Constitutional law outlined, Exams of Law

Download Constitutional law outlined and more Exams Law in PDF only on Docsity! CONSTITUTIONAL L AW CHAPTER 1. The SC Authority and Role §1 The Power of judicial Review • Judicial Review – is a doctrine that the courts have the power to invalidate governmental action which is repugnant to the Constitution. “It is emphatically the province and duty of the judicial department to say what the law is”. – Marbury v. Madison • State and federal courts have the power to review and invalidate the acts of Congress and of the Executive which are contrary to the Constitution A. Reviewing acts of Congress Marbury v. Madison – the SC held § 13 of the Judiciary At of 1789 unconstitutional, the act was read by CJ Marshal to enlarge the power of the SC’s original j/d beyond the limits defined in Art. III. This is invalid under the Supremacy Clause if Art. IV • Marshall reasons that it is judicial duty to say what the law is, the court must give effect either to the Act or the Constitution • Only federal laws “made in pursuance” of the Constitution are the Supreme Law of the Land under Art. VI Supremacy Clause • Art. V identifies two methods for initiating the amendment process: congress by 2/3 vote may propose amendments for ratification by ¾ of the states or 2/3 of the states may apply to congress to call a constitutional convention “for proposing amendments” Cooper v. Aaron – (ALSO an example of review of State action) The governor and legislature of Arkansas act unconstitutionally in attempting to interpose state sovereignty as a justification for refusing to obey SC’s decision declaring state mandated school segregation unconstitutional. • The federal judiciary is supreme in the exposition of the law of the constitution, and the principle has ever since been a permanent and indispensable feature of our constitutional system B. Reviewing Executive Action • In Marbury, the Court reasoned that where the Executive possesses legal or Constitutional discretion, judicial review would be precluded. But it’s the nature of executive action and not the office of the person that determines the appropriateness of judicial review. The fed. judiciary is supreme in interpreting the Constitution. C. Review of State Action • The Supremacy Clause of Art. VI establishes that the Constitution of the United States binds state officials, “anything in the Constitution or laws of any state to the contrary notwithstanding.” Thus, fed courts may review the constitutionality of state statutes and the actions of state officials involving matters of federal law. • When the state courts decide federal constitutional questions, the SC has appellate j/d under Art. III, §2, over such decisions because of need of uniformity in federal constitutional interpretation • Martin v. Hunter’s Lessee – Section 25 of the Judiciary Act of 1789 conferring appellate j/d on the SC over decisions of a state court is constitution for the reasons stated above Source of Judicial Power – Article III Jurisdiction • The “judicial power” , consisting of defined “cases and controversies”, including cases involving constitutional questions, is vested by the Constitution in. Art. III, in the SC and such inferior courts as congress may establish. The judicial power has been interpreted to include the power to review and invalidate as unconstitutional both federal and state action. CONSTITUTIONAL L AW • Unless a case falls within one of the “cases and controversies” identified in Art. III § 2, a fed court must dismiss the case for want of jurisdiction; courts must decide the j/d question as an antecedent question prior to reaching the merits. Congress cannot act or subtract from Art. III • Subject Matter Jurisdiction - Cases arising under the constitution, laws and treaties of the US (federal question j/d) and cases involving citizens of different states (diversity j/d) THIS BARS ISSUANCE OF MERELY ADVISORY OPINIONS (they don’t involve an actual case). • Whether federal courts were needed was left to congress. In the Judiciary Act of 1789 , congress created federal trial courts (district courts) and intermediate courts of appeal, judges under Art. II are protected to “their offices during good behavior” and prohibit their salaries from “diminishing”. • Congress cannot prescribe a rule for the decision of a case – US v. Klein (1872) • Retroactively requiring and Art. III court to reopen final decisions when congress changes the statute of limitations is in violation of Marbury. • Art. III gives the Fed Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Art. III hierarchy – Plaut v. Spendthrift Farms, Inc. (1995) • Original Jurisdiction – in all cases affecting ambassadors, other public ministers and consuls, and those in which the State shall be a party. • Appellate Jurisdiction – power is given with such “exceptions and regulations as congress shall make” • A congressional statute withdrawing SC appellate j/d to issue writs of habeas corpus was held constitutional, even though the case was already pending – Ex Parte Mcardle (1869) • Certiorari – SC review of lower court’s decisions is discretionary. The losing party below petitions for a writ of Cert. Cert. is granted when four justices vote to review the decision Rule of Four and its granted for special and important reasons (when there is conflict between highest courts of different states) or novelty of federal question. STANDING Case and controversy requirement – this requires that the case be in and adversary form and context that is capable of judicial resolution and that its resolution would not violate separation of powers principles. If this requirement is not met the, the fed courts lacks jurisdiction and therefore power to act • The fed. court may not furnish opinions on constitutional matters in a “friendly” non-adversary proceeding • Declaratory judgment – what legal consequences will apply to the conduct of litigants, rather than provide damages or injunctive relief • “No justiciable “controversy” exists when parties seek adjudication of a political question, when they ask for an advisory opinion, or when the question sought to be adjudicated has been mooted by subsequent requirements.” Lujan v. Defenders of Wildlife (1992) - Environmental groups lack standing to challenge a regulation by the Department of the Interior requiring agencies providing funds to projects affecting endangered species to consult with the Department only if the projects are domestic or on high seas. Although a desire to use or observe an animal species is a judicially cognizable injury in fact, the groups failed to show that one or more of their members were personally affected in a concrete manner. A statement of a vague intent to visit the habitat of the species without concrete plans or dates, is not and actual or imminent, concrete injury. Claims of a nexus between the habitats and the professional interest of members (zoologists) are “abstract and speculative”. • 1) Injury in fact – requires and invasion of a legally-protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical o Associational standing - claiming injury in fact, so long as any of its members might have done so and the claim is germane to the orgs purpose o Material bodily, financial harm, (but also intangible ones) vote dilution, loss of opportunity, aesthetic o The plaintiff must demonstrate personal interest and be himself among the injured • 2) Causation (fairly traceable) – actionable causal relationship between government action and the asserted injury, plaintiffs must demonstrate that the injury is “fairly traceable” to the action being challenged and not the result of some independent action of a 3rd party not before the court. o The burden is on the P to show causation o Allen v. Wright (1984) – an allegation that the IRS failed in its legal duty to deny tax exempt status to racially discriminatory private schools is a sufficient claim by parents where such failure CONSTITUTIONAL L AW Powell v. McCormack – whether the House of Reps. Refusal to seat Adam Clayton was constitutional was held justiciable. The SC determined that Art I §5, making each House “the judge of the qualifications of its own members”, is limited to the qualifications specified in the Constitution Art I §2 cl. 2, age, citizenship, and state residence. Goldwater v. Carter – a plurality of the court will treat the questions of the president’s power to unilaterally terminate a treaty as a political question since no constitutional provision directly controls the issue, the political branches have adequate resources to decide the issue, and the issue involves foreign affairs Nixon v. US – Art I § 3 cl.6 the senate should have the sole power to try all impeachments. “Sole” indicates the power is reposed in the senate and nowhere else CHAPTER 2. The Nation and the States in the Federal System McCulloch v. Maryland – In an action to collect state taxes against a federal corporation; the bank of the US, the question was raised as to whether congress had to power to incorporate the bank. The court noted that among the enumerated powers of government the word “bank” or “incorporation” is not found. Nevertheless the constitution did not enumerate all the means by which the powers it confers may be executed. Congress has implied power to create such a corporation if it is appropriate to the beneficial exercise of an enumerated (incorporation of a national bank by congress is a useful instrument for pursuing the fiscal powers of congress and only the fed can tax it as a fed. entity) Interpretation of N&P Clause in McCulloch – The terms “necessary and proper” have been interpreted to mean that if the end for which congress legislates is legitimate, within the scope of the Constitution, then “all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution are constitutional”. (Congress may use “reasonable” means for achieving its delegated powers) *In analyzing the constitutionality of federal statutes, always ask two questions: (1) is there a constitutional source of power and, if so (2) is there a constitutional limitation on the exercise of the power (separation and division of powers too) Art. I § 10 – expressly bars states from a short list of forbidden acts that might interfere with the national interests, including entering into treaties, coining money, granting titles of nobility, and requires congressional consent before states may impose customs duties, enter interstate compacts, or engage in war. Express Power of Congress – Art. I §8 expressly grants a variety of powers to congress including the powers to regulate commerce with foreign nations and among several states and to lay and collect taxes to pay the debts and provide for the defense and the general welfare of the US. The Const. also authorizes to enforce the guarantees of the 13th, 14th, and 15th. Implied Powers of Congress – “Necessary and Proper” clause Art. I §8 also provides that congress shall have power “to make all laws which shall be necessary and proper for carrying into Exectution thr foregoing Powers, and all other Powers vested by this Constitution in the Government of the US, or in any department or Officer thereof. US Term Limits v. Thornton (1995) – The 10th provides that “the powers not delegated to the US by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. Only powers that the states had prior to ratification in 1789 are deemed to be “reserved”. The power to add qualifications for members of the House is not “an original power” of the states and it is therefore not reserved!! The Supremacy Clause – Art. VI cl. 2 – “This Constitution , and the Laws of the US which shall be made in pursuance thereof; and all treaties made, or which shall be made under the authority of the US, shall be the Supreme Law of the Land; and the judges in every state shall be bound thereby, anything in the Constitution of Laws of any state to the contrary notwithstanding” (a constitutional exercise of the national legislative power can operate to override contrary state law) CHAPTER 3. The Commerce Power and its Federal-Based Limits COMMERCE POWER BEFORE THE NEW DEAL CONSTITUTIONAL L AW Gibbons v. Ogden – J Marshall initially defined “commerce” as a “commercial intercourse” including navigation. He then broadly defined “commerce among the states” as “commerce which concerns more states than one” including those activities “which affect the states generally” (HE NOTED THAT COMMERCE POWER DID NOT EXTEND TO THE “EXCLUSIVELY INTERNAL COMMERCE OF A STATE.”) The court interpreted the fed statute to preempt the NY monopoly law of ferries under the Supremacy Clause!!! Commerce Clause Art. 1 § 8 cl. 3 – granted congress the power to regulate commerce with foreign nations, and mong the several states, and with the Indian tribes. Direct – Indirect Test – Prior to the New Deal, Congress could regulate local activities having a “direct” effect on interstate commerce but not local activities having only an “indirect” or “incidental” effect on interstate commerce. US v. E.C. Knight Co. – in the early days the court drew a sharp distinction between local activities subject to state regulation such as manufacturing , mining and agricultural production and the “commerce” subject to congressional regulation. Such local activities were antecedent to interstate commerce. The sharp dichotomy between matters which under the 10th were left to the states and the subjects of federal regulatory power has been termed dual federalism. Congress lacked constitutional commerce power to regulate a monopoly in the manufacture of sugar. Manufacture is not part of commerce. Substantial Economic Effects Test – The ICC can constitutionally regulate local rates of a railroad engaged in interstate commerce to prevent price discrimination against interstate commerce. The commerce power “extends to all matters having “such a close and substantial relation to interstate traffic” that the regulation is appropriate to the protection of interstate commerce – Houston E. & W. v. US (The Shreveport Rate Case) (1914) The Stream of Commerce Test - some local activities should be regulated by congress because they could be viewed as themselves “in” commerce or as an integral part of the “current of commerce” . Local activities can be regulated by congress if they are part of the “stream” or “current” of interstate commerce. In defining interstate commerce, the court rejected a technical inquiry into the non-interstate character of some of the incidents of the activity, focusing instead on the overall movement of which they are apart. Purchase of cattle from one state to another is regulated – Swift v. US National “Police” Regulation – regulatory power of congress over commerce included the power to prohibit the interstate shipment of lottery tickets. Commerce between states carries with it the constitutional authority to legislate on a wide range of problems, not commonly regarded as commercial in character, which vitally effects the national safety and welfare of the nation because such commerce should not be “polluted” – Champion v. Ames (lottery case) (1903) Pretext Principle – Hammer v. Dagenhart (1918) (Child Labor Case) – the court held that federal regulation prohibiting the interstate transit of goods produced by child labor was an unconstitutional intrusion on state police powers and violating of the 10th . The act by congress did not aim to regulate transportation among the states, but aimed to standardize the ages at which children may be employed in mining and manufacturing within the states. It was unconstitutional to prohibit states from shipping goods resulting from child labor. PROTECTED PRINCIPLE (MODERN VIEW AFTER THE NEW DEAL) • TODAY, it is accepted that congress can legislate for social welfare objectives using its commerce power. It can close the channels of interstate commerce to traffic and regulate locally to protect interstate commerce from pollution and misuse. If congress exercises its delegated powers, express or implied, the 10th is not a limitation on congress’ power to regulate state activity.(HAMMER V. DAGENHART OVERRULED BY DARBY!!!) Carter v. Carter Coal Co. (1936) – congressional legislation regulating the hours and wages of workers in the coal mines was held unconstitutional. The act was a regulation of production, not commerce. While strikes in coal mining might severely disrupt the flow of interstate coal and damage the national economy, the wages and hours were only an indirect, incidental cause of the effects on interstate commerce. SUBSTANTIAL EFFECTS RATIONALE CONSTITUTIONAL L AW • Congress may regulate even local activity if it can rationally conclude that such activity has a substantial adverse effect on interstate commerce, regardless of whether the effect is “direct or indirect” (dropping the older view. The courts defer to the congressional judgment. AGAIN, the fact that the law has the purpose or effect of displacing state police power regulation does not make the federal law invalid. NLRB v. Jones & Laughlin Steel Co. (1937) - The National Labor Relations Board (NLRB) found that Jones & Laughlin Steel Corp. (Jones & Laughlin) engaged in unfair labor practices by firing employees involved in union activity. This case challenges the constitutionality of the National Labor Relations Act of 1935 (the Act) when the Act regulates activity that occurs solely within the boundaries of one state. • Rule - Congress has the power to regulate intrastate activities that potentially could have a significant impact on interstate commerce. U.S. V. Darby - Darby was charged with violating the Fair Labor Standards Act (the Act) by failing to comply with minimum wage and hour requirements for employees. He challenged the violation, claiming the regulation on intrastate wages and hours did not fall within the commerce powers of Congress. • Rule: If the regulated intrastate activity has a substantial effect on interstate commerce, Congress may regulate the activity regardless of Congress’s motive. • Darby – overruled DAGENHART and permitted congress to regulate the literal shipment of goods across state lines if the motive of the regulation was to control aspects of local production CUMULATIVE EFFECTS RATIONALE (demonstrates the outer limits of substantial effects rationale) • This “aggregation” approach is to determine the adequacy of the “substantial effect”. Congress may consider the cumulative effect of all the activities regulated even though the contribution of a particular activity may be trivial. Wickard v. Filburn (1942) – (doctrine of Aggregation ) a farmer who grows wheat for home consumption has only trivial effects on supply and demand for interstate wheat. However, such an effect is sufficient to include him under a federal regulation governing wheat production where congress could reasonably determine that this production or consumption of wheat, when taken together with that of others similarly situated, has a substantial on price paid for interstate wheat. Heart of Atlanta Motel v. U.S. (1964) – record evidence established that local racial discrimination in services imposed a qualitative and quantitative burden on interstate travel of black Americans. Congress can use the 1964 Civil Rights Act to regulate local activities “which might have a substantial and harmful effect upon that commerce”. The fact that congress was legislating against a moral and social wrong is ok. Perez v. U.S. (1971) – a congressional statute prohibiting the use of extortionate credit transactions is within the power of congress to regulate interstate commerce. A class of activities may be properly regulated by congress in spite of its police power purpose without proof that he particular intrastate activity against which a sanction is laid has an effect on interstate commerce. Congress could reasonably conclude that loan sharking supports interstate crime; the court will not consider the separate effect of the individual case. RESTRICTING THE COMMERCE POWER (Substantial Effects revived) U.S. v. Lopez – In the Gun-Free School Zones Act of 1990, congress made it a federal offense “for any individual to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone. Lopez, a 12th grader, was convicted for knowingly possessing a concealed handgun and bullets at his SA high school. The Court said that the Act exceeded the authority of congress under the commerce power. The possession of a gun is not an economic act that might, through repetition, substantially affect interstate commerce. CONSTITUTIONAL L AW • Further, the Act the power to execute laws from the president to the state in violation of separation of powers • When fed law violates state sovereignty, it is not reasonable means under N&P clause, it is not an exercise of delegated powers and the 10th Amendment applies. CHAPTER 4. OTHER NATIONAL POWERS: TAXING, SPENDING, WAR, TREATIES, AND FOREIGN AFFIARS Art. I § 8 – the congress shall have power to lay and collect taxes, duties, imposts, excises, to pay the debts and provide for the common defense and general welfare of the US. • This is a fiscal power and not an independent source of regulatory power. • However , congress can impose a tax if it is a N&P means of achieving a granted regulatory power and taxes do not lose their character as taxes because of an incidental regulatory motive or effect. • But if a taxing measure betrays on its face penalizing features, it loses is character as a tax and becomes a regulatory penalty not authorized under the fiscal taxing power. Bailey v. Drexel (child labor tax case) (1922) – Congress enacted the Child Labor Tax Law of 1919 which imposed a federal excise tax of 10% of annual net profits on every employer of child labor in the covered businesses. This was held as an invalid penalty rather than a tax. The provision that the employer would be liable only if he knew that the child was under the proscribed age limit, the court held that scienters are associated with penalties and not taxes. • To determine a tax from a penalty the court will consider o 1st – the amount of the tax o 2nd – the consequences for failure to pay o 3rd – scienter requirements o 4th – the identity of the administrating authority o 5th – the detail of the scheme or administration Objective Constitutionality – (doctrine of judicial obtuseness) – permits the court to uphold taxing measures by focusing only on the portions of the legislation which disclose a taxing purpose while ignoring other regulatory (penalty) features. McCray v. U.S. – the court held a .10 cent per pound on colored oleomargarine but taxing white oleomargarine at a rate of only 0.0025 cents per pound. The motive of the statute was clearly to give the dairy industry’s butter a competitive advantage over colored oleomargarine. Modern Trend – to accept any tax as a valid taxing measure, if it purports to be and is, on its face, a revenue-producing measure U.S. v. Kahriger (1953) – a tax on persons engaged in gambling, having a regulatory effect but producing revenue, even though negligible in amount, was held to be a valid tax. Filing and disclosure provisions were held to be reasonable regulatory features incidental to effectuating of the tax. • A federal excise tax does not cease to be valid merely because it discourages or deters the activities taxed o Unless there are extraneous penalty provisions to any tax need o Justice Jackson – economic and social consequences are inevitable THE SPENDING POWER AS A REGULATORY DEVICE U.S. v. Butler – a federal law providing grants to farmers, paid by a tax on processors, for the purpose of raising farm prices, held to be unconstitutional infringement on state power • Today, the 10th Amendment is generally viewed as a truism since grantees remain free to reject the fed grant and its attached conditions. While there is an inducement to participate, this is not the equivalent of coercion. Steward Machine Co. v. Davis(1937) – the court upheld a tax on employers under the Social Security Act to be used for payment of unemployment compensation to employees against the claim that the legislation violated the 10 th on the ground that congress may spend money to avoid the severe national consequences of unemployment. Hamilton’s view – the power to spend for the “general welfare” is not limited by the other grants of power in Art. I CONSTITUTIONAL L AW SOUTH DAKOTA V. DOLE – An Act of congress which authorized the withholding of a percentage of federal highway construction funds from states where the drinking age was under 21 is a valid exercise of the spending power; the 21st Amendment granting the states control over importation and sale of liquor and the structure of the liquor distribution system is not, as South Dakota contended, an independent constitutional bar to the conditional grant of federal funds. Although in some situations financial inducements might be as coercive as to constitute compulsion, all South Dakota would lose if it did not comply was 5% of the funds otherwise obtainable under the highway grant program. The coercive argument was more rhetoric than fact. The federal statutes relatively mild encouragement to the states to enact a higher minimum drinking age than they would otherwise choose was a valid use of spending power. Spending Power and South Dakota v. Dole – remains the court’s current statement on federalism-based limits to use the conditional spending power!! FOUR RESTRICTIONS ON CONGRESS’ SPENDING POWER: 1. The Spending must be for a General Welfare purpose 2. Any condition must be unambiguous 3. Conditions must be related “to the federal interest in particular national projects or programs.” 4. It must not infringe on any other constitutional provision General Welfare – Under the N&P clause, congress can spend for the purpose of achieving any of its delegated regulatory powers • But the Spending Clause is an independent source of fiscal power authorizing congress to spend for general welfare objectives o General Welfare is not limited to the specific objectives specified in Art. I § 8 regulatory powers but includes all matters of national concern Explicit and Unambiguous Conditions – conditions imposed in federal grants are akin to contractual conditions and must be clear and unambiguous to be enforced • The conditions must be clearly delineated so that the states can make informed choices as to whether or not they will accept the grant subject to the condition • Language not sufficiently clear is to be considered only as a policy statement and not as a binding commitment on the part of the state Reasonable Conditions – in implementing this power, congress may impose any reasonable condition upon the states as a prerequisite for participating in federal spending programs • While a condition that is totally unrelated to any federal interest in the program might be illegitimate o (this limitation has little practical significance today given the judicial deference accorded congressional spending measures) Constitutional Limitations – Constitutional limitations may provide and independent bar to the conditional grant of funds (the 10th Amendment) ***Congress is expressly empowered to spend for the General Welfare. While this does not permit congress to regulate for the General Welfare, it does authorize expenditures for any General Welfare purpose. The spending power is a fiscal, not a regulatory power. Nevertheless, congress can attach reasonable conditions to its grant of money The War and treaty Powers and Implied Powers Over Foreign Affairs • Congressional legislation, which would not be constitutional otherwise, is constitutional when it reasonably implements a treaty. • Some treaties are self-executing and do not require congressional implementing legislation. o A treaty which is NOT self-executing does not preempt state law CONSTITUTIONAL L AW o A presidential order, absent implementing legislation, has no authority to establish binding rules of decision that preempt contrary state law. Woods v. Cloyd W. Miller - Congress passed Title II of the Housing and Rent Act in 1947 to control rent in areas experiencing a housing deficit due to World War II. A landlord increased rent after hostilities ended in 1946 and the tenants brought suit to enjoin the violations. The Supreme Court of the United States agreed with the tenants. • Rule : Congress has the power even after the cessation of hostilities under Article I Section: 8 of the United States Constitution confer very broad authority to initiate whatever measures deemed necessary to provide for the national defense in peacetime as well as in wartime. This includes the ability to remedy conditions which the war created under the N&P Clause Missouri v. Holland - Missouri wanted to prevent US game warden Holland from enforcing Migratory Bird Treaty Act of 1918 (the Treaty). It claimed the Treaty infringed on Missouri’s 10th Amendment right against federal intrusion and that Missouri has a pecuniary interest as owners of the birds within its borders. • Rule : Treaties take precedence over any conflicting state law (regardless of whether the treaty came before or after the enactment of the state law). A federal law can trump an earlier rule in treaty if it is clear that it is meant to do so, or the provisions cannot be fairly reconciled. If the treaty comes later it can trump federal law even if federal law is inconsistent. The last will of the sovereign controls. Supremacy Clause of Art VI § 2 CHAPTER 5. Federal Limits on State Regulation of Interstate Commerce • CJ Marshall U - States have inherent “police power” to act for the health, morals, and well-being of their citizens. So we must focus on the constitutional limitations on state power (do not have “commerce” power) • Majority view on Federalism - defines federalism in favor of the national government, arguing that a state has only such reserved powers which it had before ratification and that the source of National power is the people of the entire nation • Minority view – enlarge state power, the 10th limits national government only to powers delegated by the people of each state, where the constitution is silent, it raises no bar to action of the states and their people. • Article 1 restraints on state regulation of commerce arise in three situations: ➢ Congress can limit state action by the negative implications (DORMANT COMMERCE CLAUSE) congress is silent: it has taken no action, express or implied, to make federal policy on a given subject matter. o Use the PIKE TEST (balancing approach) o Imposes some limitation on the ability of states to regulate when the state regulation affects interstate commerce o This rests entirely on the negative implications of the Commerce Clause Art. I § 8 cl. 3 on the unexercised commerce power itself o The court invalidate “protectionist” state legislation, even in the absence of congressional preemption o Art. 1 § 10 – bars states from imposing duties on imports or exports in foreign commerce without consent of congress ➢ Congress has exercised the commerce power, and the challenge to inconsistent state action rests on both the exercise of the commerce power under Art. I § 8 cl. 3 and the (PREEMPTIVE EFFECT) of the federal legislation under the Supremacy Clause of Art. IV o When a state regulation conflicts with federal law in a shared area (concurrent powers) or impedes the objectives, the federal regulation must prevail by force of the Supremacy Clause ➢ The (PRIVILEGES AND IMMUNITIES) Clause of Art. IV § 2 which guarantees to the “citizens of each state all privileges all privileges and immunities of citizens in the several states. (Does not apply to corporations). This provision bars certain state legislation that discriminates against out of state economic interests. o Bars state discrimination against out-of-state citizens Gibbons v. Ogden (1824) –(Steamboat Monopoly ) CJ Marshall – “commerce, undoubtedly is traffic, but it is something more: it is intercourse,” and that it reached into the interior of each state, allowing congress to regulate intrastate activities that “affect the states generally”. CONSTITUTIONAL L AW United Haulers Ass’n v. Oneida-Herkimer Solid Waste (2007) – County flow control ordinances which benefit public entities, but which treat all public companies the same, do not discriminate against interstate commerce for the purpose of the Dormant Commerce Clause • Even if ordinances clearly benefit publicly owned facilities but treated all in and out of state facilities the same. Such ordinance does not discriminate against interstate commerce for the purposes of the DCC THE MARKET PARTICIPANT EXCEPTION • A state or city may discriminate in favor of its own residents when it functions as a market participant, when acts as a buyer or seller of goods or services or engages in a program of subsidies or other economic incentives to aid in state business • The Dormant Commerce Clause does not prohibit the state from discriminating in favor of its own citizens if the state is a market participant. • Subsidies given to local economic interests, when funded from general revenues, do not involve the kind of regulatory burden covered by the Dormant Commerce Clause South-Central Timber v. Wunnicke (Alaska Case) – a statute requiring buyers of timber sold by the state to process that timber in state violated the commerce clause • The more that state action impacts on persons who are not parties to the state contracts, the more likely the state action will be treated as a regulation o While the state participated in the marketplace in selling its timber, a four justice plurality reasoned that the conditions of the statute on downstream processing constituted a regulation of the processing market, • Hughes v. Alexandria Scrap – a Maryland designed to reduce the number of junked cars in the state. A “bounty” was established on Maryland-licensed junk cars, and the state imposed a more stringent documentation requirements on out of state scrap processors than on instate ones o The court concluded that Maryland’s action was with which the Commerce Clause is concerned” because nothing in the purposes animating the commerce clause prohibits a state, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens • Reeves v. Stake (1980) – A state law giving preference to instate residents does not violate the commerce clause, the negative implications of the dormant commerce clause do not apply when the state acts as a market participant rather than a market regulator (The historical purposes of the Commerce Clause and respect for state sovereignty indicate that any restraint should come from congress rather than from the courts) o The principal of commerce clause places no limitations on a state’s refusal to deal with p[articular parties when it is participating in the interstate market in goods • White v. Massachusetts Council – An executive order of a mayor requiring all construction projects funded wholly with city funds or with city and federal funds be performed by a work force at least half of which are bona fide residents of the city does not violate the Dormant Commerce Clause o The impact of the law on out of state firms and residents is relevant only if the state is regulating the market o If fed funds were used, fed statues and regulations permitted the parochial favoritism congress can exempt from the DCC o Discriminatory Subsidies - require the expenditure of general public funds and thus will instate political safeguards Facially Neutral Law with Protectionist Purpose of Effect Baldwin v. Seelig –State efforts to stabilize milk prices, the state act set the minimum prices to be paid to milk producers by NY dealers, the law was unconstitutional as it applied to out of state dealers. The act also prohibited the instate sale of milk bought outside the state unless the price paid to producers was one that would be lawful under a similar transaction within the state. • Police power – the state acted within its right to ensure the health and welfare of its citizens but by taxing products entering the state CONSTITUTIONAL L AW • Rule – a state may not use its police power or taxing power to establish an economic barrier against competition with products originating in another state. Further, a state may not dictate the prices at which other states may sell their products and establish economic barriers against the entry of the products as punishment for not conformity H.P. Hood & v. Du Mond – a Boston milk distributor who obtained milk from NY producers and maintained three receiving depots was denied a license to establish fourth depot. NY state laws prohibit additional licensing because it might affect the state market. Rule: states are not separate economic units, and a state may not exclude out of state business in order to protect and advance local economic interests Hunt v. Washington Apple Advertising – when a state regulation has the practical effect of burdening interstate sales, it conflicts with the common market doctrine of the commerce clause and must be struck down Bacchus Imports v. Dias – the 21st Amendment’s repeal of the prohibition on intoxicating liquor does not empower local legislatures to erect barriers against interstate commerce in favor of the local liquor industry Exxon v. Governor of Maryland – the commerce clause protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulations. Therefore, a state law which regulates the particular structure or methods pf operation in a retail market is constitutional Facially Neutral Laws w/ Disproportionate Effect on Commerce Pike v. Bruce – RESIDUAL BALANCING TEST – where the 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 • If a legitimate local purpose is found, then the question becomes one of degree • And the extent of the burden that will be tolerated will of course depend on the nature local interest involved • And on whether it could be promoted as well with a lesser impact on interstate activities • The law had to have “a legitimate purpose and design” this is all according to JUSTICE STEWARD Kassel v. Consolidated Freightways Corp - Iowa exercised its police powers to enact a safety statute that prohibited the use of certain large trucks within its borders • Rule – when a state statute that promotes local interests yields only marginal gains and the interference with interstate commerce is substantial, the state statute is invalid under the CC • Dissent – it is not the judiciary’s task to balance state benefits against the burden to interstate commerce. Because congress can preempt the rational policy determination of a state legislature, a state statute carries a strong presumption of validity Balancing Interstate Harms Against Local Benefits South Carolina Highway v Barnwell Bros – In the absence of federal legislation, a state may impose nondiscriminatory restrictions on interstate commerce in order to promote local goals Southern Pacific v Arizona – a state may not enact transportation regulations that substantially burden interstate commerce and deprive interstate of uniformity when congress has deemed uniformity to be of importance CTS v Dynamics Co of America – when regulatory conditions imposed by state statues are consistent with the text and purpose of a federal law, the federal law does not preempt the state law • A state law which regulates interstate commerce and local business even handedly, but which more frequently affects out of state business, is not discriminatory and is a valid exercise of a state’s regulatory authority under the CC The Interstate Privileges and Immunities Clause (employment is subject to intermediate scrutiny not strict) CONSTITUTIONAL L AW • The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states • Standard of review – P&I review requires a substantial interest to which the governments reason is closely related ▪ Unlike the DCC – which permits facial discrimination only if the government has a compelling interest for which the law is the least restrictive means o It serves as a restraint on state efforts to bar out of staters from access to local resources o Like the 14th, Equal Protection Clause, protects citizens against discrimination ▪ Corporations – they enjoy no protection under the P&I clause ▪ Congress – congress may authorize , through affirmative exercises of it commerce power, state practices that would otherwise be impermissible under the DCC • P&I clause – is a right provision that congress may not waive ▪ Fundamental Rights – the P&I clause does not extend to all commercial activity but only to the exercise of fundamental rights or (fundamental national interests) ▪ Market Participant – the court has declined to recognize any market participant exception under the P&I clause at it has under the DCC United Bldg. & Construction v. Camden – a municipal ordinance required that at least 40% of the employees of contractors and subcontractors working on city construction projects be city residents • Rule – absent a substantial reason for the difference in treatment, a municipality may not institute policies which discriminate against residents of other states. Such policies violate the P&I clause • Dissent – Blackmun – because the P&I clause does not afford state residents and protection against their own state’s laws, intrastate discrimination based on municipal residency should not implicate the concerns of the clause Scope and Limits of P&I SC of New Hampshire v. Piper – a resident of Vermont took the NH bar, passed it and was denied admission because she had to establish residency • Rule – the opportunity to practice law is a fundamental right and thus protected by the P&I clause. o While that clause permits discrimination against non-residents where there is a substantial reason for the difference in treatment o And the discrimination bears a substantial relation to the state’s objective Preemption and Consent • The DCC – limits state regulatory power in the absence of congressional action o The CC – is not dormant, however, when congress affirmatively exercises that power ▪ Supremacy Clause of Art. VI – when congress exercises a granted power, the federal law, may supersede a contrary state law • Violation of Fed. Statute – when a valid federal statute explicitly bars certain types of state action there is no difficulty in finding state laws preempted • Clarity of a Fed. Statute – when a statute does not clearly disclose its intended impact on state laws, the claim is nevertheless often made congressional action preempts state authority regarding the SAME SUBJECT MATTER Pacific Gas & Co v. State Energy Commission – A California law imposed a moratorium on the certification of nuclear energy plants pending the federal government’s acceptance of a long term solution for the disposal of nuclear wastes. • Rule – when federal and state law intersect in an area traditionally reserved for state regulation, a state retains its historic police powers unless the state action is contrary to congress’ manifest purpose CONSTITUTIONAL L AW The Slaughterhouse Cases (1873 – a challenge from would-be competitors to the state-conferred monopoly (a Louisiana Law of 1869 chartered a corporation – the Crescent City Livestock Landing and Slaughterhouse Company – and grant it to it a 25 year right to maintain slaughter houses in an area that included New Orleans • Not Applicable to States – the SC definitively held that the P&I clause of the 14th did not make the Bill of Rights applicable to the states • Slaughterhouse’s view of the clause – the sole function of the P&I clause was to protect the rights secured to individuals in their relationship to the federal government (in their capacity as federal citizens) o The court’s narrow list of rights under the P&I clause : ▪ to petition congress ▪ to peaceably assemble ▪ to a writ of Habeas Corpus (unlawful restraint) ▪ to use navigable waters of the United States ▪ the right to interstate travel ▪ claim the rights secured by the 13th and 15th ▪ the right to vote in federal elections ▪ and the right to other express rights in the constitution • Rationale – reflected federalism values in rejecting the view that the P&I clause was intended to make all fundamental rights traditionally protected by state into constitutional rights which could be protected in federal court (so it was not seen as to protect fundamental rights when endangered as a result of state action or inaction) Recent Revival of the P&I Clause • Recent Revival (Saenz v. Roe) – the SC resurrected the P&I clause to protect that aspect of the right to travel that guarantees to travelers who elect to become permanent residents of a state, the right to be treated like other citizens of that state o Strict Scrutiny – discrimination against the newly arrived citizen based on the exercise based on the exercise of the right to travel, even if only an accidental burden, is a penalty, apparently subject to strict scrutiny Saenz v. Roe – California enacted a law restricting newcomers to the state to the level of welfare they would have received from the recipient’s former home state for a period of one year. • Rule - Such restriction prevents newcomers into a state from being full and equal citizens of the new state upon establishing a bona fide residence in the new state , and thus violates the P&I clause o Rationale – while the law might serve the state’s legitimate fiscal objective by reducing welfare expenditures, the state may not discriminate among equally eligible needy citizens • Dissent – Rehnquist – the court uses a provision that has previously lain dormant for over a century. Anyone affected by the California law has stopped traveling; thus the right to travel is not implicated. The court’s decision is inconsistent with decisions allowing states to charge higher college tuition rates to out of staters • Majority and dissent – both the majority and the dissent on the Slaughterhouse cases recognized this aspect of the right to travel as a privilege or immunity of national citizenship Right to Travel and the Equal Protection Clause • Strict Scrutiny – the right to travel is a “fundamental right” that requires strict judicial scrutiny CONSTITUTIONAL L AW Shapiro v. Thompson – various states provided that welfare assistance would be denied to those applicants who had not lived within their j/d for at least one year (the states wanted to protect the integrity of their fiscal assistance program) • Rule – a state assistant program imposing a durational residency requirement on some recipients of public aid penalizes those who exercise the fundamental right to travel. o State’s Burden of Proof - to withstand constitutional challenge, the state must show that the program promotes a compelling state interest and not just show a rational relation • Dissent – Warren – congress has imposed residence requirements under the commerce power. States should be allowed to make similar requirements under the commerce power. Incorporation of the Bill of Rights through the Due Process Clause Twining v. New Jersey – it is possible that some of the personal rights safeguarded by the first 8 amendments against national action may also be safeguarded against state action, because a denial of the would be a denial of Due Process of Law, it is not because those rights are enumerated in the first 8 amendments, but because they are of such a nature that they are included in the conception of due process Selective Incorporation Palko v. Connecticut – Palko’s second degree murder conviction had been set aside by the highest state court on an appeal taken by the state. On retrial, he was convicted of 1st degree murder. He claimed that such a retrial in the federal courts would have violated the 5th‘s double jeopardy guarantee and argued that • Palko’s arguments for incorporation of the Bill of Rights to state action or inaction: o First – “whatever is forbidden by the 5th is forbidden by the 14th also.” o Second – “a violation of the original Bill of Rights if done by federal government is now equally unlawful by force of the 14th if done by a state • Cardozo Opinion – there is no such general rule, he noted that the SC had applied to the states some Bill of Rights guarantees (free speech and right to counsel) but not others (grand jury indictment and the protection against self- incrimination) Total Incorporation Adamson v. California – a 5-4 majority adhered to Justice Cardozo’s approach over Justice Black’s dissent • Justice Black Dissenting – used the Twining decision – “this court is endowed by the constitution with boundless power under NATURAL LAW to expand and contract constitutional standards to conform to the courts conception of what a particular time constitutes “civilized decency” and fundamental liberty and justice. o J Black – disagreed on such broad power granted to the Court under the Natural Law Theory o J Black’s 14th - “in my judgment history conclusively demonstrates that the language of §l of the 14th taken as a whole, was thought by the drafters to guarantee that thereafter (the civil war) no state could deprive its citizens of the privileges and protections of the Bill of Rights – to extent to all the people of the nation the complete protection of the Bill of Rights Fundamental Fairness Standard of Incorporation Duncan v. Louisiana – Defendant was convicted of simple battery after a trial w/o a jury, pursuant to the Louisiana State Constitution • Rule – (J White) the right to a jury trial is fundamental to the American scheme of justice and is therefore binding on the states as a due process requirement • Concurrence – (J Black) the entire 14th amendment should incorporate the bill of rights, making them applicable to the states JUSTICE BLACK ASSERTS HIS DISSENT IN ADAMSON • Concurrence – (J Fortas) Although a jury trial is fundamental right and should be made applicable to the states, the specific details of the jury rules should be determined by the states • Warren Court’s Fundamental Fairness Standard – the court looked at the facts of a case and asked whether the challenged state action the “fundamental fairness” requirement implicit in due process CONSTITUTIONAL L AW o Later Approach – ascertained the relevant bill of rights provision and asked whether provision is essential to “fundamental fairness” such that it should be made applicable to the states Rights That Have Been Incorporated • As a result of selective incorporation ALL of the criminal process guarantees of the Bill of Rights have now been held applicable to the states EXCEPT: o The grand jury indictment provision of the 5th o The excessive bail provision of the 8th • Other Rights not applied o The protections of the 2nd or 3rd Amendments and o Or the right to a jury trial for civil suits at common law for more than $20 set forth in the 7th Mapp v. Ohio - finding the exclusionary rule an essential part of the right to privacy • Exclusionary Rule – barring the use of evidence obtained in violation of the 4th • Incorporation after Mapp - meant not merely incorporating the “core” of the bill of rights guarantee, but applying to the states every detail of the contours of the guarantee Incorporation and the right to bear arms DC v. Heller – DC law prohibits the keeping of a loaded gun in the home • Rule – (Scalia) at the time of its enactment the 2nd Amendment was understood to protect an individual right to keep and bear arms. The prefatory statement about a “well-regulated militia” only provided the reason for protecting the right, not the substance of the right itself. While certain gun restrictions remain constitutional, a ban on the home possession of a loaded gun for self-defense by someone who is not mentally ill or a felon is not constitutional • Dissent – (Stevens) the history from the drafting era shows that the amendment was designed to protect the right of Americans to form effective militias. Even if the evidence were close respect for precedent favoring the militia interpretation would counsel rejecting the claim • Dissent – (Breyer) even in assuming the right at issue is an individual right the DC law should be upheld as a reasonable restriction on the right, given the problem of gun violence and the only slight degree to which the law restrict individuals’ rights to possess guns. • Caveat –the Heller decision did not face the question of whether the 2nd applies against the states, since the law was a federal one for the DC. As of 2009, the issue remains potentially unsettled. CHAPTER 8. Due Process • Due Process Clauses of the 5th and 14th – the SC has held that the clauses restrict the substance as well as the procedures of governmental regulation • Substantive Due Process – court may impose substantive limitations on what government can do • Procedural Due Process – procedural protection when government regulation burdens, life, liberty or property Substantive Due Process and Economic Liberties Calder v. Bull – the Court rejected an attack on a Connecticut legislative act setting aside a probate court decree that had refused to approve a will; the legislation approved the will after a second hearing. The heirs argued that the ex post facto barred the legislative act