Constutional Law
THE FEDERAL SYSTEM: THE RELATIONSHIP OF THE NATIONAL GOVERNMENT TO THE STATES: Supremacy and Preemption: Generally:
- (1) Must have both state and federal law in the picture; (2) federal law must be inconsistent w/ state law; (3) every time—focus on inconsistency and conflict). - Federal law (statutes, regulations, treaties) preempts or prevails over any INCONSISTENT state law (constitution, statutes, regulations).
When the Limits of the Negative Commerce Clause do not Apply Are Modified: Congressional Approval
- Congressional Approval: even though, under the negative commerce clause (i.e., where Congress is silent), a state may not discriminate against or excessively burden interstate commerce, a state is wholly free to do these things if Congress gives its permission. Just as Congress may speak and preempt state actions, so, too, it may speak - Ex: Thus, Congress may authorize states to ban the importation of out-of-state garbage or require that all milk be pasteurized in the state where it is sold.
Express or enumerated powers of Congress are many and include powers over:
1. Admiralty; 2. Citizenship; 3. Bankruptcy; 4. Federal property; 5. Patents and copyright; 6. Post offices; 7. Coining money; 8. The territories and the District of Columbia; 9. War; and 10. Raising and supporting armies.
The Doctrine of Abstention (cool doctrine for P's): PURPOSES
1. Comity or respect: let state court say what it means first; 2. Futility: why take a case if you don't have to → if settled in state court → why take it?
Implied preemption:
1. Implied preemption: even if Congress doesn't specifically so state, state law will be preempted if state law is inconsistent w/ federal law. For example, where it is impossible to comply w/ both the state or federal law, or where Congress has passed such extensive regulation in an area that it meant to "occupy the field" and leave no room for state regulation (where Congress occupies so much, no room for states). 2. Example: A federal law provides that creditors may garnish no more that 50% of a worker's wages for the payment of a debt. IL cannot permit garnishment of 60% of a worker's wages, --that would be inconsistent w/ federal law—but IL could provide that creditors may garnish no more than 40% of workers' wages—that would complement federal law.
A court will enforce a condition against a state which has accepted federal funs if:
1. Law must be enacted for general welfare (whatever Congress wants to do); 2. Conditions can't violate individual liberties; 3. Condition has to be reasonably related to SOME government interests; 4. Has to be clear that doing the condition is a quid pro quo for $ (THIS PRONG actually has some significance).
Congress can do any or all of the following 3 things to make states do what it wants them to do:
1. Regulate states directly w/ commerce clause hook; 2. Could threaten preemption; 3. To bribe states w/ $ under the spending power.
What does it mean by proper timing?
1. Ripeness (cases brought too soon); 2. Mootness (cases brought too late).
Exam tip: the rule that federal law prevails over inconsistent state law should be followed even if the facts tell you:
1. That the state law was passed first; 2. That the federal law is just an obscure regulation and the state law is a state.
Presidential Immunities:
1. The President enjoys a PRESUMPTIVE privilege not to disclose presidential communications. A balancing test is used, e.g., a President's generalized claim of confidentiality will yield to a specific need for evidence in a criminal trial. 2. The President is ABSOLUTELY IMMUNE from civil lawsuits for damages for any Presidential (not purely personal or pre-presidential) acts, such as the wrongful firing of an employee.
The Executive Power: Domestic Powers:
1. The President has the power and duty to enforce or carry out the laws of Congress; 2. The President may not MAKE law, only carry it out; EXCEPT if there is an emergency AND Congress has said no to the particular act; 3. The President may sign or veto legislation but may not veto some parts of legislation but not others (Line item veto); 4. The President has the exclusive power to pardon for FEDERAL offenses; 5. The President has the power to appoint and remove EXECUTIVE OFFICIALS; A. Congress may never directly appoint (or remove) branch officials: B. Congress may never directly remove executive branch officials, except through impeachment. C. Congress may not give executive powers to person it may hire and fire.
Impeachment:
1. The Process: Articles of Impeachment voted by the House (like indictment or charges), trial by the Senate, removal from office.
THE FEDERAL SYSTEM: THE RELATIONSHIP OF THE NATIONAL GOVERNMENT TO THE STATES: The Supremacy of Federal Power over the States:
1. The constitution operates on states, not as a source of power (states do not have police power) but as a limit on what states can do. 2. The Constitution EXPRESSLY forbids states from taking certain acts, such as coining money. 3. The Constitution also prohibits states from exercising power which is INHERENTLY federal, such as the CONDUCT OF FOREIGN RELATIONS. State have no power to deal w/ immigration, establish requirements for federal citizenship, declare war, or conduct foreign policy.
A case is not moot if:
1. The injury is capable of REPETITION to THAT plaintiff, yet, b/c of its nature, will evade review, e.g., a pregnant woman's challenge to an abortion statute (look for an internal time limit); 2. The case is brought as a CLASS ACTION and the issue remains alive at least as to ONE member of the class; 3. Superficially, the case appears moot, but there are COLLATERAL CONSEQUENCES, or some continuing issues between the parties, e.g., person challenges criminal conviction and has already served his sentence, but he may still face a loss of civil rights; e.g., person sues the government for an injunction and damages but dies—the injunction claim is moot, but damages may still be paid to his estate; 4. The defendant has ceased the harm but is free to return to his/her old ways. "Voluntary Cessation of Illegal Activites". There must be no reasonable likelihood that the defendant could return to his or her old ways; e.g., polluting plant closed but retained its certificate of operation.
The 11th A: the details
1. The plaintiff must be a private party, not another government. 2. The defendant must be a state, like the state of New Jersey, not a local government, like a county or municipality. 3. The suit must be for money to be paid out of the state treasury or for an injunction or declaratory relief where the state is the Named Party.
The 11th A: the Rules
1. Under the 11thA, a private party cannot sue a state in federal court, UNLESS the state EXPRESSLY CONSENTS; or Congress clearly says so to enforce 14thA rights (or any after 11thA). 2. A person may sue state officers in their individual capacities for damages, and may sue state officers for INJUNCTIONS against future unconstitutional action by the state.
When the Limits of the Negative Commerce Clause do not Apply Are Modified: The Market Participant Doctrine and Government Subsidies:
1. Under the market participant doctrine, whenever a state is acting, not as a regulator, but as a buyer or seller of commodities or services, the negative commerce clause does NOT apply to its actions, and the state MAY discriminate or burden interstate commerce. - Ex: A state which owns its own cement plants may sell its cement to its own residents (and thus discriminate in their favor) before selling to out of staters. (But note—a state goes too far if, as a seller or buyer, it imposes conditions that affect the transaction too far downstream.) 2. So, too, w/ government subsidies. A state does not violate the negative commerce clause if it prefers its own citizens or companies w/ subsidies. - Ex: A state may pay money to corporations to retain their offices w/in its borders.
15th Amendment:
15th A: protects the right to vote against any federal or state government racial discrimination, and it gives Congress the power to enforce the amendment. Congress's power has been expansively interpreted, and actions, such as providing federal officials to register voters in local elections, have been upheld.
The Meaning of Independent and Adequate State Grounds: ADEQUATE
A case rests on an ADEQUATE state ground if, no matter how the federal issue in the case is decided, the outcome will still be the same issue under the resolution of the state law issue.
The Meaning of Independent and Adequate State Grounds: INDEPENDENT
A case rests on an INDEPENDENT state ground so long as state law does not depend on an interpretation of federal law or incorporate a federal standard. 1. Ex: Some states interpret their state constitutional provisions to mean precisely what the federal constitution means, no more and no less. In such cases, the state law ground is no INDEPDENDENT of federal law, and the Supreme Court may review. 2. Ex: If a state court MIXES UP the federal and state ground of its decision so that it is UNCLEAR whether the outcome rests on state or federal law, the SC may review such a case and the INDEPENDENT AND ADEQUATE STATE GROUND rule does not apply.
Mootness: Generally
A case will be dismissed as moot unless there exists an actual, live controversy between the parties at ALL stages of the litigation, including on appeal. Ask yourself: can the judge change the position of the parties or has the problem solved itself? Must be: (1) alive; (2) at all stages of litigation, including appeal.
Ripeness:
A plaintiff must allege actual harm or the immediate threat of harm. Generally, a case is not ripe where, on the facts, significant events necessary to sharpen the issues have not yet occurred.
Legislative Powers: General Points
All federal power, including the legislative power of Congress, must relate in some way to an express grant of power in the C. Under the 10thA, all powers not granted to the federal government are reserved to the states or to the people.
Necessary and Proper Clause:
All of Congress' express power are supplemented by the NECESSARY AND PROPER CLAUSE which allows Congress to use all means CONVENIENT AND USEFUL to carry out the enumerated powers, such as chartering a federal bank to help carry out the express powers to tax, spend, and coin money. - Proper Clause is NOT independent power and must be combined in furtherance of another congressional power.
What are the most testable sources of power?
Among the most testable sources of powers are Congress' power to regulate interstate commerce, to tax and spend for the general welfare, and secondarily, to enforce the 13th, 14th, and 15th.
Standing: some special cases: Standing of Orgs and Associations
An org, such as a union, has standing to sue for injury to itself, but it may also sue for injuries to its members if: 1. A member or member(s) would have standing, and 2. The members' injury is related to the purpose of the org, AND 3. There is no reason (such as an award of damages to individual members) that would require participation of the individual members in the suit.
Which Article is the judicial power?
Article II.
Congress may never directly remove executive branch officials, except through impeachment.
But as w/ appointments, Congress may limit the President's power to remove. For example, Congress may provide that the President may remove certain officials only for "cause".
Conflict between treaties or executive agreements and legislation:
Conflict between Treaties or Executive Agreements and legislation: the later legislation controls.
The Taxing Power:
Congress May Tax and Spend for the General Welfare: - Congress may use the taxing power to regulate and prohibit behavior so long as the statute is capable of raising SOME REVENUE (we don't care if it was meant to regulate or how much it regulates), such as a prohibitive tax on gambling or goods made by child labor.
War and Foreign Affairs Powers: Declaring War:
Congress along has the power to declare war. Congress also retains the purse strings and may refuse to pay for military operations. Nevertheless, the President, in addition to conducting military operations once war is declared, may repel invasions, and take emergency action to protect the lives and property of United States citizens.
Enforcement of the 14th Amendment:
Congress also has the power to implement the provisions of the 14th Amendment (equal protection and due process). But laws passed under the 14th Amendment apply only to government acts, not acts of private parties (i.e., there is a "state action" requirement). And, Congress only has the power to enforce, or remedy, the rights of the 14thA, as they have been defined by the courts. It does not have the power to redefine such rights.
Congress may never directly appoint (or remove) branch officials:
Congress may appoint persons who work only for Congress and do not take action or make decisions on behalf of the US government, and Congress may limit the President's power to appoint in 2 ways: 1. As to PRINCIPAL officers, such as ambassadors, judges, and cabinet heads, the President appoints only w/ the advice and consent of the Senate; and 2. As to INFERIOR officers, i.e., those who answer to another or have limited duties or jurisdiction, such as Independent Counsels, Congress may vest the appointment of the President alone, or in department heads, or in the judiciary.
Congressional Immunities (the Speech and Debate Clause):
Congressional Immunities (the Speech and Debate Clause): members of Congress may not be prosecuted or punished, either civilly or criminally, for their official or "legislative acts." Legislative acts are very NARROWLY DEFINED to include acts integral to the legislative process, such as actions on the floor, voting, and committee work. They DO NOT INCLUDE acts such as communicating w/ constituents, redistribution or materials prepared in the legislative process, or bribery. 1. Ex: Things said in the hotel room are not covered. 2. Ex: Judges have immunity against lawsuits against their acts.
STATE REGULATION OF INTERSTATE COMMERCE: The "Negative" or Dormant Commerce Power (Congress is sleeping on the matter): where Congress has not acted: Discrimination
Discrimination (the worst kind): The strongest argument to strike down a state law under the negative commerce clause is that it discriminates against (i.e., treats differently, less favorably) interstate commerce. There are 2 kinds of discriminatory laws: 1. Laws that discriminate for the purpose of favoring in-state commerce. These types of laws are always PER SE INVALID. - Ex: A state law imposes higher taxes on out-of-state goods than in-state goods. - Ex: A state law prohibits the sale of out-of-state milk at a price lower than in-state milk. - Ex: A state law requires that all metal ore mined in that state be shipped out of state only as processed metal. - But NOTE: Laws that favor a government entity performing traditional activities, such as trash collection, while treating all private companies equally unfavorably, do not discriminate for the purposes of the commerce clause. 2. Laws that discriminate for the purpose of promoting health or safety. These types of laws are ALSO INVALID, unless the state shows that it had no reasonable, non-discriminatory means to achieve its police power objective. - Ex: A state law bans all out of state garbage from being dumped in in-state landfills. Unconstitutional. - Ex: A state law bans the sale of milk, unless it was processed and bottled locally. Unconstitutional under the negative commerce clause. - Ex: A state regulation bans the importation of live baitfish, which may carry parasites not present in-state waters. Unconstitutional.
Special Cases: Taxpayer—"Plaintiff, suing as a taxpayer": EXCEPTION
EXCEPTION: a taxpayer has standing, as a taxpayer, to challenge: 1. Laws enacted under Congress' taxing and spending powers, NOT executive action or administrative action; and 2. Exceeding a specific constitutional limit on taxing and spending (meaning, an Establishment clause challenge to a taxing and spending law).
Executive Agreements Require:
Executive Agreements: requires no specific Congressional approval—acquiescence is enough, but treaty is invalid if Congress disapproved.
Express preemption:
Express preemption: if Congress says that federal law displaces or ousts state law in an area, then state law in that area is preempted, period.
The Political Question Doctrine; Questions Which are Non-Justiciable (will frequently be the wrong answer):
Federal courts will not decide political questions, that is, questions which are constitutionally committed to another branch of government to decide, or are beyond the competence or enforcement capability of the judicial branch.
States May not Sue, Regulate, or Directly Tax the Federal Government w/o Consent: BUT
Federal government can sue, regulate, and tax the states w/o consent.
Special Cases: Standing to Raise the Rights of Others or 3rd Party Standing
Generally, no 3rd Party Standing: a party has standing only to raise his or her own rights and may not raise the rights of others, EXCEPT a party may raise the rights of someone else if: 1. The party has suffered some actual injury, AND 2. There is a special relationship between the party and the 3rd person (usually both being parties to an exchange or transaction) and there is some hindrance to the 3rd party raising his/her own rights. 3. Ex: Doctor raises the rights of a patient to have an abortion (couldn't give the appropriate medical advice; losing fees; special relationship. Seller of beer raises the rights of males under 21 to buy liquor.
Hypo: A federal statute authorizes states to freely regulate the industry of insurance. Can South Carolina tax out of state insurers at twice the rate of in-state companies?
If Congress authorized it to do so, it is ok.
States may require:
In-state residency for their own employees, may charge out-of-staters more for hunting licenses or tuition benefits, and may prefer their own citizens in giving state benefits, like welfare, or subsidies.
Ex: Can Congress give private parties a right to sue a state for damages in federal court under the Americans with Disabilities Act?
It depends on the application. Discrimination and disabilities is subject to rational basis review.
Special Cases: Legislatures' Standing
Legislatures may challenge acts that cause them a personal and concrete injury, such as a member being denied the right to vote on a particular piece of legislation. But, generally, a legislature has no standing to challenge laws which were properly enacted but which he or she believes are unconstitutional. - Ex: members of Congress had NO STANDING to challenge the Line Item Veto Act as a violation of separation of power.
Hypo: If Sally sues the town of Mayberry, does the 11th A bar this suit?
Mayberry is only a subdivision, not a state.
Can the plaintiff still sue in state court?
NOTE: the 11thA only bars suits in federal court; a plaintiff might still be able to sue a state in state court. 1. Ex: the 11thA, by itself, would not bar Fred from suing MI in a MI state court. 2. HOWEVER: states may raise sovereign immunity against such claims in their own courts. Congress has no power, under the commerce clause or other Art. I powers, to subject non-consenting states to private suits for damages in either federal (11thA) or state courts (general principles of federalism).
Advisory opinions:
No Advisory Opinions: Federal courts may decide only actual cases and controversies. - They may not render ADVISORY OPINIONS: opinions that do not bind the parties to the courts judgment.
Can a state require private sector employers to hire a certain percentage of in-state or in-city residents?
No.
Can a state require residency to be admitted to the bar?
No.
Can a state require that only out-of-state commercial fisherman limit their catch?
No.
Can a state impliedly consent to being sued in federal court?
No. A state may consent to be sued in federal court, but the consent must be unmistakably clear. It will not be implied. - Congress may permit private plaintiffs to sue states under anti-discrimination statutes, passed under the 14thA, but Congress must clearly so state.
Hypo: The President is considering whether to enter into the "International Bio-Hazardous Medical Waste Removal Treaty" but first, wants the Court's opinion as to whether he has power to bind future generations to such a treaty. Should the Court decide this Question?
No. Advisory opinions are NOT ALLOWED.
Hypo: A statute authorizes federal courts to hear claims from contractors performing work for the federal government, but the statute also grants the Secretary of Commerce authority to set aside any judgment if she deems it not "fair and reasonable." Should the Court decide contractor claims under this statute?
No. B/c the Court is not making the decision. The Sec of Commerce can make the decision.
Ex: Can Congress "commandeer" state regulatory agencies and force them to enforce federal law, such as making local sheriffs enforce federal gun checks?
No. Can't make state agencies agents of the federal government.
Hypo: The State of Wisconsin refuses to pay its employees the minimum wage as required by federal law. Can Sally sue Wisconsin for "back pay" in federal court?
No. Classic 11th A bar.
Ex: Can Congress tell states what laws to enact, such as telling states they must pass a law making it a crime to burn high sulfur coal in the state?
No. Congress may not tell state governments what laws they have to enact under commerce. The federal government wouldn't be held responsible. The federal government can tell the states what to do, but can't tell them what laws to enact.
Ex: Can Congress force states to generously accommodate religious practices under the Religious Freedom Restoration Act?
No. Court had said while Congress passes generally applicable laws, reasonable, beyond power.
Hypo: a state court rules that an anti-parking ordinance violates the state constitution and the first amendment of the federal constitution. May the Supreme Court review such a judgment?
No. Even if state court was wrong about fed 1stA issue, the outcome would remain the same.
Hypo: In year 1, the SC holds that state financing of public education based on property taxes does not violate equal protection. In year 2, the state SC strikes down the same system of school financing under the state constitution. May the Supreme Court review the state court's judgment?
No. Fed court says ok, state court says not ok. Outcome would be the same. Would still be invalid.
Hypo: The city of Mayberry has an ordinance on the books enacted in 1832, that states "Anyone convicted of gawking at the wife of a town resident shall be caned at high noon in the town square." No one has ever been charged under the law, but Polly Anna, a new resident of Mayberry, sees the statute in a book in the historical collections room of the Mayberry Library. She decides to file a lawsuit in federal court to challenge the law as unconstitutional. Should the court hear the case?
No. Law is on the books, but has never been enforced and there is no threat of enforcement → no ripeness.
Ex: Can Congress criminalize behavior which does not in any way relate to commercial or economic activity, such as making it a crime to possess a gun w/in 1000 feet of a school or to commit acts of violence based on gender?
No. Lopez: even if done cumulatively, no substantial effect on interstate commerce. Marsden: commission of a crime based on gender does not on its face affect commerce. The links are way too attenuated.
Hypo: Congress creates a six-member election Commission to regulate donations, filing of reports, and disbursement of federal funds. To ensure the Commission will act fairly to all affected, the law provides that the President, the Speaker of the House, and the Senate majority leader shall each appoint 2 members. Is this valid?
No. Not valid. Commissioners are given authority to act on behalf of government. May not directly appoint an executive branch official.
Hypo: a state employee of the Wisconsin Labor Dept tells Sally that she is fraudulently seeking back pay. Can Sally sue the state employee for damages of slander?
No. She can sue the state employee.
Hypo: Company A applies for a license to manufacture special green colored hair day for the government and is turned down. Company B applies for the license and gets it. Company A sues to bar the government from giving license to Company B. Does Company A have standing to seek relief?
No. The relief requested does not provide the right remedy. The remedy does not redress A's harm.
Hypo: New Hampshire sues Maine over the disputed territorial island of Wahoo. Does the 11thA bar such a suit?
No. The state is a plaintiff, not a private entity.
Hypo: Congress is considering a statute that authorizes federal courts to hear claims from contractors performing work for the federal government, but the statute also grants the Secretary of Commerce authority to set aside any judgment if she deems it not "fair and reasonable." Conrad Contractor, a donor to the Secretary's main political rival, Gimme Something, doesn't think he should be subject to the Secretary's political, retribution so he challenges the proposal in federal court. Should the federal court hear this challenge?
No. Watch the facts, this is just a proposal.
Relatively few questions are considered political questions, but what about these examples? Are these questions not subject to review? "Republican form of government" Clause challenges:
Political Question
Impeachment procedures:
Political question
Procedures to amend the constitution
Political question
Seating of delegates at a national political convention
Political question
The election and qualification of members of Congress (age, citizenship and residency)
Political question
True foreign affairs or military command decisions:
Political question
21st Amendment:
Repealed prohibition The 21stA gives the states the power to regulate the possession, sale, and transportation of intoxicating liquors w/in their borders. As a result, states have more power to "burden" or regulate liquor than other articles of commerce. This is NOT, however, authority for states to DISCRIMINATE against out of state liquor.
THE PRIVILEGES AND IMMUNITIES CLAUSE OF ART. IV (ART. IV is also the source of the Full Faith and Credit Clause): RULE
Rule: States may not discriminate against OUT OF STATE citizens (not corporations or aliens) w/ respect to commercial activities (e.g., employment, dealing in property or contract) or the enjoyment of civil liberties.
Special Cases: Taxpayer—"Plaintiff, suing as a taxpayer": RULE
Rule: taxpayers may sue to challenge their own tax liability. But they have NO STANDING, as TAXPAYERS, to challenge how the government spends the money it has collected.
Enforcement of the 13th Amendment:
The 13thA outlaws slavery. It also gives Congress the power to enforce the amendment. Congress can, therefore, pass all laws, applicable to anyone—whether private or governmental (i.e., there is NO "state action" requirement)—not just to eliminate slavery PER SE, but also to end all "badges and incidents" of slavery, such as racial discrimination in housing.
The Commerce power:
The Commerce power is the chief source of power for Congress to REGULATE, and it may regulate almost anything. Regulation includes setting rules, standards and rates, and promoting, prohibiting, and punishing behavior. 1. Congress can, for example, enact laws related to transportation, wages, and hours, the environment, manufacturing, mining, food and drugs, and communications. 2. Congress may regulate not only obvious interstate commercial activity such as goods moving across state lines and use of interstate instrumentalities such as the mails or the phone system. It may also regulate purely local and intrastate activities which, by themselves or repeated by others ("cumulative effects doctrine"), SUBSTANTIALLY AFFECT interstate commerce.
The Delegation of Congressional Power
The Delegation of Congressional Power: Congress may broadly delegate legislative powers to administrative agencies so long as Congress sets fort some intelligible principle, or some standards, to guide the exercise of the delegated power, (e.g., permit an agency to bar "unreasonable restraints on trade."). The courts have never struck this down.
Who is allowed to sue (or standing)?
The General Rules: 3 Ingredients: 1. Plaintiff must suffer an actual, concrete injury in fact. Almost anything counts, e.g., economic, physical, environmental, loss of rights, a cause of action granted by statute; but not mere ideological harm; 2. Must have causation: ASK: on the facts, is the harm fairly traceable to the government's actions? That is, did the government cause the harm the plaintiff is complaining about? 3. Redressability. ASK: can the court do something to remedy the injury, i.e., award $ damages, issue an injunction.
The Legislative Veto
The Legislative Veto: If Congress delegates authority to the executive branch, Congress may not reserve for itself a one-house, two-house, or committee veto over the particular acts taken by the executive branch pursuant to that delegation. It must pass new legislation passed by both houses (bi-cameralism) and signed by the President (presentment). Can't short circuit legislative process).
War and Foreign Affairs Powers: Foreign policy
The President may act, w/o any approval of Congress, as the chief foreign policy spokesperson of the government, e.g., to receives ambassadors, or meet w/ heads of state.
Supreme Court review of State Court Judgments: The Basic Requirements:
The SC may review the decisions of state courts, IF AND ONLY IF: 1. The case involves a matter of federal law; and 2. It is a final judgment; and 3. Is from the highest state court authorized to hear the case; and 4. There is no independent and adequate state grounds on which the state court decision is based.
The Spending Power
The spending power is the chief source of power to "bribe" (conditional spending) states to do what the federal government wants them to do. - Ex: Congress can enact legislation which conditions federal funding of highways on the state having a maximum highway speed limit of 55mph.
Special Cases: Citizen Standing
There is NO standing as a citizen. Even where a plaintiff is suing under a statute conferring "citizen standing," standing requires a personal harm suffered by the plaintiff. It is not enough to allege that you know of some illegality and that, as a citizen, it offends you.
STATE REGULATION OF INTERSTATE COMMERCE: The "Negative" or Dormant Commerce Power (Congress is sleeping on the matter): unreasonable burdens: Test:
This is a balancing test. The Court will weigh the actual effects of the law on the free flow of commerce against the state's interests served by the law. Even though most such laws will be upheld, laws that produce marginal benefits and which materially obstruct the movement of goods across state lines, such as, requiring novel and expensive safety equipment on all trucks, will be invalidated.
Treaties Require:
Treaties require: 2/3 Senate approval.
The Doctrine of Abstention (cool doctrine for P's): GENERALLY
Under the doctrine of abstention, a federal court will decline to hear a case challenging a state law if: - It involves a constitutional challenge to the state law, but the meaning of the state law is UNSETTLED or UNCLEAR, or the matter is already pending before state judicial or administrative tribunals.
STATE REGULATION OF INTERSTATE COMMERCE: The "Negative" or Dormant Commerce Power (Congress is sleeping on the matter): unreasonable burdens
Unreasonable Burdens: even if a state law is non-discriminatory (i.e., it applies evenly, in-state and out of state), it may still be invalid if it imposes an unreasonable burden on interstate commerce.
STATE REGULATION OF INTERSTATE COMMERCE: step-by-step analysis:
When analyzing the validity of a state or local law regulating commerce: 1. See if there is a federal law in the picture. A valid federal law preempts inconsistent state law, or it may authorize any state law. 2. If there is no federal law mentioned in the facts of the question, ask whether the state law DISCRIMINATES against interstate commerce. Such a law invalid, unless the state is pursuing legitimate health and safety objectives and has no alternative means, or unless the state is granting subsidies or acting as a market participant. 3. If the state law is non-discriminatory, determine whether it is unreasonably burdensome, that is, imposes a disproportionately heavy cost on the free flow of interstate goods.
War and Foreign Affairs Powers: Foreign Agreements
When the President seeks to enter into agreements w/ foreign governments, some form of Congressional approval (even if only acquiescence) is required.
STATE REGULATION OF INTERSTATE COMMERCE: The "Negative" or Dormant Commerce Power (Congress is sleeping on the matter): where Congress has not acted:
Where Congress has not acted: (i.e., your fact pattern involves only the validity of a state law; there is no issue of preemption) state law may still be invalid if it discriminates against or unreasonably burdens interstate commerce.
Hypo: The Federal Safe Car Agency, acting w/in the scope of authority given to it by federal statutes, requires automobile bumpers to w/stand 100mph impacts. Do auto manufacturers have to follow this agency rule?
Yes, b/c agency is acting w/in scope of authority granted by federal statutes. A question of power (no inefficiency, stupidity, etc.).
Ex: Can Congress tell a farmer how much wheat he can grow on his farm, or prohibit the purely local cultivation and use of MJ?
Yes.
Hypo: plaintiff, suing as a taxpayer, brings suit to challenge, as cruel and unusual punishment, a state death penalty statute that allow capital punishment for double parking. Should the court dismiss the suit?
Yes. B/c even though the statute is unconstitutional, plaintiff is suing as a taxpayer and has no standing.
Ex: Can Congress criminalize loan sharking?
Yes. Business, commercial activity → Congress must have a wide net.
Ex: Can Congress prohibit racial discrimination in hotels and restaurants?
Yes. It can have an effect on interstate commerce b/c effects travel.
Hypo: Plaintiff, suing as a taxpayer, challenges the government's donation of a large airplane to Minister Marley. Should the court dismiss the suit?
Yes. It is a give away of property, not a challenge of taxing and spending. P loses for no standing.
Ex: Can Congress enact a ban on literacy tests as a condition of voting in state elections?
Yes. No redefining. Congress could rationally conclude that this could be used for racial discrimination.
Hypo: Congress imposes a federal tax on the sale of tickets to sporting events. Is this valid?
Yes. Valid under taxing power. Doesn't matter that sports don't APPEAR in every state.