constitutional law ii - dienes - spring 1999

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Constitutional Law I – OutlineApril 29, 1999

Key principles of constitutional law1. Limited goernment and popular soereignty – national goernment !as limited power 2. "eparation of powers – # $ranc!es of goernment, separate $ut coe%ual#. &iision of powers – state . federal goernment 'supremacy clause(). C!ec*s and $alances – structurally separated institutions s!aring + $alancing powers. -ig!ts and li$erties – ill of -ig!ts

Origin of /udicial power – Article III – esta$lis!es a national0federal udiciary."upreme Court is t!e only constitutionally created national court.All ot!er courts created $y Congress t!roug! federal udiciary acts.

Article III ederal Courts Article I ederal Courts

3.". "upreme Court 4ilitary ustice system3.". Courts of Appeal 4ost &.C. courts3.". &istrict Courts etc.

Article III, 52Clause 1 – defines udicial power6

Cases + Controersies...........ederal 7uestion 'arising under t!e 3.". Constitution or 3.". ederalstatutes(

&iersity /urisdictionClause 2 – defines !ow power is e8ercised6

Original /urisdiction............... am$assadors, ministers, consuls, state as party, etc. 'Congresscannot enlarge0e8pand0decrease t!is urisdiction(

Appellate /urisdiction.............all ot!er cases $efore mentioned + with such exceptions as Congress shall make

ational udicial power is tec!nically conferred $y Article III, $ut is usually conferred $y statute. :!e 1st /udiciary actesta$lis!ed t!e power for original ational udicial system.

I. /udicial -eiewA. -eiew of ederal Action

ederal courts !ae t!e power to reiew and inalidate goernmental action as repugnant to t!e Constitution.:!is power e8tends to all lower ederal courts + "tate courts as well.1. 4ar$ury . 4adison, 1;<# 'p. 1#( – does the SCt have the power to review acts of Congress to determine

their constitutionality?

a. 4ars!all says =>"1. &eclares 51# of t!e /udiciary Act of 1?;9 unconstitutional $ecause t!e enlarging of t!e "Ct@s

urisdiction to coer mandamus actions was a iolation of Article III limitations of ederal court urisdiction.

2. >8pression of one is t!e e8clusion of ot!ersB – mandamus actions not included in Article III, ∴

not intended to $e included in t!e /udicial power. Congress e8ceeded its aut!ority. Congress can

only give Federal courts jurisdiction to the limit of Article III.. It is the duty of the judiciary to say what the law is and if it is repugnant to the Constitution

!it must "e struck#.

$. :!e Constitution is6

1. :!e e8pression of popular will and∴ properly controlled t!e e8ercise of all goernmental power

'including Congress(.2. "upreme oer ordinary law – laws in defiance of t!e Constitution are null0oid.#. undamental law 'supreme and oerriding( and regulatory law '$inding, enforcea$le, and meant to

limit(.c. :!e origin of /udicial power

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1. "tructure of t!e goernment

a. It is emp!atically t!e proince and duty of t!e udicial department to say w!att!e law is.B ecause t!e Constitution is a law, it follows t!at t!e /udiciary !ast!e power to interpret it.

$. Constitutional interpretation !as more finality t!an statutory interpretation !as.!ile Congress can correct erroneous udicial interpretation of a statute, only aconstitutional amendment can reise udicial interpretation of t!e Constitution.

c. Legislatie intent is used to interpret statutes, $ut Constitutional interpretationis more fundamental $ecause it is an act of creation.

2. :e8t of t!e Constitution

Alt!oug! t!ere is no e8plicit te8tual aut!ority for ederal court reiew of t!e actsof t!e Dresident and Congress, t!is power !as $een inferred from6

• Article III grant of udicial power to e8tend to all cases arising under...B to t!e

"upreme Court and inferior ederal courts

• Article EI "upremacy clause – t!is Constitution and t!e laws of t!e 3nited

"tates w!ic! s!all $e made in pursuance t!ereof s!all $e t!e supreme law of

t!e LandB and $inds all udges 'including state courts( to up!old it.#. Original intent of t!e framers

ramers did intend some form of udicial reiew.). unctional and policy considerations

• Foernment set up so t!at courts would $e insulated and !ae a$ility to critically reiew w0o

outside influences 'elections(, so courts are in t!e $est position to ma*e constitutionaldeterminations.

• 'Goweer, t!ere are arguments t!at t!is isolation is t!e reason w!y we s!ould not let final

aut!ority rest wit! an unelected $ody of tenured life udges.(d. Golding of 4ar$ury can $e construed6

1. arrowly – only t!e udiciary could act to protect its own urisdiction against congressional action'!asn@t $een !eld t!is narrowly(.

2. roadly – declares t!e $asic principle t!at t!e ederal /udiciary is supreme in t!e e8position of t!e

law of t!e Constitution.B :!is principle !as eer since $een respected $y t!e Court and t!e countryas permanent and indispensa$le feature of t!e Constitutional system 'Cooper . Aaron(.e. Ot!er *ey points

1. "ince t!e Constitution prescri$es t!e powers delegated $y t!e people to t!e national goernment, acongressional act to t!e Constitution is inalid.

2. Only federal laws made in pursuanceB of t!e Constitution are t!e "upreme Law of t!e Land underArticle IE.

#. :!e Article III grant of urisdiction would mean not!ing if t!e /udiciary wasn@t gien t!e power of udicial reiew.

. -eiew of "tate ActionArticle EI "upremacy Clause. :!e Constitution is supreme oer t!e constitutions and laws of t!e states.:!erefore, udicial reiew is not limited solely to reiew of ederal actions and laws. It e8tends as well to "tateaction.Article EI re%uires "tate courts to ma*e decisions in conformity w0 t!e 3" Constitution.

• Cases arising under t!e Constitution are reiewa$le $y t!e "Ct under Article III 52.

• Dolicy arguments for e8tending "Ct appellate urisdiction to "tate court decisions of federal

constitutional issues include t!e need for uniformity in interpretation.1. 4artin . Gunter@s Lessee, 1;1H 'p. 2#( – main issue was whether SCt had appellate jurisdiction over the

state supreme courts.a. 7uestion of t!e alidity of 52 of t!e /udiciary Act of 1?;9, giing "Ct urisdiction oer state supreme

courts.

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$. EA argued t!e compact theory – w!ic! suggested t!at t!e "Ct only !ad urisdiction oer cases comingfrom t!e lower ederal courts. :!e 3" Constitution was a compact among t!e states and t!e parties tot!at instrument 'states( were superior to t!e national goernment it created.

c. Court says O1. Article III su$ect matter urisdiction of t!e "Ct includes cases arising under t!e Constitution. If a

"tate court decides a constitutional %uestion, t!e "Ct !as t!e power to reiew t!e issue $y way ofappellate urisdiction.

2. $Ct jurisdiction over state decisions is limited to only constitutional issues % cannot review

any state decision.

d. Dower comes from61. :e8t of t!e Constitution

a. Article EI "upremacy clause – state udges are $ound $y t!e 3" Constitution,notwit!standing contrary state law

$. Article III gies "Ct urisdiction oer all cases arising under t!e Constitution.c. It must !ae $een enisioned $y t!e framers t!at state udges could interpret federal law

$ecause !ad Congress not made lower federal courts, someone would !ae !ad to !ae t!e power to !ear any cases not granted to t!e "Ct@s original urisdiction.

2. Dolicy argumentsa. eed for uniformity in federal interpretation

$. Dreention of forum s!oppinge. Ot!er *ey points61. It is t!e case, and not t!e court, t!at grants t!e urisdiction.2. :!is power of "Ct urisdiction oer state actions applies to criminal, as well as ciil matters.

Co!ens . Eirginia, 1;21 'p. #<( – note case.

C. -eiew of Foernmental OfficialsDolitical act w!ere t!e Constitution ests t!e e8clusie aut!ority in t!e e8ecutie. o udicial reiew allowed.&iscretionary act 'not ministerial(.

It is t!e nature of t!e action0case and not t!e person t!at determines t!e appropriateness of udicial reiew. &ot dependent upon the officer' "ut on the act.1. Cooper . Aaron, 19; 'p. #<( – note case

:!e goernor and legislature of a state act unconstitutionally in attempting to interpose state soereignty as a

ustification for refusing to o$ey t!e "Ct@s decision declaring state mandated sc!ool segregationunconstitutional.2. All goernmental officials 'state or federal( are su$ect to udicial reiew.3. -elied upon6

a. 4ar$ury – t!e ederal udiciary is supreme in t!e e8position of t!e law of t!e Constitution.". >ery state e8ecutie, legislator and udicial officer is solemnly committed $y oat! 'ta*en pursuant to

Article EI( to support t!e Constitution. (here is a Constitutional duty on the part of the mem"ers

of all of the "ranches of state government to comply with the $Ct)s decisions.

c. o state legislator, e8ecutie, or udicial officer can war against t!e Constitution w0o iolating !isunderta*ing to support it.B

&. :ec!ni%ues of Constitutional Interpretation"ome terms of t!e Constitution defy precision. In interpreting t!ese terms, t!e courts use t!e followingtec!ni%ues61. Interpretiism – focus on t!e Constitution itself.

a. :e8tualism – reliance is e8clusiely $ased on t!e language0words of t!e Constitution. Anyt!ing else isnot aut!oritatie.

$. Originalism – reliance is $ased on te8t J original intent of t!e framers and t!e social construct at t!etime. Also, for an amendment, t!e focus is t!e terms at t!at time.

c. Intentionalism – reliance upon t!e original intent0alues of t!e framers.2. oninterpretiism – reliance is $ased on loo*ing outside of t!e te8t to current social alues. /udicial

su$ectiity. Loo*s to social c!ange factors.

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II. Congressional, constitutional and policy limitations on /udicial -eiew /usticia$lity"upreme Court urisdiction – t!e udicial power is ested in t!e "Ct and such inferior courts as Congress may

esta"lish. Consists of defined cases and controversies, 'including t!ose inoling constitutional %uestions(.Court !as two types of urisdiction6Original 1. Only federal court created $y Article III

2. Original urisdiction as defined $y Article III#. 4ar$ury says t!at original urisdiction cannot $e e8panded or diminis!ed 'alt!oug! it may

$e concurrent(.Appellate 1. >8tends to law and to fact in all ot!er cases wit! suc! e8ceptions and under suc!

regulations as Congress s!ould ma*e.2. :!ere is a %uestion as to !ow muc! power0discretion Congress !as in forming Appellate

urisdiction. Can Congress ta*e away certain types of cases or een all appellate urisdiction Or are t!ey limited to esta$lis!ing regulations0limitations upon t!e acts oft!e courts

y aoiding t!e e8ercise of udicial reiew, t!e court is, in effect, allowing t!e practice to continue. Acceptance $y

passiity ≠ precedent.

A. Congressional control of federal court urisdiction1. :e8tual limitations

a. ...wit! suc! e8ceptions and under suc! regulations as Congress s!all ma*e.B Although Article III sets

the outer "oundaries of the judicial power' common doctrine is that Congress need not vest all of

that power in the Federal courts.

". If not affirmatiely granted $y t!e Congress, t!e power is e8cepted 'ta*en away(.2. Congress must aut!oriMe t!e Court@s appellate urisdiction 'done t!roug! statutes(. If not aut!oriMed, t!e

"Ct !as no power to !ear t!e case.3. Congress) failure to authori*e jurisdiction is considered an implied exception.

4. >8 Darte 4cCardle, 1;H9 'p. 1)1( – SCt upholds a statute withdrawing SCt appellate jurisdiction to issue

writs of habeas corpus (even after the case had been orally argued to the SCt.a. :!is act of repealing appellate uris. is an e8ceptionB as contemplated in Article III. $. Durpose of t!e legislation was to preent t!e e8ercise of udicial reiew of t!e constitutionality of t!e

new reconstruction laws – $ut "Ct doesn@t loo* at purpose.c. Congressional power to do t!is6

1. :e8tual support in Article III

2. Original intent – compromise to leae it to Congress#. Drecedential alue is wea*

d. Congress must affirmatiely aut!oriMe ederal courts to !ear cases w0in udicial power 'must proidet!e spar*B to t!e gasB proided $y t!e Constitution.(

e. Golding can $e construed two ways61. arrowly A$ility of Congress to deny one remedy w!en ot!er remedies aaila$le 'didn@t end all

routes to "Ct !a$eas corpus urisdiction – only one routeN also did not remoe powerof court to reiew state court constitutional decisions(.

2. +roadly ,rants plenary power to Congress to affect appellate jurisdiction.. Internal limitations on congressional power to limit udicial power

a. Court must perform its essential role of preserving the uniformity and supremacy of federal law – Congress cannot iolate t!is.

". $eparation of powers

1. 3.". . Klein, 1;?2 'p. 1)1?( – note case. Congress tells "Ct t!at if t!e Court decides for t!eclaimant, t!ey must t!en wit!draw urisdiction. Court !olds t!at Congress cannot decide a case %

they cannot usurp the judicial power.

2. Congress cannot interfere wit! udicial functions under t!e separation of powers.#. 4cCardle is distinguis!ed $ecause t!ere, Congress wit!drew t!e Court@s urisdiction "efore t!e

"Ct@s decision.c. $upremacy clause

1. :!e udicial function is to ensure uniformity of ederal law t!roug!out t!e land and to ensure t!at aederal claim is !eard and protected $y an independent ederal court.

2. Congress cannot remoe t!is essential power.

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d. "tructural limitations1. Congress cannot destroy t!e essential constitutional functions of t!e "Ct.2. Congress cannot leae a litigant w0o a forum for asserting !is constitutional rig!ts.

H. >8ternal limitations on congressional power Congressional statutes cannot inade rig!ts and li$erties guaranteed in t!e Constitution. arring certainremedies may $e a iolation of t!ese rig!ts.a. Earious rig!ts can trump Congress@ power oer Appellate urisdiction6

i. -ue process % fundamental fairness – limits t!e a$ility of Congress to wit!draw federal reiew ofstate criminal conictions on constitutional matters. :!ere must $e an aaila$le forum for a federalconstitutional claim.

ii. /ual protection – limits t!e a$ility of Congress to wit!draw from ederal courts t!e power toorder t!e only effectie remedy aaila$le to indicate a rig!t.

iii. ederal protection will trump constitutional power.c. el*er . :urpin, 199H 'p. 1)2<( – note case! "egislation granting limiting a prisoner#s habeas petitions

is constitutional. ecause t!e act didn@t totally preclude !a$eas petitions, t!e "Ct up!eld t!e act.?. :otal limitation. Congress cannot deny all forums for treatment of ederal constitutional claims 'e86

Gelms@ sc!ool prayer $ill(a. ased on fundamental fairness arguments, t!at eeryone !as a rig!t to $e !eard in ederal court. :!is

assumes potential unfairness in "tate courts. $. !ile t!e argument is t!at t!is is only discrimination against claims, and not people – people $rings

claims, t!is class of claimants ∴ is $eing discriminated against.c. Congress can urisdiction $y eit!er t!e "Ct or lower ederal courts, $ut cannot deny all forums – must

leae some aaila$le.

. Constitutional and policy limitations – doctrines w!ere$y an Article III court can aoid disposition of aconstitutional issue and dismiss t!e case.1. 11t! Amendment – pro!i$its ederal courts from entertaining specified cases $roug!t against a state w0o its

consent. "oereign immunity. 11t! Amendment e8pressly oerturned decisions li*e C!isolm . FA, 1?9#'p. 1)22( – w!ic! !ad !eld t!at citiMens of one state could sue anot!er state in ederal court.a. :!e udicial power of t!e 3" s!all not $e construed to e8tend to any suit in law or e%uity commenced

or prosecuted against one of t!e "tates $y citiMens of anot!er state or $y citiMens or su$ects of anyforeign state.B

$. >8tended in Gans . LA, 1;9< 'p. 1)2#( – note case, to $ar suits $y a citiMen against !is own state w0o

consent.c. 11t! Amendment is not a total $ar to ederal udicial reiew of state action. :!ere are ways to get

around state soereign immunity6i. Only $ars suits against t!e state and its agencies, not local government and their agencies.

ii. 0aiver – state can consent to $eing sued in ederal court.iii. !en a state official acts unconstitutionally, t!e action is not considered a state action for

purposes of t!e 11t! Amendment. >8 parte =oung, 19<; 'p. 1)2#( – note case !eld t!atconstitutional wrongs committed $y a state official are not protected $y t!e 11t! Amendment.3: w!ere a suit directed against a pu$lic official results in a retroactie c!arge on t!e

general reenues of t!e state and cannot $e distinguis!ed from an award of damages,t!e 11t! Amendment $ars t!e action.

iv. or purposes of t!e Ciil ar Amendments '1#, 1), 1(. :o enforce t!e guarantees of t!e 1# t!, 1)t!,+ 1t! Amendments, Congress !as t!e power to a$rogate t!e 11t! Amendment. :!ese amendments

are specifically directed against t!e states and argua$ly do away w0 11t!

Amendment concerns.2. Case in Controersy – re%uires t!at litigation $e presented to t!e federal courts in adversary form and in a

conte8t capa"le of judicial resolution and t!at its resolution does not iolate separation of powers principles.a. Dro!i$its t!e ederal courts from giing advisory opinions on constitutional matters.b. Court will only decide fles! + $loodB controersiesc. :!e Court cannot reac! out to resole an issue until it comes to t!e court $earing actual controversy

"etween 2 litigants who are adversaries in fact.

d. Drocess rationale6i. Adersity encourages full litigation and more complete information.



i. Also assures t!at all interests are fully represented. It is unfair to !old later litigants to aderse udgments in w!ic! t!ey weren@t fully represented.

. Ealues sered6

• Aoids premature decisions

• Dromotes selfdetermination – importance of placing control oer t!e political processes in t!e

!ands of t!e people most closely inoled.

e. "eparation of powers6i. Article III ederal courts e8ercise udicial reiew $ecause t!ey !ae to – strict necessity for t!e

case to $e resoled.ii. -estrains court from generating new constitutional doctrine.

f. 4us*rat . 3."., 1911 'p. 1)2?( – defines $case or controversy%

i. Court dismisses for want of urisdiction – no case or controersyii. Claims of the litigants are esta"lished "y lawcustom for the enforcement of rights or the

preventionredress of legal wrongs.

iii. A statutory claim or common law rig!t must $e claimed. Also – t!ere must $e a legal redress.i. :!e court was worried t!at t!e decision would not conclude t!e dispute $ecause not all parties were

$efore t!e court. :!eir ruling cannot directly determine t!e rig!ts of nonparties.#. &iscretionary reiew 'Dolicy limitations – /udicial selfrestraint(

a. Created $y t!e "Ct for t!eir own goernanceN grounded in t!e notion of selfrestraint, separation of powers.

$. Constitutional issues affecting legislation will not $e determined.i. As!wander . :EAii. "Ct will not ta*e a case in adance of t!e necessity of deciding it or if t!e record presents some

ot!er ground $y w!ic! it may $e resoled.iii. If a construction of a statute is fairly possi$le $y w!ic! t!e constitutional %uestion may $e aoided,

t!e "Ct will not ta*e t!e case.c. :!e court will not gie adisory opinions as a prudential rule. :!ey ta*e into consideration t!e

following6i. &elicacy of t!e function of in constitutional casesii. Dotential conse%uencesiii. Comparatie finality of t!e court@s udgmenti. "eparation of powers. In!erent limitations of t!e udicial process

i. "ee -escue Army . 4un. Ct., 19)? 'p. 1)#1(d. :!e line $etween case0controersy and prudential rule is ery t!in.

i. In cases w!ere t!e "Ct aoids a decision on t!e merits, it is often difficult to determine w!et!er t!e $arrier to decision was a constitutional limitation or a prudential concern.

ii. :!is distinction is critical, !oweer, $ecause Congress can enact legislation w!ic! will allow t!eederal courts to !ear an action w!ere t!ey may ot!erwise refuse to adudicate on t!e $asis of prudential considerations. :!ey cannot, !oweer, oerride t!e limitation on udicial reiew w!eret!ere is no case0controersy.

C. :!e "tanding limitation – GO may litigate a constitutional claimDarties see*ing relief must allege $uch a personal stake in the controversy as to assure that concrete

adverseness which sharpens the presentation of issues upon which the Court so largely depends for

illumination of difficult constitutional /uestions.3 "ee a*er . Carr, 19H2 'p. #)(.

Access standingB – a$ility to go $efore a court and argue illegal goernmental acts. Fenerally, t!ere is noaccess standingB w0o an actual inury 'een if t!e statute is unconstitutional(.

Article III "tanding re%uires !ACC$$ $(A&-I&,#61. Injury in fact 'not ust a legal claim, $ut factual !arm(. 4ay include

a. >conomic inury – "ingleton . ulff $. Aest!etic or >nironmental inury – "C-AD, "ierra Clu$c. Intangi$le inury 'li*e t!e a$ility to lie in an integrated community( – Fladstone

. Eillage of ellwood

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2. Causation – inury must $e tracea$le to c!allenged action#. 4edressa"ility – inury must $e redressa$le $y t!e re%uested relief. :!e goernment

wrong must !ae caused t!e inury.(he focus is on the party who is litigating' not on the issue "eing litigated. 5egal rights

only exist if there is a remedy !wo a remedy there is no legal right#.

Drudential rules !647-&(IA5 $(A&-I&,#61. π must assert !is own legal rights and interests – cannot rest claim on #rdparty

2. Cannot $e an a$stract %uestion of wide pu$lic significance t!at amounts to agenerali*ed grievance. 4ust $e different in *ind – 't!in* pu$lic nuisance(.

#. Complaint must $e in a *one of interest to "e protected $y t!e constitution or statutein %uestion.

1. :!e ideological plaintiff – t!e "Ct !as fre%uently disc!arged citiMenlitigants w!o present no particulariMedclaim of inury not suffered $y t!e citiMenry at large.a. CitiMens do not !ae Article III standing een if it is clear t!at t!e goernment is acting

unconstitutionally. &o citi*en standing.

b. Arguments against citiMen standing6

i. Dolicy reasons – claims are often generaliMed, ideological, or a$stractii. Dersonal inuries often clarify issues and encourage full litigationiii. CitiMen suits re%uire too muc! reiew and direction oer coe%ual $ranc!esN suc! superision

e8tends $eyond udicial role.i. 6roper remedy lies in the political process 'oting(.

c. Arguments for citiMen standing6

i. Constitution is a set of enforcea$le limitations on goernment actions, ∴ w!en goernment acts

unconstitutionally, eery citiMen is !armed. CitiMens s!ould $e a$le to act to enforce t!eselimitations.

ii. e t!e peopleB s!ould !ae rig!t to $e priate attorneys general.d. Ealley orge . Americans 3nited..., 19;2 'p. 1))H( – free conveyance of government land to religious

institution was being challenged by π & claiming that their fair and constitutional use of ta' was being

violated (also claim of violation of personal constitutional rights.

:!e court !eld t!at a citiMen does not !ae standing to c!allenge a goernment action merely to correctconstitutional wrongs. An >sta$lis!ment clause claim does not eliminate t!e Article III re%uirement of personal inury.

(o show injury' the must show that his injury was different in kind from that of the pu"lic at

large.

Article III prevents citi*en standing a"sent federal statute.

e. :a8payer standing – generally, federal ta8payers lac* standing to c!allenge federal law 'seerot!ing!am . 4ellon, 192# 'p. 1#(.

f. >8ception to ↑6

last . Co!en, 19H; 'p. 1)#9( – if party can pass a two)part test there may be ta'payer standing. :wo part test61. :a8payer must $e c!allenging an e8ercise of Congress@ Article I 5; ta8ing0spending power.2. :!e enactment must $e alleged to offend a specific constitutional limitation on t!e ta8ing and

spending power.#. Goweer, last !as $een confined to its facts, and is unli*ely to $e up!eld. g. Eoter standing – see apportionment discussion $elowh. OrganiMational0Associational standing

1. "ierra Clu$ . 4orton, 19?2 'p. 1))#( – an association will $e granted standing as long as t!ey area$le to s!ow actual personal !arm to t!eir mem$ers.

2. 3.". . "C-AD, 19?# 'p. 1)))( – t!e fact t!at many persons s!ared t!e same inury Pis notQsufficient reason to dis%ualify any person w!o !ad in fact suffered an inury.B

2. Inury and causation

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a. Luan . &efenders of ildlife, 1992 'p. 1)( – federal law which re*uired consultation with the +S

Sec. of ,nterior before action endangering wildlife was changed to include only national or high seas

areas. π argued to include foreign nations - sought declaratory judgmentinjunction.

1. Inury in fact – court attempts to assert more rigor in t!e re%uirement $y declaring t!at t!e inury infact re%uires an inasion of a legally protected interest t!at is6Ba. concrete and particulari*ed, 'all citiMensB is not particular enoug! to meet t!e Article III

re%uirements(, 'Kennedy0"outer concurrence – Congress must at t!e ery least identify t!einury it see*s to indicateB(, andb. actual or imminent !not conjectural or hypothetical#

:!ese re%uirements not satisfied !ere, $ecause someday intentionsB w0o any description ofconcrete plans do not support a finding of inury. Court !eld t!is was a use inuryB w!ic! wasnot actual or imminent. Ot!er inuries included '$ut t!ese failed as well(6

• ecosystem ne8usB – contiguous ecosystem

• animal ne8usB – anyone wit! an interest in seeing t!e animals

• ocational ne8usB – anyone wit! a professional interest

2. -edressa$ility – 8ust "e likely' not merely speculative that the injury will "e redressed. Gere,een if t!e "Ct were to recogniMe an inury, t!ere is no guarantee t!at t!e remedy would reliee t!einury $ecause6a. foreign goernment mig!t not c!ange

$. agency is not parties to t!e action, ∴ a re%uirement to consult wit! t!e "ecretary isinappropriate

c. cannot guarantee t!at endangered species would $e protected#. -eects statutory standing as applied to t!ese facts. FeneraliMed grieances a$out goernment t!at

cannot $e differentiated from t!at s!ared $y mem$ers of t!e pu$lic at large cannot proide a $asisfor standing. Court suggests using t!e political process to address t!ese grieances in order toaoid t!e separation of powers conflict '>8ecutie power, not /udicial power(.

). &issent6c. art! . "eldin, 19? 'p. 1)H( – note case! low)income litigants lac/ed standing to challenge

e'clusionary 0oning in the absence of any showing that a developer who would build suitable housing

is prevented from doing so because of the 0oning ordinance.

1. Inury in fact π was una$le to demonstrate t!at any deeloper w!o would $uild suita$le !ousing

was $eing e8cluded $y reason of t!e Moning law. π@s also failed to allege0identify a specific

deeloper w0 a specific proect, t!e furt!erance of w!ic! !ad $een precluded $y t!e Moning law.Injury must rise a"ove mere generali*ed grievance against the challenged law % must have

actual injury.

2. Causation π could not esta$lis! t!at in fact, t!e asserted inury was t!e conse%uence of ∆@s

actions or t!at prospectie relief would resole t!e !arm.B

. π couldn@t esta$lis! t!at t!ere was a su$stantial li*eli!ood t!at !e would personally profit from t!e

re%uested relief. &o redressa"ility.

• >specially difficult to s!ow w!en t!e litigant alleges t!at t!e goernment@s action

unconstitutionally motiates some unnamed #rdparty to act in a way t!at preudices t!elitigant.

d. > L C!. Of Assoc. FC . /ac*sonille, 19?H 'p. 1)H?( – note case - similar facts to arth. Court

did find standing !ere $ecause t!e π was a$le to s!ow an actual inury – unfair competition 'or ina$ility

to compete(. :!e court rela8ed its standards a $it in !olding t!at when a government classification

makes it more difficult for mem"ers of one group to o"tain a "enefit than mem"ers of anothergroup' the is not o"liged to show that the "enefit would have "een availa"le a"sent the

government discrimination.

e. Fladstone -ealtors, 19?9 'p. 1)HH( – steering of potential real estate purchasers. bility to live in

integrated housing. Court !eld t!at an indirect inury is enoug! to proe standing. Congress can

create a legal right in an interest' "ut congressional legislation and statutory involvement is

necessary to create a statutory right. "tatutory standing. f. "tatutory "tanding Congress can remove prudential o"stacles to standing.

;



1. A statutory rig!t creates standing, een for a generaliMed, a$stract interest. Congress can go to t!eArticle III $oundary in creating t!ese rig!ts.

2. Congress can create t!ese rig!ts, $ut must6

• Identify the injury to "e vindicated9 and

• Create a specific class who can "ring an action.

:. :ypical case is t!e aggrieed personB proisions in t!e ena$ling legislation of federal regulatory

agencies permitting t!ose aggrieed $y federal administratie action to o$tain reiew in t!e ederalcourts.

g. >C . A*ins, 199; 'p. 1;?"upp( – voter standing . Congress grants standing to any person w!o $eliees a iolation of t!is act !as occurred as long as '1( t!e oter is in t!e Mone protected and '2( t!ey proe a failure to o$tain information 't!e inury t!e Act soug!t to protect(. :!is ina$ility to o$taininformation is an inury in factB t!at is concrete and particular.B

h. Allen . rig!t, 19;) 'p. 1)H;( – parents of blac/ students allege that ,S ta' e'emption to

discriminating (all white private schools is injuring their children#s opportunity to receive adesegregated education.

:!e "Ct !eld t!at t!ere was no cogniMa$le inury 'π didn@t allege inury for une%ual treatment( and t!at

t!e alleged inury was not fairly tracea$le to t!e allegedly unlawful I-" conduct.1. Inury claimed6

'a( &irect6

•Foernment not o$eying t!e law – O – &o citi*en' acting as a citi*en has Article IIIstanding.

• "tigmatic Inury – o claim of personal denial to an indiidual, $ut t!e entire class is

denied – O – (oo a"stract' not particulari*ed enough.

'$( Indirect6

• R to t!e priate sc!ools stops desegregation from !appening – =>" – $ut see Causation

c!allenge $elow.2. $tigmatic injury – if t!is a$stract inury were cogniMa$le, standing would e8tend nationwide to all

mem$ers of t!e particular racial groups against w!ic! t!e goernment was alleged to $ediscriminating $y its grant of a ta8 e8emption to a racially discriminatory sc!ool.

#. Causation6

• Attenuated – t!e inury was not fairly tracea$le to t!e goernment action $ecause it is indirect

and resulted from independent actions of # rdparties not $efore t!e court. :!e causal

connection was tenuous, at $est.• "peculatie – as to w!et!er t!e wit!drawal of ta8 $enefits would cause a segregated sc!ool to

c!ange its policy.). -edressa$ility – fairly tracea$leB . redressa$le

• airly tracea$le relations!ip $etween conduct and inury – $ecause only a few sc!ools are

getting t!is R, it is !ard to say !ow $ig an impact t!is !as. π failed to s!ow enoug! sc!ools to

s!ow enoug! impact 'inury(.

• -edressa$ility relations!ip $etween inury and relief – !ere, een if t!is R stopped, we don@t

*now t!at more w!ite c!ildren would attend pu$lic sc!ools.. "eparation of powers

• Courts are not t!e proper forum for complaints of !ow goernment does $usiness 'political

process – oting(

• Courts must e8ercise discretion w!en intruding on e8ecutie enforcement policies.

H. &issent6

• rennan6 eed for more discoery to decide if causation issue !as $een satisfied.

• "teens6 ased on ta8 policy, economics, and pure logic – if you ma*e somet!ing more

e8pensie, less li*ely t!at people will ta*e adantage of it – causation.Also argues against separation of powers argument, $ecause "0D deals wit!GA: can $e litigated, and standing deals wit! GO can litigate. "0D concernsare more appropriate under usticia$ility, or claims on t!e merits, or e%uita$leremedies.

9



i. "imon . >. K= elfare..., 19?H 'p. 1)H?( – inury must result from a party in the action, not t!eaction of an independent #rdparty. :oo speculatie and no redressa$ility. Cannot speculate w!et!er!ospitals will stop treating indigent patients 'ery e8pensie( if t!ey must forgo federal funds.

j. Eillage of Arlington Geig!ts . 4G&C, 19?? 'p. 1)HH( – nonprofit !ousing deeloper was a$le to s!owstanding in !is c!allenge of Moning re%uirements. Gis grieance focused on a particular proect and isnot dependent on speculation a$out t!e possi$le actions of t!ird parties not $efore t!e court.B Foes tot!e spending clause.

#. #rd party standinga. A litigant usually lac*s standing to raise t!e rig!ts of #rd parties not $efore t!e court6

1. &esire to aoid unnecessary litigation of constitutional rig!ts2. elief t!at t!e #rd party is t!e $est proponent of !is own rig!ts

b. -ule of /udicial selfrestraint, not an Article III re%uirement – t!e alues supporting t!e rule can $eoutweig!ed $y competing competitions1. ;ver<"readth test

2. 1st Amendment cases#. Close relations!ip $etween parties – ma*es court more confident t!at litigant will fully litigate 'e86

doctor0patient, AACD0mem$ers(). Claim raised is critical to litigant@s own actions 'e86 doctor0potential a$ortion patient, etc.(

c. Congress can remoe t!ese prudential o$stacles $y statute.

d. "ingleton . ulff, 19?H 'p. 1);1( – physicians may raise the rights of their patients to an abortion given41. :!e intimacy of t!e relations!ip $etween t!e p!ysician and t!e patient.2. :!e relatie ina$ility of t!e patient to assert !er own rig!ts since s!e may $e c!illed from litigating

$y t!e desire to aoid pu$licity.#. D!ysician@s financial sta*e in t!e outcome.

e. :ileston . 3llman, 19)# 'p. 1);<( – court rejected standing to a doctor challenging anti)birth)control

legislation on behalf of his patients. Geld t!at t!e doctor didn@t allege an inury to !imself. Can@t sue to protect t!e rig!ts to unrelated #rdparties.

f. Camp$ell 'p. 1;;"upp( – white criminal ∆ has standing to raise 5*ual protection and due process

claims challenging discrimination against blac/s in the grand jury selection process.

1. Injury in fact – casts dou$t on t!e fairness of t!e criminal proceeding2. Gas an interest in asserting the rights of t!e e8cluded urors

#. >8cluded urors face significant o"stacles in asserting t!eir e%ual protection rig!ts. g. Associational "tanding

1. An association !as standing to assert t!e claims of its mem$ers een if it !as suffered no personalinury from t!e c!allenged actiity.

2. Gunt . A "tate Apple..., 19?? 'p. 1);2( – 3)step test

• 4em$ers would ot!erwise !ae standing to sue in t!eir own rig!t

• :!e interest t!e association see*s to protect is releant to its organiMational purpose

• eit!er t!e claim asserted nor t!e remedy re%uested would re%uire participation $y t!e

indiidual mem$ers in t!e lawsuit 'pro$lem arises, !oweer, re6 damages – !ow do you assess personal inury(

&. :iming limitations – G> can constitutional litigation $e $roug!t1. 4ootness – w!en a ederal court@s determination of a legal issue su$mitted $y t!e parties is no longer

necessary to compel t!e result originally soug!t $ecause of c!anges after t!e suit was $roug!t, t!e case issaid to $e moot and ederal courts are w0o power to decide suc! a case.a. &eried from Article III@s case or controersy re%uirementb. &eunis . Odegaard, 19?) 'p. 1);#( – non)minority applicant brings suit under the 16th mendment

because he is not admitted to state law school and minorities with lesser credentials are admitted.

7ecame moot& because π admitted to school.

1. Once a claim is no longer in controersyB it cannot $e !eard.2. >8ceptions6

1<



a. =oluntary cessation – t!e oluntary cessation of allegedly illegal conduct will not render acase moot w!ere t!ere is a reasona"le expectation that the wrong will "e repeated. 'e8.discriminatory programs – > L C!.(

$. Collateral conse/uences – a case will not $e rendered moot if t!ere remain unsettled

important collateral conse/uences t!at may still !ae an aderse impact on t!e litigant.c. 4epetitious issues – a constitutional issue will not $e rendered moot w!en it is capa"le of

repetition' yet evading review. If t!e suit is maintained as a class action, mootness is aoidedif it is capa$le of repetition, yet eading reiew for any mem$ers of t!e class. (here must "e

reasona"le likelihood that the wrong complained of would reoccur. 'e86 pregnancy – -oe. ade(

2. -ipeness – re%uirement t!at litigant can s!ow present injury or imminent threat of su"stantial injury. π

doesn@t !ae to wait until inury occurs. Litigant must present actual cases, not a$stractions.a. :!ree factors6

1. Gards!ip to t!e πs from t!e delay.

2. !et!er /udicial interention would improperly interfere wit! administratie actions.#. !et!er t!e court would $enefit from furt!er factual deelopment of t!e issues presented.

". Considerations of t!e courts61. Are t!ere any significant eents yet to occur t!at may s!arpen t!e dispute2. Are t!e issues s!arply defined or do t!ey remain speculatie and uncertain#. Is t!ere a realistic e8pectation t!at t!reatened goernment action will occur

c. "ocialist La$or Darty . Filligan, 19?2 'p. 1)92( – een w!en urisdiction e8ists it s!ould not $ee8ercised unless t!e case >tenders the underlying constitutional issues in clean<cut and concrete

form.)3

d. 3nited Dower or*ers . 4itc!ell, 19)? 'p. 1)9<( – court will not issue adisory opinions.

>. Dolitical %uestions – GA: can $e !eard – $ased on "eparation of Dowers&onjusticia"ility een t!oug! t!ere is urisdiction0a case in controersy0a iolation of rig!ts, t!e court maydecline to !ear a case.Cuts off t!e udicial power in its entirety – $ut not all cases dealing wit! political %uestions will $e set aside.8ust "e examined on a case "y case "asis. 4ost li*ely to $e ino*ed in areas of traditional presidential andcongressional competence.4ar$ury !eld t!at only w!en t!e issue !as $een constitutionally granted to anot!er $ranc! '>8ecutie,

Legislatie( will t!e court call it a political %uestion.BImportant considerations61. Classic doctrine (extual concerns

a. !et!er t!e issue !as $een committed $y t!e Constitution to t!e discretion of anot!er goernmentdecisionma*er '$ranc!( – if so, it is a political %uestion.B >8ample6 oreign Affairs.

$. ote6 w!et!er t!e issue !as $een constitutionally committed to a particular $ranc! is, itself, a political%uestion. Only t!e manner in w!ic! discretion is e8ercised is inappropriate for reiew. In ot!er words,t!e %uestion of usticia$ility is usticia$le.

c. unctional considerations1. Court determines t!at t!e udicial $ranc! lac*s t!e resources and capa$ilities for resoling t!e

%uestion.2. Court e8pects difficulty in ac%uiring accurate information and need for uniformity in decisions.

2. 6rudential concerns

a. Impossi$ility of deciding wit!out an initial policy determination of a *ind clearly for nonudicialdiscretion.

$. Impossi$ility of a court@s underta*ing independent resolution wit!out e8pressing lac* of respect duecoordinate $ranc!es of goernment – $eparation of powers.

c. 3nusual need for un%uestioning ad!erence to a political decision already made – -eference to

Congress.d. Dotential for em$arrassment from multifarious pronouncements $y arious departments on one

%uestion.3. a*er . Carr, 19H2 'p. #)( – *uestion of severe apportionment of voting rights and reapportionment of

voting districts.

11



Golding6 %uestion of w!et!er legislatie apportionment satisfies e%ual protection is not a political %uestion,gien it doesn@t inole separate powers concerns and protectie safeguards are aaila$le.a. /udicial reiew of e%ual protection c!allenges '1)t! Amendment(, oer dissent@s argument t!at t!e court

s!ouldn@t $ecome enmes!ed in a political t!ic*et.B". Court !eld t!at t!e case did not inole separation of powers, $ur rat!er involved state action and the

need for conformity of state action with the Constitution.

c. &I"">: 'ran*furter( – $roader doctrine of aoidance s!ould $e used – aoid matters of state action'diision of powers(, federalism, and separation of powers. ran*furter is afraid of potential political $ac*las! or loss of credi$ility if t!e Court oersteps its $ounds. 4aintains t!at t!is %uestion $ettersuited to Congress.

d. COC3-->C> 'Clar*( – ecause t!e political system is offB in t!is case and doesn@t allow citiMenst!e a$ility to c!allenge t!e malapportionment, citiMens !ae no ot!er means $ut to turn to t!e Court.

e. rennan@s H criteria for political %uestion doctrine61. Classic te8tual

a. :e8tually demonstra$le constitutional commitment of t!e issue to a coordinate politicaldepartment.

$. Lac* of udicially discoera$le and managea$le standards for resoling it.2. unctional

a. Impossi$ility of deciding w0o an initial policy determination of a *ind clearly

for nonudicial discretion. $. Impossi$ility of a court@s underta*ing independent resolution w0o e8pressing lac* of t!erespect due coordinate $ranc!es of goernment.

#. Drudential 'policy( – see also note p. ) 'ic*el article(

a. 3nusual need for un%uestioning ad!erence to a political decision already made. $. Dotentiality for em$arrassment from multifarious pronouncements $y arious departments on

one %uestion.). Foldwater . Carter, 19?9 'p. );( – foreign affairs - termination of a treaty.

a. Dlurality !eld t!at t!is is a political %uestion and t!at t!e ot!er $ranc!es of goernment could resole itwit!out udicial interention.

$. Court finds61. o constitutional proision directly controlling t!e issue.2. Dolitical $ranc!es 'Legis., >8ec.( !ae ade%uate resources to decide t!e issue.#. Issue inoles foreign affairs – typically an >8ecutie domain.

. Inter$ranc! disputes – where the Constitution vests discretion in one "ranch without a specific

limitation on that power' the exercise of that power is not judicially reviewa"le.

H. i8on . 3."., 199# 'p. 1( – rticle , 83 ,mpeachment 9rial Clause challenge to Senate rules allowing a

Senate committee to hear evidence against an impeached :ederal judge before presenting an evidentiary

report to the full Senate (no $trial before full Senate%.Court says t!is was nonusticia$le $ecause6a. Article I6 51 grants all legislatie powerB and 5# grants sole power of trial.B

$. :ryB ≠ identifia$le te8tual limitation of $road discretion ested in t!e "enate.

c. &o judicially managea"le standards for determining what a trial3 is. "enate can decide !ow torun an impeac!ment trial.

d. COC3-->C>, "teens – don@t focus on Ssole@ or Strial@ – t!e ramers intended to assign t!eimpeac!ment power to t!e Legislature.

?. Dowell . 4cCormac*, 19H9 'p. )#( – whether ;ouse#s refusal to seat <owell (suspected wrongdoer was

constitutional - did it violate rticle , 8=& which ma/es each ;ouse& the $judge of the *ualifications of its

own members?%a. Court says t!is issue is usticia$le due to te8tual limitations of t!e Constitution. ?udgment of

/ualifications is limited to the enumerated /ualifications !age' residency @ citi*enship % only#.

". 7uestions regarding additional %ualification re%uire udicial reiew. Goweer, t!e court will simplystri*e t!e added %ualifications 'see :erm Limits(.

III. :!e structure of federalism – &iision of powers

12



as t!e federal goernment created $y a collection of independent states 'state dominance(, or was it created $y et!e DeopleB 'state su$ordinance(In analyMing ederal power, 2part analysis6

• Is t!ere some power in t!e Constitution to enact t!e legislation 'Constitutional source of power(

• Is t!ere any limitation on the exercise of this power

- -ig!ts0li$erties granted $y t!e Constitution.

-Allocation of power 'separation of power – Interranc!, diision of power – ederal0"tate(

:!e diision of powers is not specifically set out in t!e Constitution. It is $ased upon ideas of ederalism – limitedgoernment. "tates are presered and recogniMed in Article I, Article IE guarantees a representational goernment,and t!e 1<t! Amendment reseres all rig!ts not granted to t!e ederal goernment to t!e "tates.4et!ods of presering ederalism6

• /udicial reiew – c!ec* on national power oer state

• Dolitical process – system of representation

A. :!e national power 1. 4cCulloc! . 4&, 1;19 'p. H2( – challenge to >#s efforts to ta' the 2nd 7an/ of merica. :wo main

issues6a. !et!er t!e constitutional delegation of powers to Congress includes a power to incorporate a national

$an* =>"

1. o e8press constitutional proision.2. :!ere are no in!erent national legislatie or police powers – the Federal government is one of

limited powers.

. &octrine of implied powers6a. Constitution must $e read $roadly to proide for t!e means to effectuate t!e enumerated

powers 'su$ect to t!e enumerated restrictions(. $. Constitution must $e read $roadly so t!at it may endure for t!e ages and adapt to c!ange oer

time. Allowing t!e effectuation of t!e enterprise at !and.:. &ecessary and 6roper clause6 Article I 5; proides t!at Congress s!all !ae power to ma*e all

laws w!ic! $e necessary and proper for carrying into e8ecution t!e foregoing powers, and all ot!er powers ested $y t!e Constitution.B

a. Congress may use reasona"le means for achieving its delegated powers.

". If the end for which Congress legislates is legitimate' win the scope of the

Constitution' then all means which are appropriate' which are plainlyadapted to that end' which are not prohi"ited "ut consist w the letter and

spirit of the Constitution are constitutional.3

c. Limitations on t!is power6i. Legislation must $e appropriate, reasona$le and consistent wit! t!e letter

and spirit.ii. Drete8t principleB Congress can)t use its granted powers as a pretext

for overtaking a reserved state power !like police power#. $. Can t!e state ta8 t!e $an* w0o iolating t!e Constitution

1. O – alt!oug! t!e power to ta8 is concurrent 'aaila$le to $ot! t!e ederal and "tate goernmentsat t!e same time(, t!e state@s power is su$ect to t!e "upremacy clause. "tate law inconsistent wit!t!e Constitution is oid.

2. Inter<governmental immunity6 4ars!all says t!e power to ta8 is t!e power to destroy 'oerregulate( – t!is is ∴ in opposition to t!e ederal goernment. Instead of adopting a case$ycase

analysis, 4ars!al adopts a rigid rule.. Formalism – rigid rule is accepta$le, $ecause t!e ederal goernment cannot rely on political

accounta$ility $ecause state legislatures will !ae power to decide t!ese ta8es. Congress' not the

states' will protect the &ational interest.

:. ational goernment can ta8 state goernment entities. :!e "upremacy clause only runs one way'$ecause t!e "tate@s interests are represented in t!e ederal goernment – "enate(

1#



. "tate power in t!e federal structure3.". :erm Limits . :!ornton, 199 'p. ?#( – passed a state constitutional amendment denying access to

ballot to individuals that had previously served a certain amount of time. Golding6 :erm limits can only $eadded $y amendment to t!e 3" Constitution. :!is issue is not to $e decided $y indiidual states.1. !ile Dowell !eld t!at Congress couldn@t impose restrictions on its mem$ers $eyond t!e 7ualifications

clause, t!is case deals wit! restrictions imposed $y a state constitution.a. :!e 3" Constitution diests states of any power to impose term limits. $. ecause t!e DeopleB s!ould $e free to c!oose t!eir own representaties, t!e 7ualifications s!all remain

fi8ed0e8clusie 'and cannot narrow t!is pool(. >8presio unis – if one t!ing is specified, ot!er t!ings notincluded are e8cluded intentionally.

c. Limitations6i. :e8tual – # %ualifications are e8pressly set out. :!ere are ot!er proisions in t!e Constitution

w!ic! limit state@s a$ility to control Congress. :!is is a c!ec* on congressional power – if allowed,Congress mig!t entrenc! t!eir power and set impossi$le %ualifications for anyone to c!allenge anincum$ent.

ii. Gistorical – ederalist Dapers 'Gamilton, 4adison(. :!e states were gien power oer >lectors, $ut not oer -epresentaties. Also, framer@s desire for uniformity.

iii. "tructural – $asic democratic principle t!at people must "e a"le to freely choose their

representatives.

2. >en if Constitution didn@t impose t!e a$oe limitations, t!is would not $e allowed, $ecause t!is is not a

power resered under t!e 1<t! Amendment.a. -esered powers are only t!ose t!at were traditionally resered – t!ose t!at e8isted $efore t!e adoption

of t!e Constitution. $. :!e Congress was created $y t!e Constitution – t!ere was no Congress $efore t!e Constitution, so no

suc! rig!t to limit t!e Congress e8isted.c. :!e DeopleB created t!e Constitution and t!e national goernment 'not t!e "tates(.

i. Introduced t!e idea of split citiMens!ipB – we are citiMens of $ot! t!e ational goernment and a"tate.

ii. :!e power to set t!e %ualifications is resered to t!e DeopleB and not t!e states – if t!ey want toc!ange t!e %ualifications, t!ey can do so – $y amending t!e Constitution.

#. &I"">:, :!omas – $ot! t!e "tate and t!e Deople can alter t!e %ualificationsa. 7ualifications set out $y t!e Constitution are only a minimum standard. :!is minimum cannot $e

remoed0altered, $ut can $e raised.B

$. Argues t!at if a power was not gien to t!e ederal goernment $y t!e Constitution, it is implicitlyresered to t!e Deople and t!e "tates – w!et!er or not it e8isted at t!e time of framing. /ust ane8tension of t!e limited goernmentB t!eory.

c. Compact t!eory – t!e people of eac! state come toget!er to form one nation '$ut t!e "Ct reected t!isargument in Gunter@s Lessee(

d. Argues t!at t!e ultimate source of constitutional aut!ority comes from t!e Deople of t!e seeral statesand not from t!e ation as a w!ole.

e. :!is amendment didn@t totally $ar access to election, only access to t!e $allot – people could still writein a candidate.

f. !ile t!e maority argues split citiMens!ipB '$etween ational and state goernments(, t!e :!omasargues t!at t!e Deople !ae delegated certain powers to t!e ederal goernment. 3nder t!eir stateconstitutions t!ey distri$ute t!e resered powers 'some resered to t!e people, some to t!e state(.

g. Argues t!is case falls under t!e :ime, &ate and 4anner clause.

). $tate cannot tax or regulate the Federal government or its entities unless thegovernment has consented to the taxregulation.

IE. ational Legislatie Dower A. :!e Commerce power

Article I 5; gies Congress the power to regulate commerce with foreign nations' and among the several

states and with Indian tri"es.3

1. >sta$lis!ing t!e foundations

1)



Fi$$ons . Ogden, 1;2) 'p. 9<( – @A assigned e'clusive navigational privilege to 2 men who then gave

privilege to Bgden& ibbons received the privilege from the @ational legislature.Golding6 Court up!olds t!e power of t!e national legislature to regulate !ere 'naigation is wit!incommerce( and state doesn)t have the power to regulate it when it interferes with government

regulation.

a. Dower oer interstate commerce is complete in itself and may $e e8ercised to its utmost e8tent, andac*nowledges no limitations ot!er t!an prescri$ed. Dlenary power, wit! only Congress@ wisdom andrestraint 'and political process( as a limitation.

$. 4ars!al@s $road iew of commerce61. Organic t!eory – among t!e seeral statesB commerce t!at concerns more states t!an one.

Includes those activities that affect the states generally. Commerce any type of commercial

intercourse.

2. Only commerce t!at is e8clusiely internal to a state 'w!ic! doesn@t affect ot!er states( is precludedfrom t!e Commerce clause. e@ll see later, t!at een t!is type of commerce may $e reac!ed.

. AmongB came to mean $etween,B and courts prior to t!e ew &eal tended to re%uire a s!owingof moement across state lines to constitute I0C.

:. Appellee argued t!at commerce s!ould $e limited to traffic, $uying0selling, and e8c!ange ofcommodities. 4ars!al disagreed and includes naigation.

B. Commerce includes t!e power to regulate 'prescri$e t!e rule $y w!ic! commerce is to $e goerned.Dro!i$ition is a regulation '&ar$y(.

:!e &aniel all, 1;?1 'p. 9#( – commerce, including naigation0moement w0in state lines will affectI0" commerce if t!e goods are destined for ot!er states 'or !ae come from anot!er state and are $eingtransported instate(.

2. raming t!e modern interstate commerce power

• :!ere is no ational police power 'protection of morals, !ealt!, and well$eing(, $ut Congress can

t!roug! t!e e8ercise of its delegated powers regulate so as to ac!iee police power o$ecties.

• Congress t!erefore does ac!iee social welfare o$ecties $y using its $road commerce powers.

• Courts will not pro$e t!e motie or purpose of Congress@ regulation of I0" commerce.

• 0hen using an implied !not express# power' it is necessary to esta"lish a reasona"le' appropriate

relationship "etween the power exercised and the regulated activity !45A(I;&$I6 &D7$#.

a. :!e Lottery Case 'C!ampion . Ames(, 19<# 'p. 9( – court upheld federal anti)lottery legislation.1. -egulated Act6 Importation0mailing0interstate transportation of lottery tic*ets.2. Congress !as plenary power to preent t!e pollution of t!e c!annels of I0" commerce. :!is

includes the power to prohi"it. Dro!i$ition is a regulation.#. !ile t!e Constitution doesn@t e8pressly gie Congress t!e power to regulate for t!e protection of

t!e Deople, t!is power is implicit in t!e grant of Commerce power.b. Gammer . &agen!art, 191; 'p. 9?( – court struc/ a :ederal law restricting the ,S shipment of goods

produced by child labor as an unconstitutional intrusion on state police powers and the 1Dth mendment.

1. -egulated Act6 C!ild la$or.2. &ay 'for t!e "Ct( !olds t!at t!e power to regulate doesn@t always include t!e power to pro!i$it.#. &istinguis!es :!e Lottery Case $ecause !ere, t!e issue concerns wit! t!e goods "efore t!ey !ae

$een transported, not t!e transportation, itself. In :!e Lottery Case, t!e only way to preent t!e

eil was to stop t!e s!ipment. Gere, t!e eil 'c!ild la$or( !as already occurred.). Congress !as no power to regulate instate production – t!is inades t!e area left to state

regulation0protection 'police power(. 1<t! Amendment pro!i$its t!is. &ual ederalism as ac!ec*0$alance to congressional power.

. &I"">:, Golmes6 Argued t!e plenary power of Congress includes t!e power to pro!i$it t!emoement of I0" commerce w!eneer it was $eing used to encourage w!at Congress !adconcluded was a moral eil.

H. arrow iew of Congress@ police powers6

Congress doesn@t !ae t!e power to regulate transportation or pro!i$it if6

1

Lateroerruled $y &ar$y

&ormantcommerceclause silence $yCongress

Implied power



• Foods t!emseles are not eil

• >il occurs "efore transportation

c. 3.". . &ar$y, 19)1 'p. 1<;( – court upheld a provision of the :air "abor Standards ct prohibiting the

shipment of goods in ,S commerce which had been produced by employees wor/ing for substandard

wages or e'cessive hours. ;verrules ammer.

1. -egulated Acts6 transportation0s!ipment of goods

wages0!oursCourt responds to $ot! regulations62. If t!e goods are intended to $e s!ipped in I0" commerce t!ey can $e regulated.

a. Alt!oug! Gammer !eld t!at t!e production of goods $efore I0" transportation is not Commerce $ecause t!e !arm occurs $efore s!ipping, t!e "Ct !olds t!at t!e s!ipment of t!e goods is Commerce. :!e pro!i$ition of t!is s!ipping is a regulation. -eects0oerrules Gammer.

$. It doesn@t matter if t!e goods are going to a state wit! similar laws – Congress@ power is plenary – and t!ey are allowed to impose w!ateer restrictions t!ey find necessary.

#. Congress can legislate to preent unfair competition t!at would adersely affect I0" competition.a. It is for Congress to define t!e conditions for using t!e c!annels of I0" Commerce. 8otive

and purpose are matters for legislative judgment and courts have no judicial review

power here.

". >ffects of lower wage0!our re%uirements include lower costs0competitie edge of undersellingneig!$oring states.

c. Congress !as t!e aut!ority to regulate all employees, regardless of t!e fact t!at t!ey may produce goods t!at stay instate.1. -egulate local actiity to ensure general pro!i$ition is effectie.2. or*0wor*ers are so intermingled t!at it is too difficult to determine w!at goods will end

up w!ere. -egulate all to ensure proper I0" commerce.d. 1Eth Amendment is a truism. +ecause Congress is exercising their entire delegated power'

there is nothing to "e reserved for the state.

e. -eects &ual ederalism and t!e Drete8t Drinciple 'no longer applies(. Instead of seeing twoseparate sp!eres of power, imagine two oerlapping sp!eres of power. >en if t!e "tatestraditionally regulates t!e area, it is still possi$le for t!e ational goernment to regulate.

). As long as Congress is wit!in its granted power, t!eir actions can !ae w!ateer motie, purpose or effect. ven if the purpose of the statute is this effect. Loo* for t!is to $e lessened, later 'e8ceptfor t!e "pending clause(.

d. $tream of Commerce (heory – local0instate actiities can $e regulated $y Congress if t!ey are partof t!e streamB or currentB of I0" commerce 'focuses on t!e oerall moement of w!ic! t!e goods area part(. it! t!e affectation doctrine, t!e stream of commerce t!eory isn@t used muc! anymore.1. "tafford . allace, 1922 'p. 1<)( – court upheld :ederal regulation of stoc/yard wages&

reasoning4

a. "toc*yards were at t!e t!roat t!roug! w!ic! t!e current of I0" commerceflows and t!e transactions w!ic! occur t!erein are only incidental to t!iscurrent.B

$. Leaes open t!e %uestion of actiities at t!e start of t!e streamB 'production,mining, manufacture( or t!ose at t!e end of t!e streamB 'sales andconsumption(.

c. TUT Congress can regulate2. Carter . Carter Coal, 19#H 'p. 1<H( – court rejects :ederal regulation of mining

wages& reasoning4a. 4ining $rings t!e su$ect of commerce into e8istence, $ut Commerce

disposes of it.B $. In ot!er words, mining is "efore t!e stream.c. TUT Congress cannot regulate

3. "c!ecter Doultry . 3."., 19# 'p. 1<H( – court rejects :ederal regulation of poultry processor& reasoning4

1H

Oerrules

Gammer

Comminglingt!eory



a. Drocessing occurs outside of t!e stream of commerce. I0" commerce !asended, intrastate commerce !as $egun.

$. TUT Congress cannot regulatee. Affectation -octrine – Congressional power is not limited to e8press grants of power,

$ut also includes suc! power as is necessary and proper to t!e effectuation of t!e

e8press powers. "ee, 4cCulloc! 'implied power(.1. Commerce power encompasses ederal regulation of local actiity w!en suc!regulation is reasona$ly appropriate to t!e effectie regulation of I0" commerce.

2. Congress can regulate local actiity not in I0" commerce w!en suc! regulation isnecessary and proper.B

3. Dreew &eal era – &I->C: >>C:" – Congress could regulate local actiitiesw!ic! directlyB affected I0" commerce, $ut not t!ose w!ose effect was indirect.B

4. &irect pro8imate5. Gouston -- . 3.". '"!reeport -ate Case(, 191) 'p. 1<)( – court upheld :ederal

controls over rates charged for trips wholly win 9E. Congress !as t!is power $ecause of t!e su$stantial relations!ip to I0" commerce. Congress can regulate

local activity with direct effects "ecause of the closeness of the relationship toI$ commerce.

6. 3.". . >.C. Knig!t, 1;9 'p. 1<( – 4anufacture is only indirect and incidental,so Congress cannot regulate.

7. L- . /ones + Laug!lin "teel, 19#? 'p. 1<?( – court begins to loo/ into thee'tent of burdens and obstructions on the free movement of ,S commerce.

f. 8odern Affectation -octrine – I&I->C: >>C:" – if local activity has a

su"stantial economic effect3 on I$ commerce' then Congress may regulate'

regardless whether it is directindirect.

1. :wo tests6a. 4ationality test6 can Congress reasona$ly conclude t!at actiity affects I0"

commerce -oes Congress have a rational "asis to conclude that the

activity has a su"stantial effect on I$ commerce ic*ard $. $u"stantial effect6 must !ae eidence of effect and a nexus to $ridge local

actiity and I0" commerce. LopeM2. ic*ard . il$urn, 19)2 'p. 111( – SCt upheld legislation regulating the

production of wheat for personal consumption on a family farm.a. >en t!oug! t!e actiity was e8tremely local 'personal consumption only(, t!e

Court !eld t!at t!e actiity could $e reac!ed $y Congress, due to t!esu$stantial economic effect on I0" commerce.

$. Cumulative effects doctrine6 1 farmer may not !ae muc! effect, $ut manyfarmers toget!er would !ae a su$stantial effect. &on@t ust loo* at t!eindiidual actiity $eing c!allenged, loo* at t!e entire class of regulatedactiity to see if it su$stantially affects I0" commerce.

c. Gere, !ome produced0consumed w!eat could oer!ang t!e mar*etB 'farmer isa potential source of e8cessie supplyB( and introduce uncontrolla$learia$les on supply0demand. >en if t!e w!eat is neer mar*eted, it maysatisfy t!e grower@s needs and t!us remoe !im from t!e mar*et.

d. Local actiity is always part of t!e larger I0" commerce.

1?

Only deals wit!t!at goods t!atstay instate



e. :!e c!ec*0$alance on t!is doctrine is t!e political power – one can alwaysote in new representaties w!o can c!ange t!e law.

3. ays to s!ow affectation6a. urdens t!e amount of I0" commerce t!at will occur. ic*ard $. Dro!i$its moement of goods to preent misuse of I0" commerce not to pollute

c!annels of I0" commerce. Lottery0C!ampionc. Commingling t!eory – w!en local actiities inole $ot! intra and interstatecommerce, and are so commingled t!at t!ey are impossi$le to single out,Congress may regulate $ot! to ensure regulation of I0" commerce. &ar$y

d. >en if local actiity is not intended for I0" actiity, if Congress can ma*e areasona$le or rational $asis to conclude t!at it will !ae affect I0" commerce,t!en t!ey can regulate. ic*ard, KatMen$ac!

e. 4ust ma*e a tie $etween regulated actiity and its effect on I0" commerce. >T3"

f. 4ust s!ow t!at t!e means sere t!e ends. Fi$$onsg. Ciil -ig!ts Legislation wit!in Commerce

Can Congress reac! purely priate action w0o state support =>" 'alt!oug! originalcases said no, t!e Commerce power can reac! t!is actiity(./urisdictional ne8us – customers, food, goods t!at !ae moed t!roug! I0" commerce.1. Geart of Atlanta 4otel . 3."., 19H) 'p. 11?( – Court upheld Congress# prohibition

of racial discrimination in hotelsmotels serving ,S travelers.a. Alt!oug! t!e discrimination occurred locally, $y discouraging $lac*s from

traelling, t!e discrimination $urdened I0" commerce. $. 4emem"er6 a police or social welfare motiation, in an of itself, will not

render a congressional e8ercise of power inalid.c. If it is I$ commerce that feels the pinch' it doesn)t matter how local the

operation that applies the s/uee*e.

2. KatMen$ac! . 4cClung, 19H) 'p. 12<( – SCt upheld application of the 1FG6 ct toBllie#s 77H& a relatively small proportion of its customers were not local and onlya portion of its food had been ac*uired through ,S commerce.a. Alt!oug! t!e actiity is local, Congress can still reac! it if it e8erts a

su$stantial economic effect on I0" commerce 'ic*ard aggregation doctrine(. $. !en legislatures, in lig!t of t!e testimony and facts $efore t!em 'record

eidence(, !ae a rational "asis for finding a chosen regulatory scheme

necessary to the protection of commerce, regulation is permissi$le. O:>6 t!e %uestion is w!et!er Congress could reasona$ly concluderationality, not w!et!er or not t!ey did rationally conclude at t!e time oflegislating – it is not t!e role of t!e court to udge wisdom0purpose.

c. /udiciary will e8tend great deference to a congressional assertion t!at it isacting under t!e Commerce clause. 'ut t!e "Ct will still conduct a nominalin%uiry into t!e regulated conduct@s effect on I0" commerce.(

d. Once t!e Court !as found t!at t!e Legislature !ad a rational "asis 'not een areasona$le $asis( of su$stantial effect, t!e Court@s inestigatie role is OE>-.

e. COC3-->C>, &ouglas6 t!e rig!t of people to $e free of state action t!atdiscriminates against t!em $ecause of race, li*e t!e rig!t of people to moefreely from state to state occupies a more protected position t!an does t!e

1;



moement of cattle, steel, and fruit across state lines. In ot!er words – use t!e1)t! Amendment – not t!e Commerce clause

3. 76 If t!e purpose and effect of an Act is to regulate t!e morals of a local actiity, does Congress!ae t!e power to do t!is 'is it a misuse of power( A6 =>" – Congress !as t!e power to do t!is.(he Affectation doctrine is used as an extension of the implied powers. :!e power to regulate!ere is again, plenary, not!ing is resered to t!e states !ere.

!. "u$stantial >ffects on Commerce0ederaliMation of Crime&oes t!e Commerce power e8tend to crime preention1. 3.". . "ullian, 19); 'p. 1)9( – SCt upheld an application of the :ederal :C

against a druggist who bought a properly labeled bottle of medication& relabeledit& and sold it in his own store.Golding6 Congress !as t!e power to regulate t!e $randing of articles t!at !aecompleted I0" s!ipment and are $eing !eld for future sales in purely local andintrastate commerce.a. Eery $road interpretation of t!e Affectation doctrine. ;nce in I$ commerce

it is always su"ject to Federal control.

". Language used $y Congress $roadly and un%ualifiedly pro!i$its mis$randing.

c. :!is law will reac! multiple instate sales2. DereM . 3."., 19?1 'p. 1)9( – SCt upheld a conviction under the :C<& the

criminal sanctions of which applied to local loan)shar/ing situation.Golding6 Congress !as t!e power to e8ercise legislatie control of loans!ar*ingactiity $y way of its effect on I0" commerce.a. Congress could reasona$ly conclude t!at local loans!ar*ing was one of t!e

most lucratie sources of reenue of organiMed I0" crime. $. o tie in to I0" criminal organiMation re%uired, !oweer.c. Gere, t!e class of activities was regulated, and t!e class is wit!in t!e reac! of

ederal power. Court used Aggregate t!eory '$ut wit!out proof( andCommingling 'an e8tension of ederal power(.

3. 3.". . LopeM, 199 'p. 1<( – SCt struc/ down the un :ree School Iones ct&which prohibited /nowing possession of firearms in a school 0one. :irst time since the @ew eal the SCt held Commerce power inade*uate.Golding6 :!e act didn@t !ae a urisdictional ne8us re%uiring t!at t!e firearms or

t!e ∆ !ae some connection wit! I0" commerce.

a. :!e possession of a gun in a local sc!ool Mone is not an economic actiity t!atmig!t, t!roug! repetition, su$stantially affect I0" commerce. 'Legislationcannot inole indirect or remote effects – must su$stantially effect.B(

$. Dlaces new emp!asis on t!e need for su"stantial and commercial effect '!ere,

t!ere was no commerce $eing regulated – ∴ no urisdictional ne8us(.

1. &oes court now re%uire Congress to esta$lis! t!at t!e actiity is

commercial in nature or ust t!at it !ae an effect on commercial actiity2. Drior cases focus on t!e economic effect of I0" commerce, $ut !ere t!e

court reiews w!et!er t!e su$ect matter is itself commercial.#. :!ese %uestions are still undecided.

c. Congress made no findings on t!e effect of sc!ool iolence and I0" commerceNfindings are not re%uired, $ut t!eir a$sence ma*es it difficult to conclude t!at asu"stantial effect e8ists.

19

/urisdictional e8usB replacesrational $asis inareas of traditional

state power

/urisdictionalne8us su$stantial effect



1. Foernment argued t!at use of guns in sc!ools affects t!e nationaleconomy $y t!e su$stantial effect of iolent crime, t!e impedimentiolence places on trael, and t!e less productie citiMenry produced $y a!andicapped educational process.

2. "Ct replies t!at accepting suc! arguments would allow ederal regulation

of any actiity. :!omas 'concurrence( suggests t!is would lead to anational police power – unconstitutional.d. COC3-->C>, Kennedy0O@Connor6 Act is unconstitutional $ecause of its

significant interference wit! state soereignty 'police power(, a$sent a stronger connection or identification w0 commercial concerns central to t!e Commerceclause. 4aintains t!is law !as no commercial c!aracter,B no eidentcommercial ne8us,B and is $eyond t!e realm of commerce.B

e. &I"">:, reyer6 argued -ational asis – could Congress !ae !ad a rational $asis for t!is legislation. 4ore emp!asis on deference to Congress.

f. 76 Is LopeM a return to &ual ederalism A6 "Ct wants to aoid regulation ofcore areas of state regulation. In t!ese areas, t!e Court re%uires more from

Congress t!an t!e traditional -ational asis.!. ) factors t!at are releant in concluding t!at an actiity su$stantially effects I0"commerce 'from LopeM(1. :!e a$sence of any urisdictional ne8us $etween t!e regulated actiity and I0"

commerce ma*es it more difficult to identify t!e re%uisite effect.2. :!e regulated actiity must $e commercial in c!aracter.#. :!e a$sence of congressional findings of fact indicating a su$stantial effect ma*es

it more difficult to ealuate Congress@ udgment, alt!oug! factual findings are not re%uired.

). :!e fact t!at t!e federal law regulates in areas suc! as criminal law, education orfamily law w!ere states !ae !istorically $een soereign may $ear on t!ereasona$leness of t!e federal law.

. # $road categories of actiity t!at Congress may regulate under t!e Commerce clause61. Congress may regulate t!e channels of I$ commerce '&ar$y, Geart of Atlanta(2. Congress is empowered to regulate and protect t!e instrumentalities of I0" commerce, or persons or

t!ings in I0" commerce, een t!oug! t!e t!reat may come only from intrastate or local actiities.#. Congress@ commerce aut!ority includes t!e power to regulate t!ose actiities !aing a su$stantial

relation to I0" commerce, t!ose actiities t!at su$stantially affect I0" commerce.

#. Limits on t!e commerce power a. 1<t! Amendment – t!e powers not delegated to t!e 3nited "tates $y t!e Constitution, nor pro!i$ited $y

it to t!e states, are resered to t!e states respectiely, or to t!e people.B1. 4ar$ury – says 1<t! Amendment is a te8tual limitation on t!e power of Congress.2. 4cCulloc! – "tate may not directly ta8 or regulate t!e federal goernment or its instrumentalities.#. &ar$y – t!e court said t!e amendment is a truismN t!e ederal goernment cannot e8ercise powers

not delegated to it 'reects state power as limitation on federal power(.). 4& . irtM, 19H; 'p. 12(. ry . 3."., 19? 'p. 12(

b. ational League of Cities . 3sery, 19?H 'p. 12H( – SCt struc/ down provisions of the :ederal :"S

regulating the wageshours paid by the state to their employees.

Golding6 :!is power would impair t!e "tates@ a$ility to function effectiely w0in t!e ederal system.:!e c!allenged amendments directly displace the $tate)s freedom to structure integral operations

in the areas of traditional governmental functions.

2<

Lateroerruled $y Farcia



1. :!is was not a DowersB c!allenge, $ut an immunity c!allenge. "tructural limitation of statesoereignty.

2. ederal unconstitutionally interferes wit! t!e considered policy c!oices of state officials on !owtraditional pu$lic serices are to $e proided.

. In areas of traditional0integral goernment functions, t!e Congress cannot displace t!e "tate@s rig!tto goern.

:. &istinguis! &ar$y – !ere, Congress is regulating the state as the state, w!ile in &ar$y, Congresswas regulating people and priate entities.

B. COC3-->C>, lac*mun6 suggests adoption of a $alancing test $etween t!e ederalgoernment@s need to regulate t!e states and t!e "tate@s freedom to goern wit!out regulation.ederal goernment s!ould $e allowed to regulate where the federal interest overrides and the

need for state compliance is demonstra"le.

G. &I"">:, rennan6 argues t!ere is no suc! trumpB of ederal power. :!ere is no constitutionalsource for ederal restraint oer regulation of states as states. 4aority argues t!e 1<t! Amendment,and t!e Constitution as a w!ole create t!e $asis for t!is limitation.

c. Godel . EA "urfacing 4ining, 19;1 'p. 1#1( – SCt upheld provisions of the Surface >ining...ct of

1FJJ& which enacted comprehensive regulations of strip coal mining. 9he claim was against the

displacing of state land use controls.Court formulated a #part test to determine w!en law would $e !eld to iolate state soereignty61. Foernmentally proprietary – t!ere must $e a s!owing t!at t!e c!allenged statute regulates the

states as statesN

a. unctional immunity – applies to all aspects of goernmental serices.2. Gistory test – t!e federal regulation must address matters t!at are indisputa"ly attri"utes of state

sovereignty93 and

a. ages0!ours paid to employees, !ere, constitute an attri$ute of statesoereignty.B

. 3ni%uely or necessarily goernmental – it must $e apparent t!at "tates@ compliance wit! t!eederal law would directly impair their a"ility to structure integral operations in areas of

traditional functions.

>en if t!e a$oe are met, t!e 1<t! Amendment concerns could $e oerridden $y a sufficientlycompelling national interest.

d. >>OC . =, 19;# 'p. 1#2( – less seriousB federal intrusion is allowa$le '!ere it was a statemandatory retirement age for game wardens t!at was struc* down in faor of a ederal minimummandatory retirement age(.

e. Farcia . "an Antonio 4:A, 19; 'p. 1##( – Bverrules @ational "eague. SCt reversed its position on

congressional Commerce power to enforce wage provisions of the :"S against the states.Golding6 /udicial determination of w!ic! state goernmental functions are traditional or integral was!eld to $e unwor*a$leB and inconsistent wit! principles of democratic ederalism. :!ere is not!ing int!e Act w!ic! is destructie of state soereignty or iolatie of any constitutional proision.1. It is not for t!e udiciary to decide t!e role of state goernment, $ut for t!e Deople. A determination

of state immunity from federal regulation, $ased on an appraisal $y an unelected ederal udiciaryof w!at constitutes a traditional0integral goernmental function is $ot! unwor*a$le and inconsistentwit! ederalism. It is not the function of an unelected Federal judiciary to define the nature

and content of the limitations that our federal structure imposes on the Commerce power. It

is the structure of the federal government that defines these limits.

2. Drotection of ederalism is to $e found in t!e Dolitical processN state soereign powers are more

properly protected $y procedural safeguards in!erent in t!e structure of t!e ederal system. Courts may only enforce limits on ederal power in t!ose cases w!ere political processes $rea*

down.:. &I"">:, Dowell6 "ays t!e court !as misc!aracteriMed ational LeagueN it wasn@t a rule t!at was

set up, $ut rat!er a $alancing test of national0state interests.a. Dolitical process is not enoug! of a c!ec*, $ecause mem$ers of Congress, w!ile locally

elected, are still part of t!e ederal goernment. $. Officials are more responsie to interest groups t!an t!e Constitution.c. Court is aoiding duty under 4ar$ury to preent congressional a$uses.

21

Oerrules ationalLeague

All #must $emet



d. ational goernmental cannot always understand local needsN t!e state goernment is closer tot!e people.

B. &I"">:, -!en%uist6 ational League will $e $ac*. &isagrees wit! t!e $alancing tests offered $yDowell 'dissent(, lac*mun 'maority(, and O@Connor 'dissent(.

G. Loo* at !ypos on t!e >rica outline. f. = . 3."., 1992 'p. 1)#( – SCt stri/es down a federal providing that a state failing to provide for

disposal of radioactive waste generated in the state by a set date shall ta/e title to the waste. 9hree provisions of the @uclear aste act were challenged4

• 4onetary incenties for t!e deelopment of waste sites – up!eld under t!e "pending power

• Access proision0Cooperatie federalism – Congress says, adopt your own program, or we

will...B – up!eld 'encouragement, not coercion(.

• :a*e titleB – eit!er create a site or ta*e title of t!e waste $truck down –ederal got. cannot

force t!e states to legislate0regulate in a specific manner.Golding6 :!e ederal goernment cannot compel t!e "tates to implement '$y statute or >8ecutieaction( federal regulatory programs.1. Congress cannot constitutionally force states to regulate. :o allow Congress to coerce states to

regulate, rat!er t!an regulate itself, undermines political accounta$ility.B2. Dlacing t!is economic $urden on t!e states 'wit!out giing t!e state goernment t!e rig!t to ma*e a

decision a$out t!e spending( is li*e ta8ation w0o representation – it@s unfair for t!e Deople to !old

t!eir state goernment responsi$le for an act t!ey !ad no control oer 'undermines politicalaccounta$ility(.. It is unconstitutional to force t!e states to use its resources to administer federal law – iolation of

state soereignty and outside Congress@ enumerated power.:. alancing test is inappropriate in t!is case. Also, t!e $tate cannot consent to this type of

legislation.

B. Farcia 'and ational League( is distinguis!ed $ecause t!at legislation applied to pu$lic and priateentities ali*e. Gere t!is law affects pu"lic entities only – direct infringement upon statesoereignty.

G. &I"">:, !ite6 let political process rat!er t!an state autonomy protect t!e states. :!e political process is not $ro*en,B so don@t try to fi8 it.

g. DrintM . 3."., 199? 'p. #"upp( – Court stri/es down portions of the 7rady un Control ct re*uiring

mandatory bac/ground chec/s as unconstitutional.Golding6 t!e ederal goernment cannot command t!e "tate@s officers, or t!ose of t!eir politicalsu$diisions, to administer or enforce a federal regulatory program.B1. = !eld t!at Congress cannot compel t!e "tates to enact or enforce a regulatory program. "calia

now !olds t!at Congress cannot circument t!at pro!i$ition $y conscripting t!e "tate@s officersdirectly. "tate argues t!at compelled enforcement is unprecedented. &issent argues t!e =argument was simply dicta.

2. Categorically reects t!e policy. &o "alancing test. Foes to t!e core of state soereignty, so itdoesn@t matter !ow important or emotionally c!arged t!e Act is.

#. Are we $ac* to &ual ederalism Loo*s li*e itV "calia tal*s a$out dual soereignty.B :woseparate sp!eres of goernment, wit! rig!ts0duties0priileges under eac!.

). COC3-->C>", O@Connor6 1<t! Amendment iolation 'can@t force "tate and local lawenforcement officers to perform rady ac*ground c!ec*s(. :!omas6 2nd Amendment iolation'rig!t to *eep and $ear arms(.

. &I"">:, "teens6 Argues t!e ecessary and Droper clause – 3se of state officials is a reasona"le

met!od of e8ercising t!e Commerce power. Also, $ecause t!is is a delegated power 'Commerce(,t!e 1<t! Amendment s!ouldn@t apply, $ecause Congress is e8ercising its plenary power. Also arguest!e Oat! clause as an e8ample of an accepta$le impositionB on state officials. '"calia re$uts t!att!is is not a alid ederal law – iolates t!e 1<t! Amendment – so no need to support it $y t!estates.( Argues t!at t!is is a minimal intrusion and t!e ederal interest is great. '"calia re$uts wit!!is categorical rule – w!o cares(

H. -ecap of "calia@s arguments6

22



a. Gistory – early !istorical practice doesn@t support t!e compulsory use of state e8ecuties toenforce ederal law. "tate udges, !oweer, were mandated under Article EI "upremacyclause and t!e 4adisionian Compromise.

$. "tructure – &ual "oereignty '&ual ederalism(c. /urisprudence0Drecedent – = is applica$le to all commandeering of state officials 'e8cluding

state udges(. >8tends = to pro!i$it compulsory enforcement and administration of ederal policy. 3ndermines t!e accounta$ility of state employees.

. :!e :a8ing and "pending power Article I 5; $egins, t!e Congress s!all !ae power to lay and collect ta8es, duties, imposts and e8cises, to payt!e de$ts and proide for t!e common defense and general welfare of t!e 3nited "tates.B1. :a8ing Dower

a. Congress can use ta8ation as a necessary and proper means for effectuating its delegated powers. $. :!e ta8ing power is a fiscal, not a regulatory power.c. Congress can incidentally regulate, as long as t!ey are effecting a granted power. EeaMie an* .

enno, 1;H9 'p. 1H#(.d. >arlier t!is century, "Ct struc* down nominal ta8ing powers w!en it determined t!at t!e law in fact

imposed a regulatory penalty.B ailey . &re8el urniture, 1922 'p. 1H#(.e. Court will loo* to t!e following w!en udging a penaltyB6

1. :!e amount of t!e ta8

2. :!e conse%uence of failure to pay#. "cienter re%uirements). Identity of t!e administrating aut!ority. &etail of t!e sc!eme or administration

f. In modern times, t!e penaltyB doctrine !as $een replaced $y t!e doctrine of o$ectie constitutionality.As long as t!e law is reenue producing on its face, t!e court will not pro$e to discoer !iddenregulatory moties and will not $e muc! concerned wit! w!et!er effects of t!e law trespass on t!etraditional state police power. >8treme &eference to Congress.

2. "pending Dower a. Congress !as no e8press power to regulate for t!e general welfare. Goweer Congress is allowed to use

federal monies to proide for t!e common defense and t!e general welfare.B :!is "pending power, ist!erefore an independent source of ederal power 'fiscal(.

b. Congress can attac! reasona$le conditions to its grant of R.c. Court is ery deferential to Congress@ determination of t!e scope of general welfare.Bd. Loo* for a rational means to provide for the general welfare.

e. 3.". . utler, 19#H 'p. 1H)( – SCt invalidated the gricultural djustment ct& which sought to use the

Spending and 9a'ing power to increase farm prices by controlling farm production.Golding6 t!is is an unpermitted intrusion on t!e "tate@s regulatory power '1< t! Amendment(1. -eiterated t!at t!e "pending power is fiscal, not regulatory, in nature.2. Court adopted Gamilton@s construction of t!e "pending power 'separate and distinct from t!e ot!er

enumerated powers( oer 4adison@s construction '"pending power is only a means for furt!eringt!e ot!er enumerated powers(.

f. "teward 4ac!inery . &ais, 19#? 'p. 1H( – SCt upheld the Social Security ct against a 1Dth

mendment challenge.1. -eects t!e idea of &ual ederalism

2. ac* to !ig! deference to Congress@ determination g. 3.". . Ka!riger, 19# 'p. 1HH( – if a measure purports to $e reenue producing and produces reenue,t!en it is o*, een if it !as an effect of regulating $e!aior t!at Congress doesn@t !ae t!e power toregulate.

h. "& . &ole, 19;? 'p. 1H9( – SCt upholds congressional alternative to limit the drin/ing age under the

Commerce clause. Congress does it under the Spending clause as it applies to highway funds. Court

says BK.Golding6 >sta$lis!es four restrictions on Congress@ "pending power61. :!e spending must $e for a general welfare purpose

a. :e8tual limitation.

2#

Conditionalspending



$. &eference to congressional determination of general welfare purpose.B2. Any condition must $e unam$iguous

a. Attac!ing reasona$le conditions to a grant is o*. $. -ule of clear0plain statement.c. 4ust ena$le t!e state to e8ercise t!eir c!oice *nowingly, cogniMant of t!eir conse%uences in

participation.

#. Conditions must $e related to t!e federal interest in particular national proects or programsBa. 4ust $e reasona$ly related to t!e power to "pend for t!e general welfareB $. -eflects t!e ecessary + Droper clausec. 4cCulloc! standard – reasona$ly related to fiscal o$ectie 'ot!erwise it is a regulation and

must $e ustified as suc! power(.). It must not infringe on any ot!er constitutional proision.+ecause the states can reject the funding' it is not coercive or violative of the 1Eth Amendment'

rather it is an inducement. :!e court !as not set a $rig!t line ruleB concerning coercion .inducement 'W, 1<W, etc.(.. &I"">:, rennan, O@Connor6 argued t!at t!e condition was not related to t!e interest. Gere, t!ey

argued, t!at t!e !ig!way funding is not related to drin*ing age – t!e argument is t!at t!erelations!ip $etween t!e two isn@t sufficient.:oday, !oweer, t!e reac! of t!e ederal goernment is e8tensie. /udicial deference re6 "pending power is great. :!e dissenters also argue t!at t!e 1<t! and 21st Amendments are independentconstitutional $arsB to t!e conditional grant of federal !ig!way funds 'counter argument1 – t!is isonly an inducement, not coercion(, 'counter argument2 – &ar$y, t!is e8ercise is plenary, so t!erecan $e no conflict wit! state@s rig!ts(.

i. Limits to t!e spending power61. 4ust $e not unrelatedB2. 4ust $e for t!e general welfareB. &o penalty under the spending power % only withholding

E. "tate power in American federalism!ile t!e national goernment can e8ercise only suc! powers as are e8pressly or impliedly delegated in t!eConstitution, states !ae in!erent police power to act for t!e !ealt!, morals, and well $eing of t!eir citiMens.Constitutional limitations on state power ature of t!e power

• (otally exclusive – resered to t!e ational goernment• (otally concurrent – can $e e8ercised $y t!e ational and "tate goernments 'at t!e same time(. o

negatie implications0limitations on t!e states. Li*e :a8ing power.

• 6olice power – e8clusie to t!e "tates – !ealt!, morals + well $eing

• $electively exclusivepartially concurrent – states can regulate so long as not inconsistent wit! t!e

commerce clause.A. "tate power to regulate interstate commerce

1. Fi$$ons 'reisited( – is Commerce power e8clusie or concurrenta. Alt!oug! 4ars!all tended to agree wit! t!e idea t!at it is e8clusie, !e c!ose not to resole t!e issue,

since t!e state law conflicted wit! t!e Congressional act and under t!e "upremacy clause, the state law

must yield to the federal law. 4ars!all found no analog $etween ta8ation 'concurrent( and commerce power.

$. Concluded t!at t!e state was e8ercising police power, not Commerce power, $ut aoided t!e issue oft!e e8tent to w!ic! states can e8ercise t!eir police powers w!en I0" commerce is affected.

2. Cooley . oard of ardens, 1;1 'p. 19)( – SCt upheld a < statute re*uiring vessels entering or leaving

<hiladelphia to have local pilot on board.Golding6 t!e law did constitute a regulation of I0" commerce, 3: t!e regulation of I0" commerce is aCOC3-->: power. In t!e a$sence of applica$le federal legislation, t!e "tate rule winsVa. "et up for t!e selectie e8clusieness doctrineN w!et!er t!e dormant commerce clause itself precluded

state regulation was to $e determined on a selectie $asis loo*ing at t!e su$ect of t!e regulation.". Cooley doctrine – when su"jects of commerce regulation are national in nature' admit only one

uniform system or plan of regulation' they are not amena"le to state regulation.

2)

Conditionalspending



1. ocus is on t!e su$ect of t!e regulation 't!e regulated actiity(.2. Loo* to see if t!e regulated actiity re%uires uniformity of regulation t!roug!out t!e country or if it

permits diersity in its regulation.#. Criticisms6

'a( focuses too !eaily on t!e su$ect of t!e regulation oer t!e nature of t!e regulation and itseffect on I0" commerce

'$( "till used occasionally as a test of t!e state power to regulate I0" commerce.3. :!e &ormant Commerce Clause – t!e grant to Congress of t!e power to regulate I0" commerce is deemed to

inalidate state legislation $urdening I0" commerce.a. >en w!en Congress is silent, t!e dormant commerce clause itself, as interpreted $y t!e courts, imposes

some limitation on t!e a$ility of states to regulate w!en t!e state regulation affects I0" commerce. $. 4odern doctrine – focus on t!e nature of t!e regulation 'effect on I0" commerce(.c. Durposes sered $y t!e dormant commerce clause6

1. Dreseres congressional aut!ority oer I0" commerce.2. Dreseres principles of free trade 'w0o goernment regulation0interference(#. Aoids al*aniMationB of t!e states – in ot!er words, to presere t!e 3nion $y preenting t!e

deelopment of I0" friction t!at would derie from one state@s imposition of $urdens on commerceaffecting ot!er states. In ot!er words, aoids interstate trade wars.

). Dreseres t!e democratic process $y preenting t!e legislature of one state from imposing special $urdens on citiMens of ot!er states, w!o !ae no say in t!e ma*eup of t!e state legislature. o

protectionism w0o representation.B

. :!e struggle for standards6 t!e modern focus1. &iscrimination6 Durpose, 4eans, >ffects

a. :e8t – Facially discriminatory – state law imposes $urdens against outof state interests t!at it doesn@timpose on instate interests.1. Dresumed to $e unconstitutional. &iscriminatory legislation almost always iolates t!e Commerce

clause.2. &ifficult for state to proe no less $urdensome means for legislation 'see 4aine . :aylor , $elow

for an e8ception(b. ;riginal intent – at t!e !eart of t!e discriminatory clausec. Avowed purpose – if it is economic protectionism 'warning $ells(d. -iscriminatory means facially discriminatory

1. Loo* for 6• 3nfair competition – $urdens outofstate $usinesses $ut not instate $usinesses.

• Instate access 'no outofstate access, or costly access( – local consumers faored for instate

resources oer outofstate consumers.

• >8traterritoriality – regulatory effects $eyond t!e state@s $orders

e. City of D!iladelp!ia . /, 19?; 'p. 19;( – SCt stri/es down a state law which prohibits the importation

of wastes from out)of)state for dumping in local landfills while allowing local traffic and dumping of

wastes.1. ven if a state law is designed to serve legitimate police power o"jectives' it doesn)t mean that

it is not discriminatory. 5egislative purpose doesn)t matter.

2. "tate is allowed to refuse access across t!e $oard to dumping of waste wit!in its $orders, $ut notset up a $arrier solely against outofstate waste.

#. 3nless t!ere is a reason apart from t!e origin to treat outofstate dumpers differently, state cannot

enact protectionist legislation.:. A state cannot "e allowed to isolate itself from the effectsacts of other states.

. &I"">:, -!en%uist6 Cannot distinguis! waste e8clusion from %uarantine laws 'w!ic! areallowed(. Court responds t!at it is not t!e moement of t!e tras! t!at is t!e pro$lem, $ut itseentual resting place – at t!at point it doesn@t $atter w!at type of waste it is or w!ere it came from – it@s t!ereV

f. aldwin . FA, 19# 'p. 2<2( – SCt struc/ down a @A law prohibiting the sale of mil/ bought out)of)

state at a price lower than the sale price of in)state mil/.

2

&iscriminatorymeans or purpose



Golding6 3nconstitutional, $ecause if power were e8erted, it would create a $arrier to traffic0commerce $etween one state and anot!er. :!e aowed purpose of t!e legislation was to suppress0mitigateconse%uences of I0" competition.1. >en if a state !as critical social welfare purposes in mind, it cannot erect trade "arriers to the

free flow of I$ competition consistent with the common market philosophy underlying the

Commerce clause.

2. Common mar*et0free trade t!eory – democratic0political process rationale. Outofstate interestsare not represented in t!e state legislature.

. (hey must all sink or swim together.

g. Gug!es . OK, 19?9 'p. 2<#( – SCt struc/ down an BK statute prohibiting the out)of)state sale of freeminnows& even though in)state sales were permitted.

1. A state cannot deny access to state resources to outofstate citiMens.2. A state cannot discriminate een to sere enironmental or ecological concerns.#. !en legislation is so facially discriminatory, udicial scrutiny is !eig!tened.). -e%uirements6

'a( legitimate purpose – !ere, alid legitimate purpose'$( o alternatie means – !ere inalid

h. "por!ase . , 19;2 'p. 2<)( – SCt struc/ down @7 statutory permit system limiting out)of)statee'port of groundwater to states granting reciprocity for sale of its waters in @7.

Golding6 :!e reciprocity re%uirement does not surie t!e strictest scrutiny resered for facially

discriminatory legislation.1. failed to s!ow t!e reciprocity re%uirement was narrowly tailored to t!e ustified end.2. !as an un%uestiona$le legitimate and !ig!ly important conseration and !ealt! interest in

ground waters. Goweer, a state cannot prefer its citi*ens to out<of<state consumers in proving

access to natural resources located in the state.

. -eciprocity will not sae legislation, $ecause if anyt!ing, t!ey en!ance discrimination $y see*ingmore faora$le treatment for t!e product or serice elsew!ere.

i. 4> . :aylor, 19;H 'p. 2<( – SCt upheld a facially discriminatory statute which banned the

importation of baitfish from out)of)state.Golding6 t!e law was not deemed economic protectionism and t!e court found t!ere to $e no lessonerous alternatie.1. :!is is t!e only time t!e "Ct !as up!eld an ot!erwise facially discriminatory statute.2. A state may use discriminatory means to sere a legitimate state police power interest as long as no

less restrictie means are aaila$le.. 5ess onerous alternatives doctrine

'a( Legitimate purpose must $e sered'$( o nondiscriminatory alternaties aaila$le

j. ort Fratiot Landfill . 4I &-, 1992 'p. 2<H( – SCt struc/ down a >, law stating that solid waste generated in another county& state or country cannot be accepted for disposal unless e'plicitly

authori0ed in the plan.

1. :!e fact t!at t!e law treated waste generated in ot!er 4I counties no differently t!an outofstatewaste didn@t sae t!e law.

2. A state may not aoid t!e strictures of t!e Commerce clause $y curtailing moement of articles ofcommerce t!roug! su$diisions of t!e state, rat!er t!an t!roug! t!e state itself.B

#. 4I failed to meet its $urden of proing t!at its legitimate !ealt! and safety concerns could not $eade%uately sered $y nondiscriminatory alternaties.

/. C!em. aste 4gmt. . Gunt, 1992 'p. 2<H( – SCt struc/ down an " law which imposed greater fees for out)of)state waste disposal over in)state citi0ens.

1. o state may attempt to isolate itself from a pro$lem common to t!e seeral "tates $y raising $arriers to t!e free flow of I0" trade.B

2. Once a state ta8 is found to discriminate against outofstate commerce, it is typically struc* downw0o furt!er in%uiry.B Gere, t!e Court found less discriminatory alternaties aaila$le to ac!iee t!e"tate@s goal.

l. = . OK, 1992 'p. 2<?( – state@s desire to sustain its coal mining industry could not $e sered $y t!eillegitimate means of isolating t!e state from t!e national economy.B

2H

If faciallydiscriminatory

↓

"trict scrutiny

↓

o deference



m. Camps ewfound0Owatonna . :own of Garrison, 199? 'p. #)"upp( – SCt struc/ down a >5 property

ta' credit which e'empted charitable organi0ations operated principally for the benefit of nonresidents.1. A state may gie a su$sidy t!at allows underselling $eneat! outofstate interests, $ut t!e state

cannot gie a ta8 credit t!at !as t!e same effect. ocus is on t!e difference $etween ta8 credit andsu$sidy.

2. &I"">:, "calia6 argues t!at a ta8 credit s!ould $e ta*en out of t!e antidiscrimination policy test.

2. Impact discrimination>en if a law is facially nondiscriminatory and is designed to sere a legitimate social welfare o$ectie,t!e law may still $e discriminatory in its impact on I0" commerce. :!is discrimination is found if t!ere is asignificant disparate $urden on outofstate concerns isXis local interests.Court will use a strict scrutinyB standard of reiew. :!e state must s!ow6

• Local $enefits of t!e statute

• 3naaila$ility of nondiscriminatory alternaties

a. Gunt . A "tate Apple..., 19?? 'p. 2<;( – SCt struc/ down a @C statute re*uiring that all closed

containers of apples sold in the state bear only the +.S. grade label.

1. !ile t!e law on its face appeared to $e nondiscriminatory in t!at it applied e%ually to outofstateand instate sellers ali*e, t!e effect0impact was found to $e e8cessiely discriminatory.

2. Application of t!e C re%uirements on A sellers denied t!em t!e competitie and economicadantage of using t!e A grading system 'superior to 3" system(. It also would $e e8pensie forA sellers to comply to t!e C regulation.

#. Court found t!ere were ot!er nondiscriminatory alternaties aaila$le.). In determining t!e local $enefits, t!e Court $alances t!e $urdens on A to t!e $enefits in C and

finds t!e $urdens outweig! t!e $enefits.b. &ean 4il* . 4adison, 191 'p. 212( – SCt struc/ down a , ordinance ma/ing it unlawful to sell mil/

as pasteuri0ed unless it had been processed and bottled at an approved plant win a =)mile radius of thecity.

1. 0hen a law is found to have a discriminatory impact' the "urden falls on the state to justify

"oth in terms of the local "enefits flowing from the statute and the unavaila"ility of

nondiscriminatory alternatives ade/uate to preserve the local interests at stake.3

2. Court found a discriminatory impact and found reasona$le nondiscriminatory alternatiesaaila$le.

c. C+A Car$one . Clar*stown, 199) 'p. 21#( – SCt struc/ down a flow control ordinance re*uiring that

all solid waste be processed at a designated transfer station before leaving the municipality.1. Local interest in generating reenue to pay for a local disposal facility cannot ustify discrimination

on outofstate interests.2. :!is law !ad discriminatory effects on $ot! local and outofstate competitors. Goweer, the mere

fact that a law operates do discriminate against other in<state interests' doesn)t save a law if it

has a discriminatory effect against out<of<state interests.

. &I"">:, "outer6 :!e result of t!is law is a pu$lic monopoly, w!ic! is not protectionism.d. est Lynn Creamery . Gealy, 199) 'p. 21( – SCt struc/ down a > pricing order imposing an

assessment on all fluid mil/ sold by dealers to > retailers& and later used these funds to subsidi0e >

dairy farmers.

Golding6 state is not allowed to use outofstate funding to su$sidiMe local interests.1. acially, t!e law is o*6 all distri$utors pay into t!e fund e%ually. Goweer, only 4A farmers get

t!e su$sidy 'discriminatory effect – unfair competition – ma*es 4A mil* c!eaper to produce t!an

outofstate mil*(.2. !ile eac! part of t!e su$sidy is o* separately, w!en t!ey wor* toget!er to !ae a discriminatory

effect on I0" commerce, t!e law must $e struc* down.. 5ook at the integrated clause !su"sidy# and its effect to see if it discriminates.

:. Court !olds t!at it is o* to ta8, and it is o* to su$sidiMe. Goweer, a state cannot tax to su"sidi*e.

e. >88on . Fo. of 4&, 19?; 'p. 21#( – SCt upheld the validity of a > law which prohibited gas

producers and refiners from operating retail service stations win > (integrated dealerships.1. Court reected t!e claim t!at t!e law was discriminatory, een t!oug! 4& !ad no local

producers0refiners, t!us placing t!e $urden of diestiture on outofstate companies.2. Court found t!at t!e 4& law6

2?

&iscriminatoryeffects0impact



'a( Created no $arriers against I0" independent dealers'$( -oes not prohi"it the flow or place added costs on I0" goods'c( &oes not distinguis! $etween instate and outofstate companies in t!e retail mar*et

#. :!e structure of t!e mar*et, and not t!e I0" c!aracter of t!e companies, creates t!e discriminatoryeffect. In ot!er words, t!e discriminatory effects stem from t!e nature of t!e mar*et, rat!er t!an t!eapplication of t!e law.

f. F4 . :racy, 199? 'p. ##"upp( – SCt upheld a state e'emption of local distribution companies from salesuse ta'es on sellers of natural gas.

1. !ile t!e law may seemB discriminatory, t!e local distri$ution companies 'L&C@s( operate sodifferently t!at t!e law doesn@t create a competitie effect.

2. Anti competitive effect % look at similarly situated localout<of<state interests.

g. Law may $e discriminating een if t!ere is no competitie disadantage61. If outofstate companies are denied access to local mar*et, t!is undermines t!e free trade

principles of t!e dormant commerce clause.2. Applica$le een if local interests are also affected $y t!e statute.#. Applica$le if t!e law imposes added costs on $usiness $y forcing it to operate wit!in t!e state

instead of outofstate 'e8traterritoriality(.

#. 3ndue $urdensa. >en if a state law seres a permissi$le state interest, and is !eld to $e nondiscriminatory in $ot! means

and effect, it may still iolate t!e dormant commerce clause if it imposes an undue $urden on I0"commerce.

b. alancing of local interests in maintaining regulation against t!e $urden of free moement of I0"commerce. Ad !oc $alancing test 'case $y case analysis(61. :!e nature0function of t!e regulation2. :!e c!aracter of t!e $usiness inoled#. :!e actual effect on t!e flow of I0" commerce

c. "eerity of t!e $urden ature of t!e $urden Increase in costs Dro!i$ition more seere t!an regulation &ecrease in Y0amt. of goods Aaila$ility of alternaties "lowing of moement "tate law differs from neig!$oring law

• Laws t!at !ae multiple e8emptions suspicious w!en local interests are faored.

c. "ome ustices argue against t!is $alancing approac!

1. -!en%uist, "calia6 argue t!at t!is undue $urdens test is unnecessary – if t!e law is not facially oreffectiely discriminatory – t!e law s!ould $e alid.

2. rennan, lac*mun6 deference towards state law, since t!e regulation of t!e economy is not a udicial function

#. "outer6 deferential attitude towards local regulation is approac!ingd. Important state interests6 certain state interests receive greater weight in the "alancing testH

1. 6u"lic health @ safety

2. 6revention of fraud

. Conservation of natural resources' +7(H

'a( "tates cannot !oard t!eir resources or adopt laws t!at are essentially protectionist.

'$( "tate cannot use means t!at, w!ile rationally designed to ac!iee permissi$le police powero$ecties, e8cessiely $urden t!e free flow of I0" commerce.

:. ighway safety regulations

!a# "tate may regulate traffic passing t!roug! t!e state in order to ac!iee permissi$le police power o$ecties, 3:

!"# "tate may not regulate w!ere t!e national interest re%uires uniformity ofregulation.

!c# :!e "Ct !as regularly struc* down state regulations w!ere local interests in!ig!way management !ae $een deemed insufficient to outweigh the "urden

on I$ commerce. specially whenH

2;



'1( "tate legislation grants e8ceptions0faora$le conditions only to localinterests.

'2( Darticular state law is mar*edly out of stepB wit! t!e laws of ot!er statesgoerning t!e same actiity.

e. Di*e . ruce C!urc!, 19?< 'p. 222( – SCt struc/ down an I statute re*uiring a grower of cantaloupes

to pac/age its produce in the state at an added cost of 2DD/.

1. alancing test6 :!e state interest in !aing t!e produce identified wit! t!e producing state'protect0en!ance state@s reputation( was iewed as minimal and less su$stantial t!an t!e cost $urdens on t!e grower.

2. !ere t!e statute regulates een!andedly to effectuate a legitimate local pu$lic interest, and itseffects on I0" commerce are only incidental it will $e up!eld unless the "urden imposed on such

commerce is clearly excessive in relation to the putative local "enefits.

. Court goes t!roug! a #step test6

'a( >en!anded in its operation 'discriminatory( =>" '$ut it may $ediscriminatory in its effects – court doesn@t answer t!is

'$( Legitimate state interest =>" – ensuring t!e %uality0reputation of its produce does sere alegitimate state interest against inferior produce '$ut t!is is tenuous, at $est(.

'c( 7ndue "urden =>" – cost to t!e grower R2<<*, $urden on lost $usiness. Compared wit!

t!e state@s tenuous interest, t!e $urden to t!e grower is e8tensie. ∴ t!e law must fall.

:. (he "urden of the free flow of I$ commerce must "e "alanced against the state)s

"enefitinterest.

B. 2 "ig /uestions from 6ikeH

• -oes the state regulation impermissi"ly regulate against I$ commerce

• Are the incidental "urdens imposed on I$ commerce clearly excessive in relation to the

putative local "enefits3

f. "oDac . AZ, 19) 'p. 219( – court deelops t!e $alancing test $etween state interest 'train safety( andt!e national interest 'I0" commerce(.

g. "C Gig!way &ept. . arnwell ros., 19#; 'p. 22<( – SCt upholds a SC statute prohibiting truc/se'ceeding a certain si0e on state highways.

1. -ational $asis test – as long as a state action does not discriminate, it can $e sustained alt!oug! it!as $urdened or impeded I0" commerceB and materially interferesB wit! I0" commerce.asically, as long as t!ere is a rational $asis for t!e law, it will $e sustained.

2. 2 in%uiries6'a( &id t!e state act wit!in its proince in adopting t!e regulation'$( ere t!e means c!osen reasona$ly adapted to t!e end soug!t

h. -aymond 4otor :ransp. . -ice, 19;< 'p. 22)( – SCt struc/ down a , statute limiting the length and

configuration of truc/s operated within the state.

1. Court doesn@t answer w!et!er t!e law is discriminatory in its purpose, means, or effect, insteadfocusing on an undue $urdens analysis.

2. "u$stantial $urdens to t!e truc*ers '∴ I0" commerce( wit!out a s!owing of legitimate state interest

'!ig!way safety, etc( will defeat a statute. (he "urden rests on the state to show contri"utions

to safety.

. !ile !ig!way safety is important and t!e law is presumed to $e constitutional, e8ceptions wea*ent!e presumption in faor of alidity, wea*ening t!e $alancing test. Gere t!e court uses a rational

relation standard, not an ad !oc $alancing.:. Also, t!e Court points out t!at ot!er states allow dou$lesB. 5ook to the conse/uences of enforcementconformity with the law – if it is too costly, time

consuming, $urdensome, t!e court will find t!e law inalid.G. COC3-->C>, -!en%uist6

i. Kassel . Consolidated reig!tways, 19;1 'p. 2#<( – SCt struc/ down an , law that generally

prohibited the use of double)trailer truc/s within the state.1. ustices reect a straig!t ad !oc $alancing test w!ere t!ere is a alid state interest '!ig!way safety(

– use a t!um$ on t!e scaleB approac!.

29

3ndue urdencases are fact

intensie. or*t!e facts on t!ee8am.

#step undue $urdens test



2. Goweer, t!e law still fails, $ecause it significantly impaired t!e ederal interest in efficient I0"transportation. :!e law disproportionately affected outofstate residents and $usinesses.

j. C:" . &ynamics, 19;? 'p. 2#2( – SCt upholds a ,@ statute limiting voting rights on stoc/holders ofcorporations with a substantial L of ,@ stoc/holders wo approval of the stoc/holders.

Golding6 t!e law is not discriminatory $ecause it61. Applies to all owners, w!et!er t!ey were instate or outofstate residents.2. Applied only to I corporations, so t!ere was no danger t!at $usinesses would $e su$ected to

inconsistent regulation.#. &idn@t impose undue $urdens on I0" commerce since it was limited to I corporations and was

meant to protect I stoc*!olders and I residents against !ostile ta*eoers $y outofstateresidents.

). 3nder >88on, again, it@s t!e nature of t!e industry, not t!e law, w!ic! is discriminatory.. COC3-->C>, "calia6 o need to go $eyond t!e discrimination analysis to an undue $urdens

test. If t!e law is not discriminatory and !as no e8traterritorial effect, t!en t!e law s!ould $eup!eld.

H. >8ample of increasing reluctance to use an undue $urdens analysis.

). "tate as mar*et participanta. !en t!e state acts, not as a regulator, $ut as a participant '$uyer0seller( in t!e mar*etplace, it is not

su$ect to t!e ordinary constraints of t!e dormant commerce clause.

b. :!e dormant commerce clause doesn@t pro!i$it t!e state from discriminating in faor of its own citiMensincident to engaging in mar*et transactions or su$sidies. 'Goweer, t!is mig!t not apply in relation tonatural resources(.

c. Arguments for t!is policy61. Original intent6

'a( 4ar*et participation is not t!e focus of t!e Commerce clause.'$( Durpose of t!e dormant commerce clause – not applica$le w!en t!e state acts as a mar*et

participant2. Dolicy6

'a( Competition – state s!ould $e allowed to freely in t!e mar*etplace'$( "tate soereignty – "crap – state s!ould $e free to c!oose !ow to allocate its resources in t!e

mar*etplaced. Arguments against t!is policy6

1. 4ay allow states to circument t!e dormant commerce clause and ac!iee anticompetitieo$ecties.

2. onresidents not represented in t!e state legislature – no political c!ec*s.e. Gug!es . Ale8andria "crap, 19?H 'p. 2#( – SCt held that a state could give subsidies to local

operations and e'clude outsiders.1. !en state acts as a mar*et regulator, t!e dormant commerce clause applies. Goweer, w!en t!e

state acts as a mar*et participant, t!e dormant commerce clause does not apply. f. -eees . "ta*e, 19;< 'p. 2#)( – SCt holds that the Commerce clause doesn#t prevent S from

discriminating in favor of its residents with respect to sales from a state)owned cement factory& despitethe fact that out)of)state business had long relied on its output.

1. :!e negatie implications of t!e dormant commerce clause do not apply w!en t!e state acts as amar*et participant rat!er t!an a mar*et regulator.

2. :!ere is no indication of a constitutional plan to limit t!e a$ility of t!e states t!emseles to

operate freely in t!e mar*et.B#. asis for t!e mar*et participant principle6'a( Concerns for state soereignty'$( A$ility of an enterprise to c!oose its own customers'c( Driate traders not su$ect to Commerce clause restraints – fairness0een!andedness'd( Comple8ity of adusting competing interests w!en state engages in proprietary action

Dolitics.). Court emp!asiMed t!at t!e state@s $usiness in t!is instance inoled an e8tensie underta*ing on its

part. Left open t!e possi$ility of restrictions placed on t!e use of t!e state@s natural resourcessu$ect to t!e dormant commerce clause.

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. &I"">:, Dowell6 "tate is engaging in economic protectionism 'pro!i$ited under t!e dormantcommerce clause('a( "tate !as political considerations t!at ot!er companies don@t !ae'$( !en state acts as seller0$uyer of goernment operations0su$sidies, t!e dormant commerce

clause s!ould not apply. Gere, t!e state is acting as a trader for ot!er purposes 'for priateconcerns(, so t!e dormant commerce clause s!ould apply.

'c( "tate soereignty s!ould only apply w!en t!e state is acting in a traditional goernmentalfunction. '&ifficult to determine(

g. !ite . 4A CC>, 19;# 'p. 2)<( – SCt upheld a mayoral order re*uiring all publicly funded

construction projects be performed by a wor/ force w at least M city residents.Golding6 "crap and -eees – t!e impact on outofstate residents figures into t!e e%uation only after itis decided t!at t!e city is acting as a regulator and not a mar*et participant.1. "ince t!e city !as e8pended only its own funds in entering into t!e pu$lic construction contracts, it

is acting as a participant.2. >8tends -eees to coer state contracts wit! priate parties affecting #rdparties. :!e doctrine is

not limited to priity of contract $ecause t!e court finds one mar*etplaceB – all are stateemployees in t!e sense t!at t!ey are wor*ing on t!e same proect.

#. &I"">:, lac*mun6 ocuses on t!e priity re%uirement. !en a party is outside priity 'e86su$contractor to a citygeneral contractor contract(, t!e city is acting as a regulator, not a participant(.

h. "out!Central :im$er . unnic*e, 19;) 'p. 2)1( – SCt struc/ down an K statute re*uiring thatbuyers of timbers sold by the state process the timber in)state.1. Alt!oug! t!e state was participating in t!e mar*etplace 'seller(, t!e conditions of t!e statute on

downstream processing constituted a regulation of t!e processing mar*et, t!us iolating t!edormant commerce clause.

2. 4ipple effect – t!e furt!er away t!e law is e8tended to people outside priity, t!e more li*ely t!elaw is to $e regulatory0discriminatory 't!e less li*ely t!e state is acting as a mar*et participant(.

#. &I"">:, -!en%uist6 argues t!is is li*e !ite – t!e state is only trying to condition0determine tow!om t!ey are selling.

i. Important t!ings to loo* for in t!ese type of %uestions61. !at is t!e nature of t!e mar*et2. Is t!ere more t!an one mar*et#. Is t!e state a mar*et participant or regulator

). Gow far are we from priity

. Interstates priileges + immunitiesa. Article IE 52 – t!e CitiMens of eac! state s!all $e entitled to al priileges and immunities of citiMens of

t!e seeral states.B :!is protects outofstate citiMens from unreasona$le discrimination in regard tot!eir fundamental national interests.

b. !en a state confers a $enefit on its own citiMens, it cannot deny t!at same $enefit to outofstatecitiMens, unless it demonstrates su$stantial ustification.

c. :!is is not a source of rig!ts, $ut simply an interstate anti<discrimination clause.

d. :!is is not related to regulations t!at affect I0" commerce, so it doesn@t matter if t!e state is acting as amar*et participant.

e. ote6 t!e clause says citi*ens and t!erefore doesn)t apply to aliens and corporations.

f. :est6

1. Is the activity in /uestion fundamental' in that it is sufficiently "asic to the livelihood of the&ation as to "e within the privileges and immunities protected "y the Constitution Loo* att!e rig!t0priilege0immunity inoled

2. Is there su"stantial reason for the discrimination

#. -oes the discrimination "ear a close relation to that reason Includes consideration for t!eaaila$ility of less restrictie means.

g. Gic*lin . Or$ec*, 19?; 'p. 2)#( – SCt struc/ down a K statute re*uiring preferential employment

treatment of citi0ens in oil and gas related jobs as violative of the <rivileges and ,mmunities clause. las/a ;ire law.

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Golding6 nonresidents were not t!e particular source of t!e eil attac*ed 'w!ic! was t!e !ig!unemployment of residents(.1. :!e state@s interest in oil and gas is small compared to t!e discriminatory $urden imposed.2. >en if nonresidents were t!e source of t!e pro$lem, t!e $road employment preference gien to all

residents was too loosely related to t!e goal of aiding unemployed residents.#. 3nder t!e dormant commerce clause, t!is law is clearly facially discriminatory. Goweer, an

argument can $e made t!at t!e state is acting as a mar*et participant 't!e counterargument to t!isis t!e ripple effect – too far remoed(.

). :!reepart test6

'a( "u$stantial reason for discrimination $eyond residency'$( 4eans su$stantially related to eil $eing preented 'Closely tailored to t!e $enefit0!arm('c(

h. 3nited uilding . City of Camden, 19;) 'p. 2);( – -!en%uist, w!o wrote !ite 'and dissented inunnic*e, writes t!at an ordinance re%uiring local employees iolated t!e Driileges and Immunitiesclause 'een t!oug! it didn@t iolate t!e dormant commerce clause(. Argued t!at w!en a stateesta$lis!es a priilege for instate residents, it must offer it to outofstate residents as well.

i. aldwin . is! + Fame Comm@n., 19?; 'p. 2)9( – SCt upheld a state#s imposition of substantially

higher el/ license fees on non)residents than on residents.1. :!e court focuses on t!e importance of t!e interest inoled.2. Gere, !unting for el* is not fundamental to t!e maintenance or well $eing of t!e ation. (he

rightprivilege must "e fundamental.

. :!e distinction $etween residents and nonresidents is a rational means of presering a finitenatural resource.

:. &istinguis! :oomer . itsell, 19); 'p. 2)( – discrimination against commercial fis!erman wasunconstitutional. Gere, we@re dealing wit! recreational !unters.

H. Drotecting personal mo$ility:!e I" moement0transportation of people is included in I0" commerce and dormant commerce clauseanalysis.a. >dwards . CA, 19)1 'p. 22( – SCt struc/ down a C statute ma/ing it a misdemeanor to /nowingly

bring into the state any indigent person who is a non)resident.

1. :!e ery purpose and effect of t!e statute was to $urden I0" commerce.2. o state can isolate itself from t!e difficulties common to all of t!em $y restraining t!e

transportation of persons and property across its $orders.B#. Common mar*et p!ilosop!y 'a$oe(.). &iscrimination inites retaliation.

C. !en Congress spea*s1. Dreemption – case $y case analysis

:!e court considers t!e following, to determine if t!e ederal law preempts t!e state law6

• Area re%uires uniformity of regulation rat!er t!an diersity

• Derasieness of t!e federal law

• !o !istorically regulated t!is type of actiity

• Onemaster t!eory6 if Congress creates an agency – state law is preempted

• Dacific Fas . "tate >nergy..., 19;# 'p. 2H(

2. LegitimiMation!ile Congress@ power is plenary, it mig!t c!oose to leae an area to state legislation. Congress canrescueB a state law t!at !as $een found to conflict wit! t!e dormant commerce clause. Drudential .enamin, 19)H 'p. 2#(

#. "ee >rica@s outline

EI. >8ecutie and congressional relations in t!e constitutional order6 separation of powers reisited.Eestiture clause6 Article II 51 In!erent e8ecutie powerB

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constitutional law ii - dienes - spring 1999

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