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regulation. Congress has the Power to Legislate broadly and prospectively (a) A law is legal if it arises from one of the exclusive powers delegated to Congress, or (b) It is Necessary and Proper for Congress to pass the law to implement one of its express powers. (Article 1 § 8 Clause 18). (c) Exclusive Powers to (Article 1 § 8):
1. 2. 3. 4. 7. 8. 11. Tax and Spend for the General Welfare Borrow Regulate Interstate and Foreign Commerce Regulate Immigration and Bankruptcy Establish Post Offices and Roads Establish Patent and Copyright system Declare War
1. Is the Congressional Legislation Legal: 2. Under Commerce Clause:
a. b. c. Commerce is distribution and sales Commerce is not production (Kidd v Pearson (1888) Congress May Regulate any Activity which is: i. Channels of Interstate Commerce (Champion v. Aimes 1903) ii. Instrumentalities of Interstate Commerce (Hammer v. Daagenhard 1918) iii. Activities congress could have a Rational Basis to believe in the Aggregate Substantially Affect Interstate Commerce. (Jones & Laughline Steele – Sub. Affects, WIckard – Aggregate, Ali’s BBQ – Rat. Basis) MUST be able to show ‘Commerce on its Face’ or Findings of Fact. (Lopez v. Morrison). This is known as Heightened Scrutiny! CANNOT regulate inherently non-commercial activities (EC Knight 1895). i. 10th Amendment may bar: Any powers not expressly reserved to the Feds is reserved to the states and the people. Congress may spend for the common defense and general welfare. Condition on spending money in states must disclose receipt of Federal Funds clearly and unambiguously. (Dole) Spending must be for general welfare, not for specific welfare of one person or region i. Safe Interstate Travel is general welfare. ii. Can’t tax on export because it will hurt specific regions. Condition Has to relate to the Federal Interest Can’t Violate Any Constitutional Provisions i. 0 laws have been struck down as illegal under taxing and spending between 1927 and 2006.
3. Under Taxing and Spending Power:
a. b. c. d. e.
4. If Not an Express Power: is it Necessary and Proper?
ii. i. The Supremacy Clause allows the Federal Government to Preempt State Law in cases of: a. (4) State Law NOT preempted if: a. Dormant Commerce Clause Arises under supremacy clause and preempts if: ii. (English v. State laws purport to regulate interstate commerce iii. e. When federal regulatory scheme so pervasive. (Black Bird Creek & Hamilton View). It thwarts the will of congress. or iii. (5) Federal Active Preemption (7) State Law Preempted if: a. Burdens interstate commerce i. GE (1990) 1. i. States can restrict matters of public welfare more than feds (Mintz v. c. Federal interest so dominant. Congress chooses to allow concurrent jurisdiction. Discriminates against interstate commerce in any way iv. Contradicts a Federal Law directly on point. Legitimate use of state police powers (NYC v. (Charleston RR). Implied Preemption When congressional intent to preempt is manifest. Except: When state is a police power and has a regulatory effect (8) State Law NOT preempted if: a. There is no room for state regulation. Baldwin) ii. (Southern RR 1912) i. (Houston v Moore 1820 & Black Bird Creek Marsh). National Issue Inherently in Federal Domain (Cooley 1851) b. iv. Miln 1837) . b. d.Legal Federal Legislation and Acts May Preempt State Law 5. Federal Legislation Treaties Executive Decisions Administrative Rules Federal Common Law Federal Preemption under Commerce Clause Power (6) Federal Passive Preemption (3) State Law Preempted if: a. (Mintz v. 2. ex. Baldwin) b. States cannot restrict civil rights more than the feds. State regulation of interstate commerce.
(1) Darby: 10th Amend is a mere truism. (2) National League of Cities: 10th Amend affirmatively limits congresses power to regulate inherently state activities or to impair their ability to function in the federalist system. It’s a political question. .Federal Preemption Privileges and Immunities Clause (1) Article IV requires state reciprocity 10th Amendment Limits on Legislative and Executive Action 10th Amendment: All powers not expressly provided to the federal government are reserved to the states. The remedy for states who don’t like federal encroachment is the 17th amendment – elect your federal representatives and have them change the law. (3) Garcia: National League of Cities test doesn’t work.
ii. . Hamdi i. Hamdan i. 1. i. (2) President has an executive privilege – unless engaging in crimes. i. Modern Judicial Review (1) In Context Interpretation is In (2) Linguistic Formalism is out (3) All issues to be decided must have: a. Preserve the union. Steel Siezure Modern Separation of Powers (2) Federalism = The relationship between the central federal government and the state governments. cute and administer the laws i. Suspend Habeus Corpus a. b. In a time of war can take whatever action necessary. Court has subject matter jurisdiction to review executive and legislative action. Respond to foreign invasions. Held that military commissions were unconstitutional because they were not authorized by legislation. .Modern Executive Power (1) President has to power to: a. Seize Property – Prize Cases b. Justicability i. Political Issues are beyond the scope of the court. Korematsu c. The remedy for individuals is the political process. ii. ii. c. if enemy combatants challenge their detention under habeus corpus. However. Congress then passed legislation. See Rasool v Bush about modern geographic scope. 2. Presidents power includes the ability to hold enemy combatants for duration of the war. b. they have a limited due process right to review by an impartial decision maker. Availability of a remedy 1. (1) Executive Action and Judicial Review of Broad Executive Power a. Proper Jurisdiction. Ripeness ii.
or on a dormant commerce clause basis because drug trafficking is illegal commerce. Morrison v.(3) Sovereignty = Final law making power (4) Cooperative Federalism is in effect. The people then delegate as they see fit between state and federal governments. Min. (5) Independent Counsel and Separation of Powers a. i. ii. Chadda: Legislature cannot take on judicial like powers overseeing the execution of laws by using veto power. Such state laws could be struck down on an implied preemption basis as regulating an inherently federal matter. c. First it was held it did not mean blacks were equal to whites. b. i. b. Sovereignty was dampened when the equal protections clause of the 14th amendment was passed. 1. do the rest of the states have to honor those arrangements in their jurisdiction insofar as commerce and other national issues are concerned? ii. But the Feds work with the state on local issues that really should not be regulated by the federal government. a. Maj. such as drug enforcement. and states have no effective sovereignty. Must re-write laws to effect change in the executive branch. the federal government has far reaching power. (6) . Olsen: Investigating the branches of government i. th e. If California passes a law legalizing marijuana or Hawaii allows gay marriage.: Will allow novel arrangements for novel circumstances. In today’s constitutional environment of Cooperative Federalism. d. Federalists believe sovereign power is vested in the people and not in the legislatures.: Can’t give independent counsel unlimited resources. The 14th Amendment has been interpreted narrowly and widely over the years. Will run wild. The 14 amendment caused sovereignty issues because of the reciprocation required under the separate but equal clause of the constitution.
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