FIIREEEE ConstitutionalLawOutline
FIIREEEE ConstitutionalLawOutline
Introduction:
Limits on Congress:
o Can’t pass laws for the “general welfare”
o Acts must fall within one of the enumerated powers given to C in the
Const’n (States have reserved/residual powers everything not given to
the Federal Gov’t)
Enumerated Powers:
• Article I: Section 8
o Tax
o Spend (for the general welfare)
o Regulate interstate commerce (among the states, foreign
nations, Indian tribes)
o Immigration
o Bankruptcy
o Coin money
o Postal service
o Declare war
o Raise and maintain armies/navies etc.
o Acquire property for public use upon just compensation
o Create federal courts below the S.Ct.
o Necessary and Proper Clause
o Police power allows the states to adopt any law not prohibited by the
Const’n there is no national police power
o For a federal statute to be constitutional, must show
(1) It is a direct exercise of one of the enumerated powers, OR
(2) It is a valid exercise of one of the enumerated powers + the
N&P clause
Supremacy Clause:
If Federal and State law conflict Federal law wins
If a State law interferes with the achievement of a Federal objective, it is
invalid
Even if a state law does not conflict with federally regulated conduct or
objectives, if it appears that Congress intended to “occupy” the entire
field, any state or local regulation is precluded.
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
Necessary and Proper Clause:
Must be used with another Constitutional provision – not a power in and
of itself
Expands federal power
“Useful or convenient” means not necessarily “necessary and proper”
2 types of inquiry under the N&P Clause
(i) Means/Ends: Does the regulation actually promote an enumerated
power/end? I.e. is the regulation actually a means to an appropriate
end?
(ii) Ends: Is the enumerated power really being used as a pretext by
Congress to do things not entrusted to them under the
Constitution? (Marshall’s “pretext” reservation)
Composition of US S.Ct.:
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States’ rights: Thomas, Scalia, Alito, Roberts & Kennedy
National rights: Stevens, Souter, Ginsberg & Breyer
iii) Shreveport Rate (1914): Congress can regulate IntrastateC as long as it has a
SUBSTANTIAL ECONOMIC EFFECT on InterstateC
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
v) Champion v. Ames (1903): Lottery case; Congress has the power to
PROHIBIT INTERSTATE MOVEMENT under the Commerce Clause; Court
focused on MOVEMENT of the lottery tickets as Commerce, not on the
means/ends relationship???.
(1) There is an obvious moral END in this case looks like a pretext. But,
Court says that the statute is still valid. Not analyzing the means/ends
relationship; just saying that the MEANS are within the Commerce Power.
Hipolite Egg Co. v. U.S. (1911): Statute prohibited the shipment of
eggs in InterstateC; end looked like health and safety, which is not one
of Congress’ enumerated powers; BUT, the statute was held to be
valid anyway b/c Congress has the power under the Commerce Clause
to PROHIBIT INTERSTATE MOVEMENT
Since the Commerce Power is one of Congress’ enumerated
powers, any abuse of it is not to be checked by the court, it’s to be
checked by the political process
Hoke v. U.S.: (Mann Act – 1913) – prohibited transfer of women in
InterstateC for immoral purposes – “Congress has power over
transportation among the several states and as an incident to it can
adopt means not only necessary but convenient to its exercise; and the
mans may have the quality of police regulation.”
Congress made violation of the statute a crime; means we typically
see are regulating a local activity, here we have criminal sanctions
as a means of regulating InterstateC.
vi) Hammer v. Dagenhart: statute prohibiting the transfer of items made by child
labor was held invalid
(1) Why was this statute held invalid when other acts prohibiting the transfer
of goods in InterstateC were held to be invalid? Our previous cases said
that the power to regulate included the power to prohibit and the check
would have to be political and not judicial…
(a) In other cases where Congress was allowed by the Court to prohibit
interstate movement, its ulterior purpose was protecting the public
(Hipolite Egg) or suppressing the lottery, but here it’s trying to get its
hands on MANUFACTURING as a sphere it can regulate.
(i) Use of interstate transport was necessary to accomplish the
deleterious results in the other cases… the only way to regulate the
activity was to prohibit the interstate transport.
1. In this case, a firm could just change its intrastate practices.
Congress is only regulating a local activity insofar as that firm
wants access to the interstate market – it’s not really regulating
a whole local activity. This still sounds like the dissent – but
basically saying that the power to regulate is not the power to
prohibit – but this is dead law anyway, so don’t worry too
much about it.
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
2. DISSENT: (becomes law after Darby): The statute only
regulates manufacture IF the manufacturer wants access to the
interstate market Sees no interference here. The power to
regulate includes the power to prohibit, and it’s ok if there are
indirect consequences for the state’s police power.
a. The state doesn’t have to change its policy – can allow kids
of any state to work. The firm will just have to change its
policy if it wants access to the interstate market.
vii) Railroad Retirement Board v. Alton Railroad Co.: Statute said all RR in IC
must have a retirement/pension plan for their employees Invalidated.
(1) Court analyzes the means/ends relationship, and ultimately substitutes its
understanding of the means for Congress’.
(a) Note: Marshall said that inquiring into the degree of necessity of the
means would be to tread on Congress’ ground
(b) Rejected the argument that a pension plan would make RR workers
more efficient and that would help InterstateC said a pension plan
was only INDIRECTLY related to Interstate Commerce.
(i) The source of the INDIRECT/DIRECT dichotomy that the Court
uses here is Knight.
(2) There is also an “ends” analysis here: Justice Roberts thought that the end
was really social welfare, and that the commerce power was being used as
a pretext.
viii) Schecter Poultry Corp. v. US: Statute set minimum price/wage – chickens
were moved in InterstateC, but from then on the stream was entirely
IntrastateC, since D’s only transaction was IntrastateC, (outside of the stream
of commerce, see above) the statute was held to be invalid.
(1) Congress relied on two primary Commerce Clause rationales:
(a) Stream of Commerce (see above)
(b) Affecting-Commerce
(i) Main inquiry: Can Congress control wages as a means of executing
an InterstateC Clause end?
1. Congress’ end: Raise prices (this is Depression era legislation)
a. Court’s response: D’s actions only INDIRECTLY affected
commerce
i. Again, the source of the INDIRECT/DIRECT
dichotomy that the Court uses here is Knight.
ii. Again, the court is substituting its judgment about what
is an appropriate (or “direct-enough”) means to an end
iii. Court says here that “extraordinary conditions do not
create or enlarge Constitutional power”… here, the
Depression. Modern Day: the War on Terror. Need to
ask yourself if this is really true.
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
i) For 59 years, (until Lopez in 1995), the Court held nothing to be exceed
Congress’ scope of power under the Commerce Clause. During this time,
there was complete deference to Congress’ determination about the
appropriate bounds of the Commerce Power. Belief that checks were
exclusively political and not judicial.
(1) NLRB v. Jones and Laughlin Steel Corp.
(2) United States v. Darby
(3) Wickard v. Filburn
(4) Judicial Deference Toward Exercise of the Commerce Power
(5) United States v. Sullivan
(6) United States v. Five Gambling Devices
(7) Heart of Atlanta Motel v. US
(8) Katzenbach v. McClung (Ollie’s BBQ):
(9) Maryland v. Wirtz:
(10) Perez v. United States
(11) United States v. Lopez:
(12) United States v. Bass:
(13) United States v. Scarborough:
(14) Hodel v. VA:
c) New Limits on the Commerce Power since 1995 (Court becoming more
conservative)
i) US v. Lopez (1995):
ii) US v. Morrison (2000):
iii) Eldred v. Ashcroft:
iv) Raich Case: (2005)
1) Direct/Indirect Analysis:
a) A direct exercise of the commerce power to regulate interstate commerce itself
(i.e. trade, traffic, etc.)
i) Congress involves more states than just one! The most ordinary power of the
commerce power is the regulation of interstate movement, trade or
traffic.
(1) Not many cases in this area because no one disputes this power.
b) CASES
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i) Gibbons v. Ogden (1824): National Statute is a Valid Exercise of the
Commerce Power
NY had given Ogden a monopoly to ferry b/w NY and NJ; Feds gave K to
Gibbons
Exploring limits of the commerce clause
Marshall: “Commerce” = commercial intercourse (includes traffic)
Two reservations of power for Congress can regulate intrastate
commerce if:
Intrastate commerce affects other states, or
If it is necessary to interfere to execute some of the general matters
of the Federal Government
“Power to regulate is complete in itself, may be exercised to the
utmost extent, and acknowledges no limitations other than those in the
Constitution.” Includes the power to prohibit InterstateC
Limits on the commerce clause come from the political process, NOT
the Court
BUT, the Court will inquire whether the means used by Congress
are appropriate (“plainly adapted, appropriate, really calculated to
achieve some end for InterstateC”)
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PRACTICALLY, the local activity (lower rates for transport
within TX than b/w TX and LA) will encourage IntrastateC and
discourage InterstateC shipments
This is how Congress can regulate local activity (as a means of
executing its InterstateC policy)
This case is at odds w/ Knight gives Congress broad power to select its
means
Act: set price for intra/interstate sales of coal real end were the labor
provisions
Majority said the employer/employee relationship is purely local; no such
thing as a federal police power Every act must be justified by one of the
enumerated powers + N&P Clause (the power of the federal government
does not inherently extend to matters affecting the nation as a whole w/
which the states severally cannot adequately deal)
Congress may not (apart from those powers delegated by the Const’n)
enact laws to promote the general welfare.
Production is for the state; Schechter said distribution was for the state
(see below); do the Feds only get to regulate transport?
v) Stream of Commerce: (activity is within the direct exercise of the CC b/c the local
activity can’t be distinguished from IC – this theory is set aside in Jones v. Laughlin, basically
just merged w/ Congress’ ability to regulate local activities that effect InterstateC)
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
Congress relied on the affecting commerce (direct vs. indirect) AND
stream of commerce rationale
SOC:
“violation of the code provision for any transaction IN InterstateC”
(=SOC)
Congress says the SOC doesn’t end until the final consumer (seems
too long)
Court – rejects the SOC argument; says InterstateC ends when the
chickens get to the slaughterhouse
Court does NOT give an explanation of why SOC doesn’t go all
the way to the consumer
The statute is invalid b/c the relationship is too attenuated (too
“indirect”?) (recall: house that jack built)
Note: Schecter’s activities were purely within NY
“Affecting Commerce”: No direct effect on InterstateC by the regulation
of wages (i.e. the local activity did not have a direct effect on IC)
vii) NLRB v. Jones and Laughlin (1937): National Statute Valid Under
Affecting Commerce Rationale, but NOT SOC
Fed’s SOC argument: D’s ships, trains, factories are all 1 big flow of
commerce
Ct. says that SOC is just a metaphor of the power of the Government to
protect InterstateC from obstructions (i.e. Congress can regulate the local
activity b/c it AFFECTS InterstateC)
The approach here is different f/ Carter Coal, b/c it’s more like Shreveport
Rate (looking at the practical effect of the LA on InterstateC, not at
categories)
Test: Court is looking for a close and substantial relationship b/w the local
activity and its effect on IC (Congress can regulate only local activities
that are deemed to burden or obstruct InterstateC), in the 1980’s Rehnquist
goes back to this language, but we see this test in very few cases that
follow)
Congress here can require an employer to allow its employee’s to form a
union b/c:
If workers strike, there could be a significant effect on InterstateC
Local activity regulated: employer/employee relationship
N&P clause allows Congress to regulate this relationship as a
means to regulating InterstateC
SOC dies until Reno v. Condon, where we get a “strange reference to
it”
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
i) E.g. Prohibiting interstate movement of lottery tickets (done to prevent the
spread of immoral gambling – regulating morals and not commerce!);
prohibiting interstate movement of women for immoral purposes
ii) Questions of morality arise here
iii) Questions of which ends are appropriate arise here – seems like morality ends
are ok, but when Congress tries to usurp an area that’s traditionally for the
state to regulate (manufacture), Court will invalidate the statute for having an
improper end
b) General notes:
i) 3 differences b/w this tool and the Affecting Commerce tool:
(1) Moral goal
(2) Technique is different: at the state line, Congress prevents movement
from 1 state to another state
(3) This is a direct use of an enumerated power NOT in conjunction with
the Necessary and Proper Clause
ii) A state will always want to examine the federal government’s “ends” here
(1) States’ argument: McCulloch “Pretext” Argument
(2) Federal government’s argument: political restraints of federalism will
control
iii) This tool ONLY regulates InterstateC (can’t do ANYTHING within
IntrastateC)
iv) National Police Power issue: Instead of regulating intrastate local activities
directly, Congress began prohibiting interstate transport of certain items or
persons. This technique was used not only to regulating economically, but
also for the “police power” or “moral” regulation.
c) CASES
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
Act prohibited the shipment of impure foods (Pure Food and Drug Act of
1906)
Looks like the goal is to protect consumers; but Congress doesn’t have
an enumerated power to do this
Majority: movement of eggs (like lottery tickets) = InterstateC; Congress
has the power to regulate (including to prohibit)
The limits on the use of the CC are political; the Ct should not inquire
into Congress’ real motives
Ends: prohibit shipment of bad eggs
Means: seizure and destruct of bad eggs (destroying the eggs upon
arrival eliminates the interstate market for bad eggs, but doesn’t
interfere w/ intrastate market)
NOTE: Congress COULD prohibit production of the eggs as a means to
keeping the eggs from being shipped in InterstateC (this would be an
example of bootstrapping, infra)
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
Abandons SOC and direct/indirect tests; destroys the categories of
manufacturing/commerce net effect is a serious expansion of federal
power
Fair Labor Standards Act: (1) no interstate shipping from companies that
don’t follow the federal wage requirements (prohibition) (2) all companies
must follow the federal wage requirement (rule for employers)
Valid even though it places regulations on manufacturing and labor
(Overrules Hammer v. Dagenhart)
Part One: (the prohibition)
Manufacturing and production are not “commerce,” but shipping is
and Congress ha the power to regulate and prohibit that appears that
Congress can use its power to prohibit under any pretext – the power is
complete (PLENARY) in all respects, so long as it doesn’t infringe
upon some other constitutional provision (i.e. couldn’t prohibit
shipment of NRA materials b/c would violate the first amendment)
Part Two: (the rule for employers)
Upheld by both the Affecting Commerce and Bootstrap Rationales
(see below)
3) Bootstrap Rationale:
a) Congress’ goal here is to prohibit interstate movement BY regulating some local
activity, not because that activity has an effect on IC, but because regulating the
local activity makes effective the prohibition of interstate movement.
i) E.g. Hipolite Egg (1911): Congress can regulate LA as a means of carrying
out a prohibition (could prohibit the manufacture of bad eggs)
(1) Congress may arbitrarily exclude from Commerce among the states
any article, commodity, or thing NO MATTER WHAT THE
MOTIVE
(2) SUPER bootstrap here because the statute prohibits the making/selling
(actual activity) to prevent it from going into interstate commerce
(rather than regulating the already made thing.)
(a) Never officially adopted by the court.
b) CASES:
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
Broader and requires less rationale than the affecting commerce
rationale
Majority: while manufacturing is not of itself InterstateC, the
shipment of manufactured goods IS commerce and the prohibition
of such shipment by Congress is within the CC (so, can regulate
the local activity (production of bad eggs) as a means of
effectuating the prohibition on shipment)
ii) US v. Sullivan (1948): National Statute is VALID (very broad reach of the
CC)
Act: (1) no mislabeled drugs can be shipped in InterstateC (2) cannot
mislabel the drugs AFTER they have been shipped in InterstateC
Once a good has moved in InterstateC it is subject to Federal Regulation
Pretext?: Protecting Customers
Court: refuses to end the “stream” at the first in-state customer – extends it
to the end consumer
Hipolite Egg is not on point all bad eggs were banned there; here,
only mislabeled drugs
How does labeling after interstate shipment affect the InterestateC
prohibition?
It doesn’t keep mislabeled drugs out of InterstateC
But, if the druggist turns around and sells the mislabeled drugs in
InterstateC then it does affect InterstateC
OR, end consumer may take the wrong amount of drugs due to the
mislabeling and either increase or decrease the flow of goods in
InterstateC
May also say that if a consumer finds properly labeled drugs intrastate,
then it increases his confidence that the drugs were properly labeled at
the end of the InterstateC chain (druggist) and before InterstateC began
– could affect whether people will buy the drugs
Note – the drugs are usually not labeled as local or from another
state would be difficult for the government to prove that a
particular drug affected InterstateC, so we allow Congress to
sweep broadly and regulate all drugs (see Perez)
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
D
Statute shouldn’t reach transactions of gambling machines unless they
are somehow related to InterstateC
If the Court construes the statute to reach purely intrastate
transactions with no connection to InterstateC, there is a
constitutional problem (scope of CC would be too broad – would
allow national regulation of a purely local activity)
a) Under the Commerce Clause, Congress can regulate some local activity in order
to promote interstate commerce, because that activity “affects” interstate
commerce.
i) Can regulate any activity that either in itself or in combination with other
activities has a substantial economic effect upon InterstateC or effect on
movement in InterstateC
ii) Depends heavily on N&P clause
iii) Idea is that Congress has the power to regulate a local activity that has an
effect on interstate commerce as a means to an end
iv) Questions to ask:
(1) Is there a close and substantial relationship between the local activity
and interstate commerce?
(2) Is there an aggregate burden: i.e. many small effects amount to a
substantial effect
(3) Class of activities: entire class is regulated even though some
individual actors don’t affect IC
(a) Note: it’s too hard to prove which individual actors don’t affect IC
(4) The Court will generally give deference to Congress’ determination
that there is an effect on IC (this is particularly true in Civil Rights
cases)
b) CASES:
ii) Schecter Poultry (1935): National Statute is VALID (no longer good law --
overruled in Jones and Laughlin)
Note: see also direct/indirect analysis, supra
Act set min. wage/price for live poultry in NY
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
How does the local activity affect InterstateC?
If we allow collecting bargaining and make employers pay higher
wages (the means); this will drive up the price of chicken (end)
Regulating wages higher cost for the employer higher price
for the consumer AND employees have more money spend
more money
No collective bargaining leads to strikes, and strikes reduce
InterstateC
Majority: Invalid b/c this is a house that Jack built argument (i.e. it’s too
attenuated)
Just b/c there is a need (here, were in Depression), doesn’t mean that
it’s within Congress’s power to remedy it
No direct effect on InterstateC f/ the regulation of wages
iv) NLRB v. Jones and Laughlin (1937): National Statute is VALID – close
and intimate relationship to InterstateC (act was VALID under affecting
commerce rationale, but not SOC – see above)
Court is concerned with the “practical effect” on InterstateC (CC + N&P)
Test: looking for a close and substantial relationship b/w the local activity
regulated and InterstateC; abandons the direct/indirect test (see above)
Court: SOC is just a metaphor for the power of Congress to protect
InterstateC f/ obstructions
Allow unionization (means) to end strikes and stop disruption of
InterstateC (ends)
Overrules Schecter and Carter Coal In place of the bright-line tests
that the Court had sought to apply in Knight, Schecter and Carter Coal,
the Court suggests here that it will proceed on a case by case basis to
determine whether the activity Congress was regulating had a close and
substantial relationship to InterstateC
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
Abandons SOC and direct/indirect tests; destroys the categories of
manufacturing vs. commerce net effect is a serious expansion of federal
power
Fair Labor Standards Act – (1) no Interstate shipping from companies that
don’t follow federal wage requirements (prohibition) (2) all companies
must follow federal wage requirements (rule for employers)
Second provision upheld under the BOOTSTRAP (see above) and
AFFECTING COMMERCE rationales
If wages of intrastate companies are cheaper, people will always
buy from them and other states will have to push wages lower to
compete
Harms InterstateC:
Makes InterstateC an instrument for the spread of
substandard labor conditions
Causes a dislocation of InterstateC through the unfair
destruction of businesses adhering to higher labor
standards
Looks like a pretext to protect workers
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
(3) Local possession swells the volume of misbranded drugs (harmful
goods) in InterstateC – people would buy more pills b/c taking more
pills (see Baby Lopez)
Rule: require labels on all pill bottles
viii) Civil Rights Act of 1964 – be very careful using these cases to support
non-discrimination statutes:
(1) Heart of Atlanta Motel v. US (1964): National Statute is VALID
(2) Katzenbach v. McClung (Ollie’s BBQ -1964): National Statute is
VALID
Act: Right to be free from discrimination in places of public
accommodation (those who let 5+ rooms and restaurant = public
accommodation); statute finds that all motels affect InterstateC –
creates a conclusive presumption
Court says that Congress could have reasonably found that racial
discrimination by motels/restaurants substantially affects InterstateC
Ct. relied on Congress’ findings
How does the local activity (discrimination) affect InterstateC?
Impedes travel b/c AA don’t know where they will sleep or eat =
artificial restriction on the interstate market
Query: Does racial discrimination really have any effect on the
volume of food bought and sold in InterstateC?
Wouldn’t AA’s just eat elsewhere?
NOTE: Court defers to Congress here as long as there
is a rational basis
With Ollie’s BBQ: Government relied on the fact that a substantial
portion of the food served there had moved in InterstateC puts a
heavy burden on the government to show this in every case (could
have made the same travel argument as it did re: Heart of Atlanta
Motel.
Note: when we get Perez later, the burden will be greatly
reduced. (Government just needs to show that the CLASS affects
InterstateC; hard to differentiate b/w those restaurants that serve
interstate customers and those that don’t, so we can regulate the
WHOLE CLASS (any restaurant COULD serve Interstate
customers))
End here looks moral – like a pretext… Court here is asking whether
the local activity has a real and substantial relationship to a national
interest not interstate commerce can’t do this.
Bottom line: Court says that regulating the local activity as a means for
an InterstateC end is ok – so it doesn’t matter that Congress had more
than one purpose/intent
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
Fair Labor Standards Act – applied labor standards to all employees
engaged in Commerce (not just InterstateC)… also extended to state
governmental employees
Appears to infringe on state powers
VALID upholds the enterprise concept: an enterprise is a set of
operations whose activities in commerce would all be expected to be
affected by the wages and hours of any group of employees
BUT, the court asserts limits on the affecting commerce rationale
o Congress may NOT use a relatively trivial impact on
commerce as an excuse for broad general regulation of
state or private activities
o Only where the general regulation statute bears a
substantial relationship to InterstateC can the very small
character of individual instances arising under that statute
be of no consequence
Note: State autonomy defense rejected here and the act was
upheld, BUT it was overruled in National League of Cities, and
then reinstated in Garcia (1985)
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
No jurisdictional hook no mention in the statute of InterstateC
Ct. used the argument f/ Perez, supra, to uphold the statute as
Constitutional
It’s impossible to tell drugs apart, so prohibiting all drugs will prevent the
negative effects on InterstateC
Congressional findings:
Local distribution of drugs leads to swell of drugs in InterstateC
Impossible to distinguish b/w interstate and intrastate drugs (Ct. relied
on this)
Congress could reasonably believe that an attempt to separate these
activities would be a futile exercise substantially interfering w/
Congress’ power to regulate InterstateC
Congress is regulating a 2-part class (1) intrastate drugs w/ no
connection to InterstateC (2) intrastate drugs w/ a connection to
InterstateC
xii) US v. Bass (1972): National Statute VALID but construed narrowly (D’s
conviction reversed)
Act: applied to felony-convicts who receive, possess or transport any
firearm in InterstateC or in a way that affects InterstateC (made it a federal
crime)
Government made no showing that D’s gun had a connection to
InterstateC (no “jurisdictional hook”) – but, the Court didn’t require one in
Perez or Baby Lopez
Court said that because this statute, unlike the ones in question in
Perez/Baby Lopez, actually mentioned InterstateC, the Government had to
show some effect on Interstate commerce
Construed the statute narrowly to disallow punishment UNLESS a
connection to InterstateC is shown
In the absence of clearer direction f/ Congress, Court chose not to read
the statute so broadly as to allow punishment of a purely local activity
Would this act have worked under the prohibition power?
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
Congressional findings: (like Baby Lopez) – the more people that
possess guns, the more likely they will be shipped in InterstateC
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
i. Southern Railway (1911): Federal Safety Appliance Act
required all trains to have automatic couplers
(regardless of whether they were just traveling
intrastate) = fewer accidents fewer delays in
InterstateC Congress is protecting/securing clear
railways for InterstateC
Lopez category 3
o No jurisdictional element here – P not required to show that the
individual activity substantially affects IC under this statute (i.e. no
“jurisdictional hook”)
Bass: In the absence of a clear connection, the Court is
unwilling to read the statute as encompassing all interstate
activity
Court says here that Congressional findings as to the
relationship b/w the activity and IC are not required, but
would be helpful in doubtful cases
• Court ignores Perez (class rationale)
o Court suggested that “economic activity” establishes a “threshold
requirement” for regulating activity under the CC
To be “economic” the activity must:
• [the activity being regulated itself must] be properly
characterized as economic in nature OR
o McCulloch: Court can’t tread on Congress’ power to
judge the relationship between the local activity and
InterstateC
o Court has since taken back the power to judge the
affect on InterstateC
Cardozo’s dissent in Carter Coal; Perez;
Katzenbach; Heart of Atlanta; Wickard;
Morrison (VAWA is not economic and no
jurisdictional hook)
• [the regulation itself must] be an essential part of a
larger regulation of economic activity
o Bass – penalized felons that
rec’d/possessed/transported firearms in InterstateC
The particular local activity must be related
to InterstateC
THEN, the activity must SUBSTANTIAL AFFECT
INTERSTATE COMMERCE as well.
The majority rejects the rational/reasonable conclusion of
Congress test
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
o The Court MAY require the activity to be economic AND to
substantially effect InterstateC OR the economic inquiry may be
a way of determining whether the activity substantially affects
Interstate C
These are two competing views of the Lopez decision
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
Why does KENNEDY join here? He typically supports
political and not judicial restraints on CC (Gibbons v.
Ogden and Federalist Papers)… suggests that even he
thinks that the court doesn’t ALWAYS have to defer to the
political process.
CONCURRING: Thomas
Easy case b/c gun control doesn’t have anything to do w/ commerce
In anticipation of more difficult cases, says that the Court should entirely
reconsider its “substantial effect” test go back to the original intent in
the 18th Century
“Substantial Effects” Test allows for an inappropriate, unhistorical and
unconstitutional extension of Congressional authority.
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
o The Court must defer to Congress if there is ANY RATIONAL BASIS
for finding that the activity affects InterstateC
o Agrees w/ pre-Lopez hands-off approach – the only inquiry is whether
the means chosen by Congress are “reasonably” related to the ends.
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
o Congress’s findings are vague and even so, the Court disregarded
the findings in Morrison
o Link is too attenuated b/w local activity and InterstateC
o The class here should be differentiated; the class = medical
marijuana, not ALL marijuana
Government argues:
o Can’t differentiated the local marijuana f/ interstate marijuana
Getting around the need for a jurisdictional hook (i.e.
regulate the class)
o Local possession of marijuana contributes to the swelling of
InterstateC (Wickard – aggregation should apply regardless of
whether the activity is commercial or not
But see Lopez category 3 don’t aggregate non-
commercial activities)
• SO, is the issue of aggregration of commercial v.
non-commercial activities still viable? I.e. can
you argue now that you CAN aggregate non-
commercial activities? What has this decision
done to Lopez???
o The mere growth of marijuana is commercial
Lopez and Morrison decisions focused on whether the activity was
commercial (concluding both times that it was not) – here the activity
clearly isn’t commercial….
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
o Use N&P instead of affecting commerce rationale
o Congress has the power to regulate even if it’s not an economic activity –
when regulation of an intrastate activity is none the less part of a larger
regulation of economic activity and it is necessary to make sure that
Congress’ legitimate regulation of larger economic activity is not undercut
by the interstate activity
Is he encouraging Congress to legislate broadly?
DISSENT: Thomas
Majority is giving Congress a police power
Disagrees w/ substantial effects test (as he did in Lopez)
o “Must be an obvious, simple and direction relationship b/w the
intrastate ban and the regulation of interstateC” (Knight)
Wants a narrow view of Comm.
As for N&P looks to McCulloch, means must be “plainly adapted” to meet
a legitimate end
o The Court decides if the means are necessary and proper
2) TAXING POWER
• Art 1:§8:1 the power to lay & collect taxes, duties, imposts and excises”
o tax will be upheld if it bears some reasonable relationship to revenue production
OR if C has the power to regulate the taxed activity under another enumerated
power
• Federal tax immunity exists whenever the state seeks to tax the United States or an
agency or instrumentality closely related to it so the two cannot be viewed as separate
entities.
• Can be valid in 2 ways:
o (1) Revenue-Raiser
tax is presumptively valid as a tax if raises some revenue
• even if minimal – Kahriger & Bailey
• if no revenue – then not a tax and valid only if under different enumerated
power
can be a penalty if –
• its part of a reg. scheme (child labor cases: Bailey)
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
• it has a criminal trigger (intent to penalize)
o (2) As a means to achieve a valid regulatory goal (N&P)
even if penalty can still be valid
if the activity can be regulated under another enumerated power – gov’t can
use tax as a means to achieve that reg goal
• theory: if C can reg w/ other power – then its use of tax is less intrusive
• note: C has not struck down a tax since 1930
o Taxing power + N&P might be used for regulation
• Unlike CC – you can tax anything whether intra or inter – major
advantage
• Brushhavor v Union Pacific RR
o Nat’l tax power (“TP”) is exhaustive and embraces every conceivable power of
tax
only limit on extent of tax is due process limit of confiscation
• Bailey v Drexel Furniture (Child Labor Case) – Act is Invalid
o tax: 10% charge on profits of er of child labor
statute has same breadth as Hammer v Dagenheart
lack of knowledge that ee was child is a defense
enforced by dept of treasury and dept of labor
o Issue – is the tax a penalty?
penalty to enforce a reg scheme (not for rev-raising)– looks at knowledge
defense (“scienter”), enforced by dept of labor, didn’t matter if employed 1 or
300 kids
ct it’s a penalty; tax is being used as a pre-text
o Gov’t argues that Ct cant do ends-invalidation anymore (pretext) b/c of Veazie,
McCray & Doremus
Ct disagrees
• Bailey/Doremus cant be reconciled w/ ends invalidation
o both ends were impermissible
o cant distinguish on this – (note Bailey might have been ruled on by
ends validation though)
• Bailey/Doremus can be reconciled w/ means-ends invalidation
o Doremus: registration helped both tax and drug suppression
o Bailey: scienter/reg agency doesn’t help tax end but only reg end here
o Ct invoked ends-invalidation tax is INVALID (uses Marshall’s pretext quote)
means must be naturally and reasonably adapted to the collection of tax
o Ct saw this as C trying to make an end-run around Hammer v Daggenhart
TODAY: if tax invalid, Ct try to uphold under CC using Darby (probably…)
• Veazie Bank v Fenno – Act is Valid
o tax on state and person bank notes
o purposes could be:
(1) raise revenue
(2) drive these other bank notes out of service (using tax as pretext – so Bailey
is inconsistent)
(3) using N&P – tax as a means of making effective C’s power to have a
uniform nat’l currency (direct use of N&P)
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
(4) it is a tax in service of another enumerated power (direct use of TP)
o Ct – this is the use of a tax to get nat’l currency under N&P
• McCray v US – Act is Valid
o bigger tax on yellow margarine vs. white margarine
o purposes could be:
(1) raise revenue
(2) confuse consumers – consumer protection (buy butter)
(3) stop people from buying yellow margarine (protect dairy industry) ->
pretext; would make Bailey inconsistent
(4) using N&P, C taxes yellow margarine as a means to make effective C’s
power of regulating InterC
(5) it is a tax in service of CC (direct use of TP)
o Ct – this is a tax in service/as a means of using C’s CC – valid
• Ct was comfortable as seeing McCray and Veazie not as pretext BUT in Darby
court quotes these cases to show that Ct will not inquire into C’s motives; and does
not care about prohibiting to reach a non-enumerated end
• US v Doremus – Act is Valid
o Tax – on all transactions involving Opium; dealers must register and have to use
sales form may be criminal sanctions (not in tax though)
o purpose may be:
(1) raise revenue
(2) outlaw opium (pretext! – would be inconsistent w/ Bailey)
(3) under N&P tax may be used to suppress drugs…
o Tax is okay
the means – registering + sales form – make it easier to tax AND easier to
suppress drugs (tax and non-tax ends)
o Reconcile w/ Bailey right to tax not questioned here just the means – and the
means here have a strong and reasonable relation to tax ends; the means in Bailey
do not a means for facilitating tax collection
• US v Kahriger – Act is Valid
o Tax on Gamblers = $50/year + 10% of wager – give name and add. of all
ees/customers
this might also lead to criminal sanctions (as in Doremus)
o purpose may be
(1) revenue raising
(2) suppress gambling
o P argues only raises a negligible amount
legis history says intent is to suppress gambling
o Ct negligible revenue does not matter
unless there are penalty provisions that don’t support a tax end, the Ct cant do
anything – all of the provisions here are adapted to collection of a valid tax
• means-end analysis (example of provision extraneous to tax = Bailey)
• means are related to the tax ends
legislative history = ends analysis (pretext?)
• like Darby – backs away from this analysis – doesn’t matter that there are
2 purposes no judicial scrutiny of ends
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
• just b/c it merely discourages the activity being taxed does not matter
• OVERVIEW
o Nondiscriminatory taxation is restrained by the political process
spending usually isn’t
o A tax cannot be imposed primarily as a penalty (means-ends inquiry)
can’t be a pretext for Cong to exercise a non-enumerated power
but any tax will have a discouraging effect
o Any non-revenue provisions in a tax law must be related to collection
Sometimes there is more than one purpose/end for taxing, but it is only good
when the means get to the taxing ends also.
o Tax Purpose: Although some cases earlier in the 20th century suggested that
Congress could not use the taxing power as a pretense to regulate an activity
rather than raise revenue and could not reach activities it could not otherwise
regulate, these limitations have been rejected. Thus in United States v. Kahriger,
the Court upheld a tax on bookies even though the statute’s primary purpose was
to regulate the activity, not to generate revenue. Nonetheless, Congress cannot tax
in a way which would otherwise violate some constitutional prohibition. (e.g. a
tax on newspapers alone)
• ASK: what is the means-ends relationship in terms of the TP?
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
Congress decides which spending is for the General Welfare unless the court
has to decide b/c: Clearly wrong; Arbitrary; Not an exercise of judgment
Ct doesn’t scrutinize ends – (Buckley v Valeo)
• (2) May not be used to coerce action left to state control.
o Steward Machine Co:
During depression, govt. gave a tax refund if state enacted a Social Security System
complying with federal standards. HELD, spending is valid since it’s not coercion,
rather it’s an incentive; conditions are related to a national end, i.e. saving the money
and time Govt. would have to spend on a nat’l program.
o Oklahoma v. CSC: grant o highway funds given on condition that no state highway
employee is elected. HELD, spending is valid since means (condition) are related to the
end (building the highway) since elected official may give preference to certain
constituents.
o South Dakota v. Dole
Govt. gave money for highways on condition that SD have a 21 drinking age. HELD,
condition is related to protecting federal highways; condition is voluntary, therefore
no federalism concern about Govt. forcing states to regulate
o Conditions must be stated unambiguously (States can only make a reasoned choice if it
knows for sure what is being asked of it) - States have to have knowing choice
o Cases under this Steward Machine Co. Case, OK v. Civil Services Commission ,
National League of City, Garcia, South Dakota v. Dole, NY v. Prince, Reno v. Condon
• (3) Conscience and patriotism of Congress and the executive: Political Checks
o Reference to the political checks. We can have some confidence that the executive is not
going to abuse the spending power.
• (4) Means-ends inquiry: the means have to be reasonably adapted to the ends.
o Conditions reasonably adapted to the attainment of the end which alone would justify the
expenditures.
o But Oklahoma v. CSC didn’t worry about this restraint.
• SP + N&P allow conditions to be attached to fed grant as long as not coercive;
• United States v Butler – Act is Invalid
o 2 view of the SP
Madison: power to spend merely carries into execution the other enumerated
powers
Hamilton: power to spend is separate and distinct from other powers (Ct
chooses this)
• the power to tax & spend stands on its own and may be exercised
whenever doing so comes w/in the terms of the Art 1:8:1 and does not
exceed applicable limits
o Fund: Gov’t gave farmers $ from a tax on the company who processes the grains
taxes were earmarked (special account) – last time C did this
o Ct – this is INVALID
C cannot make a K for spending on something that it couldn’t do otherwise
the Plan = C to coerce a result they don’t have the power to compel; getting
their hands on agriculture – which is a state controlled activity (is Ct saying
that C cannot use SP to reach things unreachable under CC? – sounds like
Madison)
• Farmers had no choice – b/c if refused would be placed at a substantial
competitive disadvantage
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
• Ct adhered to “enclave theory” – C cannot touch production,
manufacturing
o Ct no longer follows enclave theory
Ct does endorse conditioning $ for educ on what is taught
THIS IS COERCION: farmer must accept $ - or go under; even if not
coercion MAJ says it wont stand
o If decided today – even if coercion and regulation were found – would be valid
under CC
o DISSENT – Stone (eventually prevailed as the law!)
Spending is a distinct power
This is not coercion – b/c not a threat of loss, this is a hope of gain
(eventually dissent wins – Gov’t drops the req that farmers must sign K)
Stone’s 4 Limits on SP (above)
• Steward v Davis Machine Co – Act is Valid
o fed tax on er, but er gets credit when er pays into state retirement scheme
approved by fed
SP: C spending, under certain conditions, nat’l gov’t gives back 90% of the
original tax on er
all but one state adopted b/c they got the er and ee push
o If state adopted a non-complying plan– then essentially getting taxed twice
if no plan – then taxed once but no $ coming back to citizens of state
State effectively had no choice – appears to be coercion
• Ct says SP are voluntary b/c choice to play the game or not
o law is okay – distinguished from Butler
no earmarking for a special group
state has approved the program
no K, not irrevocable
relief for unemployed is a lawful end
o MAJ – state is not coerced; state is not complaining; state could choose not to
implement program up to fed standards
• Helvering v Davis (1937) – Act is Valid
o upheld old age benefit provisions of 1935 Social Security Act
o Key question is whether spending is for general welfare or particular interests
o Whether spending is for general welfare or not is a Q for Ct – it’s a Q for C
even if small class is being helped – it is the general welfare – b/c you know
you will be saved if you need it (benefit from knowledge that if we have
particular needs C will be able to address those)
o Cardozo found that a system of old age pensions is best left to the nat’l interest
• OK v. Civil Service Commission 1947 Valid Limit imposed on States who took
national funds; OK has to structure its government differently if it wants federal $
o Hatch Act – granted hwy $ on condition that no state hwy ee be elected
State made decision that hwy commissioner should be elected
o Ct – its valid spending is valid since means (condition) are related to the end
(building the hwy), since elected officials may give preference to certain
constituents
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
intrudes on state affairs – people of state may like one form of gov’t’ but cant
have it if want funds
o DISSENT – Stone: how is this reasonably related to the purpose of the fed
spending (90% hwy funding)?
if election coming up may postpone buying up land for hwy until after that
might only give indiv of your party K to make hwy
might give the job to inefficient workers who will vote for you
o Restraints on SP
political process – elect indiv who would impose fewer conditions on $
state could turn down the grant (very rare)
Ct analysis of means/ends relationship – unlikely that modern ct will
scrutinize the ends – but may analyze the relationship
• Ct is not likely to say – C was wrong – there is no relationship
• C can encourage states to enforce nat’l legis/to regulate but cannot coerce them
o see 10th Amdmt section of Outline
• NY v. US (radioactive waste disposal) Act gave money to states if they met
regulatory milestones. Held: conditions on $ are fine here (Ct invalidated a provision
but not under SP)
• South Dakota v Dole (1987): Act is Valid: Gov’t gave $ for hwy on condition that
SD have a 21 drinking age. (or Gov’t would withhold 5% of funding)
o C may use the SP to induce states to cooperate w/ regulations in areas that are not
easily controlled. Compliance w/ this law is voluntary and the stakes are not high.
Additionally, if the funds are accepted by the state, the conditions are laid out
unambiguously and are fully understood by the states
o Condition is related to protecting fed hwy
o 4 Part test!
(1) Exercise of SP must be in pursuit of general welfare
• Cts should defer substantially to the judgment of C in considering whether
a particular expenditure is intended to serve general public purposes
(2) if C desires to condition the States’ receipt of fed $ - it must do so
unambiguously – enabling the state to make its choice knowing the
consequences
(3) Conditions on fed grants might be illegitimate if they are unrelated “to the
federal interest in particular nat’l projects or programs”
(4) Other Const’n provision may provide an independent bar to the
conditional grant of federal funds
4) WAR POWER
• Art 1: §8: cl. 11
• Issue is the impact of war powers on federalism
• C can declare war, raise armies/navies, and provide for the nat’l defense
o Under N&P – C may use this power in peacetime to
prepare for future wars
deal w/ the social and economic consequences of past wars
o WP is much more limited than the other powers
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
• War power can justify laws that correct the problems of war after war is over
o however, legis in the field of veteran’s rights and limitations thereon may be
extended indefinitely as long as veterans or their relatives may survive
• Woods v Cloyd Miller – Act is Valid
o Act regulated rent after war – b/c of post-war housing shortage due to
demobilization
o Rent regulation is necessary and proper as a means to address the housing
shortage caused by the war.
o WP does not nec end w/ cessation of hostilities
can remedy conditions made by mobilization of war
as long as the effects of war are reasonably traceable to the war, C can use its
WP to remedy those effects
o Ends are related to means – since setting rent remedies the damage to the housing
market cause by the war
o Even though actual combat had terminated, a state of war still technically existed,
+ C had right to take all N&P means to remedy post-war problems
• Hamilton v. Kentucky Distilleries – Act is Valid
o C used WP to limit alcohol production b/c grain (and non-hung-over males)
needed for war effort
o Concurrence (Jackson) – WP is subject to passions
WP is very broad and could be easily abused
• could hurt liberties
• especially if used for indirect effects
o Ct may need to inquire into means/end relationship
However – uphold b/c we’re still currently at war
Concerned that WP could go on forever – debt effect of war is felt for decades
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
thus states could not claim that the treaty or the statute adopted pursuant to it
violated the 10th Amdmt
US could not regulate this under CC – so tried Treaty
o N&P applies here just like all other enumerated powers
o 10th amendment only reserves what is not delegated & Ct held that treaty and
N&P were delegated to C thus not reserved to the state;
o Ct – Treaty does not contravene any prohibitory words found in Const’n – no
violation
• Problem w/ MO case was that there was a worry that C could make an end-run
around other restrictions, such as Bill of Rights. However, in Reid v Covert, Ct held
that an executive agreement could not violate any distinct const’n prohibitions or
guarantees. “No agreement w/ a foreign nation can confer power on the C, or on any
other branch of Gov’t, which is free from the restraints of the Const’n” (Ct has never
held a treaty unconst’n)
• Broad statement that fed gov’t can exercise only N&P enumerated in C is for internal
affairs only – Foreign affairs power of Fed different from normal power internal:
fed cant do anything not in Const’n; external: fed powers of sovereignty don’t rely on
Const’n
• Missouri v. Holland suggested that the President and Senate could achieve ends
through treaty which were beyond the constitutional power of Congress. It seems
unlikely the Court would adhere to this result today. In Reid v. Covert, 354 U.S. 1
(1957), the Court held, in a plurality opinion, that a foreign agreement could not
transcend constitutional bounds.
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
o “the difference is b/w the action of the whole on a part and the action of a part on
the whole” – political check on whole that isn’t present on part
• Fed Immunity to taxation only exists when US is the one w/ the obligation to pay –
Gov’t ees are not immune from state taxation; the fact that this burden might be
passed on to the gov’t is not enough to confer tax immunity.
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
Const’n of the US does not forbid it merely b/c its incidence (obligation to pay)
falls also on a state
tax is valid since bottling is something that a state and private business can do,
and not something only a state can do.
BUT NY has an interest in preserving the states natural resources – isn’t that
uniquely gov’t
• Stone (concurring) non-disc test can still mess up state functions we must look at
whether the tax is discriminatory and whether it unduly interferes w/ state’s sovereign
functions
o Rehnquist seizes on this in Nat’l League
• Rutledge (joining Stone) – ok to tax if C makes a clear intention of wanting to tax the
states makes political protection of states apply directly and C will determine this
(blame C not the act) THEN apply the discrimination test
• Douglas (dissenting) – this interferes w/ state sovereignty b/c state gets less $; state
dignity reduced
• Three Approaches of NY v. US
o Majority -- Only activities unique to state gov’t are immune
o Concurrence -- Balancing test: Impairment of state functions vs. the loss of tax
revenue
o Dissent -- Everything a state chooses to do should be immune from taxation
• RULE: ask if the tax is non-discriminatory b/w states and private indiv. Then, the fed
gov’t may not tax in a way which would “interfere unduly w/ the State’s performance
of its sovereign functions of gov’t”
• Essential Functions: the fed gov’t may not impose a significant tax on property used
or income rec’d from a state’s performance of its basic gov’t functions. But where a
state gov’t engages in a function that is not at the core of traditional gov’t functions,
the fed gov’t may tax that function as part of a non-discriminatory, generally-
applicable tax
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
o C has each state enforce the min wage, make an agency to do so, fund that
agency, etc
o states as agents of nat’l gov’t
If you get the states to enforce the national law then you don’t have to pay to administer it,
nor do you feel the heat if the law is unpopular among citizens
o Hodel; FERC; Dole; NY v US; Printz;
• 2 big cases Nat’l League and Garcia (both saying different things)
o Cases in b/w: Hodel; Long Island RR; FERC; EEOC
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
does the fact that the statute applies to state make in invalid? NO b/c there
was must of a burden imposed on the state (Ct says it helped the state)
10th Amdmt is a “truism” (Darby) – it has some significance but Ct dismissed
all the state autonomy limits here
National League of Cities v Usery (1976) – invalid (overruled by Garcia)
• Ct viewed 10th Amdmt as a reflection of philosophy of federalism embodied in
Const’n (not as a truism (Darby Ct did))
• C applied FLSA to state gov’t ees (already applied to private sector)
• Rehnquist changed his lone dissent in Frye into MAJ opinion here
• Ct does not recognize a retreat on C’s CC – but states there is check on C’s CC by the
state sovereignty – this is an integral gov’t function so invalid as to states under CC
o Act is w/in CC but may be unconst’n for other reasons; CC over private activity is
only limited by means/ends relationship (Heart of ATL)
• SOURCE of state sovereignty limits on CC
o R = Frye: “10th Amdmt expressly declares the Const’n policy that C may not
exercise power in a fashion that impairs the States’ integrity or their ability to
function effectively in a fed system”
o Brennan = 10th Amdmt = truism; only ques is whether C is using an enumerated
power or not (no sovereignty limits on CC)
• WHO enforces these limits; R = Ct; B = political process (Gibbons)
• TEST - R = essential/traditional/integral state gov’t functions are protected
• ESSENTIAL FUNCTION (here)
o R = interferes w/ state policy decisions on where to allocate $$
states costs increase = must reduce services or increase taxes; (NY v US: taxes
that increase costs do not nec interfere w/ states)
“we don’t need particularized assessments to show policy interference”
(1) impinge on essential attributes of state sovereignty or (2) “directly impair State ability to
structure integral operations in areas of traditional governmental functions,” unless the
nature of the federal interest justified state submission to federal regulation
o B = no interference b/c feds gives states tons of grant $$ (states don’t have to
change policy just adhere – no interference!)
• R does not balance state v nat’l interests here; just states it may be good economic
policy to adhere
• OVERRULES?
o US v CA – good law
RRs are not integral state functions
does this reinstate the proprietary v gov’t distinction discredited in NY v US?
o Case v Bowles – good law
ok b/c under war power not CC
o OK v Civil Service Commission – good law
ok b/c under spending power not CC
o Frye v US – good law
ok b/c big nat’l problem and limited interference w/ state
o Maryland v Wirtz – overruled
this statute interfered w/ an integral gov’t function
• INTERPRETATION
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
o (1) no consideration of nat’l interests, state functions are totally immunized –
don’t look for “particularized assessments”
o (2) Nat’l only applies to CC
North Carolina v Calafono – reaffirmed that Nat’l does not apply to SP
SP – State has a choice; WP – only belongs to C so not interference
o (3) use a balancing test of nat’l interest and limited burden on the states – Frye is
still good law; Blackmun (concur) said this
o (4) Nat’l doesn’t affect the 14th Amdmt
• Dissent: this should be left to political process NOT judicially enforced limits
United Transportation Union v Long Island RR – valid
• RR owned by state; act allowed state ees to strike (against NY law)
• Ct: RR is not a traditional gov’t function – it used to be private; footnote in Nat’l says
that RR is a business activity (static view of history)
• this is category 1 and 2 since regulates private activity and states
EEOC v Wyoming – valid
• C wants to apply anti-discrimination employment rules to state game wardens
• The state argued that mandatory retirement ensured the physical fitness of its
wardens, and that Act interfered in state functions in violation of Nat’l League.
• The Ct focused on the 3rd of the Hodel test = traditional gov’t functions (see below) –
and found that the Act did not “directly impair” traditional gov’t functions b/c the Act
did not req the states to keep physically unfit persons on the payroll, but merely to
afford them individualized consideration.
o however forces states to retain ees w/ more seniority and thus higher wages –
imposing such a cost on the states, tog w/ controlling who will perform the tasks
seems to be exactly what Nat’l League disapproved
• Even if a fed act affects a traditional state function, as long as it does not affect the
states’ ability to structure integral operations in that area of traditional gov’t, it is
okay
Garcia v San Antonio Metro. Transit Authority (SAMTA) – valid (returns to 10th =
truism)
• Overrules Nat’l – takes us back to MD v Wirtz; overrules third part of Hodel – that
the federal legislation not burden areas of “traditional state concern.” There is no
such thing – states experiment so the traditional gov’t function analysis must be
discarded.
o statute is valid since political check exist, and no possible destruction of state sovereignty exists so
no need for judicial intervention, thus Nat’l L is overruled – Stevens is only one from here still on
Ct – ripe to be overturned
• La Pierre – agrees that this is the right result – puts power w/ political process
(something conservatives are usually happy w/ - but not here) – thinks Nat’l maybe
just needed to be qualified
o Nat’l political process works fine as a check as long as the private sector is being
regulated as well
• C extends wage/hour reg to state ees; Ct refuses to use judicial review to limit C’s CC
• Ct – old test of gov’t v. proprietary is unworkable; impossible! (may be manipulated
by what justices like and don’t like) no federalism limit on CC
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
• States only protected by political process – states are vicariously protected when reg
affects private sector as well; if good under CC then Ct will not scrutinize app to
states
o in a lot of cases we can trust the political process; but may not be enough – need
background possibility of a judicial check (Baby NY v US)
• the fact that it is a state being regulated has no practical significance – if the
regulation would be valid where applied to a private party it is valid as app’d to
state!
• State sovereignty interests = protected by proc. safeguards inherent in fed gov’t
structure
• Rehnquist & O’Connor itching to reinstate Nat’l League
Reno v Condon (2000) – Statute VALID
• Law stopped states from selling drivers license info
o burden: states lose revenue and sales policy
• REHNQUIST
o is it valid under CC?
Stream of Comm – “article in InterC – first time SOC used since Jones &
Laughlin
Info is in SOC so C can regulate it
Regulation affected private companies as well as the state – after state sold the
info (under consent of indiv) then the private co also had to get consent to re-
sell
• BUT – private co couldn’t get the info IF state never sold it
o so cutting them off at the source as to un-consented to info
This isn’t a 3rd category case b/c C is regulating under CC and the reg affects
States AND private sector
o Does this violate federalism/10th Amdmt?
this is a law of general applicability same rules apply to gov’t and private
sector
• but isn’t the gov’t the only one who can collect this info??
STATE – this is a 3rd category case puts burdens on the state, making IT
regulate private parties
• CT: it doesn’t make state reg the buyers of info feds do this
o does not req states to regulate their citizens – this is regulating states as
owners of databases – not as states
o also – this is a prohibition on conduct not a mandate (like in Printz &
NY) it does not req the states to pass any legis or req state officials to
assist in the enforcement of fed statute reg private indiv
STATE – this regulates states exclusively – fed can only reg states generally
• CT: doesn’t get to this
o but seems that CT is saying this regulates an article in InterC that is
sold by states AND sold by private industry – so this is not regulating
the states exclusively
o this is not burdening the public sector any more than it is burdening
the private sector
o CT did not address the possibility that this is “affecting commerce”
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
LA: sale of personal info
Affect on InterC: info used by marketers/insurers/etc; these co may be from
out of state – leads to increased solicitation of goods through InterC
Means: prohibition (w/o consent)
InterC End: reduces solicitation of goods through InterC from direct marketers
o Since this is a Category 2 cases and C is not trying to reg states as states – no fed
limits!
not a 3rd category like FERC, NY v US, or Printz
• NOTE – Current SC. Justices Rehnquist and O’Connor dissented in Garcia. Only
Stevens was in majority. Thus, Nat’l League might still be alive today
42
Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
o Ct Split the same as in Nat’l League (except Blackmun switched sides and voted to uphold fed law
here)
• After States decided on a rule – they have to implement it – this is ok b/c states
normally reg/implement this stuff
• Dissent: compelling states to consider adopting fed reg was, in essence, to conscript
the state reg process and thus violate the 10th Amdmt
o (O’Connor) Cts decision undermines the most valuable aspects of our federalism.
Ct and Commentators freq have recog’d that the 50 states serve as laboratories for
the development of new social, economic, and political ideas.
South Dakota v Dole – 1987 (after Garcia) – valid – this is use of SP
• condition is related to protecting federal highways; condition is voluntary, therefore
no federalism concern about Govt. forcing states to regulate.
• C conditioned 5% of hwy $ on state raising the drinking age to 21 (SD = 19)
o Nat’l League limits only on CC not SP (so Rehnquist is fine w/ this)
• Limits on SP:
o (1) furtherance of public welfare (up to C to decide if w/in general welfare)
o (2) condition is unambiguous (if say has choice – must fully inform state of
choice)
o (3) rel b/w condition and expenditure
condition must R further some particular nat’l project otherwise w/in fed
power
o (4) must not be barred by other constitutional limits
• (4) in question here state claims barred by 10th Amdmt;
o However, the independent const’n bar limitation does not mean C may not
indirectly achieve objectives it could not achieve directly; the bar prevents C from
inducing states to engage in otherwise unconst’n behavior; b/c a state may const’n
raise its drinking age, C is not barred from imposing such a condition on the
expenditure of fed funds
o Stone (Butler case) – C cant use SP to make state do something unconst’n
Steward Machine – some things are so coercive that cross line to command
(not allowed) this Ct also recognizes this here but says that isn’t the case in
Dole
• NOT COERCIVE b/c state has choice – can refuse $; and only a small portion of
the $
• C clearly has authority to impose conditions on the receipt of fed funds, even to attain
objectives it might not be able to attain directly. This authority is incident to the SP
o “relatively mild encouragement” and was const’n “even if C might lack the power to impose a
nat’l min drinking age directly, we conclude that encouragement to state action…is a valid use of
the SP.”
• Dissent: no real relation b/w drinking age & hwy; need stronger connection to satisfy
(3)
o MAJ – end = system of safe travel; DIS – end = interstate hwy system
definition of the end changes the relationship
o under inclusive – if really wanted to regulate drunk driving would directly
regulate it b/c anyone 21-150 can drive drunk; over inclusive – some teens wont
drink & drive
NY v US – (1992 after Garcia) – invalid – radioactive waste disposal
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
• good case to look at to understand what the Ct has been doing up to now – use
O’Connor’s order in this case to get a grasp
• RULE – C can encourage not coerce states to regulate!!
o O’Connor cites Hodel & FERC as encouragement – there is coercion here
• Provisions of Statute
o (1) $ Incentives = valid (Ct was unanimous)
fed charges a surcharge to states w/o sites when they dump then gives a % of
this $ to states that comply w/ fed plan
• surcharge may be invalid as use of CC under Dormant CC b/c
discriminates and only charges those states w/o sites – but okay under TP
or SP (under Dole)
o SP = surcharge collected then given to states to encourage compliance
w/ fed regulations (must still satisfy Dole req)
gave state a choice, like a federal tax, thus w/in enumerated powers (CC or
TP)
Since C can burden InterC, C can authorize state to burden InterC (of waste)
o (2) Access Incentives = valid
states w/ cites can ↑, ↓, or stop access to citizens of states not doing fed plan
states not compelled to change their operation – conditional exercise of CC
the increasing cost to dispose of waste would cause political pressure on state
to comply w/ fed plan (or at least to set up own disposal site)
• burden on private indiv which in turn puts burden on the state
• C can only directly regulate individuals – not the states directly
C is allowing states to burden InterC (not originally allowed to do this)
• 2 ways C can use states to execute nat’l policy condition $ or burden
private indiv
o (3) Take Title Provision = invalid
state can either (1) take title and L over the waste OR (2) comply w/ fed plan
• C cannot make state choose b/w 2 unconstitutionally coercive things
o C cannot const’n force state to take title/L
o C cannot const’n force state to regulate
• Hodel: C cannot force state to adopt a reg program this is compulsion
here!
o outside C’s enumerated powers – state has no choice at all – this is
“commandeering” not allowed!
(Hodel & FERC still good law b/c they don’t command the state to regulate)
• choice of preemption or regulation is fine; conditional $ is fine (Dole)
If Feds command state to regulate – the political process fails – those who
draft the regs are insulated b/c the states must enforce – problem w/
accountability
No matter how great the fed interest, the Const’n does not give C authority to
req the states to regulate. C must legislate directly, not by conscripting state
gov’ts.
RULE: if the states have no choice, C has issued a command invalid!
• C could have done (3) under SP
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
o Attach conditions to fed funds (as long as meets Dole req)
o C could have threatened pre-emption; where C can regulate private activity it can
offer States the choice of following their rules or of losing the power to regulate
Hodel – feds can pre-empt state legislation that is contrary to fed interest
• Clearly rejects Garcia’s conclusion that the fed Judic would not use the 10th Amdmt
to invalidate fed laws – it appears that if a fed law compels state legis or reg activity,
the statute is unconst’n even if there is a compelling need for the fed action
• Dissent (White, Blackmun): states requested this legislation – states agreed to it – fed
gov’t is allowed to referee b/w the states when the states try to renege on their
agreements w/ one another; (Stevens): Fed can impose limits on states just as under
AOC and has the right to resolve issues among the states
• C can usually get states to enforce fed legis – if states think legis is a good idea, so
look to legis and see if disfavored b/c this is when compliance is objected to. State
officials usually follow & support safety fed system legis, etc that is categorized as
“cooperative federalism”
• Bottom Line: C has to make sure it does not use words like “command” “order” and
that there is another way of viewing their actions besides “ordering” or
“commandeering”
o Power of C to legislate so as to impact state autonomy has been analyzed both by inquiring
whether C has the power under Art1 to act and by determining whether C has invaded the
province of state sovereignty reserved by the 10th Amdmt. But these inquires are mirror images,
b/c where a power is delegated to C, the 10th Amdmt expressly disclaims any reservation of power
to the states, and if a power is an attribute of state sovereignty reserved by the 10th Amdmt, it is
nec not conferred on C
The 10th Amdmt merely states a truism (Darby) that all is retained by the states which has not
been surrendered to the fed gov’t; yet it req the Cts to determine whether an incident of state
sovereignty is protected by a limitation of Art 1 power.
Garcia + NY = C can directly regulate the states but cannot use the states
as an agent to implement federal regulatory policy
45
Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
• Ques: Can C make state officials implement fed policies? fed: this has always been
ok; state: this takes our resources away
o SCALIA: this isn’t a Category 2 case so we don’t care about temp burden on state
or great interest of fed (process = text of statute & const’n; early C & framers
intent; Structure that Const’n set up; Prior judicial precedence)
Historically – ok for feds to make state judges do exec duties
• why not let feds make state execs do exec duties as well?
o state judges are diff b/c they always were meant to enforce state law
• history does not resolve this
• dual sovereignty of Const’n structure …
o TESTA: only means state judges must enforce fed law; not that fed
can command state exec to execute fed policy
Policy b/h saying feds cannot command state to do this
• people who register might think it’s a state policy and not know where to
complain – state officials will be blamed
• interference w/ nat’l electorate – C gets the rule they want w/o having to
pay for it
Separation of Powers
• Pres should enforce nat’l laws – not C; C is diminishing the scope of the
exec power BUT pres wanted this?
o O’CONNOR (CONCUR) – wants a balancing test (burden of state vs. interest of
fed)
suggested that state officials could be required to perform certain information
reporting functions (such as reporting missing kids identity to fed gov’t)
o THOMAS: look to 2nd Amendment – right to bear arms
o SOUTER, Stevens, Breyer and Ginsburg DISSENT
o STEVENS: this would not confuse the electorate state officials would TELL
locals it was a nat’l policy NOT a state policy. TESTA means that state must
enforce fed law, no matter how crowded the state dockets are (more commanding)
• Ct has a problem w/ provisions under which the fed gov’t compels states to take
certain steps BUT C can condition funds to reach this end b/c gives states a choice
• 11th Amendment KEY is that it can be used to address federalism issues
o 11th = state cannot be sued unless it consents
o C can abrogate some of this immunity under 14th Amdmt §5
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
this is not part of gen app scheme! and is directed specifically at the states basic
exercise of sovereignty – fed gov’t may NOT use such coercion
o Regulation of States as Actors
BUT – if state chooses to conduct certain activities themselves, C may reg
how they dos so w/o being deemed as “commandeering” state processes. If
states maintain info identifying drivers and choose to sell info, there is no 10th
Amdmt problem when C attempts to reg how states make such sales. C is not
req states to reg their own citizens, but is instead reg the state as a comm.
actor (Reno v Condon)
47
Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
Discriminatory Challenger wants to be HERE
48
Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
State Police Power Laws – even if they burden IC – are NOT
BARRED by DCC – but, if the state attempts to regulate
commerce w/o its police power – that is barred!
Areas like inspection laws, quarantine laws, health laws, and laws
regulating internal commerce of a state ARE FOR STATES
ii) Wilson v. Black Bird Creek Marsh Co. (1829): Looks at State’s Purpose
(Marshall)
Applies the purpose test – if the law is for Health and Safety, it’s ok, but if
it’s for economic, that’s NOT ok
DE authorized a dam that impeded navigation on the river, D broke dam
and defended using DCC
CT – no conflict b/w the state dam and CC b/c this is a police power law
valid
DE’s purpose was not to regulate IC, but to improve Health and
Safety of its citizens (and no actual conflict b/w DE law and
Congressional law)
Law was NOT discriminatory since all vessels (both in-stated and
out-of-state are barred)
49
Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
The Modern Balancing Approach (burden vs. local benefit)
PIKE TEST: (burden is on the challenger to prove…)
Law is valid if it has a legitimate (meaning non-economic) purpose AND
only incidentally burdens InterstateC
Unless the burden is clearly excessive in relation to the local benefits,
the law will be upheld
Also looks for alternative, less burdensome means
HUNT TEST: (burden is on the state to prove…)
WHEN THE LAW IS DISCRIMINATORY, the state must show
(1) Statute has a legitimate (non-economic) purpose
If the statute is discriminatory and has an economic purpose, it is
virtually per se invalid (Philadephia v. NJ)
If statute has H&S purpose, go to #2
(2) Purpose couldn’t be served equally well by less or non-
discriminatory means
Maine v. Taylor (don’t have to invent new technology)
If no non-discriminatory alternatives, then the discriminatory law
is VALID
RECIPROCITY AGREEMENTS: Court equates these to low level trade
war/tariffs
Condemns them in A&P v. Cottrell and in Granholm v. Heald
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
b) Henneford v. Silas Mason (1937) – State law is VALID
Law: WA imposed sales tax on goods sold in the state and a “use tax” on
goods purchased outside WA in states w/o a sales tax or w/ a lower sales tax
than WA’s
Use tax appears discriminatory b/c only applies to out of state goods
BUT, this law was upheld b/c it was an attempt to equalize tax burdens by
taxing equivalent goods in the same manner – so only burdensome
If WA had imposed a use tax (and no sales tax) or a higher use tax – it
would be invalid
Distinguish f/ Baldwin v. Seelig: WA only took away one aspect of price
competition – still allows some competition
Baldwin: NY trying to regulate outside its borders (VT can sell milk in
NY only at NY price)
Here: other states can sell at whatever price they want, but once the good
reaches WA, a use tax will be applied
c) Milk Control Board v. Eisebberg Farm Products (1939) – State law is VALID
Law: milk producers in PA must sell milk at or above a minimum price
Analysis:
Purpose: Economic: Trying to raise price of milk H&S?: keep farmers
in business to ensure adequate supply of milk and keep farmers f/
cutting safety corners
Burden: PA local buyers and milk exporters
Distinguish f/ Baldwin: B wanted to bring milk into NY, here E wants to
take PA milk to NY
Unlike B, burdens are on PA and not OOS (very few exporters of PA
milk) political process provides a check
B: no one can buy milk f/ anywhere and sell in NY w/o buying at
min. price
Benefits in-state milk (forces out cheaper milk); burden: OOS
milk (tarrif!)
Here: PA is preserving interstate competition
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
A state cannot prevent privately owned articles of trade f/ being shipped and
soled in InterstateC on the ground that they are req’d to satisfy local demands
or b/c they are needed by the people of the state
52
Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
Only wants CT to intervene if law is disc; Scalia HATES balancing tests
No multiple or inconsistent burdens here b/c firms only incorporate in one
state
53
Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
LP: if we shift focus to who owns the trucks, may be able to say this is
discriminatory!
54
Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
Here, the burden becomes substantial b/c other states didn’t require
contoured mudflaps and one state barred their use
55
Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
g) Philadelphia v. NJ (DISSENT): valid H&S purpose b/c keeping excess waste f/
NJ (equates to quarantine laws)
Waste seeps into ground water, attracts rodents and birds, and sometimes
catches on fire
h) MN v. Clover Leaf Creamery – State law is VALID (this case is still good law
today)
Law: prohibited use of plastic, non-returnable containers for milk but allowed
non-returnable containers made of pulpwood
Stated purpose: plastic presents a solid waste management problem, promotes
more energy waste, and depletes natural resources
No plastic manufactured in MN, the big industry is pulpwood; looks disc
when look at raw material
CT – looks to retail
NOT DISC – political checks will protect the plastic industry (many
companies in MN that use plastic to make these bottles and whose plants
are set up to use these containers)
All milk sellers must use same packaging (IS and OOS) and burdens are
minor
APPLIES PIKE:
Legit state interest outweighs burdens on IC and the alternatives
are not as effective
Regulates evenhandedly OOS and IS – distinguished based on
container not OOS vs IS, so no disc AND the state’s environmental
arguments outweigh the burdens on IC
We can manipulate how we come out by looking in a different area
(i.e. look at retail vs. raw material!!!)
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
LP says that denial of depot is a direct restriction on the amt of milk
Hood could purchase in NY and sell in another state attempts to
destroy competition by limiting amt Hood can take
Purpose: seems to be – by reducing milk sold to depots that service
NY, increase unit cost to NY (b/c fixed cost remains same)
State CANNOT restrict IC to advance its own commercial interests
Economic purpose is virtually per se invalid
DISSENT: belongs in category 4 Disc w/ H&S Purpose
Another depot would divert milk away f/ Trenton, NY b/c shipping that
milk to Boston not enough milk for NY
Valid exercise of police power
Says we can’t assume that this is applied disc; if a different guy
wanted this depot to service NYC and was not allowed, then we could
say it was disc!
Language of the statute not disc – AND doesn’t appear to be disc
practically
ATTACKS THE AUTOMATIC PRESUMPTION THAT AN
ECONOMIC PURPOSE IS BAD AND H&S IS GOOD!
BUT, the CT has consistently seen a big difference b/w the two
economic purpose is less important and harder for state to win on
whereas H&S is more important and easier for the state to win on
57
Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
Purpose? NJ said H&S (arguably for lower costs though)
Any less disc means?
Could regulate evenhandedly the waste for everyone regardless of
OOS vs IS
SO, CT could have invalidated under HUNT as well…
DISSENT: (Rehnquist)
Law is valid b/c H&S b/c keeping excess waste f/ NJ – equates to
quarantine laws
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
This law is burdensome – it creates a monopoly; but no discrimination b/c
it burdens IT and OOT
Shouldn’t second guess the legislature
This isn’t TOO burdensome b/c waste disposal is a traditionally
government function
ALSO, this burdens IT residents as well as OOT
Only benefits the municipality! NOT A PRIVATE ACTOR!
Wants to see an OOT/OOS harm; Dissent says there isn’t one
Doesn’t look like a protectionist measure – since burdening IT
generators and processors; actually hurting IT economy – also,
vicarious political protection for OOS b/c IS is burdened and won’t let
that burden be too large
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
get lots of subsidies b/c other political actors would claim they are
being disfavored.
DISSENT: (Rehnquist)
Don’t extend the sin of the DCC – only invalidate a law if it looks like
something we have invalidated before
What about MARKET PARTICIPANT exception to DCC?
Normally businesses don’t give their $ away
When MA gives $ away they get it back through cheaper milk (also
benefits other states b/ can buy MA milk for cheaper)
MA citizens are burdened too b/c have to pay for the subsidy through
taxes
60
Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
Law: LA prohibited door to door solicitation (opt-in provision) applied to TX
crew selling mags for a PA corp
o may have been discriminatory against InterC
burden: no InterC or out of state door-to-door sales w/o opt-in
• may be easier for IS to get the opt-in
• ALSO this benefits those who sell mags in stores, etc
(b/c if people aren’t getting these through the mail then
they are buying in store) – benefits local economy
o treating local LA retailers diff from PA corp (by
cutting down public’s options)
• HOWEVER – only eliminates one form of solicitation
can still advertise through mail; internet; newspaper;
the actual mag
may be evenhanded b/c affects LA and OOS peddlers the
same
o upheld b/c purpose was to protect rights of homeowners privacy rights
not to provide an economic advantage to instate businesses
and applied to all peddlers not just out of state ones
• BUT – what if there are no LA peddlers…
Can be viewed as:
o burden: no InterC or out of state crews
o benefit: help local merchants – protect privacy
d) Great Atlantic and Pacific Tea v. Cottrell (MS) (1976) – State law is INVALID
Law: reciprocity agreement otherwise cant sell milk in MS
LA didn’t signed the recip agreement b/c MS standards were really low, so
even though met those standards LA milk was barred
Stated Purpose: H&S – ensure healthy milk in MS
o CT – NO: MS would let any grade of milk in if LA signed the
agreement
possible purpose: protect dairy industry – if import a lot want
to make sure can export a lot that way all the MS Milk
produced can be sold; burdens fall ONLY on OOS b/c only
ones limited in selling their milk
o not facially disc – but disc in effect (keeps out healthy LA milk)
o CT finds less disc alternative inspect LA and charge them for it
Recip promotes isolation! doesn’t promote free mkt – cant force another state
to take your goods
o MS said: (1) promotes free trade by eliminating barriers (insuring
recip) CT: MS is using recip as a threat – if MS thought LA disc
against their milk should have sued under DCC
o MS said: (2) H&S purpose; CT: rejects! MS doesn’t care about quality
o MS said: (3) enables MS to assure itself that the recip HS are the
substantial equiv of MS’s; CT: what? we cant see the connection and
in order to get that you should just inspect LA’s milk and charge them
for it
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
PIKE TEST application
o where regulates evenhandedly and its effects on InterC are incidental –
upheld unless the burden imposed on InterC is excessive in relation to
the local benefits
o here CT said the law disserved the stated purpose so burden on InterC
is clearly excessive in comparison to the non-existent local benefit
o no means-ends fit
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
f) ME v. Taylor (1986) – State law is VALID
Law: prohibits importation of live minnows (Fed Law, Lacey Act, makes it a
fed crime to transport animals/wildlife in violation of state law)
Congress CAN authorize states to do things that are in violation of the DCC!
o State claims that C’s Lacey Act allows disc here (for InterC)
o If C speaks CLEARLY then can be true; but C did not speak clearly
here – no clear intent to allow state to do this – so we say C did not
allow it
CT – this is disc on its face & seems to be economic purpose (virtual per se
invalidity)
o Phil v NJ per se rule is not applied here is it still alive and
working? yes not applied here b/c purpose is H&S not economic
protectionism
when law is disc on face and points to economic protection
we have two lines of attack 1st Hunt & 2nd Phil v NJ
o CT finds that the H&S purpose outweighs the burden!
(parasites, disrupt ecosystem, impossible to find the non-native
species or the parasites; ME waters are unusually fragile)
not a true economic purpose SO didn’t apply Phil v NJ
but what about fact that fish can swim in? CT says that even
though doesn’t address every point of the problem, the reg can
still have a H&S purpose – law doesn’t have to be perfect
o HUNT test applied Legit Purpose (H&S) + no less disc alternatives
(means ends fit)
if there is a health problem OOS but not IS – reasonable disc is
okay (but see Baldwin – if problem IS and OOS then disc is
not okay)
DISSENT – we should defer to lower ct findings and only overrule when
clearly erroneous; AC saw economic protectionism
o doesn’t appear Hunt really applied here b/c MAJ doesn’t force State to
PROVE that there are no less disc measures
o State should have to prove (1) the parasites ACTUALLY harm
Maine’s fish and (2) the non-disc alternatives aren’t yet available (here
the challenger suggested developing a test to find parasites on the fish
(right now can only do this by killing the fish))
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
could increase tourism b/c can only use the natural minnows if
in OK
MAJ (HUNT test - Brennan)
o disc b/c minnows can only be used in OK (hoarding a natural resource)
and no means-end fit b/c if really trying to conserve supply would
limit the # of minnows that can be harvested (by IS and OOS) as it
stands IS can harvest as many as want
conservation of natural resource is a valid purpose BUT there
are better means
could be economic purpose since conservation not achieved
• and forces OOS to buy minnows from the hatchery
DISSENT (PIKE test – Rehnquist)
o not disc b/c no one can export natural minnows (not OOS or IS), not
even really burdensome b/c can buy minnows from hatcheries– so
applies PIKE and says law wins
o maybe OK citizens are the ones wanting to export and this applies to
them as well
LP this is disc w/ H&S purpose
WE CAN MANIPULATE DISC EFFECT BY CHOOSING WHERE WE
LOOK
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
station v. franchise) – stated purpose was to maintain competition in gas
retailing
Not facially discriminatory – and not disc in effect b/c all gas will still
come f/ OOS law just shifted who sells it to customer
MAJORITY:
Focused on flow of gas into the state (not on the fact that the law bars
these retailers)
If Exxon loses its stations it will ship (or some other OOS guy)
will ship gas into MD
Nondisc. in retail? MAJ: 1.5% of IS is divested and 1% of OOS is
protected (not complete discrimination – but still appears pretty
biased)
o CT claims that even though refiners are burdened it is not
disc b/c no resulting advantage for IS retailers over OOS
(non-refiner) retailers
Relied on: didn’t prohibit flow of IC, place added
cost on them, or distinguish b/w IS and OOS
companies in the retail market
o CC was not designed to protect the structure or method of
operations in retail mkt; the fact that the burden falls on
some Interstate competition does not by itself = disc against
IC
DISSENT: (this fits in category 4 (disc + H&S) – Blackmun) – focused on the
retail gas situation LAPIERRE LIKES THIS
o This is a HUNT case (disc = disc even if only against one
state) b/c disc does not knock out ALL OOS competition,
however MD disadvantages the “strongest OOS” in favor
of IS
No need for 100% disc for law to be disc
Approx. 98.5% of the burden is on OOS and 99% of benefit is on
IS! There is at least one less disc alternative… invalid b/c disc w/
respect to retailers
IF however, there was production w/in the state then no disc b/c
there would be a POLITICAL CHECK
Dissent is the state of the law TODAY
o CC purpose is to prevent self-interest when the local
political system is unresponsive to problems felt by non-
constituents
LP’s explanation: Other states may have production w/in the state
so the MAJ realized that MD is an exception and doesn’t want to
deny MD this when other states can do it
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
Challenger: combo truckers travel less intrastate than pure intrastate trucks,
making the cost per mile discriminatory
CT: law is not disc on its face or in effect – its evenhanded
Found no significant practical burden on IC
No less burdensome means changing the cost structure to $/mile is too
difficult on state and not free of burdens on IC
Plus there was a 72 hour intrastate permit you could get for $10
Challenger failed to prove burden on IC (it was his burden b/c of PIKE
test)
MEASURE NEITHER BURDENS IC NOR DISC – so valid!
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
o Facial invalidation/validation is a much more
comprehensive tool
DISSENT: (Thomas) takes us to CC (VALID UNDER CC)
o He doesn’t see the law as valid under SP, but
wants it to be under CC
Not valid under SP b/c no real fit b/w
means/ends; Thomas wants more than a
rational relationship; he wants a tight fit
• Quotes McCulloch’s pretext
reservation
o Under CC, look to Perez
C has the power to reach a local activity
that does not affect IC b/c of its
undoubted power to reach a local
activity that does affect IC (when you
cannot distinguish b/w the two) f/
Perez, Raich and Baby Lopez)
Use N&P as a means of making
effective its undoubted CC power
When the state acts as a market participant, spending $ to run a proprietary enterprise
or to subsidize private business, DCC analysis will NOT BE APPLIED and STATE
MAY FAVOR LOCAL CITIZENS OVER OOS ECONOMIC INTERESTS
Mkt regulator sovereign capacity of regulating what others can do in their
K relations
Mkt participant = state is a party to a K and makes business decisions for
itself
o Must ask if state is really ever a mkt participant (trying to max tax
revenue by increasing local business) – in the private sector
business don’t care where their products go as long as they make
$$)
Applies to the state as a buyer/seller
o Rationale: if gov’t is MP they can make the same decisions a
private company can – as to who to buy f/, sell to, etc. – and
private decisions concerning this are not subject to DCC so
government decisions concerning this are not subject to DCC
either
NOTE: NO MP Exception if state is attempting to affect parties b/w those
w/ whom it is contacting (not a MP if it tries to control the terms of K to
which it is not a party)
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stringent requirements in MD AND other states had more stringent req
(like VA)
effect decreased the amt of MD scrap cars crossing over to
other states (like VA)
o Lower Court – applied PIKE and said goal of cleaning streets was legit but
there was a less burdensome way (just show that it was a MD car + picked
up in state of MD)
o SC MP immunity b/c state is BUYER of cars here; so ok that uses
lower req for IS than OSS (when state is a MP it can discriminate if it
wants)
State owned cement plant refused to sell to OOS until all IS demand was
met
CT: MP immunity b/c state is SELLER of cement
HOWEVER – it really appears that legis is trying to ensure an adequate
supply of cement for state – doesn’t look like acting as a market
participant…
o think about whether the actions are due to reg goals OR private co
goals does this different motivation move the gov’t out of MP
and back to MR?
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
state wasn’t acting like a MP so law was invalidated using
DCC analysis (Phil v NJ)
Ct pointed out 3 impt differences from Reeves
o (1) Raw resource vs. processed goods
o (2) Alaska had broader effect: this reg has effects b/y the particular
mkt, in effect the state was engaging in downstream reg
o (3) foreign commerce: the timber is exported to foreign countries,
thereby economically affecting them as well
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
8) PRIVILEGES & IMMUNITIES CLAUSE
Overview
• Article IV: §2 (not the 14th Amdmt): “The citizens of each state shall be entitled to all
P&I of citizens in the several states” State cannot deny OOS the P&I it gives to its
own citizens in matters of FR and impt economic activities
• only protects individuals (not corporations) – few cases here b/c DCC covers most of
the area
o plaintiff party must be a citizen and an indiv to get P&I protection (LP)
o diff b/w P&I & DCC: P&I only used if law is disc against OOS, DCC applies to nondisc
laws as well; corps cant sue under P&I can under DCC; no consent or MP exception to
P&I
• Primary Purpose: fuse states into a nation and ensure State A citizen who ventures
into State B has the same P&I that the citizens of State B enjoy (thwart
discrimination)
o P&I = interests that are fundamental to the promotion interstate harmony or
to the maintenance and well-being of the nation
• BLACKMUN – when OOS exercise a fundamental right (“FR”)
o right to pursue an occupation
to compete for jobs (Hicklin), practice law (Piper), commercial shrimping
(Toomer)
o right to own/dispose of property in the state
o right to access state cts
o right to come into the state to exercise a FR
• BRENNAN: Law is valid if…
o state has substantial reason for treating OOS differently from IS (other than
residence)
o discrim is substantially related to achieving the state’s goals
• PIPER (final test)
o is it fundamental?
o what is the nature of the act?
substantial reasons for treating OOS differently from IS
disc bears a substantial relation to the end
o availability of less restrictive means? (less disc)
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
• Test (1) is this a FR? (2) whether there is a substantial independent reason to
distinguish b/w OOS and IS (b/y mere fact of residency) & (3) whether the degree of
disc bears a close relationship w/ this reason
o no substantial reason for the disc (maybe if OOS drove bigger boats or used a
different fishing method); and less restrictive alternative charge more for
bigger boats
• FR = ability to earn a living
United Building & Construction Council v Mayor of Camden – Remanded for sub
reason
• 40% of ees on publicly-funded construction job must be Camden residents
• State argues (purpose: redress extreme economic depression)
o P&I only applies to states, not cities
CT: no – cities get their power through states so applies to cities too
o Disc based on city residence doesn’t matter
city classifications aren’t under P&I, just state
CT: it only follows that if don’t live w/in state then you don’t live w/in this city
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• this produces the adverse OOS effect
o CT: there no political protection for OOS
IS who isn’t Camden-resident is just as screwed as the OOS but the IS can
make similar laws to protect their city (has political protection – can also go to
state legis and say make Camden stop this nonsense)
• P&I applies even though some IS are disadvantaged as well
• There is no FR to gov’t employment
• OUTCOME: law impinged on FR of employment BUT remanded to determine
whether there was a substantial reason for the differential treatment
• MAJ (Rehnquist) – there is no real political check so need a judicial check
o b/c all parts of the state are enacting laws like this making each area w/in state
happy so no one complains and OOS is not protected
o FR right b/c limiting employment and finding an occupation in the private sector
is a FR
but if this was working for gov’t specifically/directly it would not be a FR b/c
no FR to public employment – Ct making a distinction b/w working for private
er on project funded by gov’t and pure gov’t employment
• DISSENT (Blackmun): no discrim b/c OOS have political protection – OOS can rely
on the in-state vote of the Non-Camden residents to vote out the bad law
o there is a political check – so don’t need a judicial check
IS and OOS are both burdened so OOS has vicarious protection
• NOTE: P&I applies even though there is a MP exception to DCC here
o MP doesn’t apply for P&I b/c under DCC when gov’t acts as a MP the concern
about distribution of reg power is stifled b/c gov’t is not acting as a regulator (so
concern is moot); however, concern of P&I is the issue of harmony/agreement
b/w the states as well as the indiv rights of citizens so acting as a MP does not
make this concern moot.
o P&I bars any type of state conduct, reg or otherwise, that disc against OOS on FR
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CT: pro bono is only to curry favor for others AND can req that OOS do this
w/o banning them from NH
• DISSENT (Rehnquist – agreed earning living is FR)
o disagreed on the disc test
State has interest in max the pool of lawyers the state can choose legislators
from
Here the CT is taking the place of the legis
Overview
• 2 ways to go after state law (1) DCC challenge (2) Preemption challenge
• Ct begins analysis w/ a presumption that state law is not preempted
• Congress can exclude state reg in a certain area by:
o (1) express savings clause facial non-preemption (and/or an expression that its
not meant to preclude states from regulating the area)
o (2) express preemption decision facial preemption, “all certain types of state
laws are pre-empted” – expressly tells us what state laws are preempted by the
Act or where C expressly tells us what area/field it intends to wholly regulate
o (3) implied preemption decision
(a) C intends to occupy the field
• preemption if comprehensive fed standards and state supplements but not if
minimal fed standards and state supplements
• fed reg is so predominate that it is assumed to preclude state laws on same
subject
• the purpose of the fed law & character of oblig under it may reveal that it
intended to reg the entire field (no state laws!)
• Factors of Field Preemption:
o (1) Is it an area where fed gov’t traditionally has played a unique role?
o (2) Has C expressed an intent in text or legis history of law to have it be
exclusive in an area?
o (3) Would allowing state/local reg in the area risk interfering w/
comprehensive fed reg efforts?
o (4) Is there an impt state/local interests served by the law?
(b) Conflict b/w state and fed law
• cannot follow the rules simultaneously; fed law wins (supremacy clause)
(c) State Law impedes achievement of fed objectives
• even if fed law doesn’t dominate field – preemption can still be found if CT
concludes that state law interferes w/ fed goal (if an obstacle to the
accomplishment and execution of the full purpose/obj of C)
o turns on how Ct characterizes the fed purpose
o if wants to uphold state law – define fed purpose narrowly
• Consent C can authorize states to violate DCC, etc. Feds can consent to let states
do something unconst’n
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o C’s violation of Const’n must be clear and gross in order for consent power to be
declared invalid
• FYI:
o C can preempt under all enumerated powers
o Ct likes to decided preemption b/f DCC
economic actors have an interest in saying a law is preempted b/c they only
want to be regulated by one rule
o Determination under this is VERY VERY fact specific
o Rehnquist Ct tended to favor nat’l power – so lots of preemption
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry
states aren’t actually concerned w/ $$ but w/ safety
• CT – no, its $$
state law conflicts w/ fed decisions
• i.e. Fed said that nuclear waste was disposed of safely already
• CT – as long as CA is not regulating safety its okay PLUS can follow both
rules simultaneously Fed law does not REQ the building of plants
state law frustrates fed goal of having nuclear energy
• CT – state can prevent plants from opening – they have power to determine
what is profitable
o the Fed Law let states keep their traditional role (setting price, evaluating
costs, etc)
• fed objective = promote nuclear energy ONLY when economically feasible
• Sidenote: CT is esp likely to find a conflict when a state takes an action that affects
foreign policy – the CT Is quick to conclude that a state reg that seems intended to
influence other nation’s conflicts w/ fed foreign policy
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Constitutional Law I Outline – (Professor LaPierre) – Andrea Perry