dore outline

8/6/2019 Dore Outline

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Table of Contents

Article III..2

Judicial Review.2

Advisory Opinions.......5

Standing....6

Prudential Standing Doctrine.....7

Mootness...8

Ripeness....8

Political Questions...8

Legal v. Political Questions....9

Impeachment Proceedings....10

Constitutional Amendment Process.....10

Presidential Election..10

The Federal System...10

The Commerce Power...13

Commerce Power and Civil Rights..17

Commerce Power and Crime...18

Revival of Internal Limits on the Commerce Power.18

Federalism and the 10th

and 11th

Amendments..20

Commandeering States.21

State Sovereign Immunity and the 11th Amendment.22

The Dormant Commerce Clause.24

Police-Commerce Distinction..24

Three Categories of Commerce Clause Challenges..26

Facially Discriminatory Laws.26

Market Exception...........................................................................................30

Facially Neutral Laws with Hidden Intentional Discrimination..31

Facially Neutral Laws With Accidental Discrimination...33

Privileges and Immunities Clause...36

Congressional Preemption of State Regulation.37

Congressional Consent to State Regulation39

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Article III: Judicial PowerSection 1.Judicial Power, Tenure and Compensation. The judicial Power of the UnitedStates, shall be vested in one supreme Court, and in such inferior Courts as the Congress may

from time to time ordain and establish. The Judges, both of the supreme and inferior Courts,shall hold their Offices during good Behaviour, and shall, at stated Times, receive for theirServices, a Compensation, which shall not be diminished during their Continuance in Office.

Section 2, Clause 1 Jurisdiction of Courts. The judicial Power shall extend to all Cases, inLaw and Equity, arising under this Constitution, the Laws of the United States, and Treatiesmade, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, otherpublic Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--toControversies to which the United States shall be a Party;--to Controversies between two ormore States;--between a State and Citizens of another State;--between Citizens of differentStates;--between Citizens of the same State claiming Lands under Grants of different States, andbetween a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Section 2, Clause 2. Supreme Court, Original and Appellate Jurisdiction. In all Casesaffecting Ambassadors, other public Ministers and Consuls, and those in which a State shall beParty, the supreme Court shall have original Jurisdiction. In all the other Cases beforementioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, withsuch Exceptions, and under such Regulations as the Congress shall make.

Section 2, Clause 3. Criminal Trial by Jury. The Trial of all Crimes, except in Cases ofImpeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimesshall have been committed; but when not committed within any State, the Trial shall be at suchPlace or Places as the Congress may by Law have directed.

Section 3, Clause 1. Treason. Treason against the United States, shall consist only in levying

War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Personshall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act,or on Confession in open Court.Section 3, Clause 2. Punishment of Treason. The Congress shall have Power to declare thePunishment of Treason, but no Attainder of Treason shall work Corruption of Blood, orForfeiture except during the Life of the Person attainted.

Judicial Review

Marbury v. Madison (1803)

Facts: Outgoing Adams Administration made last-minute judicial appointments, but thecommissions were not delivered before the end of the term (they were signed, sealed, but notdelivered). Incoming Jefferson Administration chose to disregard the undelivered commissionsand Marbury sought a writ of mandamus from SC to compel Sec of State Madison to deliverthem. Jeffersonians claimed SC could not review the constitutionality of congressional acts.

Held: Marbury has a right to resort to the protection of the law and a writ of mandamus is anappropriate action. However, the Supreme Court does not have original jurisdiction over thismatter.

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Questionso Does P have a right to the commission? Yes, it was signed and sealed prior to the

end of the Adams Administration.o Has Ps right been violated? Yes, he never got his commission.

o Is there a legal remedy? Yes, Ps legal right was violated and it is the essence of

civil liberty to receive a remedy. Depends on nature of the problem political problem requires politicalremedy (look at Cons to determine).

Doctrine of Exclusive Non-Reviewable Discretion

Sec of States duty to deliver was part ofduties given to the position by thelegislature and violated an individuals rights, so it needed a legal remedy.o Is the remedy a writ of mandamus (order from Court to an official to do an act he is

supposed to do)? Yes, because the official is directed by law to do this act AND the act affectsthe rights of individuals.

If a power granted to the President, is intended solely to be used at the will ofthe President in his own discretion, it is not examinable by the courts. If a specific duty is

assigned by law and individual rights depend upon performance of that duty, an individual withvested rights that has been injured may resort to the laws of the country for redress. Marbury'sappointment is a specific duty, not a political question, and therefore may be addressed by thecourts.o Can the Writ come from the SC? No

Judiciary Act of 1789: gave SC power to issue writ of mandamus to personsholding office in US

Section 13 of Judiciary Act of 1789 purports to unconstitutionally expand theoriginal jurisdiction of the SC.

Congress had attempted to grant the SC original jurisdiction to issue Writs of

Mandamus through a legislative act. The Court determined through Constitutional interpretationthat Congress did not have the authority to grant this power and that the Supreme Court heldonly appellate jurisdiction over this matter. Therefore, the legislative act was overturned asunconstitutional and Marbury must resort first to the lower courts.o Can an act (Judiciary Act) going against Cons (adding powers to SC not in Article

III) become law of the land? No

Article III, Sect 2, Clause 2 of the Cons sets out a distinct set of categories inwhich the original jurisdiction of SC may be exercised and Judiciary Act Sect 13 conflicts withArt 3.

Any law that conflicts with the Cons is void b/c Cons is supreme law of theland.

Rules

o Declared horizontal judicial review and declared void anything that went against the

Constitution.o The Supreme Court has judicial review over acts of Congress. This power allows the

Supreme Court to declare those acts that fall outside the legislature's enumerated powersunconstitutional.o SC has (exclusive and) final power to police cons matters.

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o Judicial review is not a power expressly granted to the SC in the Cons. The SC

has determined it has the power to review acts of the other branches of govt to determine

their constitutionality and to overrule those acts that fall outside of the powers granted

within the Cons.

Interpretations

o Narrow: judicial review is simply a byproduct of courts duty to decide cases withinits jurisdiction (including Cons). SC and Cong as co-protectors of Cons.o Broad: courts have special competence to interpret law (including Cons) and are the

ultimate, supreme interpreters of Cons. SC as sole protector of Cons.

This view is more accepted today afterMcCulloch and Cooper.

Martin v. Hunters Lessee (1816) VA court refused to follow SCs ruling in Devisee v. Hunters Lessee (land disputeinstituted in 1791); said Cons did not authorize SC to reverse state rulings; said if fed questionscame up in state courts, states could provide final decision.

Question: Does appellate power extend to state tribunals? Yes.

Court: Appellate power extends to state courts in order to keep uniformity in terms ofinterpretation of Cons and fed law (Doctrine of Uniformity).o Applies to fed court review of state court decisions regarding fed law, NOT state

law.o Motive is necessity of uniformity.

o argument that power may be abused isnt an argument for non-existence

Declared vertical judicial review (SC can review state decisions; states are notindependent, sovereign entities).

Cohens v. VA (1821) Cohen brothers were convicted of selling DC lottery tickets; brothers claimed thatsupremacy clause made them immune from state laws concerning selling lottery tickets; SCreviewed case and convicted them b/c Cong statute did not give them such immunity.

SC had original jurisdiction:o State was party.

o No appellate b/c it was a state law issue.

o judicial [power] extends to all cases arising under the constitution or a law of the

United States, whoever may be the parties

Cooper v. Aaron (1958)o Facts: AfterBrown, US SC desegregation of Little Rocks Central High School was

blocked by governor Orval Faubus, who called in the National Guard to prevent black studentsfrom going inside. District Court injunction removed troops and black students attended, therewas continued turmoil that caused the school board to seek postponement of the desegregationprogram.

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o Question: Does a state have to obey a federal court order resting on SCs interpretation of

the Cons? Yes.o Rule: SC issole interpreter of Cons. and their interpretation is the supreme law of

the land (Art. IV + Marbury) and Art VI makes it binding on the states (supremacy clause).o Broad interpretation ofMarbury SC sole interpretor of Cons.

o expanded on Marbury by adding judicial exclusiveness

U.S. v. Miranda

o Supreme court has already made a decision saying that it was necessary to

Mirandize individuals. Congress passed a statute that said if the statementswere voluntarily made the Miranda rights did not have to be read.

o Courts smack that down, this is a constitutional matter that the court has

already ruled on, congress has NO authority.o The problem here is what is required by the constitution? And who

decides whether it is a constitutional question. There is one answer in thecourts opinion. Themselves.

o Dissent: not a constitutional issue shouldnt be decided by the courts,accusing the court of announcing a new principle that gives the courts apower not only to apply the constitution but to expand it. This is anantidemocratic power that DOES NOT exist. It begs the question thatneeds to be answered how do you expand the constitution is to assume youknow what the constitution means. There must be some priorunderstanding.

o It is possible to violate Miranda without violating the constitution, this

means it cannot be determined by the courts, and this would give thecourts unchecked power.

o Implicit in the dissents argument is whether Miranda is a constitutional

issue.o How can Scalia charge the majority with expanding the constitution. That

implies that there is some prior conception of a definitive meaning of theconstitution. So who has this definitive interpretation of the constitution.Marshall says the Supreme Court. Supreme law, supreme interpretation.There is no non-circular logical argument that can be constructed. Its beenworking for 200 years lets not mess with it.

Dickerson v. US(2000)o SC held that a constitutional decision of the SC cannotbe overruled by an Act of

Congress (Miranda rights trump Congs Act allowing admissibility of voluntary statements);Cong can overrule SC non-constitutional decision.o Cong has authority to modify judicially created rules of evidence not required by

Cons., but Cong may NOT legislatively supercede SC decisions in interpreting and applying theCons.

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o Dissent: Congs act doesnt violate Cons itself (narrow interpretation ofMarbury);

majority gives SC antidemocratic power by allowing SC to restrict Congress by its decisions, notjust by Cons; Miranda is not a cons rule and Cong can overrule it.

Ex Parte McCardle (1868)o SC lacked jurisdiction here b/c of Congs exclusion of SC from cases of habeas corpus

under act of 1867 excepted appeals from Circuit Courts.o The jurisdiction of the Supreme Court is conferred from the Constitution, not derived

from Congress. However, Congress has the power to make exceptions and limitations toappellate jurisdiction of narrow band of cases under Art III.

Advisory Opinions

opinions on the legality of executive or legislative action that didnt involve a judicial

case) SC refuses to issue advisory opinions (some state SCs do it though).

Rescue Army v. Municipal Court of Los Angeles (1947)

Policy reasons for refusing to issue advisory opinions: so that constitutional issuesaffecting legislation will not be decided in non-adversarial proceedings before it is necessary todecide them

StandingJusticiability-what kind of cases can and court litigate, or hear?

o Must be a case or controversy

o To be a controversy it must be concrete and non-hypothetical

o Must involve two parties.

o Must involve parties claiming an actual injury that is personal and

concrete (actual) to them, which has both constitutional and prudentialelements

o Must arise neither too late or too soon for judicial resolution

o Must be about legal rights of individuals, cant be political

o No advisory opinions or academic inquiries

Constitutional elements:

Personal Injury

o Requires an actual injury/injury in fact that is particularized and concrete, distinct

and palpable [non-hypothetical], personal (association can raise claim for member only ifmember and association have same purpose), imminent and not probable.

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o Not political injury.

Causationo P has burden to show that harm is fairly traceable to D.

o Cant depend on independent actions of third party that court cant control or

predict.

Redressabilityo Must be a remedy that the court can give and that remedies the specific injury.

o Partial redress may be sufficicent (MA v. EPA).

Lujan v. Defenders of Wildlife (1992)

Facts: Respondent Defenders of Wildlife sued Appellant Lujan (Sec of Interior) b/c hecreated a rule interpreting Section 7 of the Endangered Species Act to extend to the US and thehigh seas only (original interpretation included foreign territories).

Doctrine of Standing

o Injury : P must have an injury in fact that is concrete and particularized or actual

or imminent, not conjectural or hypothetical.o Causation : There must be a causal connection btwn the injury and the conductcomplained of (fairly traceable to the challenged action, not result of independent action ofsome third party not before the court).o Redressability : must be likely as opposed to merely speculative that injury will be

redressed by a favorable decision.

P failed to show injury in fact (no concrete plan to return) and redressability (projectswould continue even if court ruled for P).

P didnt have concrete interest for citizen-suit, just general grievance about govt.

Dissent: there was injury and redressability procedural injury.

Massachusetts v. EPA (2007) Facts: Massachusetts, 11 other states, and 3 cities sued the EPA for failing to regulatecarbon dioxide emissions from new motor vehicles and other greenhouse gases using itsauthority under 202(a)(1) of the Clean Air Act.

Doctrine of Standing

o Injury: MAs coastline was shrinking due to global warming (has a special

interest independent of its citizens (parens patriae) and is the only entity that can represent theinterests of all its citizens).o Causation: EPAs failure to regulate emissions contributed meaningfully to the

injuries suffered by MA.o Redressability: Other nations will continue to emit greenhouse gases and

contribute to global warming, but EPA can regulate enough to make a meaningful contribution tostopping global warming.

Dissent: no particularized injury (shared with humanity at large) or causation (othercountries have higher emissions).

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Allen v. Wright(1984) Facts: Parents of black children in public school claimed IRS failed to deny tax-exemptstatus to racially discriminatory private schools. P claimed this provided an alternative ofsegregated private schools, which made desegregation of public schools more difficult, injuringtheir children by diminishing the quality of their education.

Court: lacked causation required for standing injury alleged is concrete, but is not fairlytraceable to the govts conduct.o Injury to respondents is highly indirect and line of causation between conduct of

IRS and desegregation is weak.

Prudential Standing Doctrines (created by SC) Third-party Standingo Standing goes to parties directly injured, third party cant assert claim vicariously.

o Not personal injury.

o

Valley Forge Christian College (1982): P must rest his claim of relief upon hisown legal rights and not the legal rights of third partieso Exception: Craig v. Boren (1976)

Seller of beer was permitted to challenge a state law imposing a higher agerequirement for males to buy alcohol claimed sex discrimination b/c buyer and seller haveinterchangeable economic interests.

Generalized Greivanceso Court refuses to hear cons claims from P who is merely one of millions of citizens

who want to resolve constitutional doubts about govt action.o Not particularized or concrete injury.

o Frothingham v. Mellon (1923)

Court refused to hear case where taxpayer wanted to enjoin Sec ofTreasury from making conditional grants to state programs because interest of a taxpayer in themonies of the treasury is shared with millions of others and is minute and indeterminable.o Exception:Flast v. Cohen (1968)

Allowed taxpayers to challenge a fed grant to religious schools based onEstablishment Clause (separation of church and state).o US v. Richardson (1974)

Court rejected standing of taxpayer that claimed a law keeping CIAexpenditures secret violated Statement of Account Clause.o FEC v. Akins (1998)

Court: not a generalized grievance b/c the injury to voting is concrete andwidely shared and there was injury in fact; voting is the most basic political value.

Zone of Interesto Each law has a zone of protected interests it intends to cover.

o Bennett v. Spear(1997)

Court said the zone of interests test is purely prudential and prudentialstanding obstacles can always be negated by express action of Cong. (here it was citizen-suitprovision of ESA).

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Mootness When litigants who clearly had standing at the outset of a suit are deprived of a concretestake in the outcome by changes in the facts or in law occurring after the lawsuit has gotten

underway. Exception for cases that are capable of repetition yet evading review (ex:Roe v. Wade pregnancy is too short to make it through the judicial process during pregnancy).

Ripeness Seeks to prevent premature adjudication (dispute is insufficiently developed and is tooremote or speculative to warrant judicial attention).

United Public Workers v. Mitchell(1947): Attack on Hatch Act that prohibited fed execEEs from taking an active part in political management or campaigns; challengers sought

declaratory judgment and Court said that most of the challengers only wished to act against theAct, so the complaints were premature.

Laird v. Tatum (1972): Claim against US Army taking surveillance of lawful politicalactivity; Court: Ps complaint rested on fear that Army would use the video in the future to harmP such fears didnt amount to a specific present objective harm or threat of specific futureharm.

Political Questions aspect of constitutional interpretation - some matters are committed to the unreviewablediscretion of the political branches

aspect of judicial discretion - some otherwise legal questions ought to be left to the otherbranches as a matter of prudence

Baker v. Carr(1962) Facts: TN voters claimed the districts were malapportioned and had not beenredistributed since 1901 even though there had been changes in population and distribution;brought claim under 14th EPC.

Court: reapportionment issues are justiciable (not PQ b/c its between fed judiciary andthe states).o Court is the ultimate interpreter of Cons and has the responsibility of deciding

whether a matter belongs to another branch under the Cons or whether the action of a branch hasexceeded its authority.

Common Characteristics of PQso textually usually commit the issue to a certain dept. OR

o have a lack of judicial standards for resolving it OR

o impossible to decide without an initial policy determination that is nonjudicial OR

o impossible for a court to come to an independent resolution without expressing

lack of respect to the other branches OR

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o unusual need for unquestioning adherence to a political decision already made OR

o potentially embarrassing as a result of multiple pronouncements by various

departments on one question

Claim is not under Guaranty Clause, so its not a PQ.

Luther v. Borden

o Ds broke into a home to arrest P and sought to justify this b/c they were agents ofthe lawful govt of RI (problem b/c at that time 2 competing groups claimed to be the lawfulgovt).o Court said Ds not guilty b/c it would lead to chaos b/c then no local govt had been

chartered became PQ under Guraranty Clause.

Reversed Colegrove v. Green (1946)o Court declined to reach the merits of a challenge to the congressional districting

scheme in IL (challenged as uncons b/c districts were not equal in population).o Court said it was beyond its competency to grant relief and that Cons (Art IV)

gives Cong exclusive authority to create fair representation in the House.

Legal v. Political QuestionsPowell v. McCormack(1969) House refused to seat Powell b/c of wrongdoing, Powell claimed he met all therequirements under Art. I, McCormack claimed House could be the judge of the membersqualifications under Art I and that judicial resolution would yield an embarrassing confrontationbtwn the branches.

Court: this is justiciable b/c Houses review of its members is limited to the qualificationsexpressly set forth in the Cons.

Court: not an embarrassing confrontation b/c our system of govt requires courts on

occasion to interpret Cons differently from another branch and Court cannot avoid itsresponsibility b/c of confrontation.

Goldwater v. Carter(1979) Cons gives Senate power of advice and consent to treaties, but is silent on the terminationof the treaty; Pres Carter terminated a treaty and Goldwater sued.

Court: this is nonjusticiable involves the authority of the Pres and conduct of foreignrelations AND is a dispute between coequal branches of govt.

Concurrence (Powell) not ripe, but justiciable b/c there are judicially manageable anddiscoverable standards.

Dissent (Brennan) Cons gives Pres sole power to recognize, and withdraw recognitionfrom, foreign regimes.

Impeachment ProceedingsNixon v. US(1993) District Chief Judge Nixon was impeached by trial by a Senate Committee.

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Nixon: Under Art I, the Senate has the sole power to try all impeachments, so he shouldhave been tried by the whole Senate, not a committee.

Court: framers intended legis to be sole check on judicial branch and the text of the Conssays the Senate has thesole power to try impeachments, which means that they can decide how itis done.

o Impeachment hearings are legiss check on judicial branch, so its nonreviewable. Concurrence White: Senates outcome was judicially valid.

Coucurrence Souter: Court should be able to step in and review when appropriate (whenits acting beyond its scope of Constitutional authority).

Constitutional Amendment ProcessColeman v. Miller Court held question of what is reasonable time for ratification nonjusticiable.

Court will not review this b/c they would be interfering with the Amendment process,which is the only way the Court can be overruled.

Presidential ElectionBush v. Gore (2000) Court held that recounts were uncons under the EP clause b/c they were conducted undernonuniform standards and Art II gives Cong power to count votes; Court couldnt give remedyby Dec 12 also.

The Federal SystemArticle I, Section 8, Clause 18: [States cannot enter into treaties, coin money, grant titles

of nobility, and requires congressional consent for states to impose custom duties, enter interstatecompacts, or engage in war.]

Section 8, Clause 18: Enactment of Laws for Execution of Governmental Powers. To makeall Laws which shall be necessary and proper for carrying into Execution the foregoingPowers, and all other Powers vested by this Constitution in the Government of the United States,or in any Department or Officer thereof. [Necessary and proper Clause]

Section 10, Clause 1. Treaties, Letters of Marque and Reprisal; Coinage of Money; Bills of

Credit; Gold and Silver as Legal Tender; Bills of Attainder; Ex Post Facto Laws;

Impairment of Contracts; Title of Nobility. No State shall enter into any Treaty, Alliance, or

Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; makeany Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, expost facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility

Section 10, Clause 2. Duties on Imports. No State shall, without the Consent of the Congress,lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary forexecuting its inspection Laws: and the net Produce of all Duties and Imposts, laid by any Stateon Imports or Exports, shall be for the Use of the Treasury of the United States; and all such

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Laws shall be subject to the Revision and Controul of the Congress.

Section 10, Clause 3. Duty on Tonnage, State Compacts, War. No State shall, without theConsent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace,enter into any Agreement or Compact with another State, or with a foreign Power, or engage in

War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Article VI: This Constitution, and the Laws of the United States which shall be made inpursuance thereof; and all Treaties made, or which shall be made, under the Authority of theUnited States, shall be the supreme Law of the Land; and the Judges in every state shall bebound thereby, and Thing in the Constitution or Laws of any State to the Contrarynotwithstanding.

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.

McCullogh v. MD (1819)

Facts: MD attempted to tax 2nd bank of US (passed act to tax all banks not chartered bythe legislature); McCulloch was the cashier for the Second Bank and didnt pay tax; MD trialcourt decided against McCullogh on an agreed statement of facts; MD court of appeals affirmed;taken to SC by a writ of error.

Question 1: Does Cong have the power to incorporate a bank? Yes.

o MD: not in enumerated powers of govt; states are sovereign and superior

o Court: govt of the people; fed govt has enumerated powers but is supreme in those

powers; enumerated powers dont include creating a bank, but it is an implied power (Cons byits nature doesnt enumerate all govts powers, otherwise it would be a code); 10th amendmentdoesnt say the powers not given to fed govt expressly are given to the states this leavesroom for implicit powers; The power to create a corporation is not a great power; it is only ameans to an end (the end being one of the fed govts enumerated powers).

Doctrine of Implied Powers: must meet means/ends test.o Necessary and Proper Clause (10th)

MD: necessary controls whole clause and should be strictly interpreted

Court: varying degrees of necessary; Clause doesnt say absolutelynecessary like 10th Amendment does = no limited interpretation

Example: power to establish post offices and post roads required govt toinfer carrying post along the road and punishing those who rob the mail (not indispensablynecessary, but essential).

Qualified by proper, not absolutely.

Placed among Congs powers, not limitations; removes all doubt as toincidental powers of govt.

permits Congress to seek an objective that is withinits enumerated powers so long as it is rationally

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related to the objective and not forbidden by theConstitution. In liberally interpreting the Necessaryand Proper clause, the Court naturally rejectedMaryland's narrow interpretation of the clause, whichpurported that the word "necessary" in the necessary

and proper clause meant that Congress could onlypass those laws which were absolutely essential inthe execution of its enumerated powers. The Courtrejected this argument, on the grounds that many ofthe enumerated powers of Congress under theConstitution would be useless if only those lawsdeemed absolutely essential to a power's executioncould be passed. (rational relations test)

o Rule: If the end is legitimate and within the scope of the Cons and the means are

not prohibited, are appropriate, and are plainly adapted to that end, they are constitutional.o Check: If Cong passed a law that was prohibited by Cons or under a pretext of

exercising powers, the Court would strike it down. Question 2: Can the state of MD, without violating the constitution, tax that branch? Noo power to create (bank) implies a power to preserve; power to destroy (tax) is

incompatible with the power to preserve; when there is a conflict, the supreme authority (Cons)controls (Supremacy Clause)o MD: states can exercise their original power to tax upon Congs laws

Court: If state taxes fed bank, it would be taxing people who are notrepresented constituents and fed govt has no remedy in the state legislature (no representativereinforcement); there was no original power b/c of Cons Big Bang Theory; 1 state cant tax fedgovt b/c it belongs to all.; vertical separation of powers, if state taxed bank it could tax all fedentities.

2 principles:o that the Constitution grants to Congress implied powers for implementing the

Constitution's express powers, in order to create a functional national government (textual), ando that state action may not impede valid constitutional exercises of power by the

Federal government (structural)

2 Holdings:o Nation-centered view of the Cons

Broad view of Congs implied powers under the Necessary and ProperClause.

If the means tended directly to the execution of delegated powers, Congs

judgment should stand.o MD lacked power to tax national bank

B/c of structure of govt created by Cons and national supremacy.

Potentially destructive consequences of the power to tax.

All states are represented in the national legislature, so there is little reasonto fear oppressive taxation.

But if state taxes national govt, most of the nations voters are excludedfrom representation.

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US Term Limits, Inc. v. Thornton (1995) Facts: AR tried to limit the terms of Representatives to 3 terms and of Senators to 2terms; AR SC said it was unconstitutional, AR appealed to US SC.

Question: Can a state modify the qualifications of Reps and Senators? No. AR: 10th Amendment and principle of reserved powers require states to be allowed to addsuch qualifications (powers not reserved by fed govt are reserved by the states as long as they arenot prohibited)

Court: Even if states possessed some original power in this area, the Framers intended theCons to be the sole source of qualifications for members of Cong, which divested the states ofany power to do so.o Founders wanted to create a uniform National Legislature.

o no state can say it reserved what it never possessed/didnt exist yet (Cons Big

Bang Theory; McCulloch)

Thomas Dissento Default rule that whatever power the fed govt doesnt have automatically defaults

to the states (10th amendment).o Cons is silent on the ability of the states to modify qualifications and in this

silence, the states have the power to do so.

The Commerce PowerArticle I, Section 8, Clause 3: The Congress shall have power . . . to regulate commerce withforeign nations, and among the several states, and with the Indian tribes

Gibbons v. Ogden (1824)

Facts: NY legislature gave Livingston and Fulton the exclusive right to operatesteamboats in NY waters. Livingston and Fulton licensed Ogden to operate a ferry btwn NY andElizabethtown, NJ. Gibbons was Ogdens partner and began operating a competing service inviolation of Ogdens monopoly.

Question: May a state adopt legislation regarding interstate commerce that conflicts withthe Commerce Clause? Noo Under the Commerce Clause, Congress can legislate with regard to all commerce

between states. Commerce includes commercial intercourse (navigation included), not justbuying and selling.o Congressional regulation of interstate commerce includes the ability to regulate

matters occurring within one state, as long as the activity has some sort of connection with

another state (among the several states). Here, the steamboat started in New York and ended inNew Jersey, so it was within reach of the commerce power.o Intrastate commerce = govt cant interfere under CC

o When a state law conflicts with a valid federal statute, the state law will violate

the Supremacy Clause (Art 6) and be deemed invalid.

State license must yield to fed license.

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Direct v. Indirect Effects Test (pre-1937) Directly related to interstate commerce = ok for fed govt to regulate; indirectly related =not ok for fed govt to regulate

Sugar Trust Case (US v. EC Knight Co.) (1895) Facts: EC Knight wanted to purchase other sugar refineries that would give it a monopolyon sugar manufacturing.

Court: Monopoly in manufacturing didnt violate the Sherman Act; doesnt controlcommerce, only indirectly affects it.

Commerce includes distribution and transportation (buying, selling, contracting).

Dissent: manufacturing monopoloy does directly affect commerce b/c it disturbs orunreasonably obstructs freedom in buying and selling products.

Substantial Economic Effects Test (1934-1995) Emphasizes the practical physical or economic effects of the regulated intrastate activities

on interstate commerce (if it substantially effects economy, fed govt can regulate)

The Shreveport Rate Case (Houston v. US) (1914) Facts: TX was charging lower haul rates for intrastate carriers than interstate carriers.

RR: Cong doesnt have the power to control intrastate charges of an interstate carrier.

Court: affects interstate commerce b/c interstate carriers are instruments of interstatecommerce; so Cong has power.o The different rates were discriminatory against interstate carriers; Cong can

require that agencies of interstate commerce dont destroy it (fair terms).

Says same thing as Gibbons: interstate and intrastate are so related that control of one isnecessary related to control of another.

Says same thing as McCulloch: Cong can do what is necessary and proper to foster andprotect interstate commerce.

The Stream/Current of Commerce Test (1995-present) Some local activities can be regulated by Cong b/c they could be viewed as being incommerce or or as an integral part of commerce b/c they are done in a recurring sense.

Swift v. US(1905) Court held that price fixing by meat dealers violated Sherman Act.

Intention that the cattle are there temporarily and are intended to move on and the

movement is constant and cyclical.

National Police Regulation Cong used commerce power to deal with moral concerns (gambling, prostitution, andtheft) in addition to economic concerns.

The Lottery Case (Champion v. Ames) (1903) Facts: Federal Lottery Act prohibited interstate transporting of lotto tickets.

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Court: subjects of traffic = subjects of commerce, so Cong can regulateo Cooperative Federalism Analogy: State can outlaw lottery as an evil, so Cong can

regulate it as well to protect people (supplemented state act).

Argument: opens floodgates for Cong to exclude anything from commerceo Court: The possible abuse of a power is not an argument against its existence.

Dissent: Cong doesnt have gen police power; Cong can only regulate physical harms,not moral harms.

Hipolite Egg Co. v. US(1911) Facts: Shipment of preserved eggs with a harmful ingredient were seized after passingout of interstate commerce.

Question: Can articles that are outlaws of commerce be seized at their destination? Yes

Court: if not, it would defeat the provision for their confiscationo Cong banned interstate movement of harmful goods and the seizure of the goods

at their destination was a legitimate means to an end within Congs power (the end beingbanning them from interstate commerce); tracks McCulloch.

Hoke v. US(1913) Facts: Mann Act prohibited transporation of women in interstate commerce for immoralpurposes.

Court: upheld b/c if interstate commerce of lotteries, obscene literature, diseased cattle orpersons, and impure food and drugs can be prohibited, then the enslavement of women viainterstate commerce can also be prohibited.o Cong has power over commercial transporation among the states and this power is

complete.o Cong can adopt necessary and convenient means as part of CC power.

Hammer v. Dagenhart(1918) Facts: Congressional act in 1916 prohibited interstate commerce of products of childlabor.

Question: Was the Act unconsitutional? Yes

Court: distinguished from Lottery,Hipolite, andHokeo those cases dealt with particular subjects that the govt could prohibit as part of its

power to regulate themo Transportation was essential ingredient of the harmful product and in this case the

harm had nothing to do with the product being transported.o this case deals with labor, which is a local regulation; the maufacturing of the

product is the harm and when the goods get transported there is no harm

Dissent: this is a moral issue Cong can regulate and is part of the stream of commercesince manufactured goods are intended for interstate commerce (constantly reoccuring as inSwift).

SC Invalidation of New Deal Measures

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RR Retirement Board v. Alton RR Co. (1935) RR Retirement Act of 1934

SC: Cong didnt have power to establish a retirement and pension plan for all carrierssubject to the Interstate Commerce Act (this laws purpose was not a regulation of interstatecommerce related to welfare of worker, not regulation of commcerce).

Sick Chicken Case (Schechter Poultry Corp v. US) (1935) Facts: National Industrial Recovery Act of 1933 authorized Pres to promulgate codes offair competition for the trade or industry (provisions on unfair trade, min wages and prices, maxhours, collective bargaining).

SC: NIRA unconstitutionally delegated legislative power and application of the act tointrastate activities exceeded the commerce power (wages and hours).o interstate trans ended when shipments reached slaughterhouse; hours and wages

dont affect price and interstate commerce to a point where fed govt can regulate them (then govtcould regulate other elements of cost and there would be no end); this was purely local.o Even though this is for an economic emergency, Cong still needs to be consistent

with Cons.

Carter v. Carter Coal Co (1936) Facts: National Labor Relations Act (right of collective bargaining) and Bituminous CoalConservation Act regulated hours and wages in coal mines.

SC: invalidated the act b/c Cong doesnt have power to enact laws that promote genwelfare; hours fall under production, not commerce, and production is a local activity.o Has indirect effect on interstate commerce and indirect doesnt become direct if

the magnitude of the cause or effect is big (qualitative view).

Cardozo Dissent:

o price provisions were valid under commerce power b/c they directly affectinterstate commerce (like Shreveport)o local activities can have such a close connection that it can affect interstate

commerce

After the New Deal

NLRB v. Jones and Laughlin Steel Corp (1937) Facts: National Labor Relations Board (Under NLR Act) ordered D to end discriminatorypractices; D failed to comply; P sought enforcement in Court.

Question: Does the federal government have the power to regulate local employmentpractices in companies whose business effects interstate commerce? Yes

Court: Local activity (discharging EEs) had a direct enough of an effect on interstatecommerce for fed govt to regulate.o D sold majority of its products out of state.

Shechterand Carternot controlling here.

If activity is essential or appropriate to protect commerce, Cong has power to control it.

Applies to manufacturing here b/c of the potential power of the industries organizing.

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Rule of Law. Congress has the power to regulate intrastate activities that potentiallycould have a significant impact on interstate commerce.

US v Darby(1941) OverruledHammer products themselves dont have to be harmful

Facts: Fair Labor Standards Act had min wage and max hour requirements; D was alumber manufacturer who violated the wage and hour requirements of the Act.

Question: Do the wages and hours of local employees have such a substantial impact oninterstate commerce as to allow Congress to constitutionally regulate them? Yes

SC: shipment of manufactured goods is part of IC and purpose of Act is to stop interstatecompetition from goods manufactured under substandard conditions.o Regardless of Congress's motive, Congress may regulate commerce so long as the

regulations do not infringe on any other constitutional prohibitions (overruledHammer).o Intrastate activities with a substantial effect on IC = Cong has IC power over

them.

Substantial effect = unfair competition in ICo As long as the means are rationally related, the action is ok; Court wont interfere

with legislative judgment. (McCulloch)

Rule of Law. If the regulated intrastate activity has a substantial effect on interstatecommerce, Congress may regulate the activity regardless of Congress's motive (can even controlaspects of local production).

Wickard v. Filburn (1942) Overrules Carter recognizes aggregation theory.

Facts: Filburn (OH dairy farmer) sued Wickard (Sec of Agriculture) to enjoinenforcement of a marketing penalty imposed on him for exceeding the quota of wheat for his

farm under the Agricultural Adjustment Act of 1938. Question: Was the Act beyond Congs commerce power? No substantial economiceffect on interstate commerce.

Court: This was only one farm, but if every other farm similarly situated had a surplus, itwould affect interstate commerce greatly.o No more direct v. indirect - Even if activity is local and not regarded as

commerce, Cong can reach it as long as it has a substantial effect on interstate commerce.o Cumulative effects test- the multiplying of peoples activities that are similarly

situated.

Commerce Power and Civil Rights Civil Rights Act of 1964, Title II: prohibited discrimination based on race, color, religion,or nationality in places of pub accomodation (establishments that offer to serve interstatetravelers or that have a large portion of their food moved in commerce).

Heart of Atlanta Motel v. US(1964) Facts: P Hotel wanted to continue to refuse to rent rooms to African-Americans after theCivil Rights Act was established.

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Question: Did the Civil Rights Act, Title II, go beyond Congs commerce power? No.

Test: whether the activity sought to be regulated is commerce which concerns more statesthan one AND has a real and substantial relation to the national interest.o In this case, the discrimination of hotels made it so that African-Americans would

not want to travel/spend money traveling b/c of the difficulty in finding accommodations.

Katzenbach v. McClung(1964) Facts: Ollies BBQ (11 blocks from interstate) would only serve African-Americanstakeout; 46% of their meat came from IC.

Question: Is Title II a valid exercies of Congressional power under CC? Yes.

Court: Connection to interstate commerce the loss of AAs as customers due tosegregation; direct and adverse effects of the discrimination: restaurants sell less interstate goods,interstate travel is obstructed, and new businesses refrained from establishing there.

Commerce Power and Crime

Perez v. US(1971) Facts: Perez had lent money to the owner of a butcher shop and threatened him when hecould not make is weekly payment.

Fed law prohibited extortionate credit transactions (loansharking enforced by threats ofviolence), Court upheld the law.

even where extortionate credit transactions are intrastate, it affects commerce b/c itsthe second highest source of revenue for organized crime (victims coerced into crimes againstproperty and racketeers take over legitimate businesses)

Organized crime is a local activity that affects IC b/c the individuals who loansharkare members of a class of people all over the nation who loanshark.

Revival of Internal Limits on the Commerce PowerUS v. Lopez(1995) Facts: Cong passed Gun-Free School Zones Act (made possessing a gun within schoolzone a fed offense); D was charged with violating Act when he brought handgun to school.

Question: Does the commerce power of Congress extend to activities that have noapparent connection to interstate commerce? No.

3 categories Cong can regulate under CC:o regulate the use of the channels of interstate commerce

o regulate and protect the instrumentalities, persons, and things of interstate

commerce even if the threat comes from intrastate activitieso regulate activities that have a substantial relation to interstate commerce

This is a criminal statute that has nothing to do with commerce or any other economicenterprise and was not an essential part of a larger regulation of economic activity.

Statute doesnt limit the reach of the statute to firearm possessions that are connected tointerstate commerce

Government contends interstate commerce because: First, because violent crimecauses harm and creates expense, it raises insurance costs, which are spread

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throughout the economy; and second, by limiting the willingness to travel in thearea perceived to be unsafe. The Government also argued that the presence offirearms within a school would be seen as dangerous, resulting in students' beingscared and disturbed; this would, in turn, inhibit learning; and this, in turn, wouldlead to a weaker national economy since education is clearly a crucial element of

the nation's financial health.

Slippery slope argument, the federal government could then regulate any activitythat might lead to violent crime, regardless of its connection to interstatecommerce.

Possible response to the slippery slope argument: Just because a power might beabused doesnt mean the power shouldnt exist

Rule of Law. The power of Congress to regulate activitiesextends only to those activities that substantially affect

interstate commerce. The Act neither regulates commercialactivity, nor contains a requirement that the possession beconnected in any way to interstate commerce.

Concurrence Kennedy:o Maj holding should be limited otherwise prior SC cases will be compromised.

Concurrence Thomas:o Substantial effects test is a departure from original

understanding ofCons. If the substantial effects test was taken to theextreme then there would have been no need for the constitution to furtherenumerate congressional powers, that would just be mere surplussage

Breyer Dissent:o Congress had a rational basis for finding a substantial connection between gun-

related school violence and interstate commerce. Evidence exists that gun-related violenceinterferes with the quality of education in schools and education is related to economic viability.Uses substantial effects test as well as the aggregation theory, cumulative effects of all similarinstances. Congress should be given deference, there is a difference between having a rationalbasis and could have had a rational basis. Looser standard.

Souter Dissent:o This is a return to jurisprudence that was abandoned 60 years ago.

US v. Morrison (2000) Facts: Violence Against Women Act said all people shall have the right to be free fromcrimes of violence motivated by gender; female college student sued 2 other students under theAct.

Question: Can Congress regulate local non-economic activities by way of the CommerceClause? No.

Court: struck down statute b/c b/c violent crimes are not economic in nature; matter of

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state policing.o Gender-based violence is not an economic activity, so aggregation theory of

Wickarddoesnt apply.

Rule of Law. Congress cannot use the Commerce Clause to regulate a local non-economic activity, even if the national aggregate of the activity substantially affects interstate

commerce. Souter Dissent:o Congress has presented strong evidence violence against women affects interstate

commerce. The victims are barred from full participation in the national economy, just likevictims of racial discrimination. substantial effects test, and aggregation theory.

Breyer Dissent:o The distinction between economic and non-economic activities is difficult to

implement. Further, there is no reason for the distinction when the non-commercial localactivities have a large affect on interstate commerce. The factual findings of Congress wereincorrectly ignored. Does not like substantial effect test here again.

Gonzales v. Raich (2005) Facts: Compassionate Use Act in CA allows physicians, patients, and primary caregiversto possess or cultivate marijuana for medicinal purposes. D Raich was doing so under CA law totreat medical conditions.

Question: Does the commerce power include the power to prohibit the local cultivationand use of marijuana in compliance with CA law? Yes.

Court: Compares to Wickard home grown marijuana can have substantial impact onmarket for marijuana; case laws says Cong can regulate purely local activities that are part ofeconomic class of activities that have a substantial affect on interstate commerce.o Activity here is quintessentially economic.

Concurrence Scalia: power for this Act comes from Necessary and Proper Clause. Dissent OConnor: State trying new law is like a laboratory in which state tests out law sothat fed govt doesnt have to; dont want to discourage that.

Dissent Thomas: Ds marijuana has nothing to do with IC; gives govt limitless power.

Federalism and the 10th and 11th Amendments 10th Amendment: reservation of non-delegated powers of the fed govt to the states

11th Amendment: judicial power doesnt extend to suits commenced or prosecutedagainst one of the states (sovereign immunity needed to maintain dual govt)

State Autonomy and the 10th AmendmentCoyle v. OK(1911)

fed govt tried to specify OKs state capital before it could be admitted; Court saidthat power belonged to the state

US v. CA (1936)

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state-owned RR violated Federal Safety Appliance Act; Court upheld the fedpenalty on the state b/c even though operation of RR was state function, statespower is necessarily diminished to the extent of the grants of power to the fedgovt.

NY v. US(1946) Facts: fed govt applied a tax to NYs sale of bottled water from state-owned

springs

Court: upheld b/c Cong has power to tax (can tax a state for something as long asit cannot uniquely be owned by a state like a statehouse).

National League of Cities v. Usery (1976) Facts: Amendments to Fair Labor Standards Act extended min wage and max

hour provisions to EEs of state and local govts.

Court: Amendments were within Congs commerce authority, but were unconsb/c they interfered with traditional state govt functions in administering publiclaw and services and states ability to structure integral governmental functions(fire, police, sanitation, health, parks, recreation).

Garcia v. San Antonio Metropolitan Transit Authority (1985) OverruledNational League

o Court: FLSA can be applied to municipal transit authority

b/c we should just trust the political process of how thestates are represented in the fed govt. The political processinsures that laws that unduly burden the states will not be promulgated.

SC v. Baker(1988) rejected Garcias limit that judicial intervention might still be appropriate to

compensate for possible failings in the national political process

P didnt show that it was left out of political process or that it was singled out;didnt infringe on sovereignty; P was just second-guessing the basis for Congslegislation.

Commandeering StatesNY v. US(1992)

Facts: Low-Level Radioactive Waste Policy Amendments Act required states to

provide for the disposal of such waste generated within their borders and provided3 incentives:o Monetary incentive for states with disposal sites (could impose surcharge

on waste from other states).o Access incentive for states with disposal sites (allowed increase cost for

access to their sites and denial of access)

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o Take title sanction state that failed to provide for the disposal by a

certain date would be liable for all damages suffered by the wastesgenerator or owner.

Question: Does Congress have the authority to force a state to adopt a federalregulatory program? 1 and 2 ok, 3 is not

Court: Congs CC power allows it to give incentives to influence state policychoices OR it can preempt states regulation with federal regulation, but it cannotdirect or coerce the states b/c that violates 10th amendment; Cons does notauthorize Congress to commandeer the state legislative process by compellingstates to enact and enforce a federal regulatory program.

Since Congress cannot directly force States to legislate according to their scheme,and since Congress likewise cannot force States to take title to radioactive waste,O'Connor reasoned that Congress cannot force States to choose between the two.Such coercion would be counter to the federalist structure of government, inwhich a "core of state sovereignty" is enshrined in the Tenth Amendment.

Under the commerce power congress can only regulate activities that affectinterstate commerce in a substantial way

Congress can encourage states to regulate in a certain way there is nothing wrongwith that or they can preempt the state entirely under the supremacy clause. Ifthey implement under the supremacy clause then they pay for it. IT still gives thestates a choice of whether or not to comply.

The lines of accountability are blurred if the government forces the state intocomplying with a federal regulation. At election time the citizens will beconfused.

The federal government "crossed the line distinguishing encouragement fromcoercion."

Constitution is the supreme law of the land if the congress does something thatviolates the constitution even if the states go along with it or consent to it thatdoesnt make that which is illegal , legal.

Rule of Law. Congress does not have the power to force/commandeer states toimplement regulations.

White Dissent:o Act was result of state cooperation and cooperative federalism; disposal of

radioactive waste is a crisis of national proportions.

Stevens Concurrence/Dissento Cons doesnt limit Cong from issuing a simple command to state govts to

implement Congressional legislation; fed govt can in a sense commandeer.

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Printz v. US(1997) Facts: Brady Handgun Violence Prevention Act required state and local law

enforcement officials to conduct background checks on prospective handgunpurchasers.

Question: May Congress compel a state or local government to even temporarily

implement and administer a federal regulatory program? No Court: Direct intrusion on state autonomy b/c it directed state officials; violates

dual sovereignty

Testa v. Katt: state courts cannot refuse to apply fed lawo Distinguished here b/c this act is requiring state officers to administer fed

law.

Rule of Law. Congress may not compel a state or local government toimplement federal regulatory programs, even if they are temporary functions.

Stevens Dissento The founders intended for the fed govt to use the states as an extension of

the federal arm and not doing so creates incentive for fed govt to getbigger in order to implement its policies.

NYandPrintzboth rejected Congs authority to dictate how states regulate their citizens(but Cong can still regulate states own conduct or similar conduct of private actors).

Reno v. Condon (2000) Facts: SC upheld fed law limiting the commercial vending of personal data by

states (Drivers Privacy Protection Act).

Court: this is not governed byNY(not requiring state to pass laws) orPrince (notrequiring state officials to regulate private individuals), but by SC v. Baker(SC

upheld statute b/c it regulated states activities and didnt control the manner inwhich states regulate private parties).o DPPA didnt require states to regulate their citizens, just regulates states

activities as owners of databases.

State Sovereign Immunity and the 11th Amendment11th Amendment : The Judicial power of the United States shall not be construed toextend to any suit in law or equity, commenced or prosecuted against one of the UnitedStates by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Ex Parte Young(1908) Court said fed court could issue injunction against state officials who sought to

enforce unconstitutional state laws b/c state wasnt defendant, the official was thedefendant.

Edelman v. Jordan (1974)

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Court said 11th permitted lawsuits for prospective injunctive relief against stateofficers, but not for retrospective damages (b/c damages against a state couldbankrupt it).

Fitzpatrick v. Bitzer(1976)

Court said Cong can abrogate states 11th immunity to allow stateto be sued for retrospective damages under statutes underCongs enforcement power in 14th amendment (the abrogationmust be explicit in the statute perAtascadero State Hospital v.Scanlon). - If youre suing under the 14th amendment you might be able to getdamages from the state. 14th amendment was passed after the 11th amendment soin effect the 14th amendment amended the 11th amendment. Only under the 14th

amendment could the state be sued.

Seminole Tribe of FL v. FL (1996)

OverruledPA v. Union Gas Facts: Indian Gaming Regulatory Act provided that an Indian tribe could have

gaming activities if the activities conformed with a compact btwn the tribe and thestate. States had to negotiate in good faith with Indian tribe and the tribe couldsue in fed court in order to compel performance.

The Court, in an opinion by Chief Justice William Rehnquist, struck down thisabrogation as unconstitutional, and further held that the doctrine ofEx parteYoungdoes not apply in this situation.

o Dissent: Stevens the majority seems to want to prevent congress from

providing any kind of a federal forum for a broad range of actions against

states and this is not an appropriate approach.

Rule of Law: When Cong is acting under CC power, it may NOT abrogate astates sovereign immunity without the states consent; this doesnt abrogateunder 14th amendment.

Alden v. ME(1999) Facts: ME state probation officers had sued state for failure to pay overtime

required by FLSA, Court dismissed suit.

Court: extended state immunity bar to lawsuits against states in state court; Consspecifically recognizes states as sovereign entities; esp in 10th amendment andframers considered immunity from suit to be central to sovereign dignity.

o FLSA still binding on states even though private suits couldnt be brought.

Fed govt can still bring suits, doesnt bar suits brought understatutes authorized by Sect 5 of 14 th amendment, Ex Parte Youngsaid certain actions against state officers for injunctive relief arenot barred under state sovereign immunity.

Souter Dissent: any state immunity is the prerogative of the sovereign, so itswithin Congs authority.

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Extending State Sovereign ImmunityThese cases dont restrict Congs authority to regulate the states, thy limit the remedialmeans by which Cong may enforce regulation of the states (suits).

FL Prepaid Postsecondary Education Expense Board v. College Savings

Bank(1999) Court said state entities are immune from patent and trademark infringement

claims against them in fed court b/c Cong doesnt have the power to abrogatestate sovereign immunity under antidiscrimination laws enacted under CC (andnot justified under 14th amendment).

Kimel v. FL Board of Regents (2000) Court said states are immune from suits under ADEA b/c Cong doesnt have the

power to abrogate state sovereign immunity under antidiscrimination lawsenacted under CC (and not justified under 14th amendment).

Federal Maritime Commission v SC State Ports Authority (2002) Facts: Fed Maritime Commission heard claim from cruise ship company against

SC port authority for violating the fed Shipping Act by not allowing berths forgambling vessels.

Court: extended state sovereign immunity to adjudications within fedadministrative agencies.

o Even if 11th amendment is not triggered, state can still be immune.

o Proceedings before the FMC are very similar to Art III proceedings, so

11th amendment immunity can be triggered.

Breyer Dissent

o FMC is independent fed agency that is part of the Exec branch, so itsactivities fall under Art II and 11th doesnt apply b/c its not part of judicialdept.

Central VA Community College v. Katz(2006) Court said state sovereign immunity does NOT apply to Congs power to

establish uniform laws on bankruptcies.o 6th Cong enacted provision granting fed courts the authority to release

debtors from state prisons (shows assumption that bankruptcy legislationcomes with power to subordinate state sovereignty).

Thomas Dissent:o Cons says states are not subject to suit by private parties for monetary

relief absent consent or valid Congressional abrogation and nothing in ArtI establishes those preconditions.

Federal Limits on State Regulation of Interstate Commerce 1st source - Where Cong has remained silent and inactive, yet there are some self-

executing limits on state power.

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2nd source where Cong has acted and the statute in question has a preemptiveeffect under the Supremacy Clause.

3rd source - Privileges and Immunities Clause

The Dormant Commerce Clause

Gibbons v. Ogden (1824) Dicta: states are guaranteed a certain amount of sovereignty under 10 th

amendment, so they should have the power to regulate commerce parallel withfed govt.

Whether or not commerce power is exclusive, states can regulate internalcommerce (inspection, quarantine, and health laws).

Commerce Clause limits a state's ability to regulate interstate commerce, which isknown as the dormant commerce clause.

In the interest of regulating a federal power, it may be necessary to regulate locallaws but only for a national purpose.

Police-Commerce Distinction

Willson v. Black-Bird Creek Marsh Co (1829) Facts: P owned sloop that damaged Ds dam while on a creek that flowed into DE

River; P sued D for damages; P challenged (under CC) DE law that allowed D tobuild a dam across a navigable stream; State court decided for D.

Court: DE law was within states power; Cong had not passed any commerce lawon creeks like this, so since there is no fed law for the state law to conflict with,its ok.

Mayor of the City of NY v. Miln (1837) SC upheld a NY statute requiring the master of a vessel arriving from out of state

to report the names and residences of the passengers b/c it was a police power, notregulation of commerce.

The Passenger Cases SC invalidated 2 state laws:

o NY law imposing tax on each passenger to master of ship coming from

another state or countryo MA tax applicable to aliens and master had to post bond for any alien

likely to become a public charge

The License Cases SC sustained state laws requiring license to sell liquor (no maj opinion).

Taney: state can regulate commerce in its ports and harbors for the safety andhealth of its citizens as long as the laws dont conflict with a law of Cong.

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Cooley v. Board of Wardens (1851) Facts: 1803 PA law required ships entering or leaving port of Philadelphia to

engage a local pilot to guide them through the harbor. Failure to comply imposeda penalty of half the fee paid to the Board. 1789 Cong statute said all pilots shallbe regulated by state laws until further legislation by Cong.

Court: that nature of commerce is that it requires both uniform rules and diverserules that accommodate different localities.

Rule of Law. The mere grant to Congress of the power to regulate commercedoes not deprive the states of power to regulate pilots. Although Congress hasregulated on this subject, its legislation manifests an intention, with a singleexception, not to regulate this subject, but to leave it to the individual states.

Concurrent commerce power: Cong doesnt have exclusive, but there is noabsence of a limit on state commerce power in absence of national legislation.

Wabash, St. Louis v. IL (1886) Court held uncons an early state ban on freight rate discrimination by RRs.

Smith v. AL (1888) state examination requirement for engineers was sustained by the Court.

Southern Railway Co v. King(1910) upheld GA safety law requiring RR trains to slow down and blow their whistels at

set intervals (1910)

Seabord Air Line v. Blackwell(1917) invalidated safety whistle law as a direct burden on commerce b/c train was

required to stop 124 times in 123 miles

DiSanto v. PA (1927) law held uncons b/c it was a direct burden on commerce (law imposed license fee

on travel agents selling steamship tickets for foreign travel).

Buck v. Kuykendall(1925) declared uncons b/c even though the route btwn Portland and Seattle was already

well-served, denying a license to someone to give passenger services would denycompetition.

Bradley v. Public Utilities Commn (1933) upheld denail of certificate to operate on a route b/c the highway was so badly

congested that adding another would make it hazardous to the public.

Three Categories of Dormant Commerce Clause Challenges

1 Facially Discriminatory Laws

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State laws that facially discriminate against out-of-state commerce.

per se invalid

Welton v. MO (1875) Invalidated MO license requirement that applied to itinerant peddlers who sold

merchandise from outside MO.

Philadelphia v. NJ(1978) Facts: NJ law prohibited importation of out-of-state waste. Private landfills sued.

Question: Did the NJ law violate the Commerce Clause? YES

Rule: A state may not isolate itself from a problem common to many by erecting abarrier against the movement of interstate trade. A protectionist state law isinvalid if it facially discriminates against outsiders.

Court struck law down b/c it was of economic isolation and protectionism.o Whatever New Jersey's ultimate purpose is, it may not be accomplished by

"discriminating against articles of commerce (waste) coming from outsidethe state unless there is some reason, apart from their origin, to treat themdifferently."

o Imposes on out-of-state interests the full burden of preserving the state's

landfill space.o If trash was excluded for reasons other than its origin, it would be ok.

o Economic protectionism (not quarantines) = virtually per se vule of

invalidityo Cheaper to dispose of waste in NJ and law imposes burden on citizens of

other states to find somewhere else that would be more money.

Rehnquist Dissent

o There is no basis for distinguishing the health laws here from past casesupholding state laws that prohibit the importation of items that couldendanger the population of the state.

Baldwin v. GAF Seelig, Inc (1935) Cardozo said state laws that protect local interests at the expense of out-of-state

interests threatenpoliticalvision of national unity.

HP Hood and Sons v. DuMond(1949) Jackson said DCC advances national economicprosperity as well as solidarity;

interdependence of states emphasizes necessity of protecting interstate movementof goods against local burdens; free access to every market in the nation.

Framers wanted Cong to regulate interstate commerce to prevent commercialwarfare btwn the states.

Woodruff v. Parham (1868) Import-Export Clause: states cant lay duties on imports or exports except for

what is absolutely necessary for inspection laws.

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Clause only applies to foreign imports/exports, not among the states.

Interstate Nondiscrimination Principle: Values Served

Prevent protectionism (threatens harmony), promote social welfare (freetrade=national prosperity), representative reinforcement (protect interests that

dont have solution in political process)

Southern Pacific Co. v. AZ(1945) Doesnt matter that out-of-state interests are actually harmed, rule is per say.

Permissible Facial Discrimination

ME v. Taylor(1986) upheld law banning importation of out-of-state baitfish b/c of the uncertianty

about the possible ecological effects on the possible presence of parasites andnonnative species

Distinguished from NJ excluded b/c of harm and not b/c out of state.

State Hoarding of Natural Resources

Geer v. CT(1896) SC upheld law that prevented the killing of certain game birds for the purpose of

shipment out of the state even though intrastate commerce in game birds waspermitted (animal property of state).

Hughes v. OK(1979) Overruled Geerand struck down OK law that forbade shipping OK minnows for

sale outside state. Court: OK law failed to resort to nondiscriminatory alternatives; when wild

animal becomes article of commerce, its use cannot be limited to the citizens ofone state to the exclusion of citizens of another; this was not a last ditch attemptafter nondiscriminatory alternatives failed.

Rehnquist Dissent: states have substantial interest in preserving and regulating theexploitation of natural resources within its boundaries; states have broaddiscretion in this area; burden on IC is minimal.

Facially Discriminatory Taxes

Chemical Waste Management v. Hunt(1992) State cannot impose taxes (disposal fee) on only out-of-state waste that is

disposed of in that state.

Indistinguishable from the outright prohibition invalidated inPhil v. NJ

Oregon Waste Systems v. Dept of Environmental Quality (1994) state cannot impose higher tax on out-of-state waste

Court: per se invalid b/c facially discriminatory

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o But, IC can be made to pay its way (can impose tax to compensate for

costs charged in other ways to level the playing field for out-of-state andin-state).

Henneford v. Silas Mason Co (1937)

Upheld WA use tax on goods bought in other states designed to compensate forthe loss of the 2% tax on retail sales within WA.

Facially Discriminatory Subsidies

West Lynn Creamery v. Healy (1994) State taxed all producers of a product and rebated part of the proceeds to in-state

producers only.

Court invalidated law and said it was impermissably discriminatory as theequivalent of a discriminatory tax.

o Subsidy made it so that out-of state were being taxed higher than in-state.

Rehnquist Dissent: law was permissible subsidy.

Camps Newfound/Owatonna v. Town of Harrison (1997) Court invalidated ME statute that provided property tax exemption to benevolent

and charitable institutions in the state, but not full exemption for institutionsconducted primarily for people outside ME.

Court: the statute is essentially an export tariff that targets out-of-state consumersby taxing businesses that principally serve them.

Scalia Dissent: Law not facially discriminatory b/c its a narrow tax exemptiondesigned to compensate/subsidize organizations that contribute to MEs publicthat otherwise ME would have to provide.

Home Processing Requirements

Court has invalidated state requirements that products be inspected, processed, ortreated inside the state before they may be shipped out-of-state becausepreference is generally given to in-state producers.

MN v. Barber(1890) court invalidated MN statute that required any meat sold within the state to be

examined by in inspector within the state

Foster-Fountain Packing Co v. Haydel(1928) Court invalidated LA statute that forbad shrimp to be exported unless the heads

and hulls had first been removed in LA.

Court looked beyond what LA said the purpose of the law was; real purpose oflaw was to favor the canning of the meat and the maufacture of bran in LA.

Toomer v. Witsell(1948)

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invalidated SC statute that requir ed shrimp fishermen to unload, pack, and stamp theircatch before shipping it to another state.

Dean Milk Co v. Madison (1951) Facts: Madison ordinance barred the sale of pasteurized milk unless it had been

processed and bottled at an approved pasteurization plant within 5 miles of inMadison; P was in IL and bought milk in southern WI and had it pasteurized inIL. P was denied a license to sell milk in Madison.

Question: Can the discrimination in the ordinance be justified by the character ofthe local interests and the available methods of protecting them? NO

Rule: A city ordinance that places a discriminatory burden on interstate commercethat is not essential for the protection of local health interests violates thecommerce clause.

o Discriminatory means subject to strict scrutiny no matter what the goal is.

Court: in reality, the regulation excludes from Madison milk produced andpasteurized in IL.

o Reasonable and adequate alternatives are available: could charge the reasonable cost for inspection to the importing

producers and processors

there was an alternative ordinance recommended by US PubHealth Service (no geographic limitation on location of milksources and processing plants; only excludes milk not producedand pasteurized in conformity to standards as high as those inMadison)

o Also affected in state interests, but that wont make the law valid if it

discriminates against out-of-state interests.

Black Dissento ordinance doesnt exclude milk from coming from other states, only

requires it to be pasteurized within 5 miles (no evidence that P could notdo this)

o ordinance is not a discriminatory burden; good faith attempt to safeguard

pub health; imposing burden on trade doesnt mean its discriminatesagainst IC

C & A Carbone v. Clarkstown (1994) Facts: D enacted ordinance that required all nonhazardous waste within the town

to be deposited at waste station contractor had built for them in order to pay him.

Question: Did the ordinance violate CC? YES Court: the ordinance had the same effect of hoarding a local resource for the

benefit of local businesses that treat it.o Per say invalid unless there is no other means to advance a legitimate local

interest (revenue generation - not a local interest that can justifydiscrimination).

o Alternatives taxes or municipal bonds.

OConnor Concurrence

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o Not discriminatory; invalid b/c the burden it imposes on interstate

commerce is too great (Pike Balancing Test balance of competinginterests; here the local interest was not enough to maintain the heavyburden on national interest; both are legitimate though); it was amonopoly.

Souter Dissent

o Govt occupies different position in the marketplace; city has done this for

a public interest (disposal of waste).

United Haulers Assn v. Oneida-Herkimer Solid Waste Management

Authority (2007) Facts: Similar to Carbone, but required haulers to bring waste to facilities owned

and operated by the state.

Question: Did law violate CC? NO

Court: Disposing of trash has been traditional govt activity and laws that favorthe govt in such areas do not discriminate against IC.

o Govt has duty to protect health, safety, and welfare of citizens.

o Not protectionist.

o Harm of more expensive trash disposal will fall on the people and they

voted for the laws (representative reinforcement).

Alito Dissento Court has never before said discriminatory legislation favoring state entity

was ok.

Dean-Carbone-UnitedTrilogy

Dean: that intrastate was also disadvantaged didnt matter

Carbone: didnt allow city to discriminate; had alternatives United: traditional govt function, so law ok

Market Participant Execption

State or city may discriminate in favor of its own residents when it functions as amarket participant (buyer or seller of goods/services; providing subsidies orincentives that aid in-state businesses).

Allows state or municipality to favor its own residents in the course of its owndealings; not in regulating other private parties in their dealings with the state-owned entity.

South-Central Timber Development v. Wunnicke (1984) Facts: D Alaska proposed to sell timber owned by the state. In the contracts of

sale, D included a provision requiring all timber purchasers to partially processthe timber in Alaska.

Question: Was the law exepmt from CC b/c of market participant doctrine? NO

Rule: limits MP doctrine.

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White v. MA: Boston required all contractors that worked on city-funded projectsto be city residents; Court said city could do this b/c it was funding its ownprojects, so it could choose whomever it wanted to do business with.

Reeves v. Stake: SD law restricted sale of cement from state-owned plant to stateresidents; SD was engaged in a private business and was free to exercise its

diescretion on what parties to do business with. Hughes v. Alexandria Scrap: MD licensed junk cars had bounty put on them and

state imposed more stringent document requirements on out of state than in stateprocessors; Court upheld law b/c MD was participating in a business

Court: downstream restrictions have a greater regulatory affect than limitations onthe immediate transaction.

o State is trying to govern private, separate economic relationsips of trading

partners by restrict the post-purchase behavior of the purchaser, not justthe purchasing activity.

o State cant regulate market in which is not a participant under MP theory.

o Law has protectionist nature and burdens IC, so its per se invalid.

Rehnquist Dissent: AK is merely paying the purchaser of timber indirectly, bymeans of a reduced price, to hire AK's residents to process the timber, and that isnot a violation of the commerce clause.

2 - Facially Neutral Laws with Hidden Intentional Discrimination

State laws that favor local economic interests at the expense of out-of-statecompetitors get invalidated based on effect.

Facially Neutral Notes

o 1) Facially neutral laws may be struck down if the court can smoke out a

discriminatory purpose from a seemingly neutral law.

o 2) The court may infer a discriminatory purpose from a discriminatory

effect.

o 3) A court may invalidate a law based on a discriminatory effect

regardless of purpose.

Baldwin v. GAF Seelig(1935) Facts: After Depression, NY passed Milk Control Act of 1933 to set min prices to

be paid to milk producers by NY dealers and didnt allow purchase of cheaperout-of-state milk. D Seelig was a dealer who bought milk cheaper from VT. NYrefused to license D to sell milk unless it agreed to conform to the law.

Question: Did the NY law violate CC? YES

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Court struck down law b/c (1) NY was projecting its laws on another state and (2)was preventing VT from being sold in NY.

o Compared to customs duties.

o Would open doors to state rivalries.

o Health is related to economic welfare, but that doesnt give state exception

to intervene, then state could intervene any time and say its b/c of health. NY suppressed competition in the name of health.

HP Hood & Sons v. DuMond(1949) Facts: Facts: P Hood was a Boston milk dealer who had 3 receiving depots in NY.

He applied for a 4th and was turned down under NY law that said Commissionershould refuse to give new licenses unless it wouldnt be destructive to competitionin a market that was already adequately served and the issuance is in the pubinterest.

Question: Did NY law violate CC? YES

Rule: A state may not use its powers to protect the health and safety of its peopleas a basis for suppressing competition.

Court struck down the law b/c it curtails IC to aid local economic interests andcourt has not allowed this.

o If law was upheld, entirely new dealer could apply for license and be

denied for the same reason.

Hunt v. Washington State Apple Advertising(1977) Facts: NC law required closed containers of apples for sale or shipped into the

state to bear no grade other than the applicable US grade or standard; WashingtonState had strict inspection standards equivalent or greater than the US standards

and put state grade on the containers. Question: Did the NC law violate CC? YES

Court: law was discriminatory even if was enacted to protect consumers;interferes with national common market.

o NC growers not forced to alter practices and are shielded from WA.

o Law would have leveling effect that would have helped local growers b/c

WA would have to sell apples under the inferior USDA label(downgrading).

o Alternative: permit out-of-state growers to use state and USDA labels.

Bacchus Imports v. Dias (1984) Facts: HI statute exempted brandy that was distilled from indigenous HI plant

from the states 20% wholesale tax.

Question: Did HI law violate CC? YES

Rule: any law aimed to benefit local industry, but not out-of-state industry, isdiscrimination under CC.

Court: the tax violated CC b/c it had purpose and effect of discriminating in favorof local products.

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o Effect is discriminatory applies only to locally produced beverages even

though it doesnt apply to all such products.

Exxon Corp v. Gov of MD (1978)

Facts: MD law prohibited producers or refiners of petroleum products fromoperating retail service stations in MD (response to oil companies favoring theirown gas stations over independent ones); no gas was produced or refined in MD,it was all out-of-state imports.

Question: Did the MD law violate CC? NO

Rule: a nondiscriminatory regulation that serves substantial state interests is notinvalid just b/c it causes some business to shift from predominately out-of state topredominately in-state unless the burden on IC outweighs states legitimatepurposes.

Court: doesnt discriminate b/c there are no local producers or refiners to favorand b/c MDs entire gas supply is from IC.

o MD is not discriminating on retail level b/c there are interstate gas stationsthere that dont refine or produce gas.

o Doesnt distinguish btwn in-state or out-of-state companies in the

retail market.

MN v. Clover Leaf Creamery (1981) Facts: MN law banned retail sale of milk products in plastic nonreturnable

containers but permitted sales in nonreturnable containers made of pulpwood.

Questions: Did the MN law violate CC? NO

Court: law doesnt discriminate b/c it prohibits allretailers from using plastic, notjust out-of-state retailers.o Doesnt distinguish btwn in-state or out-of-state companies in the

retail market.

o Pike Balancing Test: plastics burden is relatively heavier than pulpwood

burden, but it is not excessive in light of the substantial state interest inpromoting conservation of energy and natural resources and reducingwaste.

3 Facially Neutral Laws With Accidental Discrimination Court sometimes strikes down facially neutral laws that have a disproportionate

adverse affect on interstate commerce.

Apply balancing of interests approach.

Pike v. Bruce Church (1970) Facts: AZ law required that AZ-grown cantaloupes advertise their sale of origin

on each package; Church grew them in AZ but had them packed in CA and were

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not identified as AZ grown; AZ prohibited Church from shipping uncratedcantaloupes to CA for packaging and required them to be packaged in AZ.

Question: Did AZ law violate CC? YES

Balancing Test Local benefits must outweigh burden imposed on commerce(and there must be no alternatives) if law is to be upheld.

o legitimate local interest is toprotectand enhance reputation of AZgrowers; burden on commerce would cost Church $200,000

o Law that is not disc or protectionist might still fail under the Pike

Balancing Test.o Also facially discriminatory and per se illegal.

Bendix Autolite v. Midwesco Enterprises (1988) Scalia said

dore outline

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