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CONSTITUTIONAL LAW: STRUCTURES OF GOVERNMENT

Federal Legislative Power: The Commerce Power

A. Article I sec. 8 provides that: “The Congress shall have the power…[t]o regulate Commerce

with foreign Nations, and among the several States, and with the Indian Tribes…”

B. Initial Era of the Commerce Clause

1. Gibbons v. Ogden (1824) p. 159

Marshall’s opinion establishes a broad definition of commerce, which clearly

includes navigation

Marshall also concludes that “among the several states” means intermingled with

the states and may move beyond the state boundaries

Congress’ ability to regulate does not stop at external boundary of each state

o But internal commerce is reserved for the state itself

Regulation “prescribes the rule by which commerce is to be governed.”

State sovereignty does not provide a constraint on federal power according to

Marshall

Political process is the appropriate check on Congress’ exercise of power, not the

Court

Knitting example: if you affect the market in any way you can be regulated as part

of interstate commerce

C. The 1890s-1937: A Limited Federal Commerce Power, p. 162

During this period, the Court espoused a notion of “dual federalism” meaning that

there were separate zones of authority for the states and the feds

More important, the Court narrowly defined commerce, restrictively defined

“among the states,” and concluded that the 10th Amendment reserved a zone of

activities to the states, all of which served to limit Congressional power.

o e.g. separate definition of manufacture and commerce

However, in The Lottery Case and Caminetti, the Court interpreted the power to

regulate as the power to prohibit items that pass in ISC

The Court was not consistent in the application of a commerce clause test but its

approach may have been affected by its commitment to the importance of states’

rights under the 10th Amendment, by its embrace of laissez-faire economic

principles, and its support for the freedom to contract. See Hammer v. Dagenhart

(the Child Labor cases)p. 163 for an example of the coalescence of these factors.

Knitting example: if manufactured knitted goods, not interstate commerce unless

they are shipped out of state

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RR began to affect; instrument of both inter and intrastate commerce = could be

regulated by Congress, even as far as wholly intrastate operations go

D. During the 1930s Depression era, the federal government assumed greater responsibility than

ever before to provide for citizen welfare; the result was the enactment of “New Deal” legislation

and, ultimately, the creation of a broad regulatory state. President Roosevelt, frustrated by the

Court’s invalidation of Congressional action proposed an increase in the number of Justices on the

Court, the so-called “Court-packing” plan. Congress refused to cooperate; however, retirements

on the Court created vacancies for FDR to fill.

E. 1937-1990s: Broad Federal Commerce Power

Beginning in 1937, the Court overruled prior decisions in the commerce clause area

and expanded Congressional power

o Hammer v. Dagenhart: The Act prohibited the shipment of goods in

interstate commerce produced in factories employing children. The father

of two children sought an injunction against the enforcement of the Act on

the grounds that the law was unconstitutional.

Congress cannot use the commerce clause power to regulate

commerce in manufactured goods that were the product of child

labor; local concern

The mere fact that they are intended for in interstate transportation

does not make their production subject to federal control

Congress does not have the power to control the states in the

exercise of the police power over local trade and manufacture

o NLRB v. Jones & Laughlin Steel Corp

Congress has the power to regulate intrastate activities that

potentially could have a significant impact on interstate commerce

Jones & Laughlin failed to comply with an order to end the

discriminatory practices. The NLRB sought enforcement of its order

in the Court of Appeals. The Court of Appeals found the order was

outside of the range of federal power.

Jones & Laughlin does significant business outside of the state of

Pennsylvania. The majority of its products were sold outside of the

state. Owned the mines, quarries, boats, RR, storage, manufacturing,

fabricating, sales offices, etc. = vertically integrated company

Congress retains the power to control and regulate interstate

commerce. Although the employee discharges may be an intrastate

activity, the repercussions from such discharges have the potential

to significantly affect interstate commerce.

The Court realized that the social conditions were just too much;

was standing in the way of the country’s recovery

Wickard v. Filburn (1942) p. 175, further extended the reach of Congress by

concluding that Congress can regulate even local activity if it can rationally

conclude that such activity has a substantial effect on ISC.

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o Filburn (Appellee), produced wheat only for personal and local

consumption. He was penalized for growing wheat in excess of his

allotment allowed by the Department of Agriculture

o Under a “cumulative effect” doctrine (or sometimes called the

“aggregation” principle, the Court sanctioned the application of the

Agricultural Adjustment Act to wheat grown by a farmer for home use and

consumption. Although though one farmer’s wheat had only a slight effect

on ISC, the “cumulative effect” of his wheat in combination with the others

similarly situated had a substantial effect on ISC.

o In some ways is the greatest exercise of the commerce power recognized by

the US Supreme Court; essentially saying Congress can compel a person to

purchase wheat when the individual could grow it for personal consumption

Between 1937 and 1995, not one federal law was invalidated based on Congress’s

exceeding its power under the Commerce Clause. Rather, Congress could regulate

any activity that had a substantial effect on ISC.

The Court no longer distinguished between commerce and other stages of business

such as mining, manufacturing, and production.

The Court no longer differentiated between direct and indirect effects on ISC.

The Court no longer viewed the 10th Amendment as a limit on Congressional

power.

4. In examining the 1964 Civil Rights Act, the Court in Heart of Atlanta Motel, p. 178, introduced

a standard of review that was deferential toward Congressional action.

Hotel that refused accommodations to blacks

The Court viewed its role as determining:

Whether Congress had a rational basis for concluding that the activity in question

(such as racial discrimination by motels) had a substantial effect

on ISC; and

If it had such a basis, whether the means it selected to eliminate that evil (the

statutory scheme) are reasonable and appropriate.

5. Policy Question: Is a broad definition of the commerce power desirable? Balancing the needs

of “the modern era” against the core principles of constitutional law that limit the powers of the

federal government with most authority residing with the states

It depends on what the desired outcome is

Do we want Congress to be able to use the commerce clause to protect public

health, morals, or welfare?

As the US grows and becomes ever more intertangled, ISC will takeover intrastate

commerce; is there even intrastate commerce anymore?

As technology continues to advance, we may need a broad commerce power to

keep that in check

F. The 10th Amendment between 1937 and 1990

1. The Court’s vision of the role of the 10th Amendment has vacillated over time between

viewing:

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The 10th Amendment as a mere reminder that Congress has only its enumerated

powers to legislate under Art. 1; and

The 10th Amendment as independently protecting state sovereignty from federal

intrusion (Hornbook, pp. 312-313)

2. There is an underlying issue: What should the Court’s role be in the protection of state

sovereignty and what should be left to the political process? (The Court addresses this

issue in the Garcia case below.)

3. In National League of Cities v. Usery (1976) p. 184, the Rehnquist-authored majority

opinion held that the minimum wage provisions of FLSA did not apply to state employees

because it was an interference with state decision making and a state’s ability “to structure

integral operations in areas of traditional government functions.”

Between 1976 and 1985, the Court chipped away at the Usery decision and finally

overruled it directly in Garcia v. SAMTA (1985) p. 185, because:

o (1) the “traditional or integral government function” test was unworkable

and

o (2) the political process was designed to protect state sovereignty, not the

Courts.

Please note that in Usery and Garcia, Congress was subjecting the state

governments to the same wage and hour laws that applied to private businesses and

entities.

4. The principled rationales typically used when the Court overruled precedent:

Earlier decision was wrongly decided—only rarely will the Court acknowledge this

directly

The law is unworkable—this is the basis for the Court’s decision in Garcia

The trend of state law no longer supports the earlier precedent— used more

frequently in the criminal procedure area to justify requiring counsel for indigent

defendants, eliminating the juvenile death penalty

An attempt to bring consistency to different doctrinal strands of the Court’s

jurisprudence—compare, for example, the different approaches the Court has taken

to the commerce clause with its approach to the spending power

A change in the composition of the Court’s membership prompts re-examination—

different commentators point to various decisions to support this theory thus

allowing you to make your own determination. (Sometimes offered as an

explanation when there seems to be no other principled basis for overruling

precedent.)

G. 1990s-present: Narrowing of the Commerce Power

1. Beginning in 1995, the Court for the first time in nearly 60 years, signaled its interest in

reviewing Congressional power under the Commerce Clause more critically.

The Gun-Free School Zones Act (the Act) of 1990 made possessing a gun within a

school zone a federal offense. A 12th grade student (Lopez) was convicted of

violating the Act when he brought a handgun to his high school.

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The power of Congress to regulate activities extends only to those activities that

“substantially affect” interstate commerce. The Act neither regulates commercial

activity, nor contains a requirement that the possession be connected in any way to

interstate commerce.

2. In U.S. v. Lopez (1995) p. 190, the court determined that Congress had exceeded its

commerce clause authority in enacting the Gun Free School Zones Act designed to prohibit

possession of guns in or near schools. According to the Court, there are three broad

categories of activity that Congress has the authority to regulate under the commerce

power:

Regulate the use of the channels of ISC (Heart of Atlanta Motel)

Regulate and protect the instrumentalities of ISC (Jones & Laughlin Steel Corp.

v. U.S. and the railroad cases)

Regulate those activities having a substantial relation to ISC

o In Lopez only this one applied but the gun law had no effect on ISC

- Under the government’s theories, the gun law imposed high financial costs upon

society through insurance and prevented individuals from traveling into areas where

violent crime occurs.

- MAJ rejects these arguments bc if accepted there would be no limits on federal power

3. Rationales for the decision:

No jurisdictional nexus to link weapons or individuals involved to ISC

Greater focus was placed on the idea of commercial regulation when Congress

legislates under the commerce clause.

Court clarifies that there must be a substantial effect on ISC to warrant

Congressional action.

Congress must do its homework and demonstrate the impact of the activity to be

regulated on ISC. According to the Court, merely because the Congress says there

is a substantial effect on ISC does not make it so.

This approach seems to represent a less deferential attitude by the Court toward

Congress in the judicial review process.

4. In its next major pronouncement on the post-modern commerce clause doctrine in U.S.

v. Morrison (2000), the Court struck down the civil damages portion of the VAWA .

- Morrison was sued under part of the Violence Against Women Act of 1994

(Act), which penalized crimes of violence motivated by gender. He allegedly

sexually assaulted a woman and she brought this suit against him and another

- He argues this section of the Act is beyond the scope of Congress’ power to

regulate commerce.

- Applying the three-prong test from Lopez, the US held that violence against

women does not substantially affect ISC.

- Defined the aggregate effects test (see Wickard) by noting that intrastate

activities must be considered in the aggregate only if the activities themselves

are economic in nature.

5. Rationales:

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Despite Congress’s attempt to show the cumulative impact of gender-motivated

violent assaults on ISC, the Court determined that Congress was attempting to

regulate non-economic activity traditionally left to state authority.

Court was disinclined generally to aggregate the effects of any noneconomic

activity.

Court specifically refused to sanction congressional regulation of “noneconomic,

violent criminal conduct based solely on that conducts aggregated effect on ISC.”

6. In Gonzales v. Raich (2005) p. 210, the Court as per Justice Stevens relied on the

“cumulative effect” doctrine set forth in Wickard to uphold the Congressional power and

the applicability of the CSA to the purely intrastate use of medical marijuana by individuals

acting in compliance with a state compassionate use statute.

While this activity may not have been commercial per se, Congressional regulation

is permissible if there is a determination that “the failure to regulate that class of

activity would undercut the regulation of the interstate market in that commodity.”

Scalia in his concurring opinion distinguishes between regulation of intrastate

economic activities with a substantial effect on ISC and those that may necessary

and proper as part of more general regulation of ISC.

G. The Effect of the 10th Amendment on Congress’s Authority

1. The Court takes the opportunity to again look at the relationship between the states and

the federal government (usually Congress) in a series of cases beginning in 1990. Please

note these cases were being decided more or less contemporaneously with the shift in the

Court’s commerce clause jurisprudence as represented in Lopez and Morrison.

2. Cooperative Federalism vs. Rotten Federalism:

The Court is uninterested in creating barriers to state-federal voluntary cooperative

arrangements to address public policy concerns. At the same time, the Court is

concerned about Congress’s compelling states to regulate because it blurs the lines

of political accountability between federal actors and state actors.

Countervailing argument may be that the state interests are already represented in

the national political process since we elect our Congress people to represent states

or particular districts within states.

3. In New York v. U.S. (1992) the Court examined the provisions of a federal law to regulate

the disposal of low level radioactive waste, which had been enacted at the behest of the

National Governor’s Association.

New York claims the statute is an impermissible violation of state sovereignty

The Court in an opinion by Justice O’Connor invalidated the portion of the act that

required states to “take title” to the waste generated if the state failed to provide for

disposal by a certain date.

o The only “choice” the states had were to accept liability or regulate

according to Congress’ instructions

o Congress couldn’t force the states to do either of these things separately, so

can’t force states to do them together

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Congress does not have the power to force states to implement regulations

This was an example of the feds impermissibly commandeering the states the states

and forcing the states “to do it our way.”

The Court attempted to differentiate between encouragement (the “carrot”) which

is compatible with the constitution and coercion (the “stick”) which is

constitutionally suspect.

There were major public health concerns but it was Congress’ job to make those

rules; the importance of that interest does not overcome concerns of federalism

Court worried about accountability: don’t want Congress to pass the buck to state

legislators; false choice

Garcia is a more gen application that applies to ALL business including the states

(looking at them as businesses)

4. A few years later, the Court in Printz v. U.S. (1997) p. 230, struck down portions of the

Brady Act –gun control legislation—that commanded state and local officials to conduct

background checks on individuals prior to their purchasing hand guns.

The Court determined that its prior decisions did not permit the federal government

to “compel the states to implement, by legislation or executive action, federal

regulatory programs.”

Congress cannot use state executive to carry out federal policy on a temporary basis

o State executive power was being coopted

This was an example of the feds impermissibly requiring the states “to do its

bidding.”

Should have conditioned the grant of federal funding on compliance

5. Other 10th Amendment issues:

Gregory v. Ashcroft (1991) p. 220: In addressing a state statute that required judges

to retire at age 70, the court held that the federal age discrimination in employment

act was inapplicable because Congress had not clearly stated the intent to apply the

act to states when the federal legislation was enacted.

Reno v. Condon (2000) p. 238: Congress passes the statute establishing penalties

for disclosure or resale of personal information contained in state motor vehicle

records. These penalties apply to individuals and state agencies.

o Data being sold is within ISC

o Doesn’t require states to enact any laws or assist in enforcement (cf Printz)

o Congress’s restriction on the release of personal driver’s license

information was a valid exercise of its power event though it imposed

requirements on the states in the management of their relevant databases.

The other option was federal pre-emption entirely.

Test for whether within ISC:

- Is it regulating the individuals or threatening the states sovereignty under the 10th

Amendment?

- Is it compelling the state not to do something?

- Is it any different than Morrison?

- Do you need N&P to bring it within the commerce clause power?

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The Taxing and Spending Powers of Congress

A. Congress has expansive authority to tax and spend for the general welfare and is not limited to

taxing and spending only to carry out its other specifically enumerated Article I powers.

Madison advocated a narrow interpretation of the Congress’ tax and spend powers

while Hamilton argued for a broad interpretation

1. The Court decided in U.S. v Butler (1936) p. 241, to adopt the Hamiltonian position.

May the taxing and spending powers be used to purchase/force compliance with

federal goals in an area of concern (crop production) reserved to the states?

The taxing and spending powers must be linked to the general welfare and cannot

violate another constitutional provision.

2. The Court usually defers to Congress’ determination about whether taxing and spending

advances the general welfare.

3. At an earlier point, the Court invalidated taxes that seemed to be used for regulatory

purposes rather than revenue-generating purposes. The Court remains concerned about

taxes that are punitive in nature, but seems willing to accept the validity of taxing measures

that appear to be designed to produce revenue.

4. In South Dakota v. Dole (1987), p. 248, the Court upheld Congressional authority to

withhold a portion of federal highway funds from states that did not enact legislation

establishing age 21 as the minimum age for alcohol purchase and public consumption. In

Dole, the Court reaffirmed a four-part test to review the legitimacy of the Congressional

spending power:

The spending must be for a general welfare purpose

Any conditions imposed must be unambiguous

These conditions must be related to the federal interest in particular national

projects or programs

It must not infringe upon another constitutional provision

(no coercion)

5. Some scholars have observed that there really is a fifth prong of sorts because the Court

is also concerned about impermissible “coercion” vs. appropriate “encouragement” if states

are prompted to act in a particular way.

In NFIB v. Sebelius (2012) p. 129, the Court determines that the Medicaid

expansion of the PPACA exceeds Congress’ authority under the Spending Clause.

Roberts states that the financial inducement chosen by Congress and wielded

against the states in NFIB is coercion and not encouragement; he characterizes it as

a “gun to the head” and is a form of “economic dragooning.” pp. 137-38.

6. The dissenting opinions in Dole:

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Brennan viewed the 21st Amendment that repealed prohibition and arguably gave

states the authority to regulate alcohol as a bar to Congressional action in this area.

O’Connor challenged the majority on the “relatedness” prong of the test. She

indicated that minimum drinking age was not sufficiently related to the expressed

goal of reducing drunk driving related highway injuries and fatalities.

7. The Court’s recent pronouncement on the spending power in a case that involved a

federal criminal bribery statute concluded that no “jurisdictional hook” was needed to

directly connect the federal funds to the alleged bribe made to defendant. Sabri v. U.S.

(2004), p. 249. This represents another example of a generous nod toward Congress’

authority to determine the scope of its spending authority.

Congressional Power under the Reconstruction Era Amendments

A. Under the three Reconstruction era Amendments (13th, 14th, and 15th) Congress was given

power to enforce these Amendments by enacting appropriate civil rights legislation. Chemerinsky

(hornbook, p. 299) indicates there are two primary questions:

1. First, may Congress regulate private conduct under this authority or is it limited

to regulating only government action?

In the Civil Rights Cases (1883) p. 251, the Court decided that Congressional power

to regulate private behavior was limited. The Court invalidated these laws that

prohibited racial discrimination by private entities that were places of public

accommodation such as hotels, restaurants, and transportation. (Note: More than

80 years later, Congress used its commerce clause power to pass the Civil Rights

Act of 1964, which accomplished some of the same goals as the 1875 legislation.)

In the latter part of the 20th Century, the Court finally concluded that the 13th

Amendment grants Congress the authority to prohibit racial discrimination and to

eliminate the “badges and incidents” of slavery. The extent of this Congressional

authority is somewhat unclear.

However, Congress cannot use its 14th Amendment sec. 5 powers to regulate

private conduct.

o In U.S. v. Morrison (2000) p. 253, the Court struck down the civil damages

provision of the VAWA, which was directed toward individuals who had

committed criminal acts of gender-motivated violence.

MAJ: 14th amend does not reach private conduct, only reaches state

actions

civil remedies provision does not reach state actors or state conduct,

only individuals who have committed criminal acts

so a botched prosecution it sucks to be you, but this was not a state

actor

She was saying state action is implicated bc the state actor

dropped the ball

MAJ says that is not what Congress' powers are meant to do

under sec 5

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o

2. Second, what is the scope of Congress’ power? Can it use the power to interpret the

Constitution and even overrule Supreme Court decisions?

We are concerned here initially about Congress’ power under sec. 5 of the 14th

Amendment.

o The debate over the extent of this power involves issues such as the meaning

of the Constitutional text itself, the intent of the drafters, and basic policy

questions involving separation of powers, federalism, and individual rights.

There are two views of this power according to Chemerinsky: a broad view and a

narrow view. (p. 256)

a) Broad view of Congress’ power: Best represented by Brennan’s opinion

in Katzenbach v. Morgan & Morgan (1966) p. 256. Under this approach,

pursuant to its sec. 5 powers, Congress can interpret the Constitution

independently and can even overturn the Supreme Court. This power is,

however, limited to adopting measures to enforce the guarantees of the 14th

A., not to restrict or dilute those guarantees.

Argument: the drafters of the 14th A. intended Congress to have this

power given the specific language “to enforce” in sec. 5.

b) Narrow view of Congress’ power: In City of Boerne v. Flores (1997) p.

260, the Court determines that Congress overstepped its power under sec. 5

when it enacted RFRA. Congress responded to the Court’s “free exercise”

decision in the 1990 Smith case involving the ingestion of peyote during

religious rituals in violation of an Oregon criminal statute, a neutral law of

general applicability.

Argument: this view preserves the role of the Supreme Court to

interpret the Constitution (shades of Marbury)

o Note: RFRA is still applicable to the federal government

and is the basis of the lawsuit about the PPACA in the

Burwell v. Hobby Lobby Stores case based on religious

objections of the owners of a closely held corporation to

provide certain types of contraception coverage to their

employees.

More recently, the Court in a 5-4 decision also limited Congressional

authority under the 15th A.

o In Shelby County v. Holder (2013) p. 31 supp., the Court declared

that certain aspects of the Voting Rights Act of 1965 were

unconstitutional.

Sec. 2 of the Voting Rights Act prohibits states from having

election practices or systems that have a discriminatory

effect on minority voters.

Under sec. 5, jurisdictions (identified under sec. 4B of the

Act) with a history of race discrimination in voting were

required to get preclearance from the feds before changing

their election systems.

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o The Court invokes a fundamental principle of “equal sovereignty”

among the states in striking down sec. 4(B), although this term and this

notion of treating all states the same is never mentioned in the text of

the Constitution and there are countless examples of federal laws that

treat states differently (Ginsburg, dissenting)

o The majority and dissent in Shelby County disagree over basic issues:

a) how significant is the problem of race discrimination in voting

today;

b) how much of an intrusion is preclearance on the states (and how

much should that matter);

c) how much deference is due Congress when it legislates under

sec. 5 of the 14th A. and sec. 2 of the 15th A.

Congressional Power to Authorize Suits against State Governments

A. The 11th Amendment, as interpreted by the Supreme Court, bars suits by private citizens against

state governments. This is sometimes referred to as state sovereign immunity.

B. The 11TH A. and sovereignty immunity are important in defining the relationship between the

federal and state governments and important in determining the scope of constitutional protections

C. Due to its special mandate under sec. 5 of the 14th Amendment, Congress should be able to

override the Eleventh Amendment and authorize suits against state governments to enforce civil

rights. See, Fitzpatrick v. Bitzer, p. 269

1. In analyzing Congressional action, the Court must initially determine whether

Congress properly exercised its sec. 5 enforcement power by making the provisions of

particular pieces of federal legislation applicable to the states. Pennsylvania v. Union

Gas Co.(1989), p. 270 (case involved CERCLA and Super Fund legislation)

This is usually not an issue because Congress will expressly state that it is using

its power in this way

2. If so, then the Court will examine whether Congress can authorize the federal court suit

against the state government.

In Union Gas, the Brennan authored majority opinion concludes that Congress

has the power under the commerce clause to authorize state government liability

in federal court

o No consensus among members of the Court or scholars about whether

Congress can create such federal court Jx pursuant to any of its powers

apart from sec. 5.

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D. Beginning with Seminole Tribe v. Florida (1996) (the Indian gaming case) p. 270, the Court

strengthens the protection of the 11th Amendment and the concomitant state sovereign immunity

while restricting Congress’ power to authorize litigation against state governments, except when

acting under its sec. 5 powers.

1. In Seminole Tribe, Congress passed the applicable legislation (IGRA) pursuant to its

Indian Commerce Clause power

The majority overrules Union Gas and determines that Congress cannot

abrogate the 11th A. by circumventing the Constitution’s limitation on federal

Jx through legislation

o Stevens in dissent expresses his concern that individuals will be denied

a federal forum in a variety of cases, including civil rights cases

o Souter’s dissent expresses the position that the 11th A. was meant only

to remove diversity Jx involving States, not to limit federal Q (subject

matter) Jx where a State may be a party

E. Then the Court goes further and begins to limit Congress’ authority to act under sec. 5 to

authorize suits against States.

1. In Florida Prepaid (1999) p. 276 (involving the Patent Remedy Act), Kimel (2000) p.

280 (failure to protect rights of state government older workers under the ADEA) and

Garrett (2001) p. 284 (state workers with disabilities allege violation of the ADA), the

Court concluded that the laws in question were not valid exercises of Congress’ sec. 5

power and could not then be used to authorize suits against the states.

Rationale: It is the responsibility of the Court to determine the substance of

constitutional guarantees

2. Using Garrett an example: In Garrett, the Court concludes that the ADA can apply to

the States only to the extent that it is appropriate sec. 5 legislation

Legislation under sec. 5 that reaches beyond the scope of the guarantees under sec.

1 must exhibit “congruence and proportionality between the injury to be prevented

or remedied and the means adopted to that end.” (p. 285)

o Congruence: identification of a problem that is persistent and pervasive

Congress can exercise its sec. 5 authority only in response to state

transgressions and Congress has failed to establish a pattern of

irrational state discrimination against people with disabilities

The level of scrutiny to be applied

o Proportionality: an appropriate fit between the remedy for the problem and

the means adopted (the legislation)

Under the Supreme Court’s Equal Protection Clause jurisprudence,

discrimination against people with disabilities is subject to rational

basis scrutiny only, which means that the state’s interest must be

legitimate and the means chosen need be reasonably related to

achieve those ends

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It appears as though state conservation of financial resources

constitutes a legitimate state interest here

3. In three other cases, the Court upheld suits against state governments.

In Hibbs, (2003) p. 291 (male worker’s right to leave under the FMLA) and

Lane (2004) p. 303 (access to the courthouse by a defendant with a physical

disability), the Court concluded that Congress had greater authority to legislate

under sec. 5 in cases involving claims that would receive heightened scrutiny

under equal protection jurisprudence either based on the type of discrimination

such as race, ethnicity, gender, or “illegitimacy” OR because a fundamental

right such as access to the courts or voting was involved

o Hibbs was a case of gender discrimination

o Lane was decided on the basis of interference with a fundamental right

(not on the basis of the individual’s disability, which the Court had

addressed previously in Garrett)

In U.S. v. Georgia (2006) p. 303, the Court determined that a Title II ADA

lawsuit against the state by a prisoner who was paraplegic was not barred

by sovereign immunity because the claims were based on violations of the

prisoner’s constitutional rights under the 8th A.

o This view comports with the approach that Scalia urges the Court to

take: limiting Congress’ sec. 5 power ONLY to the regulation of

conduct that itself violates the 14th A.

3. The 11th A. speaks only of restrictions on the federal judicial power; however, the Court

held in Alden v. Maine (1999) p. 304, a case involving a suit by state probation officers for

overtime pay under the federal FLSA, that states cannot be sued in state court even on a

federal claim without their consent.

Kennedy, in his opinion for the Court, acknowledges that the Constitution

and its framers were silent about the ability to sue state governments in state

courts but that was unthinkable that states would have ratified the

Constitution had they thought it would subject them to suit without their

consent.

4. FMC v. South Carolina (2002) p. 315, the Court extends the principle of Alden to federal

administrative proceedings

Writing for the Court, Justice Thomas expressly says that state sovereign

immunity extends beyond the 11th Amendment.

Sovereign immunity includes immunity from federal administrative

adjudications initiated by private citizen complaints.

o Breyer in dissent questions this decision based on the text of the

Constitution, tradition, relevant purpose and, finally, its practical

consequences.

F. These 11th Amendment cases raise issues of federalism that the Court considered previously in

the area of the 10th Amendment.

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Critics and defenders of the Court’s current approach to limiting suits against

state governments typically invoke the Constitutional text and the drafters’ intent

to support their respective positions.

Critics emphasize that broad sovereign immunity undermines government

accountability

o recent decision are unwarranted judicial activism by conservatives in

striking down important federal laws based on principles found nowhere

in the Constitution

Defenders contend that state sovereign immunity for states is in keeping with

constitutional design and protects federalism principles.

o Perhaps even more important, there is a need to preserve the Supreme

Court’s role in determining the meaning of the Constitution

This debate is likely to continue on the Roberts’ Court:

Currently, Chief Justice Roberts and Justices Kennedy, Scalia,

Thomas, Alito favor limiting Congress’ ability to authorize suits

against states and local governments.

Justices Ginsburg, Breyer, Sotomayor and Kagan want to allow

suits against states under federal statutes.

V. Limits on State Regulatory and Taxing Power: Preemption

A. The federal government can act where there is constitutional authority. State governments,

under the police power, can act unless prohibited from doing so by the Constitution.

B. In some instances, there may be a conflict or a tension between state and federal action. Under

the Article VI supremacy clause, federal law trumps state law. This is referred to as the preemption

doctrine.

C. There is no clear cut formula to determine unequivocally whether a state or local law should be

invalidated on preemption grounds. Policy wise, this is an issue of the proper balance of authority

between the state and federal governments.

D. Preemption can be either express or implied.

1. Express preemption is found where there is explicit preemptive language.

Commonly used example is ERISA

2. Express preemption often requires the Court to determine the scope of the express

preemption provision.

The scope of express preemption may be unclear such as in the Lorillard case

(2001) p. 434, where the Court struck down a Massachusetts law regulating

cigarette advertising near schools, although Congress in 1969 federal law vested

the authority to regulate targeted cigarette advertising in the FTC.

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Inquiries: Congress may explicitly want some state laws to go away,

exactly which ones? Just state statutory law, or also state common law?

Just claims for monetary damages, or also claims for injunctive relief?

Just state civil law, or also state criminal law (or vice versa)? Just

contracts claims, but not torts claims (or vice versa)? See, Riegel v.

Medtronic (2008) and Chamber of Commerce v. Whiting (2011) pp. 440-

41.

3. Under implied preemption, there are two sub-types: conflicts preemption and field

preemption.

CONFLICTS PREEMPTION

o Impossibility conflicts preemption: If a federal and a state law are mutually

exclusive so that someone cannot comply with both laws, then state law will

be preempted. However, if the federal law merely sets a minimum, then a

stricter state law is not in conflict with the federal law. Florida Lime &

Avocado Growers (1963) p. 441.

o Conflict where state law impedes a federal objective: This is a two part

inquiry because a determination must be made first about the federal

objective before making a decision about impediments.

If the Court wants to avoid preemption, it can narrowly construe the

federal objective and interpret the state goal as different from or

consistent with the federal purpose.

If a court wants to find preemption, it can broadly view the federal

purpose and preempt a vast array of state laws. PG & E v. State

Energy Resources Conservation and Development Commission

(1983) p. 442

FIELD PREEMPTION

o Field preemption exists where there is a dominant federal interest OR where

regulation is so pervasive that it completely occupies the field. Ask:

a. Is this an area where the feds have traditionally played a unique role?

b. Has Congress evidenced its intent for federal law to be exclusive?

c. Would allowing state and local regulation risk interfering with

comprehensive federal regulation?

d. Is there an important state or local interest served by the law?

Look at the various provisions of S.B. 1070 concerning

undocumented immigrants in Arizona v. U.S. (2012) p.

447.

4. The state can defend its state law against a preemption challenge in a variety of ways:

the federal law is beyond the power of Congress;

the federal law does not expressly preempt state law;

the federal law expressly authorizes the states to continue to regulate in the area;

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the federal law does not impliedly preempt the state law because it is possible to

comply with both state and federal law at the same time;

the state law does not interfere with the achievement of the federal purpose; and

the federal law does not fully occupy the field the state is regulating.

5. The challenger can also make a variety of preemption arguments:

there is express preemption

but even if there isn't express preemption, there is conflict preemption because the

it is impossible to comply with both state law and federal law OR state law

undermines the accomplishment of the federal purpose

but even if there is no conflicts preemption, there is field preemption because the

federal government has fully occupied the field OR the federal interest is so great

THE DORMANT COMMERCE CLAUSE

A. The principle of the dormant commerce clause (sometimes called “the negative commerce

clause”) restricts the ability of state and local governments to regulate if there is an undue burden

on interstate commerce. (ISC)

1. If Congress has legislated, then look for possible preemption of local laws.

2. Where Congress has not yet acted, its commerce power remains “dormant.”

B. The concept of a dormant commerce clause (DCC) is somewhat controversial because there is

not a clear textual basis for it. Rather it is inferred from the Congress’ positive commerce clause

power.

C. There are three primary justifications for the DCC: historical, economic, and political, pp. 459-

460.

1. Historically, there is evidence that the framers (at least the Federalists) wanted to

displace state laws that interfered with ISC.

2. Economically, the greater good is generally served by striking down state and local laws

that burden ISC. Impediments harm the economy overall.

3. Politically, those outsiders should not be harmed by laws enacted in states where they

lack political representation.

D. Arguments against the DCC include: (p. 460)

1. The lack of textual basis in the Constitution to support the DCC.

2. The fact the Congress can exercise its positive commerce power at anytime

and in the absence thereof, state regulation should be permitted.

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3. An unelected federal judiciary should not determine the scope of the DCC.

E. Right or wrong, the DCC has been recognized for more than two centuries. Most of the action

at present involves the Court’s evaluation of the scope of the DCC.

F. Overview of the Modern Approach to the DCC

1. Earlier attempts to draw distinctions (based on state police power/federal commerce

power in Gibbons, p. 461, the local/national subject matter differences in Cooley, p. 463,

and a direct/indirect test) were rigid categorizations that tried to decide in what instances

state and local regulation was appropriate. These approaches were abandoned as

unworkable.

2. The Court gradually shifted to a balancing test to assess whether the benefits of a state

law outweigh the law’s burdens on ISC. The use of a balancing test gives the Court

tremendous discretion. Scalia would likely conclude that the Court’s power is magnified

because it is attempting to weigh and compare two completely different things.

In the Barnwell Bros. case (1938) p. 464, the Court upheld the State of South

Carolina’s restriction on the width and weight of trucks despite a rather serious

impact on ISC. The State’s interests were highway safety and preserving its roads.

A few years later, the Court struck down an Arizona regulation that limited train

lengths and was supposedly enacted for safety reasons. Southern Pacific (1945) p.

466.

There may not be a crystal clear principled distinction between these two cases.

They do demonstrate the importance of developing a factual record to support the

safety rationales put forward by the state. The Barnwell case pre-dated extensive

federal financing of the national highway system whereas train traffic had been

regulated more extensively at the federal level since the turn of the 19th Century.

3. Some current Justices such as Scalia and Thomas (previously, Rehnquist) question the

use of the balancing test. They would uphold any state legislation that is nondiscriminatory.

But see, Wynne v. Maryland (2015) supp. p. 86, where the Court determines

there is a DCC violation where Maryland’s state income taxation scheme

allows only a partial credit for income earned by residents outside the state,

which has previously been subject to taxation in the locale where it was

earned.

G. State laws can discriminate on their face and attempt to impose more significant burdens on

interests from outside the state, p. 469.

1. Laws that discriminate against out-of-staters are rarely upheld. There is a presumption

of unconstitutionality—an almost per se invalidation—when the state is discriminating.

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*The discriminatory legislation must survive the application of the more rigorous strict

scrutiny TEST: important government interest and least restrictive means.

2. These discriminatory laws may: 1) limit access to in-state resources; 2) limit access to

local markets by out-of-staters; or 3) require the use of local businesses.

3. Limited Access to Resources:

The State of N.J. passed legislation to restrict its limited landfill resources through

a ban on the importation of waste products from outside the state. Philadelphia v.

N.J. (1978) p. 469. This legislation was struck down due to its discriminatory

nature.

a) Rehnquist in dissent would have upheld the law because of the strong health

and safety interests of N.J.

b) Some might question whether N.J. had demonstrated that this outright

prohibition was the least restrictive means to address the problem since there

was nothing particularly “evil” about the garbage from outside the state.

Another example of a facially discriminatory law that was struck down resulted

from Oklahoma’s attempt to restrict the export of minnows outside the state.

Hughes (1979) p. 472. The Court rejected the state’s contention that it had a

compelling interest in conservation of this resource.

However, the Supreme Court upheld Maine’s prohibition on the importation of live

baitfish into the state in Maine v. Taylor (1986) p. 485. The state demonstrated that

there was a very real threat to the fragile marine ecosystem posed by parasitic

baitfish from other places. The state also showed that there was no less restrictive

option to sort the possibly infected fish apart from destruction of them. This is a

rare exception to the per se invalidity but indicates that the application of the strict

scrutiny test is not always fatal.

4. Limited Access to Markets:

In a consolidated case involving New York and Michigan, state-imposed

restrictions on wine shipments permitted in-state wineries to ship but prohibited

out-of-state wineries from doing so. The Court struck down the legislation as

discriminatory. The majority opinion suggested that these laws were the classic

type of protectionist legislation that violates the DCC.

5. Use of Local Businesses:

The Court has struck down local milk pasteurization laws in Dean Milk (1951) p.

484, and has invalidated local waste transfer station deposits in C & A Carbone

(1994) p. 479.

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Local regulations that treat out-of-staters in a disparate manner will be invalidated,

even though the regulation discriminates against some others from inside the state.

Dean Milk (1951) and Fort Gratiot Sanitary Landfill, Inc. (1992).

H. State laws may be facially neutral but have a purpose and/or effect of discriminating, which

triggers the application of the strict scrutiny test.

1. A discriminatory purpose will suffice but it is often difficult to prove

IT’S MUCH MORE COMMON TO ENCOUNTER A LAW THAT IS

DISCRIMINATORY IN ITS EFFECT.

2. The Court has concluded that proof of discriminatory effect against outsiders is sufficient

for a law to be regarded as discriminatory.

Examples of these types of laws are the North Carolina apple labeling law in Hunt

(1977) p. 474, and the waste transfer station requirements in Carbone (1994) p.

479.

2. Facially neutral laws enacted for a protectionist purpose are also found to be

discriminatory.

One example of a discriminatory law invalidated on this basis was a Massachusetts

pricing order that imposed a cost assessment on all fluid milk sold by dealers to

retailers and these fees were subsequently distributed to MA dairy farmers. West

Lynn Creamery (1994) p. 480.

An example of a law upheld against a challenge that there was a disparate impact

on outsiders was the Minnesota law that banned the use of plastic milk containers.

Clover Leaf Creamery (1981) p. 482. The state may actually have had mixed

motives for its regulation: protect the environment and promote the local paper

industry. Nevertheless, the Court determined there was not a discriminatory

purpose and concluded that the burden on ISC commerce was relatively minor

whereas the benefit to the state was high.

I. The analysis to be used if a law is nondiscriminatory (IS NEITHER facially discriminatory nor

is FACIALLY NEUTRAL and discriminates in its purpose and/or effect) is a “balancing test.”

1. The Court set forth the balancing test in Pike v. Bruce Church, Inc. (1970) p. 488: Where

a statute regulates even-handedly to effectuate a legitimate local public interest, and its

effects on interstate commerce are only incidental, it will be upheld unless the burden

imposed on such commerce is clearly excessive in relation to the putative local benefits.

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The Court views the “balancing test” as one of degree. Look at:

o High burden on ISC, Low state benefit/interest: INVALIDATED

o High burden on ISC, High state benefit/interest: PROB. INVALIDATED

o Low burden on ISC, High state benefit/interest: UPHELD

o Low burden on ISC, Low state benefit/interest: PROB. UPHELD ????

NOTE: Although the Pike test is associated with nondiscriminatory regulation that

has an impact on ISC, the activity in question in Pike—the specific packaging

requirements that the petitioner could not meet by using its out-of-state packing

plant – is similar to the aforementioned “use of local business” requirements that

the Court views as discriminatory rather than nondiscriminatory.

2. In Bibb, p. 490, the Court used a balancing test in this 1959 case involving an Illinois

requirement for contour mud flaps on trucks in contrast to the requirement of 45 other states

for straight mud flaps. The proponents of each type of mud flap alleged that their particular

design was safer. Given the fact that the evidence did not strongly support the safety

contentions put forth by Illinois and the fact that the state’s requirement imposed a heavy

burden on ISC, the Court invalidated the regulation.

3. Several years later, the Court in the Kassel case (1981) p. 492, reviewed an Iowa restriction

on truck lengths that would have effectively banned most so-called “doubles” or twin trucks

from the Iowa roadways. There was an exception in the law for Iowa border towns, which

could opt to adopt the truck length requirements of neighboring states. Both sides produced

evidence on safety, which demonstrated there was not a clear consensus that “doubles” were

unsafe. The Court used the “balancing test” and struck down the law as substantially

burdening ISC.

4. The Court has, however, consistently determined that state laws regulating out-of-state

conduct of business are unconstitutional, p. 495.

J. Exceptions to the Dormant Commerce Clause

1. Congressional Approval

State laws that burden ISC are permissible if those laws are approved by Congress.

One example is the regulation of the insurance industry that Congress has

authorized by statute to be controlled by the states, p. 497.

o Remember, Congress must have the power to regulate in the area.

2. The Market Participant Exception

If the state is acting not as a regulator but rather is a market participant, then the

usual DCC restrictions to state regulation do not apply.

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The Court crafted this exception initially in the Alexandria Scrap case in 1976, p.

499, where the state assumed responsibility for destroying inoperable vehicles.

The case that is usually cited for this principle is Reeves v. Stake (1980) p. 499,

where the Court upheld the right of South Dakota during periods of shortage to

restrict out-of-state sales of cement produced in a state-owned plant. This majority

opinion supports the exception and states that the distinction between “market

regulation” and “market participation” makes good sense. The dissenters

questioned whether the exception is constitutionally sound.

In White v. Massachusetts Council of Construction Employers, Inc. (1983) p. 501,

the Court determined that the city of Boston could set forth residency requirements

(here, at least 50% Bostonians) for the workers employed on city-funded projects.

In essence, the city was “the market” since it was expending its own funds.

(Contrast this approach with that of the Privileges and Immunities doctrine in the

next section.)

However, the following year, the Court in South Central Timber Development

(1984) p. 501, refused to sanction an Alaska law that restricted sales of state-owned

timber to those purchasers who agreed to partially process the timber in the state.

The Court viewed this post-sale activity as an impermissible attempt by the state to

control beyond its role as an initial participant.

THE PRIVILEGES AND IMMUNITIES CLAUSE

A. Article IV, sec. 2 provides that “the Citizens of each State shall be entitled to all Privileges and

Immunities of Citizens in the several States.”

1. History suggests that the purpose of the P & I clause was to eliminate discrimination

against out-of-staters where fundamental national interests were concerned.

2. The definition of “Citizens” does not include corporations (or non-citizens).

In McBurney v. Young (2015) supp. p. 81, the Supreme Court rejected a challenge

to a Virginia law that limited access to information under Virginia’s freedom of

information act to requests by Virginia citizens. In doing so, the Court focused on

the meaning of the Privileges and Immunities Clause of Article IV, Section 2.

B. The Court uses a three-part test to determine whether there is a violation of the P & I Clause

when there is discrimination against out-of-staters:

1. Is the activity in issue a “fundamental” one, that is, an activity that is sufficiently basic

to the livelihood of the Nation?

2. Is there a “substantial reason” for the difference in treatment?

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3. Does the discrimination bear a close or substantial relationship to the state’s objective,

taking into consideration least restrictive means?

C. The fundamental activities:

1. include the right to pursue one’s livelihood or “ply one’s trade.” Building Trades

Council v. Camden (1984) p. 509.

2. do not include recreational and leisure activities Baldwin v. Fish & Game Commission

of Montana (1978) p. 511.

D. “Substantial reason” for discrimination against out-of-staters does not include a

State’s desire to limit bar admissions to in-state residents because of their supposed greater

familiarity with local rules and procedures, their heightened commitment to behave ethically, and

their availability for court proceedings. New Hampshire v. Piper (1985) p. 513.

E. Note the differences between the DCC and P & I since there might be a basis to argue both

claims:

DCC permits exceptions but

DCC standard for discrimination arguably stricter than P & I