constitutional law: structures of … · a change in the composition of the court’s membership...
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CONSTITUTIONAL LAW: STRUCTURES OF GOVERNMENT
Federal Legislative Power: The Commerce Power
A. Article I sec. 8 provides that: “The Congress shall have the power…[t]o regulate Commerce
with foreign Nations, and among the several States, and with the Indian Tribes…”
B. Initial Era of the Commerce Clause
1. Gibbons v. Ogden (1824) p. 159
Marshall’s opinion establishes a broad definition of commerce, which clearly
includes navigation
Marshall also concludes that “among the several states” means intermingled with
the states and may move beyond the state boundaries
Congress’ ability to regulate does not stop at external boundary of each state
o But internal commerce is reserved for the state itself
Regulation “prescribes the rule by which commerce is to be governed.”
State sovereignty does not provide a constraint on federal power according to
Marshall
Political process is the appropriate check on Congress’ exercise of power, not the
Court
Knitting example: if you affect the market in any way you can be regulated as part
of interstate commerce
C. The 1890s-1937: A Limited Federal Commerce Power, p. 162
During this period, the Court espoused a notion of “dual federalism” meaning that
there were separate zones of authority for the states and the feds
More important, the Court narrowly defined commerce, restrictively defined
“among the states,” and concluded that the 10th Amendment reserved a zone of
activities to the states, all of which served to limit Congressional power.
o e.g. separate definition of manufacture and commerce
However, in The Lottery Case and Caminetti, the Court interpreted the power to
regulate as the power to prohibit items that pass in ISC
The Court was not consistent in the application of a commerce clause test but its
approach may have been affected by its commitment to the importance of states’
rights under the 10th Amendment, by its embrace of laissez-faire economic
principles, and its support for the freedom to contract. See Hammer v. Dagenhart
(the Child Labor cases)p. 163 for an example of the coalescence of these factors.
Knitting example: if manufactured knitted goods, not interstate commerce unless
they are shipped out of state
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RR began to affect; instrument of both inter and intrastate commerce = could be
regulated by Congress, even as far as wholly intrastate operations go
D. During the 1930s Depression era, the federal government assumed greater responsibility than
ever before to provide for citizen welfare; the result was the enactment of “New Deal” legislation
and, ultimately, the creation of a broad regulatory state. President Roosevelt, frustrated by the
Court’s invalidation of Congressional action proposed an increase in the number of Justices on the
Court, the so-called “Court-packing” plan. Congress refused to cooperate; however, retirements
on the Court created vacancies for FDR to fill.
E. 1937-1990s: Broad Federal Commerce Power
Beginning in 1937, the Court overruled prior decisions in the commerce clause area
and expanded Congressional power
o Hammer v. Dagenhart: The Act prohibited the shipment of goods in
interstate commerce produced in factories employing children. The father
of two children sought an injunction against the enforcement of the Act on
the grounds that the law was unconstitutional.
Congress cannot use the commerce clause power to regulate
commerce in manufactured goods that were the product of child
labor; local concern
The mere fact that they are intended for in interstate transportation
does not make their production subject to federal control
Congress does not have the power to control the states in the
exercise of the police power over local trade and manufacture
o NLRB v. Jones & Laughlin Steel Corp
Congress has the power to regulate intrastate activities that
potentially could have a significant impact on interstate commerce
Jones & Laughlin failed to comply with an order to end the
discriminatory practices. The NLRB sought enforcement of its order
in the Court of Appeals. The Court of Appeals found the order was
outside of the range of federal power.
Jones & Laughlin does significant business outside of the state of
Pennsylvania. The majority of its products were sold outside of the
state. Owned the mines, quarries, boats, RR, storage, manufacturing,
fabricating, sales offices, etc. = vertically integrated company
Congress retains the power to control and regulate interstate
commerce. Although the employee discharges may be an intrastate
activity, the repercussions from such discharges have the potential
to significantly affect interstate commerce.
The Court realized that the social conditions were just too much;
was standing in the way of the country’s recovery
Wickard v. Filburn (1942) p. 175, further extended the reach of Congress by
concluding that Congress can regulate even local activity if it can rationally
conclude that such activity has a substantial effect on ISC.
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o Filburn (Appellee), produced wheat only for personal and local
consumption. He was penalized for growing wheat in excess of his
allotment allowed by the Department of Agriculture
o Under a “cumulative effect” doctrine (or sometimes called the
“aggregation” principle, the Court sanctioned the application of the
Agricultural Adjustment Act to wheat grown by a farmer for home use and
consumption. Although though one farmer’s wheat had only a slight effect
on ISC, the “cumulative effect” of his wheat in combination with the others
similarly situated had a substantial effect on ISC.
o In some ways is the greatest exercise of the commerce power recognized by
the US Supreme Court; essentially saying Congress can compel a person to
purchase wheat when the individual could grow it for personal consumption
Between 1937 and 1995, not one federal law was invalidated based on Congress’s
exceeding its power under the Commerce Clause. Rather, Congress could regulate
any activity that had a substantial effect on ISC.
The Court no longer distinguished between commerce and other stages of business
such as mining, manufacturing, and production.
The Court no longer differentiated between direct and indirect effects on ISC.
The Court no longer viewed the 10th Amendment as a limit on Congressional
power.
4. In examining the 1964 Civil Rights Act, the Court in Heart of Atlanta Motel, p. 178, introduced
a standard of review that was deferential toward Congressional action.
Hotel that refused accommodations to blacks
The Court viewed its role as determining:
Whether Congress had a rational basis for concluding that the activity in question
(such as racial discrimination by motels) had a substantial effect
on ISC; and
If it had such a basis, whether the means it selected to eliminate that evil (the
statutory scheme) are reasonable and appropriate.
5. Policy Question: Is a broad definition of the commerce power desirable? Balancing the needs
of “the modern era” against the core principles of constitutional law that limit the powers of the
federal government with most authority residing with the states
It depends on what the desired outcome is
Do we want Congress to be able to use the commerce clause to protect public
health, morals, or welfare?
As the US grows and becomes ever more intertangled, ISC will takeover intrastate
commerce; is there even intrastate commerce anymore?
As technology continues to advance, we may need a broad commerce power to
keep that in check
F. The 10th Amendment between 1937 and 1990
1. The Court’s vision of the role of the 10th Amendment has vacillated over time between
viewing:
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The 10th Amendment as a mere reminder that Congress has only its enumerated
powers to legislate under Art. 1; and
The 10th Amendment as independently protecting state sovereignty from federal
intrusion (Hornbook, pp. 312-313)
2. There is an underlying issue: What should the Court’s role be in the protection of state
sovereignty and what should be left to the political process? (The Court addresses this
issue in the Garcia case below.)
3. In National League of Cities v. Usery (1976) p. 184, the Rehnquist-authored majority
opinion held that the minimum wage provisions of FLSA did not apply to state employees
because it was an interference with state decision making and a state’s ability “to structure
integral operations in areas of traditional government functions.”
Between 1976 and 1985, the Court chipped away at the Usery decision and finally
overruled it directly in Garcia v. SAMTA (1985) p. 185, because:
o (1) the “traditional or integral government function” test was unworkable
and
o (2) the political process was designed to protect state sovereignty, not the
Courts.
Please note that in Usery and Garcia, Congress was subjecting the state
governments to the same wage and hour laws that applied to private businesses and
entities.
4. The principled rationales typically used when the Court overruled precedent:
Earlier decision was wrongly decided—only rarely will the Court acknowledge this
directly
The law is unworkable—this is the basis for the Court’s decision in Garcia
The trend of state law no longer supports the earlier precedent— used more
frequently in the criminal procedure area to justify requiring counsel for indigent
defendants, eliminating the juvenile death penalty
An attempt to bring consistency to different doctrinal strands of the Court’s
jurisprudence—compare, for example, the different approaches the Court has taken
to the commerce clause with its approach to the spending power
A change in the composition of the Court’s membership prompts re-examination—
different commentators point to various decisions to support this theory thus
allowing you to make your own determination. (Sometimes offered as an
explanation when there seems to be no other principled basis for overruling
precedent.)
G. 1990s-present: Narrowing of the Commerce Power
1. Beginning in 1995, the Court for the first time in nearly 60 years, signaled its interest in
reviewing Congressional power under the Commerce Clause more critically.
The Gun-Free School Zones Act (the Act) of 1990 made possessing a gun within a
school zone a federal offense. A 12th grade student (Lopez) was convicted of
violating the Act when he brought a handgun to his high school.
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The power of Congress to regulate activities extends only to those activities that
“substantially affect” interstate commerce. The Act neither regulates commercial
activity, nor contains a requirement that the possession be connected in any way to
interstate commerce.
2. In U.S. v. Lopez (1995) p. 190, the court determined that Congress had exceeded its
commerce clause authority in enacting the Gun Free School Zones Act designed to prohibit
possession of guns in or near schools. According to the Court, there are three broad
categories of activity that Congress has the authority to regulate under the commerce
power:
Regulate the use of the channels of ISC (Heart of Atlanta Motel)
Regulate and protect the instrumentalities of ISC (Jones & Laughlin Steel Corp.
v. U.S. and the railroad cases)
Regulate those activities having a substantial relation to ISC
o In Lopez only this one applied but the gun law had no effect on ISC
- Under the government’s theories, the gun law imposed high financial costs upon
society through insurance and prevented individuals from traveling into areas where
violent crime occurs.
- MAJ rejects these arguments bc if accepted there would be no limits on federal power
3. Rationales for the decision:
No jurisdictional nexus to link weapons or individuals involved to ISC
Greater focus was placed on the idea of commercial regulation when Congress
legislates under the commerce clause.
Court clarifies that there must be a substantial effect on ISC to warrant
Congressional action.
Congress must do its homework and demonstrate the impact of the activity to be
regulated on ISC. According to the Court, merely because the Congress says there
is a substantial effect on ISC does not make it so.
This approach seems to represent a less deferential attitude by the Court toward
Congress in the judicial review process.
4. In its next major pronouncement on the post-modern commerce clause doctrine in U.S.
v. Morrison (2000), the Court struck down the civil damages portion of the VAWA .
- Morrison was sued under part of the Violence Against Women Act of 1994
(Act), which penalized crimes of violence motivated by gender. He allegedly
sexually assaulted a woman and she brought this suit against him and another
- He argues this section of the Act is beyond the scope of Congress’ power to
regulate commerce.
- Applying the three-prong test from Lopez, the US held that violence against
women does not substantially affect ISC.
- Defined the aggregate effects test (see Wickard) by noting that intrastate
activities must be considered in the aggregate only if the activities themselves
are economic in nature.
5. Rationales:
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Despite Congress’s attempt to show the cumulative impact of gender-motivated
violent assaults on ISC, the Court determined that Congress was attempting to
regulate non-economic activity traditionally left to state authority.
Court was disinclined generally to aggregate the effects of any noneconomic
activity.
Court specifically refused to sanction congressional regulation of “noneconomic,
violent criminal conduct based solely on that conducts aggregated effect on ISC.”
6. In Gonzales v. Raich (2005) p. 210, the Court as per Justice Stevens relied on the
“cumulative effect” doctrine set forth in Wickard to uphold the Congressional power and
the applicability of the CSA to the purely intrastate use of medical marijuana by individuals
acting in compliance with a state compassionate use statute.
While this activity may not have been commercial per se, Congressional regulation
is permissible if there is a determination that “the failure to regulate that class of
activity would undercut the regulation of the interstate market in that commodity.”
Scalia in his concurring opinion distinguishes between regulation of intrastate
economic activities with a substantial effect on ISC and those that may necessary
and proper as part of more general regulation of ISC.
G. The Effect of the 10th Amendment on Congress’s Authority
1. The Court takes the opportunity to again look at the relationship between the states and
the federal government (usually Congress) in a series of cases beginning in 1990. Please
note these cases were being decided more or less contemporaneously with the shift in the
Court’s commerce clause jurisprudence as represented in Lopez and Morrison.
2. Cooperative Federalism vs. Rotten Federalism:
The Court is uninterested in creating barriers to state-federal voluntary cooperative
arrangements to address public policy concerns. At the same time, the Court is
concerned about Congress’s compelling states to regulate because it blurs the lines
of political accountability between federal actors and state actors.
Countervailing argument may be that the state interests are already represented in
the national political process since we elect our Congress people to represent states
or particular districts within states.
3. In New York v. U.S. (1992) the Court examined the provisions of a federal law to regulate
the disposal of low level radioactive waste, which had been enacted at the behest of the
National Governor’s Association.
New York claims the statute is an impermissible violation of state sovereignty
The Court in an opinion by Justice O’Connor invalidated the portion of the act that
required states to “take title” to the waste generated if the state failed to provide for
disposal by a certain date.
o The only “choice” the states had were to accept liability or regulate
according to Congress’ instructions
o Congress couldn’t force the states to do either of these things separately, so
can’t force states to do them together
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Congress does not have the power to force states to implement regulations
This was an example of the feds impermissibly commandeering the states the states
and forcing the states “to do it our way.”
The Court attempted to differentiate between encouragement (the “carrot”) which
is compatible with the constitution and coercion (the “stick”) which is
constitutionally suspect.
There were major public health concerns but it was Congress’ job to make those
rules; the importance of that interest does not overcome concerns of federalism
Court worried about accountability: don’t want Congress to pass the buck to state
legislators; false choice
Garcia is a more gen application that applies to ALL business including the states
(looking at them as businesses)
4. A few years later, the Court in Printz v. U.S. (1997) p. 230, struck down portions of the
Brady Act –gun control legislation—that commanded state and local officials to conduct
background checks on individuals prior to their purchasing hand guns.
The Court determined that its prior decisions did not permit the federal government
to “compel the states to implement, by legislation or executive action, federal
regulatory programs.”
Congress cannot use state executive to carry out federal policy on a temporary basis
o State executive power was being coopted
This was an example of the feds impermissibly requiring the states “to do its
bidding.”
Should have conditioned the grant of federal funding on compliance
5. Other 10th Amendment issues:
Gregory v. Ashcroft (1991) p. 220: In addressing a state statute that required judges
to retire at age 70, the court held that the federal age discrimination in employment
act was inapplicable because Congress had not clearly stated the intent to apply the
act to states when the federal legislation was enacted.
Reno v. Condon (2000) p. 238: Congress passes the statute establishing penalties
for disclosure or resale of personal information contained in state motor vehicle
records. These penalties apply to individuals and state agencies.
o Data being sold is within ISC
o Doesn’t require states to enact any laws or assist in enforcement (cf Printz)
o Congress’s restriction on the release of personal driver’s license
information was a valid exercise of its power event though it imposed
requirements on the states in the management of their relevant databases.
The other option was federal pre-emption entirely.
Test for whether within ISC:
- Is it regulating the individuals or threatening the states sovereignty under the 10th
Amendment?
- Is it compelling the state not to do something?
- Is it any different than Morrison?
- Do you need N&P to bring it within the commerce clause power?
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The Taxing and Spending Powers of Congress
A. Congress has expansive authority to tax and spend for the general welfare and is not limited to
taxing and spending only to carry out its other specifically enumerated Article I powers.
Madison advocated a narrow interpretation of the Congress’ tax and spend powers
while Hamilton argued for a broad interpretation
1. The Court decided in U.S. v Butler (1936) p. 241, to adopt the Hamiltonian position.
May the taxing and spending powers be used to purchase/force compliance with
federal goals in an area of concern (crop production) reserved to the states?
The taxing and spending powers must be linked to the general welfare and cannot
violate another constitutional provision.
2. The Court usually defers to Congress’ determination about whether taxing and spending
advances the general welfare.
3. At an earlier point, the Court invalidated taxes that seemed to be used for regulatory
purposes rather than revenue-generating purposes. The Court remains concerned about
taxes that are punitive in nature, but seems willing to accept the validity of taxing measures
that appear to be designed to produce revenue.
4. In South Dakota v. Dole (1987), p. 248, the Court upheld Congressional authority to
withhold a portion of federal highway funds from states that did not enact legislation
establishing age 21 as the minimum age for alcohol purchase and public consumption. In
Dole, the Court reaffirmed a four-part test to review the legitimacy of the Congressional
spending power:
The spending must be for a general welfare purpose
Any conditions imposed must be unambiguous
These conditions must be related to the federal interest in particular national
projects or programs
It must not infringe upon another constitutional provision
(no coercion)
5. Some scholars have observed that there really is a fifth prong of sorts because the Court
is also concerned about impermissible “coercion” vs. appropriate “encouragement” if states
are prompted to act in a particular way.
In NFIB v. Sebelius (2012) p. 129, the Court determines that the Medicaid
expansion of the PPACA exceeds Congress’ authority under the Spending Clause.
Roberts states that the financial inducement chosen by Congress and wielded
against the states in NFIB is coercion and not encouragement; he characterizes it as
a “gun to the head” and is a form of “economic dragooning.” pp. 137-38.
6. The dissenting opinions in Dole:
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Brennan viewed the 21st Amendment that repealed prohibition and arguably gave
states the authority to regulate alcohol as a bar to Congressional action in this area.
O’Connor challenged the majority on the “relatedness” prong of the test. She
indicated that minimum drinking age was not sufficiently related to the expressed
goal of reducing drunk driving related highway injuries and fatalities.
7. The Court’s recent pronouncement on the spending power in a case that involved a
federal criminal bribery statute concluded that no “jurisdictional hook” was needed to
directly connect the federal funds to the alleged bribe made to defendant. Sabri v. U.S.
(2004), p. 249. This represents another example of a generous nod toward Congress’
authority to determine the scope of its spending authority.
Congressional Power under the Reconstruction Era Amendments
A. Under the three Reconstruction era Amendments (13th, 14th, and 15th) Congress was given
power to enforce these Amendments by enacting appropriate civil rights legislation. Chemerinsky
(hornbook, p. 299) indicates there are two primary questions:
1. First, may Congress regulate private conduct under this authority or is it limited
to regulating only government action?
In the Civil Rights Cases (1883) p. 251, the Court decided that Congressional power
to regulate private behavior was limited. The Court invalidated these laws that
prohibited racial discrimination by private entities that were places of public
accommodation such as hotels, restaurants, and transportation. (Note: More than
80 years later, Congress used its commerce clause power to pass the Civil Rights
Act of 1964, which accomplished some of the same goals as the 1875 legislation.)
In the latter part of the 20th Century, the Court finally concluded that the 13th
Amendment grants Congress the authority to prohibit racial discrimination and to
eliminate the “badges and incidents” of slavery. The extent of this Congressional
authority is somewhat unclear.
However, Congress cannot use its 14th Amendment sec. 5 powers to regulate
private conduct.
o In U.S. v. Morrison (2000) p. 253, the Court struck down the civil damages
provision of the VAWA, which was directed toward individuals who had
committed criminal acts of gender-motivated violence.
MAJ: 14th amend does not reach private conduct, only reaches state
actions
civil remedies provision does not reach state actors or state conduct,
only individuals who have committed criminal acts
so a botched prosecution it sucks to be you, but this was not a state
actor
She was saying state action is implicated bc the state actor
dropped the ball
MAJ says that is not what Congress' powers are meant to do
under sec 5
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o
2. Second, what is the scope of Congress’ power? Can it use the power to interpret the
Constitution and even overrule Supreme Court decisions?
We are concerned here initially about Congress’ power under sec. 5 of the 14th
Amendment.
o The debate over the extent of this power involves issues such as the meaning
of the Constitutional text itself, the intent of the drafters, and basic policy
questions involving separation of powers, federalism, and individual rights.
There are two views of this power according to Chemerinsky: a broad view and a
narrow view. (p. 256)
a) Broad view of Congress’ power: Best represented by Brennan’s opinion
in Katzenbach v. Morgan & Morgan (1966) p. 256. Under this approach,
pursuant to its sec. 5 powers, Congress can interpret the Constitution
independently and can even overturn the Supreme Court. This power is,
however, limited to adopting measures to enforce the guarantees of the 14th
A., not to restrict or dilute those guarantees.
Argument: the drafters of the 14th A. intended Congress to have this
power given the specific language “to enforce” in sec. 5.
b) Narrow view of Congress’ power: In City of Boerne v. Flores (1997) p.
260, the Court determines that Congress overstepped its power under sec. 5
when it enacted RFRA. Congress responded to the Court’s “free exercise”
decision in the 1990 Smith case involving the ingestion of peyote during
religious rituals in violation of an Oregon criminal statute, a neutral law of
general applicability.
Argument: this view preserves the role of the Supreme Court to
interpret the Constitution (shades of Marbury)
o Note: RFRA is still applicable to the federal government
and is the basis of the lawsuit about the PPACA in the
Burwell v. Hobby Lobby Stores case based on religious
objections of the owners of a closely held corporation to
provide certain types of contraception coverage to their
employees.
More recently, the Court in a 5-4 decision also limited Congressional
authority under the 15th A.
o In Shelby County v. Holder (2013) p. 31 supp., the Court declared
that certain aspects of the Voting Rights Act of 1965 were
unconstitutional.
Sec. 2 of the Voting Rights Act prohibits states from having
election practices or systems that have a discriminatory
effect on minority voters.
Under sec. 5, jurisdictions (identified under sec. 4B of the
Act) with a history of race discrimination in voting were
required to get preclearance from the feds before changing
their election systems.
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o The Court invokes a fundamental principle of “equal sovereignty”
among the states in striking down sec. 4(B), although this term and this
notion of treating all states the same is never mentioned in the text of
the Constitution and there are countless examples of federal laws that
treat states differently (Ginsburg, dissenting)
o The majority and dissent in Shelby County disagree over basic issues:
a) how significant is the problem of race discrimination in voting
today;
b) how much of an intrusion is preclearance on the states (and how
much should that matter);
c) how much deference is due Congress when it legislates under
sec. 5 of the 14th A. and sec. 2 of the 15th A.
Congressional Power to Authorize Suits against State Governments
A. The 11th Amendment, as interpreted by the Supreme Court, bars suits by private citizens against
state governments. This is sometimes referred to as state sovereign immunity.
B. The 11TH A. and sovereignty immunity are important in defining the relationship between the
federal and state governments and important in determining the scope of constitutional protections
C. Due to its special mandate under sec. 5 of the 14th Amendment, Congress should be able to
override the Eleventh Amendment and authorize suits against state governments to enforce civil
rights. See, Fitzpatrick v. Bitzer, p. 269
1. In analyzing Congressional action, the Court must initially determine whether
Congress properly exercised its sec. 5 enforcement power by making the provisions of
particular pieces of federal legislation applicable to the states. Pennsylvania v. Union
Gas Co.(1989), p. 270 (case involved CERCLA and Super Fund legislation)
This is usually not an issue because Congress will expressly state that it is using
its power in this way
2. If so, then the Court will examine whether Congress can authorize the federal court suit
against the state government.
In Union Gas, the Brennan authored majority opinion concludes that Congress
has the power under the commerce clause to authorize state government liability
in federal court
o No consensus among members of the Court or scholars about whether
Congress can create such federal court Jx pursuant to any of its powers
apart from sec. 5.
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D. Beginning with Seminole Tribe v. Florida (1996) (the Indian gaming case) p. 270, the Court
strengthens the protection of the 11th Amendment and the concomitant state sovereign immunity
while restricting Congress’ power to authorize litigation against state governments, except when
acting under its sec. 5 powers.
1. In Seminole Tribe, Congress passed the applicable legislation (IGRA) pursuant to its
Indian Commerce Clause power
The majority overrules Union Gas and determines that Congress cannot
abrogate the 11th A. by circumventing the Constitution’s limitation on federal
Jx through legislation
o Stevens in dissent expresses his concern that individuals will be denied
a federal forum in a variety of cases, including civil rights cases
o Souter’s dissent expresses the position that the 11th A. was meant only
to remove diversity Jx involving States, not to limit federal Q (subject
matter) Jx where a State may be a party
E. Then the Court goes further and begins to limit Congress’ authority to act under sec. 5 to
authorize suits against States.
1. In Florida Prepaid (1999) p. 276 (involving the Patent Remedy Act), Kimel (2000) p.
280 (failure to protect rights of state government older workers under the ADEA) and
Garrett (2001) p. 284 (state workers with disabilities allege violation of the ADA), the
Court concluded that the laws in question were not valid exercises of Congress’ sec. 5
power and could not then be used to authorize suits against the states.
Rationale: It is the responsibility of the Court to determine the substance of
constitutional guarantees
2. Using Garrett an example: In Garrett, the Court concludes that the ADA can apply to
the States only to the extent that it is appropriate sec. 5 legislation
Legislation under sec. 5 that reaches beyond the scope of the guarantees under sec.
1 must exhibit “congruence and proportionality between the injury to be prevented
or remedied and the means adopted to that end.” (p. 285)
o Congruence: identification of a problem that is persistent and pervasive
Congress can exercise its sec. 5 authority only in response to state
transgressions and Congress has failed to establish a pattern of
irrational state discrimination against people with disabilities
The level of scrutiny to be applied
o Proportionality: an appropriate fit between the remedy for the problem and
the means adopted (the legislation)
Under the Supreme Court’s Equal Protection Clause jurisprudence,
discrimination against people with disabilities is subject to rational
basis scrutiny only, which means that the state’s interest must be
legitimate and the means chosen need be reasonably related to
achieve those ends
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It appears as though state conservation of financial resources
constitutes a legitimate state interest here
3. In three other cases, the Court upheld suits against state governments.
In Hibbs, (2003) p. 291 (male worker’s right to leave under the FMLA) and
Lane (2004) p. 303 (access to the courthouse by a defendant with a physical
disability), the Court concluded that Congress had greater authority to legislate
under sec. 5 in cases involving claims that would receive heightened scrutiny
under equal protection jurisprudence either based on the type of discrimination
such as race, ethnicity, gender, or “illegitimacy” OR because a fundamental
right such as access to the courts or voting was involved
o Hibbs was a case of gender discrimination
o Lane was decided on the basis of interference with a fundamental right
(not on the basis of the individual’s disability, which the Court had
addressed previously in Garrett)
In U.S. v. Georgia (2006) p. 303, the Court determined that a Title II ADA
lawsuit against the state by a prisoner who was paraplegic was not barred
by sovereign immunity because the claims were based on violations of the
prisoner’s constitutional rights under the 8th A.
o This view comports with the approach that Scalia urges the Court to
take: limiting Congress’ sec. 5 power ONLY to the regulation of
conduct that itself violates the 14th A.
3. The 11th A. speaks only of restrictions on the federal judicial power; however, the Court
held in Alden v. Maine (1999) p. 304, a case involving a suit by state probation officers for
overtime pay under the federal FLSA, that states cannot be sued in state court even on a
federal claim without their consent.
Kennedy, in his opinion for the Court, acknowledges that the Constitution
and its framers were silent about the ability to sue state governments in state
courts but that was unthinkable that states would have ratified the
Constitution had they thought it would subject them to suit without their
consent.
4. FMC v. South Carolina (2002) p. 315, the Court extends the principle of Alden to federal
administrative proceedings
Writing for the Court, Justice Thomas expressly says that state sovereign
immunity extends beyond the 11th Amendment.
Sovereign immunity includes immunity from federal administrative
adjudications initiated by private citizen complaints.
o Breyer in dissent questions this decision based on the text of the
Constitution, tradition, relevant purpose and, finally, its practical
consequences.
F. These 11th Amendment cases raise issues of federalism that the Court considered previously in
the area of the 10th Amendment.
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Critics and defenders of the Court’s current approach to limiting suits against
state governments typically invoke the Constitutional text and the drafters’ intent
to support their respective positions.
Critics emphasize that broad sovereign immunity undermines government
accountability
o recent decision are unwarranted judicial activism by conservatives in
striking down important federal laws based on principles found nowhere
in the Constitution
Defenders contend that state sovereign immunity for states is in keeping with
constitutional design and protects federalism principles.
o Perhaps even more important, there is a need to preserve the Supreme
Court’s role in determining the meaning of the Constitution
This debate is likely to continue on the Roberts’ Court:
Currently, Chief Justice Roberts and Justices Kennedy, Scalia,
Thomas, Alito favor limiting Congress’ ability to authorize suits
against states and local governments.
Justices Ginsburg, Breyer, Sotomayor and Kagan want to allow
suits against states under federal statutes.
V. Limits on State Regulatory and Taxing Power: Preemption
A. The federal government can act where there is constitutional authority. State governments,
under the police power, can act unless prohibited from doing so by the Constitution.
B. In some instances, there may be a conflict or a tension between state and federal action. Under
the Article VI supremacy clause, federal law trumps state law. This is referred to as the preemption
doctrine.
C. There is no clear cut formula to determine unequivocally whether a state or local law should be
invalidated on preemption grounds. Policy wise, this is an issue of the proper balance of authority
between the state and federal governments.
D. Preemption can be either express or implied.
1. Express preemption is found where there is explicit preemptive language.
Commonly used example is ERISA
2. Express preemption often requires the Court to determine the scope of the express
preemption provision.
The scope of express preemption may be unclear such as in the Lorillard case
(2001) p. 434, where the Court struck down a Massachusetts law regulating
cigarette advertising near schools, although Congress in 1969 federal law vested
the authority to regulate targeted cigarette advertising in the FTC.
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Inquiries: Congress may explicitly want some state laws to go away,
exactly which ones? Just state statutory law, or also state common law?
Just claims for monetary damages, or also claims for injunctive relief?
Just state civil law, or also state criminal law (or vice versa)? Just
contracts claims, but not torts claims (or vice versa)? See, Riegel v.
Medtronic (2008) and Chamber of Commerce v. Whiting (2011) pp. 440-
41.
3. Under implied preemption, there are two sub-types: conflicts preemption and field
preemption.
CONFLICTS PREEMPTION
o Impossibility conflicts preemption: If a federal and a state law are mutually
exclusive so that someone cannot comply with both laws, then state law will
be preempted. However, if the federal law merely sets a minimum, then a
stricter state law is not in conflict with the federal law. Florida Lime &
Avocado Growers (1963) p. 441.
o Conflict where state law impedes a federal objective: This is a two part
inquiry because a determination must be made first about the federal
objective before making a decision about impediments.
If the Court wants to avoid preemption, it can narrowly construe the
federal objective and interpret the state goal as different from or
consistent with the federal purpose.
If a court wants to find preemption, it can broadly view the federal
purpose and preempt a vast array of state laws. PG & E v. State
Energy Resources Conservation and Development Commission
(1983) p. 442
FIELD PREEMPTION
o Field preemption exists where there is a dominant federal interest OR where
regulation is so pervasive that it completely occupies the field. Ask:
a. Is this an area where the feds have traditionally played a unique role?
b. Has Congress evidenced its intent for federal law to be exclusive?
c. Would allowing state and local regulation risk interfering with
comprehensive federal regulation?
d. Is there an important state or local interest served by the law?
Look at the various provisions of S.B. 1070 concerning
undocumented immigrants in Arizona v. U.S. (2012) p.
447.
4. The state can defend its state law against a preemption challenge in a variety of ways:
the federal law is beyond the power of Congress;
the federal law does not expressly preempt state law;
the federal law expressly authorizes the states to continue to regulate in the area;
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the federal law does not impliedly preempt the state law because it is possible to
comply with both state and federal law at the same time;
the state law does not interfere with the achievement of the federal purpose; and
the federal law does not fully occupy the field the state is regulating.
5. The challenger can also make a variety of preemption arguments:
there is express preemption
but even if there isn't express preemption, there is conflict preemption because the
it is impossible to comply with both state law and federal law OR state law
undermines the accomplishment of the federal purpose
but even if there is no conflicts preemption, there is field preemption because the
federal government has fully occupied the field OR the federal interest is so great
THE DORMANT COMMERCE CLAUSE
A. The principle of the dormant commerce clause (sometimes called “the negative commerce
clause”) restricts the ability of state and local governments to regulate if there is an undue burden
on interstate commerce. (ISC)
1. If Congress has legislated, then look for possible preemption of local laws.
2. Where Congress has not yet acted, its commerce power remains “dormant.”
B. The concept of a dormant commerce clause (DCC) is somewhat controversial because there is
not a clear textual basis for it. Rather it is inferred from the Congress’ positive commerce clause
power.
C. There are three primary justifications for the DCC: historical, economic, and political, pp. 459-
460.
1. Historically, there is evidence that the framers (at least the Federalists) wanted to
displace state laws that interfered with ISC.
2. Economically, the greater good is generally served by striking down state and local laws
that burden ISC. Impediments harm the economy overall.
3. Politically, those outsiders should not be harmed by laws enacted in states where they
lack political representation.
D. Arguments against the DCC include: (p. 460)
1. The lack of textual basis in the Constitution to support the DCC.
2. The fact the Congress can exercise its positive commerce power at anytime
and in the absence thereof, state regulation should be permitted.
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3. An unelected federal judiciary should not determine the scope of the DCC.
E. Right or wrong, the DCC has been recognized for more than two centuries. Most of the action
at present involves the Court’s evaluation of the scope of the DCC.
F. Overview of the Modern Approach to the DCC
1. Earlier attempts to draw distinctions (based on state police power/federal commerce
power in Gibbons, p. 461, the local/national subject matter differences in Cooley, p. 463,
and a direct/indirect test) were rigid categorizations that tried to decide in what instances
state and local regulation was appropriate. These approaches were abandoned as
unworkable.
2. The Court gradually shifted to a balancing test to assess whether the benefits of a state
law outweigh the law’s burdens on ISC. The use of a balancing test gives the Court
tremendous discretion. Scalia would likely conclude that the Court’s power is magnified
because it is attempting to weigh and compare two completely different things.
In the Barnwell Bros. case (1938) p. 464, the Court upheld the State of South
Carolina’s restriction on the width and weight of trucks despite a rather serious
impact on ISC. The State’s interests were highway safety and preserving its roads.
A few years later, the Court struck down an Arizona regulation that limited train
lengths and was supposedly enacted for safety reasons. Southern Pacific (1945) p.
466.
There may not be a crystal clear principled distinction between these two cases.
They do demonstrate the importance of developing a factual record to support the
safety rationales put forward by the state. The Barnwell case pre-dated extensive
federal financing of the national highway system whereas train traffic had been
regulated more extensively at the federal level since the turn of the 19th Century.
3. Some current Justices such as Scalia and Thomas (previously, Rehnquist) question the
use of the balancing test. They would uphold any state legislation that is nondiscriminatory.
But see, Wynne v. Maryland (2015) supp. p. 86, where the Court determines
there is a DCC violation where Maryland’s state income taxation scheme
allows only a partial credit for income earned by residents outside the state,
which has previously been subject to taxation in the locale where it was
earned.
G. State laws can discriminate on their face and attempt to impose more significant burdens on
interests from outside the state, p. 469.
1. Laws that discriminate against out-of-staters are rarely upheld. There is a presumption
of unconstitutionality—an almost per se invalidation—when the state is discriminating.
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*The discriminatory legislation must survive the application of the more rigorous strict
scrutiny TEST: important government interest and least restrictive means.
2. These discriminatory laws may: 1) limit access to in-state resources; 2) limit access to
local markets by out-of-staters; or 3) require the use of local businesses.
3. Limited Access to Resources:
The State of N.J. passed legislation to restrict its limited landfill resources through
a ban on the importation of waste products from outside the state. Philadelphia v.
N.J. (1978) p. 469. This legislation was struck down due to its discriminatory
nature.
a) Rehnquist in dissent would have upheld the law because of the strong health
and safety interests of N.J.
b) Some might question whether N.J. had demonstrated that this outright
prohibition was the least restrictive means to address the problem since there
was nothing particularly “evil” about the garbage from outside the state.
Another example of a facially discriminatory law that was struck down resulted
from Oklahoma’s attempt to restrict the export of minnows outside the state.
Hughes (1979) p. 472. The Court rejected the state’s contention that it had a
compelling interest in conservation of this resource.
However, the Supreme Court upheld Maine’s prohibition on the importation of live
baitfish into the state in Maine v. Taylor (1986) p. 485. The state demonstrated that
there was a very real threat to the fragile marine ecosystem posed by parasitic
baitfish from other places. The state also showed that there was no less restrictive
option to sort the possibly infected fish apart from destruction of them. This is a
rare exception to the per se invalidity but indicates that the application of the strict
scrutiny test is not always fatal.
4. Limited Access to Markets:
In a consolidated case involving New York and Michigan, state-imposed
restrictions on wine shipments permitted in-state wineries to ship but prohibited
out-of-state wineries from doing so. The Court struck down the legislation as
discriminatory. The majority opinion suggested that these laws were the classic
type of protectionist legislation that violates the DCC.
5. Use of Local Businesses:
The Court has struck down local milk pasteurization laws in Dean Milk (1951) p.
484, and has invalidated local waste transfer station deposits in C & A Carbone
(1994) p. 479.
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Local regulations that treat out-of-staters in a disparate manner will be invalidated,
even though the regulation discriminates against some others from inside the state.
Dean Milk (1951) and Fort Gratiot Sanitary Landfill, Inc. (1992).
H. State laws may be facially neutral but have a purpose and/or effect of discriminating, which
triggers the application of the strict scrutiny test.
1. A discriminatory purpose will suffice but it is often difficult to prove
IT’S MUCH MORE COMMON TO ENCOUNTER A LAW THAT IS
DISCRIMINATORY IN ITS EFFECT.
2. The Court has concluded that proof of discriminatory effect against outsiders is sufficient
for a law to be regarded as discriminatory.
Examples of these types of laws are the North Carolina apple labeling law in Hunt
(1977) p. 474, and the waste transfer station requirements in Carbone (1994) p.
479.
2. Facially neutral laws enacted for a protectionist purpose are also found to be
discriminatory.
One example of a discriminatory law invalidated on this basis was a Massachusetts
pricing order that imposed a cost assessment on all fluid milk sold by dealers to
retailers and these fees were subsequently distributed to MA dairy farmers. West
Lynn Creamery (1994) p. 480.
An example of a law upheld against a challenge that there was a disparate impact
on outsiders was the Minnesota law that banned the use of plastic milk containers.
Clover Leaf Creamery (1981) p. 482. The state may actually have had mixed
motives for its regulation: protect the environment and promote the local paper
industry. Nevertheless, the Court determined there was not a discriminatory
purpose and concluded that the burden on ISC commerce was relatively minor
whereas the benefit to the state was high.
I. The analysis to be used if a law is nondiscriminatory (IS NEITHER facially discriminatory nor
is FACIALLY NEUTRAL and discriminates in its purpose and/or effect) is a “balancing test.”
1. The Court set forth the balancing test in Pike v. Bruce Church, Inc. (1970) p. 488: Where
a statute regulates even-handedly to effectuate a legitimate local public interest, and its
effects on interstate commerce are only incidental, it will be upheld unless the burden
imposed on such commerce is clearly excessive in relation to the putative local benefits.
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The Court views the “balancing test” as one of degree. Look at:
o High burden on ISC, Low state benefit/interest: INVALIDATED
o High burden on ISC, High state benefit/interest: PROB. INVALIDATED
o Low burden on ISC, High state benefit/interest: UPHELD
o Low burden on ISC, Low state benefit/interest: PROB. UPHELD ????
NOTE: Although the Pike test is associated with nondiscriminatory regulation that
has an impact on ISC, the activity in question in Pike—the specific packaging
requirements that the petitioner could not meet by using its out-of-state packing
plant – is similar to the aforementioned “use of local business” requirements that
the Court views as discriminatory rather than nondiscriminatory.
2. In Bibb, p. 490, the Court used a balancing test in this 1959 case involving an Illinois
requirement for contour mud flaps on trucks in contrast to the requirement of 45 other states
for straight mud flaps. The proponents of each type of mud flap alleged that their particular
design was safer. Given the fact that the evidence did not strongly support the safety
contentions put forth by Illinois and the fact that the state’s requirement imposed a heavy
burden on ISC, the Court invalidated the regulation.
3. Several years later, the Court in the Kassel case (1981) p. 492, reviewed an Iowa restriction
on truck lengths that would have effectively banned most so-called “doubles” or twin trucks
from the Iowa roadways. There was an exception in the law for Iowa border towns, which
could opt to adopt the truck length requirements of neighboring states. Both sides produced
evidence on safety, which demonstrated there was not a clear consensus that “doubles” were
unsafe. The Court used the “balancing test” and struck down the law as substantially
burdening ISC.
4. The Court has, however, consistently determined that state laws regulating out-of-state
conduct of business are unconstitutional, p. 495.
J. Exceptions to the Dormant Commerce Clause
1. Congressional Approval
State laws that burden ISC are permissible if those laws are approved by Congress.
One example is the regulation of the insurance industry that Congress has
authorized by statute to be controlled by the states, p. 497.
o Remember, Congress must have the power to regulate in the area.
2. The Market Participant Exception
If the state is acting not as a regulator but rather is a market participant, then the
usual DCC restrictions to state regulation do not apply.
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The Court crafted this exception initially in the Alexandria Scrap case in 1976, p.
499, where the state assumed responsibility for destroying inoperable vehicles.
The case that is usually cited for this principle is Reeves v. Stake (1980) p. 499,
where the Court upheld the right of South Dakota during periods of shortage to
restrict out-of-state sales of cement produced in a state-owned plant. This majority
opinion supports the exception and states that the distinction between “market
regulation” and “market participation” makes good sense. The dissenters
questioned whether the exception is constitutionally sound.
In White v. Massachusetts Council of Construction Employers, Inc. (1983) p. 501,
the Court determined that the city of Boston could set forth residency requirements
(here, at least 50% Bostonians) for the workers employed on city-funded projects.
In essence, the city was “the market” since it was expending its own funds.
(Contrast this approach with that of the Privileges and Immunities doctrine in the
next section.)
However, the following year, the Court in South Central Timber Development
(1984) p. 501, refused to sanction an Alaska law that restricted sales of state-owned
timber to those purchasers who agreed to partially process the timber in the state.
The Court viewed this post-sale activity as an impermissible attempt by the state to
control beyond its role as an initial participant.
THE PRIVILEGES AND IMMUNITIES CLAUSE
A. Article IV, sec. 2 provides that “the Citizens of each State shall be entitled to all Privileges and
Immunities of Citizens in the several States.”
1. History suggests that the purpose of the P & I clause was to eliminate discrimination
against out-of-staters where fundamental national interests were concerned.
2. The definition of “Citizens” does not include corporations (or non-citizens).
In McBurney v. Young (2015) supp. p. 81, the Supreme Court rejected a challenge
to a Virginia law that limited access to information under Virginia’s freedom of
information act to requests by Virginia citizens. In doing so, the Court focused on
the meaning of the Privileges and Immunities Clause of Article IV, Section 2.
B. The Court uses a three-part test to determine whether there is a violation of the P & I Clause
when there is discrimination against out-of-staters:
1. Is the activity in issue a “fundamental” one, that is, an activity that is sufficiently basic
to the livelihood of the Nation?
2. Is there a “substantial reason” for the difference in treatment?
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3. Does the discrimination bear a close or substantial relationship to the state’s objective,
taking into consideration least restrictive means?
C. The fundamental activities:
1. include the right to pursue one’s livelihood or “ply one’s trade.” Building Trades
Council v. Camden (1984) p. 509.
2. do not include recreational and leisure activities Baldwin v. Fish & Game Commission
of Montana (1978) p. 511.
D. “Substantial reason” for discrimination against out-of-staters does not include a
State’s desire to limit bar admissions to in-state residents because of their supposed greater
familiarity with local rules and procedures, their heightened commitment to behave ethically, and
their availability for court proceedings. New Hampshire v. Piper (1985) p. 513.
E. Note the differences between the DCC and P & I since there might be a basis to argue both
claims:
DCC permits exceptions but
DCC standard for discrimination arguably stricter than P & I