Con law Outline Basic Formula for Analysis: -- Make flow chart for each test Overview C. Congress s Authority

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1 Con law Outline Basic Formula for Analysis: -- Make flow chart for each test Is the federal statute within the federal legislative power? If so, Does it offend individual rights? Overview A. Article 1, Sec. 1 vests all legislative powers of the federal government in Congress. a. Any action by the federal government must be supported by a source of power originating in the Constitution. B. The National government are granted their powers by the following in the constitution a. Article I, Sec. 8 contains the enumerated powers i. Most of the powers granted to Congress are in these clauses ii. Congress has the constitutional authority to legislate because of the certain powers granted to them under Article 1, section 8. b. Constitutional amendments c. Inherent powers i. Although not explicitly stated in the constitution, common law has come up with doctrines that say these power exists by reading in between the lines of the constitution C. Congress s Authority a. Congress may exercise the powers that the Constitution grants it, subject to the individuals right listed in the bill of rights b. Congress has the power to: i. Directly regulate if there is substantial effect on interstate commerce (commerce clause) ii. Congress can bribe states to follow federal programs by offering federal $, conditioned on adherence to federal program 1. But not so much that its compelling/coercing the states to do something (taxing/spending power) iii. Congress can conditionally preempt state laws (preemption/dcc/privilege & immunities) 1. Federal laws will come into effect unless state laws come into effect that meet at minimum federal standards D. Important Powers a. Necessary and Proper clause i. Congress has the power to make all laws that shall be necessary and proper into execution the foregoing Powers, and all other Powers vested by this Constitution b. Commerce Clause i. Congress has the power to regulate commerce with foreign nations, among the states, and the Indian tribes ii. 10th Amendment: the federal government may exercise only those powers specifically enumerated by the Constitution c. Civil Rights Amendments i. 13th, 14th, 15th Amendments

2 1. 14th Amendment, Sec. 5 d. State Sovereignty and the 11th Amendment e. Taxing and Spending power i. Preemption 1. If there is a law, then federal law preempts state law ii. Dormant Commerce Clause 1. If there is no law, then DCC may apply based on discriminatory laws 2. States have no general police power to legislate for the health, safety, welfare, or morals of citizens. iii. Privileges and Immunities Clause Necessary and Proper Clause A. The Congress shall have Power... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. a. Guarantees a latitude of discretion in the exercise of all other granted powers b. You use the necessary and power clause in conjunction with other powers it ensures the particularized grants can be exercised completely and effectively B. Congress has 2 types of powers express and implied a. Express powers: powers that are specifically enumerated in the constitution b. Implied powers: not enumerated, but still congress can do them. C. McCulloch v. Maryland big case: pillar of con law a. McCulloch was a cashier and he passed around a bank note without the Maryland stamp, required by Maryland statute. Maryland said he had to pay taxes to avoid a fee. McCulloch sued about the constitutionality of the statute b. Holding: i. Congress may only enact a law if it is allowed to do so under the enumerated powers 1. Even if it s not expressly enumerated, the power could be within the implied authority of the federal government. 2. The necessary and proper clause is a legitimate way for congress to implement its power. ii. The Supreme court is trusting congress to exercise its powers responsibility because it is ultimately answerable to the people The Commerce Clause A. Basic Formula for Commerce Clause PRIVATE sector a. Congress can regulate commerce if the law is about (Lopez): i. the channels of interstate commerce the what ii. the instrumentalities of interstate commerce or people or things in interstate commerce the how iii. Activities substantially affected interstate commerce the effect

3 1. Commercial/economic a. Substantial interstate effect will be presumed i. It allows congress to aggregate the effect of commercial activity to achieve a substantial effect on interstate commerce 2. Noncommercial/Non-economic a. Substantial interstate effect must be proved Commerce Clause Flow Chart: Ways Congress can direct state behavior: Does the Law Regulate Go to 10 th Amendment Cases the State Itself? Yes No Does the Regulated Activity Law is Constitutional or Product Directly Affect IC? Yes No Is there a Substantial/Indirect Law is Unconstitutional Effect on IC (Individual No Aggregation) Yes Is the Activity Economic in Nature? [Lopez; Morrison] No Law Probably Unconstitutional B. Commerce Clause Timeline a : broadly defined, but sparsely applied i. Gibbons v. Ogden 1. Gibbons held a federal license to operate a steamboat between NJ and NY while Ogden had a license from only NY. The controversy was who had the right to operate the steam boat? a. Holding: US grant of license to Gibbons was a legitimate exercise of the commerce clause because it concerned navigation, and Congress can act in such a way which preempts the NY grant 2. Establishes broad definition of commerce 3. among = intermingled with the states and may move beyond the state boundaries 4. Regulation prescribes the rule by which commerce is to be governed. 5. State sovereignty does not provide a constraint on federal power b : narrowly defined, but used more aggressively i. AIA Schechter v. U.S. 1. Chicken case c : more expansive interpretation and use

4 i. Wickard v. Filburn 1. further extended the reach of Congress by concluding that Congress can regulate even local activity if it can rationally conclude that such activity has a substantial effect on ISC. 2. Came up with the economic vs. noneconomic rules, and the idea that economic commerce is presumed because it allows congress to aggregate the effects of the commercial or economic activity to achieve substantial effect on interstate commerce a. Under a cumulative effect doctrine (or sometimes called the aggregation principle, the Court sanctioned the application of the Agricultural Adjustment Act to wheat grown by a farmer for home use and consumption. b. Although though one farmer s wheat had only a slight effect on ISC, the cumulative effect of his wheat in combination with the others similarly situated had a substantial effect on ISC. d. Current: Narrow scope, 10th amendment considerations i. 10th amendment: if its not in the constitution, then it s the state s power to do ii. Beginning in 1995, the Court for the first time in nearly 60 years, signaled its interest in reviewing Congressional power under the Commerce Clause more critically. 1. Began to narrow the scope of the commerce clause iii. U.S. v. Lopez 1. the court determined that Congress had exceeded its commerce clause authority in enacting the Gun Free School Zones Act designed to prohibit possession of guns in or near schools. 2. According to the Court, Congress has the authority to: a. Regulate the use of the channels of ISC (Heart of Atlanta Motel) b. Regulate and protect the instrumentalities of ISC (Jones & Laughlin Steel Corp. v. U.S. and the railroad cases) c. Regulate those activities having a substantial relation to ISC Rationales: a. No jurisdictional nexus to link weapons or individuals involved to ISC b. Greater focus was placed on the idea of commercial regulation when Congress legislates under the commerce clause. c. Court clarifies that there must be a substantial effect on ISC to warrant Congressional action. d. Congress must do its homework and demonstrate the impact of the activity to be regulated on ISC. e. According to the Court, merely because the Congress says there is a substantial effect on ISC does not make it so.

5 f. This approach seems to represent a less deferential attitude by the Court toward Congress in the judicial review process. iv. U.S. v. Morrison 1. Court struck down the civil damages portion damages of the violence against women act 2. Rationales a. Despite Congress s attempt to show the cumulative impact of gender-motivated violent assaults on ISC, the Court determined that Congress was attempting to regulate noneconomic activity traditionally left to state authority. b. Court was disinclined generally to aggregate the effects of any noneconomic activity. c. Court specifically refused to sanction congressional regulation of noneconomic, violent criminal conduct based solely on that conducts aggregated effect on ISC. v. Gonzalez v. Raich 1. Court relied upon the cumulative effect /aggregate doctrine set forth in Wickard v. Filburn to uphold the Congressional power and the applicability of the CSA to the purely intrastate use of medical marijuana by individuals acting in compliance with a state compassionate use statute. 2. While this activity may not have been commercial activity, Congressional regulation is permissible if there is a determination that the failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. 3. Scalia in his concurring opinion distinguishes between regulation of intrastate economic activities with a substantial effect on ISC and those that may necessary and proper as part of more general regulation of ISC. C. Regulation of the private sector a. Congress has the power to regulate in 3 situations - Only need to be in one (Lopez) i. the channels the what (highways, waterways, airways, etc.) 1. Transportation or traffic across state lines may be regulated as commerce whether or not it involves a commercial activity ii. the instrumentalities of interstate commerce the how (cars, trucks, ships, airplanes, etc.) 1. transportation or traffic across state lines may be regulated as commerce whether or not they are currently engaged in commercial activity iii. any activity that substantially affects interstate commerce the effect 1. Activities that are not themselves part of the interstate commerce, but they are still affecting the commerce a. Includes intrastate activities

6 b. E.g. production of goods for sale in interstate commerce is a local activity that precedes interstate commerce, but it is also an economic activity that substantially affects interstate commerce and thus can be subject to regulation 2. Commercial/Economic vs. Noncommercial/non-economic (Morrison sets out economic v. non-economic, however Wickard, Raich sets out the cumulative effect doctrine in the two) a. Economic: i. Doesn t need to be proven, it s presumed ii. Cumulative effect doctrine 1. the cumulative effect in combination with the others similarly situated had a substantial effect on ISC. iii. Wickard, Morrison b. Noneconomic: i. there are congressional findings showing that the cause and effect between the regulated activity and the law are not too attenuated. ii. The Court does not want to pile inferences on top of inferences iii. The Court does not want to obliterate the distinction b/w state and federal power, thus leaving states with no regulatory authority. iv. on commerce is too attenuated v. Morrison, Raich, Wickard b. the regulation must not infringe upon any other constitutional right. D. Regulation of both the private and public sector a. Regulations that apply to both private and public sectors will be upheld i. They all substantial effect interstate commerce E. Commerce Clause vs. The 10th Amendment regulation of the public sector a. 10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people i. Relevant when federal laws tell the states what to do b. States have inherent, residual state inviolable sovereignty i. Police power + other stuff for the public health, safety and general welfare of their citizens. ii. Sovereign Immunity UNLESS federal govn't drags them into court iii. Ability for states to choose where state capital will be iv. Congress cannot order states to pass or execute laws nature of state sovereignty. NY v. U.S. (radioactive waste case) v. Policy: If federal government were allowed to tell the states what to do, then federalism would be destroyed, AND the social ill of passing the financial burden onto the states AND most importantly- separation of powers protects the people from corrupt government.

7 c. However, states are still subject to Supremacy Clause i. Amendment has zero effect on "valid" federal laws that displace/pre-empt state regulation of private behavior. Valid= legitimate ends and means, within Congress's authority to pass, meet M v. M test ii. Analysis: iii. Is this power delegated to Congress in Art. I of the C? 1. Remember Congress has implied powers, which they can use. The question under 10 th amendment analysis is whether it is a proper use of congress power under N&P. 2. Consider 5 enforcement iv. Did congress intend the law to be applicable to the states? 1. Congress intent MUST be clearly expressed. 2. The default is that congress did not intend the law to apply to the states. v. What type of law is it? 1. Category 1: a law of general applicability, which applies to the state in the same way it applies to the private sector. a. i.e. minimum wage law, water pollution control law. b. This can come in the form of a command from the fed. govt. c. If it is a law of general applicability, then the federal govt. will likely prevail, and the states will have to comply d. Why? The state had its say when it elects representatives to the legislature. e. Will be a valid law. vi. Category 2: a law that dragoons, commandeers, or conscripts a state s legislative and executive branch (or government officials) 1. congress can t compel a state to do something (tell the state how to legislate or tell the state to enforce a federal statute). a. i.e., the Fed. govt. can t pass a law which mandates states to dispose of radioactive waste. NY v. US. vii. Exception: congress may encourage a state to regulate in a certain way (this allows the state a choice to respond to the electorate). 1. Offer incentives ($) 2. Have state-law pre-empted by fed. legislation a. Supremacy clause b. This doesn t mean the state has to enforce it though. viii. Sovereign immunity concerns 1. If congress passes a law of general applicability, but the enforcement mechanism is a law suit, sovereign immunity (11 th amendment) makes it so you CANNOT sue the state. 2. This doesn t mean the law doesn t apply to the state, it just means you don t have any available redress. a. Another sovereign does though (i.e. the justice department). b. Consequently congress has been allowed to override 11 th amendment

8 d. New York v. United States (1992) i. the Court examined the provisions of a federal law to regulate the disposal of low level radioactive waste, which had been enacted at the behest of the National Governor s Association. ii. The Court invalidated the portion of the act that required states to take title to the waste generated if the state failed to provide for disposal by a certain date. 1. This was an example of the feds impermissibly commandeering the states the states and forcing the states to do it our way. iii. The Court attempted to differentiate between encouragement (the carrot ) which is compatible with the constitution and coercion (the stick ) which is constitutionally suspect. e. Printz v. U.S. i. struck down portions of the Brady Act gun control legislation that commanded state and local officials to conduct background checks on individuals prior to their purchasing hand guns. ii. The Court determined that its prior decisions did not permit the federal government to compel the states to implement, by legislation or executive action, federal regulatory programs. iii. This was an example of the feds impermissibly requiring the states to do its bidding. f. Gregory v. Ashcroft i. In addressing a state statute that required judges to retire at age 70, the court held that the federal age discrimination in employment act was inapplicable because Congress had not clearly state the intent to apply the act to states when the federal legislation was enacted. g. Reno v. Condon i. Congress s restriction on the release of personal driver s license information was a valid exercise of its power event though it imposed requirements on the states in the management of their relevant databases. ii. The other option was federal pre-emption entirely. The Taxing and Spending Power A. Overview a. basic question: Is congress limited to taxing and spending only to carry out other powers specifically enumerated in Article I or does Congress have broad authority to tax and spend for general welfare? b. General points: i. Congress may tax and apportion for the general welfare, but Congress may not use taxation as a means to exercise powers retained by the States ii. Congress cannot compel states to enact, adopt or enforce legislation iii. Congress can bribe states to follow federal programs by offering conditional federal money, conditioned on adherence to the federal program c. U.S. v. Butler

9 i. Congress may tax and apportion for the general welfare, but Congress may not use taxation as a means to exercise powers retained by the States. ii. The taxing and spending powers must be linked to the general welfare and cannot violate another constitutional provision. d. South Dakota v. Dole i. Court upheld Congressional authority to withhold a portion of federal highway funds from states that did not enact legislation establishing age 21 as the minimum age for alcohol purchase and public consumption. ii. the Court reaffirmed a four-part test to review the legitimacy of the Congressional spending power: 1. The spending must be for a general welfare purpose 2. Any conditions imposed must be unambiguous 3. These conditions must be related to the federal interest in particular national projects or programs 4. It must not infringe upon another constitutional provision iii. Court is also concerned about impermissible coercion vs. appropriate encouragement if states are prompted to act in a particular way. Congressional Power under the Reconstruction Amendments 13th, 14th, 15th Amendments A. 2 primary questions: a. may Congress regulate private conduct under this authority or is it limited to regulating only government action? b. what is the scope of Congress power? Can it use the power to interpret the Constitution and even overrule Supreme Court decisions? B. Depends on the amendment for question 1 regulating private conduct a. 13th amendment: not limited to state action i. although it changed throughout the years, it is now that the 13th amendment grants Congress the authority to prohibit slavery and racial discrimination no matter if its governmental, private or public ii. Congress has the power to prohibit the badges and incidents of slavery (the small, slave like details), whether public or private b. 14th amendment, Sec. 5: HAS to be state action cannot regulate private conduct i. In U.S. v. Morrison (2000) p. 253, the Court struck down the civil damages provision of the VAWA, which was directed toward individuals who had committed criminal acts of gender-motivated violence. C. Question 2: Scope of Congress s Power broad v. narrow view of sec. 5 of 14th amendment a. Broad i. Congress has authority to interpret the 14th amendment to expand the scope of rights or even create new rights 1. Congress may create rights by statute where the court has not found them in the constitution, but Congress cannot dilute or diminish constitutional rights

10 ii. Best represented by Brennan s opinion in Katzenbach v. Morgan & Morgan iii. Under this approach, pursuant to its sec. 5 powers, Congress can interpret the Constitution independently and can even overturn the Supreme Court. iv. This power is, however, limited to adopting measures to enforce the guarantees of the 14 th A., not to restrict or dilute those guarantees. 1. Argument: the drafters of the 14 th A. intended Congress to have this power given the specific language to enforce in sec. 5. a. Congress is enforcing the amendment by creating greater protections than those found by the Court b. Congress and the Court both have authority to recognize and protect rights under the Constitution c. Sec. 5 creates needed national power to protect civil rights and civil liberties b. Narrow i. Congress only has authority to prevent or provide remedies for violations of rights recognized by the supreme court 1. Congress cannot expand the scope of rights or provide additional rights ii. City of Boerne v. Flores - the Court determines that Congress overstepped its power under sec. 5 when it enacted RFRA. iii. Smith: Congress responded to the Court s free exercise decision involving the ingestion of peyote during religious rituals in violation of an Oregon criminal statute, a neutral law of general applicability. 1. Argument: this view preserves the role of the Supreme Court to interpret the Constitution (shades of Marbury) a. Congress is not enforcing if it creates new rights b. solely the court s role to decide the rights protected under the constitution i. congress s role is limited to enacting laws to prevent and remedy violations c. Sec. 5 limits the the federal power, reserving more governance for the states and lessening the instances in which the federal government can regulate state and local actions D. When applying abrogation under the 14th amendment Congress must make it clear that there is an unequivocal intention to prevent or remedy an action based on the 14th amendment. a. There must be congruency i. the wrong addressed in constitutionally based ii. the wrong is persistent and widespread, and iii. there is congressional evidence to the effect. b. There must be proportionality i. Congress is not over reaching in their correction of the wrong ii. the correction is the best fit for the wrong.

11 11th Amendment Sovereign Immunity A. Test a. Federal enforcement under 5 of the 14 th Amendment (which incorporates the bill of rights and makes it applicable to the states), DOES NOT infringe on State s sovereignty under the 11 th amendment when the following is met: b. Congress must unequivocally intend to abrogate the immunity of the States i. needs to be clear in the statute. c. Congress must act pursuant to a valid grant of constitutional authority i. must be preventative or remedial (passing the congruence and proportionality test) to be valid enforcement under the Constitution. 1. Congruence and Proportionality test a. Test for determining whether Congress has exceeded its section 5 enforcement powers, which asks whether the means adopted to prevent or remedy an injury are congruent and proportional to the injury itself. b. [t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. i. This means that, while Congress cannot define rights, it may identify injuries that are being inflicted in line with what is supposed to be prohibited by the 14th Amendment. Provided Congress response is proportional to the injury being caused, the act will be upheld. B. 11th amendment: the 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 US by citizens of another state or by citizen s or subjects of any foreign state a. intended to strike from the constitution clauses of article III, section 2 of the constitution which states that the judicial power of the US extend to suits between a state and a citizen of another state and between a state or the citizens there of and foreign states,citizens or subjects C. adopted to overrule chisholm v. georgia a. chisholm: attempt by S. Carolina citizen to recover money owed by state of Georgia - sued in federal court pursuant to article II that expressly allowed fed. courts to hear suits against state governments by citizens of other states. Georgia claimed it had sovereign immunity and could not be sued. Supreme Court ruled in Chisholm s favor and said Art. III authorized their act i. Legislators and governors were outraged by the supreme court s decision. as such, an amendment was created b hans v. Louisiana: court held 11th amendment also bars suits against a state by its own citizens i. great disagreement among scholars and justices to proper interpretation of 11th amendment 1. 1st view: sovereign immunity creates a constitutional restriction on federal court subject matter jurisdiction for all suits against state governments

12 a. 11th amendment is part of a broader conditional limitation on federal court jurisdiction created by sovereign immunity 2. 2nd view: treats 11th amendment as restricting only diversity jurisdiction of federal courts a. as such, only bars suits re: diversity but not from the other parts of Article III D. Thus, States cannot be sued in federal court - but 3 ways around 11th amendment to hold state governments accountable in federal court a. state officers may be sued even when state governments cannot be b. states may waive 11th amendment immunity and may consent to be sued in federal court c. Congress, acting pursuant to section 5 of the 14th amendment, may authorize suits against state governments E. The basic rule: congress may authorize suits against states pursuant only to section 5 of the 14th amendment a. Due to its special mandate under sec. 5 of the 14 th Amendment, Congress should be able to override the Eleventh Amendment and authorize suits against state governments to enforce civil rights. i. Did Congress properly exercised its sec. 5 enforcement power by making the provisions of particular pieces of federal legislation applicable to the states. ii. If so, then the Court will examine whether Congress can authorize the federal court suit against the state government. 1. Congruence and Proportionality Test: a. Congruence: identification of a problem that is persistent and pervasive i. Congress can exercise its sec. 5 authority only in response to state transgressions b. Proportionality: an appropriate fit between the remedy for the problem and the means adopted (the legislation) i. Is there a state legitimate interest 2. When applying abrogation under the 14th amendment Congress must make it clear that there is an unequivocal intention to prevent or remedy an action based on the 14th amendment. a. There must be congruency i. the wrong addressed in constitutionally based ii. the wrong is persistent and widespread, and iii. there is congressional evidence to the effect. b. There must be proportionality i. Congress is not over reaching in their correction of the wrong ii. the correction is the best fit for the wrong. F. Cases a. Union Gas

13 i. Congress has the power under the commerce clause to authorize state government liability in federal court ii. No consensus among members of the Court or scholars about whether Congress can create such federal court Jx pursuant to any of its powers apart from sec. 5. b. Seminole Tribe v. Florida (1996) (the Indian gaming case) i. the Court strengthens the protection of the 11 th Amendment and the concomitant state sovereign immunity while restricting Congress power to authorize litigation against state governments, except when acting under its sec. 5 powers. ii. In Seminole Tribe, Congress passed the applicable legislation (IGRA) pursuant to its Indian Commerce Clause power iii. The majority overrules Union Gas and determines that Congress cannot abrogate the 11 th A. by circumventing the Constitution s limitation on federal Jx through legislation iv. Stevens in dissent expresses his concern that individuals will be denied a federal forum in a variety of cases, including civil rights cases v. Souter s dissent expresses the position that the 11 th A. was meant only to remove diversity Jx involving States, not to limit federal Q (subject matter) Jx where a State may be a party vi. Then the Court goes further and begins to limit Congress authority to act under sec. 5 to authorize suits against States. c. the Court concludes that the laws in question were not valid exercises of Congress sec. 5 power and could not then be used to authorize suits against the states happens in 3 cases i. Rationale: It is the responsibility of the Court to determine the substance of constitutional guarantees ii. Florida Prepaid (Patent Remedy Act) iii. Kimel (failure to protect rights of state government older workers under the ADEA) iv. Garrett (state workers with disabilities allege violation of the ADA) 1. the Court concludes that the ADA can apply to the States only to the extent that it is appropriate sec. 5 legislation 2. Legislation under sec. 5 that reaches beyond the scope of the guarantees under sec. 1 must exhibit congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. a. Congruence: identification of a problem that is persistent and pervasive i. Congress can exercise its sec. 5 authority only in response to state transgressions and Congress has failed to establish a pattern of irrational state discrimination against people with disabilities ii. The level of scrutiny to be applied b. Proportionality: an appropriate fit between the remedy for the problem and the means adopted (the legislation)

14 i. Under the Supreme Court s Equal Protection Clause jurisprudence, discrimination against people with disabilities is subject to rational basis scrutiny only, which means that the state s interest must be legitimate and the means chosen need be reasonably related to achieve those ends ii. It appears as though state conservation of financial resources constitutes a legitimate state interest here d. 3. The 11 th A. speaks only of restrictions on the federal judicial power; however, the Court held in Alden v. Maine (1999) p. 304, a case involving a suit by state probation officers for overtime pay under the federal FLSA, that states cannot be sued in state court even on a federal claim without their consent. i. Kennedy, in his opinion for the Court, acknowledges that the Constitution and its framers were silent about the ability to sue state governments in state courts but that was unthinkable that states would have ratified the Constitution had they thought it would subject them to suit without their consent. e. 4. FMC v. South Carolina (2002) p. 315, the Court extends the principle of Alden to federal administrative proceedings i. Writing for the Court, Justice Thomas expressly says that state sovereign immunity extends beyond the 11 th Amendment. ii. Sovereign immunity includes immunity from federal administrative adjudications initiated by private citizen complaints. iii. Breyer in dissent questions this decision based on the text of the Constitution, tradition, relevant purpose and, finally, its practical consequences. G. These 11 th Amendment cases raise issues of federalism that the Court considered previously in the area of the 10 th Amendment. a. Critics and defenders of the Court s current approach to limiting suits against state governments typically invoke the Constitutional text and the drafters intent to support their respective positions. b. Critics emphasize that broad sovereign immunity undermines government accountability i. recent decision are unwarranted judicial activism by conservatives in striking down important federal laws based on principles found nowhere in the Constitution c. Defenders contend that state sovereign immunity for states is in keeping with constitutional design and protects federalism principles. i. Perhaps even more important, there is a need to preserve the Supreme Court s role in determining the meaning of the Constitution d. This debate is likely to continue on the Roberts Court: i. Currently, Chief Justice Roberts and Justices Kennedy, Scalia, Thomas, Alito favor limiting Congress ability to authorize suits against states and local governments. ii. Justices Ginsburg, Breyer, Sotomayor and Kagan want to allow suits against states under federal statutes.

15 Preemption: limits on taxing and spending power A. Gade v. National Solid Waste Management Assn - test for preemption a. Preemption may be express or implied i. Express: when congress s command is explicitly stated in the statute s language or ii. Implied: implicitly contained in its structure and purpose 1. Field Preemption: where the scheme of federal regulation is so pervasive as to make reasonable the inference that congress left no room for the states to supplement it a. 1) Where the federal law wholly occupies a field - so if there is congressional intent to have federal law occupy a particular area of law i. Where federal law wholly occupies a field ii. preemption will be found if there is clear congressional intent to have federal law occupy a particular area of law iii. e.g. immigration law 2. Conflict preemption: (2 actual types of preemption but Gade v. National has it as one) - where compliance with both federal and state regulations is a physical impossibility OR where state law stands as a obstacle to the accomplishment and execution of the full purposes and objectives of congress a. 2) conflict between federal and state law i. if federal and state laws are mutually exclusive, so that a person cannot comply with both, the state law is preempted ii. depends on intent of the federal government 1. e.g. if state set stricter standard of air pollution, and if the federal government made express decision to allow pollution above that level, then the stricter regulation is in conflict with the federal law 2. BUT if federal gov. was just setting the minimum standard, then the stricter state law is not in conflict and the law would not be preempted b. 3) if state law impedes the achievement of a federal objective so if the state law stands as an obstacle " i. if the federal and state laws are not mutually exclusive (aka a person can comply with both), preemption will be found if the state or local law interferes with attaining a federal legislative goal ii. in applying this type of preemption, courts must determine the federal objective and must decide the

16 point at which state regulation unduly interferes with achieving the goal Dormant Commerce Clause A. General Rule a. If Congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate, so long as the state or local action does not: i. Discriminate against out-of-state commerce; ii. Unduly burden interstate commerce; or iii. Regulate extraterritorial (wholly out-of-state) activity. B. DCC Analysis: a. DCC Trigger: State regulation with effect on interstate commerce i. Is there a federal law? 1. If yes, analyze Preemption 2. If no, continue on. ii. Is there discrimination? 1. Discrimination: a. Facially discriminatory: discriminates on its face b. Facially neutrally but still discriminates as a whole either i. In its purpose ii. In its effect 2. If yes, use DCC strict scrutiny/least restrictive means test a. State must be able to prove i. Legitimate/important purpose ii. Proof of absence of nondiscriminatory alternatives to state s discriminatory action 3. If no, use the balancing test a. Burden on interstate commerce v. benefit to state s interests b. the law is valid UNLESS there is a burden on interstate commerce that greatly exceeds benefits to state s interests iii. Do any of the exceptions apply? 1. Congressional Approval 2. Market Participant: allows a state or local government to favor its own citizen in receiving benefits from gov. programs or in dealing with gov. owned business a. The government is acting like others in the market aka a business or customer b. The government is not controlling the market, or acting like a market regulator Privileges and Immunities A. Analysis

17 a. When a challenge is brought, there are 2 basic questions i. Has the state discriminated against out-of-staters with regard to privileges and immunities that it accords its own citizens? ii. If there is such discrimination, is there a sufficient justification for the discrimination? b. P&I is not absolute, but it creates a strong presumption against state and local laws that discriminate against out-of-staters with regard to fundamental rights or important economic activities B. P&I Clause is applied in 2 contexts a. when the state is discriminating against out-of-staters with regard to constitutional rights b. when a state is discriminating against out-of-staters with regard to important economic activities C.