Constitutional law Outline 7 Sources- know all and have a separate and distinct case for each 1. Stare dec isis (basic) o Seminole Tribe of Florida v. Florida- o ct overruled Pennsylvania v. Union Gas Co. , 491 U. S.
1, 105 L. Ed. 2 d 1 (1989), wherein the Court found that the Interstate Commerce Clause, Art. I, SS 8, cl. 3, granted Congress the power to abrogate state sovereign immunity, stating that the power to regulate interstate commerce would be incomplete without the authority to render states liable in damages. o Generally, the principle of stare dec isis, and the interests that it serves, viz.
, the evenhanded, predictable, and consistent development of legal principles, reliance on judicial decisions, and the actual and perceived integrity of the judicial process, counsel strongly against reconsideration of precedent. o However, when governing decisions are unworkable or are badly reasoned, the Court has never felt constrained to follow precedent. 2. Text (supremacy clause, can’t deny habeus corpus, etc) – o Prinz case. Even where Congress has authority under Constitution to pass laws requiring or prohibiting certain acts, Necessary and Proper Clause does not grant Congress power directly to compel states to require or prohibit those acts.
o Residual state sovereignty is implicit in the Constitution’s conferral upon Congress of not all governmental powers, but only discrete, enumerated ones, o U. S. Const. art.
... the powers of congress are specifically listed-enumerated powers-but this section of the constitution also includes the “necessary and proper clause” This clause states that Congress ... may create any laws or policies it sees fit to apply the powers specifically spelled out ...
I, SS 8, (Congressional power including the commerce clause) which implication was rendered express by the U. S. Const. amend. X’s assertion that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
o The federal government may not compel the states to implement, by legislation or executive action, federal regulatory programs 3. Consequences into the future of a holding in ruling one way or another Woods v. Cloud W. Miller Co.
– gave authority to Congress to regulate rent under the war powers after the end of the war because the effects of the war effort extends beyond the mere formal declaration or proclamation ending the war. o A 1, S 8- Congress has the power to declare war, to maintain an army and navy. A 1, S 8, C 19 To make laws which shall be necessary and proper for carrying into execution the foregoing powers. o When war is officially terminated the war power does not necessarily end with the cessation of hostilities. The Act enables the management of the deficit in the housing caused by the mobilization of the war effort. Congress has the power to act to control the forces that a short supply of the needed article created.
o if the war power ended at the cessation of fighting, the N & P clause would be meaningless in the future. 4. Original intent of the framer so Nixon v. US- “Try” in the first sentence of the Act lacks sufficient precision to afford any judicially manageable standard of review of the Senate’s actions is fortified by the existence of the three very specific requirements that the constitution does impose on the Senate when trying impeachments: o members must be under oath o a two thirds vote is required to convict o the chief justice presides when the president is tried these limitations are very specific and suggests that the framers did not intend to impose additional limitations. o The framers recognized that most likely there would be two sets of proceeding for individuals who commit impeachment offenses: the impeachment trial and the criminal trial. Needed to insure independent judgment.
5. Structural arguments (look at all the institutions constitution creates, if it has all of these institutions it must mean that this is the interpretation) o Curtiss-Wright. Internal sovereignty is different from external sovereignty. o if it involves foreign affairs there is a govt of unlimited powers vs. domestic affairs and a gov’t of limited powers. o definition of sovereignty- “Because I said so.” o foreign affairs are different than internal.
... about 300 words. Under the United States Constitution, war powers are divided. Congress has the power to declare war, raise and support the armed forces, control ... the armed forces. In addition and as with all acts of the Congress, the President has the right to sign or veto ... challenged by a member of Congress as a violation of the War Powers Resolution in the D. C. Circuit case Campbell v. Clinton, ...
o Even if the power wasn’t there in the text, the power is still there. o Curtis Wright suggested that it is a government of UNLIMITED powers in the foreign realm. And that the text doesn’t matter, it’s irrelevant. 6. Looks to the practices of the other branches of government to help it understand what it mean so McCullough case- Marshall immediately mentions this being the 2 nd bank in the case, thus, he recognizes that other officials acted in a relevant context.
7. Logic (pure and simple) o Chad a case- legislative act, didn’t go to both houses, no bicameralism, hence it is unconstitutional. Provisions of the Federalist paper so 10 (definition of faction), o essentialness of controversy and conflict in a free society 51 (“if men were angels… It puts the law in context and suggests that the founders had a concrete / specific view of human nature), o 37 -Madison sets forth three reasons why there is always a need for lawyers, why interpretation is always necessary in dealing with the text, he said it’s because: o nature is very complicated, o and our mechanisms of perceiving reality are flawed, o and language of it’s very nature is limite do Marbury v. Madison Established the authority for the judiciary to review the constitutionality of executive and legislative acts even though the court is silent on this. o Supreme Court ruled against Marbury and held that it could not constitutionally hear the case as a matter of original jurisdiction.
The court held that although he Judiciary Act of 1789 authorized such jurisdiction, this provision of the statute was unconstitutional because Congress cannot allow original jurisdiction beyond the situations enumerated in the Constitution. o handout from earlier in the semester o reasons Marshall offered as to why judicial review is inherent in the constitutional system 1. oath of office What gives the power to the judiciary? o People created the constitution which gave them the power. o oath that binds, ” I swear or affirm… .” People can merely affirm. How is that allowed? o Wrote in the text (or affirm) to provide for non believers of religious past.
1. If no judicial court of authority, namely the United States Supreme Court, has stricken the 1973 War Powers Act and declared it null and void ... to ensure that the articles of the Constitution are faithfully executed, along with the power to appoint, remove and supervise all executive ...
o No religious test for public officials o 2. supremacy clause in the context that if it is the supreme law of the law they have to be able to say what it is and have last word Article VI- “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United states, shall be the supreme law of the land.” o 3. written constitution, founders wrote it down for a reason meant to be binding o If everyone takes the same oath, why do the justices have the final power in interpreting? Why do the legislative and executory branch have to follow what the judiciary says? o What does he say is the greatest contribution to political theory? Written constitution. o The written constitution in it of itself leads to the conclusion that judicial review is valid.
o Constitution imposes limits on government powers and that these limits are meaningless unless subject to judicial enforcement. (Federalist paper 78, “The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution was written.” o they wanted it to be a permanent, set, fixed standard that everyone would be bound to. o 4. intent of the framer so Fundamental reason supported by listed above, it’s the nature of the judicial function.
EX: If P says statute requires you to do x. if D says it’s against constitution. The court has to match statute up with constitution to see if they ” re consistent. The court MUST do that.
o meaning of the constitution ultimately is for the court (quote from Marshall).
“It is emphatically the province and duty of the judicial department to say what the law is.” Power of Congress over the lower federal courts and the power of congress over the jurisdiction of the Supreme Court- o cases and textural provisions to support this o coupled with the fact that Congress can’t enlarge the jurisdiction of the Supreme Court and what the text says about that. o Fundamental point that there doesn’t have to be any lower courts at all and that Congress is in control of their jurisdiction. o Congress’s control over supreme court begin with Ex Parte McCardle on pg 38 o Ex Parte Mccardle Mccardle was a newspaper editor who was arrested by federal officials for writing a series of newspaper articles that were highly critical of Reconstruction.
o filed a writ of habeas corpus contending that the Military Reconstruction Act was unconstitutional because it provided for military trials for civilians. o There was an 1867 act that allowed federal courts to hear habeas petitions for those held in federal custody o In 1868 congress adopted a rider to a tax bill that repealed the part of the 1867 statute that authorized Supreme Court appellate review of writs of habeas corpus. o Court held it did not have jurisdiction to hear McCardle’s constitutional claims in light of the recently adopted statute denying it authority to hear appeals under the 1867 Act that was the basis for jurisdiction in McCardle’s petition. o It could not decide McCardle’s case because of Congress’s authority to create exceptions and regulations to the Court’s appellate jurisdiction. o WE ONLY LOOK AT WORDS OF THE ACT.
... The Missouri State Constitution is going to be revised and portions of ... should be elected except for that of the Missouri Supreme Court. Because this is such a prestigious position to ... be at least 30 years of age. Appellate and Supreme Court judges are selected for 12-year terms. These ... branch is headed by the Supreme Court then the Court of Appeals. Next are the Circuit Courts with 45 circuits in ...
CAN’T LOOK AT LEGISLATIVE Motive Ct first looked at jurisdiction. o The appellate jurisdiction of the United States Supreme Court is not derived from acts of Congress. o It is, strictly speaking, conferred by the Constitution. o But it is conferred with such exceptions and under such regulations as Congress shall make.
o The court dismissed the case for want of jurisdiction, but stated that the whole appellate power of the court, in cases of habeas corpus, was not denied. o The later act (1868) did not except from that jurisdiction any cases but appeals from circuit courts under the earlier act (1867) – Rule was changed in the middle of the case Martin v. Hunter’s Lessee o There were two conflicting claims to certain land within the state of Va. Martin claimed title to the land based on inheritance from Lord Fairfax, a British citizen who owned the property. o US and England had entered into two treaties protection the rights of British citizens to own land in the USo However, Hunter claimed that Va had taken the land before the treaties came into effect and, hence, Martin did not have a valid claim to the land. o Va COA ruled in favor of Hunter and in essence in favor of the state’s authority to have taken and disposed of the land.
o The United States Supreme Court issued a writ of error and reversed the Virginia decision. They held that the federal treaty was controlling and that it established Fairfax’s ownership and thus the validity of the inheritance pursuant to his will. o Va COA then said that US Supreme Ct had no authority to review state Court decision. o Supreme Court reviewed again and articulated the court’s authority (justice Story) to review state court decisions.
... by each court. Federal courts, including the Supreme Court, generally overhear cases that affect federal constituents while local or state courts address more specialized cases. “Although the state and federal judicial systems ... consider in comparing federal and state courts is the judge selection process. According to Article II, Section 2 of the Constitution, the president of ...
Reasoning: o Story said that Constitution creates a Supreme Court and gives Congress discretion whether to create lower federal courts. But if Congress chose not to establish such tribunals, ten the SC would be powerless to hear any cases, except for the few fitting within its original jurisdiction, unless it could review state court rulings. o it’s essential to uniformity in the interpretation of federal law. o Although he assumed that the state courts are competent, the Constitution is based on a recognition that “state attachments, state prejudices, state jealousies, and state interests might sometimes obstruct, or control, or be supposed to obstruct or control, the regular administration of justice.” o very nature of the Constitution, the contemporaneous understanding of it, and many years of experience all established the SC’s to review state court decisions.
o Cohens v. Virginia – o two brothers were convicted in Va state court for selling District of Columbia lottery tickets in violation of Va state law. o D sought review by the US SC because they claimed that the Constitution prevented them from being prosecuted for selling tax authorized by Congress. o Va said SC had no jurisdiction to review state court decisions and in particular review was not allowed in criminal cases and in cases where the gov’t was a party.
o Justice Marshall held that SC could review state court decisions. o emphasized that state courts often could not be trusted to adequately protect federal rights because “in many States the judges are dependent for office and for salary on the will of the legislature.” o Criminal defendants could seek Supreme Court review when they claimed that their conviction violated the Constitution. o power that supreme court has the power of judicial review over the supreme courts of the states. States do not have the last word regarding the constitution. o Michigan v. Long pg 51- o adequate and independent state ground concept.
... first time the Court stated, 'punishment of death does not invariably violate the Constitution.' Tinker vs. Des Moines Case: Several students and ... and juries in the decision to issue the death sentence. The Court did, however, state that the mandatory use of ... to prevent disturbances without punishing this flag desecration. Constitutional issue it relates to: Freedom of Expression Decision: Johnson's ...
o State has to make clear what their decision is based on… o If state decision rests on state law (and it’s adequate and independent) then the federal court has no jurisdiction. o ct conclusion is driven by the text of the constitution Notes from Class Police officers found marijuana in the passenger compartment and trunk of the vehicle respondent was driving. o The officers searched respondent’s vehicle because they had reason to believe that the vehicle contained weapons potentially dangerous to the officers. (Terry rule) o At issue was whether a protective search for weapons could extend to an area beyond the person in the absence of probable cause to arrest. o Barry County Circuit Court denied Long’s motion to suppress the marijuana taken from both the interior of the car and it’s trunk He was convicted of possession.
o Michigan Supreme Ct reversed stating that the sole justification of the search, protection of the police officers and others nearby, cannot justify the search in this case. Marijuana was product of illegal search and was suppressed. o Long argues that the Supreme court is without jurisdiction because the decision rests on an adequate and independent state ground. o SC holds that there is no adequate and independent state grounds because Long did not prove it. Had no clear statement illustrating this, thus it is within the SC’s jurisdiction. o If there is an adequate and independent state ground for the decision, the supreme court has NO AUTHORITY to review the lower court’s opinion even if the loser is raising basic constitutional questions.
o Supreme Ct says, If we don’t see a statement on the face of the state court’s opinion, we ” re going to assume there is no adequate and independent state jurisdiction. o Show that it was adequate and sufficient to support the state court’s opinion. (Despite what they said, they HAVE to look at state law. ) o It also has to be independent. State law ground will not be considered constitutionally independent, unless the state court says that it is really and truly independent.
o Michigan constitution gives more rights in this situation than the Constitution. o If sent back they would say that we didn’t use the Terry decision, we used the Michigan Constitution. o AND states can give more rights under the state constitutions than required to give under the Federal Constitution. State Constitutions can create rights. o If state constitution gives less rights, then they ” re wrong. If they give more rights, they ” ll be okay in the eyes of the Supreme Court.
o The State Supreme Court says, This case doesn’t necessitate looking at a federal statute or federal constitution. They ” re relying on state Constitution. o Advisory opinion notion- can’t do. Never had constitutional authority to issue advisory opinions.
o Said Supreme Court would be doing this if they talked about what Terry meant. o State Supreme Court would say thanks, but we don’t care. o Court admitted to taking an inconsistent (ad how) approach to determining the outcome in these types of cases (state cases with federal issues).
Recognize that it is not an appropriate way of dealing with these cases.
o ad how decision making is unsatisfactory because it goes against consistency, certainty, and other High Constitutional Values. o What’s wrong with the Supreme Court deciding state law. o acknowledge a weakness, limitation on their knowledge, unfamiliarity. o Adopts the notion that whoever makes the thing should decide it. o Problem with vacation or continuance o delays or decreases the efficiency in judicial administration places burden on state courts to demonstrate the presence or absence of our jurisdiction o What’s wrong with dismissal o there is an important need for uniformity in federal law, and that this need goes unsatisfied when we fail to review an opinion that rests primarily upon federal grounds and where the independence of an alleged state ground is not apparent from the four corners of the opinion. o What is your responsibility as a practitioner? o Lawyers must: o have plain statement assuring adequate o As an attorney you have to make sure that the state court judge has this statement in his ruling.
o Pg 53- What’s the basis for the adequate and independent state rule. o respect for independence of state court so desire to avoid advisory opinions. o Abstention doctrine- we have jurisdiction, but we won’t for a variety of different reasons. o If someone violates your constitutional rights, you have a federal cause of action. o There is a statute that gives the federal district court to hear those types of cases.
Justifiability- Chapter 3 o power under case and controversy language from Article 3 o Need a case and explanation for each thing 1. Standing injury- o Injury- Injury in fact (economic or otherwise) – Sierra Club Case (pg 71).
No standing because you didn’t allege that you looked at the map, etc. it was a generalized complaint. It doesn ” to Sierra Club v.
Morton- Sought to prevent the construction of a ski resort in Mineral King Valley in California. The issue was whether he P was adversely affected or aggrieved so as to be entitled to seek judicial review under the Admin procedures Act of the interior dept decision. o Sierra Club, an org dedicated to protecting the environment, asserted a special interest in the conservation and the sound maintenance of the national park. o Supreme Court found this insufficient for standing because there was no allegation that any of the Sierra Club’s members ever had used the Mineral King Valley.
o Ct said Remediability- the court has to be persuaded that if they issue a decree in your favor, your injury has to go away… o – Simon v. Eastern Kentucky Welfare Rights. (Pg 71) – P challenged an IRS revision of a revenue ruling limiting te amount of free medical care that hospitals receiving tax exempt status were required to provide.
Only emergency indigents were required to be treated. o P were individuals who claimed that they were denied needed medical care, and hence, injured. o ct denied standing to plaintiffs who were clearly injured becase the Court concluded that the Plaintiffs failed to meet the requirements for causation and redress ability. It was speculative whether the new revenue ruling was the cause of the denial of medical service. o causation- Scrap case- chain of causation o Causation- there has to be a causative link between the government action and the injury “however attenuated…
.” o United States v. Scrap case. (pg 71) – environmental group had standing to challenge a railroad rate struck of the Interstate CC claimed to discourage the shipment and use of recycled materials and promote the use of raw materials. o P alleged that its members were caused to pay more for finished products, etc. o All were alleged to be caused by the rate structure ct concluded that standing was neither confined to those who suffer economic harm nor denied to many people who suffer the same injury, otherwise govt activities couldn’t be questioned. o third party standing-o pg 73- Craig v.
Boren-bar owner to raise rights of under 21 year old males. Distinguishes between men and women as to the availability of real beer beer case with age discrepancies o bartender is raising the rights of men to have access to beer on the same age basis as women. o raises two issues: o his own as a bartender o 3 rd party standing issue. Doesn’t affect him, affects them.
o why doesn’t he have standing on his own as a bartender? They don’t have any rights. If he would have raised his rights, he would have lost on the merits. o two constitutional amendments dealing with booze. o she has “concrete adverseness.” o she is obliged either to heed the statutory discrimination, thereby incurring a direct economic injury through the constriction of her buyers’ market or to disobey the statutory command and suffer sanctions and perhaps loss of license. o In class- This matter fits in the framework, if were too rigid about this it will never be litigated and it’s a reality.
o concrete adverseness/ concrete adversarial ness o injury in facto personal stake in the outcome o individualized injury o avoid repetition (get factors from Shara) o pg 75- taxpayer standing- if everybody is affected equally, then nobody has standing. Not a justiciable issue. o One exception is religion context. (Double nexus test) o analyzing questions for exam. Use cases! ! ! o start with tex to four issues: o standing, ripeness, moot ness, political question concrete adverseness, o use language from ripeness and moot ness cases. o 2.
Ripeness no rule as such, case has to have gotten to the point where there is a concreteness to it. o You ” re here too soon. It’s a timing question. o If it is necessary to decide a constitutional issue in order to determine the legal consequences of that conduct, no issues of ripeness or concreteness arise. o suits for injunctions and declaratory judgments, however, present different problems.
o Characteristically, they relate to the future. o take the form, suspiciously like that of an advisory opinion. o United Public Workers v. Mitchell, – issue was the ripen es of a challenge to the constitutionality of the Hatch Act which prevented federal employees from takin g any active part in political management or campaigns. o P sought a declaratory judgment that the law violated their first amendment rights and provided detailed affidavits on the activities they sought to engage in. o ct found that a hypothetical threat was not enough, they couldn’t issue advisory opinions upon broad claims, can’t speculate as to the types of political activities they Ps seek to engage in.
o Adler v. Board of Ed- court found ripe a challenge to a state law designed to eliminate subversive persons from the public school system. o Cts choice to decide the case apparently reflected on a conclusion that there was a substantial hardship to denying review in that teachers had to either refrain from joining these organizations or risk loss of their jobs. o Poe v. Ullman- married women for whom pregnancy was medically unadvisable nd their doctors filed a lawsuit challenging a CT law preventing the distribution or use of contraceptives. o ct deemed case non justiciable because there had been only one prosecution under the law in more than 8 years.
Contraceptives are commonly and notoriously sold in drug stores. o the fact that CT has not chosen to press the of this statute deprives these controversies of the immediacy which is an indispensable condition of constitutional adjudication. (subsequently held unconstitutional after he state prosecuted a planned parenthood clinic) o Younger v. Harris- suit brought in federal district court to enjoin district attorney from prosecuting plaintiffs under the Ca Criminal Syndicalism Act. 3 did not have a live controversy because they do not claim that they have ever been threatened with prosecution, that prosecution is likely, or even that a prosecution is remotely possibly. o only people being prosecuted under the challenge have standing.
o lobby to change law, can’t go for court ruling. o 3. Mootnesso too late, it’s already happened ex: guy already graduated from law school case. About not issue advisory opinions.
o It’s over and done and there is nothing left to deal with. o Exception- However if the court sees that it’s capable of repetition and is avoided by the bad guys (yet evading review), they ” ll sometimes take the case. Look at abortion and law school admittance. o The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated. o DeFun is v.
Odegaard- case described above Moot ness is an aspect of justifiability that we can raise any time even if the parties don’t. o have to have jurisdiction from the date the suit was filed until the end. o cases like this and abortion would be moot because the process is shorter and there would be no justifiability anymore. How do they get around this? o Capable of Repetition Yet Evading Review (in class) o an exception to the requirement that there be a live controversy at the time of decision exists for those controversies “capable of repetition yet evading review”o Simplest exception are those where the litigated issue will always be mooted by the passage of time in litigation, and the plaintiff will be subject to the challenged action in the future. o More complex are the cases where the plaintiff will not face the litigated issue in the future, but others similarly situated will. o Roe v.
Wade- inability to obtain a legal abortion in the state. o Dunn v. Blum stein- voting statute that required you live in the state for a year and the county for three months prior to election. o both cases were class actions.
Where litigation is not capable of repetition as to the named plaintiff, later cases have combined concerns about whether the plaintiff’s claim is “capable of repetition yet evading review.” o 4. Political question outgrowth of the statement in Marbury v. Madison. Certain things that are not subject to judicial review if there is a clear cut commitment of the subject matter to another branch and no clear judicial standing can be shown, then its not for the courts to decide. o Baker v. Carr- (P’s claimed they were denied equal protection of the laws by virtue of debasement of their voted according to a TN statute that apportioned the members of the Gen Assembly among the state’s 95 counties) (1) case discussed the “political question doctrine” and notions of justifiability.
(2) case introduced the following factors as involving a political question: (1) textually demonstrable constitutional commitment of the issue to another political dept; (2) lack of judicially discoverable and manageable standards in resolving it; (3) the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; (4) impossibility of a court’s undertaking independent resolution without expressing lack of respect due to other branches of govt; or (5) unusual need for unquestioning adherence to a political decision already made; or (6) potentiality of embarrassment from multifarious pronouncements by various depth on one question. (3) Court held that none of the aforementioned factors were present thus the allegations of a denial of equal protections presented a justiciable o Powell v. McCormack- H of R refused to seat Powell even though he had been elected by his constituents. o H of R subcommittee found that Powell deceived Congress by presenting false travel vouchers for reimbursements and had made illegal payment to his wife with government funds. o Powell argued that the refusal to seat him was unconstitutional because he was properly elected and met all of the requirements stated in the Constitution for service as a representative. o Supreme court held that the suit was not moot because his claim for back pay for the time in which he was not seated remained a live controversy.
o Nixon v. US (dealt with Nixon impeachment conviction based on making false statements before a Grand Jury; Nixon refused to resign and continued to collect his judicial salary while in prison; Nixon argues that Senate Rule XI violated the constitutional grant of authority to the senate to “try” all impeachments because it prohibits the whole Senate from taking part in the evidentiary hearings) o here the court examine Art I Sec 3, Cl 6 to determine scope of authority given to Senate upon the Constitution. o Court holds that common sense of the word “sole” in the clause indicates tart the Senate ALONE shall have authority to determine the possibility of judicial review in the context of impeachment powers. Political question- can’t hear if: o If I’m reading the text, if there is a texturally demonstrable commitment giving over to one of the other branches of government. And / oro we don’t see any standings that fit in our understanding of what we do historically. No justiciable issue Summary of the Political Doctrine In determining whether the question falls within the political question category, the two considerations are: o 1.
The appropriateness under our system of government attributing finality to the action of the political department so 2. The lack of satisfactory criteria for a judicial determinatio no Prominent on the surface of any case held to involve a political question is found: o a textually demonstrable constitutional commitment of the issue to a coordinate political department; o or a lack of judicially and manageable standards for resolving ito the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion o the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government an unusual need for unquestioning adherence to a political decision already made or the potentiality of embarrassment from multifarious pronouncements by departments on one question. o FOR TESTo ALWAYS START WITH THE TEXTo start with government of limited powers. o move to case or controversy.
(Concrete adverseness, etc) (moot ness, etc) o government or limited power so also use Marbury v. Madison- certain types of questions we don’t deal with. o WE DON’T DO THAT TYPE OF WORK AT ALL! ! ! o for standing- you ” re not the right person. For moot ness- you came too late. For ripeness- you came too early.
o Airport handout- allows for justifiability and separation of powers (reference to the agency and how it was put together) o How to approach the constitution in the first place, what’s its basic nature. o How many provisions of the text of the constitution address slavery? o they never use the word “slaves” in tex to Art I Sec 9- o Art I Sec 2- 3/5 Compromise- o Fugitive Slave Provision- duty on part of gov’t to return slave to slavery if they fled. Have to return fugitive slaves back to their owners. o Art I Sec 2 and 9- Taxes on slaves. o Art I Sec 8- call up militia- purpose was for slave revolt so Article 5 says Article I Sec 9 is not amendable for twenty years.
o Art I Sec 9- no tax on exportation. o McCulloch v. Maryland on 135 o all textural. o general issues in each paragraph o How Does Marshall define “necessary”? o Convenient Memorize this phrase: o Let the end be legitimate (preamble), let it be within the scope of the constitution (government of limited / enumerated powers), and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and the spirit of the constitution. o Answer to the question: Does government have the authority to do this? o reference to ends is a reference to the preamble o reference to the specific limitations is a reference to Con Law 2 primarily.
o Case is not out of date! ! ! o Commerce Clauseo USE handout (both from Kendall and from ME) – must go through all of the steps in the process! ! ! o reference to all of the leading cases you are responsible for and the 10 th Amendmento only thing that is vague is 1 (c) – categorical approach. Thomas would say it’s not substantial effects test but rather the categorical. Ex: mining, retail / wholesale was out of commerce, therefore, they could not regulate it. o Need to know all on part 1 on the handout. Recognize that Rehnquist reaffirmed New Deal cases and say their good law. However, they narrow their meaning.
o He takes each of them and diminishes them to their facts and makes them inapplicable to these particular facts. o If all of the activity takes place in one place can Congress regulate it under the commerce clause? o YES if it has a substantial affect on commerce, it doesn’t matter if it all takes place in one state. o Garrett case and Federal Medical Leave act case in supplement (read them) o illustrates that the court’s understanding keeps moving too. o DO NOT USE INTER OR INTRA. IF YOU USE THEM, acknowledge that Kendall does not like them and at least put them in quotation marks. You can say that the courts used those words.
o 10 TH AMENDMENT as a limit of Congressional Authority 1. Suppose a federal government statute of general applicability enacted pursuant to the commerce clause is ALSO applied to the States? Use National League of Cities and Garcia a. National League of Cities- federal statute (minimum wage required for certain state employees); looked at the 10 th Amendment, textural reminder that states are to be preserved as fully functioning gov’t units, thus national gov’t doesn’t have authority to push around the states insofar that it impairs the state inherently governmental functions. o b. Garcia v. San Antonio M TAo there is no such thing as “inherently governmental functions”; states do have a function and it should be kept alive, but he protections they get are from the electoral process reversed National League of Cities nothing in statute was violative of any constitutional provision.
o if the federal statute (ex: minimum wage statute- hereby must pay x amount) if it’s of general applicability including the states, they ” re not treated any differently. Right answer is the 10 th Amendment and the Garcia case. o If the statute regulates everybody (public and private together/ states are just another entity) Garcia is law. o Statute that covers private and public IBM and Illinois.
Use Garcia case. o You can regulate without problem. o Garcia treats the states like the private people that it deals with. Must treat them the same.
o Rule in Garcia, there is no rule. The only protections the states have is through the political electoral process. o if congress passes a statute under the commerce clause and it would be valid under IBM, than it would be valid to the states as well. Can apply same law to the state.
o Virtually saying don’t come into my building. There is no remedy here. o (look at Gibbons v. Oden, Cooley, New Deal, Morrison, etc.
define three things “commerce”regulate” and “among several states.” o 2. Suppose a federal government statute under the commerce clause that ONLY applies to the States? Use NY v. US, Printz, Reno v. Conde no a. New York v.
USo if they treat the state’s separately, then the correct line of cases is New York and other cases. Commandeering concept. o only affects Illinois (or another state) use New York v. United States.
o You can’t coerce. Feds cannot coerce the states directly if the only people they are regulating are the states. o Test is, Congress cannot directly coerce the states if they ” re the only ones being regulated. o they can regulate them and effect their behavior by presenting options. o at least one of the options has to be non coercive, they have to be constitutional as well. o middle of 238, our job is to have the last word on the meaning of the constitution and to make sure self interest doesn’t lead to the other two branches selling out the system.
o 237, part 4 B, you can’t consent to unconstitutional grant of authority. You can’t waive it or be estopped from utilizing it. o b. Printz case- (challenge to Brady Act which required sate and local enforcement officers to conduct background checks on prospective handgun purchasers) o Which is the fact situation like? o It’s like NY v.
United States. Regulating the states. o why did they take the case anyway. What did it add? o Scalia on 244, acknowledges tart historically state judges have always been commandeered.
(Testa case on 237).
State courts can be commandeered and has been that way. o seldom commandeered the rest of the branches and it says that it can’t be done. Cannot commandeer the executive or legislative branches of state government. o pg 245 he uses the phrase dual sovereignty. Tons of textual provisions that deal with that.
o Sate sovereignty is implicit in the Constitution’s conferral upon Congress of NOT ALL gov’t powers, but only those enumerated in Article I, Sec 8, which implication was rendered by the 10 th Amendment. o Justice Scalia is using rhetoric to move the court back to the state right’s view. Trying to go back to the 10 th amendment. o dual sovereignty is to introduce a mental picture that you wouldn’t draw from other sources. Draws the picture from the losers in Garcia.
That’s their vision. o on 247, Justice Thomas, said no one has had it right since 1930. Right answer is 1870-1930. o Justice Stevens, says that nothing in the Constitution states that local officer can ignore a command in a statute pursuant to an express delegation of power enumerated in Art I (commerce: gun control) o c. Reno v. Conde n- Supreme Court rejected a 10 th Amendment challenge and upheld the federal law.
o Case involved a challenge to the Driver’s Protection Act, a federal law that prohibited states from disclosing personal information gained by dm vs. o COA held statute as unconstitutional because it said it commandeered the states to not disclose the information. o Supreme Court unanimously reversed. o Rehnquist explained that it was a prohibition of conduct and not a affirmative mandate as in New York and Prinz. o Law was constitutional as an exercise of Congress’s commerce clause power because the Congress that many states sell this personal information to individuals and businesses and generate significant revenue for the states.
o law was not limited to state goats, also applied to private companies that possess this in foo 11 TH AMENDMENT o sovereign immunity o Section 3 on handout o a private person cannot enforce the federal statute against a state as a state. o Can’t sue in the state court or the federal court. o Sovereign immunity protects the state from such a claim. o some states have waived sovereign immunity o 3 (c) – 14 th Amendment enhances the power of the federal government and federal government can override sovereign immunity in certain instances.
(Went over this last week) o o 1. Enforcement of a valid federal statute against a state in federal court by a private person. o Use Han v. Louisiana, Pennsylvania v.
Union Gas, Seminole Tribe a. Han v. Louisiana- (federal q was presented in a suit by a La resident against La; the issue was whether La had unconstitutionally impaired the obligation of contracts by refusing to pay interest owed on bonds it had issued. ) o Although the 11 th Amendment terminology only prohibits suits against a state by citizens of other states and foreign countries, the Supreme Court, held that it would be anomalous to allow states to be sued by their own citizens. o can sue if state consent so b.
Pennsylvania v. Union Gas (this was overruled by Seminole Tribe) o court held that Congress may authorize suits against states so long as the law does so expressly in its text. o ct held that Act authorized suits and that Congress, when legislating pursuant to the commerce clause, had the authority to create such state gov’t liability. o only four justices (Rehnquist, O’Connor, Scalia, and Kennedy) took the position that he 11 th Amendment reflects a “broad constitutional principle of sovereign immunity” that protects states from virtually all suits in federal court. o c. Seminole Tribe (overruled Pennsylvania v.
Union gas case) o Indian tribes sued in federal court for the meaning of the federal Gaming Regulatory Acto The Act required states to negotiate with Indian Tribes to form compacts to allow gambling on Native American land. Act specifically authorized suits against states in federal court as an enforcement mechanism. o Supreme Court held the Act unconstitutional and said that Congress may authorize only when action pursuant to Section 5 of the 14 th Amendment and not pursuant to any other federal powers, such as the Indian commerce Clause. o Does the federal court have a right to hear a case against state and the governor to enforce this federal right? o NO, unless the state consented. o Does the case add anything? o yes, the federal government claims that it has power to abrogate state sovereign immunity under the commerce clause. o Can Congress under the commerce clause, abrogate sovereign immunity? o Congress can do anything they want under the commerce clause as long as it’s within the power of the commerce clause.
o uses two cases, Patrick v. Bitter (14 th Amendment, we ” ll come back to it. Will be on EXAM) o other case is Pennsylvania v. Union Gas- they overrule it.
o how do they reason that the national gov’t has no authority under the commerce clause to abrogate sovereign immunity, but it does under the 14 th Amendment. o Holding is that you can’t do it (abrogate sovereign immunity) under the 11 th Amendment and the 14 th Amendment you can. o as a matter of historical chronologically, under commerce clause you ” re stuck to sovereign immunity as a limit of their power Union Gas is bad law. o 14 th Amendment came after… o rationale is sovereign immunity is an integral part of the original understanding of the constitution, therefore, the right was to interpret Article I (Commerce Clause) is to realize that they ” re limited by state sovereignty. o 14 th Amendment, sec 5, o has to be some way to enforce federal law among the states: o ex parte Young, suit against a state official.
o the majority view it as a narrow exception, if not a fiction. Don’t hold it in high regard. However, the dissent holds it in high regard. Has to be some way to enforce. o What’s the difference between Ex Parte Young and this Case? o remedial scheme was proposed by Congress, when that happens, the judiciary will not supplement that scheme with one created by them. o Kendall wouldn’t exactly read that way- Dissent and Kendall says, The norm should be they always have Ex Parte Young and this is a supplement.
o narrows Ex Parte Young and seems to say that Congress can give you any remedy they want even if it’s a sliver of a thing and get away with Ex Parte Young. o HOLDING in this Case: o Statute is constitutional, but the court has no jurisdiction to enforce it at the behest of a private person. o remedy available: lawsuit of the US government against the state or the governor. o states only have sovereign immunity against private lawsuits. o In a sense, we have a void of enforceability of certain rights. o if the state doesn’t consent, the claims can’t be heard in the state court either.
o 2. Enforcement in State court by a private person (Use Alden, Nevada v. Hall) o a. Alden v.
Maine (court held that state governments cannot be sued in state court without their consent) o probation officers in Maine sued claiming that they were owed overtime pay under the federal Fair Labor Standards Acto Initially filed in federal court, but was dismissed based on the 11 th Amendment. Then sued in maine state court. o Supreme Court ruled that the state had immunity and could not be sued in state court, even on a FEDERAL claim without its consent o Kennedy acknowledged tart constitution and its framers were silent about the ability to sue state governments in state courts. However, it was unthinkable that the states would have ratified the constitution had they thought it made them subject to suit without their consent. o b. Nevada v.
Hall- look up 440 us 4103. Exceptions to 1 and 2 a. Consent- must be explicit b. Waiver- use College Savings Bank College Savings Bank- (court ruled that there is no constructive waiver of the 11 th Amendment) o Bank was a co that devised a system for students to use to save money for their college education. o FL Prepaid copied this system and College Savings sued for patent infringement and for deceptive business practices in violation of the Lanham Act. o ct dealt with the deceptive practices and rejected the that the sate had waived it’s sovereign immunity by engaging in impermissible conduct.
c. 14 th Amendment, Section 5 o Fitzpatrick v. Blitzer- (involved a suit brought directly against a state government pursuant to Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination. o Congress applied Title VII to the states purus ant to its powers under Section 5 of the 14 th Amendment. o ct reasoned tart the 14 th Amendment specifically was intended to limit state sovereignty, and therefore congressional legislation under the 14 th Amendment can authorize suits directly against the states in federal court. o City of Boerne v.
Flores- (ct sharply limited the scope of Congress’s power under Sec 5 of the 14 th Amendment) o Congress declared that the Religious Freedom Restoration Act unconstitutional as exceeding the scope of Congress’s power under Section 5, Amendment 14. o ct ruled that pursuant to Section 5, Congress only may provide remedies for rights recognized by the courts and that Congress may not create new rights to expand the scope of rights. o Any law must be narrowly tailored to solving constitutional violations; it must be “proportionate” and “congruent’s” to preventing and remedying constitutional violations. o Florida Pre-Paid- (ct held that a federal law authorizing suits against states for patent infringement exceeded the scope of Congress’s Section 5 authority. o law was not “proportionate” or “congruent” because of the absence of proof of a pattern of such violations by state governments. o Kiel v.
Fla. Bd of Regents- (state could not be sued for violating the Age Discrimination in Employment Act) o the law prohibits much more than the Constitution, since age discrimination receives only rational basis review, and that the legislative record did not a pattern of unconstitutional age discrimination by state governments. o US v. Morrison- (congress may not regulate private conduct under its section 5 powers) o involved a constitutional challenge to the civil damages provision of the VAM A which authorized victims of gender based violence to sue under federal law.
o US government intervened to defend the law, and it and the plaintiff argued that the civil damages provision was constitutional as an exercise of both Congress’s commerce clause power and its authority under Sec 5 of the 14 th Amendmento under both. o exceeded commerce power because Congress cannot regulate noneconomic activity based on a cumulative impact on interstate commerce. o not constitutional under Sec 5, Am 14 because Congress may regulate only state and local governments, not private conduct. o Rehnquist relied on it’s terms that it only prohibits state actions. o University of Alabama v. Garrett- (court held that state cannot be sued for violating Title 1 of the Americans with Disabilities Act, which prohibits discrimination based on disability and requires that employers make reasonable accommodations for disabilities) o ct found that the law prohibits much that would not violate the Constitution, because disability di scrim also only receives rational basis review under equal protection.
o legislative record did not sufficiently unconstitutional discrimination by state goats against the disabled in employment to make the law “proportionate” and “congruent” to the problem. o How Does the System Ensure State Compliance with Federal Standards if Suits by Private Persons Against the State are not Allowed (or limited)? o ways to get around limitations on the federal power not on the test, for future reference 1. Good faith of States 2. Spending power 3. Suits by National gov’t itself 4.
Suits by other states 5. Suits against local government 6. Suit against state official Rules Citizen can’t sue a state in federal court on federal issue. o If a citizen sues a state official, can sue if you are asking for injunctive relief. o Can’t sue state official, if you are seeking monetary relief. o If the injunction is monetary in nature (asking to provide adequate facilities in the future) can still sue in federal court.
Costs a ton of money and comes out of your pocket. Huge state interest. o really about retrospective relief (unconstitutional) and prospective relief (constitutional).
Under Edelman v. Jordan on pg 255.
o What about when a citizen sues a state official for violating state law? THIS is what Penn hurst is about… o Young and Edelman disappear here. o federal court can not hear any claims whether damages or injunction. o can sue in state court on a state issue. a. Ex Parte Young (Minnesota adopted a law limiting railroad rates) o railroads thought regulations were unconstitutional and sought to enjoin their enforcement.
o 11 th Amendment does not preclude suits against state officers for injunctive relief, even when the remedy will enjoin the implementation of an official state policy. o 11 th does not bar suits against state officers to enjoin violations of the federal law. o In Ex Parte Young- court said that the sovereign immunity that would otherwise be there if they were acting pursuant to the state’s rules, would be gone if they were NOT acting pursuant to their employment. o Majority has a very negative attitude to this, but it is central to applying to the bad guys of the state. o Young doctrine has been accepted as necessary to permit the federal courts to vindicate federal rights.
b. Edelman v. Jordan- (seminal case in distinguishing retroactive from prospective relief) o P sued Edelman, the Illinois commissioner of the Dept of Public Welfare, objecting to the state’s failure to comply with federal standards for processing welfare applications. o p sought injunctive relief for the future and injunction requiring the state to give back payments of all the funds that were improperly withheld.
o Ct held that the 11 th Amendment does not bar the order compelling state compliance in the future. Ct said that Ex Parte Young establishes that federal courts may give injunctive relief against state officers, even when compliance will cost the state money. o ct, however, held that 11 th bars the previously owed sums because the money obviously would be paid from the state treasury and not from the officer’s own pocket. 11 th prohibits all awards of retroactive damages to be paid from state treasury.
o The Young and Edelman doctrines are inapplicable in a suit against state officials on the basis of state law 7. Supreme Court review of highest court of a state a. Martin v. Hunter’s Lessee- see above 8. Quit am suits a. Vermont Agency of Natural Resources v.
U. S. ex rel Stevens- (look up) o Taxing and Spending Powerso South Dakota v. Dole- four factor test, not in case book.
Used to decide whether federal spending power is constitutional. (Federal law sought to create a 21 year old drinking age by withholding a portion of federal highway funds from any state govt that failed to impose such a drinking age. ) o 1. spending has to be for general welfare o 2. conditions have to be clear and unambiguous o 3. conditions have to relate to the expenditure (ex: highway and teenage drinking) o 4.
can’t be any compulsion (bribery is allowed, not compulsion) o Complicated and standard example is Social Security example simple example is the drinking age to be changed from 18 to 21. o Under Morrison, there is no power under the commerce clause (it’s local, police power, etc) o held there was no power because of the two amendments to the constitution giving states separate and distinct power. o For exam, ALWAYS START WITH TEXT. o Start with, “Congress has the power to lay taxes… impose taxes for the general welfare.” o These are separate, distinct powers. o It’s not a correct interpretation to say because they are not covered under the commerce clause that you can’t do it under taxing power.
o ct says taxing power is about raising revenue, it’s not about regulation, prohibition. o if the ct sees the tax as a penalty, they ” re going to find it as unconstitutional o if they see it as revenue raising, even if it has some regulatory intent, it’s constitutional. o if you see enough revenue, it’s constitutional. o cases distinguish against revenue raising and penal. Every revenue generator regulates, it matters how much. o under the spending power, o right answer is the Madisonian view.
Many courts say that now. What is the scope (“to provide for the general welfare”) o Congress was limited to taxing and spending to carry out the other powers specifically granted in Article I of the Constitution. o amounted to no more than a reference to the other powers enumerated in the subsequent clauses fo the same section; that, as the US is a of limited and enumerated powers, the grant of power to tax and spend for the general national welfare m sut be confined to the enumerated legislative fields committed to the Congress.” o what criteria the court uses based on reading butler etc. there is four of them. Look on page 195 o 1.
Unconstitutional abuse of the power to tax o 2. Are powers Expressly granted, or reasonably to be implied from such to government 3. Voluntary 4. Does it effectuate an end which is not legitimate not within the scope of the Constitution? o Taxing power o question of multi state corporate business practices. o Derive revenue from a few different states.
If each of those state’s have a revenue tax, what percentage can they tax? o There are formula, guidelines that direct how income is allocated so that the phenomenon of excessive taxes (over 100%) can’t happen. o similarly, this arises internationally. o Uniformity provision o exemption for certain Alaska oil. All oil pays 2% tax except x oil from Alaska. Constitution says that they all have to pay same amount. o Ct says if gov’t has rational justification for lack of uniformity, it’s okay.
o War and Treaty Powerso pg 200- 14 provisions that address the war making powers. Must be able to list four or five of them. o Curtiss Wright case- o embargo about battle between bolivia and columbia. o Foreign is different than domestic.
o states have no place at all. o Sovereignty is without limits externally. o Text is irrelevant. o what’s foreign affairs there is a govt of unlimited powers.
o Professor says he thinks this is an example of a structural argument case. o definition of sovereignty- “Because I said so.” o POINT ONE: foreign affairs are different than internal. o POINT TWO: TEST Q. External sovereignty. Text is not needed. This is second example.
o 1 st one was justice marshall and McCullough v. Maryland. Even if the power wasn’t there in the text, the power is still there. o Curtis Wright suggested that it is a government of UNLIMITED powers in the foreign realm. And that the text doesn’t matter, it’s irrelevant. o POINT THREE: o Woods case on 201.
o Korean war is on. Steel industry is at an impasse. The workers go out on strike. Truman issues an executive order (a proper form) in essence taking over the steel industry and directing the workers to go back to work making things (guns and tanks) so that the US can fight war in Korea.
o does congress have the power to do that? o if sovereignty means “protect your war” according to Curtis the government would have authority to do this. Text doesn’t matter. Power is there. o what’s the power of the national government under commerce? It’s plenary. Unless there’s an explicit textural provision, they can do it. o power to do it is probably independent of the text (Curtis Wright) o test is impact of the war and would suggest that Curtiss Wright is a correct statement of things When war is officially terminated the war power does not necessarily end with the cessation of hostilities.
The Act enables the management of the deficit in the housing caused by the mobilization of the war effort. Congress has the power to act to control the forces that a short supply of the needed article created. Otherwise the N & P clause would be meaningless. o the issue here is WHERE is the line? o Treaties how they get ratified. o what if congress passes a law that is inconsistent with the treaty? Is that allowed? o yes, whatever is most recent is the law of the land.
o a treaty can be amended, super ceded, etc by a subsequent federal law. o Treaties need approval by only the 2/3 of the SENATE. Don’t need the HOUSE. o why is this? o federalism is the main case here. o treaties became the agreement between the president of the nation and the senator of the states.
o idea is that this was part of a decision of the states. (Senators were agents of the states) o Senators are no longer agents of the states (they are directly elected) but at the time, they were. o Treaty v. Federal law- Which one prevails? o the last in time is the law. o statute says do “x” and subsequent treaty says don’t’ do “x.” The treaty is the law.
o run the House and Senate back into the equation. Can pass a law to end the provision of treaty that is in question. o Missouri v. Holland- (US and Great Britain entered into a treaty to protect migratory birds) o congress was found not to be able to do this endangered species thing. o Couldn’t do it under CC and couldn’t do it under taxing and spending.
o They then did it under the treaty power with Canada. o Found they could do it because treaty power is broader than taxing and spending and commerce clause. o Justice Holmes rejected any 10 th Am. Limit on th treaty power. Article II expressly authorizes treaties and that Article 6 make treaties the supreme law of the land. o treaty power is broader than the authority Congress possess to enact statutes.
(Act of Congress are only supreme law of land when they are made in pursuance to the Constitution, while treaties are declared to be so when made under the authority of the US. Cases on 207 to 208 US v. Belmont o upheld the Litvinov Agreement, which the US recognized the Soviet Union in exchange for the Soviet Union assigning to the US its interests in a Russian Insurance company in NY. o Court upheld the agreement and explained tart because it was not a treaty, Senate approval was not required. o It was an executive agreement and prevails over state law and policy. o in all cases of international compacts and agreements…
complete power over international affairs is in the national government and is not and cannot be subject to any curtailment or interference on the part of the several states. US v. Pinko Douglas- treaty is a “law of the land” under the supremacy clause of Article 6. Such international compacts and agreements as the Litinov Assignment have similar dignity. Reid v. Cover to agreement has to be within restraints of Constitution If it’s out of bounds, it’s invalid.
o under the treaty it says that she gets a trial under the military tribunal, against Article III and the fifth amendment guaranteeing indictment and trial by jury. o she argues that she won’t get due process ct says despite the flavor of the earlier case, the constitution that deals with individual rights, trumps the treaty. o you can’t bargain away through a treaty people’s bill or rights rights. FOR EXAM, o If asked a question regarding the fact that a treaty does away with your fundamental rights, you would have to walk through the text, missouri v. holland and several cases on 207 to 208 o Treaty powers are separate distinct powers. o They involve foreign affairs and their power is more broad.
o Thought is, you can’t do it under taxing, commerce, spending. o See if you can get it under treaty powers because it’s more broad. You have to be creative o DORMANT COMMERCE CLAUSEo 1. How to spot the issue: o Would be a DCC issue if: o The state or local government is regulating commerce AND o the federal government silent. o 2. Notion of state police power- o Ex: make new drug a crime.
o Seems to be inherently a police power thing. o Normally wouldn’t be a commerce clause thing. o However, if the drug was a main stream type of thing, then there would be a commerce clause issue. o 3. Whether what state is doing is discriminatory or non discriminatory. o If discriminatory, Presumptively unconstitutional unless there is a legitimate state or governmental interest AND no reasonably available / non discriminatory alternative.
o Non discriminatory, presumptively constitutional unless burdens outweigh benefits of state. o 4. other category: Market participant. A state may favor its own citizens in dealing with government owned business and in receiving benefits from government programs. o if the state is literally a participant in the market, such as with a state owned business, and not a regulator, the dormant commerce clause does not apply. o however, even if the laws are permissible under the DCC they may not be under other constitutional provisions such as the p and I claque or equal protection.
o Write this: Justice Thomas and Scalia say that it doesn’t make any sense unless the state statutes are discriminatory because SC has no way of balancing benefits against burdens of the state. Who is the SC to say to evaluate the worth to the state. o Reasons for Dormant Commerce Clause- handout o 1. Why free trade common market makes sense.
Sound, economic makes good sense. o 2. Political point. Taxation without representation is tyranny. – there’s no consent. No representation which is absolutely required.
Normal value of consent and representation. o 3. National solidarity- unifies us and forms a nation. Theory is, if I have to do business with you and there is choices, I’m going to be nicer. Customer is always right theory. If there is a free market it unifies us.
If Texas can hold back it’s cows / oil , you don’t have a country. o What are constitutional o 1. We began with quarantines are okay (diseased cows).
Can keep out of state. o 2. Subsidies- assume they ” re constitutional.
(Not tax credits but direct transfer of money) o 3. User fees- they are constitutional o We are dealing with things that are not directly of that nature. o Test from Complete Auto Case: State tax does not violate the CC if”o 1. It is applied to an activity with a substantial nexus to the taxing state (need more support needed than judicial jurisdiction).
More than for personal jurisdiction. o 2.
It does not Discriminate against out of states (interstate commerce- geography) o 3. It is fairly apportioned so as to tax only the activities connected to the taxing state (intuitive) o 4. It is fairly related to services provided by the state (Kendall doesn’t like this one) o HOW TO ANSWER THE TEST QUESTIONS IN THIS Area HYPO: o Out of state tuition fees- we know that it’s constitutional. You can distinguish between in state and out of state students with charges.
o don’t look at subsidies o distinguish between taxes and subsidies o court seems to see taxes as fundamentally different than a set aside money for expenditures. o start w / text : export / import clause. Commerce clause (they don’t tell us anything) o start with gibbons v. ogden and regulate, commerce, among the several states.
o issue identification o it’s a dormant commerce clause (don’t need supremacy, etc) You can jump right into the Cooley case, etc. o 1 st question is: is the state enact men.