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i. The Supreme Court’s Authority a. The Scope of Judicial Review i. Marbury v. Madison 1. The Supreme Court decides the question of who decides ….is this a political question for the executive office to decide or a question of individual rights for the Court to decide a. Individual Rights Model and Byproduct view, declaring a law unconstitutional is just a byproduct of the court deciding upon individual rights b. Ministerial decision versus Political decision 2. Court has the power of judicial review, though it only invalidates a law pertaining to the judicial branch, its power to invalidate all legislation is established over the next 200 years 3. Office of the executive is amenable to process from the judicial branch, though question of how amenable and what immunities exist still remains 4. What deference should the Court grant to the coordinate branch of government?-> this deference moves over times ii. Cooper v. Aaron 1. Seems to assert that the Supreme Court’s interpretation of the Constitution is the supreme law of landjudicial exclusiveness, however in reality it only binds the parties that come before it 2. Judicial solutions to enforcement a. Fee shifting- used in Civil Rights cases, allows plaintiffs to more readily bring claims against those who violate Constitutional norms and gives defendants an incentive to follow prior Supreme Court decisions b. Qualified immunity- govt official that implements policy violating a clear constitutional norm will become personally liable for damages 3. Special function view iii. Martin v. Hunter’s Lessee 1. Virginia Supreme Court refuses to obey Supreme Court’s decision that Martin is entitled to the land, finding that the appellate power of the Supreme Court doesn’t extend to their court 2. It is not the court that hears the case that decides jurisdiction but rather the nature of the case, judicial power extends to all cases
3. Rationale a. State attachments and prejudices (clearly seen in this case where it is a Virginia grant versus a loyalist claim) b. Uniformity of decisions among states on Constitutional issues iv. Spheres of Authority 1. First touted by Jefferson, Supreme Court decisions are not binding upon the Executive within its sphere of authority…i.e. the President can pardon a person for violating a law that it thinks is unconstitutional 2. Presidential veto for unconstitutional legislation 3. Lincoln and Dred Scott- decision is only binding upon the parties to the case, President as a political matter can seek to have it overturned or trimmed back 4. FDR was the only president prepared to refuse to enforce a decision by the Supreme Court b. Jurisdiction Stripping i. Ex Parte McCardle 1. Marbury holds that Congress cannot add to the Court’s original jurisdiction but there still remains the possibility that Congress can take away jurisdiction under exceptions clause of Article III 2. The law in McCardle does not affect jurisdiction that was previously exercised, simply does not allow jurisdiction on appeal from circuit court to Supreme court ii. Many proposals have been made in Congress to strip the court of jurisdiction in areas such abortion in school prayer but all have failed iii. Article III may contain internal limits that keep Congress from stripping away the Court’s core functions, also external limits in the Bill of Rights and due process iv. Congress traditionally has to confer upon the courts jurisdiction through legislation even though that jurisdiction is authorized by the Constitution c. Case or Controversy requirement i. S. Ct. has consistently denied issuing advisory opinions due to Article III case or controversy requirement 1. Rationale: hard to know the far reaching consequences of such an opinion, adjudicating issues without standing would also infringe upon other areas of government (public suing Congress because they don’t like a law)
one that is actual or imminent b. Congress cannot merely create a procedural injury that extends to all citizens who want to bring suit. Causation. Standing 1. Allen v. Wright 1. Redressability iii. Massachusetts sues in its capacity as beach landowner. more of an ideological injury 2. Injury-in-fact.action of one party is causing the injury to you c. Two plaintiffs do not know when they will be able to go back and see the Nile Crocodile or Asian elephant which will be harmed or possibly go extinct as a result of the regulation a. U. but they have to be articulated more than this 5. Also problem with redressability. that does not keep it from meeting the injury-in-fact requirement the harm must simply be individuated 3. Intent to go back one day to see these animals is not concrete enough to establish an injury-in-fact. still need Article III standing 3. Though harm is widespread. Requirements a.S. stating it has lost 10-20cm of coast 2. Granting tax-exempt status to private racially discriminatory schools did not cause the injury of her child not being able to attend a fully integrated school . Lujan v.ii. EPA 1. Special Function Model v. Massachusetts v. Redressability: even a slight reduction in emissions will help in slowing climate change which meets the redressability requirement 5. Kennedy: Congress can create rights and chains of causation that might have been too tenuous before. funding for these projects are only fractional so discontinuing the funding is not likely to keep harm from coming to these animals 4. Defenders of Wildlife 1. Causation: a small incremental step in causing the overall problem is enough 4. Individual Rights Model iv.
S. Mellon. Prudential Standing 1. Barriers to the directly injured bringing the suit c. General Rule. Akins.executive branch faith-based initiatives (compare Flast) iii. Factors i. Taxpayer standing (generalized grievances) a. v.CIA keeps expenditures secret iv. Hein v. Craig v.FEC fails to designate AIPAC as a political committee subject to requirements . Individual Rights Model ii.conditional grants to reduce infant mortality ii. Special Function model c. no standing d. Boren.reserves members challenging validity of Congressmen being in reserves. Richardson.2.beer seller suing on behalf of his customers due to state law that imposes higher age limit on guys than girls i. FEC v. 3rd party standing a. U. refusing to resolve “generalized grievances” that are mainly political i. Prudential standing issues easily overcome by legislation 2. Relationship of parties ii.no standing i. Ct. Taxpayers challenging a tax imposed by a municipality might have standing b. Individual Rights Model vi.the one exception to taxpayer standing. Frothingham v. Interchangeable economic interests b. Rationale: IRS withdrawal of tax exemption from schools might not make an appreciable difference in the amount of integration in her child’s public school links in causation are too tenuous 3. Flast v.S. Schlesinger. Cohen. allowed tax payers to challenge grants to religious schools on Establishment Clause grounds i. Exception i. Freedom of Religion. generally refuses to entertain taxpayer suits.
ESA damaged economic interests of two ranchers. citizens 2.legislators do not have standing to challenging line-item veto act i. i. gov’t claims that ESA zone of interests were environmental not economic i. thus U.1. Byrd. i. Mootness and Ripeness 1. Bennett v.. Raines v. Mootness.The Political Question Doctrine .e. Congress can make individuals assignees of the U. voting is one of the most essential rights given to U.S. part of which the government or some specified public institution will receive. Roe v.e. Diminished effectiveness of votes is too abstract of a claim by legislators to challenge a law-> no injury vii. Nonjusticiability.Courts cannot adjudicate issues that mainly rest upon the fear of future injury. Army surveys lawful activity and citizens bring suit based on fear of future punitive action viii. executive branch employees not being able to participate in campaigns they challenge before they ever try to participate b. Special Function model 3.) a. has injury in fact and assigns it to citizens 5. Spear. must have a clear record of established facts to insure narrow and informed decision making a. Ripeness. Legislator standing a. Breyer: fact that a harm is widespread doesn’t mean that is concrete. Wade 2.S.the actual controversy must exist at all stages of review a. Court finds that Congress had overcome this prudential barrier through its citizen-suit provision 4. Qui tam suit (an action brought under a statute that allows a private person to sue for a penalty.statute allows citizens to sue fraudulent gov’t contractors for personal payment i.e.S. Exception: “capable of repetition yet evading review” i. Zone of Interest a. Vermont Agency of Natural Resources.
House refuses to seat him a. Dissent: one cannot speak of vote dilution until it is determined what a vote should be worth this should be a legislative determination and not a judicial one 2.Judge Nixon is found guilty of making false statements to a grand jury and removed from office by the Senate a. Powell v. Carr. Souter: coin-toss scenario . Guaranty clause is always nonjusticiable due to lack of judicial standards for its application c. Court finds that there is a Constitutional commitment but it is limited to Congress’ determination of age. Certain situations that are appropriate for another branch to decide a “political question” i.representative uses house funds to take trips with his gf to Biminee. Requisite policy determination not suitable for judiciary (1 person=1 vote) iv. Nixon v.1. Impeachment and removal is committed solely to Congress.S.Tennessee voters bring suit based on malapportioned voting districts a. not reviewable by a Court b. U. and residence Decision is reviewable because Congress did not base its assessment of qualifications on those grounds 3. Textually committed to another branch by the Constitution ii. not Guaranty clause (Republican form of gov’t) i. citizenship. Baker v. McCormack. Cannot decide without showing disrespect to a coequal branch of gov’t b.. Lack of judicially discoverable standard for settling the dispute iii. Action is brought under equal protection clause.
citizen of Indiana vandalizes railroads in the name of the Confederacy. Ex Parte Milligan. Jackson categories a. Congressional silence (depends on situation) c. Citizen that is not part of a military force cannot be tried by a military tribunal as long as the civilian courts are open . President deliberately disobeyed the process set out by Congress 4. Existing Congressional statutes authorizes a process through which President can seize property for the military. suspending them in court were not 2. Can infer from the situation that Congress implicitly authorized suspension and has acquiesced in the President’s power to take such action over the years 3. Dames & More. Frankfurter concurrence: acquiescence by Congress can put a gloss on President’s power(silence) ii. and repelling invasions ii. Executive Violation i. War Powers Resolution 1. suppressing insurrections.President nullified attachments to Iranian assets and transferred them to the Claims Tribunal where the attachments could be adjudicated 1. Youngstown Sheet & Tube. labor strike threatens military’s supply of steel. suspending= category 2. Executive Discretion during Times of War & Terror i. power must be based on Constitution) 3. Congressional prohibition (weakest. but these were not used 2. Nullifying and transferring claims were granted directly in the statute. Every President has contested that the War Powers Resolution conflicts with executive power. President uses an executive order to take over the steel industry in Pittsburgh 1. Nullifying and transferring=category 1. though the still use the courtesy of notifying troops before they send them overseas b. Separation of Powers a.Korean war raises the demand for steel. functional SOP approach iii.ii. This situation falls under category 3. Emergency Consitutionalism. but is not part of a formal rebellion 1. Congressional authorization (strongest) b.Constitutional says little about wartime powers other than suspension of the Writ.
Bush.S. Habeas Corpus has a substantive element as well as procedural. vindicates due process rights and legality of detention vii. Hamdi v. not nationals of a state at war with U. Individual Rights Model: petitioners have never had an opportunity to contest their combatant status vi. Guantanamo is a territory of the United States 2. Plurality opinion on whether the Geneva conventions apply and whether conspiracy is a war crime . If President has power to kill. Rumsfield.U. Never were within the territory of the United States so the Court has no jurisdiction v.S. Rasul v. Court finds that for all tense and purposes. military commission is appointed.S.Germans captured in Pacific and tried by military tribunal in Germany 1. Court splits 4-4 on whether AUMF authorizes detention of combatant citizen a. Rumsfield. Hamdan v.) 1. citizen captured in Afghanistan and held in naval brig in VA 1.8 Germans are dropped off in New York and Florida by submarine to destroy war industries in the U. Traditionally. out of uniform in order to secretly destroy war industries a. Johnson v.Hamdan tried by President appointed military commission in Guantanamo Bay 1.iii. 3. A person can be a citizen and an enemy combatant iv.S. Scalia: two options for gov’t.. Ex Parte Quirin. one is an American citizen (born in the U. Germans are unlawful enemy combatants. executive process review and “some evidence” standard are not enough 3. President is acting according to authority granted by him in the Articles of War 2. try him in criminal court for treason or let him go since Writ has not been suspended a. Jackson category 1. then he has the power to detain until war is over 2. Eisentrager. This is a criminal act not governed by the law of war asymmetric situations b. unlawful combatants are subject to trial while lawful combatants are just held until the end of the war 3. Quirin distinguished: contest their combatant status. Due process is still required for someone who disputes their enemy combatant status.Guantanamo detainees petition for writ 1.
Must allow the prisoner to present exculpatory evidence at the appellate level c. Geneva convention seems to apply only to civil wars. Boumediene v. Congressional Violation of Separation of Powers i. Prevents kangaroo civil war courts viii. Congressional control of Executive Branch 1. How fair does the Suspension Clause reach? 3 factors a. Bush.MCA allows Combat Status Review Tribunals to determine a detainee’s combatant status bars habeas review for Guantanamo detainees 1. Guantanamo is different from Landsberg. Congress cannot also reserve executive power for itself once it enacts a bill .S. Court goes around 3rd party standing issue since Chadha is asserting the rights of the executive. Accused may be precluded from hearing sensitive evidence b. The citizenship and status of the detainee and the adequacy of the process that determined his status. Lax evidence rules.2. wars not of an international territory occurring within the territory of a signatory a. Chadha’s interests are not barred due to SOP claim b. Majority finds that this is a Jackson category 3. so does it provide an adequate substitute? a. anything of probative value is allowed 3. This is a legislative act subject to bicameralism and presentment requirement. petitioners contest CSRT’s designation of enemy combatant b.one house veto over AG’s decision to allow Chadha to stay in the U. MCA bars habeas review. Germany (Eisentrager) c. INS v. President is acting contrary to the Uniform Code of Military Justice regularly constituted court is a court-martial a. a. The nature of the place where apprehension and detention occurs i. Practical obstacles in resolving the prisoner’s entitlement to the writ 2. Congress cannot legislate without those requirements i. Chadha.
Dissent: functional approach. Buckley v. Formalist approach 2. President is essentially amending the bill (legislating) and this is not authorized by the Constitution b. silence can never have the force of law since it is not subject to bicameralism and presentment d. Act gives executive authority to CG in interpreting and implementing the law (independent judgment not ministerial) c. Clinton v. Dissent: this is essentially the President using his discretion to spend up to a certain amount.4 out of 6 members of FEC are appointed by Congress a.Congress can restrain President’s removal power to “for cause” . Executive officers are only removable by Congress through impeachment. Congress has no role in appointing officers of the U. not a veto ii.. not joint resolutions b. only power is Senate in confirming 2.Comptroller General given authority by legislation to reconcile conflicting budgets between OMB and CBO. is this a real threat of encroachment or aggrandizement on the executive branch 3.Washington postmaster. Bowsher v. but can act within discretion that a law gives him c. Jackson category 3: high water mark of Presidential power since he is acting directly contrary to Congress 4. Humphrey’s executor. New York. had to exercise independent judgment in reconciliation then recommended it to President who had to follow it a. Congressional control over Executive Officers 1. Throws Jackson categories in doubt. President cannot cancel certain provisions in a law. not performing a legislative function¸ therefore board members are “officers of the United States” b. Removal power of appointed officers belongs to the executive alone b. Legislative officers cannot exercise executive authority formalist approach d.c. Myers. Synar. Valeo. FEC is an agency executing the law. President tries to remove a.line-item veto a.S.
but can’t hear evidence on case) c. no quasi-judicial or quasi-legislative inquiry e. only can have authority incidental to appointment (defining jurisdiction) c. Limited tenure ii. Two for cause removal layers are impermissible. United States v. Weiner a. Nixon a. Absolute immunity for the President does not exist . Removal provision is okay because it does not unduly trammel on President’s authority i.sentencing guidelines to be promulgated by commission (3 of 7 have to be federal judges) a. Scalia dissent: prosecution is a purely executive power so President must have full control over it 7. Removable by AG b. Doesn’t violate SOP since this a traditional area of judicial expertise iii. “intelligible principle”. Independent counsel is an inferior officer because (ambiguous) i. Morrison v. Category 3 case against President 5. Functional test ignores Humphrey’s. Category 2 case against president 6. Olson. Must be a quasi-legislative or quasi-judicial function that officer performs: purely executive officers still subject to at-will removal b. interferes with executive authority 8.a. just not two hats at the same time (can appoint special counsel. Limited jurisdiction iii. For cause removal for AG d.delegation okay as long as Congress gives a guiding principle b. Judges can wear two hats.special counsel appointed by Special Division court. only subject to for cause removal by AG a. PCAOB a. Executive Privileges and Immunities 1. Mistretta. For cause removal assumed for quasi-judicial and quasilegislative officers b. Court can appoint due to Article II powers.
Generalized interest in receiving candid opinions from advisors not enough to overcome strong interest of criminal process ii.b. Nation and States in the Federal System i. U.2 theories on states’ authority 1. Nixon v. “Other high crimes and misdemeanors” a. Decision distortion and distraction concerns 3. Interpretation of this term largely remains in Congress’ hands (see Nixon). cannot reserve power that they never had a. Impeachment 1. Have only the authority that they had before the Constitution. Consuming the resources of the executive aren’t a good enough reason for granting immunity need a more concrete interest c. Courts still must be sensitive towards President’s need for effective advice 2. states second 2. The people are citizens of the nation first. The people have no identity in the nation outside of that with their respective states (state representatives. Have all of the authority that is not expressly delegated to the Federal government in the Constitution10th amendment a.S. Term Limits. Jones a. One article of impeachment for Nixon is that he willfully disobeyed subpoenas sent by Congress. President has absolute immunity from civil damages/ not civil injunctions b.must balance the President’s interest that he is trying to protect versus the interests of carrying out criminal law process i. Fitzgerald a. Clintonv.. Congress was unwilling to go to court to enforce the subpoenas since impeachment is in Congress’ realm and didn’t want to cede power to courts in the impeachment process b.etc) . Qualified immunity. Judicial interference with the office of the executiveinterest in money not enough to overcome c. can be construed to reach severe breaches of trust as well as criminal conduct d. President does not have absolute immunity from damages for events that occurred before he took the office b. No decision distortion just distraction concerns iv.
Close and substantial relation between rates inside Texas and rates from Texas to Shreveport lead to substantial economic effect a.regulation of maximum hours and minimum wages at coal mines . Manufacturing/production is a step prior to commerce..intrastate Texas railway routes are set lower than routes from Texas to Shreveport 1. Carter v.iii. Directness test does not factor in the extent of the burden or the inevitability of it. “Substantial economic effects” test i. Carter Coal Co. Railroad Retirement Board. Commerce Power and New Deal i.S.C.sugar refinery acquires other in-state refineries that give it 98% of U.a pure qualitative test b. Pre.accumulation principle iii. Focuses on extent of the burden Quantitative c. Schecter Poultry Corp. production capacity 1. E. Sales at stockyards found to be one step within a continuous stream of commerce distinguishes from manufacturing cases 2. Congress lacks power since the regulations are solely related to the welfare of the worker and remote from any regulation of commerce 2. and Spending Clause a. Shreveport Rate Case. Texas clearly benefits at a cost to Shreveport 2. Court rejects argument that wages and hours substantially affect chicken prices as too tenuous could lead to the gov’t regulating everything 2. Commerce Clause. Necessary and Proper Clause. Knight. ”Direct effects” approach i. Akin to directness test ii. Now defunct d. only “indirectly” affects commerce 2. Swift & Co.regulation that regulated hours and wages at a slaughterhouse that sold to only local retailers 1.retirement and pension plan for railroad workers 1. – collusion among meat dealers in Chicago 1. “Stream of commerce” approach i.
Jones & Laughlin. Demand side. Congress has the power to ban goods in interstate commerce that it thinks may injurious to health or welfare bootstrap 2. demand would decrease and prices go down iv.local lumber manufacturer in Georgia. “industrial war” substantially affects interstate commerce ii. Wickard. Commerce power is plenary. Fair Labor Standards Board sought to regulate hours and wages 1. Post New Deal Commerce Power i. supply would increase and prices go down 3.wheat farmer grows more than his quota and uses it to feed livestock and his family 1.if many others grew too much wheat. Congress also has the power to regulate the conditions that lead to those injuries in health and welfare through interstate commerce.if many others similarly situated take the same action. Supply side. would there be a substantial effect upon commerce? (does not matter if only local) 2. Extent and effect of the burden matters not nature of the burden 2. Heart of Atlanta Motel. doesn’t matter if there is a pretext as long as regulation doesn’t infringe upon some Constitutional prohibition iii. Purely local activities that may have a large effect on commerce may not be regulated if that effect is only indirect e. substantially affects commerce . Darby. Not the extent of the burden put on commerce but what is the relation between the activity the effect on commerce (qualitative test) 2.steel manufacturer in Pennsylvania discriminates against unionized employees.hotel continues to implement policy of not renting out rooms to blacks in spite of Civil Rights Act 1. not the source of the injury which is the criterion” (quantitative standard) a. which leads to blacks having to travel long distances and go through much trouble to find accommodations. Discrimination in hotels. Revives directness test once again. Unfair competition is so related and so affects interstate commerce that the conditions that create that unfair competition can be regulated themselves 3.1. NLRB tries to step in 1. “nip it in the bud” super bootstrap a. New test: “ the effect upon commerce. Aggregation principle.if many others grew their own wheat instead of buying it in the market.
This part of the law also part of a larger regulation of the interstate market for marijuana 5. Comstock. Court rejects Congress’ findings on how gender motivated violence affects interstate commerce lack of “rational basis” test 2. Also no Congressional findings which aren’t dispositive but can be helpful ii. Morrison. all involved some kind of economic activity. Noneconomic activity cannot use the aggregation principle (augmented by Morrison) 3. Resurrects the “rational” basis test 4. Gonzales v. Plenary power.Congress only needs a rational basis for thinking the object of regulation affects commerce 2. Distinguishing prior cases. not directly from commerce clause when Congress finds it necessary to regulate a purely local activity in order to regulate a larger interstate market then they may do so under N&P g. United States v. Aggregation principle applies here. Same rationale as Wickard.power for federal judges to confine mentally ill prisoners after they are supposed to be released . law bans self-grown medical marijuana 1.S. Katzenback v.S. Substantial affect due to less spending by blacks in interstate commerce f.Gun Free School Zones Act 1. Rational basis test. Lopez. this is a local activity that is part of an economic class of activities 2. No categorical rule against not aggregating noneconomic activity backs off of Lopez iii. not regulating would substantially affect the supply and demand of illicit marijuana on the interstate market 3. not criminal activity 2.2. v. Raich. U.U. Necessary and Proper Clause i. Scalia: Congress’ authority comes from Necessary and Proper clause.restaurant that doesn’t seat blacks 1. McClung (Ollie’s Barbecue).civil remedies for gender motivated violence 1. Nexus requirement could require a case by case determination of whether possession affects commerce but that is absent 4.doesn’t matter that the obstruction to interstate commerce is also a social wrong v. Modern Revival of Limits on Commerce Power i.
state owned railroad can be regulated by Federal Gov’t 1. 10th amendment 2. San Antionio Metro Transit. State powers are necessarily diminished to the extent power is granted to the federal gov’t in the Constitution ii. this is a sufficient link to their enumerated powers to fall under N & P clause 2.S. South Carolina v. Integral and traditional government function is too tough to apply 3.states had to either provide for disposal of low level radioactive waste within their borders or take title to it 1. state is exempt 3. National League of Cities. Kennedy: minimum rationality test not applicable to N & P and Commerce clauses. Rejects approach in National League of Cities a.federal tax on mineral water sold by state 1.exemption to federal taxes on SC bearer bonds 1. California. source of authority has already answered this question 2. Test: is the object of regulation a traditional and integral government function? If yes. Mirror image rule (when law just applies to states) a.. New York v. Garcia v. defects in political process might lead to judicial intervention v. No failure in political process occurred SC was not deprived of its right to participate in the national political process vi. in Commerce Clause b. U.FLSA as applied to state employees 1. 10th amendment acts as an external limit on Commerce Clause a. Imputes independent analytical force into the 10th amendment iv. United States v. Limit on authority? Yes.FSLA and metro authority 1. United States. Source of authority? Yes. If there is a limit on authority (10th amendment) then there can be no source of authority . Criminalizing conduct and confining prisoners has long been a power exercised by Congress. Limit on Authority? No.1. Commerce Clause b. Source of Authority? Yes. needs a stronger rational basis test with a demonstrated link in-fact h. Preservation of state interests must come through the political process. Federal government can lobby indiscriminate taxes that happen to fall upon states as well as private citizens as long they don’t unduly interfere with that state’s sovereign functions iii. Baker. External Limits: State Autonomy and the 10th Amendment i. New York v.
Congress can pass laws that regulate states as long as they don’t require them to legislate or regulate private activities ix. South Dakota v. 10 informs the source of authority analysis vii. Attach conditions to the receipt of federal funds ii. Highly deferential nexus requirement a. Safe interstate travel and drunk driving of young people was close enough related to meet the requirement . Cannot compel legislation th amendment has independent analytical force in that it 3. Anti-commandeering principle a.5% withheld of highway moneys if minimum age not set to 21 1. Give states a choice of regulating themselves or having it preempted by federal law b. Reno v. Dole. U. Cannot force state executive officials to implement federal law 2.S. Must be for general welfare b. Must not be so coercive as to the point where “pressure turns into compulsion” 2. 5 conditions for federal money a. Must not induce states into unconstitutional activities e. Anti-commandeering principle a. Printz v.federal law limiting DMV’s use of private data 1. SOP violation: Congress cannot circumvent the President by forcing state officials to execute the law viii. Accountability rationale: state citizens won’t know whether to hold state or federal officials accountable 3.2. Condon. Condition must be ambiguous c.. Is commandeering state officers Necessary and Proper for implementing federal law might be necessary but not proper 4.local law enforcement officers have to do background checks on gun buyers 1. Congress can either i. Must relate to the federal interest in particular national programs d.
Abandons idea that state owns the wild animals within its borders b. Hunt a. Not allowed unless it fairly compensates for costs imposed by out of state waste 6. Facial Discrimination 1. then this would be treated differently 2. Maine v. West Lynn Creamery. Taylor. Philadelphia v. to treat the article differently? b.New Jersey bans out of state trash a. If the very movement through the state would cause harm. Not a last ditch attempt after other alternatives prove to not be feasible (dealers inside Oklahoma have no limits to what they can sein) 4. Discrimination i. Chemical Waste Management v. Facially discriminatory laws subject to a “per se rule of invalidity” b.Philadelphia’s trash is no more harmful than New Jersey’s ii. Dormant Commerce Clause a.imposes higher surcharge on out of state waste a. A state must pursue its objectives through neutral nondiscriminatory means i. Oklahoma.all milk sales are taxed but Massachusetts retailers received a full rebate of the tax . Oregon Waste Systems.bans minnows from being transported out of the state a. The one outlier to facial discrimination b.iv. New Jersey. Is there some reason. other than originating from outside of the state.bans out of state baitfish due to ecological concerns a. Hughes v. Must show that the objective cannot be accomplished by any other nondiscriminatory means 3. Health argument. Can’t impose taxes on out of state waste 5.
Madison could just inspect the milk as it enters the state would not be a barrier c. also bars other local competition but it’s the analysis from the out of state interest that matters iii. Creating a monopoly that discriminates against in state interests as well as out of state interests is still invalid i. Test: Is this a traditional government function . all trash within the city must go to this facility a. plaintiff will also probably introduce evidence of alternatives though this burden is really the defendant’s 2. Court finds that this tax exemption is discriminatory in acting as a tariff to out of state charities and is invalid ii. Fund specific subsidies are discriminatory (essentially an out of state tax) and thus invalid under dormant commerce clause b. C&A Carbone. In being for the public good.Madison law requires milk to be processed and pasteurized within 5 miles at one of the local plants a.e.town decides to finance its waste facility by passing a flow control ordinance. When the government is providing the service. i. it is likely to be for the public welfare and less likely to be about protecting local interests b. these laws that favor governments are not discriminatory c. General subsidies are okay though because in state competition does exist. Burden of establishing discrimination is on plaintiff. Camps Newfound/Owatonna. Home Processing Requirements 1. Cannot enact such a discriminatory law unless there are no other alternatives to reach the same goal i. teachers versus milk producers 7. United Haulers.a. Government Service Exception 1. Irrelevant that law applies to in state entities as well as out of state entities still must ask if a barrier exists b. Dean Milk.flow control ordinance to a waste facility that is state owned a.a tax exemption for charitable organizations that provide their services in state a. Bars import of out of state garbage disposal services.
tax exemption for public bonds in Kentucky but not for other states a. Example: school zoning.i. government is more likely to be for public welfare than for discrimination purposes b. Davis. Discriminatory Purpose or Effect . Cites United Haulers. Department of Revenue v. Issuance of public debt to fund public projects is quintessential government function iv. a city can require kids in that city to attend their school and not allow kids from other cities to attend 2.
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