not just buying or selling, but the means to transport goods. This is a textual argument--what is the intrinsic (what's in the word) definition of commerce? He holds that navigation is commerce. Marshall says that "among the several states" is commerce involving more than one state-interstate, not just when the good crosses the state line, but is from the beginning of the trip to the end of the trip, and Congress can regulate the whole trip. That said, commerce completely internal to a state is not interstate commerce. Marshall says that the legal definition of "regulation" is determined by the Congress, and then the people--it's non-justiciable as it's a polical question. The court can determine if something is commerce or not, or whether it's interstate, but the court cannot determine what's a real regulation and what's not. There are two powers operating here as well, commerce clause and necessary and proper clause. So there might be a trip that’s wholly internal to a state that can be regulated through the Necessary and Proper clause to effectuate something under the Commerce clause, and then we have to look at how close the means is to the ends.

Manufacturing v. Commerce (Direct v. Indirect Test) U.S. v. E.C. Knight
EC Knight was buying out other sugar companies, and the US sued asking for an injunction to stop the American Sugar Company from controlling 98% of the sugar market. Would the monopoly restrain trade in sugar? Not directly, but it would have that effect (early instance of quantitative reasoning?). The Supreme Court disagrees that the Antitrust act can regulate the manufacture of goods. The court makes a qualified distinction between manufacture and commerce. Manufacturing is transforming raw materials into a good, and then shipping it somewhere is commerce. String of justices then decide that Congress' power is qualitative (limited) to what is commerce. If this distinction was gone, then the States would be stripped of their police powers to regulate their own economies and manufacturing in their states.

Substantial Economic Effects Test Shreveport Case
Railroad in Texas was shipping within the state and between Texas and Louisiana, and charged a lower rate for shipping within Texas than to Louisiana. Trip from Houston to Shreveport is regulated by the Interstate Commerce Commission (ICC), but the trips within Texas was not. The ICC tells the railroad to raise the rates within Texas to make the rates consistent. Sherman Anti-trust Act was designed to maintain competition. ICC on the other hand wanted all rates to be the same, to prevent competition among railroad companies. Can regulate totally internal commerce because of its effect on external commerce: “This is not to say that Congress possesses the authority to regulate the internal commerce of a State, as such, but that it does possess the power to foster and protect 17

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interstate commerce, and to take all measures necessary or appropriate to that end, although interstate transactions of interstate carriers may thereby be controlled."

Stream of Commerce Test Swift & Co. v. U.S.
This case concerned price fixing by meat dealers. The court ( Justice Holmes) stated that the Sherman Anti-trust Act applied to this practice because the cattle for sale affected the "stream of commerce". They were sent from one state to another for sale in the destination state. Cattle were coming in from all over to the Chicago yards, and then butchered into meat and sold everywhere else. It sounds like manufacturing, but Justice Holmes says they are in the “stream of commerce”. Stream of commerce is a qualitative doctrine, as once something is injected into the stream, it remains “in commerce” until it reaches its final destination. It may be a fiction, and be a way to expand commerce power without having to go to the quantitative rationale. Swift is an expansion of the qualitative rationale for stream of commerce, for things that don’t get transformed in a substantial way.

National Police Regulation Champion v. Ames
Transport of lottery tickets was regulated by prohibiting the importation or transport of lottery tickets. The purpose of the act was to protect the people against the “pestilence of lotteries” which is a police power purpose, which Congress does not have, as it was left to the states (to regulate health, welfare, morals, and safety of the people). Even though the federal government doesn’t have police power, Justice Harlan compares the lottery tickets to diseased cattle, which can be kept off trains to prevent others from being harmed. What about the means? The means was to prohibit the trafficking of tickets. Justice Fuller says the tickets are just like a contract, but Harlan says they have a value, and are then included in commerce—“[The cases] show that commerce among the States embraces navigation, intercourse, communication, traffic, the transit of persons, and the transmission of messages by telegraph.” This case begins to open up the idea that if the means are within Congress’ power, we will not look at the purpose to determine whether it is constitutional. Here, Fuller is taking a quantitative position, as he believes both the ends and the means must be constitutional. This case is the basis of many future acts, such as the Pure Food and Drug Act (Hipolite Egg), and adds a third element to our discussion of the commerce clause, the jurisdictional element. It also shows that regulation can be prohibition.

Hipolite Egg v. U.S.
Preserved eggs were transported across state lines, and once at their destination (where the owner argued they left interstate commerce), they were confiscated under the Pure Food and Drugs Act of 1906 because of a label that was missing information. The court held that Congress had the power to regulate commerce, and therefore property that is an "outlaw" to commerce can also be affected (e.g. something that is banned). The court holds that Congress can prevent certain items from entering interstate commerce.

Hoke v. U.S.
This case dealt with a Madam who was importing girls for prostitution. In this case the 18

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court upheld the Mann Act which prohibited the transportation of women in interstate commerce for immoral purposes. The court reasoned that Congress had the power to prohibit certain types of interstate commerce based on its commerce power.

Caminetti v. U.S.
In this case, Caminetti just bought a ticket for his mistress to cross state lines, and was arrested and that was upheld. Similar to Hoke, this case deals with an act of Congress prohibiting the trafficking of "white slaves" which applies to women transported across state lines for prostitution or other reasons.

Hammer v. Dagenhart
This case dealt with an act of Congress that banned the shipment of goods made with child labor into interstate commerce. The majority opinion distinguished this case from The Lottery Case, Hipolite E , and Hoke as each of those cases involved the regulation of the transportation of something that was harmful was the object of the regulation. The act in this case dealt with the standardization of the employment age of children, as the goods shipped were harmless. The court explained that interstate commerce begins when goods are shipped, and not when they are being produced, as that is a matter for local regulation, otherwise all local production intended for interstate commerce could be regulated. The majority is claiming that commerce was just being used as a pretext to get to manufacturing of goods. In other words, the purpose was bad, even if the means was constitutional. The dissent argues that an act that is within the powers of Congress should be upheld regardless of the "incidental effects" it may have. Justice Holmes in his dissent also argued that child labor was bad, therefore it is ok to be prohibited, as the court shouldn't intrude on questions of policy or morals decided by Congress. It’s very hard to reconcile this with Champion v. Ames, as the court is looking at the purpose of the act, while in Champion, they didn’t evaluate the purpose. One distinction is that the goods in Hammer are just fine, while in Champion, the good itself was the problem was was being regulated.

Qualitative & Causal Era (During The New Deal) Railroad Retirement Bd. v. Alton Railroad
This is a high-water mark of the qualitative test, as it does not allow a quantitative rationale to win. The government had implemented a pre-cursor to the social security system, and argued that the act was constitutional as the retirement and payment of pensions boosts morale which makes people more cheerful and work better, improving commerce indirectly. The court argued that the pay was established based on the job being done, not how long someone’s been working there. And that if morale is being regulated, then the government can regulate anything. Roberts was seeing that if you open up to the quantitative reasoning, then Congress has no practical limitation on its power. The reasoning here was qualitative reasoning—labor requirements may affect commerce but labor requirements are not qualitatively commerce.

Schechter Poultry v. U.S. ("Sick Chicken Case")
The court held that the National Industrial Recovery Act of 1933 unconstitutionally delegated legislative power and that the application of the act exceeded the commerce clause powers of Congress. The chicken slaughterhouse in this case had hour and wage requirements that did not comply with the federal regulation, and the chickens were only sold the local poultry retailers. The decision was unanimous which shows that this is an important case, as that was very rare in the New Deal era.

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The government tried to argue that wages and hours affect prices in the state which in turn affect prices out of the state. This kind of broad power would essentially get rid of the limit of the power because it would only be limited by the discretion of Congress. Qualitative reasoning was used here—the rules about conducting business are not interstate commerce. The government tried to argue that the chickens were still in the stream of commerce, and Hughes says that the stream ends when the chickens reach the slaughterhouse. The government also tried to say that the wages/rules affected interstate commerce, and Hughes said "that proves too much" and that if the government could regulate this it could regulate everything. Hughes is saying that if you use the quantitative theory, the commerce power becomes totally a political question, as congress can then define "commerce" and "among states", rather than just "regulation". In this case Justice Cardozo creates a third option, the causal test. He wrote that although all commerce in some ways affects the entire country, there are different degrees of commerce and that the law is not indifferent to these degrees, so he wants to look at the immediacy of the affect for a causal test. This is similar to Cardozo's view in Palsgraf, he looks at the closeness of the causal connections between commercial activity.

Carter v. Carter Coal Co.
In this case the court invalidated the Bituminous Coal Conservation Act of 1935 that regulated the coal industry (FDR did not want any doubts as to the Constitutionality of this legislation to stop it from being passed). The act established minimum wage and maximum hour provisions, and essentially taxed anyone who would not comply with the code, and it also fixed prices. At this time, the court thought that Congress could get at the prices of goods under any theory, so the big issue that came up is whether the price fixing and the labor regulations were severable. Cardozo thought they were, which is why he dissented—he agreed that price fixing and labor regulations were unconstitutional. The government tried to argue that because the distribution of coal affect the entire country and no one state could address the issue, that the federal government could then step in. Justice Sutherland says that the founders rejected that rationale and gave Congress delegated powers rather than power over all national issues. The court used causal reasoning, the effect of wages and hours in production on interstate commerce is too distant to be regulated by Congress.

Quantative Era (After the New Deal--Judicial Deference Toward Exercise of the Commerce Clause)
After 1937, the court adopts the quantitative rationale, which we'll see in Darby. So why didn't the causal theory hold? Cardozo died in 1938. Also, Justice Black came onto the court and rejected the causal view, and convinced Justice Stone to remove that rationale and stick with the quantitative view. Progressive theory of what government should be has filtered through to the Court, and the Court adopts a new persona. It no longer regards itself as watching over formal divisions in the government. The progressive view of government is that it should be a closer democratic relationship, and that the courts should stay out of the political battle between factions. Two stages - 1938-1954 the court is very restrained, lets Congress do what it wants as long as its fair. From 1954-1990 the court is more substantively progressive (more second semester).

NLRB v. Jones & Laughlin Steel
Even though the analysis seems to be a Causal Analysis, this case is cited all the time as the case that established the Quantitative theory for the future. It is regarded as the case that flipped the court to supporting the New Deal. When NLRB is cited, it's re-characterized as a 20

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quantitative case. Justice Hughes talks about acts having a "close and substantial" relation to interstate commerce. As a quantitative case (having been re-characterized), this case adds the "enterprise" concept to the quantitative idea of a local activity substantially effecting interstate commerce. Rather than showing that wages affect interstate commerce, you just have to show that the whole enterprise effects interstate commerce. Difference between majority and dissent has to do with the “enterprise” concept. The majority says that if the whole enterprise affects commerce, then any little part of it can be regulated. The causal test is very similar to the necessary and proper test. Is there a “rational basis”, a causal connection, between the means and the ends of the regulation. The court says the means must be “substantially related” to the ends. Very similar to plainly adapted from Marshall in McCulloch. Why doesn’t the Court pick up on this test? Because at the time the Court was gutting the necessary and proper clause from the plainly adapted test and just wanted a rational basis test. So they just missed this test and this approach dies.

U.S. v. Darby
Case concerns the prohibition of goods in interstate commerce of goods produced in “substandard” labor conditions (overruling Dagenhart). The court uses the quantitative analysis again, as the court mentions the "affect" of local activities on commerce throughout the country. The act prohibit substandard labor, using “bootstrapping” to get at local activity directly— the prohibition is the means and the end, it’s necessary and proper to prohibit hiring of workers at low wages to prevent shipment of goods made at low wages (jurisdictional element). Court says that Congress has a police/plenary power, and that there is no longer an intrinsic (definitional) limit on this power. Rather, we have to look at extrinsic limits on the power, such as through the Bill of Rights.

Wickard v. Filburn
The court uses quantitative reasoning, that growing outside quotas affects interstate commerce. This is used to create the horizontal “class” rationale similar to the vertical “enterprise” concept. If you put these together, it’s very hard to find something that Congress cannot reach through the Commerce Clause. For the horizontal “class” test the court looks at whether the whole group of similarly situated individuals have an effect on commerce, not just the individual. Court is giving the definition of interstate and commerce over to the Congress as a political question, in addition to regulation which they already had. Also in this case, all of a sudden, commerce becomes economics. They say that Congress can regulate “economic activity” among the several states.

Maryland v. Wirtz
Fair labor standards case. It upholds the substantial effects test and enterprise concepts. Justice Harlan is also looking for a limit on the substantial effects test, and doesn’t find one as the law is upheld.

Heart of Atlanta Motel v. U.S.
Hotel case where the Court found that racial restrictions at hotels harmed interstate commerce and could therefore be regulated. This is quantitative reasoning: racial restrictions on hotels affects interstate commerce. There’s no doubt that racial discrimination has an affect on interstate commerce, but this case is about a moral issue.

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Court says that if there are two means, one restricted (moral, police) and one allowed (commerce), Congress can regulate commerce even if it has an impact that is moral and secondary.

Katzenbach v. McClung
Restaurant case where court found that Congress could regulate activities of restaurant because it affected commerce (same as Heart of Atlanta pretty much). Three ways to use commerce power: (1) in interstate commerce; (2) substantial effects; and (3) supplies in interstate commerce used in intrastate activity.

Perez v. U.S.
Loan sharking case. Congress federally prohibits loan sharking. Justice Douglas says right out how can you arrest a local loan shark? Through being a member of a class. On what grounds does Justice Steward dissent? Seems to be disagreeing with the class theory, and might also be making a tenth amendment argument as well. During this era you have some of these bad conscience dissents asking “how far have we gone? Where do we draw the line?”

U.S. v. Bass
Gun case where court says if Congress was ambiguous and therefore statute must be construed towards lenity, and also that federal crimes aren't usually defined where a state already has power. Justice Marshall defines a rule saying that where there is no jurisdictional element, and the activity regulated is traditionally left to the states, Congress can reach the activity, but must clearly state the purpose of the regulation.

Rehnquist Court's Revival of Internal Limits U.S. v. Lopez
Law made it a federal offense to “knowingly possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.” [Rehnquist, for the Court] Broad categories of activity Congress may regulate under the Commerce Clause: (1) regulate the use of channels of interstate commerce; (2) regulate and protect the instrumentalities of interstate commerce, or persons and things in interstate commerce, even if the problem is caused by only intrastate activities; (3) regulation of persons or things in interstate commerce (jurisdictional element); and (4) regulate those activities that have a substantial relation to interstate commerce (contains both enterprise and class rationales that can cover all kinds of intrastate activities). Law has nothing to do with commerce, but is a criminal statute. It’s also not part of a larger regulatory scheme which would be hurt by removing the statute. Therefore it can’t be sustained under the commerce clause rationale. Government tries to argue that guns lead to violent crime which hampers education and national productivity, affecting commerce. The Court says this rationale would allow them to regulate almost anything, even parenting, as parenting has the same kind of effect that the dissent by Breyer says education does. The Court holds that possession of a gun is not economic activity, which is a qualitative element. Test from Lopez - (1) activity has to be economic; (2) effects have to be substantial, not significant; and (3) has to be more than just speculative rational basis (N&P?). What about the jurisdictional issue? He says that the law contains no jurisdictional element that would ensure, through case-by-case inquiry, that the gun in question affects interstate commerce. He basically says that you have to show that the thing actually travelled through

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interstate commerce, and that it affected interstate commerce. He’s impliedly overruling the Caminetti case. He wants a kind of nexus connection between the thing that travels through interstate commerce, and that it somehow affects commerce. This is trying to put some limit on the jurisdictional element. [Kennedy and O’Connor, concurring] Court should be deferential to Congress and shouldn’t overturn Commerce Clause precedent, but that said, the Court should still be a check on the legislature when it goes too far. Allowing Congress to regulate everything that would normally be within the States’ powers eliminates borders and effectively ends Federalism. They’re saying that progressive democratic accountability melds with the federal idea, because states are better at figuring out democratic accountability, since they’re closer to issue. [Thomas, concurring] The Court has drifted far away from the first 150 years of case law on the Commerce Clause; “commerce” is different than manufacturing and agriculture; looking back on the older view of the clause doesn’t mean throwing out recent case law; and Congress should not have a blanket police power through the Commerce Clause. Also, the entire constitutional structure is violated, as the enumerated powers are mere surplusage, as is the rest of the constitution, if we use the substantial affects test. [Breyer and Ginsberg, dissenting] Congress has the power to regulate any activity that has a “significant” effect on commerce (he thinks “substantial” is too narrow). The court should look at whether the regulated activity cumulatively effects commerce, and if Congress had a “rational basis” for concluding that it does. Breyer says because we spend lots of money on schools, and because gun violence around schools is a problem, Congress should be able to regulate guns around schools. In effect, he says that this is a political question and that it should be left up for Congress to decide—it’s a non-justiciable issue because courts aren’t competent to decide the limits of the regulation. He also says not that Congress had a rational basis, but that they could have had a rational basis, which is the lowest bar for the rational basis test (speculative minimal rationality). [Souter, dissenting] Guns are articles of commerce, and can restrain commerce. People don’t get guns without commerce. Because guns are part of commerce and have a harmful use, Congress should be able to prohibit them from certain markets. This is a qualitative argument of sorts. But I think it fails when you consider school children a “market” or the possession of a gun “commercial” just because it’s a product. There is virtually no limit on Congress’ power under this logic. [Stevens, dissenting] Rational basis test and the Court should defer to the legislature.

U.S. v. Morrison
Court invalidates civil damages provisions of the Violence Against Women Act. Student took disciplinary action against two football players after being raped. The school didn’t punish them, so she dropped out and sued the football players and the school in federal district court. [Rehnquist, for the Court] Gender motivated acts of violence are in no way economic activity (qualitative argument). Non-economic activities cannot be aggregated to show a substantial economic effect. What’s commerce and what’s interstate is still for the courts, and shouldn’t be turned over to Congress. He also brings up the jurisdictional element like in Lopez, but doesn’t apply in this case (statute is struck down on its face). That said, unlike Lopez, this act was supported by many congressional findings that criminal activity would, in aggregate, affect interstate commerce. This reasoning has no logical limit,

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and is rejected by the court. Congress may not regulate violent crime simply because of its aggregate affect on interstate commerce. This would be a police power that is reserved to the states. [Thomas, concurring] “Substantial effects” test is inconsistent with original understanding of commerce. If we don’t go back to original understanding, we will continue to see Congress use the Commerce Clause to gain police powers. [Souter, Stevens, Ginsburg, and Breyer, dissenting] Congress has the power to regulate activity, that in aggregate, has a substantial effect on interstate commerce. Congress is allowed to determine what those affects are, and the courts shouldn’t review congressional assessment (political question, non-justiciability argument). Here congress had lots of data, therefore the act should stand.

Gonzales v. Raich
Medical marijuana case. Is the personal growing of marijuana for personal consumption an economic activity? Majority says that even though marijuana is illegal, it is an item of economic trade as there is a huge market for it. So now, how far should the substantial effects test go, and how far should deference to congress go. This case opens up the necessary and proper clause. Also, first cases in decades where the necessary and proper clause is spoken about, argued over, and analyzed. [Stevens, Kennedy, Souter, Ginsburg, and Breyer, majority opinion] Congress can regulate a “class of activities” that may have a substantial effect on interstate commerce. Also, congress had a rational basis that aggregate activities will have a substantial influence on interstate commerce. [Scalia, concurring] Prohibition of interstate commerce in marijuana can be reached by the commerce clause, but not local growing and consumption. Those activities can only be reached through the necessary and proper clause, as banning local growing and consumption is necessary to effect a ban on interstate commerce in marijuana. Scalia sees a regulatory scheme to destroy the trade in marijuana, so it’s necessary and proper to ban possession of marijuana to accomplish the total ban. [O’Connor, Rehnquist, and Thomas (in part), dissenting] States are laboratories to try novel social and economic experiments. The majority’s view of economic activity is too far reaching, and would cover all productive human activity. Effect of marijuana growing is too small to effect interstate commerce. How does she distinguish Wickard? She says there is no evidence that personal consumption has substantial affects on interstate commerce. [Thomas, dissenting] Thomas argues for the same kind of rule as Scalia, but then goes further and says that the current means is neither necessary or proper. Thomas finds that the regulation must be necessary AND proper, and he cites McCulloch on those standards. What’s necessary? The means must be appropriate “plainly adapted” to executing an enumerated power. He rejects the minimum scrutiny rational basis test, and says that it must be subject to judicial scrutiny. What is proper? A measure which is (1) designed to accomplish a legitimate purpose, and (2) does not overly encroach on the federal system. This brings up the 10th amendment again. This is a difficult argument, because the line drawing for how far the 10th amendment goes is unclear. He also says it’s not a legitimate state purpose because local growth is not economic activity. Thomas says that local possession is not just personal possession, but was authorized by the state of California for the health of its people under its traditional police powers, and that eliminating it destroys the police powers of the states, so it’s not proper, even if it’s necessary (plainly adapted). 24

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Alderman v. U.S.
Certiorari was denied in this case, and Scalia and Thomas thought i t should have been heard. Rehnquist had made a concession in Lopez listing the different types of goods that are in commerce, allowing the jurisdictional clause, so Congress just tacked on a jurisdictional requirement and the law was ok. This is why Thomas argues here in Alderman that the jurisdictional clause is no real limit. This is a doctrinal marker, as we’ll probably see this come up again. Thomas is saying that even for the jurisdictional element, he wants to see a substantial affect on interstate commerce that must be proven. Looking back at jurisdictional clause cases (Hipolite E , Champion v. Ames), if you use the substantial affects test included with a jurisdictional test, these cases would probably still stand. Thomas says it’s time to apply the substantial affects reasoning from Lopez to the jurisdictional element of the commerce power, because it’s just hanging out there as an excuse for congress to regulate something (which doesn’t make much sense, because it’s just traffic over a border, not necessarily commercial).

External Limits on the Commerce Power: Federalism and the Tenth and Eleventh Amendments
This is a shift from an intrinsic limit on congress’ power to regulate power to extrinsic limits. Most limits on gov’t that the courts impose are extrinsic limits; the “rights” talk.

Tenth Amendment
Founders believed a bill of rights was unnecessary because the powers of the federal government were enumerated, and the federal government did not have the extensive police powers of the states. Furthermore, Federalists argued that if we had a bill of rights restricting government in some areas, it was necessarily implied that the government could restrict the people in all other areas (inclusio unius est exclusio alterius). Bill of rights was promised so Constitution could be ratified, but Tenth Amendment was added to serve as a bulwark against any implying of the alteration of the original enumerated powers of the Constitution. Unfortunately, in the Legal Tender Cases in 1871, the Supreme Court used this exact reasoning—that the restriction of the Federal Government in the Bill of Rights implies powers granted to the Federal Government. The Tenth Amendment provides a rule of construction between the amendments and the Constitution, and also serves to affirm the Constitution’s basic scheme of defining the relationship between the national and state governments. Founders were wary of national government so they created a scheme of mixed sovereignty. Enumerated federal powers was critical to this scheme. The New Deal court expanded federal powers far beyond anything that the founders would have imagined. That said, the court more recently has invoked the Tenth Amendment to prevent the federal government from commandeering the state governments.

Coyle v. Oklahoma
When Oklahoma joined the union, there was a federal act that set the state capital, and the Supreme Court invalidated this condition.

U.S. v. California (1936)
California operated a railroad and was penalized by the Federal Gov’t under the Safety Appliance Act. California tried to argue that they were operating the railroad under their sovereign capacity, but the Supreme Court said the Commerce Clause applied to regulate the

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railroad because of its nature as a railroad, regardless of who “owned” it. Case was decided in 1936, towards the end of the qualitative era. If this was a private railroad, this would not have been a problem even in the qualitative era (the decision was unanimous). The problem is who’s running the railroad: the state of California. The question is is there a special limitation on congress’ power because this is a state run railroad? The court says that the states and private companies weren’t on different grounds. Why was there no dissent? In this era there was a whole series of cases dealing with the “nature of the thing being done, not who does it”. Therefore, running a railroad is a privatelike activity, no matter who does it, based on the nature of the activity being done.

N.Y. v. U.S. (1946)
New York bottled water from State owned springs and the federal gov’t taxed it. Issue is can congress tax a state agency? The court says that federal power of taxation goes as far as commerce power. Again, the nature of the activity is private, so there is no intergovernmental immunity (McCulloch v. Maryland).

Maryland v. Wirtz
Expansion of Fair Labor Standards Act to schools, hospitals and removed exemption of State employers with respect to employees of hospitals, institutions, and schools. Court held that this was within the power of congress under the commerce clause.

Fry v. U.S.
Federal wage freeze case to stave off inflation. [Marshall, majority] Federal government can fix wages because it has power to regulate commerce that is very broad. Following Wirtz, governmentt can even regulate state employees. Also, fixing wages is even less intrusive than activities in Wirtz. [Rehnquist, dissenting] Even if congress has the power, a state or individual can assert affirmative constitutional right that limits congress. He would still allow regulation when activities of state are outside “traditional governmental activities”. This is a lone dissent that eventually gets turned into a majority opinion in National League of Cities.

National League of Cities v. Usery
Federal gov’t amended Fair Labor Standards Act to set minimum wage and maximum hour provisions for state and local government workers. Employees in this case were police and firefighters, not bottlers of water or engineers on railroads. [Rehnquist majority] Regulating wages and hours is within commerce power of congress, but is invalid when it runs up against State sovereignty. States are different from private companies, and dictating wages and hours wouldn’t leave much up to the states to determine how to deliver services. The federal gov’t was regulating an integral function of the state, because the employees regulated were police and firefighters. By telling the states what they had to pay, congress was intruding on the state’s own decision making in how to distribute resources among the essential operations of the state. He says that the regulation interferes with integral operations (qualitative) and significantly alters them (quantitative). It’s a mixed opinion to get Blackmun as a 5th vote. Rehnquist wants a qualitative black line, while Blackmun wants a balancing test. What about Fry? Wirtz was overruled, but not Fry, because he didn’t have the votes (Blackmun wouldn’t have overruled). So he had to distinguish Fry because he couldn’t overrule it. This sounds like Blackmun’s concurrence as a balancing test, but is not, it’s a Strict Scrutiny test. To distinguish Fry he points out that Fry was a temporary provision. [Blackmun, concurring] Supports conclusion of court, and adds that interests should be

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balanced. Federal power should be allowed when the federal interest is greater and where state compliance with federal standards is essential. Why do judges want a balancing test? Three or four different times, this is one where the judge is unsure of the doctrine or what the rule should be, so wants to decide on the facts of the case what side has the better balance of the equities. [Brennan, joined by White, Marshall, dissenting] This is a political question and should be left up to congress. They also say there’s a long line of precedents being affected, but they don’t want to recognize anything pre-1938.

Hodel v. Virginia Surface
Can land within a state be regulated by congress through the commerce clause? There’s no doubt that surface mining is an economic activity and affects commerce. [Marshall, majority] Congress has the power under the commerce clause, and no 10th amendment challenge is presented. In the modern court, when someone loses in a prior case but can then write the majority later, he tries to constrain the previous case. So Marshall construes three tests from National League for the 10th amendment: (1) states as states; (2) indisputably attributes of state sovereignty; and (3) traditional gov’t functions. These tests are raised to such a high level, that you couldn’t find anything that would give the state immunity under this test. Marshall adds a footnote here too: Even if the state can show that the regulation meets the above, if the federal interest is still stronger, the federal government wins on balance (Blackmun’s balancing test). Marshall pretty much guts National League here. [Rehnquist, concurring] Outcome is correct, but test is not rational basis, but rather is substantial affect test.

Garcia v. San Antonio Metro
Fair labor standards wage regulation (again). [Blackmun, majority] Courts determining “traditional”, “integral”, or “necessary” services is unworkable, and the political process is the best guard against regulations that would be burdensome to states. [Powell, joined by Burger, Rehnquist, O’Connor, dissenting] “State’s role in our system of government is a matter of constitutional law, not legislative grace”. Making congress the judge of the limits of congress’ power is inconsistent with the constitutional framework. [O’Connor, dissenting] States as states have legitimate interests which the federal governmentt must respect, even though it’s laws are supreme. For federalism to have any meaning, there has to be a limit on the federal government. [Rehnquist, dissenting] Said he shouldn’t have to spell out what will eventually be the majority view in the court.

South Carolina v. Baker
Exemption from federal income tax on interest from state bonds was removed causing states to have to switch to different bonds. SC takes up Justice Powell’s dissent in Garcia and tried to show that the political process really is no protection for the states. [Brennan, majority] The court said that it wasn’t a situation where state’s interests were impaired because of “extraordinary defects in the national political process”. He also said that SC wasn’t deprived of participation in the political process, and that nothing in Garcia or the 10th amendment allows courts to second guess the “substantive basis for congressional legislation”. Since the process wasn’t defective, the 10th amendment doesn’t come into play. The real question is the threshold question as to whether the issue even goes into the political

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process. Once it’s given over to the political process, it’s too problematic for the court to determine how well the political process protected the interests of the parties involved.

N.Y. v. U.S. (1992)
Law required states to take care of nuclear waste created in their jurisdictions. The law provided three “incentives” as well: (1) states with disposal sites could charge other states who created waste; (2) states could increase cost of access to disposal sites or deny access if other states didn’t meet federal requirements; and (3) if state didn’t provide for disposal of waste, they had to take title of it and become responsible for any damages from it (this is a Hobson’s choice—both choices are bad). The only fault in this scheme is the Hobson’s choice presented by the take title provision, as the states were given two bad choices. This is a counter-attack to Garcia. In her dissent to Garcia, O’Connor hints that she wants to overrule Garcia, but she doesn’t here. Instead she distinguishes the cases. [O’Connor, majority] While congress can encourage disposal of waste (see methods below), it can’t just compel states to do so (through the take title provision). Constitutional power given to congress and 10th amendment limit mirror each other. This isn’t the same as congress holding states to the same standard as private entities, to generally applicable laws, but was the congress using the states as implements. Congress can’t “commandeer” the states. In effect, the legislative process of the states is all O’Connor leaves in the “safe harbor” of the states. To influence states, congress can: (1) use the spending power and attach incentives to money (bribes); (2) regulate economic activity under the commerce clause; or (3) conditionally threaten pre-emption of state law under the supremacy clause if states don’t regulate on their own. [White, joined by Blackmun, Stevens, dissenting] The political process didn’t fail here, so the courts can’t step in. The states negotiated for these provisions and congress acted as the referee. Disposal of the waste is a national crisis, and action rather than rhetoric is needed to solve the problem (there’s always a crisis when you want to expand gov’t, isn’t there?). [Stevens, concurring in part, dissenting in part] Congress should have the power to direct the states to implement legislation enacted by congress.

Testa Case
The Supremacy Clause does bind judges to the supremacy of the federal law (textual and structural). The case for this is Martin v. Hunter’s Leassee (The cause, not the court, gives them jurisdiction over the case). So, congress cannot commandeer the legislature or executives of the states, but may commandeer the judicial branch because of both textual requirements and structural requirements. The constitution only creates a supreme court and congress structures the rest. It was expected that state judges would enforce federal law because congress may not have created federal courts at all.

Printz v. U.S.
Federal law required state and local law enforcement officers to conduct background checks on prospective handgun purchasers. This extends the principle that the federal government can’t commandeer the legislative branch (NY v. US) to the executive branches of the states as well. [Scalia, joined by Rehnquist, O’Connor, Kennedy, Thomas, majority] Congress cannot get around the limits on their power by directly ordering state officials to do something, rather than giving them a choice like the take title provision in NY v. US. [Souter, joined by Ginsberg, Breyer, dissenting] By not allowing federal gov’t to use state 28

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employees, fed gov’t then has to create a large new organization to enact this plan. (um, maybe it’s a bad idea then????). [Souter, dissenting additionally] Federalist 27 says that congress can use the state and local employees to carry out their legitimate powers. [Breyer, dissenting] We should look at other nations to see what they do, and they force states to implement broader policies because they believe it interferes less (except that states can’t disagree, which is kind of the whole point here…)

Reno v. Condon
Federal law prohibited state DMV’s from selling personal data. [Rehnquist, unanimous court] This is a generally applicable law like in SC, and so decisions in NY and Printz don’t apply here. Issue is whether the 10th amendment provides a safe harbor for the sovereignty of states to be immune to certain forms of commerce clause legislation—it’s an extrinsic restraint on the commerce clause.

Limits on Federalism
Export Taxation
The constitution completely bans any tax or duty on exports. Originally this was favored by the south to prevent their export dominated economies from being disproportionately taxed. It hasn’t come up very much in the court, but when it does the supreme court has consistently found the ban to be pretty complete. The only real issue is whether something is in the process of being exported, or if it is in a pre-export condition.

Port Preference
This clause was written into the constitution to prevent government from being used to channel traffic towards one port over another. The court has construed it very narrowly, however, and has not stopped Congress from acting when there were large “incidental” preferences given to ports because of bridges being built in one place rather than another, or because one port was dredged more deeply than another.

Import-Export
Originally banned states from taxing imports and exports of either foreign or domestic goods, but that has changed over time. The court has established a test for whether a state tax violates this clause that has three elements: (1) the tax must have prevented the federal government from regulating interstate commerce uniformly; (2) import revenue is diverted from the federal government to the states; or (3) risked interstate disharmony. Thomas has argued for a more original understanding of the clause to replace the dormant commerce clause. This is particularly important because Justice Thomas writes that this should replace the dormant commerce clause cases—that it was designed to carry the water against states being discriminatory against other states, and would allow the court to get out of the complications of the dormant commerce clause.

Dormant Commerce Clause
This occurs when the commerce clause is “asleep”—isn’t being used—and the state passes a law regulating commerce. The idea is that if congress has the power to regulate commerce then that is an exclusive power and no one else can regulate commerce (directly). The contrary argument is that just because the states granted the federal government the power to regulate commerce doesn’t mean that they can’t still do the same.

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[Important: Always ask what the state is doing. What are they regulating? Why are they regulating it?] The [dormant] commerce clause acts as an extrinsic restraint on the police powers of the states. The question is: to what extent does the unused commerce clause operate as an extrinsic restraint on the state’s police power? Analysis Pattern (1) First look at whether any exceptions apply (e.g. has congress entered the field and there is possible pre-emption? is this a privileges and immunities issue? is the state acting as a market participant?) (2) If no exceptions, apply “modern approach”—see below. In other words… the first question is whether there’s some form of preemption, the second question is does the state law discriminate on its face? then you still ask, has Congress permitted it? then did Congress do what it did legitimately? was it within its commerce power? Did it intrude into the central functions of the state? Tests Applied For strict scrutiny the end needs to be compelling, and there can be no less burdensome means. How do you know what’s compelling? It’s very hard to articulate. Compelling means something is so compelling it calls to action. This test is somewhat different in more modern formulations. For rational basis (minimum scrutiny) the end must be a legitimate end and the means must be rationally related—(1) the means are acceptable so long as they are not wholly unrelated to the end; or (2) the means are acceptable unless no rational legislator could have thought the means would accomplish the ends. For intermediate scrutiny the end must be important and the means must substantially accomplish the end. If compelling is difficult, important is more complicated. Also, how much is substantial? That’s tough too. When the courts use this test, they tend to develop it with a peculiarly phrased test for the particular clause of the Constitution. So there are 4 or 5 areas where this test is applied and in each there is a different formula (the other tests are generic for all areas of law).

Historical Approach Gibbons v. Ogden
Both states and the federal government can have the power to tax at the same time because the nature of the taxation is different (concurrent power). On the other hand, if a state tries to regulate interstate commerce it is stepping on a power explicitly granted to the federal government in the constitution. State inspection laws have a large impact on interstate commerce, but govern the preparation of goods for commerce—they act on the subject of the statute before it becomes a good in commerce (qualitative view of commerce). Congress is given no power to enact these laws so they are left to the states.

Wilson v. Black Bird Creek Marsh
Delaware passed law allowing dam to be built on black bird creek that flows into the Delaware river. A sloop owned by Willson that was registered nationally broke the dam to pass down the creek. By definition navigable rivers are instrumentalities of interstate commerce and congress can regulate them. That said, Marshall says that the law passed by Delaware was within the state power. Drying up the marsh would probably be beneficial to the health of the citizens (they thought malaria came from fumes from swamps, they didn’t know about mosquitoes) and would increase the value of the land. So state’s exercising their police powers are ok even if it

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regulates commerce. If there was a congressional act preventing the stopping up of navigable creeks, then the plaintiff would have an argument and the Delaware law would be void, but there was no such law.

Cooley v. Board of Wardens
PA law required all ships entering or leaving port of Philadelphia to hire a local pilot to guide them through the harbor. The case also involved a federal statute saying that pilots in the ports would be regulated by state law. Difference between Cooley and Black Bird Creek is that interstate commerce is being regulated as interstate commerce. 1789 Act of Congress ad referendum (by reference) adopts all the past state laws part of the federal law regulating interstate commerce. The tricky part is that it says that any law the states pass afterwards is ok too. It delegates congressional power to regulate interstate commerce back to the states, and it can’t do that because it’s exclusively given to congress and congress can’t change the constitution—either to delegate the power or to make regulation of commerce concurrent and not exclusive. So we have conflict of two laws—1789 Act (above) and the 1803 PA Law that itself regulates interstate commerce by requiring people to hire PA pilots once in the harbor. The court upholds the 1803 act, but why? The character of the thing being regulated here is so local (geographically unique) in nature, as it’s going to vary from state to state to state. [Rule—This rule is still a good black letter law rule] So, where a state, for a proper purpose (police power) may regulate interstate commerce, if the part of interstate commerce is so parochial, so geographically unique, that it’s appropriate for a state to regulate it in the absence of congressional legislation. A state can’t regulate something that in its nature seems to require a uniform National solution.

DiSanto v. Pennsylvania
Here a state law fee of $50 on travel agents booking people for steamships for foreign travel was held unconstitutional. After the “national” and “local” test from cooley, the courts developed a “direct” or “indirect” distinction. If state laws had a direct impact on interstate commerce they were void, but if the effect was indirect, they were not. In this case Justice Stone says that the direct-indirect approach is too mechanical and just doesn’t work out very well in practice. Instead he proposes a balancing test that looks at the nature of the regulation, the character of the business involved, and the actual effect on the flow of commerce. This somewhat balances national and local interests.

Buck v. Kuykendall
Here Justice Brandeis held unconstitutional the denial of a certificate of convenience (license) to operate an “auto stage line” (bus line) because the purpose was protectionist (preventing competition—commerce) and not for the safety or health of the people (police power). The purpose of the denial was not to promote safety but because the territory was already adequately served by other carriers.

Bradley v. Public Utilities Commission
In contrast to Buck, Justice Brandeis here upheld the denial of a license to operate a trucking line because the road was so congested that adding more traffic would be detrimental to the safety of people on it. This was more of a police power denial than a pre-textual denial seeking to prevent competition.

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In these days roads were regarded similar to the Philadelphia harbor—they were a parochial and very local thing.

Modern Approach
(a) state laws that facially discriminate against interstate commerce are void. If the discrimination is in the end (purpose) then you have virtually in every case it is struck down without the state having a second chance to justify it (one exception is Maine). (b) state laws that are facially neutral as to interstate commerce but have an impermissibly protectionist purpose or effect are void. If there is a discriminatory means to an otherwise legitimate police power end, it’s not per se invalid but will be tested on a strict scrutiny standard —is there some nondiscriminatory reason outside the origin of the products to treat them differently. (c) state laws that are facially neutral but have a disproportionate adverse effect on interstate commerce may be struck down under the balancing approach laid out in Pike. Balancing Test from Pike: If a statute regulates evenhandedly 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 local benefit.

Pike v. Bruce Church
An Arizona statute required that Arizona-grown cantaloupes advertise their state of origin on each package. A producer who grew a high quantity of the goods, transported them to California [which was nearby] to be packed and they were labeled as from Arizona. Then Arizona issued an order required the cantaloupes be packed in Arizona and also have the state of origin on them. This would cost the producer $200,000 to do this. Local balancing test established here for facially neutral laws that have an adverse effect on interstate commerce (see above).

Philadelphia v. New Jersey
NJ passed a law prohibiting importation into the state of solid or liquid wastes, in order to protect the public health, safety, and welfare from the consequences of excessive landfill developments. Philadelphia and other cities challenged the landfill operators under the dormant commerce clause Economic Discrimination can be unconstitutional as a purpose or as a means. Discrimination is the economic disadvantaging of an out-of-state competitor in relation to an in-state business in the same market. This case stands for the principle that where there is discrimination on the face there is a virtual per se rule on invalidity.

Maine v. Taylor
Exception to the rule of “virtually per se invalidity” in regards to a law that facially discriminated against another state. Maine passed a law banning out of state bait fish (a kind of herring used to catch lobster—Nova Scotia made a lot of money sending herring into Maine, but there were parasites in the herring) from being imported into the state, claiming that there would unknown ecological effects, and non discriminatory means of achieving this protection. Is it discriminatory on its face? Yes. Is it a valid interest? yes, the parasites would destroy the local herring. But is there any other less burdensome way to accomplish it? No. The purpose

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is not discriminatory from an economic standpoint, it was to protect the Maine herring population. This is a rare instance where strict scrutiny passes. Only Justice Stevens dissented, stating that Maine did not carry its substantial burden of proving why it can’t meet its needs in the same manner as other states with the same concerns.

Hughes v. Oklahoma
Court held invalid a law that forbid anyone from transporting or shipping minnows for sale out of the state which were procured or raised within the state. [ Justice Brennan writing for the majority] Oklahoma had failed to use nondiscriminatory alternatives, such as placing limits on the number of minnows allowed to be taken in state, or specifying how to get rid of minnows in state. “When a wild animal becomes an article of commerce, its use cannot be limited to the citizens of one state to the exclusion of citizens of another state” [ Justice Rehnquist, joined by Chief Justice Burger, dissenting] State has a substantial interest in preserving and regulating the exploitation of natural resources for the benefit of its own citizens, and the range of regulations a state can adopt to these ends is extremely broad, and the burden in this case on interstate commerce is minimal. Hughes is here to overrule the Natural Resources Exception - Used to be a legal fiction that state owned natural resources in their wild, unappropriated status. Because of this the court allowed states to protect their resources because of the fiction that they owned the resource. This no longer exists.

Oregon Waste Systems v. Dept. of Environmental Quality
Oregon taxed out of state waste more than in-state waste. [ Justice Thomas writing for the 7-2 majority] The different tax was facially discriminatory and violated the per se rule against facially discriminatory laws. Differential taxes might be ok if they somehow compensated for higher costs associated with out-of-state waste disposal, but that was not present in this case. One thing that would be allowed would be an equalization fee that is tied to the services provided or to equalize a state imposed advantage that an out-of-state gives to its own products. A common example is an equalization tax that is tied to an advantage that the other state has given its own producers. So say an OH company pays a 7% sales tax, but buying from IN you only pay 5% sales tax. So if you import from IN and sell in OH products would be cheaper. Therefore OH can create a fee to equalize the tax different.

West Lynn Creamery v. Healy
A state can subsidize an in-state business from the general fund and not subsidize out-of-state business, but it can’t tax all products sold in a market then use the proceeds of the tax to subsidize in-state producers, effectively lowering their prices. This would be just like a tax. [ Justice Stevens wrote for the court] Combining a non-discriminatory tax with a subsidy that would on their own be allowed doesn’t mean the resulting scheme is also constitutional. [ Justice Scalia, joined by Thomas, concurring] Points out that a tax combined with a subsidy from the general fund would be constitutional, but the segregated fund was not. [Chief Justice Rehnquist, joined by Blackmun, dissenting] Subsidy is permissible.

Camps Newfound/Owatonna v. Town of Harrison
Court held invalid a statute giving property tax exemption to charitable organizations within the state, but denying an exemption for any organization whose primary beneficiaries were out-of-state.

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[Stevens for a 5-4 majority] Exemption functionally serves as an export tarriff, and non-profit companies shouldn’t be allowed around the ban on discriminatory laws. [Scalia, joined by Rehnquist, Thomas, and Ginsburg, dissenting] Law was not “facial discrimination”, and was only a narrow tax exemption designed to subsidize or compensate organizations that benefit the public.

Home Processing Requirements Dean Milk v. Madison
Case deals with statute that barred sale of pasteurized milk unless it was processed and bottled within 5 miles of Madison, Wisconsin (that’s as far as their inspectors would go). [Clark for the majority] The statute plainly discriminates against out-of-state pasteurized milk (even though it also discriminates against milk from outside Madison too). So long as some out-of-staters are disadvantaged compared to some in-staters, the law offends the dormant commerce clause, even if some in-staters are also affected. That said, the issue is whether the discrimination can be justified in view of the character of the local interests and the other available methods of protecting them. The state could use its own inspectors (send them to Ill.) if it wants and charge the producers. They could have also used the USDA grade system, but Madison thought their standards were higher. Also, the federal recommended statute doesn’t impose any geographic restriction on milk. The regulation isn’t necessary for the local health interest, but is discriminatory against outof-state commerce and is therefore unconstitutional. [Black, joined by Douglas and Minton, dissenting] The majority is wrong because (1) importers could just pasteurize their milk within the 5 mile limit; (2) regulation in the interest of public health always imposes some burden on trade; and (3) the health regulation shouldn’t be invalidated just because the court believes other methods of inspection would be satisfactory (seems like a political question argument).

C & A Carbone v. Clarkstown
The town built a new waste transfer station and to pay for it they had a private contractor operate it for 5 years. To make sure they made their money, they passed an ordinance requiring all non-hazardous waste in the town to be sent to the station. Carbone, a private recycler with a sorting facility in Clarkstown wanted to send his non-hazardous waste to a cheaper facility out of state. [Kennedy for the majority] The immediate effect of the ordinance may be to ship trash to the local station, but its effects are interstate as it prevents out-of-state processors from accessing the local market. Discrimination against interstate commerce in favor of local business or investment is per se invalid unless the municipality can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest (this seems more strict than Dean Milk). Revenue generation is not a local interest that can justify discrimination against interstate commerce (improper purpose). That said, the local government could have directly subsidized the facility. The difference it that the people paying the taxes would have been instaters. The problem is that the tax would burden the out-of-staters to help a local in-state interest, and the out-of-staters would have no political accountability—this is a McCulloch v. Maryland principle if you think about it. [O’Connor, concurring] The local waste processing monopoly is facially discriminatory against out-of-state processors. That said, it differs from other local processor type laws by designating one beneficiary rather than a geographic area that benefits—local and out-ofstate processors are hurt, not just out-of-state. That said, the statute is still unconstitutional under a Pike balancing test as it has an indirect

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effect on interstate commerce. [Souter, Rehnquist, and Blackmun, dissenting] Because the statute only selects one company and not a geographical region, it is different that precedent. The processing station is essentially a local government facility that is just run by a contractor, and is different than a private business being regulated.

United Haulers v. Oneida-Herkimer Solid Waste Management
Very similar to Carbone, but the law requires haulers to bring waste to facilities owned and operated by a state-created public benefit corporation. [Roberts for the court] The owner of the facility matters constitutionally. Waste disposal is a traditional government role, and laws favor the government in these areas, but treat every private business—in-state or out-of-state—the same. Unlike private enterprise, local government has the responsibility of protecting the health, welfare, and safety of its citizens. Also, waste disposal is a traditional role of government (harkens back to National League of Cities which was trying to create a safe harbor to state concerns from the commerce power— which was then overruled in Garcia, but here he’s saying it does have a safe harbor when the congress hasn’t acted). So the state is protected from a charge of discrimination where the congress hasn’t acted and there is a public traditional government service being provided (phrasing here is bad). Also, the burden of the law in this case—more expensive trash removal—falls on the people who voted for it. It doesn’t shift the burden to another state. [Scalia concurred in part] [Thomas concurred in the judgment, expressed regret for voting in the majority in Carbone, and stated that the entire Dormant Commerce Clause should be discarded] [Alito, joined by Stevens and Kennedy, dissenting] Government ownership of facilities is not a meaningful distinction from Carbone. The court should subject discriminatory legislation to strict scrutiny and not make an exception for state-owned entities. Governments will always discriminate in favor of state-owned entities to protect them and their employees over private entities.

Facially Neutral Laws with Protectionist Purpose or Effect Baldwin v. G.A.F. Seelig
[Cardozo, writing for the court] New York passed a law outlawing the sale of milk produced out of state and purchased for less than it would cost to buy in New York. If this is allowed it would set up a barrier to trade. The state argued that if they don’t protect the farmers they wouldn’t be able to stay in business and then New York’s supply of milk could be threatened. Economic welfare is always related to health, because there is no health if men are starving. The state is just trying to use the health excuse to get around a trade restriction.

H.P. Hood & Sons v. DuMond
Boston milk distributor already had 3 licenses for depots in NY and wanted a 4th depot. Commissioner in NY denied the 4th license saying that new licenses can’t be granted unless it would not tend to create destructive competition in a market already adequately served. [ Jackson, for the court] Denying new license is the same as preventing a new producer, so license should have been granted. [Black and Murphy, dissenting] The court shouldn’t step in and add a discriminatory intent to a law that has none in its language. Even if it’s an unwise law, that’s up to the legislature to figure out.

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[Frankfurter and Rutledge, dissenting] States should be able to deny a license if the competition would be destructive and the interstate commerce that’s impacted is minor.

Identifying Protectionism in Facially Neutral Laws Hunt v. Washington Apple Avertising
NC law prohibited any marking on closed containers of apples other than USDA marking. Washington, however, had its own standard and was one of largest apple producers, so NC requirements caused problems for Washington when trying to sell apples in NC. NC wanted to help wholesalers here under the guise of protecting the consumer from confusion—the statute was clearly to discriminate against Washington apples. [Burger, for the court] Even if the state passes a law for a legitimate local concern, the analysis doesn’t end there. If the law burdens interstate commerce and discriminates against other states, it may be found unconstitutional. This law discriminated against out-of-state growers because NC growers didn’t have to alter their practices. Also, the law had the effect of reducing Washington’s competitive advantage of a better inspection and grading system. Finally, it leveled the playing field in a way that protected local business from out-of-state business. In addition, the state could have allowed both markings which would not have been discriminatory. Burger says there was balancing but it never happened because his opinion was all over and never really balanced.

Exxon v. Governor of Maryland
Law prohibited producers or refiners from operating gas stations in Maryland because Maryland had found that they discriminated against other gas stations during the 1973 shortage. All gasoline is imported into Maryland. As a result, Exxon had to divest gas stations it owned, while local gas station owners didn’t have to do anything, nor did larger chains of gas distributors who did not refine or produce gas. This case stands for that the out-of-stater has to be in the same market as the in-stater to make a charge of discrimination. [Stevens, for the court] Since all of the commerce in gasoline to Maryland is interstate, this law is not discriminatory. [Blackmun, dissenting] Just showing a burden on interstate commerce isn’t enough to make a law unconstitutional, but when the burden is severe enough (he lists factors), it becomes unconstitutional.

Minnesota v. Clover Leaf Creamery
State law banned retail sale of milk in non-returnable plastic containers, but allowed nonreturnable containers made of pulpwood (cardboard). Resin used to make plastic containers came from out-of-state while pulpwood was a major product in MN. MN argued the nonreturnable plastic containers presented a solid waste problem. [Brennan, for 6-2 majority] The plastic resin will still be used in other products and presumably some out of state manufacturers will provide pulpwood, so the burden isn’t very great. Burden is not “clearly excessive” in light of the substantial state interest in promoting conservation of energy and other natural resources as well as easing solid waste disposal problems (balancing test)—law is upheld because the interest is so great.

Facially Neutral Laws with a Disproportionate Adverse Effect on Commerce
Laws that are neither discriminatory nor protectionist and are facially neutral may still be struck down under the Court’s residual balancing test. It’s residual because it’s the last step in the

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analysis.

Pike v. Bruce Church
Arizona required all Arizona-grown cantaloupes to be marked as Arizona grown. Church grew cantaloupes in AZ but then imported them into CA for packaging but did not mark them as AZ grown. AZ issued an order prohibiting the shipping of the melons and requiring that they be packaged in AZ. [Stewart, for the unanimous court] “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 putative local benefits.” AZ law didn’t have purpose or design to effect safety standards or health requirements, but only served to protect and enhance the reputation of growers in AZ. State feels it’s losing out on the benefit of Church growing great melons in their state. But that “tenuous” interest is outweighed by the $200,000 burden the order would place on Church. Authors of the book were pushing for a balancing test and they thought they got it in Pike v. Bruce Church. Why did they have a balancing test? The progressive movement thought that the decisions a democratic polity ought to make are done by the legislative process and for the most part the state should hold back. But if there’s a conflict between the state and federal government, the courts should use the same kind of process and balance the interests to see where the equities came out. Though this book keeps saying that the Pike test is the test, it never took. The test is almost never used, as the court doesn’t get to balancing because it finds the purpose was discriminatory, or that the state was trying to regulate interstate commerce, or that it goes to strict scrutiny.

Kassel v. Consolidated Freightways
State law in IA established truth length requirements. Border towns in IA though could accept trucks that were longer. [Powell, joined by White, Blackmun, and Stevens] Does an Iowa statute banning large trucks within the State unconstitutionally burden interstate commerce? Iowa argues that the double trucks are more dangerous. Just saying that a law is meant for safety doesn’t prevent it from being attacked under the commerce clause. There’s no local interest being effectuated because the longer trucks were just as safe as the shorter trucks. Is it discriminatory? Farm vehicles were exempted, and some in-state drivers could have been exempted. Also, Iowa’s law was out of step with other states which substantially burdens the flow of goods by truck. [Brennan and Marshall, concurring] Constitutional judgment of the court shouldn’t depend on the findings of the trial court or the arguments in litigation, but should depend on the intentions of the state legislators. In that case, they intended to reduce truck traffic through Iowa. This purpose is protectionist and unconstitutional. Brennan wants to use a balancing test, but the case is decided mostly on grounds other than balancing. [Rehnquist, Burger, and Stewart, dissenting] Forcing Iowa to change its laws because of independent business decision by trucking company has the effect of forcing Iowa to conform to the laws of other states. The regulation was a safety regulation and the state is allowed to pass that law. The problem with the concurring opinion is that legislatures can come up with whatever actual purpose they want.

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Balancing Interstate Harm Against Local Benefit South Carolina v. Barnwell
Court upheld a law banning trucks of a larger size. About 85-90% of all trucks in the country would exceed the limit. The court reasoned that state highways were owned by states and that it was a local issue for them to protect their roads with the law.

Southern Pacific v. Arizona
Court invalidated a law limiting the length of trains passing through the state on the grounds that law burdened interstate commerce because it would hinder a national train system, and because the safety benefit of the law was slight. Justice Stone was pressing for the balancing test here, which then gets put into Pike.

Bibb v. Navajo Freight Lines
IL required different kind of mud guards on trucks than the rest of the country so the law was invalidated. Local safety measure was non-discriminatory but placed an unconstitutional burden on interstate commerce. This case and Kassel limit the extents of the Cooley test. Cooley says that there are some local peculiar regulations that can be allowed (traditionally highways were), but not when there is a need for uniformity nationally, and then Congress should step in. We can see that there is a need for a uniform national rule from Congress if the state imposes something that constitutes a multiple inconsistent burden—multiple rules in different states that are inconsistent. So if states have different laws on the same subject law, then that’s an indication that we need a uniform rule and states should get out of it and let congress handle it. This also happened in the Kassel case, some states allowed the double truck and some forbade it. This isn’t balancing, we aren’t talking about the amount of burden, but the kind of burden that is different from state to state.

Exceptions and Alternatives Market Participant Exception
The market participant exception allows a state to favor its own residents in the course of its own dealings as a participant in the market (rather than a regulator). It doesn’t, however, permit the state to regulate other private parties in their dealings with the state-owned entity. Dormant Commerce Clause applies when states are regulating commerce (acting as a sovereign entity) to constrain the states in what they can do in relation to interstate commerce. The Clause has no impact when the state is not regulating, but merely acting as it were a private business actor (nature of the action, not necessarily who’s doing it or what it’s called). Why? Because the Commerce Clause is a grant of sovereign authority to Congress to regulate interstate commerce, but when the State is acting as a private actor, it’s not intruding into the powers granted to Congress.

Hughes v. Alexandria SCrap
State wanted to reduce the number of Maryland-licensed junk cars. The state put a bounty on the junk cars and required more stringent documentation for out-of-state buyers than in-state scrap processors. The court upheld the program because it said that the commerce clause is not concerned with a state becoming a market participant in the absence of congressional action, favoring its own citizens in the process.

Reeves v. Stake

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State of South Dakota sold cement from a state-owned plant only to state residents. The court upheld the plan because of the “long recognized” right of a trader or manufacturer in private business to deal with whoever he wanted to deal with (absent a statute contrary). If it was discriminating on the basis of race, then the equal protection clause would apply. Discriminating based on locale is ok with regards to the dormant commerce clause.

White v. Massachussetts Council of Construction Employers
Mayor of Boston ordered that all construction projects funded in whole or in part by city funds or city-administered funds had to be performed by a workforce of at least 50% city residents. The plan was upheld because everyone was, in effect, working for the city.

South-Central Timber v. Wunnicke
Alaska sold state owned timber and required that it be processed in Alaska before being shipped elsewhere. South-Central sued alleging that the arrangement violated the Dormant Commerce Clause. [White, for the court] The State can impose burdens on commerce within the market in which it is a participant, but cannot impose conditions that have a substantial regulatory effect outside of that particular market. The state can’t use the market participant exception to regulate the downstream timber processing market that it does not participate in. The two markets were: (1) harvesting of lumber; and (2) processing of lumber. The state regulation was a pre-textual way of regulating an out-of-state downstream market to benefit an in-state upstream market. [Rehnquist, O’Connor, dissenting] This program is no different than the others if you really think about it, and should be upheld.

Twenty-First Amendment
In addition to repealing the 18th amendment (prohibition) the 21st amendment says that no one can import alcohol into or transport it through any state in violation of the state’s laws. At first some though this gave states total control over alcohol sales, even in violation of the Import-Export Tax Clause or the Commerce Clause. The supreme court, however, has chipped away at it and now a state can decide to be dry or regulate other aspects of liquor control such as drinking age, but that’s about it, as the state control of liquor is subject to the power of congress under the dormant commerce clause and other extrinsic limits of state power (spending power, necessary and proper clause, commerce clause, import-export tax clause). The states can’t now favor their own wine industry against other state’s wine industries, for example.

Privileges and Immunities Clause
The Privileges and Immunities clause serves as a restraint on state efforts to bar out-of-staters from access to local resources. Corporations are not protected by the privileges and immunities clause. The privileges and immunities clause is a rights clause that Congress cannot waive. The clause does not extend to all commercial activity but only the exercise of “fundamental rights”. Analysis Pattern: (1) is the state discriminating against an out of stater? (2) is the activity a fundamental right? What are the activities that constitute fundamental rights for the purposes of the Privilege 39

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and Immunities Clause? There are only a few, but the most important one is the right to a lawful calling (work, craft, occupation), it’s the idea of free labor. The other two privileges that it seems to protect are the right of access to the courts of the forum state (procedural right), and it also includes the right to travel. (3) then state has to justify the discrimination (burden is on the state to come up with this, not for the courts to think it up) What standard does the court apply to the justification? Intermediate Scrutiny: the end must be important and the means must substantially accomplish the end. When the courts use this test, they tend to develop it with a peculiarly phrased test for the particular clause of the Constitution. So there are 4 or 5 areas where this test is applied and in each there is a different formula (the other tests are generic for all areas of law).

United Building & Construction Trades v. Camden
Camden required that at least 40% of the labor working for a developer/contractor on city jobs be a resident of the city. The developer/contractor also had to ensure that subcontractors complied with the regulation. [Rehnquist, for the court] Rehnquist says that under the Dormant Commerce Clause you can do this, but not under the Privileges and Immunities Clause (It does not protect corporations in any case). The only privileges and immunities protected are those that are fundamental rights (see above). A common calling is one of the fundamental rights protected by the clause, and here that applies even though the funding of the work was provided by the city. For the law to be upheld, the state must justify it by showing that nonresidents constitute a particular source of the evil at which the statute is aimed. Here, there have been no findings of fact on this issue so the case is remanded. [Blackmun, dissenting] There is a difference between cities and states with regards to the Privileges and Immunities clause. (Rehnquist answered by saying there isn’t, and that this was a state-wide program that cities could take advantage of anyways)

Baldwin v. Montana Fish and Game Comission
The court upheld a Montana licensing scheme imposing substantially higher fees on nonresidents than on residents. Elk hunting was not a fundamental right—it’s not a common calling, it’s recreation. But what if the statute burdened out-of-state hunting guides more than in-state guides? That would probably be prohibited as being a guide would be a lawful calling.

Hicklin v. Orbeck
Unanimous decision invalidating an Alaskan law requiring that residents be preferred over non-residents in certain jobs.

Supreme Court of New Hampshire v. Piper
State law in New Hampshire barring non-residents, even those who passed the state bar exam, from practicing law in the state violated the Privileges and Immunities clause. [Powell, for the court] Practice of law is like other occupations in previous cases in that it is important to the national economy. [Rehnquist, dissenting] Practice of law is fundamentally different from other occupations. State has an interest in increasing the pool of resident lawyers to pull from when selecting lawmakers (seems weak).

Pre-Emption
First question with regards to state and congressional actions should be whether there’s a congressional act, then whether it preempts the state action, and if not, if the dormant

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commerce clause applies. Congress may preempt state power to regulate in three ways: (1) by express statement (express pre-emption). In this case, the only question is whether state statue fits under the federal regulation. (2) by implied occupation of a regulatory field ( field pre-emption) Only two types of fields: one that’s left to the states, or one that was intended to be federal. If the constitution seems to show that the area is regulated by the federal government, state regulation is highly disfavored in that area, and the burden is on the state to show that the state is not intruding on the federal interest (e.g. foreign affairs). If it’s an area covered traditionally by state police power, the question is whether Congress intended to legitimately exercise it’s power in that area by: (1) congress making a clear statement—Congress must say so in the text of the law pretty clearly that Congress intended to regulate the entire field; (2) the scheme of federal regulation is so pervasive that it left no room for states to supplement; or (3) the act of Congress touches on a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. If whole field taken over by Congress, then no state laws, even if they don’t conflict with the law, can apply to the field. or (3) by implied preclusion of conflicting state regulations (conflict pre-emption). Congress doesn’t occupy the whole field, the state uses its legitimate police power, and congress uses its legitimate powers in a particular area. The question is, as a matter of fact, does the state law impede the federal law. Two phrases court uses to determine if state law impedes federal law: (1) [Hines] “Rather, the court must look at, under the circumstances of the case, whether the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress”; or (2) [Florida Lime] Conflict preemption applies where “compliance with both federal and state regulations is a physical impossibility”.

Supremacy Clause
When state and federal laws conflict, federal laws pre-empt state laws, as long as they are constitutional. Pre-emption occurs when congress intends a law to pre-empt state law. Treaties also fall under this clause, and are treated as supreme law if self-activating. Non-self-activating means congress has to take action to make them effective.

Pacific Gas & Electric v. State Energy Comission
CA state law enacted a moratorium on certification of nuke plants until the federal government acted to provide a way to dispose of the nuclear waste. Utility company argues this State law can’t stand because the statute is pre-empted by the Atomic Energy Act of 1954. [White, for the court] Court upholds the state law, as the field occupied by the federal statute was safety, and CA argued the state statute was regulating an economic issue. Analysis: (1) Is there express preemption? No, the act didn’t say explicitly that State’s couldn’t regulate. (2) Is there field preemption? No. The field the AEA was occupying was the safety of the operation of nuclear plants which is a traditional state function. Not enough waste disposal seems like safety, but the state lawyers argued that the issue was economic not safety—if there’s no economically viable way to store your waste, then you can’t build a new plant. What if CA simply wanted it more safe? Then the question is whether congress wanted

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their regulations to be the only game in town, or whether they were ok with additional regulations. But what if the state was acting pre-textually, saying they wanted nuclear plants to be very safe so much to block their construction? The utility company could then argue it was pretext and impeding the federal purpose. White didn’t like to go behind the text of the law, however, and would say as long as there’s a fair way to say the state truly wants to regulate for its stated purpose, it should be allowed.

Rice v. Santa Fe Elevator
Congress regulated grain warehousing standards, which were traditionally an area of State regulation. The court then assumes that the State was not preempted unless it was the clear and manifest purpose of Congress which can be manifested in many ways: (1) the scheme of federal regulation is so pervasive… ; or (2) the act of Congress touches on a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. This case explains formulations of field regulation. It’s a good explanation of the kind of standards used to determine if Congress intended to occupy the whole field.

Hines v. Davidowitz
Court barred enforcement of PA’s alien registration act of 1939. the Court stated that when the Congress has enacted a complete scheme of regulation, the states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations. There is no formula to determine the purpose of Congress. Rather, the court must look at, under the circumstances of the case, whether the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Did PA law complement or conflict with Congress?

Florida Lime & Avocado Growers v. Paul
Avacados were mature per federal standards but had less than the minimum California oil content. Question was whether the federal regulation was in conflict with CA’s discriminatory rule. [Exam Point] These cases are very fact specific, and it takes a lot of good lawyering to argue these cases. [Brennan, for the court] There wasn’t an actual conflict (it must be pretty evident), and that the federal law wasn’t uniform but just set minimums. Congress did not intend to preempt the state regulation of agriculture. [White, joined by Black, Douglas, and Clark, dissenting] Supremacy Clause bars application of CA’s inconsistent and conflicting legislation. Federal scheme is a comprehensive regulatory program on the face of the law.

Gade v. National Solid Wastes Management
IL state regulations for workers handling hazardous waste were preempted by federal OHSA regulations, even though State regulations aimed both at safety and public health. Here, all the justices read the facts differently. [O’Connor, plurality opinion] Found that there was conflicting preemption, and read the federal scheme to forbid duplicative regulation. [Kennedy, concurring in part] Found express preemption. [Souter, joined by Blackmun, Stevens, and Thomas, dissenting] Plurality departed from presumption that historic state powers may not be superseded without clear showing of Congressional intent.

Crosby v. National Foreign Trade Council
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MA law banned state entities (not private citizens) from buying goods or services from companies doing business with Burma. [Souter, for the court] Congress’s passing of federal mandatory and conditional sanctions against Burma preempted MA law since MA law’s more stringent and inflexible provisions were an obstacle to the accomplishment of Congress’s objectives. It’s as if Congress intended the President to occupy the field of human rights sanctions.

Zschernig v. Miller
Oregon law during cold war said that if foreigner would receive money under OR’s intestities statute from a relative who died in OR, he could receive it so long as the foreigners country would give an Oregonian the same rights if they died in the foreign country. This came up in East Germany as East Germany did not allow estates to transfer to foreigners upon death. Douglas said this is a foreign affairs area and the state can’t regulate the relationship with foreign countries.

Congressional Consent
In this situation, absent Congressional intervention, the Court would manifestly find discrimination contrary to the Dormant Commerce Clause. Congress has the power exclusively to regulate interstate commerce. Congress could pass a law discriminating in favor of certain businesses over others (could subsidize railroads over canals). Since Congress can discriminate on their own, can they discriminate by allowing states, subject to Congressional approval, to discriminate? Congress isn’t telling the states what to do, but is leaving it up to them. Congress cannot consent to a state practice that congress itself would be prohibited from exercising.

Prudential Insurance v. Benjamin
In the 19th century, insurance was not considered commerce by the Court, but was considered contract. In 1944, court says insurance companies are part of interstate commerce. The states then got together and got Congress to pass the McCarren act allowing the States to discriminate. In this era, the court will pay attention to rights arguments, but not structural arguments as to limits on the commerce clause. Congress passed the McCarran Act giving states the power to regulate insurance. An NJ insurer objected to a tax imposed by SC on business done in SC, when other insurers in SC didn’t have to pay the tax. The court found that the tax was discriminatory and invalid under the Dormant Commerce Clause, but that the McCarran Act validated the tax. This case leads into Justice Thomas’ argument: If the state is regulating something that interferes with commerce, leave it up to Congress to handle it unless it conflicts with the Import-Export Clause.

White v. Massachussetts Construction Council
Case about the % of workers on Boston projects. Projects were funded by the city as well as federal agencies. When restrictions imposed by the city on construction projects financed in part by federal funds are directed by Congress then no Dormant Commerce Clause issue is presented. Federal Spending Power is not limited by the Commerce Clause even if it interferes with the Commerce Clause.

Equal Protection
Suppose it’s an insurance case, and there’s discrimination by a host state against PA insurance company or agency (differential taxes, licensing requirements, etc.). Can’t use PI 43

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clause because it’s a corporation, so your’e stuck with dormant commerce clause, but state raises McCarren act for consent, and it allows it. Do you have any last resort? Equal protection clause of the 14th amendment is a true last resort. You only get a higher level of scrutiny if discrimination is based on race or gender. As a corporation the burden is just minimum rationality, so you’d have to show that the discrimination doesn’t even meet minimum rationality. We don’t know how far the court will go on equal protection, but you still have a case—you’d have to show that state law didn’t pursue legitimate state interest, or means were so irrational that they don’t even pass minimum scrutiny. How do you argue that mccarren act is unconstitutional? One way, insurance is not commerce, but the court held that it is. Even if it is not commerce, it still has economic effects, and you’d have to argue that it doesn’t substantially effect the interstate market, but that’d be very difficult.

Metropolitan Life Insurance v. Ward
McCarran Act exempts insurance industry from Commerce Clause constrictions only, but not from other Constitutional restraints such as equal protection.

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TAXATION POWERS
Bailey v. Drexel Furniture
Child labor tax case. Congress enacted huge tax that acted as a penalty if companies didn’t follow strict guidelines as to age of workers. Even though the court approaches these kinds of situations with a presumption of validity, the motive behind this tax is plain in the language of the law—the tax is merely pretext for regulating something the Congress cannot otherwise reach (Hammer v. Dagenhart). The court cites Justice Marshall’s McCulloch discussion of pretext. Court holds tax unconstitutional based on the above. The tax in this case was a penalty, not a tax, because it went too far in its extent. How could they tell if it’s a penalty? The tax was 10% of their whole income even if only one child worked for them. A tax would be geared to the number of times you do the activity, but this punished you regardless of how many children were employed. Coercive power of the state to force you to do something is the sovereign power of the state. Penalties invoke this kind of power. Taxing is a separate power with the purpose of raising revenue. If tax becomes a penalty, it moves from a tax to a penalty and impedes on the police powers of the states (10th amendment).

Veazie Bank v. Fenno
Art 1, § 9 prohibited the states from creating their own currency. States got around that by chartering private banks who could then issue bank notes. A federal law increased a tax on the circulating notes of persons and state banks. The argument against the tax was that it was excessive. The court upheld the tax by saying that since the federal government is the source of currency, it can regulate that currency—the tax was in pursuance of a delegated power, so it was ok.

McCray v. U.S.
Tax on margarine was challenged as excessively high, and court upheld tax saying that Congress could choose the subject of its taxation, and that the motive for doing so did not invalidate the tax. Congress does not have the power in this era (qualitative era) to regulate margarine to benefit dairy farmers, so how could they uphold the tax? There were two motives in the tax: to earn revenue, and to discourage behavior. The court finds that every tax discourages the behavior taxed. But the problem is at what point does the tax become excessive? The court doesn’t decide, and says that as long as it produces some revenue, and the schedule of the tax is neutral, then it will be upheld.

U.S. v. Doremus
Drug regulation case. Opium and coca were taxed and their sale and distribution heavily regulated/ supervised. Court upheld the tax even though another motive, not on the face of the tax, might have been behind Congress’s passing of the tax. The regulation must be reasonably related to the collecting of the tax—if it goes beyond what is reasonably related to collect the tax, then it’s a pretext.

U.S. v. Kahriger
The court upheld a federal tax on gambling. Challenger of the law claimed that Congress used the tax power as a pretext to penalize illegal intrastate gambling and was moving into an area occupied by the state’s police

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powers. The court upheld the tax saying that the possible ulterior motives didn’t matter, and that it also generated significant revenue as a tax. The majority here was just trying to get out of the way of Congress, which was the policy at the time. The tax must still be reasonably related to the collection of the tax, and must not be a pretext for getting to powers not granted to Congress. Tax is bad if: (1) it is too coercive; (2) it appears to be a regulation because (a) it’s not reasonably related to the raising of revenue or (b) the whole methodology looks like a penalty; and (3) there are extrinsic restraints (bill of rights, etc.). These are the limitations, but the court has only applied them in the child labor tax case.

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SPENDING POWERS
Two questions in the spending clause: (1) Is the spending power tied to a delegated power of Congress? Can congress only spend to accomplish a delegated end? (2) How general does the spending need to be to be for the “general welfare”? How particular must the project be for the court to say that the spending isn’t general enough??

Historical Views on Spending Power
Madison believed that spending was limited to the enumerated powers. Hamilton believed that spending was a nearly unlimited plenary power that is freestanding, limited only by the general welfare clause. James Monroe believed that the general welfare clause only referred to national.

Limits On the Spending Power
Congress can pass regulations to effectuate the spending, but can’t directly regulate under the general welfare clause. Only limit in the spending power would be NY v. US (nuclear waste case), can’t be used to coerce the states —they have to say yes or no. Intrinsic limit on the power is that there has to be a choice. Executive branch has to lay out how the money is going to be spent—that’s faithfully executing the law.

U.S. v. Butler
Act tried to control farming by allowing payment to farmers for reducing their farmed land. Court held that regulation of agriculture was a province of the states and that the act was not a valid exercise of the power to spend for the general welfare. The taxing and spending to control agricultural production is a means to an unconstitutional ends, and is pretext (citing Marshall in McCulloch). Government argues that this is different from child labor case because participation is voluntary, but court says it’s not because the farmers who don’t participate lose out on benefits that others gain (power to confer or withhold benefits is power to coerce or destroy). Dissent argues that threat of loss, not hope of gain, is economic coercion.

Steward Machine v. Davis
Court upheld unemployment compensation portions of social security act. Act imposed payroll tax on employers that went into general funds. A credit provision of the tax gave employers credit for up to 90% of the tax for contributions made to a state unemployment fund certified by a federal agency. Steward wanted a tax refund for taxes paid to the federal government. Justice Cardozo says that the states were not coerced, and rather the program is the states and federal government working together to solve a problem.

Helvering v. Davis
Court upheld old age benefits portions of social security act. Congress imposed a federal tax to provide for spending of the benefits.

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Justice Cardozo said that the spending was for the general welfare and that Congress wasn’t abusing its power.

South Dakota v. Dole
South Dakota opposed federal government using highway fund qualifications to impose drinking age of 21. The rule is that the regulation must be reasonably related to the purpose of the appropriation/expenditure. O’Connor’s definition of purpose is more narrow than Rehnquist’s. [ Justice Rehnquist, for the court] wrote that the policy was upheld under congress’ broad spending power to benefit the general welfare. Congress can attach objectives outside its normal reach as conditions to its spending. This power isn’t unlimited, however, as the purpose must be for the general welfare, the states must accept the funds, the ends must be legitimate (huh?), and there might be other bars in the constitution to the spending. Here the goal was to improve safety of interstate travel (lol). The state argued that the 21st amendment prevented the congress from directly regulating the drinking age. The court holds that this is true, but in this case the spending power is being used to entice the states—they aren’t being regulated directly. The spending here was not coercion because the amount of funds involve is relatively small. [ Justice O’Conner, dissenting] argues that the regulation of liquor is prohibited by the 21st amendment and essentially that the spending is pretext. Equal protection issue dividing irrationally between those under 21 and those above 21. She says the purpose of the spending was to create physically constructed safe bridges or highways having nothing to do with who is driving on them, and the regulation is a backhanded way to get to a liquor control law.

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NATIONAL FEDERATION OF INDEPENDENT BUSINESS V. SEBELIUS
Affordable Care Act attempts to make health care less expensive and health insurance more ubiquitous. Allowing pre-existing conditions, however, would drive costs up as people would just wait to get coverage until they needed it. To counter this Congress created the “individual mandate” that penalized people who did not purchase insurance. Issue is if you can make people purchase health insurance who do not have it, or tax/penalize them.

Commerce Power
[ Justice Ginsberg dissent] Everyone’s already involved in healthcare (strongest argument for the government). Her second argument is that even if you aren’t in the insurance market now, you create an economic “free rider” burden on the market that can be proven, especially when you attach that to the preexisting conditions policy. Huge economic cost shifting problem. [ Justice Roberts response to Ginsberg] His first response is that the power to regulate something presupposes that the economic activity exists to be regulated—you don’t regulate something that doesn’t exist, but only on something that already exists—it’s not the power to create commerce. Once regulation exists, it’s a nonjusticiable part of the commerce power. So activity has to exist for there to be regulation. This does not reverse any precedents on the commerce power since 1938, but if you take this case and Lopez, the court is sort of creating a qualitative threshold to the commerce power (don’t over state this). But can Congress regulate inactivity because of substantial effects on interstate commerce? No, all inactivity in every market has an effect. The argument is that you prove too much, and leaves no limit to the power, making the concept of a defined power nonsensical. He says that people aren’t in the market for healthcare outside of buying and selling. [Dissent] Forgoing participation in an interstate market is not commercial activity.

Tax Power
Anti-Injunction Act says that no person who thinks that a congressionally passed tax is unconstitutional can ask for an injunction not to collect the tax, you have to wait until the tax is paid and then you can request a refund. Roberts says that for the purposes of the anti-injunction act, it’s a penalty, but for the purposes of the Constitution, it’s a tax. He says the reason is that the anti-injunction act is a statute, and Congress can change its obligations under the statute, and by calling this a penalty, Congress was saying that the anti-injunction act does not apply. He then argues that it’s a tax in its nature because it produces some income, and there is no scienter (mens rea) requirement. So why did Roberts make it a tax? Principle of statutory interpretation is bring a statute within the constitution if there’s a reasonable way to do so. It’s just a matter of judgement at that point. Because it’s a tax, you aren’t compelled to purchase health insurance. It’s still your choice, even if tax is levied upon you. If you were forced to purchase it, it would have been a regulation. [Dissent—full dissent has better arguments] argues that the majority is rewriting the statute, as congress said no such thing regarding tax v. penalty distinction, and that the court should not impose taxes by rewriting what Congress had said. Dissent makes mincemeat of the scienter argument, as we have plenty of criminal acts that don’t require

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mens rea (strict liability). Dissent thinks its a penalty, and therefore invalid under the tax power.

Spending Power
This is the first case, at least since the 1930s, where the spending power has been held to go too far. This is a quantitative test of the spending power. Regulation placed on medicaid were so onerous that the States didn’t really have a choice—the inducement went too far, “your money or your life”. In the NY v. US case, it was more of a qualitative test, as Congress didn’t have the power to force another sovereign—the states—to take title to property or pass a regulation that they want it to pass. They can only induce a behavior. Vote on this clause was 7-2 against, saying that it’s too far. All other elements were 5-4.

Necessary and Proper
First case Prof. Forte can recall where exercise of Necessary and Proper clause was struck down. Point Roberts makes is the same kind of point in Justice Thomas’ dissent in the Raich case. In that case, Thomas distinguished Necessary from Proper. In Comstock case, they’re talking about Necesary—the logical relationship between the thing being regulated and the end sought to be achieved. In Thomas’ dissent in the Comstock case, he is concerned about Proper— he doesn’t see a relation to a Proper end, and it wasn’t articulated. This is the same as saying it’s not within the scope of the enumerated powers. Necessary is the effective connection between means and ends, and Proper is the logical connection. Justice Roberts in this case says it must be related to a Proper end, and the commerce power is not a Proper end. The second point Roberts makes is to try to distinguish the Raich case, specifically Scalia’s concurrence. He says the logic would be good if people were in the health care market. In Raich, the local growers of marijuana were in the marijuana market.

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FOREIGN AFFAIRS
War Power
Where does the “war power” come from? War power has a lot of domestic impact much more than foreign affairs, so the War Power is spoken of as a separate power, and is inferred from the grant of other powers to Congress such as to raise and equip an Army and Navy. Some say the War Power is just another term for textually given and granted powers. An alternative argument is that this is an unenumerated power, freestanding.

Woods v. Miller
Continuation of rent control in Washington during WWII. Assuming that the war power exists, rent control over private contracts can only be legitimate under what power? The necessary and proper clause to help execute a war power efficiently. This is a scary power, which is why Justice Jackson concurs (he had just come back from presiding over Nuremberg trials and was sensitive to the problems of war making powers of central governments). How do we know we’re at war? Have to look at both legal status of war and immediate effects of that legal status. Here, no treaty with Japan, troops still abroad, etc.

Treaties
The treaty power is limited to agreements with foreign powers under international law that is a matter of international concern. However, under international law, everything is a matter of international concern except those matters forbidden by peremptory norms of international law (e.g. piracy, slave trade). One possible exception is that a treaty is invalid if it contravenes a notorious known restriction on one of the parties by its own domestic law. Extrinsic constitutional restraint limits the treaty power and is shown in Reid v. Covert. No cases to hold that a treaty is limited extrinsically, but it’s held universally that the principle of Reid applies to treaties as well. Treaties are subject to extrinsic restraints (Bill of Rights, etc.).

Treaties and Domestic Law
(1) A non-self-executing treaty does not supersede previously passed federal law or state law unless the treaty’s provisions have been “executed” into domestic law by a properly passed federal statute. (2) An international agreement of the United States is “non-self-executing” if (a) the agreement manifests an intention that it shall not become effective as domestic law without the enactment of implementing legislation; or (b) the Senate in giving consent to a treaty, or Congress by resolution, requires implementing legislation; or (c) implementing regulation is constitutionally required. (3) A self-executing treaty is superior over state law and over previously passed federal law.

Missouri v. Holland
First case was what Congress can do under the war power, this case is about what Congress can do under the treaty power—what can Congress do using the Necessary and Proper Clause to execute a treaty? From historic practice since Washington, “advise and consent” means really just “consent”. The Senate can, however, put reservations (like a counter-offer in contract, going to the substance of the treaty—there’s no treaty until the other side accepts), conditions, and interpretations on a treaty—these bind courts as to the meaning and substance of the treaty. Treaty power has to have an intrinsic limit, but what is it? It must be a subject of international

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concern. Congress passed a law saying you can’t shoot Canada geese. Missouri objects saying Congress can’t pass a law that’s contrary to the commerce power. Congress says yes we can, it’s under the Treaty power. The state says what about the 10th amendment, we own these birds and you’d be intruding on our sovereign powers (this is before Hughes v. Oklahoma which said that states don’t own wild game). They’re arguing for an extrinsic limit on the necessary and proper clause used to carry out a treaty. Justice Holmes says that there is a national interest that can only be protected through action working with a foreign power. He also says that all acts of Congress in pursuance of the Constitution are the supreme laws of the land as are treaties passed under the authority of the United States (Supremacy Clause). Holmes says that the Constitution is not a restraint on the treaty power. This doesn’t really make sense, as it would allow a treaty to establish a law higher than the constitution itself? Justice Holmes was a civil war hero but came out with no values, but did believe that above all a nation needs to defend itself where the national interest is concerned.

Federalism and the Treaty Power
Do the states have any residual power to pass laws that impact on foreign commerce directly? or to conduct foreign relations through their executives or legislatures? Weight of opinion is now that the federal government’s power over international relations was delegated to the federal government in the Constitution (treaties and war), and the rest was left to the states. The states can still act in areas Congress hasn’t acted, until the Congress uses the supremacy clause to strike it down.

Zschernig v. Miller
Oregon law during cold war said that if foreigner would receive money under OR’s intestities statute from a relative who died in OR, he could receive it so long as the foreigners country would give an Oregonian the same rights if they died in the foreign country. This came up in East Germany as East Germany did not allow estates to transfer to foreigners upon death. Douglas said this is a foreign affairs area and the state can’t regulate the relationship with foreign countries.

Executive Agreements
Is between executives (president and prime minister). Typically status of forces agreements are executive agreements (allows us to have troops in other countries per NATO). Under status of forces agreements, host country gives up jurisdiction over crimes committed on the base, but we agree that we will try these people under the uniform code of military justice. The President (as executive) may make an agreement with a foreign executive that binds the United States if (1) he is authorized to do so under a treaty of which the United States is a party (e.g. status of forces agreements); (2) he is authorized to do so under a validly passed act of Congress (e.g. trade negotiations); or (3) he is acting alone within his exclusive power (e.g. disposition of armed forces during wartime).

Executive Agreements and Domestic Law
(1) Executive agreements void contrary state laws under the Supremacy Clause (2) Executive agreements are superior over previously passed federal law if (a) the agreement was made under a self-executing treaty; or (b) the agreement was made under a treaty that has been executed by

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Congress; or (c) the agreement was made pursuant to Congressional authorization. (3) Subsequently passed laws by Congress void executive agreements except those made entirely within the exclusive executive power of the President, but there are few, if any, executive agreements made within the President’s exclusive executive power that are binding domestically without needing Congressional authorization.

Reid v. Covert
Two cases where wives killed their husbands. Both convicted by military tribunal and sent back to the US for prison. Justice Black said that the constitution acted as an extrinsic restraint on executive agreements. Almost all commentators agreed that this had to be written in the case law to restrict this power.

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