Standing

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Standing : Determination of whether a specific person is the proper party to bring a matter to the court for adjudication. -  Values of limiting standing 1)  Promotes separation of powers powers by restricting the ava availability ilability of judicial review review.. Limits the matters that the Court will address and minimizes judicial review of the actions of the other branches of the government. 2)  Preventing a flood of lawsuits by those who have only an idealogical stake in the outcome. 3)  Ensures that there is a specific controversy, controversy, and that there is an advocate with sufficient personal concern to effectively litigate the matter. 4)  Serves the value of fairness by ensuring that people will raise their own rights and concerns and that  people cannot be intermeddlers trying to protect others who do not want the protection offered. -  Requirements for Standing Constitutional 1)  Plaintiff Must allege that he or she suffered or will imminently suffer an injury. -  Key to ensuring that there is an actual dispute between adverse litigants and that the court is not being asked for an advisory opinion. -  Ensures the plaintiff is not an intermeddler and he has a personal stake in the outcome of the controversy. -  Sierra Club v. SCRAP: The plaintiffs complaint must specifically allege that he or she has personally suffered an injury. -  Lujan v. National Wildlife Federation: The plaintiffs were not entitled to to standing unless they could demonstrate that they used specific federal land that was being mined under the new federal regulations. -  Application: City of LA v. Lyons  -  Establishes that in order for a person to have standing to seek an injunction, the individual must allege a substantial likelihood that he or she will be subjected in the future to the allegedly illegal policy. -  Sufficient Injury: Injuries Injuries to Common Law Rights: Property, contracts contracts and torts. Injuries to Constitutional Rights: 1) It is necessary to decide which constitutional provisions bestow rights. Personal, not  generalized grievances, grievances, etc. 2) What facts are sufficient to establi establish sh such an inj injury. ury. 3) Injuries to Statutory Rights. Other than that it is unclear, essentially a plaintiff plaintiff has standing standing if she asserts an injury that the Court deems sufficient for standing purposes. 2)  Causation: The injury is fairly traceable to the defendant’s conduct.  3)  Redressability: A favorable federal court decision will likely redress the injury. -  Criticisms: It is undesirable because it is an improper determination to make on the basis of the pleadings -  It is highly contingent on the characterization of the injury, ability to compete vs. denial of admission Bakke  -  It is inherently unprincipled in terms of what constitutes a sufficient likelihood of solution to justify standing. Unclear on proba probability bility spectrum where it is sufficientl sufficiently y certain that a court should grant  standing. Prudential 1)  A party may generally assert his or her own rights and cannot raise the claims of third parties not  before the court. -  Exceptions: -  Where the Third Party is unlikely to be able to sue: -  Close Relationship between the Plaintiff and the Third Party: Doctors and Patients, vendors and their customers, etc. denied mother in son’s pending death sentence. -  Overbreadth Doctrine: Appears limited to First Amendment cases.

 

-  Standing for Associations: Hunt v. Washington State Apple Edvertising Committee: three-part test: 1) its members would otherwise have standing to sue in their own right, 2) the interests it seeks to protect are germane to the organization’s purpose, and 3) neither the claim asserted nor the relief requested requires the participation in the lawsuit of the individual members. 2)  A plaintiff may not sue as a taxpayer who shares a grievance in common with all other tax payers. -  prevents individuals from suing if their only injury is as a citizen or a taxpayer concerned with having the government follow the law. -  Where the plaintiffs sue solely as citizens concerned with having the government follow the law or as taxpayers interested in restraining restraining allegedly illegal gover government nment expenditures. Needs to be a violation of  a constitutional right. -  In order for a taxpayer to sue, the plaintiff needs to establish e stablish two factors: 1) a logical link between the status and the type of legislative enactment attacked, and 2) a nexus between the status and the precise nature of the constitutional infringement infringement alleged. (Congress violated a specific constitu constitutional tional provisio provision, n, not that it merely exceeded its powers under the Constitution.) 3)  A party must raise a claim within the zone of interests protected by the statute in question. -  applies when a person is challenging an administrative agency regulation that does not directly control the person’s actions  o  plaintiff can sue if it can show that it is within the group intended to benefit from the statute (generally only in challenging a statute) o  i.e. text book company on behalf of widget company -  SC: ‘the interest sought to be protected by the complaint is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question -  Court has been inconsistent in applying this prudential requirement, uses it in some instances and has not in others -  Is it Desirable? o  Provides for problems encountered in the area of dispute, yielding t the parties that are sensitive to the conflicting interests, and those most directly involved o  Criticisms: if a person meets the other standing requirements, and is asserting a judicially cognizable injury, there is no reason reason to deny review. The Court has never articulated how a judge judge is to decide the zone of interest protected by a particular statute. -  Inconsistencies in Application o  Court has applied, but stated it is a requirement that generally should not preclude standing o  Plaintiff’s need only demonstrate the Statute “arguably” protects their interests. o  In contrast, it held in  Air Courier that a person or group must show they are within the zone of  interest based on the statute’s text or history justifying such a conclusio n. -  Strong indication that it only applies under the Administration Procedures Act  Ripeness: Determines when litigation of an issue may occur, seeks to separate matters that are premature for review, because the injury is speculative and may never occur, from those cases that are appropriate for federal court action -  Overlaps with Standing because if an injury has not occurred, the case may be dismissed because it is not  ripe o  May be able to distinguish because standing reqs. Under Art. III focus on whether the type of  injury is qualitatively sufficient, whereas ripeness focuses on whether the injury has occurred. o  Yet, very interchangeable and the court has declared failure to show standing where it could have ruled the case is not ripe.

 

-  Therefore, involves the question of when may a party seek preenforcement review of a statute or regulation o  Customarily, a person may challenge the legality of a statute or regulation only when he or she is prosecuted for violating it. o  Semi-Unfair to require require someone to violate law in order to challenge it  -  Declaratory Judgement Act: Primary purpose is to allow preenforcement review of statutes and Regulations o  Only in cases of “actual controversy”   o  Does not permit advisory opinions because it is limited to justiciable cases -  Ripeness, thus is best Understood as the determination of whether a federal court can grant  g rant  preenforcement review o  2 Considerations: o  1) the hardship to the parties of withholding court consideration; and o  2) the fitness of the issues for judicial review -  Advances Seperation of powers because it avoids becoming involved when unnecessary because there is not a substantial hardship to postponing review. -  Enhances Judicial Economy, limits occasion for federal review, most of all enhances quality of judicial decision by ensuring there is adequate record to permit effective review. o  Court has a lot discretion in determining if a case is ripe st  -  1 Criteria for Determining Ripeness: The Hardship to Denying Review   The more a plaintiff shows substantial hardship to a denial of preenforcement review, the more likely a federal court is to find ripeness o  Hardship from Choice between Possibly Unnecessary Compliance and Possible Conviction   When an individual is faced with a choice between foregoing allegedly unlawful behavior and risking likely prosecution with substantial consequences, the federal courts will deem the case ripe rather than insist the individual violate the law   People should not be forced to exercise their rights at peril of criminal sanctions or loss of  employment.   Other cases have been contrary to this, especially when the identity of particular candidates is part of issue, see 108-109 o  Hardship where Enforcement is Certain   Substantial Hardship Hardship where the enforcement of a statute is certain and the only impediment to ripeness is simply a delay before the proceedings commence   “Where the inevitability of the operation of a statute against certain individuals is patent, it  is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect.” Regional Railroad Reorganization Act  Cases  o  Hardship Because of Collateral Injuries   Nuclear Plants limited liability found ripe because while the primary injury focused on by the lawsuit was not ripe, other injuries existed to make the case justiciable. o  Hardship Is A Prerequisite for Ripeness   If there is minimal harm to denying denying review, or the harm is too speculative the case will be dismissed as not ripe. nd -  2 Criteria for Determining Ripeness: The Fitness of the Issues and Record for Judicial Review o  Is there Significant Gain to Waiting for an Actual Prosecution? 















 

  The more a question is purely a legal issue the analysis of which does not depend on a particular factual context, the more likely it is that the Court will find ripeness.   However, there needs to be a concrete factual situation to facilitate judicial review. o  Relationship Between the Two Ripeness Criteria   Not clear, seem to need to have both, but academics have said you only need either   Unclear if greater hardship compensates for less factual record or vice versa.   Constitutionally based, thus flexible. flexible. Prudential req about recor record d given less weight. Mootness: An actual controversy must exist at all stages of federal court proceedings, if subsequent events resolve the dispute, the case is dismissed as moot. -  Standing in time frame, the personal interest tha thatt must exist at the commencement of the litigation must  continue through its existence. o  Circumstances that might cause a case to be Moot    Any change in the facts that ends the controversy renders the case moot  o  Why Have a Mootness Doctrine?   SC has stated it is derived from Art. III’s prohibition against federal courts issuing advisory opinions   Four Exceptions: casesare not dismissed as moot if they are “collateral” injuries; if the issue is deemed a wrong capable of repetition yet evading review; if the defendant voluntarily ceases an allegedly illegal practice but is free to resume it at any time; and if it is a properly certified class action suit. o  Procedural issues   Can be raised at any stage of proceedings, if deemed moot, previous lower court rulings are vacated o  Exceptions: Overview   Situations where a federal court should not dismiss a case as moot even though the plaintiff’s injuries have been resolved    Do policy considerations served by the exceptions justify allowing review in a case where there is not an actual dispute between adverse litigants and where a favorable court  decision will not effect a change. o  Exceptions: Collateral Consequences   Technically not moot, because an injury still remains   Criminal Cases: Felonies have a broader punishm punishment ent than incarceratio incarceration n ,i.e. voting, jobs, therefore it should not be dismissed on mootness grounds   Dismissed only if there is no possibility of any any collateral legal consequences. Only challenges of conviction, not sentence.   Civil Cases: Case not moot as long as the plaintif plaintifff continues to suffer some harm that a remedy. “As long as the parties have a concrete interest in favorable court decision would remedy. the outcome of the litigation, it is not moot.”  o  Exception: Wrongs Capable of Review yet Evading Review   Injuries occur and over so quickly that they will always be moot before the federal litigation process is over   Requirements: (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again. o  Exception: Voluntary Cessation 

































 

  A case is not dismissed as moot if the defendant voluntarily ceases the improper behavior, but is free to return to it at any time, unless there is no reasonable chance the defendant  could resume the offending behavior.   Burden on those claiming mootness, usually defendant, unlike standing where the burden is on the plaintiff to show constitutional and prudential requirements are met    Statutory Change: Key seems to lie in the idea that a case will not be dismissed as moot if  the court believes there is a likelihood of reenactment of a substantially similar law if the lawsuit is dismissed.   Compliance with a court order only renders a case moot if there is no possibility that the allegedly offending behavior behavior will resume on once ce the order expires or is lifted. Unless the offending behavior is unlikely to resume.   Central question is whether the defendant has the abiliy to resort to the allegedly improper conduct that was voluntarily stopped. o  Exception: Class Actions   As long as the members of a class action have a live controversy, a plaintiff may continue to appeal the denial of class certification even after his particular claim is mooted.   Consistent with Art. III because there is an actual dispute between adverse litigants and a favorable court decision will make a difference for the class members. 













Political Question Doctrine -  What ?   Certain allegations of unconstitutional government conduct should not be ruled on by federal courts even though all of the jurisdictional and other justiciability requirements are met     Subject matter deemed inappropriate for judicial review, therefore it is up to the politically accountable branches of government to decide.   o  Baker Criteria and Their Limited Usefulness     Baker v. Carr: “ A textually demonstrable commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government, or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”    Impossible for a court or commentator to apply the criteria to identify what cases are political questions.    Areas where considered: republican form of government clause and the electoral process, foreign affairs, Congress’s ability to regulate its internal processes, the process for ratifying constitutional amendments, instances where the federal court cannot shape effective equitable relief, and the impeachment process. -  Should there be a Political Question Doctrine?  o  Justifications    It accords the federal judiciary the ability to avoid controversial constitutional questions and limits the court’s role in a democratic society.    Prof. Bickel:    The strangeness of the issue and intractability to principled resolution  















 

  The sheer momentousness of it, which tends to unbalance judicial judgement     The anxiety, not so much that the judicial judgment will be ignored, as that perhaps it should but will not be     The inner vulnerability, the self-doubt of an institution which is electorally irresponsible and has no earth to draw strength from   It allocates decisions to the branches of government that have superior expertise in particular areas.   The federal courts’ self -interest -interest disqualifies them from ruling on certain matters.   On separation of powers grounds as minimizing judicial intrusion into the operations of the other branches of government. o  Criticisms    The Judicial Role is to enforce the Constitution, it is inappropriate inappropriate to leave Constitutional questions to the political branches.    The federal courts’ credibility is quite robust, there is no evidence that particular rulings 















have any effect on the judiciary’s legitimacy, and the courts’ mission should be to uphold the constitution and not worry about political capital.   It confuses deference with abdication. In areas where they lack lack expertise, they should be more deferential to the other branches of government. o  Constitutional or Prudential?     Unknown, not derived from Article III’s limitation of judicial power to “cases and controversies” like other justiciability doctrines  t he Electoral Process   o  The “Republican Form of Government” Clause and Judicial Review of the   Article IV § 4: “The United Sates shall guarantee to every State in the Union a Republican form of government     S.C. has consistently held that cases alleging a violation of this clause present nonjusticiable political questions    Some scholars have urged the court to reconsider     Luther v. Borden  Borden    The Court refused to decide the case where Borden broke into Luther’s house to search it. RI had a messed up gov gov.,., and Luther believed it wa wass unconstitutional. The Court held that it is Congress’ job to decide what type of government government constitutes a Republican one.    Not one instance where the S.C. has deemed a state government or state action to have violated the republican form of government clause    Reappotionment     The S.C. has only approved federal court involvement in cases alleging racial discrimination in the drawing of election districts or in holding elections.   Baker v. Carr : S.C. deemed justiciable claims that malapportionment violates the equal protection clause  o  Distinguished from Luther v. Borden , of cases pursued under the equal protection clause and those pursued under the republican from of  government clause    USDOC v. Montana, Court found justiciable to the method of apportioning members to the House of Representatives. There was no constitutiona constitutionall violation. The Court  























 

explained that objections to apportionment should be treated no differently than challenges to state government districting restrictions.     The Court has made it clear that strict scrutiny must be met in order for race to be used as a predominant factor in districting.    Gerrymandering    Vieth v. Jubelirer : the Court dismissed a challenge to partisa partisan n gerrymanderin gerrymandering. g. A plurality said that such suits are inherently nonjusticiable political questions.  o  The question was whether partisan gerrymandering violates the equal protection clause.  o  There are no judicially discoverable or manageable standards and no basis for courts to decide when partisan gerrymandering offends the Constitution. o  There are no cases holding these situations are always political questions, but it is hard to imagine such a case succeeding   Review of political Parties   The Court has repeatedly held that the federal judiciary will prevent racial discrimination by political parties   But other challenges to political parties, especially suits concerning the seating of  delegates at national conventions, have been dismissed by the courts. o  Foreign Policy   Cases presenting the issues related to foreign affairs pose political questions   The Court also emphasized “ it is error to to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.”    Areas of Foreign Policy that Pose a Political Question   The determination of when a war begins and ends   The recognition of foreign governments   The many issues concerning the ratification and interpretation of treaties Challenges to the president’s use of the war powers     Should Foreign Policy Issues Be a Political Question?   It is the expertise of the branches of government to decide   Critics argue that constitutional questions rearding foreign affairs should be adjudicated o  The constitutional questions do not require expertise o  Without judicial enforcement, the constitutional provisions governing foreign policy are rendered meaningless   Because precedents concerning judicial review pertaining to foreign affairs are conflicting and controversial, it is inevitable that the issue will be revisited in the future o  Congressional Self-Governance   Often, although not always, the Court has held tht Congressional judgments pertaining to its internal governance should not be reviewed by the judiciary   Powell v. McCormick: Key case in rejecting the application of the political question doctrine si t when reelected o  House refused to seat Powell, was allowed to sit o  S.C. held his previous case was not moot because of back pay 



































 

  That the HoR only had power to determine if he met the qualifications articulated in Article 1 § 5. o  Court stressed the importance of allowing the people to elect the legislators   Underlying normative question is whether these decisions d ecisions invoking the PQD are proper deference to a coordinate branch of government or whether they are unjustified judicial abdication. o  The Process for Ratifying Constitutional Amendments   Inconsistency among the Cases   In some instances, the S.C. S.C. has allowed judicia judiciall review o  Hollingsworth v. Virginia o  The Court held that the president may not veto amendments passed by Congress o  Leser v. Garnet  o  The Court held that a state’s certification that it has ratified an amendment is enough to count it as an approval of the Con change o  Dillon v. Gloss o  The court upheld the constitutionality of Congress’s creating time limits for the ratification of an amendment    Others it has held the cases c ases non justiciable o  Coleman v. Miller o  The Court declared that Congress has the sole and complete control over the amending process o  Excessive Interference with Coordinate Branches of Government    Limiting Judicial Oversight and Intrusion   Gilligan V. Morgan: S.C. deemed not justiciable a lawsuit claiming the government  was negligent in adequately training the National Guard of Ohio   Lower Courts have also continued to find that there is a political question where there is a challenge to the exercise of executive discretion o  States v. Mandel: decision of the secretary of interior to place an item on the commodity list was non justiciable   Impeachment and Removal from Office   Nixon v. United States o  Impeachment of federal district court judge is nonjusisticiable because it  would be inconsistent with the framers views of impeachment in the scheme of checks andbalances o  Yet, leaves open the question if this is applicable in all cases, i.e. someone impeached for lawful acts o



















Congressional Control of Federal Court Jurisdiction Congressional -  Intro   Another possible check on federal court power is the ability of Congress to limit  federal court jurisdiction    Proposals to Restrict Jurisdiction    In the 1990s, Congress enacted significant restrictions on federal court jurisdiction  





 

  Felker v. Turpin: the Court upheld a provisi on’s restriction on Supreme Court review of court of appeals decisions by concludingthat there remained some opportunity for S.C. review: writs of habeus corpus filed in the Court     Many have been recently proposed in light of the Immigration and terrorist problem  o  Boumediene v. Bush: Court declared unconstitutional because the Constitution only allows Congress Congress to suspend hbeus corpus in instances of  rebellion or invasion. Saying this is a funda fundamental mental right as declared in the Constitution.    Purpose of Jurisdiction Stripping S tripping    To Achieve a change in the substantive law by a procedural device    Without lower federal courts and the SC to protect particular rights, the litigation would be entirely in state courts with no review in the federal judicial system    “de fact o reversal, by means far less burdensome than those required in constitutional amendment, of Supreme Court decisions”    Constitutionality Uncertain    Proponents  o  Article III authorizes congressional restriction and this is an important aspect  of the check on judicial power    Opponents  Co ngress o  Strippin would infringe on review of constitutional rights and allow Congress to disregard the Constitution and allow States to ignore federal law    On several occasions, The Court has upheld statutory limits on lower federal court  jurisdiction, concluding that because congress can create the lower federal courts, it  should be able to define its jurisdiction    Opponents argue that the lower courts are fundamental in due process considerations    The Scope of Congress’s power to define lower court jurisdiction focuses its ttention on separation of powers and the allocation of power among the branches of the federal government     Court Has Jurisdiction to Decide Constitutionality    Marbury v. Madison  o  Thus, the federal courts must decide whether a statute restricting jurisdiction is constitutional before it can be applied to deny review in a particular case.  o  Congressional Control of Supreme Court Jurisdiction     Issue    No consensus on the constitutionality of restrictions on jurisdiction    Dispute over Meaning of Constitutional Text     Proponenets of Congressional Limitation  o  Article III: authorizes Congress to create exceptions to the S.C.’s jurisdiction and that such exceptions include the ability to preclude review of particular topics  o  Evidence: First Congress did not vest S.C. with appellate jurisdiction over all types of cases and controversies contained in Article III    Opponents  





































 

  Exceptions modifies Fact   o  Framers were concerned with Court’s ability to overturn fact  -finding by -finding lower courts, especially when done by juries  o  Congress can create an exception to the S.C.’s jurisdiction for review on matters of fact, but cannot limit the jurisdictional ability on matters of law    Precedents for Both Arguments    Ex Parte McCardle: Advocates to proposals to limit S.C. jurisdiction point to this case.  o  McCardle was detained for writing writing about Reconstruction. Filed a petition of  writ of habeus corpus pursuant pursuant to a 1867 statute. Congress adopted a rider to a tax bill repealing that part of the 1867 statute. o  The Court dismissed the case because the statute repealed jurisdiction. o  Quote language from Court stating they “are not entitled to look into the motives of the legislature. legislature. We can only loo look k into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction o





of this court is given by express words.”   Ex Parte Yerger: a year later, same situation, SC held they had jurisdiction under a different Act. (McCardle couldv’e used it but didn’t state it in his jurisdictional statement). Therefore the oppon opponents ents of jurisdiction stripping con contend tend McCardle is not a precedent that would eliminate all SC review of controversial topics.     Felker v. Turpin: 1996 Anti terrorism terrorism statute. Precluded SC review of any decision by a court of appeals granting or denying authorization for a state prisoner to file successive habeus corpus petition.  o  SC upheld stating the law did not preclude all SC review of petitions from individuals denied the ability to file successive ones; the law did not repeal the Court’s authority to entertain original habeas petitions.    U.S. v. Klein: Opponents of jurisdictional stripping cite this case as precedent that  Congress cannot restrict SC appellate review in an effort to direct particular substantive results.  o  Statute that people whose property was seized during Civil War could recover it, or compensation, upon proof they didn’t support union during the war. Congress enacted statute declaring par pardons dons proof that a person aided the rebellion and denied federal court jurisdiction over the claims  o  SC held statute unconstitutional: Congress has inadvertently passed the limit  which seperates the legislative power from the judicial power  o  Proponents argue thus that Congress may not restrict SC jurisdiction in an attempt to dictate substantive outcomes.  o  Difference between Klein and the statute reversing a SC interpretation of  Title VII    First, statute redifing president’s president’s pardon power.   Second, the statute arguably unconstitutionally depriv deprived ed property without just compensation or due process.     Supporters argue Klein merely doesn’t support the proposition that  Congress may not restrict jurisdiction in a manner that violates another constitutional provision 













 

  Roberts v. Seattle Audobon Society: The court read Klein as applying in a situation where Congress directs the judiciary as to decision making under an existing law and not applying when Congress enacts a new law.   Plaut v. Spendthrift Farm, Inc. : Court declared unconstitutional a federal statute that  overturned a SC decision dismissing certain certain cases. Not exactly under limiting jurisdiction, but analogous. analogous. It was ordering the SC to hear cases it had previously dismissed.





The Federal Legislative Power -  The Doctrine of Limited Federal Legislative Authority   Congress may act only if there is express or implied authority to act in the Constitution   States may act unless the Constitution prohibits it    Art. I of the Constitution, which creates the federal legislative power, states: All legislative powers herein granted shall be vested in a Congress of the US which shall consist of a Senate and a House of Representatives.   10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.   In evaluating the Constitutionality of any act of Congress, there are always two questions: o  1) Does Congress have the authority under the Constitution to legislate? o  2) if so, does the law violate another Constitutional provision provision or doctrine, such as by infringing separation of powers or interfering with individual liberties?   The only question to ask when evaluating the constitutionality of a state law is: o  Does the legislation violate the Ocnstitution?   Only the states possess the police power. The police power allows State and local local governments to adopt any law that is not prohibited by the Constitution.   The Reality of Broad Federal Powers   After 1937, the SC accorded Congress broad authority to regulate under constitutional provisions such as the commerce clause, the spending power, and the Reconstruction Amendments ( 13 th, 14th, and 15th).   From 1937-1995, not a single federal law was declared unconstitutional as exceeding the scope of Co ngress’s commerce power.    In large part based on the perceived need for a strong national government to deal with the problems of the twentieth century, and, in part, a reaction to the intense criticism of the earlier decisions that had sharply limited the scope of federal powers.   In the last 15 years, the SC has limited the scope of Congress’s power under the commerce clause and under §5 of the 14 th amendment. Also, OCngr OCngress ess has revived th the 10 amendment as a limit on federal power   McCulloch v. Maryland and the scope of Congressional Powers   Congress’s Authority to Create the National Bank   o  1) Historical Practice established the power of Congress to create the bank  



























 

  “The principle now contested was introduced at a very early period of  our history, has been recognized by many successive legislatures,



…and has been acted upon by the judial department as a law of  undoubted obligation.”    Historical experience has justified constitutionality of a practice in numerous instances o  2) Marshall refuted the argument that states remain the ultimate sovereignty because they ratified the Constitution   If the states are sovereign, than they would have the authority to veto a federal action.   Marshall stated it was the people who ratified the Constitution, and thus the people are sovereign, not the states.   Reaosning can be questioned language of Article Vii, but the view has controlled throughout American history o  3) The Court addressed the scope of Congressional power under Article I.   The Court broadly described Congress’s authority even before addressing the necessary and proper clause.   The Constitution should be interpreted differently than a statute.   Marshall’s ultimate conclusion is that Congress is not limited to those acts specifically enumerated in Article I, Congress may choose by any means, not prohibited by the Constitution, to carry out its lawful authority. Eventhough the Constitution does not mention a power to create a Bank of the US, Congress can create one as a means to carry ou its other powers   If Congress was limited limited by Article I, the the powers would be finite. finite. But if  Congress can choos by any means to carry out its powers , they are almost infinite.   The problems of the twentieth and twenty-first centuries , can only be dealt with an eighteenth century constitution because of the broad construction of the congressional powers found in McCulloch. o  4) Meaning of the necessary and proper clause.   Article I §8 concludes by granting Congress the power to make laws which shall be necessary and proper for carrying into Execution the foregoing Powers, andall other Powers vested by the Constitution.   “Let the end be legitimate, let it be within the scope of the constitution, and all means are appropriate, which are plainly adapted to the end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.”    Necessary means useful or desirable, not indispensible or essential   •expands Congress’s Congress’s powers, §9 limits limits them. Thus, this is the right  interpretation.   Does not give Congress Congress unlimited authority. Statute must be rationally related to the implementation of a constitutionally enumerated power 



























 

  The relevant inquiry is whether the means adapted to the attainment  of a legitimate ender under the commerce power or under other powers the Constutution grants Congress the authority to implement. o  Constitutionality of MD’s tax    States cannot impede enactments of Congress   Also, it would be a tax on other states’ states’ citizens and thus puts burden on them and it is unfair to allow a state to t o regulate those who have no representation in the state. o  Supremacy of Federal Law and Doctrine of Preemption     Intro   Limits on state authority   State and Local governments possess the police power, meaning they can take any action unless there is constitutional prohibition.   State and Local governments are limited by the Constitution’s protections of  individual rights   Also, the Constitution explicitly identifies a few instances where states may not act. o  Art. I § 10, states: “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and Silver Coin a Tender in Payments and Debts; or grant any Title of Nobility.   Preemption   There are two possibilities when considering whether a state or local law is invalidated because of these restrictions. has acted. If Congress has passed a lawf lawful ul o  One situation is where Congress has exercise of congressional power, the question is whether the federal law preempts state or local la law. w. Article VI: “…shall be the Supreme Law of the land.”    Dormant Commerce Clause o  The other is where Congress has not acted (or at least the judiciary decides that federal law does not preempt state or local law).   Even though there is not preemption, state and local laws can be challenged under two principles”    The dormant commerce clause and the privileges and immunities clause o  The dormant commerce clause is the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce.   The SC has inferred this limit on state regulatory power from the grant of power to Congress to regulate commerce among the states.   Even if Congress has not acted, even if its commerce power lies dormant, state and local governments cannot place an undue burden on interstate commerce.   Privileges and Immunities Clause o  Art.IV § 2: “The Citizens of the United States shall be entitled to all Privileges and Immunities of Citizens in the several States.”  































 

  Limits the ability of States to discriminate against ou-of staters with regard to constitutional rights or important economic activites.   Underlying Policy Themes o  What is the appropriate degree of judicial oversight or of judicial deference to state and local governments.   Preemption of State and Local Laws   Intro o  Federal laws are the supreme law of the land o  SC: “Uner the Supremacy Clause, from which our pre -emption doctrine is 







derived, ‘any state law, however clearly within a State’s acknowledged derived, power, which interferes with or is contrary to federal law, must yield.” Gade v. National Solid   o  Difficulty is whether a specific state or local law is pre-empted by a specific federal law   No clear rule,   Ways of Finding Preemption o  SC has identified two major situations   Where a federal law expressly preempts state or local law.   Where preemption is implied by a clear congressional intent to preempt state or local law   Gade v. National Solid Waste Management:    Express or implied   Implied: Implicitly contained in its structure and purpose. o  Two types: o  Field Preemption: the scheme of regulation is so persuasive as to make reasonable the inference that  Congress left no room for the States to supplement it  o  Conflict Preemption: where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes ond objectives of congress   Problems with Applying the Test for Preemption o  The purpose of Congress is the ultimate touchstone in every preemption case   It rarely indicated the scope of preemption or provides guidance for the myriad of problems that may arise o  Express   Even if there is statutory language expressly preempting state law, Congress rarely is clear about the scope of what is preempted or how particular situations situations should be ha handled. ndled. Courts must decide what is preempted, and this inevitably is an inquiry into congressional intent. o  Implied   Is often a function of both perceived congressional intent and the language used in the statute or regulation. 





















 

  The intent of Congress is rarely expressed or clear, therefore it is up to the Court to guess about purpose based on fragments of statutory language, and random statements in the legislative history, and the degree of detail of the federal regulation. o  Recently the Court declared: “Because the States are independent sovereigns in our federal system, we have long presumed that Congress does not  cavalierly preempt stat-law stat-law causes of action. In all preempton cases, and particularly those which Congress has legislated in a field which the States have traditionally occupied, we ‘start with the assumption that the historic police powers of States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”    Three Situations Where Preemption Claims Arise o  Express preemption o  Implied preemption   Field Preemption   The scheme of federal law and regulation is “so persuasive t hat  hat  Congress left no room for the States to supplement it.”    Where there is a conflict between federal and state law   If a state law impedes the achievement of a federal objective o  States generally cannot tax or regulate federal government activities   Different because it does not require legislative intent    Underlying Policy Issues o  How willing should courts be to find preemption?   Recent courts have leaned towards protecting federalism and states rights   Express Preemption of State Laws   Federal Laws Can Explicitly Preclude State Regulations o  Some federal laws contain clauses that expressly preempt state and local laws.    Jones v. Rath Packing Co.: Federal Meat Inspection Act: “Marking, Labeling packaging, or ingredient requirements in addition to, or different than, those made under this Act may not be imposed by any State.”    State law did not permit variations from the stated amount because of  moisture loss. The federal law did.   The Court held the express language of the Federal Act  preempted the State Law.   Morales v. Trans World Airlines: Airline Deregulation Act of 1978:  “NO State shall enact or enforce any rule, regulation, standard or other provision having the force and effect of law relating to rates, routes or services of any carrier.”    Court interpreted broadly and found tht price advertising guidelines were related to rates.   Another Case, Court ruled that a state consumer fraud law concerning airlines’ frequent flier programs was preempted.  o

































 

  Concerned “services”    The Scope of Preemption is Rarely Clear o  Express preemption clauses rarely provide guidance for its scope   Tobacco Cases   The Federal Cigarette Labeling and Advertising Act: Requires o







all cigarette packages to have a warning of smoking’s health hazards.   1965 law: “No statement relating to smoking a nd health, other than [the federally prescribed warning]…shall be required on any cigarette package [and no such ] statement …shall be required in advertising.”    1969 law: No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising of any cigarettes the package of which are labeled.”  o  Cipillone v. Liggette Group: Whether these provisions preempted a state from awarding damages on claims for torts such as failure to warn and fraudulent  misrepresentation.   1965 did not, 1969 did preempt state damage actions for failure to warn and fraudulent  misrepresentation.   The phrase ‘state law’ incorporates common law as well as statutes and regulations   Did not prevent suits for breach of warranties   Preempted fraudulent misrepresentation claims pertaining to advertising but not intentional concealment of information through other channels o  Lorillard Tobacco Co. v. Reilly:     Court invalidated prohibition of outdoor advertising within 1,000 feet of school or playground   The 1969 law vested regulation to FTC   Stevens dissent: different because it regulated location, not content    These cases indicate that even when there is an express preemption provision, a court must decide “the domain expressly preempted by court to arbitrary and inconsistent  that language. “ Often leaves the court answers   Field Preemption o  Defined   SC will find preemption if there is a clear congressional intent that  federal law should exclusively occupy a field. 























 

  If “either… the nature of the regulated subject matter permits no other conclusion, or that Congress has unmistakingly so ordained.”     A scheme of federal law so pervasive as to make it reasonable the inference that Congress left no room for States to supplement it.”    Difficulty is that the Court must make a judgment call as to whether the interests behind federal law will be best served by the law will be best served by the law being exclusive in the field.   Chamber of Commerce v. Brown: CA law prohibits employers that receive grants over $10k in state progam funds from using the funds to “assist, promote or deter union organizing.”    Court acknowledged the NLRA expresses no specific preemption provision, but it reflects a policy choice that both employers and employees be allowed to speak with regard to the issue of union organizing and that this be left largely to “market forces.”  o  The Court concluded that this interfered with this by imposing a provision on employer speech. o  Disagreement between the majority and dissent over scope of field preemption o  Foreign Policy and Immigration as Example   Common area where the Court has found field preemption   Federal government has exlusive control over these areas. o  How far do these provisions extend o  Hines v. Davidowitz: PA law requiring aliens to register, carry ID, and pay tax. Preempted, emphasizing that  alien registration is an area of interna international tional relations. o  Two aspects noteworthy:   1) Court found preemption of a law that  contemplated federal law, and in no way interfered with it. Field preemption means federal law is exclusive n the area.   2) Court found preemption even in the absence of express language in the federal statute. Congress surely could have expressly preempted State law concerning alien registration.   This argument of field preemption where the statute lacks express preemption is still argued today. Tension between the desire to eff effectuate ectuate the interests of the federal government and the desire to limit the instances where state power is limited. o  Later cases in this area have also found preemption 



















 

  De Canas v. Bica: Court found no preemption where state law precluded employment of undocumented aliens if that employment would adversely affect  residents.   Allowed to the extent consistent with federal law, to regulate the employment of illegal aliens.”   Foreign Policy o  PA v. Nelson: “Scheme of federal regulation is so pervasive as to make reasonable the inference that  Congress left no room for the States to supplement it.”  o  Uphaus v. Wyman: Congress had not preempted all state sedition laws. laws. States were allow allowed ed to prohibit  subversive activity, and it narrowly construed Nelson as o





only “prescribing … a race between federal and state prosecutors to the courthouse door.”  o  From a federalism perspective, such a broad view of  field preemption dramatically limits the choices state governments make.   Federal Regulations as Preemption   Rice v. Santa Fe Elevator Corp.: Perhaps the most frequently cited case concerning field preemption o  Whether States could regulate grain elevators licensed by the federal government  o  NO, Court saw federal law as eliminating dual regulation and found preemption based on Ocngress’s desire to make preemption exclusive in the field.   Has not found preemption: o  Health and Safety Matters o  Record Piracy/ copyright law o  Making Sense of Field Preemption   No clear Rule for field preemption, Several Criteria can be identified:   1) Is it an area where the federal government traditionally has played a unique unique role? i.e. immigration a and nd foreign policy   2) Has Congress expressed an intent in the text of the law or in the legislative history to have federal law be exclusive in the area? i.e. Rice    3) Would allowing state and local regulations in the area risk  interfering with with comprehensive federal rregulatory egulatory efforts? i.e. Burbank and curfew of flights.   4) Is there an important traditional state or local interests served by the law?   Factors not mutually exclusive, the presence of more than one enhances the likelihood that preemption will be found.   Conflicts Between State and Federal Laws   Preemption If Impossible to Comply with Federal and State Law 





















 

  If person cannot simultaneously comply with both, it is deemed preempted   McDermott v. Wisconsin: Federal law required labeling prohibited by state law. law. Deemed p preempted reempted   Problems in Deciding if there is a Conflict  o  The fact that they are different does not automatically preempt    Could be that the federal government has set a minimal standard, and permits states to set stricter standards.   Other cases where the federal law is meant to be the standard.   Florida Lime v. Paul: CA law regarding Avos more strict than federal law. FL met federa federal,l, not CA.   Court decided the federal law law was the floor n not ot ceiling Setting the minimum standard and the standard. The Court  emphasized the traditional role of states in regulating the marketing of food products.   Often Arises in cases involving environm environmental ental laws:   Midatlantic National Bank v. NJ Dep. Of Env. Protection: Court  looked at federal bankruptcy and environment law to determine that the Bankruptcy Ocde was not meant to o

















preempt all state laws that constrain the exercise of trustee’s power.” And evidence evidence of congressional “goal “goal of protecting the environmentt against toxic pollution.”  environmen   In the face of clear conflict, Court used Congress’s overall intent  to reject a preemption claim.   Making Sense of Conflict preemption o  If the federal government requires conduct that the state prohibits, conflict  preemption will be found o  There are harder cases though that depend on judicial interpretation of  federal intent    State Laws That Impede Achievement of Federal Objectives   A State law will be deemed preempted preempted if it “stands as an obstacle to the accomplishment and execution of the full objectives or purpose of Congress.”     Problems: o  Determining the federal objective and whether a particular type of state law is inconsistent with it. o  Preemption based on state laws interfering with a federal goal turns on how the court characterizes the federal purpose   To avoid, it can narrowly construe the federal objective and interpret  the state goal as different.   To find, it can view federal purpose broadly   Preemption of State Taxation or Regulation of The Federal Governmant    Because it violates the Supremacy Clause of Article VI o  McCulloch v. Maryland     When are State Taxes of Federal Activities Allowed? o  State and local property taxes cannot be applied to federal property unless there is express authorization from Congress 



















 

  Federal Employees, so long as the tax is applied to the individual and not the government entity   Extended to allow states to tax users of federal property so long as ther is no liability of the US government for the taxes, even if there is nonpayment by the person or the entity owing the taxes. o  Difficulty is often deciding whether a particular entity should be regarded as independent of the federal government or sufficiently a part of it so as to be protected from the state or local taxation o  General principle: “Legal incidence” Test: If the tax will be directly borne by the federal government, it is unconstitutional as violating the supreamacy clause unless Congress expressly allows it. Permissable if borne by a private private actor, ven if the ultimate effect will be increase costs for the federal government.   When IS State Regulation of Federal Activities Allowed? o  In general, state laws apply to federal activities unless the application of the state law would conflict with or interfere with a federal law or policy. o





Congressional Powers Congressional o  The Commerce Power     Intro   Of all provisions bestowing power on Congress, none is more important than Article I § 8, stating: “The Congress shall have the power …to regulate Ommerce with Foreign Nations, and among the several states, and with the Indian Tribes…”  o  This provision has been authority for a broad array of federal legislation, ranging from criminal statutes to securities laws to civil rights laws to environment laws.   Initially, in Gibbens v. Ogden, the SC adopted an expansive view of the Commerce clause   From the late nineteenth century until 1937, the court adopted a much narrower construction of the commerce power and invalidated many federal laws as exceeding the scope of its authority   From 1937 to 1995, not one federal law was found to exceed the scope of the commerce power.   IN 1995 with the decision in Lopez , the SC declared unconstitutional a federal law prohibiting a person from having a firearm w/in 1000 ft of  a school on the ground tht it exceedd the liits of the commerce power   5 years later in U.S. v. Morrison, the SC ruled unconstitutional a law allowing victims of gender based violence to sue their assailants. o  Questions the Court considered throughout this era?   What is commerce; is it one stage of business or does it include all aspects of business and even life in the United States?   What does among the several states mean; is it limited to instances where ther is a direct effect on interstate commerce or is any effect on interstate activities sufficient? 

















 

  Does the Tenth Amendment limit Congress; if Congress is acting within the scope of the commerce power, can a law be declared unconstitutional as violating the Tenth Amendment?   Gibbons v. Ogden and the definition of the Commerce Power   SC cases concerning the commerce clause begin with Gibbons v. Ogden   NY granted monopoly to two dudes, Gibbons continued operating ferry because he was licensed under a federal law as “vessels in the coasting trade.”    Prempted, see above   The NY monopoly was an impermissible restriction of interstate commerce o  What is “Commerce”?    SC: “Commerce undoubtedly is traffic, but it is something more: it is intercourse. It describes the commercial in intercourse tercourse between nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.”    Commerce include all phases of business, including navigation. o  What  is “Among the States?    “The word among among means intermingled intermingled with. A thing which among others, is intermingled with with them. Commerce among the Sta States, tes, cannot stop at the external boundary line of each State, but may be introduced into the interior.”    “it may very properly be restricted to that commerce which concerns 



















more States than one… The completely internal commerce of a state, then , may be considered as reserved reserved to itself.’     Made it clear though, that Congress could regulate intrastate commerce that had an affect on interstate activities.   Took the middle ground, leaving the issue open for interpretation, in a case by case inquiry as to whether a particular activity has interstate effects.   The Court must decide how direct or substantial the effects must be. o  Does State Sovereignty Limit Congressional Power?   Does state sovereignty and the Tenth Amendment limit Congress’s powers.   Congress has complete authority to regulate all commerce among the states. o  Sole check is in the political process   The Commerce Clause Before 1937 o  Cases before 1887   Nothing much o  Cases Between 1887 and 1937   Court controlled by conservative justices deeply committed to laissez faire economics 















 

  Dual Federalism: Federal and State governments were state sovereigns, that each had separate zones of authority, and that  it was up to the judiciary to prtect the states by interpreting and enforcing the Constitution to protect the Zone of activities reserved to the states.   Embodied in three doctrines.   What is Commerce?   Commerce ws to be narrowly defined as one stage of business. o  The Constitution did not allow the federal government  to regulate manufacturing, production, etc. o  Need to preserve the zone of activities to the states o  Narrow view essential to protect the states   Decisions rely on many assumptions; that it makes sense to distinguish commerce from other stages of business; that the Constitution requires that a rigid zone of activities be left to the states; and that it is the judicial role to protect this zone   What does among the states mean?   Requirement that there be a direct effect on interstate commerce. o  Shreveport Rate Cases: “Congress in the exercise of its paramount power may prevent the common instrumentalities of interstate and intrastate commercial intercourse from being used in their intrastate operations to the injury of interstate commerce.”  o  Distinction between indirect and direct effects on commerce is inherently difficult to draw. d raw. o  “If the commerce clause were construed to reach all enterprises and transactions which could be sid to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of  the people and the authority of the State over its domestic concerns would exist only by sufferance of the federal government.”    Often used the approach was to allow the Congress to protect  the streamof commerce. o  Why did intrastate railroad rates have a direct effect on interstate commerce, while regulations designed to limit the shipment of sick chickens in interstate commerde only have an indirect effect? Very inconsistent    Does State Sovereignty Limit Congressional Power?   If an activity was commerce among the states, Ocngress could still not regulate it if was intruding into the zone of activities reserved to the states. 



















 

  The Tenth Amendment reserved control of activities such as mining, manufacturing, manufacturing, and production to the states. o  Regulating the hours of children workers was unconstitutional, it was entrusted purely to state authority. It referred to production o  The power to regulate interstate commerce includes the ability to limit items from being in interstate commerce.   Lottery   The Court did not consistently define the zone of activites reserved to the states, yet the Court during the era clearly believed in dual sovereignty and used it to limit federal power.   The Commerce Clause from 1937 to 1995 o  Causes for the Change in Doctrine   Previous distinctions inconsistent, impossible to reconcile o  Key Decisions Changing the Commerce Clause Doctrine   Three Decisions overruled the earlier e arlier decisions and expansively defined the scope of Congress’s commerce power.    NLRB v. Jones & Laughlin Steel: The law applied when there was an effect on commerce and, in fact, it expressly defined “affecting 













commerce” as meaning “in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.”    The Court’s opinion left no doubt the decision marked a major shift in law.   The Court declared that: “The fundamental principle to regulate commerce is that the power to enact ‘all appropriate legislation’ for ‘its protection and advancement’, to ‘adopt  measures’, to ‘promoteits growth and ensure safety’, to foster, protect, control, and restrain’ restrain’ That power is plenary plenary and may be exerted to protect interstate commerce no matter what the source of the dangers which threaten it.”  o  Later upheld to a small clothes manufacturer   U.S. v. Darby: Ban against shipment of goods madeby employees not  earning the minimum wage.   SC upheld Act, departed from all aspects of pre 1937 commerce clause doctrines.   Congress may control production by regulating shipments in interstate commerce.   Wickard v. Filburn: Wheat case, farmer grew for personal use.   The Court flatly rejected the limits on the commerce power that were enforced in the prior era. era. Stating there is no formula to determine the commerce power, such as production or indirect. 













 

  “Once an economic measure of the reach of the power granted to Congres in the Commerce Clause is accepted, questions of  federal power cannot be decided by simply finding the activity



to be ‘production’ and ‘indirect’   Upheld because of the cumulative effect that home-grown wheat has on the market. market. Eventhough Filburm’s Filburm’s wheat had only a negligible effect on interstate commerce, Congress could regulate his production because cumulatively hom-grown wheat had a substantial effect on interstate commerce.   The Test for the Commerce Clause after 1937 o  No longer did the Court distinguish between commerce and other stages of  business such as mining, mining, production, etc. Congress could control a all ll stages of  business. o  NO longer did they distinguish between direct or indirect effects on interstate commerce; Congress could regulate any activity taken cumulatively has an effect on interstate commerce.   No longer was the tenth amendment a limit on gongressional power; a federal law would be upheld so long as it was within the scope of  Congress’s power, and the commerce clause was interpreted so broadly that seemingly any law would meet this requirement.   Some cases, the Court even eliminated the word ‘substantial’ , and invalidated only if there was no rational basis for a congressional finding that the regulated activity affects interstate commerce.   No reasonable connection between the regulatory means selected and the asserted ends. o  Regulatory Laws   Expansive view has allowed Congress to regulate almost anything, including intangible things such as insurance policies and stocks.   Congress can regulate purely intrastate actitvities, including all aspects of business, if there is a rational basis for believeing there is an interstate effect.   Congress can regulate intrastate activities, if necessary to protect its regulation of interstate activities. o  Civil Rights Laws   In evaluating the law and its application “the only questions are (1) whether Congress had a rational basis for finding that racial discrimination affected commerce, (2) and if such basis exists, whether the means selected to eliminate the evil are reasonable and appropriate.”    “if it is interstate commerce that feels the pinch, it does not  matter how local the operation which applies the squeeze.”    Katzenback v. McClung: Congress had rationally concluded that  discrimination by restaraunts cumulatively had an impact on interstate commerce. o  Criminal Laws 





















 

  Rational to conclude intrastate loan sharking has a sufficient effect on interstate commerce.   Is the Broad Definition of the Commerce Power Desirable? o  Key Question: Whether this is a desirable recognition of the need for federal legislation or whether it is an undesirable abandonment of basic constitutional principles?   The Commerce Clause After United States v. Lopez o  Lopez: SC declared unconstitutional the Act, making it a federal crime to have a gun within 1,000 ft of a school.   Court ruled the relationship to interstate commerce was too tangential and uncertain to uphold the law as a valid exercise of  Congress’s commerce power.  o  Morrison: Goes further than Lopez, by holding that Congress cannot regulate noneconomic activity by finding that, looked at cumulatively, it has a substantial effect on interstate commerce.   United States v. Lopez o  Unconstitutional because it was not substantially related to interstate commerce. o  Court articulated three types of activities that Congress can regulate:   “Regulate the use of channels of interstate commerce    Heart of Atlanta Motel:    Congress may legislate “to regulate and protect the instrumentalities 















of interstate commerce.”   Includes power to regulate persons and things in interstate commerce   Congress may “regulate those activities having a substantial relation to interstate commerce.”    “the proper test requires an analysis of whether the regulated activity ‘substantially affects’ interstate commerce.”    United States v. Morrison Reaffirmed d the three part test for Congress’s commerce power from Lopez  o  Reaffirme   Rhenquist reiterated that Congress was regulating noneconomic activity that had traditionally been dealt with by state laws.   Court has only upheld regulation of intrastate activity where that activity is economic in nature   “if accepted Congress would be allowed t o regulate any crimeas long as the nationwide, aggregated impact of that  crime has substantial affects on employment, production, transit, or consumption.”  o  Morrison goes farther than Lopez in limiting the scope of Congress’s commerce power by narrowing the ability of Congress to regulate based on findings of “substantial effect” effect” on interstate commerce. commerce. At least in the areas that the Court regards as traditionally regulated by the states, Congress cannot regulate noneconomic activity based on cumulative effect on interstate commerce. 













 

  Narrowly Interpreting Interpreting Laws to Avoid “Constitutional Doubts”  o  Two cases after, Congress used restrictive interpretations of the commerce power as a reason for limiting the scope of federal laws. o  U.S. v. Jones:Statute didn’t invol ve arson, thus avoiding constitutionality question. o  Solid Waste Management v. U.S. Army Corps of Engineers: the presence of  migratory birds is not sufficient to bring intrastate waters within the scope of  the Water Pollution Control Act.   Both cases indicate another way in which the Rehnnquist Court’s narrow interpretation of the commerce power is manifesting itself.   Upholding Federal Laws and Rejecting Commerce Clause Challenges   o  Pierce County, WA v. Guillen: “it is well established that the Commerce Clau se gives Congress authority to regulate the use of the channels of interstate







commerce… [The Statutes] can be viewed as legislation aimed at improving safety of channels of interstate commerce and increasing protection for the instrumentalities of interstate interstate commerce. As such, they fall within Congress’s Commerce Clause power.” o  Gonzales v. Raich: The court concluded, that growing marijuana, looked at  cumulatively, including that grown for medical purposes, hs a substantial effect on interstate commerce.   Both cases stand for the proposition that intrastate production of a commodity sold in interstate commerce is economic activity, and thus substantial effect can be based on cumulative impact.   Implications o  A lot of questions remain unanswered. o  The Taxing and Spending Power   Article I §8   The Scope of The Taxing and Spending Power   For What Purposes May Congress Tax and Spend? o  Congress has broad authority to tax and spend for the general welfare.   United States v. Butler  Concerned the the constitutionality of the Agriculture Adjustment Act of 1933, seeking to subsidize the production in agriculture.   The Court declared the Act unconstitutional on the ground that  it violated the Tenth Amendment because it regulated production. o  Has never been followed   The Butler Court’s holding concerning the taxing and spending powers remains good law. o  Congress could tax and spend for any purpose that it  believed served the general welfare, so long as Congress did not violate another constitutional provision. o  Steward v. Davis: Upheld unemployment payments under Social Security Act. 















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