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Law School Constitutional Law I

Law School Constitutional Law I

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Law School Constitutional Law I Outline covers the Federal Executive Power, Legislative Power and Judiciary Power. All major cases are discussed.
Law School Constitutional Law I Outline covers the Federal Executive Power, Legislative Power and Judiciary Power. All major cases are discussed.

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CONSTITUTIONAL LAW I OUTLINE

I. THE FEDERAL JUDICIAL POWER: A. The Authority for Judicial Review:
• • • • • The authority for judicial review (over both federal executive and legislative acts) was first announced by the Supreme Court in Marbury v. Madison. Definition: Power of Supreme Court to review acts of the federal government and decisions from state courts. Gave the Supreme Court the power to declare acts of Congress unconstitutional. Also- demonstrates power over executive. If political function – no redress in court. Marbury was a last-minute judicial appointee of outgoing President Adams, whose commission was not delivered to him before Adams left office; Jefferson, the incoming President, declined to deliver the commission. P and the others took their case to court seeking a writ of mandamus (order granting public officer or court to do a specific thing). 3 Questions: (1) Does Marbury have a legal right to the commission? YES- as soon as the President signs the commission and the secretary of state affixes a seal of the US, the appointee has a vested legal right in the commission. (2) Does he have a legal remedy? YES- where a duty is assigned to the head of the department by the Legislature, and individual rights depend on performance of that duty, an individual who is injured has a right to a remedy. (3) Should he win this lawsuit? NO!! Where the Constitution, as interpreted by the S. Ct., conflicts with the laws or actions of the other branches of government, the Supreme Court may declare such laws or actions unconstitutional or invalid. Here, the remedy of the Judiciary Act of 1789, conflicts with Article III, sec. 2 of the Constitution, which does not grant original jurisdiction to the Supreme Court over cases involving executive officers. Specifically, Article III, Sec 2 grants the S. Ct. original jurisdiction only “[i]n all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party.” Chief Justice Marshall writes “It is emphatically the province and duty of the judicial department to say what the law is.” Marshall made two interlocking arguments: (1) Constitution is paramount: any act of the legislature repugnant to the Constitution must be void; and (2) Who interprets: the courts (not the legislature) who determines whether an act of congress is in conflict with the constitution. Reasons for the decision: -Because judge’s have particular skills due to their training and experience that make them better prepared to deal with this issue; -Interpretation of the Constitution is part of the court’s job as described in Article III. -Pursuant to Art. 6 sec. 3, judges are bound by oath to support the Constitution. In order to support it, they must be able to examine the instrument and interpret it. 1

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Key propositions established by Marbury v. Madison: (1) The court draws a distinction btw areas in which there are individual rights, and therefore governmental duties, and those in which the executive has discretion as to how to act. In the latter, the court says that only the political process is the check on the executive branch. (2) Congress cannot expand the original jurisdiction of the S. Ct. Marbury v. Madison establishes only the authority for judicial review of federal executive and legislative actions. The authority for judicial review of state court decisions (appellate review) was established in two decisions: Martin v. Hunter’s Lessee and Cohen’s v. Virginia. The argument that the State was an independent “sovereign” was rejected. Judge story argued that the structure of the Constitution presumes that the S Ct. may review state court decisions. (Supremacy Clause argument and need for uniformity)/ Story argued that the Constitution creates a S. Ct. and gives Congress discretion whether to create lower federal courts. But if Congress chose not to establish such tribunals, then the S. Ct. would be powerless to hear any cases, except for the few fitting within its original jurisdiction, unless it could review state court rulings.

B. Limits on the Federal Judicial Power:
1. The Exceptions and Regulations Clause: • • • • Article III, Sec. 2 provides that the “S. Ct. shall have appellate jurisdiction, both as to Law and Fact, which such Exceptions, and under such Regulations as the Congress shall make.” Also, the lower federal courts do not even exist until Congress creates them. Article III, Sec.1, provides that the federal judicial power shall vest in the S. Ct. and “in such inferior courts as the Congress may from time to time ordain and establish.” In Ex. Parte McCardle, the Court adopted a broad reading into the exceptions and regulations clause. Facts: While appeal of a habeas corpus petition was pending on the Supreme Court’s docket, Congress passed legislation eliminating the Supreme Court’s appellate jurisdiction in habeas corpus cases. Specifically, Congress repealed the part of the 1867 Act. Although the S. Ct.’s appellate jurisdiction is derived from the Constitution, congress has the power to make exceptions and regulations to this jurisdiction. The Court concluded that the limitation enacted by congress here was such an exception that fell in Article III, Sec. 2 and thus, the court had no jurisdiction to decide the case. Note: Congress was not completely withdrawing the S Ct.’s to hear habeas corpus cases. Rather, it was withdrawing that right only where the S. Ct. got the case by appeal from the lower courts. An original petition for habeas corpus could be commenced in the S. Ct. itself or even if only the lower courts had jurisdiction, the litigant could file for habeas corpus relief- but the lower court decision would simply be final. 2

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• • • •

McCardle does not by any means stand for the proposition that Congress may strip the federal courts in their entirety of the right to issue habeas corpus relief. Congress can limit in which way a person brings an appeal, but it can’t eliminate it entirely. Less than a year after its decision, the Court in Ex Parte Yerger held that it had authority to review habeas corpus decisions of lower federal courts under the 1867 Act. Felker v. Turpin: A death row inmate challenged a federal statute limiting prisoner’s rights to file second habeas corpus petitions on the grounds that it unconstitutionally limited the appellate jurisdiction of the U.S. S. Ct. In Felker the court concluded that the Anti-terrorism and Effective Death Penalty Act , which limited prisoner’s rights to bring subsequent habeas corpus claims, was not unconstitutional bc it did not infringe on the S. Ct.’s authority to hear original habeas petitions.

2. Separation of Powers as a Limit on Congress’s Authority: • • Congress does not have unlimited power to tamper with the S. Ct.’s appellate jurisdiction. U.S. v. Klein: Klein sued in the Court of Claims under a federal statute allowing citizens who had abandoned property to federal troops during the civil war to recover compensation for it, if they could satisfy a loyalty requirement. Klein won in the court of claims, on the strength of earlier claims holding that a general presidential pardon satisfied the statutory requirement that the claimant not have been a supporter of the Confederacy. Before the government’s appeal was heard in the S. Ct., Congress passed a new statute providing that a presidential pardon would show the opposite ( that the claimant had supported the Confederacy); the statute also provided that the court of claims and the S. Ct. were both without jurisdiction to decide cases where a pardon had been granted. In Klein, the court ruled that the law in Q violates the separation of powers for two reasons: (1) the law surpasses congressional power to create exceptions and regulations to the S. Ct.’s appellate jurisdiction; and (2) the law interferes with the executive’s exclusive power to pardon, a power granted without limit by the Constitution. Congress may not tell the S. Ct. how to decide specific cases. It may not provide a rule that controls the way in which cases are decided. Otherwise it invades the power of the judicial department to decide cases. Congress may not decide the merits of a case under the guise of limiting jurisdiction. The language of the law seems to be “result-driven,” and the law if allowed would impact pending cases. It is the judicial branch that looks at the facts to determine the outcome.

• • •

3. Justiciability Limits: • Justiciability matter that is appropriate to be brought to court. 3

This violates the Article III principle that federal courts are empowered to “decide” cases.S. there must be a substantial likelihood that a federal court decision in favor a claimant will bring about some change or have some effect. a. o Opinion of the Justices: Jefferson. Ct. the problem the court had with the legislation was that it would turn decisions already issued into advisory opinions by saying that even though the courts’ reached final decisions based on the law at the time. Court said it is not the appropriate function of the S. The jurisdiction of the Court is limited to judicial power. sent a letter to the S. The court declared this unconstitutional because it requires the courts to reopen cases on which a final judgment has already been rendered.e. v. through retroactive legislation.” The court will not hear cases in which: o A litigant 1) Seeks an advisory opinion 2) Lacks standing o An issue 1) Is moot 2) Is not ripe 3) Is banned by the 11th Amendment 4) Contains a political Q * Underlying concern: it is important for the court to restrict itself to preserve its authority as a non-political branch. to give advice. asking for advice for President Washington. the secretary of the state. Sec. (On state level – advisory opinions are permissible). those decisions could now be ignored. “cases and controversies. Ct. o Separation of Powers: Congress may not. 2 “cases” and “controversies. i.” This keeps the Court focused on that which it does. 2) Second.• • Derived from the Constitution: Article I. (Separation of powers problem). set aside judgments that have already been entered by the Court. there must be an actual dispute between adverse litigants. o U. Prohibitions of Advisory Opinions: o Definition: an advisory opinion is an opinion requested by an executive official or legislature asking a court to rule on the constitutionality of some proposed government action before the law has been applied to anyone. o Advisory opinions are not within Article III definition of a case or controversy so federal courts may not issue such opinions. Plaut: Congress passed legislation allowing cases on which the federal courts had rendered final decisions to be reopened in some situations. 4 . o In Plaut. o Requirements: 1) First.

*****3 Questions for justiciability***** who? (standing) when? (ripeness. Duke Power Co: You don’t necessarily need harm connecting to what you are challenging. Later the secretary made new regulations re-interpreting the Endangered Species Act to apply only to projects within the US or on the high seas [it formerly was construed as reaching projects overseas]. P’s did not have standing. When wildlife activists sued. Wright: Black parents sued IRS for granting tax-exempt status to discriminatory private schools and thereby interfering with the desegregation of their public schools. Lujan v. But they could show that they lived in fear of it. • Prudential standing requirements: 5 . Standing: • • • • Whether a specific person is the proper person to bring a matter before the court. Article III requirements of standing: o Injury in fact: the P must allege that he/she has suffered or imminently will suffer an injury. it authorized any person to sue the administrative agency for violating it. the agency claimed they lacked standing. P’s couldn’t show a nuclear explosion was imminent. That the members visited the areas proves nothing. Defenders of Wildlife: When Congress passed a statute protecting endangered animals. and whether there are enough in the parents’ communities to affect desegregation efforts at their schools]. since they are not directly harmed. respondents would have had standing]. Here. mootness) what? (political Q doctrine) b. and the intent to return to those places to see the wildlife is not enough. P has not satisfied the injury requirement. P’s alleged 2 injuries: (1) direct harm from the mere fact that of federal aid to discriminatory private schools—insufficient to give standing [if one of the students were denied form the private schools. [It is uncertain how many discriminatory schools are receiving tax exemptions. (Ask: Do they have a stake in the outcome? If no remedy. and (2) the parents diminished ability to have their children educated in racially desegregated schools: is not fairly traceable to the alleged unlawful conduct. no stake in the outcome) Allen v. o Redressability: P must allege that a favorable federal court decision is likely to redress the injury. Standing consists of: Constitutional requirements and prudential requirements. that there was thermal pollution and radioactivity. Held. Held. The standing issue does not relate to the merits of the case. so long as the intentions are not accompanied by concrete plans [if respondents had booked flights they could have proven injury bc they were going there soon]. o Causation: P must allege that the injury is fairly traceable to D’s conduct.

6) Exception: • Unless the taxpayer claims that the tax $ violates the Establishment Clause.” P’s. Singleton v. Person bringing the case must himself have constitutional standing. Persons may sue to protect a third party’s right only when: (1) the relationship btw the parties is sufficiently close such that the person suing may advocate effectively for the right and (2) there are genuine obstacles to the third party asserting 6 . AND 3. 5) (Do have standing as state/local taxpayer bc closer connection). o No generalized grievances 1) A generalized grievance is insufficient to support standing bc it is a grievance shared by all. but someone else’s constitutional rights are targeted. *Note: a “next friend” suit is brought on behalf of a child. and indeterminate to justify standing. 2. abortion doctors sued to receive Medicaid payments through the state for abortions they had performed that were not “medically indicated. 1) Exceptions: 1. Dr. Genuine obstacles: difficult/impossible for third party to vindicate his interests. o Tax $ is being used to establish religion. remote. Wulff: Missouri passed a statute that would provide benefits to a needy woman seeking an abortion only when the abortion was “medically indicated. a person may not raise the constitutional rights of another. 2) The remedy for a generalized grievance does not lie within the judiciary. uncertain. (vote them out of office). Close relationship between the person suing and person whose rights will be vindicated.you bring the suit for yourself. Congress by statute may overrule the prudential requirements bc they are not derived from the Constitution. “Third party standing” . o No third party standing. but he isn’t the one who is having the abortion. For drs. You must have parallel interests: the rights are interrelated. Unlike constitutional barriers. (they cant bring the case themselves bc their legal rights were not violated—ex. in Singleton has constitutional standing. Sue as citizen (generalized grievance. AND o Tax-payer is challenging an exercise of Congress’s taxing and spending power.his right of reproductive freedom was not violated).Richardson) 4) Rationale: Federal taxpayer does not have standing to challenge expenditures by the federal government because his/her interest is too minute. Sue as a taxpayer (motive is still to raise general grievance). 3) Two ways to bring suit: 1. 2.” Held. Generally. but instead from the Court’s view of prudent judicial administration.

Taxpayers challenged federal funding for academic instruction. the child doesn’t want. 8 taxing and spending power. Ripeness: 7 .the right in court. Frothingham v. Constitution. An indigent woman who might seek an abortion could not safely exercise her right to an abortion w/o access to her physician and Medicaid assistance to pay for that access. Thus. its suit does not meet the narrow conditions that allow for taxpayer standing. Sec. No standing bc the interests of the parent and child are not parallel and are really potentially in conflict. P does not allege that funds have been allocated in violation of a constitutional limit on the taxing and spending power. the taxpayer must be challenging an action taken by Congress under its Article I. Held. Sec. Held. The court limited Flast to its facts. (Property Clause). Newdow is seeking something that the mom and. there was no “third party” standing bc his interests were adverse to the child’s interest. Second. P claimed that he needed the info as a voter and to understand the actions of the federal government. Held. There is no “next friend” standing bc the right to make decisions on behalf of the child was the mom’s right.S. Valley Forge Christian College v. Flast v. both are satisfied. Mellon controls here. Here. Elk Grove Unified School District v.e. Also. 9 of the U. Because the pledge contained the phrase “under G-d” Newdow alleged a violation of his and his child’s First Amendment right. Americans United filed suit in federal court claiming that donation of the property to Valley Forge violated the Establishment Clause. obstacles exist such as the woman might be scared off bc of privacy reasons. P’s claim does not satisfy either part of the Flast test. The challenged statute is regulatory in nature. Newdow: School-girl’s father. Taxpayer status does not confer standing to challenge in federal court the constitutionality of actions taken pursuant to Congress’s power over federal property. i. Sec. and by the time get to court mother would have had the baby. Likewise. Because P’s do not allege a violation of Congressional authority under the taxing and spending power of Article I. therefore. United States v. Taxpayers had a sufficient “personal stake” in the case to give them standing in federal court. no standing. not made pursuant to the taxing and spending power. no standing. not Newdow’s. the taxpayer must allege that the challenged levies or expenditures violate specific constitutional limits on governmental power. 8. sued the school district on his own behalf (“third party standing”) and as “next friend” bc it required that every elementary school must begin each day with the pledge of allegiance. Mellon). Richardson: A taxpayer sued to compel the CIA to release details of its expenditures pursuant to Article I. Furthermore. books and materials in private religious schools. First Amendment Establishment and Free Exercise clauses. an atheist. but rather looks to compel a release of information. Americans United for Separation of Church and State: A taxpayer group challenged a donation of land to a Christian College authorized under a federal surplus property statute. c. Cohen: Carves out exception to general the general prohibition against taxpayer standing (Frothingham v. Held. You can’t have third party standing if seeking something different than they want. 2 part test: First.

Held. If they failed to comply. injury cannot be speculative or hypothetical (can’t bring case unless you’ve been prosecuted/effected by the statute). Because the sate has not chosen to enforce its anti-conception statute (and appears unlikely to do so) the issue of the statute’s constitutionality is not ripe for determination by the federal courts. o Must have imminent or actual injury. [The regulation was self-executed as opposed to Poe where they didn’t know what would happen. Contraceptives are sold openly in Connecticut stores. also if the parties settle the matter. Here. that a prosecution would result from the giving of private medical advice. Mootness: • • • Ask: When? A Q of timing. o Fitness of issue for judicial review. the high costs and impacts what would arise if the court were to delay hearing the case outweigh the risks of premature decision. yet no prosecutions have resulted. not the parties. the case is to be dismissed as moot. the companies faced fines and criminal penalties.• • • • • • Ask: When the litigation may occur? (It is a Q of timing) Where standing is met and matter has evolved fully enough so appropriate for court to adjudicate it. therefore. It is unlikely. Requirements: o Court will not hear a case that is premature (nothing has happened yet). a 8 . If anything occurs while a lawsuit is pending to end the P’s injury. Ullman: A dr.if there’s enough factual info for court to render judgment. Principle behind ripeness: Case is ripe when person is forced to choose btw foregoing a Constitutional right and facing changes.] d. Abbot Labs v. (here there is harm). P’s alleged that the anticonception statute violated the 14th Amendment. There is no longer a live controversy between adverse parties. criminal D dies during appeals process or if a civil P dies where the cause of action does not survive death. Under what circumstances will the court hear the case? o Substantial hardship to party if court doesn’t hear the case. A case is considered ripe for federal court resolution when (1) the issue(s) presented are appropriate for a judicial decision and (2) the parties would face hardship if the court declined to hear the case. The drug companies alleged that complying with this order would be very expensive. Poe v. Held. Look to the subject matter of litigation. Gardner: Drug companies challenged a law that would have required them to print the generic name of a drug on all labels and ads containing the drug’s name. Ex. and some of his patients challenged a Connecticut law that forbade medical personnel from disseminating information about contraception. How do you distinguish btw standing and ripeness? Ripeness = Issue must evolve enough and facts must be clear so can be resolved.

the alleged wrongs would continue or resume. 1) The Court has held that a properly certified class action suit may continue even if the named P’s claims are rendered moot.” and thus so long as the members of the class have a live controversy the case can continue. (this is the flipside of the standing burden whereby P must show that if the litigation does not go forward. o Class Actions. United States Parole Commission v. 2) Exception: Only if there is no reasonable chance that the D could resume the offending behavior is a case deemed moot on the basis of voluntary cessation. 3) The Court has reasoned that the “class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by the P. if a challenged law is repealed or expires. Held. 2) When class members continue to have live controversies. Geraghty: Federal prisoners were appealing a District Court’s denial of their certification as a class when the named P’s case became moot (bc he was released form prison as the appeal was pending). The flexibility of the mootness doctrine is manifested in three exceptions to the mootness doctrine: (D has the burden): o “Wrongs Capable of repetition yet evading review” 1) Type of injury of inherently limited duration (preg. Laidlaw Environmental Services: Defendant-polluter argued that its recent compliance with national standards and plant shutdown mooted a citizen suit alleging violations of the Clean Water Act. v. 1) A case is not to be dismissed as moot if the D voluntarily ceases the allegedly improper behavior but is free to return to it at any time. Mootness issue is easy to get around—by adding $ damages not just injunctive relief. Friends of the Earth. Held. the fact that the named Ps case becomes moot does not make the entire class action moot. Defendant’s voluntary cessation of actions that are the subject of a Complaint does not make the lawsuit moot unless there is no reasonable chance that the D can return to the actions.• • • live controversy obviously no longer exists. the D’s behavior is likely to persist). Inc. Here. the fact that Laidlaw retained its polluter’s permit may show that the violation s could reoccur (remanded to trial court). 3) Heavy burden placed on the D in proving to the court that there is no reasonable chance that the violation could recur. The mootness doctrine is derived from Article III’s prohibition against federal courts issuing advisory opinions. the case is moot). o Voluntary cessation. In such as case as this one where the dispute remains btw members of the potential class and the D. (not other people).) 2) Substantially likely that injury will reoccur to same P again. All 3 exceptions share a concern that unless the case is resolved. the mootness of the named P’s 9 .

Based on review of precedent the Court holds that the case here neither rests upon nor implicates the Guaranty Clause. Held. The S. has long refused to find cases under the Guaranty Clause judiciable (Article IV. Sec. Sec. Political Question Doctrine: • • • The court will not hear a case because another branch of government is better equipped to handle the situation. OR o The potential for embarrassment from various pronouncements on a single issue by different departments of government. Ct. 5 gives Congress the sole authority to determine the qualifications for membership [“be the judge of the Qualifications of its own members]. o The impossibility of a court’s undertaking independent resolution without expressing a lack of respect to other branches of government. 5 demonstrably commits to Congress only the 10 . o A lack of judicially manageable standards for resolving the Q. 6 circumstances in which the court will treat as Political Q: (Baker v. Powell v. which the federal courts may not address? NO. The political Q doctrine does not prevent the federal courts from deciding this case. The political Q doctrine refers to subject matter that the court deems to be inappropriate for judicial review. McCormack: The 90th Congress voted not to seat member-elect Powell due to his past improprieties. Areas where the court is likely to declare an issue to be a non-justiciable political Q: o Foreign policy o Impeachment and removal o Challenges to congressional self-governance o Guaranty Clause • Baker v. e. Carr) o A constitutionally assigned duty or power to a branch of government (separation of powers) [“a textually demonstrative constitutional commitment of the issue to a coordinate branch of government’]. none of the (6) circumstances listed above is present in this case. Furthermore. 4: “the US shall guaranty to every state in this union a Republican form of government”). The fact that other prisoners moved to have themselves substituted for the named P underscores that the controversy is ongoing. Congress argued that Article I. Sec. o An unusual need for adherence to a political decision already made. o The impossibility of a court’s deciding the issue without an initial policy determination of a kind clearly for non-judicial discretion. We agree with Powell that Article I. Just because a Guarantee Clause approach could not have succeeded does not mean that the voters cannot have their case heard on the equal protection claim. Carr: Whether there was a textually demonstrative commitment? Does an equal protection claim complaining of the mal-apportionment of a state assembly constitute a nonjusticiable political Q.case does not prevent appellate courts from considering an appeal of the class certification denial. The fact that the suit seeks protection of a political right does not mean that it is necessarily a political Q.

The Senate invoked a rule under which a committee of senators is appointed to receive evidence and take testimony. Thus. Sec.S treaty with Taiwan.authority to judge the qualifications enumerated in the Constitution. Introduction: Congress and the States: • • • Article I of the Constitution begins by stating “All legislative powers herein granted shall be vested in a Congress of the US which shall consist of a Senate and House of Representatives. nor prohibited by it to the state. President Carter terminated the U. 8. or by other parts of the Constitution. After the senate committee held an extensive hearing.” 2 Questions in evaluating the constitutionality of any act of Congress: o First. and (2) the Constitution does not explicitly instruct us as to the Senate’s role in treaty dissolution. I. challenged the constitutionality of the Senate’s impeachment procedure. In so holding the plurality reasons that (1) the court will in general avoid foreign policy issues when possible. the Executive and Senate should resolve the issue btw themselves. does Congress have the authority under the Constitution to legislate? (Art. [the concurrences suggest that since Nixon received due process in the senate and the decision should stand to avoid embarrassment]. Section 2 requires the Senate to ratify treaties. are reserved to the states respectively. Held. The language is broad enough to include how many people should be sitting. the 10th Amendment declares: “The powers not delegated to the US by the Constitution. The Senate’s role in the termination of treaties is a nonjusticiable political Q. it presented the Senate with a full transcript and a summary of the contested facts. II. It does not extend blanket authority to Congress whether or not to seat a member-elect who meets these qualifications. bc Article II.” Additionally. such as by infringing separation of powers or interfering with individual liberties? Implied Powers: this notion is itself explicitly stated in the “necessary and proper” clause of Art. if so. I. Nonjusticiable matter. does the law violate another constitutional provision or doctrine. clause 6 of the Constitution gives the senate sole power to try all impeachments. or to the people. THE FEDERAL LEGISLATIVE POWER: A. 8)? o Second. The judiciary may not review the Senate’s trial of an impeached official. impeached by the Senate. Some members of congress sued.S. McCulloch v. Sec. Article I. Final arguments were held before the entire Senate. 8: Congress may “make all Laws which shall be necessary and proper for carrying into Execution” the specific legislative powers granted by Art. Held. relations with the Mainland Chinese government. claiming that the President’s actions were unconstitutional. Maryland: • • 11 . sec. 3. I. Goldwater v. United States: A federal judge. Nixon v. Sec. Carter: In conjunction with normalizing U.

cl. B. and thus violated the supremacy clause. o Marshall relied upon the ‘necessary and proper’ clause as justification for Congress’ right to create a bank even though such a power was not enumerated. Deference. Maryland sued McCulloch arguing that the establishment of the bank is unconstitutional. P appeals to the S. and with the Indian Tribes. on the ground that it was based upon a monopoly that conflicted with a valid federal statute. The Commerce Clause also acts as a limit on the exercise of state power in the interstate commerce arena. Congress has the implied power to enact legislation so long as its ends are legitimate under the Constitution and the legislation is appropriate and plainly adapted to those ends. and rejected the contention that “necessary” meant “absolutely necessary” or “indispensable. The measure was intended to discriminate against the national bank. not from the states. and its Maryland branch. o Held. P. McCulloch.” Provides Congress with the authority to affirmatively regulate all commerce that is not exclusively founded and finished within the borders of a single state. o In concluding that the Bank was constitutionally chartered. 3: • • • Gives Congress the power “to regulate Commerce with foreign Nations. sec. The Commerce Power: Article I.” Power to create the bank was permissible even though it was not enumerated. and that these powers must be exercised in subordination to the states. 1. Congress has the power to enact appropriate legislation. o Rule: under the Necessary and Proper Clause. 8. o Marshall further relied upon the Supremacy clause when holding that the tax was unconstitutional. The bank’s cashier. holding a similar license granted by Congress. He concluded that the states have no power to regulate federal activities. Ct. The bank is constitutional and it may not be taxed by the state. P invalid.o The state of Maryland imposed a tax on any bank operating within its territories without state authority. The Initial Era: • Gibbons v. Ogden: o D operated a ferry boat service btw NY and NJ under an exclusive license granted by the NY legislature. began competing with D. Marshall concluded that the powers come directly from the people. and the bank may be forced to pay state taxes. and among the several States. o Holding: Marshall found the injunction ag. refused to pay the tax. Marshall disposed of Maryland’s argument that the powers of the national government were delegated to it by the states. Commerce defined: • 12 . D sought and received an injunction against P’s competing ferry service.

” o Involving or effecting 2 or more states.C. The 1890s-1937: A Limited Federal Commerce Power: • • • • The S.• • • o Broad – the Court provided Congress with potentially expansive power under the commerce clause. Why? The S. the price of sugar will go up. Knight Co. but can regulate the end result. 2.S. Ct took a very different approach to the Commerce Clause than in the initial era. E. Commerce defined: o Congress can’t regulate manufacturing or production. (Knight) purchased the stock of 4 Philadelphia sugar refineries. “Among the states” defined: o Having a direct effect on interstate commerce. Held. Congress doesn’t have the power to regulate.a development that surely has an effect on interstate commerce]. but all “commercial intercourse. o Congress could legislate with respect to all “commerce which concerns more States than one. Ct.you only need to ask whether Congress acted within some sort of power. Interpretation of the Tenth Amendment: o Tenth Amendment can be determined as a judicially enforceable limit on what Congress can do bc there are some areas that Congress cannot intrude upon. “To regulate” defined: o To create a rule by which commerce shall be conducted. Knight acquired nearly complete control of the manufacturing of refined sugar within the US. The U. unregulated economy. o Court gave Congress plenary (universal) power to regulate.: The American Sugar Refining Co. included not only buying and selling.] o “Commerce. and thus the federal government may not regulate manufacturing in and of itself.” including navigation. if it is within the state. o The Tenth Amendment is like a mere truism.’s majority during this era was deeply committed to a laissez-faire. o Commerce = exchange of commodities. HUH?? • • United States v. 13 .” Marshall concluded. o However. [The court missed the big picture: by allowing for the monopoly. “Among the states” defined: o Among means intermingled with. charged that the acquisition constituted illegal combinations in restraint of trade. Interpretation of the Tenth Amendment: o Congress can’t indirectly effect intrastate production. [The court also noted intrastate commerce not included. The Court narrowly interpreted the scope of Congress’s commerce power based on an expressed concern for leaving regulatory matters to the state governments. In doing so. Manufacturing is separate from “commerce” bc it occurs before any goods are transported in interstate commerce.

the goods shipped in interstate commerce were themselves harmless. the court viewed it as having a direct effect on interstate commerce]. are outside of Congress’ realm of authority under the Commerce Clause because they involve intercourse for the purposes of production. the Court held the statute unconstitutional as applied to Schecter. working conditions. such transactions remain within the domain of state power. Therefore. The Court upheld regulation of intrastate railroads bc local rates for rail freight and other transport has a very close and significant effect on interstate railroad traffic. by contrast.: (New Deal reform) Congress enacted a law governing wages. Carter Coal Co. 14 . Louisiana and certain Texas locations than it did for transport exclusively within Texas. The act was found not to be a valid use of the commerce power. The relationship btw employee and employer is local. Dagenhart: A father wanting to put his two minor children to work in a cotton mill is suing on the ground that Congress’s use of the commerce power to regulate child labor in the states by blocking interstate transportation of child-made goods is unconstitutional.S. Champion v Ames (The Lottery Case):The Federal Lottery Act barred interstate shipment of lottery tickets. The prohibition applied to the mere carrying of lotto tickets across a state border. pursuant to its commerce power. Child labor law was an area traditionally left to the states’ police power and thus Congress should not regulate it. Direct effects are illustrated by the r. [Rationale: intrastate commerce has a major deleterious effect on interstate commerce expectation doctrine. the interstate commerce transactions in relation to that poultry then ended. once D made its purchases and the poultry trucked to its slaughterhouses. Purely local activities. cases. Here. The law is being challenged on the ground that Congress does not have the power to regulate such activities bc they do not constitute interstate commerce. it was only the employment of child labor which was an evil. Neither the slaughtering nor the sales by D were transactions in interstate commerce.: Congress passed. the statute is unconstitutional. Hammer v.r. Schechter’s activities were not within the stream of commerce bc the interstate transactions ended when the shipment reached Schecters NYC slaughterhouses. Here. such as the negotiation of wages and working conditions. the commerce of Shreveport was injuriously affected. The Act is challenged as exceeding Congress’ authority under the Commerce Clause.L. Held. a railway company charged much higher rates for interstate transport btw Shreveport. Wholesalers that purchase the chickens after they’ve arrived in-state challenge the law as unconstitutional.A Schecter Poultry Corp. Held. Nor was there a direct effect on interstate commerce here. a law regulating the management-employee relations in the coal mining industry.Carter v. Held. But where the effect is merely indirect. and prices for poultry transported in interstate commerce. Here. for P. Held. (the majority distinguished this statute from other police power statutes which the Court upheld since in those cases the interstate transportation being prohibited was part of the very evil sought to be protected. not of trade. A. U. v. The Shreveport Rate Case: Due to state regulations of intrastate transport. leading the Interstate Commerce Commission to implement price controls. Held. Because this scheme made it much more expensive to ship through Shreveport. and this employment was not directly related to interstate commerce). The court struck down the federal statute.

labor relations at the Pennsylvania plants could constitutionally be regulated by Congress. (overruled Hammer). Filburn: involved the Agricultural Adjustment Act of 1938. Because of the multi-state network of operations. o Commerce includes all stages of business such as mining. The Court showed tremendous deference to Congress. the Court looked to the nature of the goods and found that the lotto tix were themselves harmful. Congress may. intrastate or interstate. United States v. upheld the Act as laying within the commerce power. The Court also disavowed any interest in Congress’s motive.’s hostility to economic regulation and its commitment to laissez-faire economy seem anachronistic and harmful. D argues that its manufacturing employees are not subject to federal laws bc manufacturing itself is not commerce. Wickard v. manufacturing and production. Congress can regulate activities that themselves have little effect on interstate commerce if the activity. o Indeed. a labor stoppage of the Pennsylvania intrastate manufacturing operations would have a substantial effect on interstate commerce. • *NLRB v. Here. looked at cumulatively throughout the country has a substantial effect on interstate commerce. o Congress can regulate any activity. 3. “Commerce among the states” defined: o Eliminated direct/indirect and production/commerce. the court unanimously upheld the Fair Labor Standards Act which prohibited the shipment of manufactured goods in interstate commerce of goods made by employees employed for more than the maximum hours or not paid the prevailing rates. Ct. the Court concluded. that has a substantial effect on interstate commerce. 1937-1990s: Broad Federal Commerce Power: • • • • During the 3rd era not one federal law was declared unconstitutional as exceeding the scope of Congress’ commerce power.The regulation was Constitutional. th 10 Amendment: o No longer seen as reserving a zone of activities for exclusive state control. Held. Darby: A Georgia lumber company violated federal minimum wage/maximum wage hour laws. Jones & Laughlin Steel Corp: tested the constitutionality of the National Labor Relations Act. prohibit the interstate shipment of items adjudged to be evil or pestilent in order to protect the commerce concerning all states. o Reject the 10th Amendment as a limit on Congress’ Commerce Clause power. which permitted the Secretary of Agriculture to set quotas for the raising of wheat on every farm in the country. Therefore. The case involved the NLRB’s attempt to prevent J & L (a large integrated steel producer) from engaging in unfair labor practices by the discriminatory firing of employees for union activity. pursuant to the Commerce Clause. The economic crisis caused by the Depression made the S. Its defense is that the federal government overreached its Commerce Clause authority in setting the standards. Held. The 15 .

” Furthermore. the fact that it is a state being regulated has virtually no practical significance. and therefore not regarded as commerce. Wheat raised in excess of the quota was subject to per-bushel penalty. Garcia v. challenged the government’s right to set a quota on the wheat which he raised and consumed on his own farm on the grounds that this was a purely local activity beyond the scope of federal control. might be trivial. and would therefore have a substantial harmful effect on interstate commerce and can be regulated by Congress in the aggregate. enacting pursuant to its commerce power. As in Hearts of Atlanta. in violation of the Civil Rights Act of 1964. 1990s: Narrowing of the Commerce Power and Revival of the Tenth Amendment as a Constraint on Congress: 16 . Garcia: Whether the minimum wage and overtime provisions of the federal Fair Labor Standards Act should apply to employees of a municipally-owned and operation mass-transit system. The motel was near two interstate highways. Heart of Atlanta Motel. This conduct in the aggregate clearly had a substantial effect on interstate commerce. (it doesn’t matter if it is direct or indirect. But this decision. the less wheat that is bought in commerce. it is also valid as to the state. Ollie’s BBQ was relatively far from any interstate highway but 46% of its food was purchased from out-of-state. by his decision to consume wheat grown himself. Held. regulation as applied was constitutional bc protection lies in the structure of government. but also quotas on wheat which would be consumed on the very farm where it was raised. Held.: [Overruled National League of Cities v.Act not only allowed the setting of quotas on wheat that would be sold interstate and intrastate. “taken together with that of many others similarly situated. Inc. “Cummulative effect” theory. Katzenbach v. Held.” (for ex. whether interstate or not. The motel could constitutionally be reached by the Civil Rights Act. the substantial effect on interstate commerce may be viewed in the national aggregate. is far from trivial…. Held. and solicited business in the national media. San Antonio Metro Transit Auth. the Court observed that unavailability of accommodations dissuaded blacks from traveling in interstate commerce resulting in a loss of potential business for all restaurants in the town. under the Commerce Clause. Filburn. it may still be reached by Congress if it exerts a substantial economic effect on interstate commerce. Usary.” Even if an activity is local in nature. regulates the states. The Court upheld the Act as applied to the restaurant. derived 75% of its occupancy from out-ofstate guests. Once Congress. which held that congress can’t regulate how the states structure integral operations in areas of traditional state government functions because an unelected federal judiciary should not be deciding which state functions are traditional]. McClung: The owners of a restaurant continued to exclude black patrons form their restaurant dining area. constitution requires each state has 2 senators). United States: the P was a motel which refused to rent rooms to blacks. State sovereign interests are protected by “procedural safeguards in inherent in the structure of the federal system. v.if the regulation would be valid if applied to a private party. P’s own effect on the market. 4. The more wheat that is consumed on the farm where it is grown. Racial discrimination discouraged travel on the part of a substantial portion of the black community.

for the first time in almost 60 years found that a federal law exceeded Congress’s Commerce Clause authority. The Court held that the Act was beyond Congress’s Commerce power. in U. A female student at Virginia Tech who said she had been raped by two members of the school football team sued them under the Act. o That which is regulated must be commercial/economic – otherwise must find jurisdictional nexus. or even affected. unlike in Lopez.A. Ct. boats. o The Court rejected the argument that Congress may regulate non-economic. v. Congress could have made it a crime only to possess a gun that had moved in interstate commerce. If congress’ reasoning were accepted it would allow congress to regulate any crime • 17 . Instead. guns. there were detailed findings.S. highways). regulating a non-economic activity). violent criminal conduct solely on the conduct’s aggregate effect on interstate commerce. it banned even possession of a gun that had never traveled in. Morrison: o The Court strongly reaffirms its ruling and reasoning in Lopez. o A 12th grade student was convicted of violating the Gun-Free School Zones Act of 1990. o Issue: whether gender motivated crimes substantially effect interstate commerce? o Holding? No. Lopez. 1) The statute did not include explicit findings made by Congress that the activity being regulated (possession of guns in schools) affected commerce). o Problem with the statute in Lopez: 1) The statute didn’t include a “jurisdictional nexus. (Here.. United States v. and 3) Those activities that substantially effect interstate commerce. o This case also involves non-economic activity. the S. which makes it a federal offense to possess a gun near or at school. What is Congress’s Authority to Regulate “Commerce among the States?” • In 1995.” 2) For ex. o Although here. o The Court identified 3 broad categories of activity that congress may regulate under its commerce power: 1) The use of channels of interstate commerce (ex. 2) Instrumentalities of interstate commerce(food. o Non-deferential review of congressional findings. by holding that it is not enough that the activity being regulated merely “affects” interstate commerce. books) . interstate commerce. o Congress passed the Violence Against Women Act in 1994 which stated that any woman who was a victim of a gender motivated violent crime could bring a civil suit against the perpetrator in federal court. o The majority opinion resolved a prior uncertainty. Instead the activity must “substantially affect” interstate commerce. the Court gave no deference to these findings bc they made for too attenuated a causal chain.

Congress could not force him to conduct backgroundchecks on behalf of the federal government. Instead. a county sheriff in Montana. United States: o Congress enacted the Brady Bill which ordered local law enforcement officials to conduct background checks on perspective gun purchasers. (utilize same jurisdictional connection) B. Printz. 2) Reasoning: if the federal government is allowed to order states to enact regulations.” • 18 . He argued that under NY v. until a national computerized system for doing these checks could be phased in. local officials may be forced to take the heat for s/t they are not responsible for. the federal officials responsible may be able to evade accountability if local citizens disprove of the regulation. 4) Is the activity related to interstate commerce. o Holding: 1) The “take title” provision violated the 10th amendment: Congress does not have the authority to commandeer state legislative or regulatory activity by forcing them to implement particular regulations. (Congress may not command the states to enact legislation). United States: o Congress forced states to engage in activity that the Court viewed as legislative. New York v. o “undermined the independent and autonomous political entity of the state. Does the Tenth Amendment Limit Congress’s Authority? • • Issue: Whether the Tenth Amendment has a special role to play when Congress uses commerce power to regulate state and local government (as opposed to private entities). objected on the background-check requirement and sued. Printz v. o Status of “aggregate principle” 1) Do not apply aggregate principle to things non-economic in nature. o To determine if intrastate activity has a substantial effect on interstate commerce consider: 1) Economic nature of activity. 3) Congressional findings (empirical evidence). o Congress passed legislation requiring states to either provide for radioactive waste disposal or take title (be liable for damages in connection with disposal of the waste) to waste generated within their borders.as long as the nationwide aggregate impact of that crime had a substantial effect on employment. The legislation is being challenged as an unconstitutional exercise of federal power over the states. transit. production or consumption. o Holding: Congress cannot commandeer state government officials (executive branch) to perform functions under the Tenth Amendment. 2) Is there a jurisdictional element that limits the reach of the statute to people or things that move through interstate commerce. US.

a New Deal measure which sought to raise farm prices by cutting back agricultural production. sec.S. The Taxing and Spending Power: Article I. the taxing and spending power is not a regulatory power. . U. Congress’s taxing and spending power is not limited to the enumerate powers. 8. • Reno v. it was unnecessary for the Court to consider whether the regulated activities have a substantial effect on interstate commerce. Rather they are modifiers. v Butler: o Involved the validity of the Agricultural Adjustment Act of 1933. Duties. cl. 1: • • • • • On exam. o Held: Congress can regulate the states in their private entity capacity.S. Because of this. One state’s law conflicts with the legislations and challenges the constitutionality under the 10th Amendment. therefore. usually see if regulation is under the commerce power and the taxing and spending power. o The Act is an example of Congress regulating the channels of interstate commerce. Condon: o Congress passed legislation placing certain prohibitions on the dissemination of private information given to states by individuals in applying for a driver’s license. “Congress shall have the Power to lay and collect Taxes. It is. 19 . o Thus. regardless of motive. 2. C. a valid use of the commerce power under the first two categories of valid regulation as announced in Lopez. 1. Spending Power: • U. . o The act does not require the states in their sovereign capacity to regulate their own citizens. It is a way to do things that Congress otherwise can’t do through regulation. • The power to tax is a broad plenary power. and Printz: The federal government cannot compel a state to enact or administer a federal program. Unlike the commerce power. to pay the Debts and provide for the common Defense and general Welfare of the United States .New York v. Taxing Power: • Broad. Here. the act regulates the states as the owners of databases.S. there is no 10th amendment violation. Rather. Congress is not requiring the states to regulate their own citizens. o Here. as well as something in interstate commerce. .” These powers are not interconnected. so long as it is revenue producing and uniform throughout the U. Imposts and Excises. the court concluded that the Act is consistent with the constitutional principles enumerated in New York and Printz. but is instead regulating the state as a commercial actor.

Because Congress could not directly regulate agricultural production. coercion. including agriculture. o Holding: Unconstitutional. 4) Can’t violate any provision of the Constitution. However. o Butler is still considered good law as far as its broad view of the General Welfare clause. Congress may not regulate in a particular area merely on the ground that it is thereby providing for the general welfare. o Holding: the grant is not unconstitutional. unambiguous. The provision is unmistakably for the general welfare. offer state something they can’t refuse). o Reasoning: Otherwise. If satisfy the three part test. it is only taxing and spending that may be done for the general welfare. (ex. and 3) Any conditions must be related to the federal interest in the particular national projects or programs being funded. as well as the 21st Amendment. the secretary of the treasury. bribery. it also could not coercively purchase compliance with a regulatory scheme. South Dakota challenges the federal law as violating the limits on the spending power of congress. and is directly related to one of the main purposes for which highway funds are expended – safe interstate travel. congress had no right to regulate areas of essentially local control. the federal government would be one of “general and unlimited powers” rather than enumerated and limited ones. Congress can give Money to the states on the condition that states do certain things. Dole: o Congress passed legislations directing Dole. its ruling as to the 10th Amendment is no longer followed.The scheme was to be carried out by authorizing the Secretary of Agriculture to contract with farmers to reduce their acreage under cultivation in return for benefit payments. • *South Dakota v. D. o Spending power is subject to the following general restrictions: If Congress is giving a grant of $ to induce state action to do something: 1) It must be used for the general welfare (deference to Congress). the payments were in turn made from a fund generated by the imposition of a “processing tax” on the processing of the commodity. the 10th Amendment is effectively dead as a limitation upon federal spending power. Congress’s Powers Under the Post-Civil War Amendments: (13th. 2) Any conditions on receipt of funds must be unambiguous (as a matter of political accountability). o Caveat: If limitation reaches the point of compulsion problem. Can require states to do things that it otherwise couldn’t. 14th. and 15th Amendments): • Thirteenth Amendment: 20 . to withhold 5% of federal highway funds from any state that fails to set its legal age for alcohol consumption at 21 years. Here.

nor may states deprive any person of life. 2 provides that Congress has the power to enforce it by appropriate legislation. or previous condition of servitude.• • o Applies to private conduct (it prohibits people from being or owning slaves). color. or by any station account of race. liberty. 2) Congress only has the authority to prevent or provide remedies for violations of rights recognized by the S. or property without due process of law or deny any person of equal protection of the laws.S. 5 of the 14th Am. Congress may regulate states. Ct. the provisions of this article.S. Congress can’t regulate gender motivated violence bc they can’t regulate private conduct. o “The right of citizens of the U. o Reasoning: Congress’s authority to regulate under the 14th Amendment extends only to state activity. What is the Scope of Congress’s Power: • Two different views on what the sec. “Congress shall have the power to enforce this article by appropriate legislation. o Broad: 1) Congress is enforcing the Amendment by creating greater protections than those found by the Court. 1. but at individuals who have committed criminal acts motivated by gender bias. means when it empowers Congress “to enforce” the Amendment by appropriate legislation: o Narrow: 1) Congress is not enforcing if it is creating new rights. o Provides in Sec. Congress may regulate states (government actions).” o Sec. The 14th amendment does not reach private behavior. 21 . The Act here is aimed is not aimed at any state or state actor. The accused asserts that the Act is an unconstitutional exercise of congressional authority. o Prohibits slavery and involuntary servitude. Morrison: o An alleged rape victim sought to sue her accused attackers under the federal Violence Against Women Act. o Sec. to vote shall not be denied or abridged by the U.” Fourteenth Amendment: o Under the 14th amendment. are citizens and that no state can abridge the privileges or immunities of such citizens.S. 2. Whom May Congress Regulate Under the Post-Civil War Amendments: • United States v. 2. o Provides that all persons born or naturalized in the U. not activities by private individuals. by appropriate legislation. o Holding: The act cannot be sustained under the 14th Amendment. 5 states: “Congress shall have power to enforce.” Fifteenth Amendment: o Under the 15th Amendment.

the 11th Amendment covers federal Q suits. The act is so out of proportion to a supposed remedial or preventative object that it cannot be understood as responsive to. article 5. but Congress cannot dilute or diminish constitutional rights. Georgia (1793): o The Court concluded that the clear language of Article III authorized suits against a state by citizens of another state. Louisiana (1890): • • • • 22 . 14th. Regardless of the plain text. or by citizens or subjects of any foreign states.2) Congress has the authority to interpret the 14th Amendment to expand the scope of rights or even to create new rights. City of Boerne v Flores: P. after the City of Boerne. The Act prohibits the government from substantially burdening a person’s exercise of religion unless the government can show certain factors. the remedy provided must be congruent with and proportional to the constitutional violation being remedied 1) Congruence (related to). or the citizens thereof. and 2) Proportionality (degree of remedy appropriate given degree of harm or evil) i. Indeed. of the Constitution which states that the judicial power of the U.” The 11th Amendment was intended to strike from the Constitution clauses of Article III. E. “The judicial power of the U. denied a permit to expand the church. and foreign states. citizens or subjects.S. little remedy for little problem.S. shall not be construed to extend to any suit in law or equity. may create rights where the Court has not found them in the Constitution. unconstitutional behavior. The Act’s legislative record lacks examples of modern instances of generally applicable laws passed bc of religious bigotry. by citizens of another states. by statute. big remedy for big problem. or designed to prevent. is to protect the state treasury from federal court awards of monetary relief. not just diversity. Held. there is a **********2 part test********** For an act of Congress to be constitutional and be supported by the 14th Am. 2.S. of states.” Purpose of the 11th Am. Congress’s Power to Authorize Suits Against State Governments: • • The 11th Amendment states. there are no episodes occurring in the last 40 years. sec. o State legislators and governors were outraged. is suing under the Religious Freedom Restoration Act. Hans v. commenced or prosecuted against one of the U. or 15th amendments. 5 of the 14th Amendment. Chisholm v. It lacked the required proportionality or congruence btw the means adopted and the legitimate end to be achieved. extends to suits “between a state and citizen of another state” and “between a state. When Congress passes legislation under the 13th. The act was not proper under sec. o The 11th Amendment was subsequently passed by Congress and ratified by the requisite no.e. 3) Congress.

o Does not apply to state officials in personal capacity. 1) Sue state official in official capacity. states have been immune to suits both by their own citizens and by citizens of other states. (huh?) 23 . the Court held that it would be “anomalous” to allow states to be sued by their own citizens. 2) Sue for injunctive relief. o This immunity only protects states. o States may waive their 11th Amendment immunity and may consent to be sued in federal court. o Sue official in personal capacity. Ways around the 11th Amendment to hold state governments accountable in federal court: o Ex Parte Young: State officers may be sued in federal court. • ***Remember:*** o The federal government can still bring suits. 5 of the 14th Amendment may authorize suits against state governments. thereby contending that the judicial power of the US extends to the case at hand. • Reasoning: The Court explained that it would seem anomalous for a state both (1) to invoke federal jurisdiction. o Although the terms of the amendment only prohibit suits against a state by citizens of other states and foreign countries. A state’s choice to remove a case from state to federal court is a removal when there are state law claims and the state has waived its immunity as to these claims in state court. Bd. o Thus. at state. there is no doctrine of implied or constructive waiver of the 11th amendment. a constitution that permitted states to follow their litigation interests by freely asserting both claims in the same case could generate seriously unfair results. acting pursuant to sec. o Congress abrogated state immunity to suit: The Court has held that Congress. since Hans. of Regents of the University System of Georgia: • Issue: Is removal from state to federal court a waiver as to state law claims for which the state has waived its sovereign immunity in state court? • Holding: Yes.• o The Court held that the Amendment also bars suits against a state by its own citizens. • Furthermore. The Court has held that waivers must be explicit. 1) Ask for monetary damages/relief. immunity. and (2) to claim 11th Am. we are talking about private individuals. even when state governments cannot be sued. The 11th Am does not bar suits by the federal government ag. 1) Lapides v. thereby denying that the judicial power of the US extends to the case at hand. o This is in regard to FEDERAL RIGHTS. not local governments and municipalities.

Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.Fitzpatrick v. The ADEA is not “appropriate legislation” under sec. Held. Garrett: Whether employees of the state of Alabama may recover money damages by reason of the state’s failure to comply with the 24 . “evil” or “wrong” that congress intended to remedy). sec. This is a group of companion cases in which state employees have sued their employers under ADEA.S. (Apply Boerne and identify the 14th Am. the Act cannot be sustained under the 14th Amendment. provide for private suits against states or state officials. 5 authority to enforce the 14th Am. in determining what is “appropriate legislation” for the purpose of enforcing the 14th Amendment. P’s suit regarding the regulation of Indian commerce was dismissed for want of jurisdiction. ***2 Part Test***  In order to determine whether Congress has properly abrogated the states’ sovereign immunity we ask 2 Q’s: (1) Whether Congress has unequivocally expressed its intent to abrogate immunity? and (2) Whether such abrogation is allowed by an affirmative grant of congressional authority (i. Kimel v. Florida: Congress passed a law allowing states to be sued for failing to negotiate in good faith with Indian tribes regarding the formation of gaming compacts btw those parties. let alone a pattern of constitutional violations. 5 of the 14th Amendment. In order for the full effect to be given to the 14th Amendment. In passing the act congress identified no pattern of patent infringement by the states. The law is challenged as a violation of the 11th Amendment’s sovereign immunity. For congress to abrogate a state’s sovereign immunity. The extension is challenged as outside the scope of its authority. The court held that Congress may. The provision is being challenged under the 11th Amendment. 5 of the 14th Amendment)? Florida Prepaid Postsecondary Educ. Held. it necessarily must control the 11th Amendment’s grant of sovereign immunity to the states. Bitzer: Congress amended Title VII of the Civil Rights Act to allow a federal cause of action against state governments for employment discrimination. 5 of the 14th Am bc of the lack of evidence of discrimination coupled with the ADEA’s indiscriminate scope of regulation. The underlying conduct at issue is the unremedied patent infringement by the states. The act’s indiscriminate scope is particularly incongruous in light of the scant support for the predicate unconstitutional conduct that congress intended to remedy. (remember Boerne factors: (1) pervasive pattern. Expense Bd. College Savings Bank and U.e. (no constitutional violation bc age discrimination is only subject to minimal scrutiny.all you need is rational basis). which was adopted by the people. Held. Held.: Congress enacted legislation providing a right to sue states in federal court over patent infringement. University of Alabama v. Board of Trustees. it must be under sec. The Act cannot be sustained under either the Commerce Clause or the Patent Clause (see Seminole Tribe). Florida Board of Regents: Congress extended coverage of federal age discrimination laws to the states using its sec. Furthermore. v. and (2) congruent and proportional) Seminole Tribe of Florida v. The legislation is challenged as beyond Congress’s 14th Amendment enforcement authority. even though it may not do so in other contexts.

Whether Congress unequivocally declared its intent to abrogate State immunity.” (higher level of scrutiny bc denied access to courthousefundamental right). routine employment benefit for all eligible employees. (Although it was a pattern of discrimination it was not a constitutional violation. Tennessee v. congress unequivocally expressed its intent to abrogate that immunity by the text.NOT heightened scrutiny). Second. and II. the extensive record of disability discrimination that underlies the act makes it clear that inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation. a. was not demonstrated by the states. By setting a minimum standard of family leave for all eligible employees. congress sought to ensure that family-care leave would no longer be stigmatized as an inordinate drain on the workplace caused by female employees. We hold that such suits are barred by the 11th Am bc a pattern of discrimination violating the 14th Am. thereby reducing employment incentives to engage in discrimination by basing hiring and promotion decisions on stereotypes. and fostering of. The court held reasoned that the act was unambiguous and the states record of unconstitutional in. is congruent and proportional to its object of enforcing the right of access to the courts. the Court found the act to be appropriate response to this history and pattern of unequal treatment. the FMLA attacks the formerly state-sanctioned stereotype that only women are responsible for family care giving. This was a narrow decision. gender-based discrimination in the administration of leave benefits was weighty enough to justify the enactment of sec.? NO. Apply the congruence and proportionality test i. 5 of the 14th Am. Finally. §5 of the 14th Am). First. Lane: The Q presented in this case is whether Title II of the ADA exceeds congress’ power under sec. Hibbs: Held that employees of the state of Nevada may recover $ damages in the event of the state’s failure to comply with the family-care provision of the FMLA. and that employees could not evade leave obligations simply by hiring men. irrespective of gender. 5 litigation. Discrimination on the bases of disability is only subject to rational basis scrutiny.provisions of Title I of the ADA. (i. Whether Congress acted pursuant to a valid grant of constitutional authority. **************The Test*************** The legislation by Congress must meet the following criteria in order to override States’ sovereign immunity: I. and the remedy imposed by congress was not congruent or proportional to the alleged violation. Nevada Dep’t of Human Resources v. Title II’s requirement of program accessibility. gender discrimination triggers a heightened level of scrutiny. Finally. Is there a widespread pattern of constitutional violations of the 14th Am shown by Congress? 25 . Congress has to have acted under sec. the court held that the family-care leave provision of FMLA was “congruent and proportional to the targeted violation. 5 of the 14th Amendment power. NEXT… III.e. Here. The act only required states to comply with “reasonable modifications. (under 14th am).” By creating an across the board.

Sawyer: o In order to prevent the (feared) interruption of supplies to troops in Korea. II. he may only carry them out. The steel companies sought an injunction to prevent the seizure. he stepped over the line. this is not done through the 11th Amendment). even though that suit was based upon a federal right that congress had authority to confer upon the workers. III. President Truman on the eve of a steelworkers’ strike ordered the secretary of commerce (D) to take possession of the nation’s largest steel mills and keep them operating. that action will not be rendered unconstitutional merely by the fact that it does not fall within any specific constitutionally-enumerated powers. When the President is acting as a lawmaker. • 26 . o Holding: Congress had no authority to force the state courts to hear the worker’s suit. The state raises the state sovereign immunity defense.ii. Inherent Presidential Power and Executive Immunity: • • • There are few powers which are explicitly granted by the Constitution to the President. which was the case here. Congress remained silent on the matter. What about Congress’s Power to Authorize Suits Ag. State Governments in State Courts for Violation of Federal Rights? • • The plain text of the 11th Am. (However. sec. “The executive power shall be vested in a President. in domestic and foreign spheres is implied mostly from Article II. o Majority drew a line. The remedy has to be proportional and congruent.” If the Supreme Court concludes that a presidential action is properly regarded as being part of the ‘executive’ (rather than judicial or legislative) sphere. sec. (Consider the depth and seriousness of the evil congress seeks to remedy and prevent). Maine: o Two probation officers sued their state employer in state court for violating federal employment laws.1 which states. Alden v. These are enumerated in Art. says nothing about state courts. (RIGID) o Separation of powers o Holding: the Court struck down the seizure order reasoning that the president may not make laws. Youngstown Sheet & Tube Co. 2 Most of the President’s power. THE FEDERAL EXECUTIVE POWER: A. v. o Significance: States now have full sovereign immunity from any private suit in the state’s own courts seeking damages for the state’s violation of federal law.

were of constitutional dimension. need for disclosure. However. 5) Reasoning: the Court observed that both the President’s claims of privilege. o The rationale: President’s claim it is necessary for them to receive candid advice. (Implied). congress alone has the authority to raise and supply the armed forces. But. Nixon: 1) President Nixon refused to turn over tapes of his surreptitiously recorded conversations that had been subpoenaed (duces tecum) to assist in the prosecution of individuals in the Watergate break-in. District Court for District of Columbia: 27 . if dealing with criminal proceedings or need to get information for criminal trial – executive privilege is trumped and it is resolved through in camera review. 2) Holding: Although the S. o Cheney v. • Executive Privilege: o Ability of the President to keep certain conversations and documents confidential. here. and as such is only valid if it falls outside of the powers of Congress and within the president’s powers. 3) Privilege only qualified: the executive privilege is limited to whether it’s necessary for the President to carry out official responsibilities.S. and the criminal justice system’s need for access to all relevant evidence. 2) The seizure of the nation’s steel mills falls within the third category (where power was at its lowest level). The propriety of these actions will depend on the specific situation. in part because the Court did not believe that the possibility of infrequent subpoenas like the one here would often have an adverse impact on the candor of discussions to which presidents are parties. U. express or implied. o United States v. The seizures were an exercise of authority without law. o Not mentioned in the Constitution.o The significance of this case is really the Jackson concurrence: (more flexible): 1) Three categories into which each of a President’s actions may fall: • The President’s actions have maximum force and authority when he acts pursuant to express or implied authorization by Congress. upheld the general doctrine of executive privilege. there is an absolute privilege 4) Balancing Test: need for confidentiality v. the latter outweighed the former. • When Congress is silent. 7) 2 tier system: presumption privilege not to testify. Ct. but Presidents have claimed it throughout history. the Constitution grants the President certain power to act independently or concurrently with Congress. • The President’s power is at its lowest when he acts contrary to the will of Congress. 6) Remember: this is referring to federal prosecutions. the privilege did not apply. and ordered the President to comply with the subpoena. While the President may command the armed forces. (It is not absolute!) However.

o The Court held that the Line Item Veto was unconstitutional bc it violated the Presentment Clause of the Constitution (Article I. passage by both houses of Congress. For ex. The President of coarse can veto such statutes.) 3) Rule from Nixon with regard to privilege applies to a lesser degree if civil case. Congress can overturn agency decisions by statute. rather than the entire bill. 28 . o Furthermore. and Presentment. o The Supreme Court struck down the legislative veto as unconstitutional. 2). B. 7. sec. o Another important check on agencies is the appointment and removal power. o The Line Item Veto gives the president power to cancel certain provisions of a bill. rather than before. cl. Congress controls the budget of administrative agencies and can use this to exercise an important check on their work. giving the bill to the President for signature or veto. whereas the Presentment Clause requires veto of the entire bill. (5th and 6th Am. 2) Greater deference in executive branch. typically a single item of spending. o The Court established that if Congress wants to overturn an executive action there must be bicameralism. INS v. because sensitive to the rights of individuals. (More deference). 1) The President’s return of the bill (veto) occurred after it had been signed into law. Chadha: o Pursuant to a statute for allowing for a one-house “veto” of administrative action. and 2) The cancellation could apply to only part of the bill. The Authority of Congress to Increase Executive Power: • Clinton v.S.1) Gives guidance with civil matters. following the prescribed procedures for bicameralism and presentment. the House of Representatives passed a resolution overriding the Attorney General’s decision to allow a deportable alien to remain in the U. requiring that Congress act by a 2/3 vote to effectuate a check. Checking Administrative Power: • What mechanisms exist to check administrative agencies? o Congress can control administrative agencies through statutes. because the government is not a prosecutor. as the Presentment clause requires. and the intended recipients sued.. City of New York: o President Clinton used his newly acquired Line Item Veto power to cancel two items of congressional spending. • C. o Also. laws can be enacted directing agencies to perform certain tasks or denying them authority in a particular area.

S. Article II. o Ambassadors. and by and with the Advice and Consent of the Senate. as they think proper. o All other officials of U. or by the courts. Olson contended that the appointment of independent counsel was unconstitutional. and all other officers of the U. sec. o Factors: Why Independent counsel is considered an inferior officer: 1) The office is limited in tenure (it is temporary and for the limited purpose of accomplishing a single task). and the latitude of discretion that the officer possesses. a law giving judges authority to appoint an Independent Counsel did not violate the Constitution. Circuit Court of Appeals..S. how far reaching his duties are. Ct. other public Ministers and Consuls. 2) Empowered by the act to perform certain limited duties (namely the investigation and prosecution of specific government officials). Principal Officers: o S. and which shall be established by law: but the Congress may by law vest the Appointment of such inferior officers. o Who can appoint principal officers? President with advice and consent of senate. o Public ministers and consuls.S. whose appointments are not otherwise provided for.1. whose appointments are not herein otherwise provided for.” Who may possess the appointment power? o The Appointments Clause divides executive officers into 2 classes: principal officers and inferior officers. shall appoint Ambassadors.C. o Who can appoint inferior officers? Congress may provide for appointments by the President alone. or in the Heads of Department. Circuit Court of Appeals. The independent counsel was appointed by the Special division of the D. o Department heads. Morrison. How do you distinguish a principal officer from an inferior officer? o The difference is functional – it turns on how much independence the officer will possess. in the President alone. he is required by the Act to make a preliminary investigation and report the Special Division of the D. Independent Counsel v. If the Attorney General receives information that a government official may have violated federal law. 2 provides that the President “shall nominate. is given the power to appoint federal officers. o Holding: Since the Independent Counsel is an inferior officer. to the Courts of Law. o Principal officer has significant authority pursuant to the federal law of the U. The Appointment Power: • • The President. Judges of the Supreme Court. 29 • • • • . judges. not Congress.C. by the heads of departments. Olson: o An Act created the position of independent counsel to investigate (and to prosecute when appropriate) high-ranking government officials for federal criminal violations.

may limit removal both if it is an office where independence from the President is desirable. D.” • President’s treaty making power is broad. o Congress cannot reserve for itself removal power of another in the executive branch bc it would give Congress too much power (Bowsher). 12 also provides that the President “shall have Power. 2.the constitution limits the grant of appointment power to the executive or judicial branches. The principle that has emerged from cases is that. o Whether removal restrictions are of such a nature that they do not impede president’s ability to perform his constitutional duties (Morrison). 2) The Executive Branch may be deprived of the power to appoint. Under what circumstances may Congress limit Presidential Removal Power? o Where independence from executive is desired (Humphrey). limits removal to instances where good cause is shown. provided two thirds of the Senators present concur. and the untrammeled power to remove. The Removal Power: • • • • There is no provision in the Constitution concerning the President’s authority to remove executive branch officials.3) Subject to removal by higher Executive branch officer (other than Pres. cl. Congress. and if the law does not prohibit. o Significance 1) Morrison has a significant effect 23 on the separation of powers doctrine. Treaty: 30 . by and with advice and consent of the senate. sec. 2. He has the power to negotiate with foreign leaders with the advice and consent of the senate. by statute. • Executive Agreement v. Treaty-making power: • Article II. o Congress can limit but cant prohibit. the President may remove executive officials unless removal is limited by statute. in general. 4) The office of independent counsel is limited to the jurisdiction granted by the special division. and “inferior officer.” even where the appointment relates to purely executive powers. o Analysis: 1) Limitations on the appointment power of the President are a check on the power of administrative agencies. Separation of Powers and Foreign Policy: 1. but rather.). to make treaties. 2) Note: Congress may not give appointment power to itself.

and make Rules concerning Captures of Land and Water.S. and Offenses against the law of nations.S.” Article II. and foreign country that is negotiated by the President and is effective when ratified by the Senate. and to “define and punish Piracies and Felonies committed on the high seas. armed forces. “To declare War. armed forces are engaged in hostilities outside the territory of the U.S. 7 says that the “President shall be commander in Chief of the army and navy of the U.so courts didn’t decide. it is well established that such agreements are constitutional. armed forces: 1) Within 60 days after a report is submitted or is required to be submitted. cl. Does the President have the power to rescind treaties? o Don’t know. or (3) is physically unable to meet as a result of an armed attack upon the U. o Limitation on President as commander in chief: 1) The President may introduce U. it appears that anything that can be done by treaty can be done by executive agreement. 2. without a declaration of war or specific statutory • • • 31 . or (3) a national emergency created by attack upon the U. sec. whichever is earlier. the president shall terminate nay use of U.S. If the document is labeled “treaty” Senate approval is required. armed forces into hostilities only pursuant to: (1) a declaration of war.S. (2) has extended by law such 60 day period. (2) specific statutory authority.S.S. grant letters of Marque and Reprisal.S. sec.S. In 1973. o Executive Agreement: an agreement btw the U. o Exceptions to the termination of use of U. o If there is a conflict btw a federal statute and treaty. 2) At any time that the U.S. when called into the actual service of the U.E. and of the militia of the several states.S.” Thus Congress and the President in effect split the war powers. 2.federal supersedes. Congress adopted the War Powers Resolution in response to the Vietnam War in which Johnson and Nixon fought a highly unpopular war with great cost in lives and dollars without formal declaration of war from Congress.whichever comes first supercedes. o Although the constitution does not mention executive agreements.• o Treaty: an agreement btw the U. o If state law.” to raise and support armies.S. armed forces unless the Congress: (1) has declared war or has enacted a specific authorization for such use of U. Indeed. War Powers: • Article I. If the document is titled “executive agreement” no senate ratification is necessary. o I. and a foreign country that is effected when signed by the President and the head of the other government. Political Q... 8 grants congress the power to regulate commerce with foreign nations.

art.S. Here. § 2. The Court determined that the Authorization for Use of Military Force (AUMF). In the end. Pursuant to a government official's declaration. The Court held he had a right to a neutral decisonmaker hearing as to whether he was a non-combatant or combatant. such forces shall be removed by the President if Congress so directs by concurrent resolution. detained in Afghanistan during the United States' military action against the Taliban regime." o The Court determined that the citizen-detainee. and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker. was entitled to receive notice of the factual basis for his classification. o Holding: The court found that petitioners were alleged to be unlawful belligerents.S. hostile or warlike acts. Const. Aside from unspecified screening processes and military interrogations. and that under the Articles of War. amends. residents. The President of the United States held that petitioners were to be tried before a military tribunal under the Articles of War. the petitioners were held to be unlawful combatants and could thus be tried by a military tribunal. arguing that under the U. Const. the court affirmed the President's authority to try petitioners before a military tribunal without a jury. The court also determined that trying petitioners before a military court was not illegal and did not violate the U. and transferred to the United States. V and VI relating to "crimes" and "criminal prosecutions. nor by a jury. authorized the detention of individuals in the citizen-detainee's circumstances and that the AUMF satisfied 18 U. espionage. Rumsfeld: o Claiming non-combatant.S. III. Petitioners challenged the President's authority. Thus. were captured by the United States. or violations under the law of war. the citizen-detainee received no due process. they were not entitled to be tried in a civil proceeding. o Issue: were the petitioner lawful combatants? If yes. seeking to challenge his classification as an enemy combatant. They could be held for the duration of the hostilities but then let go. 224. o Whether the government’s detention of a U.S. Hamdi v.C.S. 115 Stat. eight German-born U.S. • Ex Parte Quirin: The constitutionality of military tribunals. as they tried to enter the country during war time. soil as an “enemy combatant” was within its authority? o The citizen-detainee was born in the United States.S. the Government contended that the citizen-detainee was an enemy combatant. they let Hamdi go. for the purpose of sabotage. V and VI.authorization. The Court rejected the • 32 . petitioners had a right to demand a jury trial at common law in the civil courts.aid worker in the wrong place at the wrong time. citizen on U. they would be entitled to prisoner war status with protections of the Geneva convention. o Petitioners. Military said he was with the Taliban. amends. § 4001(a)'s requirement that a detention be "pursuant to an Act of Congress." The court did not have in mind these kinds of trials in making the 5th and 6th Amendments.

In addition. E. the high visibility of the President and far-reaching effects of his decision make him an easy identifiable target for suits for civil damages. sought to postpone the proceeding of a civil lawsuit until he left office. Also immunity only extends to the President’s official acts. Suing and Prosecuting the President: • Nixon v. no such encouragement is need for unofficial acts.Government's assertion that separation of powers principles mandated a heavily circumscribed role for the courts in such circumstances. o President Clinton. o It would turn the system of checks and balances on its head to suggest that a citizen could not make its way to court with a challenge to the factual basis for his detention by the government. Jones rejected any immunity for acts that occur before a President takes office. The immunity ends when the rationale for immunity ends. Immunity is extended for official acts in order to encourage the President to act fearlessly for the public good. o Even with the rule of absolute immunity there are still protections against Presidential misconduct: 1) Impeachment 2) President is subject to constant scrutiny by the press 3) Desire for re-election 4) Need to maintain prestige of the office 5) President’s concern with his historical stature. The expert brought suit a. Suits for injunctive relief may still be prosecuted. o This case is an example of the narrowness of the Court’s decision in Nixon. complete protection from civil suit. • 33 . President Nixon claimed that he made the firing decision. o Rationale: President must be empowered with the maximum ability to deal fearlessly and impartially with the duties of office. Checks on the President: 1. accused of making inappropriate sexual advances toward a subordinate while Governor of Arkansas. Fitzgerald established absolute immunity. Clinton v. naming President Nixon as one of the D’s. and thus there is no immunity of any type. o A cost-management expert for the Air force was fired after he testified in front of Congress about cost overruns in certain military projects (whistleblower). However. o Absolute immunity is a narrow concept: it only extends to civil actions for money damages. for a President for all official actions while in office. The President moved for SJ on the ground of absolute immunity from suit. Immunity of any kind only applies to official acts of the President. simply because the Executive opposes making available such a challenge.

Ct. then a trial is held in the Senate.. sec.S. LIMITS ON STATE REGULATORY AND TAXING POWER: 34 . If there is an impeachment by the House. Effect of resignation: The fact that a federal officer has resigned does not bar the use of subsequent impeachment proceedings against him. and escaped conviction in the Senate. 2 provides that the House of Representatives has the sole power to impeach. Article II.2. o Presidents Johnson and Clinton were impeached by the House.” Article I. bribery. o What procedures must be followed when there is an impeachment and removal proceeding? o No answers are likely to these Q’s in the future bc the S. Nixon. sec.” 2 major issues that remain unresolved: o Meaning of “high crimes and misdemeanors” 1) At one end of the spectrum is the view that these are limited to acts that violate the criminal law and that can be deemed a serious threat to society. Article I. • • • IV. Nixon. and Clinton) have been the subject of serious impeachment efforts. or other high crimes and misdemeanors. 3 gives the Senate the sole power to try impeachments and prescribes that “no person shall be convicted without the concurrence of 2/3 of the Members present. treason. A criminal conviction in this situation does not constitute double jeopardy. Sparingly used: o Only 3 Presidents (Johnson. 4 of the Constitution provides. “The President. sec. shall be removed from office on impeachment for. 2) At the opposite pole is the view that an impeachable offense is whatever a majority in the House considers it to be. has held that challenges to the impeachment and removal process pose non-justiciable political Q’s. Impeachment: • • • • • • The ultimate check on Presidential power is impeachment and removal. Vice President and all civil officers of the U. Criminal liability: Following the impeachment conviction a criminal prosecution may be brought against the impeached officer. The same is true of a pardon: thus the pardon of President Nixon by Ford would not have prevented the use of impeachment proceedings ag. and conviction of. o President Nixon resigned before the full House could vote on the impeachment issue. based on the same set of facts as the impeachment.

preemption will be found if state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. the federal law controls and the state law is invalidated bc federal law is supreme. • The Supreme court has identified 2 major situation where preemption occurs: 1) One is where a federal law expressly preempts state or local law. Express Preemption: 35 . and laws and treaties made pursuant to it.  There is explicit preemptive language. • If there is a conflict between federal and state law. preemption will be found where “compliance with both federal and state regulations is a physical impossibility. A.  Conflict: Impossibility of Dual Compliance – Even if Federal law does not expressly preempt state law. 2) The other situation is where Congress has NOT acted.  If Congress has passed a law and it is a lawful exercise of congressional power. Preemption of State and Local Laws: • Article IV of the Constitution contains the Supremacy Clause which provides that the Constitution. are the supreme law of the land. if there is a conflict between federal and state or local law.”  Conflict: Frustrate Federal Objective. state and local laws can be challenged under 2 principles: 1) The Dormant Commerce Clause and 2) the Privileges and Immunities Clause.Even if federal law and state law are not mutually exclusive and even if there is not congressional expression of a desire to preempt state law.  Even though there is not preemption. the latter is deemed preempted.”  Conflict: Federal Government Occupies the Field – where the scheme of federal law and regulation is “so persuasive as to make reasonable the inference that Congress left no room for the states to supplement it. the Q is whether the federal law preempts state or local law.  Because of the Supremacy Clause. 2) The other situation is where preemption is implied by a clear congressional intent to preempt state or local law.  Or at least the judiciary decides that federal law does not preempt state or local law.” 1.• There are 2 possibilities when considering whether a state or local law is invalidated because of the existence of a national government and other functions: 1) One situation is where Congress has acted.

and especially cigarette advertising.by requiring that the ads be at least 5 feet above the ground so as to not be at the eye level of children. o The broader Federal act provided that “no requirement or prohibition based on smoking and health shall be imposed under State law with respect to advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter. Liggett Group. v. preempts liability for cigarette manufacturers under state law. The regulations prevented advertising of tobacco products. and Liggett asserted that the claims were preempted by federal statute. 36 . o The attorney general of Mass. Inc. by analyzing the express preemptive language of the federal statute.” ( the federal provision does not cover smokeless tobacco or cigars).” o Q  whether the federal statute preempted P’s state common-law claims? o The court interpreted the intent and purpose of the federal law . but does not preempt P’s claims other claims. Also. and smokeless tobacco. within 1. (“based on smoking and health”). cigarettes. o The Court determined that the federal act preempts P’s claims based on failure to warn to the extent the claim relies on omissions or inclusions of the Liggett Group’s advertising or promotions. Reilly: o the Court considered the constitutionality of Massachusetts regulations of the advertising of tobacco products. o The court held that respondent attorney general's outdoor and point-of-sale advertising regulations targeting cigarettes were pre-empted by the Federal Cigarette Labeling and Advertising Act (FCLAA).: Whether federal regulation of cigarettes. Also the regulation limited advertising in stores selling such products – called “point of sale” advertising. • Lorillard Tobacco Co. argues that this is regulation with regard to content not location. o Cipollone sued Ligget on behalf of his deceased mother for various state common law claims bc of her death from the hazards of smoking.000 feet of a school or playground. and banned cigarette advertising in any medium of electronic communication subject to the FCC’s jurisdiction. o The statute also contained a preemption provision that stated “no requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this act.• Cippollone v. o A federal statute required cigarette packages to contain a warning that the surgeon general has determined that cigarette smoking is dangerous to one’s health. that the ads do not involve health related content but instead target youth exposure to cigarette ads. cigars.

It depends on the intent of the federal government.o The FCLAA's pre-emption provision did not permit a distinction between concern about minors and cigarette advertising and the more general concern about smoking and health in cigarette advertising. • In applying this type of preemption. Dir. Conflicts Preemption: • If a federal and state law are mutually exclusive. o It was possible to comply with both. the courts must determine the federal objective and must decide the point at which state regulation unduly interferes with achieving the goal. federal marketing orders guage the maturity of avacados grown in Florida by standards which attribute no significance to oil content. so that a person cannot comply with both. a distinction between state regulation of the location as opposed to content of cigarette advertising had no foundation in the text of the preemption provision. despite the dissimilarities of the standards. • Pacific Gas & Electric Co. • I. Preemption bc State Law Impedes the Achievement of a Federal Objective: • Preemption also can be found if a state or local law is deemed to impede the achievement of a federal objective. • The difficulty often lies in determining whether the laws actually conflict. Inc.e. was not 37 . b.” In contrast.. Even if the federal and state laws are not mutually exclusive. Implied Preemption: a. preemption will be found if the state or local law interferes with attaining with a federal legislative goal. 2. Dept. the state law is deemed preempted. prohibits the transportation or sale in California of Avacados which contain “less than 8% of oil by wt. which effectively placed a moratorium on construction of new nuclear power plants within the state. v. o There is no inevitable collision btw the two schemes of regulation. v. • Florida Lime & Avocado Growers. although certified under the federal regulations. State Energy resources conservation & development commission: o State law. do not uniformly meet the Ca requirement of 8% oil. Further. of Agricultrure of CA: o Ca Agricultural Code. o Issue: The constitutionality of the CA statute insofar as it may be applied to exclude from California certain Florida avacados which. Paul.

Since the NRC could not force a utility to build a power plant. Davidowitz: o State alien registration law was challenged on the ground that the federal alien registration law occupied the field and therefore preempted the state law. Ct. which required that aliens register annually. It did not preempt the field. o Whether the State law was preempted by federal law? o Even though it was possible to comply with both. Since California asserts that its statute was aimed at the economic problems of storing and disposing of waste.preempted by federal law that governed the regulation of safety aspects concerning nuclear power plants. o Held: California’s regulation is valid. The Dormant Commerce Clause: 38 . which are aimed at preventing injurious discrimination against aliens. simultaneous compliance with both NRC’s rules and Ca’s is possible. preemption will be found if there is a clear congressional intent to have federal law occupy a particular area of law. o Other Ex.’s of occupying the field: regulation of safety standards for meat (bacteria) and air traffic safety. It commented that the regulation of aliens is so intimately blended and intertwined with responsibilities of the national government that where it acts. The S. The federal act did not require that aliens carry a registration card. which provided for a single registration. and with the construction and operation of nuclear plants. the court determined that Congress had intended to occupy the field of alien registration. The following year. In finding such intent. the court acknowledged the existence of numerous treaties and international practices. The federal system of licensing and inspecting of nuclear plants was set up solely to deal with safety issues. the federal government enacted the Alien Registration Act. c. o Nor was there an actual conflict btw Ca’s refusal to allow plants to be built until the nuclear-waste issue was resolved and the Nuclear Regulatory Commission’s decision to grant licenses while uncertainty remained. • Hines. long has held that federal law is exclusive in regulating immigration. the California statute does not come within the area preempted by Congress. provide info. o The state of Pa passed an Act. not safety problems. here too. B. and carry a registration card. NRC merely indicates that construction is safe. Secretary of Labor and Industry of Pennsylvania v. Preemption Because Federal Law Occupies the Field: • Even though federal law does not expressly preempt state law. • The most important example of this is immigration law. the federal act is supreme. not that it is economically sound. and the state also acts on the same subject.

Ct. sec. • Remember: if Congress has legislated.  STAGE 2: Cooley v. Because the dam blocked navigation of the creek.  Holding: Marshall held in favor of the dam company. the Court affirmed a Pennsylvania law which required ships entering or leaving the port of Philadelphia to hire a local pilot. Ogden: • • Only the federal government can regulate interstate commerce.”  Delaware authorized the construction of a dam on a creek which flowed into the Delaware River. o The dormant commerce clause blocks some but not all state regulations which effect interstate commerce. • 3 stages:  STAGE 1: Gibbons v. The Black Bird Creek Marsh:  A state could sometimes affect interstate commerce as an incidental consequence of its exercise of its “police powers.• The dormant commerce clause is the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce. Rather. i. and 2) limiting state and local regulation the dormant or “negative” Commerce Clause. States have police power to regulate public health and safety which has an effect on interstate commerce. of Wardens of the Port of Philadelphia: o Ask: Whether the subject matter being regulated was “local” or “national?” o In Cooley. but rather. to regulate commerce among the states. the owners of a federally licensed ship broke the dam in order to pass through the creek and were sued by the dam owners.  Marshall reasoned that Delaware was no acting for the purpose of regulating interstate commerce. the state or local law can be challenged on the ground that it excessively burdens commerce among the states. was attempting to protect the health of nearby inhabitants. even if Congress has not acted – even if its commerce power lies dormant. and to increase the value of property adjoining the creek. Commerce power. • The Commerce clause thus has two functions: 1) authorization for congressional actions. 8. • But even if Congress has not acted or no preemption is found. 39 • • .e. has inferred this from the grant of power to Congress in Article I. Willson v. the issue is whether the federal law preempts the state or local law. Ask: whether the state was regulating commerce or using its “police powers?” Test: Police power v. state and local laws still can be challenged as unduly impeding interstate commerce. • There is no Constitutional provision that expressly declares that states may not burden interstate commerce.Bd. the S.

o Test: FIRST. putative local interest. Per se rule of invalidity: Where simple economic protectionism is effected by state legislation. (doesn’t fit neatly)  Since the test looked solely to the “subject” being regulated. o Two different analysis depending on whether the case involves discrimination or not. then Congressional power is exclusive. and those that needed diverse local regulation. if the subject matters of a purely local concern. provided there are no competing federal regulations. LOOK TO SEE IF THE DORMANT COMMERCE CLAUSE APPLIES! If yes… 1. However. then the state may regulate the subject. Sustained only if it involves a legitimate state interest. National subject matter. Balance: burden on interstate commerce v. it did not consider how extensively the states’ regulation impacted interstate commerce. *Note: economic protectionism is NOT a legitimate state interest. may need to do it both ways if it makes sense. o Problems with Cooley:  It was not easy to distinguish between those “subjects” that required uniform national regulation. There is no non-discriminatory means for doing it. AND 2. o In this case. o Caveat: Federal government can regulate whether local or national and can pre-empt the state. o On test. However…  If there is no discrimination: (Pike):  Look to see if undue burden on interstate commerce. a virtually per se rule of invalidity has been erected. the Court found Pennsylvania’s regulation permissible bc pilotage in local harbors was a subject appropriate for local control (at least if that local control did not conflict with an explicit congressional action).o This is referred to as “the selective usefulness test.” which provides that if the subject of the regulation requires national uniformity. o Test: Local v. 40 .  STAGE 3: The Contemporary Test for the Dormant Commerce Clause: (Post 1938): o The modern approach is not based on rigid categories.

The state reasons that such a new receiving station will divert additional NY milk to Massachusetts consumers. o Can be accomplished through non-discriminatory means: The expressed purpose of the law. o Reasoning: Hood was denied the facility because of economic protectionism which is NOT a legitimate state interest.: (The Garbage Disposal Case): o U. may be addressed by slowing the flow of all wastes into the state’s landfills.J. NY: 41 . through distinction. Du Mond. Economic: The economy is better off if state and local laws impeding interstate commerce are invalidated. a Boston milk distributor a license to operate an additional milk receiving station in NY. Political: States and their citizens should not be harmed by laws in other states where they lack political representation. violated the commerce clause. C &A Carbone. o However. S. The state argues that the diversion will dangerously increase the costs. o The goal of economic security may not be pursued by discriminating ag. o Jackson: “Our system. safety and welfare of NJ residents.” City of Philadelphia v. Town of Clarkstown. held that NJ (D) statute. Ct. Commissioner of Agriculture and Markets of N.Y.: o In Boston. fatal interstate rivalries will develop. 1. and decrease the volume. fostered by the Commerce Clause. Inc. o Held: for Hood. 2. Hood & Sons v. is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market in the Nation. 3. NY refused to give Hood. o Justifications for the dormant commerce clause: 1. in his dissent states that this is an insolvable problem. NJ may not accomplish those purposes by discrimination.the very language of the law discriminates. Historical: The Framers intended to prevent state laws that interfered with interstate commerce. A state may not enact laws that burden the exportation of local products in order to protect and advance local economic interests. against out-of-staters. N. other states. However. 90% of its milk came from outside Massachusetts. P. If NY is allowed to withhold its milk from the interstate markets. o Note: the state statute involved is a facially discriminatory law. which prohibited other states from disposing of solid and liquid waste in NJ. of other distributors (who will loose their suppliers to the new plant). Discrimination Cases: H. Rehnquist.(Note: remember local interest can not be economic protectionism). to protect the public health. v.S.

o Note: this case is another example of a facially discriminative law. o The practical effect of the ordinance is that it places an economic barrier protecting a major local industry against competition from outside the State. Dean Milk Co. Rather than placing the limitation on transporting the minnows out-of-state. o Even though the state’s objective (protection of residents ag. non-discriminatory alternatives were available and could have been used. upon being denied license to sell milk in Madison because its pasteurization plants were more than 5 miles away.: “Fish in” case: o Taylor. Madison. Hughes v. adulterated milk) served a legitimate state interest.S. (Madison could charge out-of-state milk producers for 42 . thereby allowing state’s residents to keep the minnows for themselves. The court noted that discrimination existed even though both out-of-state and in-state processors were required to have their waste processed at the favored company. was challenged as violating the Commerce Clause. o However. o Held: the law was upheld. o The ordinance’s purpose was to hoard trash processing jobs (and the income from those jobs) within the town. o Held: The ordinance was struck down. non-discriminatory alternatives may be used to accomplish the same purpose. The Court held that the ordinance violated the Commerce Clause. in defense of criminal charges. o The statute serves a legitimate local concern: conservationism. interstate commerce. challenged the City’s milk plant ordinance on the grounds that it violated the Commerce Clause. However. challenged Maine’s law prohibiting the importation of live baitfish on the ground it violated the Commerce Clause. Oklahoma: “Fish out” case: o Oklahoma bars the transportation of minnows outside the state for sale.it deprived out-of-state firms of the opportunity to do the processing.o The Town of Clarkstown enacted a “flow control” ordinance. it served a legitimate state interest (ecology. Maine v. o The statute discriminates on its face against out-of-state commerce. Taylor and U. o Held: The statute violates the Commerce Clause. in that it favored a local company. o The statute would have had a better chance at survival had their been limitations placed on the # of minnows that could be taken out of the water by those within the state. Wisconsin: o Dean Milk. o It is clear the law was discriminatory against interstate commerce: importing live baitfish into the State from other States is prohibited. v. to the exclusion of others. which is clearly discrimination against interstate commerce. The ordinance thus discriminated ag. which required all waste to be processed at a local waste transfer facility before leaving town.to protect the State’s fisheries from parasites and nonnative species) and there was no nondiscriminatory way of doing it.

o The case involves a facially neutral law that is discriminatory bc of its discriminatory purpose. Inc. Hunt. o Although the statute was facially neutral. Carolina statute hurt out-of-state Washington apple producers by stripping from it the competitive advantages it had earned through its rigorous and wellknown inspection and grading system. A group of Washington state apple growers attacked the N. since it prohibited the display in N. v. o In this case we should discuss both tests: discrimination and burden. Inc. The regulation is applied to prevent a California co. grade or no grade at all. o Held: The Statute was struck down. West Lynn Creamery. rather than absolutely barring them from selling milk within the City). Bruce Church. P. The Washington manufacturers had to either obliterate the printed labels on containers shipped to N.S. there is no legitimate state interest. which imposed a tax on all in-state milk sales (whether it was produced in-state or out-of – state). Carolina statute. with the proceeds paid to local (instate) dairy farmers as a subsidy. o Held: The law was held to be unconstitutional under the Commerce Clause. Washington State Apple Ad Commission: o N. Massachusetts violated the cardinal principle: that a state may not benefit in-state economic interests by burdening out-of-state competitors. o Second. Carolina of Washington’s stringently-police apple grades. The N. o Moreover. Carolina v. a milk dealer who buys 97% of its raw milk from out-of-state milk producers challenged the law on the ground that it violated the Commerce Clause. although the statute served a legitimate state interest (safety of people) it had a discriminatory effect when non-discriminatory alternatives were available. Commissioner of Massachusetts Dep’t of Food and Agriculture: o Massachusetts law. (permitting state grades along with applicable USDA labels).having their products inspected by local inspectors. it had a discriminatory effect. o First. Carolina required that all closed containers of apples shipped into or sold within the state bear the applicable U. or repack apples bound for N. 2.: (Cantaloupe case): o Arizona requires that all Arizona cantaloupes packed in Arizona. Economic protectionism is not a legitimate state interest. The purpose 43 . Burden Cases: Pike v. Carolina in special containers. from shipping uncrated cantaloupes from its Arizona ranch to its California packing plant. Carolina. Healy. Governor of the State of N.

this interest is clearly outweighed by the national interest in unencumbered commerce. (so not discrimination).000 pounds.: o South Carolina prohibited the use on state highways of trucks wider than 90 inches or weighing more than 20.of the requirement is to enhance the reputation (and demand for) Arizona’s cantaloupes. Barnwell Brothers. Arizona: (Train length Case): o Arizona created a law limiting the number of railroad cars per train as a safety measure. o Held: statute invalid. on ground that it violated the Commerce Clause. He continued that the fact that most trucks used in interstate and intrastate commerce is a safeguard against their abuse. mudguard. o Balancing Test: The economic burden involved in complying with state law. Dept. Kassel v. rather than contoured. o Held: highway regulation is unconstitutional. o Balancing Test: The safety advantage of the contoured v. v. Pacific asserted that the law violated the Commerce Clause. o Balancing Test: The state’s interest in enhancing the reputation of Arizona cantaloupes is legitimate. o Held: The law was invalid. o Held: The regulation was upheld. o Balancing Test: The state interest (road safety) > interstate burden (truck regulations on weight and size). Inc.in fact the trial court found that the law made train operations more dangerous).: o An Illinois statute requires trucks operating in that state to be equipped with contoured rear-fender mudguards. straight mudflap is unclear. There was clear evidence that the vast majority of trucks used in interstate commerce exceeded one or both of these limitations. 44 . Dir. At least 45 other states which have mudguard requirements permit a straight. Southern Pacific Co. South Carolina State Highway Dept. o Held: The Illinois statute violates the dormant Commerce Clause. the lack of uniform application of the regulation among the states concerning train car length and the impediment to the free flow of commerce outweigh the slight safety advantage afforded by state law. of Public Safety of Illinois v. Thus the tremendous burden on interstate commerce outweighs the slight local safety interest. Inc. which are of high quality. v. Navajo Freight Lines. o (Later Chief) Justice Stone stressed that the regulations were applicable to interstate and intrastate traffic alike. However. and one state explicitly requires a straight mudguard. and S. which preferred 65foot trucks. Bibb. (safety was illusory. Consolidated Freightways Corporation of Delaware: o Iowa’s statute banning trucks more than 60 feet in length from using state highways was challenged by Consolidated Freightways.

Also. and its regulations impair significantly the federal interest in efficient safety and safe interstate transportation. Dynamics Corp. wanting to purchase CTS. this rule effected out-of-state companied exclusively. there is little evidence to support P’s argument that the Act will limit the # of successful tender offers. in all possibility. from burdensome regulation. the state’s safety interests were found to be illusory.resident or nonresidentfrom offering to purchase. 45 . again. the state law cannot be harmonized with the Commerce Clause. o Held: Act was upheld. The Act only provides regulatory procedures designed for the better protection of the corporations’ shareholders. o No discrimination: The statute did not discriminate ag. The Court held that the Commerce Clause protects the interstate market. Since no gas is produced or refined in Maryland. the same percentage of gas would come from out-of-state suppliers after the statute as before it. o No discrimination: The Act is equally applicable to in-state and out-of-state offerors. Furthermore. o Not burdened: The Act does not adversely effect interstate commerce by subjecting activities to inconsistent regulations. The mere fact that the entire burden of the statute fell on some out-of-state companies was insufficient to establish that “interstate commerce” was discriminated against. interstate commerce bc not all out-of-state companies were affected by the statute. It thus substantially burdens the interstate flow of goods by truck. CTS Corp. shares in Indiana corporations. Governor of Maryland: o Maryland passed a law prohibiting oil producers or refiners from operating retail gas stations in Maryland. o Not burdened: Interstate commerce was not impermissibly burdened by the statute. The following (3) cases there was no discrimination and no burden: Exxon Corp. v. challenged the law on Commerce Clause grounds. of America: o Indiana passed an anti-corporate takeover law protecting domestic corporations and Dynamics Corp. Iowa’s law is out of step with the laws of all other Mid-western and Western states. so that the flow of goods in the interstate market would not be decreased.o Balancing Test: Iowa failed to present any persuasive evidence that 65-foot doubles are less safe than 55-foot singles. the Act does not prohibit any entity. The law was enacted bc of evidence that gas stations operated by producers and refiners had received preferential treatment during the 1973 oil shortage. o Here. the court noted. not particular interstate firms. Thus. However.. v. 3. or purchasing. o Held: Statute upheld. The Act has the same effects on tender offers whether or not the offeror is a domiciliary or resident of Indiana. Moreover.

• • 46 . Clover Leaf Creamery Co. (Western & Southern Life Insurance Co. The issue would be whether the federal law is a constitutional exercise of the commerce power. principally cardboard cartons) o No discrimination: The statute regulates evenhandedly by prohibiting all milk retailers from selling their products in plastic. • • Congressional Approval: Even a clearly unconstitutional. discriminatory state law will be allowed if approved by Congress bc Congress has plenary power to regulate commerce among the states. the commerce power is no longer dormant. if the state is literally a participant in the market. of Equalization of California). Remember: that although a law will not violate the dormant Commerce Clause if there is congressional approval. and not a regulator.State of Minnesota v. the containers. if so. or the sellers are from outside the state. non-returnable milk containers. since milk products may continue to move freely across the state border. such as with a state-owned business.: o The S. v. This “burden” is clearly not excessive in light of the substantial state interest in promoting conservation of energy and other natural resources and easing solid waste disposal problems. without regard to whether the milk. The Market Participation Exception: A state may favor its own citizens in receiving benefits from government programs or in dealing with government-owned businesses. o Not burdened: The burden imposed is minor. and changes in packaging will only be a slight inconvenience. In other words. it still can be challenged under other Constitutional provisions. Exceptions to the Dormant Commerce Clause: 1. Ct. Note: of course if Congress has acted. the law must be followed even if it means upholding laws that otherwise would violate the dormant commerce clause. State Bd. has found congressional approval to authorize state laws that otherwise would violate the dormant Commerce Clause concerns regulation of the insurance industry. sustained a state law which banned non-returnable milk containers made of plastic (but permitted non-returnable milk containers made of other substances. C. the dormant Commerce Clause • • 2. Ct. One of the most important areas where the S.

challenged the policy under the Commerce Clause. but allows it to go no further. v. Inc. White v.does not apply. A seller usually has no say over. Inc. but later gave preferences to in-state buyers. a long time buyer.there will be no violation of the Commerce Clause. As long as the State is discriminating in favor of its own citizens while conducting market transactions. of Natural Resources of Alaska: Alaska imposed a restriction on buyers of Alaska timber that required them to process the timber in Alaska before export. payments for the timber do not end the obligations of the purchaser.  There is a limitation to the market participation exception to the dormant commerce clause: South-Central Timber Development. The mayor’s executive order did not violate the Commerce Clause. The limit of the marketparticipant doctrine must be that it allows a state to impose burdens on commerce within the market in which it is a participant. South Dakota.in this case a state owned cement plant. Commissioner. Alaska went beyond the market in which it was participating. Held. Massachusetts Council of Construction Employers: The mayor of Boston issued an executive order which required that all construction projects funded in whole or in part by city funds should be performed by a work force consisting of at least half bona fide residents of Boston. fits the “market participant” exception to the Commerce Clause. Here. as a seller of cement. and no interest in. The city expended only its own funds in entering into construction for public projects and was thus market participation. Reeves. v. however. Dept. Discrimination against out-of-staters is allowed that otherwise would be impermissible.  Whether there should be a market participant exception? Con:  The dormant Commerce Clause is meant to stop protectionist actions by state governments. protectionism should not be allowed regardless of whether the state is acting in a proprietary or a regulatory capacity. Held. the restriction violated the Commerce Clause. Held. how the product is to be used after sale. Reeves.  There is not a clear distinction btw situations where the government is acting as a regulator and when it is a market participant. It is clear that Alaska is more than a seller of timber (rather it is regulating who and where the timber will be processed). which sold to private buyers. William Stake: When South Dakota built a state-owned cement plant. Pro: 47 .

” D. (however. There is no “market participation” exception to the P and I clause.” The Privileges and Immunity Clause prevents states from discriminating against outof-state individuals. Only fundamental rights are covered: the rights that meet this “fundamental to national unity” standard are all related to economic interests. P and I clause will be combined with dormant Commerce Clause Q). Baldwin v. The Provision states: “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. This scheme does not violate the P and I clause. Held. The Privileges and Immunities Clause of Article IV. o Conversely. corporations and aliens are not protected). o Examples: The right to be employed. Montana Fish and Game Comm’n: Montana allows Montana residents to purchase a license for hunting elk and other animals for $30.  “State spending programs are less coercive than regulatory programs or taxes with similar purposes” and they “seem less hostile to other states and less inconsistent with the concept of union than discriminatory regulation or taxation. Purpose of the P and I Clause: Toomer v. • • • • 48 . and 2. because the right to recreation is not a right that is fundamental to national unity.” For example. Allows the citizens of a state to recoup the benefits of the taxes that they pay. while non-residents are charged $225. non-economic rights are generally NOT “fundamental to national unity. and are therefore protected. the Court struck down on P and I grounds a Georgia law which permitted only Georgia residents to obtain abortions within that state. There is a substantial reason for the difference in treatment.” The P and I clause speaks of “citizens” of other states. Witsell: “To insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy. The discrimination practiced against non-residents bears a substantial relationship to the State’s objective. § 2: • • • • • • Another provision that limits state and local regulation is the Privileges and Immunities Clause. The P and I clause is NOT ABSOLUTE! The Clause does not preclude discrimination against non-residents where: 1. such as livelihood and civil rights. and the right to engage in business are all fundamental. (On exam. discrimination against non-residents is what is barred. Bolton. the right to practice one’s profession. But as a practical matter. In Doe v.

Held. there is no substantial reason for its discrimination nor does the discrimination bear a close relationship to its objectives. Piper. Supreme Court of New Hampshire v.3. challenged State Supreme Court Rule that required State’s lawyers to be residents of the State on the ground that violated the P and I Clause. The practice of law is a “fundamental right” important to the national economy and is protected by the P and I clause. the Court has considered the availability of less restrictive means. In deciding whether the discrimination bears a close relationship to the State’s objective. Here. 49 . Piper: Non-resident attorney.

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