Outline for Constitutional Law

Introduction -Constitution is the supreme law of the land, the “operating system” of a nation. It sets the ground rules defining and limiting government power. -Constitution limits popular democracy to prevent abuse of power, protect minorities. Examples: Bill of Rights, appointment of federal judges, life tenure in SCOTUS -Constitution restrains people from themselves to promote stability. The document itself can’t be easily changed. -Two predominant features in Constitution: separation of powers & federalism. -Articles I-III creates three separate branches: legislature, executive, and judiciary. Checks and balances prevent any one branch from being too powerful. -Federalism: dual sovereignty between federal government and state governments. Each level has its own powers and responsibilities. -Federal government can overrule the states on certain issues. -Constitution has been amended and re-interpreted based on prevailing norms. Government authority has expanded over time. -Presidential power has expanded greatly since the first presidents’ time; more executive privileges.

Federal Judicial Power
-SCOTUS has power of judicial review over laws passed by Congress: can decide their constitutionality. (Marbury v. Madison) -SCOTUS can also review executive actions and decide on their constitutionality when individual rights depend on them. -Cannot decide on political issues of executive, or departmental appointments. -Judicial review authority comes from fact that Constitution is supreme law of land. Article III: Judicial authority extends over all cases arising under Constitution. -Congress cannot expand the original jurisdiction of the SCOTUS (without an amendment). Article III determines the maximum jurisdiction of federal courts. -SCOTUS may review state court decisions and has the final authority over the states regarding constitutional issues. Congressional limits: Legislation by Congress restricting jurisdiction of courts. This can raise problems with separation of powers. -Article III’s Exceptions and Regulations clause allows Congress to limit SCOTUS jurisdiction over certain cases. -Congress cannot dictate how the court must decide cases under its jurisdiction. Exceptions clause can’t be used to impede separation of powers between branches. (U.S. v. Klein) -Congress may repeal a statute that would allow SCOTUS jurisdiction over a case if it does not want the Court to hear the case. (Ex parte McCardle) 1

-SCOTUS does have authority to review habeas corpus decisions of lower federal courts. (Ex parte Yerger) -Congress may change the law itself instead of telling SCOTUS how to decide a case. It cannot force courts to re-hear cases which were already decided on merits. Interpretive Limits: Judicial restraints on interpreting the Constitution imposed by judges themselves. Originalism: Judges would only look at the meaning of the original text to decide cases. Meant to follow the Framers’ clear or general intent behind the provision. -Meant to prevent judiciary from becoming too powerful. Purpose-based theory: Constitution should be interpreted flexibly for modern times. Court should create fair processes of government and let the polity make value choices. Aspirationalism: Identify and define values to protect based on tradition and social needs. Constitution evolves with court’s normative judgments.

Justiciability Limits: no advisory opinions; standing; ripeness; mootness; no political questions. -No advisory opinions: There must be an actual dispute or controversy that the court can resolve by judicial decision. Court doesn’t give advice on policy or hypotheticals. Declatory relief: When the court issues an injunction that has the force of law. Standing: Doctrine that determines whether it is appropriate for a court to hear the parties’ arguments. There must be real conflict between parties. Constitutional elements: 1. An actual or threatened injury in fact 2. Injury must be traceable to the challenged action. 3. Injury must be redressable by adjudication. -Constitutional elements are based on Article III (case & controversy). Prudential = restraint by judges themselves. -Aesthetic injuries to persons who allege an interest in preserving something can count as actual injuries in fact. For standing, the party must show that it lives near the land or uses it. (Sierra Club v. Morton) -Tax exemption to segregated private schools does not constitute an actual injury to black parents who send children to desegregated public schools. This injury is speculative & not redressable. (Allen v. Wright) -Situation didn’t stigmatize the plaintiffs, and they didn’t apply to the white private schools. -A possible future injury that is not bound to occur again is too speculative to be considered an actual injury by SCOTUS (Los Angeles v. Lyons) Lyons lacked standing b/c he could not prove that he would be choked by police again in the future. -Organizations have standing to assert the interest of members if: At least one member would have individual standing for the suit; 2

& if the organization’s interests in the case are germane to the organization’s purpose. -Orgs have more resources than individuals for litigation. -Court did not grant standing to plaintiff who wanted foreign natural sites to be under the protection of the Endangered Species Act b/c there was no actual or imminent injury. No relief that court could have redressed P’s injury. (Lujan v. Defenders of Wildlife) -Plaintiff cannot prove that removal of tax exemptions would cause hospitals to take care of indigent patients—traceability problem. -Even though an environmental injury to a state may be widespread, such an injury-in-fact is real, significant, and imminent. -If the court can redress even part of the problem by ordering the EPA, it must do so. Every little bit helps in environmental problems. This is incremental redressability—liberalizes redressrequirement. (Mass. v. EPA) -For standing, plaintiff just needs to prove a reasonable concern about effect of pollution on land, not actual environmental damage. Example of citizen suit. (Friends of Earth v. Laidlaw) -Expansive view of standing for citizens. -Deterrent impact of penalties meets redressability. Prudential Standing Prudential elements: 1. Third-party standing is generally prohibited. 2. No generalized grievances (taxpayer) 3. “zone of interest” requirement. -Zone of interest: party bringing suit must belong to the class it’s fighting for. -Prudential standing depends on the discretion and restraint of the courts, hence it’s flexible. -Third party standing is generally prohibited because injured party itself is the best defender of its own legal rights; another party cannot substitute. Exceptions to Third-party Prohibition: -Doctor plaintiffs were allowed to assert abortion patients’ rights because of closeness of their economic relationship. Doctors couldn’t be paid by state for doing abortions. (Singleton v. Wulf) Mootness problem for women since pregnancy only lasts nine months. Privacy issue. -If the real injured party cannot obtain independent standing, a third party connected with the injured party may have standing for them. -If third party’s relationship with another is harmed, it may have standing as a P. -No generalized grievances: denies standing if the asserted harm is common to all or a large class of citizens. This rule excludes citizens and taxpayers from suing just to get government to follow the law. -Exception to prohibition on taxpayer standing for cases challenging legislativespending that violates the First Amendment’s establishment clause. This only applies to Congressional funding. (Flast v. Cohen) -There is no standing to challenge White House funding for faith-based programs b/c it’s executive spending, not legislative appropriation. (Hein v. Freedom From Religion) 3

-No standing to challenge transfer of federal property to religious group b/c it’s an exercise of gov’s property power. (Valley Forge Christian College case) Ripeness & Mootness Ripeness: Is judicial review premature? -Ripeness is meant to prevent courts from issuing advisory or premature opinions. Cases might arise based on legality of action before state tries to enforce the law. -Plaintiff must show that harm occurred or imminently will occur. -If a statute has never been enforced before, there is no real threat of prosecution against plaintiff. (Poe v. Ullman). -Federal agencies are protected from prosecution until they act. -Court must evaluate fitness of issues for adjudication & whether impact of the law on the parties is direct or likely to cause hardship. If issue is purely legal w/ no disputed facts, it may be ripe. -Hypothetical threats to a party are too vague for ripeness, especially if the plaintiff has not yet committed any illegal activity but fears punishment. (United Public Workers v. Mitchell). Mootness: Is there still an actual controversy between adverse parties (or is the dispute over)? A case may be dismissed if there is no longer an ongoing conflict between parties. Exceptions to mootness: 1. “Capable of repetition yet evading review.” If the issue or injury passes quickly but is capable of repetition for the plaintiff, the problem is likely to recur. Court will hear the case to resolve issue for future cases. Example: Roe v. Wade. 2. If D voluntarily ceases to commit an offense but is free to resume action at any time, the case is not moot. Such a case is moot only if there’s no reasonable chance that D can resume the offense. Ex: Friends of the Earth v. Laidlaw Environmental Services 3. Class action suits can continue even if named plaintiff’s claims are rendered moot. Members of the class have a separate interest in resolving the live controversy through litigation. -Example: Federal prisoner suing for release on parole in class action for all prisoners was released, but the case continued for the class of prisoners seeking parole. (Geraghty case) Political Question Doctrine Definition: Issues considered non-justiciable because they should be resolved by political branches of government for interpretation. Includes cases alleging Constitution was violated. -Rationale is the separation of powers among branches. It prevents judiciary from intruding into the area of other branches, where Congress or executive have better expertise. -Examples: Guaranty clause, foreign policy, impeachment. -Supreme Court cannot hear a case involving the Guaranty Clause because the issue of whether a state’s government is republican or not is best determined by Congress, not the court. (Luther v. Borden) 4

-Malapportionment claim based on denial of equal protection is not a political question and is justiciable. (Baker v. Carr) 6 independent tests for existence of P.Qs: (Any one will do) -Textually demonstrable constitutional commitment of the issue to a coordinate political department -Lack of judicially discoverable and manageable standards for resolving issue **Impossibility of deciding without initial policy determination outside of courts -Impossibility of court’s independent action without expressing lack of respect to other gov branches -Unusual need for strict adherence to political decisions already made -Potential of embarrassment from multiple answers by various departments on one Q. (Baker v. Carr) -Political gerrymandering problem was not justiciable according to plurality of Supreme Court because there is no judicially discernable and manageable standard for resolving the issue. (Vieth v. Jubelirer) -Dissent created a five-factor test that plaintiff would need to pass for justiciability. 1. P must show he belongs to a cohesive political group (such as a party) 2. Must show that his district isn’t designed according to traditional districting principles 3. P must show that the district’s unusual design strategically splits up political groups 4. Must show a hypothetical district that would be more fair 5. P must show that defendants intentionally shaped the district for political advantage -Issue of Congressional self-governance may be justiciable. Congress has a textually demonstrable commitment to allow elected Rep. to take office. (Powell v. McCormack) -Issue involving the President’s conduct in foreign relations and Senatorial oversight is non-justiciable b/c courts were not meant to adjudicate this use of political power. -Impeachment and Removal are non-justiciable b/c Constitution gives the Senate the sole power to try impeachments. Judicial review of this privilege would impinge the Senate’s authority and violate checks/balances. (Nixon v. U.S.) -Global warming problem involving multiple states is a P.Q. b/c it requires initial policy determination by Congress and executive. Also a foreign policy issue b/c regulations would affect environmental treaties. (CT v. American Electric Power).

Federal Legislative Power
-Article Ienumerates legislative powers. It allows Congress to lay and collect taxes, pay debts, provide common defense, and public welfare. Also allows borrowing money, regulating commerce with nations, and between states. Necessary and Proper Clause: Congress may pass any law designed to achieve a constitutional purpose. 5

-10th Amendment: Powers not delegated to U.S. and not prohibited to states are reserved for states and people. -Dual sovereignty, protection of states’ rights to balance against federal gov. -Framers intended enumerated powers for Feds, not unlimited reservoir. McCulloch v. MD (1819): MD tried to levy tax on 2nd Bank of U.S., and feds refused to pay MD. -SCOTUS gave unanimous decision favoring the Bank (original D). Rule: Federal gov is based on enumerated powers but is supreme within its own sphere. Even if there’s no explicit power to create a bank, not every enumerated power need be listed in the Constitution. Constitution implies powers derived from provisions that allow Feds to function. -Constitution provides a foundation & space for government to adapt to changing times. -Gov is allowed to pursue legitimate means to legitimate ends. -SCOTUS took an expansive view of what Feds can do in spirit of the Constitution.

Commerce Clause
-Article I, Section 8: Congress has power to regulate commerce with foreign nations and among states of the Union. Commerce is broadly construed to allow diverse federal legislation. -Federal government can regulate commerce (including navigation) that affects multiple states. Gov cannot regulate purely internal state commerce. (Gibbons v. Ogden) -Regulation of commerce includes regulating large industries that affect national commerce. Interstate commerce is affected when workers go on strike and production halts. -Federal regulation of interstate commerce is allowed even when its motive is to affect how a private company produces goods. Gov can enforce minimum wage laws on companies doing commerce. (U.S. v. Darby) -Feds can regulate farming meant for self-consumption because growing one’s own wheat affects the interstate market for wheat. Producer doesn’t buy wheat from national market, which is regulated. (Wickard v. Filburn) -If everyone grew their own wheat, it would badly impact the interstate market. -Congress may regulate any local operations that might harm or substantially affect interstate commerce. This includes refusing to serve black Americans. -Congress has broad and sweeping power to regulate commerce as long as there’s a rational basis. (Katzenbach v. McClung) -Commerce clause reaches 3 categories: channels of interstate commerce being misused; protection of instruments of commerce; activities affecting commerce. -Loan sharking, as form of organized interstate crime, is an activity affecting commerce and can be policed under Commerce clause. -NLOC v. Usery ruled Congress couldn’t impose minimum wage laws on states b/c of federalism; was overruled in Garcia. 6

-Political process ensures that Congress won’t misuse Commerce clause to burden the states, since all states have equal representation in Senate. -Congress cannot regulate gun possession near a school zone under Commerce clause b/c possession does not affect interstate commerce or economy. -Gender-motivated violence doesn’t count as economic activity, and hence cannot be regulated under the Commerce Clause. (U.S. v. Morrison) -If interpreting a statute a certain way would lead to serious Constitutional problems, Court will construe statute to avoid the problem unless it would be contrary to intent of Congress. -Court cannot allow federal jurisdiction over mudflats b/c it would interfere with states’ jurisdiction over land and water use. -Legislation meant to improve safety in channels of commerce and protect instruments of interstate commerce fall under Commerce Clause power. - Producing something meant for home consumption like marijuana has a substantial effect on supply and demand in the national market for that commodity. Falls under commerce power.

10th Amendment Limits on Congress
-In the Constitution, if a power belongs to Congress, it doesn’t belong to the states. If a power belongs to the states, it’s not conferred on Congress. -The federal government cannot command a state to enforce federal regulation on its own citizens. State officials need to be accountable to their own citizens. -Federal law that substantially burdens a state gov will be applied only if Congress clearly stated that it wanted the law to apply on states. (Gregory v. Ashcroft) -Federal government cannot direct states to address specific problems or command the states’ officers to enforce a federal regulation. (Printz v. U.S.) -DPPA is constitutional because it regulates states as owners of databases, not forcing states to regulate their own citizens. Does not require state officials to enforce federal laws.

Federal Taxing & Spending Powers
Article I Section 8: “Congress shall have Power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States…” -According to Article I section 8, Congress has very expansive power to tax and spend for the general welfare. (U.S. v. Butler) -Congress has authority under Necessary and Proper Clause to make sure taxpayer money is actually spent for the general welfare, not drained in graft or bribery. (Sabri v. United States) Corrupt officials can’t be trusted to spend federal funds for general welfare. -Rule: Congress’ spending power is limited by three factors: 7

spending must be for “the general welfare”; Conditions for receiving federal funds must be expressly stated; Conditions for funds must be related to the purpose of the federal program. -Making federal highway funds contingent on the legal drinking age is proper use of spending power b/c it’s not coercive, and alcohol relates to driving safety. (South Dakota v. Dole) Congress’s Powers: Post-Civil War Amendments Due Process & Equality 14th Amendment: No state can limit privileges or immunities of citizens; nor can states deprive anyone of life, liberty, or property without due process of law or deny anyone equal protection of the laws. -Section 5: “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” 15th Amendment: Right of US citizens to vote cannot be denied or limited by the United States or any state on account of person’s race or previous condition of servitude. Congress can enforce this w/ appropriate legislation. 42 U.S.C. S. 1982: All citizens regardless of race have the same right in every state to inherit, purchase, lease, sell, hold and convey real and personal property. S. 1981: All citizens have right to enforce contracts, sue, etc. for security of persons and property. -Congress can prohibit racial discrimination in the sale and leasing of property. -Two views concerning authority given to Congress by 14th Amendment. Expansive: Congress has power to define, interpret, and enforce Constitutional rights based on Section 5 of 14th Amendment. Strict: Congress may only provide legislative remedies of rights recognized by Supreme Court. -Court will uphold Congressional acts if they’re adapted to a legitimate end and consistent with spirit of the Constitution. Court shouldn’t second-guess Congress if there was a perceivable basis for legislation. Rational basis test. -Voting Rights Act upholds 14th Amendment b/c it prohibits NY from denying voting rights to Puerto Ricans. -14thAmendment only regulates state action, not private actors. Feds cannot use 14thAmendment to directly regulate private action. (U.S. v. Morrison) -Congress cannot modify the Constitution by itself to remedy a legal problem. Court’s test: For legislation to be appropriate, it must be congruent & proportional to the injury to be remedied, and the means must be adapted for the remedy (City of Boerne v. Flores). -Congruent = tailored towards fixing the specific injury, being focused; not too broad. 11th Amendment (Sov. Immunity) 11th Amendment: Judicial power of the US shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state or subjects of a foreign state. 8

-Original context: Meant to limit citizens from suing a state gov in federal court to recover debt which that state owed him. -Two interpretations of 11thAmendment. Majority of current SCOTUS believes sovereign immunity restricts federal court subject matter jurisdiction on all suits against state governments. -Alternative view: 11thAmendment only restricts diversity jurisdiction of federal courts. Federal question jurisdiction against state govs should be allowed. -SCOTUS held that 11thamendment bars suits by citizens against their own state governments. (Hans v. Louisiana) -11th Am. protects state governments from being sued in state courts for violation of federal laws. (Alden v. Maine) -Federal government can still bring suits against state governments. But it’s difficult for private parties to get relief from states for federal rights. -3 types of exceptions to state sovereign immunity found by Court. -A citizen can sue state officials for injunctive relief if damages aren’t paid by the state government (Ex parte Young). -A state may waive its 11th Am. Immunity if it clearly consents to a suit in federal court. -Big one: Congress can waive states’ immunity if it clearly expresses intent to do so and acts according to its 14thAmendment power. (Fitzpatrick v. Bitzer). -Fitzpatrick held that 11th Am. provision is limited by section 5 of 14th Am. -In Seminole v. FL, SCOTUS held Congress lacked the power to abrogate state immunity under the Indian Commerce clause even though it intended it. Overruled Pennsylvania v. Union Gas. -Hence it’s possible to have constitutional rights without any remedy in court to enforce it. -Neither the Patent Clause, Interstate commerce clause, nor 14thAm. gave Congress power to eliminate state sovereignty from patent infringement suits. (Florida Prepaid) -Congress does have authority to remove state sovereign immunity through the Family Medical Leave Act. -Sexual discrimination is subject to stronger scrutiny than age or disability discrimination. FMLA is congruent and proportional to the problem of discriminatory leave policies. Combats discrimination based on gender roles. (Nevada Dept’ of Human Resources v. Gibbs) -Americans with Disabilities Act is valid exercise of Congress’s power under section 5 of 14thAm. It’s congruent to combating discrimination against disabled persons. (Tennessee v. Lane and Jones) -P’s were paraplegics who sought damages/relief from state for its failure to make courthouses accessible to disabled persons.

Federal Executive Power
Inherent Presidential Power -When may President act without clear constitutional or statutory authorization? 9

If he acts with express or implied authorization with Congress, his authority is strongest. He has executive authority plus legislative approval. -President’s power to give an executive order must arise either from an act of Congress or from the Constitution itself. President cannot seize steel mills on his own. (Youngstown Sheet & Tube Co. v. Sawyer) -President’s duty is to ensure that laws are faithfully executed, but he cannot create laws himself. -Executive privilege is the ability of the President to maintain secrecy of his communications with advisors. -Executive privilege based only on a generalized interest in confidentiality is outweighed by Court’s interest in due process of law for criminal cases. -Court respects executive privilege based on need to protect military and diplomatic secrets. (U.S. v. Richard M. Nixon) -Court is unlikely to oppose executive privilege in civil cases because they do not have the same weight as criminal justice. -When executive privilege is asserted, court must weigh needs of President with need for info. Conflict between branches should be avoided. (Cheney v. U.S. District Court for D.C.) Authority of Congress to Increase Exec Power -Line item veto had allowed president to cancel (veto) portions of spending bills instead of an entire bill proposed by Congress. Meant to eliminate legislative earmarks. -SCOTUS held Line Item Vetounconstitutional. It violates the Presentment clause (Art. I, S. 7). He can only accept or reject whole bills, not modify them. -President can’tcancel apportionments b/c that would be repealing a law. A law can only be repealed by statute, which is Congress’ power. -Court wished to preserve separation of powers. President can’t assume legislative powers. -Court allowed president to waive impositions of tariffs b/c he may do so on a contingency basis. He can execute policy of Congress, and his foreign policy authority is greater. (Field v. Clark, 1892) -Upheld delegation of power between branches.

Non-Delegation Doctrine Doctrine: Congress may not delegate legislative power to executive agencies b/c it violates separation of powers. Executive agency cannot have legislative functions. -Congress supposed to be accountable for policy decisions, not unelected officials. -This is no longer enforced by courts. Courts recognize that modern complexity requires work by administrative agencies that can make rules. -Congress may delegate authority to admin agencies if gives an intelligible principleto guide agencies’ use of authority. Agencies must act by standard. (J.W. Hampton v. U.S.) -Federal Sentencing Commission was constitutional b/c Congress set boundaries of delegated authority and gave general policy. (Mistretta v. U.S.) 10

-Court does not demand a “determinate criterion” by which an agency’s power should be restricted; intelligible principle is enough. (Whitman v. American Trucking Assn) Legislative veto: Any provision in statute that allows Congress to overturn an administrative agency’s action with something less than adopting a new law. -Court held such a veto was unconstitutional. -Congress must respect its delegation of authority to an agency unless it properly revokes it. It can only revoke that authority by passing a proper law & presentment to president. (INS v. Chadha) Appointment & Removal Power -President must appoint principalofficers with advice and consent of Senate. “Inferior” officers may be appointed by president alone, or by heads of departments or Judiciary. (Morrison v. Olson) -President can remove executive officials unless removal is limited by statute. Congress may limit removal power where agency’s independence is desirable. May limit removal to cases where good cause is shown. -An agency which was meant to be impartial or has quasi-legislative and judicial functions should be independent from president’s removal power. (Humphrey’s Executor) -Congress cannot give itself power to remove executive officers except by impeachment. Foreign Policy Issues -Constitution gives Congress power to declare war and control funding to the military. President has power to direct military operations as commander-in-chief. -President has more inherent powers in area of foreign policy than other branches do. President is sole representative of U.S. to foreign nations. (U.S. v. Curtiss-Wright Export) -Treaties made by president must be approved by the Senate, and have binding force of law. Executive agreements are similar, but don’t require Senate approval. -Executive agreements have higher status than state law or policies. (U.S. v. Pink) -They are constitutionally recognized by SCOTUS. States must respect them. War Powers Resolution: Whenever President sends armed forces into conflict, he must submit report to Congress within 48 hours writing why it’s necessary, the legislative authority for it, and scope of conflict. -Must terminate use of military within 60 days of submitting report UNLESS Congress permits otherwise or declares war. President & War or Terrorism -President may detain enemy combatants indefinitely b/c he’s authorized by Congress to use “necessary and appropriate force” in AUMF. 11

-Due process: Citizen-detainees must receive notice of the facts against them and have fair opportunity to argue their case. But proceedings don’t have to follow normal court rules. (Hamdi v. Rumsfeld) -Matthews test: Balance private interest with government’s interest on security. -Courts must be involved when individual liberties are at stake. -Habeas corpus applies to Guantanamo Bay because it’s basically U.S. territory. -Military tribunals are allowed by Articles of War against persons who offended laws of war. (Ex parte Quirin) -Courts must still balance military secrecy with checks on presidential power. -President may establish military tribunals only for offenders who are triable under the law of war, including 3rd Geneva Convention. -Excluding both defense counsel and defendant from major parts of the D’s trial violates the Uniform Code of Military Justice. Also violates GC. Hence court ruled for Hamdan. -SCOTUS held that the DTA (denies habeas corpus to detainees) does not apply to pending cases retroactively. Hence it could rule on Hamdan case. -Military Commission Act 2006: Non-citizens held as enemy combatants can’t have access to federal courts via writ of H.C., period. (Struck down by Court) -Congress cannot suspend habeas corpus unless there’s an invasion or rebellion in US, as Constitution states. If government suspends H.C., it must provide a real alternative. -Gov is still bound by legal restraints when acting outside U.S. territory. President can’t get a blank check from Congress to use power. (Boumediene v. Bush) -Non-Afghan detainees held at Bagram airbase in Afghanistan may use H.C. to challenge their detention. (Maqelah v. Gates) -Court must uphold due process to protect individual liberties even in wartime. Civil Suits against President -President is completely immune from civil suits b/c it would distract from his work focus—strong public interest in giving him absolute immunity. -Congress, desire for reputation, and media should check president’s behavior. -Civil suit based on something president did before taking office is permissible. Immunity only applies to his actions while in office.

Limits on State Regulatory Authority
Federal Preemption -Supremacy Clause (Art. VI) gives Congress more authority than states. If there’s conflict between state and federal law, federal law prevails. -Express preemption: Federal statute expressly prohibits state regulation. -Implied preemption: Intent of federal gov overrules state regulation. 12

-Conflicts preemption: Compliance with both federal and state law is physically impossible, so federal law dominates. -Can be preemption if state law interferes with a federal objective. Field preemption: Federal regulation is so pervasive that there is no room for state law to complement it. -If Congress intended a federal provision to apply to something, state cannot contradict it. A state law can’t be more strict than federal regulation. (Lorillard Tobacco) -Where both federal and state law can be followed together, there’s no conflict preemption. If fed law is just the minimum standard, then state law can be more restrictive. (FL Lime v. Paul) -**State can enact law that conflicts with some federal law if its intentiondidn’t conflict with federal intent. -Federal law can occupy whole field of nuclear safety, but a state can prohibit building new plants for economicreasons. State need not promote nuclear power at all costs. -Federal law completely controls field of foreign affairs and immigration. State law can’t modify or complement feds in this field. Dormant Commerce Clause -Clause: state laws that unduly burden interstate commerce are unconstitutional. This is inferred from Congress’s power to regulate interstate commerce. Not stated in Constitution. -State laws that inadvertently hinder commerce are also subject. -Balancing test: Consider state benefit versus disproportionate burden on interstate commerce. -Limits what state and local governments can regulate if it affects national economy. -Prevents protectionism between states and promotes free trade and efficiency between states. -States may not disadvantage unrepresented citizens of other states. -Congress cannot check all state regulations that might violate clause. -First determine: is the law facially discriminatory against out of state citizens or commerce? Then it’s illegal unless Congress allows exception. -Exception 1: State can discriminate when Congress authorizes it, such as LLRWPA. Exception 2: Market participation. States can favor its own citizens when they deal with state own businesses or state colleges. -Some facially neutral laws may also disproportionately burden interstate commerce. -States can’t discriminate against businesses for economic protectionism. Cannot intend to hurt other state’s economy. Regulations purely for health & safety are permissible. -If state regulation greatly increases cost for all out-of-state trains, it’s too burdensome to commerce. Would be too costly to modify trains. -Law that prohibits importation of out-of-state waste is facially discrim. Discrimination based on state origin of waste does not promote health or safety. -State law must treat local and foreign businesses equally. 13

-If state operates landfills itself, it can discriminate b/c of market participation. -Laws that only deal with local issues or safety might not burden interstate commerce. -Legislature is more equipped to determine local safety laws that affect everyone equally than the courts are. -21st Amendment forbids states from discrim. when regulating out-of-state alcohol.


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