CONSTITUTIONAL LAW 1

Transcription

1 CONSTITUTIONAL LAW 1

2 Judicial Power 3 Judicial Review 3 Judicial Supremacy 3 Political Questions 4 Standing and Ripeness 6 Justiciability 8 Federal Legislative Power 9 The Necessary and Proper Clause 9 Early Commerce Clause Cases 9 The Second Wave of Commerce Clause Cases 12 Turning Back the Reach of the Commerce Clause 14 The Taxing Power 17 The Spending Power 18 General Legislative Power 19 Federal Legislative Power and the ACA: NFIB v. Sebelius 20 Federal Limits on State Power 23 Express Preemption 23 Implied Preemption 23 Dormant Commerce Clause The Uniform National Standard Test 24 DCC The Excessive Burden on Interstate Commerce Test 25 DCC Preventing Protectionism 26 DCC Exemption for the State as Marketplace Participant 28 Interstate Taxation 29 The Privileges & Immunities Clause 30 Separation of Powers 31 Presidential Domestic Powers 31 Presidential Foreign Powers 32 Presidential Power in Times of War 34 Executive Privilege & Immunity 36 Congress & The Legislative Process 39 Congressional Control Over Executive Branch Appointments 40 2

3 Judicial Power Judicial Review - Marbury v. Madison: the Supreme Court can declare void an act of the legislature that is unconstitutional since Judiciary Act of 1789 gave SCOTUS authority to issue writs of mandamus, it had to have been under appellate jurisdiction, since Constitution only lets SCOTUS exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. - therefore, since the law lets SCOTUS issue writ directly to officer, it s unconstitutional, since it would effectively be an exercise of original jurisdiction because our government is one of limited powers and the Constitution enumerates those limits, it follows that the Constitution must be superior to normal legislative acts - therefore, judicial power must be able apply Constitution when reviewing law of the land, and courts, as bound by their oaths to the Constitution, must find any law in violation of it void. basis of political question doctrine enumerated here: - questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court. courts should be hesitant to review exercise of president s discretion, but when pres. is directed by a law to do something for someone not subject to his particular direction, court has authority Judicial Supremacy - Martin v. Hunter s Lessee: appellate power of the Supreme Court extends to state courts Facts: - dispute over who owns piece of land in Virginia: Martin, a British loyalist according to Treaty of Paris in 1783/Jay Treaty of 1794; or Virginia when it seized the land in the Revolution. Reached Supreme Court, which instructed Virginia Court of Appeals to enter judgment for Martin, VA COA said SCOTUS appellate power doesn t extend to state courts Ruling: - Justice Story (Marshall had some of the land, so he recused himself) - art. III says SCOTUS has authority over all cases, makes no sense if they can t assert appellate jurisdiction over state cases not having federal overview of state courts would mean no uniformity of decisions/laws must guard against state prejudices 3

4 - Cooper v. Aaron: when the SCOTUS interprets the Constitution, that interpretation becomes the supreme law of the land Facts: - Arkansas refuses to segregate schools, state government tells everyone to ignore scotus, school board tries to integrate, eventually says it needs 2.5 year break because of chaos and violence from integration, gets postponement from district court but reversed in COA Ruling: - Court accepts school board s contentions, but can t grant postponement because actions requiring it are due to actions of state gov t - federal judiciary is supreme in explaining conlaw, and no state official can claim the Constitution doesn t apply to them, that would make constitutional restrictions on state power irrelevant Political Questions - Baker v. Carr: factors in considering whether or not a case presents a nonjusticiable political question Facts: - certain Tennessee voters felt that due to population changes and a failure on the part of the legislature to reapportion, they were being deprived of their rights under the Equal Protection clause - district court held that it was an unjusticiable political question Ruling (Brennan): - no political question - political question arises from judiciary s relationship b/w itself and other branches of fed gov t, unjusticiable b/c it as been left to another branch by Constitution - prominent factors of political questions: textual commitment of the issue to another political department lack of judicial standards for resolution impossibility of deciding without policy determination impossibility of action without disrespecting other branches of government unusual need for unquestioning adherence to a political decision already made 4

5 potential for embarrassment from multiple branches answering one question differently - guarantee clause (Art.4, 4) guarantees a republican form of gov t to every state, claims cannot arise under that section, political question b/c no judicially manageable standards - court decides that apportionment question shares no common characteristics with listed prominent factors of political questions - further decides that it s not a guarantee clause case it s a judicial protection under fourteenth amendment case that is not so enmeshed w/ guarantee clause questions as to create a political question - dissent (Frankfurter): it s a guarantee clause case posing as a 14th amend. case apportionment is complex, political and partisan. courts shouldn t be involved - Nixon v. United States: the Supreme Court will not review cases where it s been textually committed elsewhere and there is no way to grant adequate relief Facts: - federal judge who took a bribe sues for his job back, - says Senate Rule 11, which allows for Senate committees to hear evidence against someone who s been impeached and report on that evidence to the senate is unconstitutional - claims it violates Impeachment Trial Clause, Art. I, 3, cl. 6: Senate shall have the sole Ruling: Power to try all Impeachments. Senate shall have sole power, not Senate subcommittee - political question, court can t rule textual commitment of issue to another branch (Constitution says that trying an impeachment is the Senate s job) petitioner s reading of sole is not a natural one (would require courts to rule on every time the word Senate is used in the Constitution) can t have judicial review on impeachment by legislature, impeachment is legislature s only check on judiciary (corollary to textual commitment argument) 5

6 would cause problems with transition of power if you could just appeal to courts, how would courts reinstate politicians whose spots have been filled? (finality of judgment/ difficulty of fashioning relief as lack of judicial standards considerations) Standing and Ripeness - Art. III 2 says fed. courts have jurisdiction over various cases and controversies but only over cases and controversies - Muskrat v. United States: Supreme Court s judicial power only extends to actual controversies between adverse litigants Facts: - Congress passed a law giving the Cherokee Indians land, then increased the number of people with claims to the property a few more times, diminishing property interests of people already on land - congress passed another law telling people with suits about that to bring it before the court of claims and appeal to the SCOTUS - this is a SCOTUS appeal of one of those claims Ruling: - SCOTUS never reaches merits, concerned instead with whether this suit can be heard, concludes it can t - Congress can t just ask the Supreme Court to decide if an act is ok it needs to come up through normal litigation can only declare things unconstitutional because the unconstitutional law was relied on by someone for their rights - the court is not a body with revisory power over the action of Congress it adjudicates between litigants in justiciable controversies where the court has to choose between the fundamental law (Const.) and laws purporting to be in line with it - in the case at bar, the US may be a defendant, but it has no interest in the case adverse to claimants - so Congress exceeded its authority in deciding that it could compel the court to hear something not judicial - Allen v. Wright: no standing when you claim government has violated law but have no concrete injury. 6

7 Facts: - parents of black school children file nation-wide class action alleging that IRS is inappropriately giving tax-exempt status to racially discriminatory private schools - issue before SCOTUS is whether parents have standing, SCOTUS holds that they don t Ruling: - parents, now respondents allege that IRS exemptions are unlawful, but do not allege any personal injury never allege that their children would have applied to private school - injury claimed from fact of government conduct and that racially segregated private schools injure children s opportunity to receive desegregated education in public schools if private schools lose tax-exempt status, they ll also lose students who will enter public school and make it more desegregated - O Connor s opinion cites Article III case law like Warth v. Seldin, important case in establishing standing doctrine litigant must have standing to sue, must be a case or controversy standing doctrine limits federal jurisdiction, which should only be exercised when necessary as a last resort and when the exercise of jurisdiction is consistent with separation of powers and the dispute is capable of judicial resolution - litigant cannot raise someone else s legal rights - courts cannot adjudicate general grievances that should be handled by the legislature - complaint must fall within zone of interests protected by law invoked - constitutional component of standing doctrine: plaintiff must allege personal injury fairly traceable to the defendant s allegedly unlawful conduct and likely to be redressed by the requested relief - so respondent s first contention, that government financial aid to discriminatory private schools directly harms them fails b/cit does not constitute a judicially cognizable injury right to have gov t act in accordance with law cannot confer jurisdiction on federal court w/out draining Art. III requirements of all meaning can always claim gov t is violating the law, need a case or controversy 7

8 furthermore, no direct injury from stigma of discrimination, need to be denied equal treatment, not just know that discriminatory conduct exists if abstract stigma of discrimination was a cognizable injury, standing would extend to all members of racial group nationwide, and federal courts would just vindicate interests of all concerned bystanders - respondent s second contention, that their kids have a diminished ability to receive an education in a racially integrated school, is a concrete, personal injury, but the injury is not fairly traceable to the government conduct it s speculative whether withdrawal of tax exemption would lead schools to change their policies or would lead parents to withdraw their kids from the school, further speculation required to assume that a large enough number of school officials/parents would make the necessary decision to significantly impact racial composition in public schools, links of causation are too weak and attenuated giving standing in this case would make fed. courts continuing monitors of executive action, that s much more the role of the legislature, which has power of the purse, or the executive, whose job it is to make sure the laws are faithfully executed Justiciability - Raines v. Byrd: no congressional standing for abstract, dispersed institutional injuries (like having your votes become less effective), need a concrete and personal one to create a claim or controversy Facts: - District Court for DC declared Line Item Veto Act unconstitutional in accordance with statutory language giving it jurisdiction over suits involving anyone adversely affected by the act - appeal went up to SCOTUS, has to decide if this is really a case or controversy Ruling: - CJ Rehnquist examines standing requirement: is plaintiff a proper party? We have consistently stressed that a plaintiff's complaint must establish that he has a "personal stake" in the alleged dispute, and that the alleged injury suffered is particularized as to him. standing inquiry especially rigorous when examining actions of another branch of gov t now, standing for legislators: 8

9 - there s Powell, a case about a HoR member who was excluded from the House, but legislators here weren t personally singled out for unfavorable treatment - SCOTUS has only granted standing for legislators institutionally injured in Coleman, where legislators would normally have beaten a bill but for the actions of the Lieutenant Governor, but here, the legislators were not deprived of their votes, they re just saying those votes are now less effective - SCOTUS rules that injury is abstract and dispersed, not concrete and personal, therefore no case or controversy, therefore no standing Federal Legislative Power The Necessary and Proper Clause - McCullough v. Maryland: if the government is allowed to exercise a power, the N&P clause lets it choose the best possible means, even if the means aren t mentioned in the Constitution Facts: - Maryland sues the Bank of the United States, claims Congress doesn t have the authority to create it Ruling: - Congress has certain enumerated powers: taxes interstate commerce war - to execute those powers, the Necessary and Proper Clause (Art. I, 8, cl. 18) lets Congress choose the best means here, Congress, after lengthy debate, has decided the best means are to create a bank - counsel for Maryland asks Court to consider Constitution as act of sovereign and independent states, powers have been delegated by states who remain supreme Court disagrees, Constitution was an act of the people, acting in their states, they are the sovereign ones Early Commerce Clause Cases 9

10 - Current law: Congress can regulate not only interstate commerce itself, but also the channels and instrumentalities of interstate commerce and intrastate economic activities that in the aggregate have a substantial effect on interstate commerce. - How did we get there? A: Navigation as Commerce - Gibbons v. Ogden: Congress can regulate navigation under the commerce clause so long as it s connected with interstate commerce Facts: - Ogden has a monopoly on operating steamboats granted by New York - Gibbons starts competing with him, citing a federal license, claims federal supremacy Ruling: - commerce among the several states doesn t stop at state boundaries, goes inside - power of Congress comprehends navigation if it s related to commerce, - therefore, Congress can and has legislated about navigation waters in question - and the state monopoly has to yield to the federal license - Shreveport Rate Case: Congress can regulate intrastate transportation that affects interstate commerce Facts: - Interstate Commerce Commission sets up rates for transporting freight by rail from Shreveport, LA into Texas - several railroads charging more for short trips from Texas to Shreveport than for longer trips entirely in Texas, ICC orders them to raise intrastate rates to meet standards Ruling: - fact that these are carriers of intrastate as well as interstate commerce doesn t keep Congress from regulating them - Congress, in the exercise of its paramount power, may prevent the common instrumentalities of interstate and intrastate commercial intercourse from being used in their intrastate operations to the injury of interstate commerce. - since intrastate rates are harming interstate commerce (causing discrimination in favor of traffic within Texas), Congress can regulate B: Regulating Products Before They Enter Interstate Commerce - United States v. E.C. Knight Co.: manufacture is not commerce Facts: - American Sugar Refining Company bought four Philadelphia refineries, giving it a near monopoly on the manufacture of refined sugar in the U.S. - charged with violation of Sherman Antitrust Act Ruling: - power to control manufacture is power to control disposition, but that s only secondary - exercising that authority might bring commerce in line with what it should be, but that doesn t make it a power Congress should have - commerce succeeds to manufacture, and is not a part of it. 10

11 - Carter v. Carter Coal Co.: that commodities produced or manufactured within a state are intended to be sold or transported outside a state does not render their production or manufacture subject to federal regulation under the commerce clause. Facts: - Congress passed regulatory scheme for coal industry creating commission authorized to regulate maximum hours and minimum wages of workers in coal mines - did not regulate interstate shipment, just labor practices Ruling: - employment law is related to production, not commerce - production is a purely local activity not commerce; but a step in preparation for commerce - is effect of production on interstate commerce direct or indirect? lots of adjectives - labor law is not interstate commerce, law struck down C: Enforcing Moral or Social Goals With the Commerce Clause - Champion v. Ames: Congress can ban a form of interstate commerce for public policy goals. Facts: - federal statute criminalized interstate transportation of lottery tickets - no real regulation, just prohibition of a form of commerce for moral reasons, can Congress do that? Ruling: - lottery tickets, even if intended to be sold in state, become part of interstate commerce when they move in between the state (traffic as commerce) - if states can consider the morality of lottery tickets, why can t Congress? have to remember that Congress interstate commerce power is plenary, nobody else can legislate in that arena and Congress is limited only by the constitution - Hammer v. Dagenhart: Congress can t regulate for social/moral reasons if interstate transportation isn t involved. Facts: - father brought suit in the name of two of his sons to enjoin enforcement of a child labor act - act prohibited transportation in interstate commerce of goods produced in factories using children Ruling: - no power under commerce clause to prohibit movement of ordinary commodities - power is to regulate interstate transportation, act here doesn t, it seeks to standardize ages at which children can work, not a valid exercise of Congress commerce power - the making of goods and the mining of coal are not commerce, nor does the fact that these things are to be afterwards shipped, or used in interstate commerce, make their production a part thereof. 11

12 The Second Wave of Commerce Clause Cases A: Manufacturing as Commerce the Beginning of the Shift NLRB v. Jones & Laughlin Steel Corp.: If manufacturing has a close and substantial relation to interstate commerce, then Congress can control it to protect interstate commerce from burdens and obstructions. NLRB found that steel co. had discriminated against union members and tried to intimidate employees to keep them from joining unions ordered company to stop and reinstate discharged employees act gives board power to prevent companies from engaging in unfair labor practices affecting commerce even though things like manufacturing might be solely intrastate when considered independently, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control. - clear shift from earlier position (Roberts switch in time that saved nine) fact that it s production is no longer determinative when industries organize themselves on a national scale (like the coal company here), making themselves primarily interstate commercial entities, their labor relations become a part of interstate commerce United States v. Darby: courts will not consider whether the actual purpose of the legislation is to regulate interstate commerce. appellee was a lumber manufacturer in Georgia indicted for violating Fair Labor Standards Act of 1938 Act prohibited shipping products interstate when during production workmen were paid less than prescribed limited wage power to regulate commerce is power to prohibit certain forms of commerce The power of Congress over interstate commerce is not a forbidden invasion of state power merely because either its motive or its consequence is to restrict the use of articles of commerce within the states of destination overrules Hammer v. Dagenhart, says Congressional power is plenary, the article itself does not have to be harmful for Congress to prohibit it - fact that motive or effect of the regulation is to control intrastate production is irrelevant wage and hour requirements are constitutional b/c Congress can regulate intrastate activities which so affect interstate commerce as to make regulation appropriate means to attainment of legitimate end (cites to McCulloch) so far as Carter Coal is inconsistent, it s limited by decisions like this and Jones & Laughlin 12

13 Non-Commercial Commerce Clause Legislation Wickard v. Filburn: When determining whether the local activity that Congress seeks to regulate has the requisite connection to interstate commerce, the Court considers all of the regulated activity in the aggregate. If Congress has any rational basis for the policy, the Court will not consider whether the policy is a good one. Congress passed Agricultural Adjustment Act of 1938, establishing quotas for farms in order to control volume of wheat in interstate commerce Filburn exceeded government allotment for wheat he was allowed to grow, challenged penalty asserted against him, he used excess wheat for personal consumption even if appellee s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce doesn t matter if effect is direct or indirect, Court abandons those labels entirely that appellee s own contribution to the demand for wheat may be tricial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial. Court says home-grown wheat is an economic activity because it competes with purchases that might be made on the market - even though that might unfairly promote interests of others, Court does not deal with wisdom or fairness of congressional action Heart of Atlanta Motel, Inc. v. United States: Congress can use any reasonable means to remove intrastate burdens on interstate commerce, even if those means are targeted at a moral goal, not a commercial one. Heart of Atlanta Motel is on an interstate highway, solicits patronage outside of Georgia with billboards and magazine ads, 75% of guests are from out of state refused to rent rooms to black people, wanted to continue doing so after Civil Rights Act was passed, so sued claiming act was unconstitutional evidence in Congress before act was passed showed that discrimination by hotels impedes interstate travel fact that Congress was dealing with moral problem is irrelevant - doesn t detract from the evidence of the disruptive effect of discrimination on commercial intercourse It is said that the operation of the motel here is of a purely local character. But, assuming this to be true, the power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the states of origin and destination, which might have a substantial and harmful effect upon that commerce. 13

14 Congress can use any reasonable means to remove obstructions to interstate commerce, choice of means here is not unreasonable Katzenbach v. McClung: Congress can regulate the activities of a local business if, in the aggregate, the activities of similarly situated businesses have a detrimental effect on interstate commerce. Ollie s BBQ is a family-owned restaurant on a state highway purchases food locally, but supplier buys it from out of state - district court found that a substantial portion of food served had moved in interstate commerce refuses to serve black people, court below concluded that forcing it to would cause it to lose a substantial amount of business Title II of Civil Rights Act places restaurants under it if a substantial portion of food served has moved in commerce therefore, question is whether Title II is constitutional as applied to Ollie s (as applied unconstitutionality, not facial unconstitutionality) racial discrimination in restaurants places a burden on interstate commerce - court refers to legislative record s evidence that black people spend less going out because of discrimination though no direct evidence, court says that has close connection to interstate commerce. The fewer customers at a restaurant the less food it buys from out of state - discriminatory situations causing unrest and depressing business conditions in segregated communities - limits interstate travel by black people and makes skilled professionals less likely to move to areas w/ discrimination, keeping industry from getting established there viewed in isolation, Ollie s BBQ has an insignificant relation to interstate commerce, but, just like in Wickard, the court aggregates its contribution with similarly situated restaurants and lets Congress legislate Turning Back the Reach of the Commerce Clause The Power to Regulate Noneconomic Activities United States v. Lopez: Congress cannot regulate activities wholly unrelated to commerce or any sort of economic enterprise. kid was arrested for bringing a gun to school under to Texas law banning firearms at schools charges were dropped when federal agents charged him under Gun-Free School Zones Act of 1990, 922(q) act made it a crime to knowingly have a gun in school zones 14

15 Rehnquist points to three categories Congress can regulate under commerce power - channels of interstate commerce (Darby, Heart of Atlanta) - instrumentalities of interstate commerce, or persons or things in interstate commerce, even though threat may come only from intrastate activities (Shreveport Rate Case) - activities having substantial relation to interstate commerce (Jones & Laughlin) 922(q) is clearly not in first two categories, must be in third to be sustained holds that it s a criminal statute that has nothing to do with commerce or any kind of economic enterprise - no congressional finding of economic effect gov t claims: - guns in schools lead to violent crimes which have costs that affect national economy - guns in schools threatens educational process, adverse effect on economy Rehnquist says that under those theories, there s no limit to federal power - To uphold the Government s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. We decline here to proceed any further. - Kennedy & O Connor s Concurrence: can t turn back the clock on commerce clause, economy has totally changed since 1787 but federalism must be maintained for the liberty of the American people Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory. - Thomas Concurrence: textual interpretation of Commerce clause - dictionaries, etymology Commerce means selling, buying, bartering and transporting the substantially affecting interstate commerce test needs to be done away with - grants Congress police power United States v. Morrison: The Court will not allow Congress to regulate noneconomic conduct based solely on that conduct s aggregate effect on interstate commerce. woman brought suit against two football players under civil remedy provided for by the Violence Against Women Act of 1994, U.S. claims regulates activity that substantially affects interstate commerce (Rehnquist s third category) gender-motivated violent crimes are not economic activity 15

16 unlike Lopez congressional findings here - Congress findings are substantially weakened by the fact that they rely so heavily on a method of reasoning that we have already rejected as unworkable if we are to maintain the Constitution s enumeration of powers. - gender motivated violence deters potential victims from traveling, getting jobs, doing business, diminishing productivity and increasing medical costs - finding that sufficient would allow Congress to regulate any crime that affects employment, production, transit or consumption Gonzales v. Raich: When Congress creates a comprehensive scheme that direct regulates economic, commercial activity, the Court will not, in an as-applied challenge, excise individual applications of the scheme even when it applies to local, non-economic conduct. California allows for physicians, patients and caregivers to grow or possess marijuana two patients sought injunctive relief from federal Controlled Substances Act, claimed it exceeds Congressional authority under Commerce Clause Stevens draws comparison to Wickard, says it stands for the proposition that congress can regulate noncommercial intrastate activity if failure to regulate it would undercut regulation of interstate market in that commodity just like in Wickard, Raich is cultivating a commodity for which there is an established interstate market CSA is trying to control supply and demand of controlled substances in those markets another similar concern: in Wickard, there was concern that wheat grown for home consumption would enter the interstate market b/c of rising prices resulting from Congressional controls here, marijuana grown for home may enter interstate market b/c of high demand - (problem: Court is assuming law-abiding patients will become interstate drug dealers) the regulation is squarely within Congress commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity. no specific congressional finding - but that s not required, only very helpful where connection to commerce not self-evident - don t have to determine whether activities actually affect interstate commerce, just if a rational basis exists for so concluding doesn t matter that this is purely intrastate conduct, Court refuses to excuse individual components of the larger interstate scheme if the scheme is valid - diff. b/w this case and Lopez/Morrison - Scalia Concurrence: activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the 16

17 Commerce Clause alone. Rather, Congress s regulatory authority over intrastate activities that are not themselves part of interstate commerce derives from the Necessary and Proper Clause. Congress can regulate as long as means chosen are reasonably adapted to attainment of legitimate end under the commerce power - O Connor s dissent: 50 states as laboratories, California has come to its own conclusions about something and the Court is letting Congress end that experiment without any proof of an effect on interstate commerce letting intrastate conduct be regulated under a broad scheme provides wrong incentives - Congress can just put constitutionally questionable assertions of authority inside broad regulatory schemes and get away with them so long as it doesn t legislate precisely The Taxing Power Child Labor Tax Case: Congress cannot rely on its power to tax when it seeks to regulate conduct not otherwise within the reach of its affirmative powers. Congress taxes a furniture company a heavy amount for employing a boy under 14 the company sues, claiming the Child Labor Tax Law regulates child labor in the states an exclusively state function in violation of the 10th Amendment gov t claims it s jut an excise tax levied under broad taxation power of art. I, section 8 Taft says you have to determine whether this is just a tax or a regulatory penalty tax imposes heavy burden for a departure from a very specific course of business - business has to knowingly depart: scienters are associated with penalties, not taxes purpose of the tax is to enforce a mode of behavior: here, stopping employment of children usually, taxes presumed valid, but here that presumption can t win, on its face this tax seeks to regulate something Congress wouldn t be able to regulate otherwise Grant the validity of this law, and all that Congress would need to do, hereafter, in seeking to take over to its control any one of the great number of subject reserved by the Tenth Amendment, would be to enact a detailed measure of complete regulation of the subject and enforce it by a so-called tax upon departures from it. - predates O Connor s concerns in Raich but sounds a lot like them diff. b/w a tax and a penalty: - taxes have primary motive of obtaining revenue from proper subjects, incidental motive of discouraging them - but if tax becomes too heavy, it becomes a penalty, not a tax but form of regulation/ punishment says this case is just like Hammer, but what about when Hammer is overruled? 17

18 - it means that Congress commerce power allows it to regulate intrastate activity, so clearly regulatory taxes can be passed United States v. Kahriger: The Court will only invalidate taxes as an over-broad use of the taxing power when it is extraneous to any tax need (produces no revenue or overly burdensome). Revenue Act of 1951 taxed anyone involved in the business of accepting wagers, required them to register with IRS Kahriger claims Congress is trying to penalize illegal intrastate gambling, infringing on state police power tax may regulate, but that doesn t make it invalid, it still raises revenue regardless of its regulatory effect court generally sustains statutes under commerce claus or n&p clause, even if they intrude on state matters, why should the power to tax be any different? distinguishes Child Labor Tax Case, saying Congress can t penalize activities subject only to state regulationc Unless there are provisions, extraneous to any tax need, courts are without authority to limit the exercise of the taxing power. - very deferential to Congress The Spending Power United States v. Butler: Pursuant to its power to spend for the general welfare, Congress may seek to accomplish objectives that it could not otherwise reach pursuant to its other enumerated powers. Agricultural Act of 1933 authorized payments to farmers for farming less acres to stabilize supply/prices revenue for the payments raised by taxing processors of those agricultural commodities Secretary of Ag. decided to stabilize cotton, cotton mill challenged tax, statutory scheme how do they get around taxpayer standing? - court says that b/c money comes in/goes out all as part of regulatory scheme, there s standing to object to that scheme Congress has general authority to tax and spend to provide for general welfare separate from its enumerated powers (Alexander Hamilton s view of Art. I, 8, cl.1) Congressional power to spend for public welfare not limited by Art. I enumerations however, legislation here is a statutory plan to regulate and control agricultural production Court strikes it down as violating 10th Amendment 18

19 South Dakota v. Dole: Congress can accomplish objectives by imposing conditions upon the receipt of federal funds by the states, subject to certain conditions. in 1984 Congress enacted 23 U.S.C. 158, withholding federal highway funds from states that allowed people under 21 to drink South Dakota allows people 19 and up to buy beer, sues claiming that 158 violates limits on spending power and 21st amendment - amend. states in relevant part: transportation or importation into any State of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. Seems to give states plenary powers over how booze is regulated in their states Court ducks the 21st Amend. issue, says this regulation is allowed under spending power cites Butler as support, general spending power independent of Art. I enumerations spending power is not unlimited though, there are conditions: - spending must be for general welfare (text of the clause, defer to Congress here) - conditions imposed on federal funds must be unambiguous - conditions on grants must be related to federal interest in the spending program - other constitutional provisions might provide a bar (think 10th Amend. in Butler) doesn t prohibit Congress from trying to indirectly accomplish what it can t do directly, just that it can t induce state to engage in unconstitutional activities (opinion: tautology, 14th amend. already keeps states from engaging in unconst. activities) - financial inducement cannot be so coercive it compels state cooperation court says 5% of federal highway funds (1% of South Dakota s budget) aren t coercive, but in reality that s a huge amount to lose from your budget - O Connor Dissent: Congress can t regulate through conditions on federal spending unless its pursuant to a declared Congressional regulatory power General Legislative Power United States v. Comstock: laws that are necessary and proper for carrying out other duties incidental to Congress enumerated powers will be found constitutional, even if they cannot be directly traced to an enumerated power. Federal statute ( 4248) allows district court to order that dangerous sex offenders be kept in civil commitment longer than the term of their imprisonments for public safety kept until mental condition improves or state assumes custody challenged under whether N&P Clause allows Congress that much authority assumed arguendo that other issues like Due Process Clause don t matter five considerations for why 4248 is constitutional: 19

20 - N&P grants broad authority to enact fed. legislation, just need rational relation to enumerated power, for example, erecting prisons pursuant to power to criminalize conduct in furtherance of enumerated powers (Scalia: but where is that here?) - civil-commitment statute is just a modest addition to existing federal prison mental health statutes, shows reasonable relation between new statue and existing federal interests - if federal government is custodian, it s necessary and proper to detain them if they re mentally ill in such a way that makes them likely to harm others - doesn t invade state interests, this has been delegated to Congress under N&P - links between 4248 and an enumerated power are not too attenuated same enumerated power that justifies creation of federal criminal statute justifies continued civil commitment - Thomas & Scalia Dissent: no enumerated power gives Congress the ability to pass this statute just because a law furthers another law that Congress has passed pursuant to enumerated power doesn t make it constitutional, every law must further an enumerated power - federal law establishing prison furthers same enumerated power as the law criminalizing conduct, problem here is that once the criminal sentence has run, any Congressional power over him ends Federal Legislative Power and the ACA: NFIB v. Sebelius Facts: - ACA s individual mandate requires people to maintain health insurance coverage - if you don t comply, have to make a shared responsibility payment described in the act as a penalty - penalty will be paid to the IRS with individual s taxes, and collected same way as tax penalties but IRS barred from using some normal enforcement tools, like criminal prosecutions and levies. Ruling: - Commerce clause argument: Chief Justice Roberts rejects CC argument for ACA, says that power to create commerce is different from power to regulate it, regulation presupposes preexistence of a thing to be regulated multiple examples in constitution of regulatory/creation power separated in Constitution - power to coin and regulate value of money - power to create army and navy, also make rules and regs for them 20

21 gov t argues that because you re going to get sick/injured at some point, everyone is already active in the healthcare market - Roberts says that s going too far, Court s allowed gov t to anticipate effects of activities on interstate commerce before (Heart of Atlanta, Katzenbach) but never allowed government to anticipate activity itself in order to regulate individuals currently engaged in commerce: Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and under the Government s theory empower Congress to make those decisions for him. everyone will likely participate in the market for food, clothing transportation, shelter or energy; that does not authorize Congress to direct them to purchase particular products in those or other markets today. - distinguishes Wickard, Government could regulate [his] activity because of its effect on commerce. The Government s theory here would effectively override that limitation, by establishing that individuals may be regulated under the Commerce Clause whenever enough of them are not doing something the Government would have them do. - there would be no limits on what Congress could do (Commerce Clause police power) - Roberts also looks at fact that it s going to be years before most of the people in the target population (young people) actually use the health care they re paying for, says connection between mandate and subsequent commercial activity is lacking (too attenuated) - N&P clause argument: law can t be upheld, usually you need relation to existing exercise to enumerated power, but [t]he individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power. - ex.: in Comstock, there was the existing federal power to criminalize conduct, but here, there s no valid statutory scheme or existing enumerated power application to support the statute, it s being created from whole cloth, which the N&P clause doesn t allow Roberts says law may be necessary, but it s not proper - Congress could reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it. - distinguishes from Raich, that was about some purely intrastate activity being captured in a concededly valid statutory scheme, this is the expansion of the scheme with new independent federal powers - Taxing Power Argument: 21

22 shared responsibility payment looks like a tax - filed with IRS - doesn t apply to people who don t pay taxes - amount determined by normal tax factors: income, dependents - generates revenue for gov t (Kahriger) fact that Act describes payment as a penalty doesn t determine whether or not this is exercise of Congress taxing power - have to look at it functionally, is cost related to the program? unlike Child Labor Tax Case, the payment here isn t exceedingly heavy, no scienter requirement, and collected through normal IRS methods, except most punitive methods aren t allowed taxes are allowed to be regulatory (cigarettes, sawed-off shotguns) act doesn t call not buying insurance illegal, no negative legal consequences, just the payment Morrison s favorite gov t argument: Medicare burdens all to pay for some, why not be able to burden anyone who doesn t have to pay for insurance, it s a greater extension - Spending Power Argument: if a state doesn t comply with the ACA, it loses all of its federal Medicaid funds Roberts compares this to losing 5% of highway funds in Dole: - In this case, the financial inducement Congress has chosen is much more than relatively mild encouragement it is a gun to the head. here it would be ten percent of the state s total budget gov t argues that according to terms of Medicaid states accepted that it could be changed - but this isn t just a shift, the entire nature of the program is being changed Nothing in our opinion precludes Congress from offering funds under the Affordable Care Act to expand the availability of health care, and requiring that States accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding. 22

23 Federal Limits on State Power Express Preemption Field Preemption: If Congress intends to occupy a given field, any state law in that field is preempted Conflict Preemption: If Congress hasn t entirely displaced state regulation over the matter, state law is still preempted to the extent that it conflict with federal law. Silkwood v. Kerr-McGee Corp.: Federal law does not preempt state tort claims where Congressional intent it did not intend it to. In 1959, Congress clarifies atomic energy regulation, gives more power to states, but still precludes them from regulating about hazards and safe disposal of nuclear waste Silkwood is contaminated by radiation from the nuclear reactor she works at sues reactor, gets compensatory and punitive damages reactor claims that since state tort awards deter conduct relating to nuclear hazards, it s preempted by federal law preempted field does not extend that far Congress didn t allow states to deal with nuclear hazards because they lacked technical know-how no indication that Congress intended to preclude use of state tort claims - Congress passed a law capping liability for nuclear incidents shows that Congress assumed people would be able to resort to tort law U.S. as amicus says punitive damages conflict with federal remedial scheme where gov t imposes penalties for safety standard violations - court says paying both is not impossible, exposure to punitive damages doesn t frustrate scheme s purpose b/c it reenforces primary conduct that safety regs encourage Implied Preemption U.S. Term Limits, Inc. v. Thornton: States cannot impose additional qualifications on federal congresspeople, as that field is preempted by the Constitutional qualifications. in 1992, Arkansas voters amended their constitution to bar anyone from serving more than three terms as a rep and two terms as a senator group of Arkansas citizens filed for declaratory judgment that the amendment was void 23

24 Convention debates, Fed. Papers, case law stand for the proposition that qualifications for legislators in the Constitution are fixed and exclusive, Congress cannot change them petitioners argue that those historical and textual materials say nothing about states changing qualification, so 10th Amend. should let them Court says changing qualifications of federal senators not part of states original sovereignty, came into being with federal constitution, you can only reserve rights that states had before constitution came into being court dismisses argument that amendment is just the state regulating the time, place and manner of holding elections, which is its right - Thomas, CJ Rehnquist, O Connor, Scalia dissent: where Constitution is silent, federal gov t lacks power, states have it idea that states can t reserve power they didn t have doesn t make sense, it s the people that have the power, and the people here have acted Dormant Commerce Clause The Uniform National Standard Test Cooley v. Board of Wardens: A state law affecting interstate commerce is invalid when it concerns a subject for which national uniformity is necessary. Pennsylvania passes a law requiring that ships have a pilot appellant claims this contravenes commerce clause, where Congress has full authority did grant of commercial power to Congress deprive states of all power to regulate pilots? grant of commerce power to Congress didn t expressly limit the states, their exclusion has to be because nature of the power requires that Congress be the only actor in that arena and that s case when legislating on: - national subjects - things that admit only one uniform system clearly, Pennsylvanian pilots are not one of those - Congress passed a law in 1789 saying that pilots would still be regulated according to state law Wabash, St. L. & P. Ry. Co. v. Illinois: Even if state regulations attempt to further fair commerce between a state and its neighbors, they are invalid. Illinois passed a statute making it illegal for freight carriers to discriminate in their rates because law could regulate interstate freight, it was struck down 24

25 rates for interstate transportation need a uniform standard, even if the attempts to regulate have the best intentions the deleterious influence upon the freedom of commerce among the states, and upon the transit of goods through those states, cannot be overestimated. DCC The Excessive Burden on Interstate Commerce Test South Carolina State Highway Dept. v. Barnwell Bros.: A state law is invalid if it imposes a burden on interstate commerce that is excessive in relation to legitimate local interests, but that is a determination for Congress. S. Carolina wanted to regulate the weight/width of trucks on state highways trial court said it unreasonably burdened interstate commerce It s up to Congress to determine when interstate commerce is unduly burdened and legislate those problems away court can only determine if state legislature has acted within proper province and whether means of regulation are reasonably adapted to end sought - valid safety concerns here, so S.C. legislature acted appropriately Southern Pacific Co. v. State of Arizona: If a state law burdens interstate commerce with no reasonable relation to a local interest, courts will find it invalid. Facts: - Arizona law limits size/passenger number on trains - required trains to break down outside of AZ, reassemble outside - suit to see if statute contravenes commerce clause Ruling: - court rules it s excessively burdensome - longer trains are standard national practice - if length is going to be regulated, needs to be done nationally uniform national standard required here 25