Introduction Generally—What Does The Constitution Do?
part of the stream of commerce
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Rule: Commerce is a stream—analogy to a literal stream—and if the place that is being regulated is just a little weigh station w/in that stream, it is in the stream of commerce and subject to federal regulation Must be part of the current, ongoing stream and critical to its movement 1937-1995—Broad Federal Commerce Power History: President Roosevelt won a landslide victory in 1936 and saw this as a strong endorsement for the New Deal programs that the court was invalidating President Roosevelt proposed legislation to pack the court w/justices if any of the judges were over 70 years old “The switch in time that saved nine” refers to the Justice switching his vote to allow some new deal legislation to make it though the SC to appease Roosevelt NLRB v. Jones & Laughlin Steel Corp. Summary: Iron and steel manufacturing co. was charged w/engaging in unfair labor practices in violates of the National Labor Relations Act; this act tried to stop business from firing people part of a union Rule: “If activities 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 can NOT be denied power to exercise that control (“Substantial effect on interstate commerce” test) Stream of commerce theory wasn’t completely dismissed, but reframed w/in the current test—you just need a flow and a substantial relationship This returns bank to the broad interpretation under Gibbons Holding: B/c there is a network of operations in a wide variety of states, a work stoppage in one state would “substantially effect” other states Wickard v. Filburn Summary: Small farm produced excess wheat than allowed for personal use Rule: “Congress can regulate what seemed to be trivial activities if, added together, they had, as an aggregate, a non-trivial affect on commerce” This is called the aggregate effect analysis and the question to ask is “what if everyone did it”? This is an exceptionally functional approach—if congress is going to regulate commerce they must be able to regulate some purely local activities b/c in the aggregate it would cut against what their regulations Civil Rights Era Cases Heart of Atlanta v. US Summary: Hotel has a policy of NOT renting rooms to blacks; 75% of their business was from out of staters Rule: “Commerce power includes the power to promote commerce and regulate/prohibit commerce” It does NOT matter for CC analysis, if the effect will increase or decrease interstate commerce, it just matters that it affect it It’s OK that it was morally motivated—it just needed a hook Test Note: Mention that commerce does NOT have to be the motive behind the legislation Holding: Congress can regulate segregation policies b/c the substantial relationship btwn segregation policies that discourage travel and in aggregate, affects interstate commerce “If interstate commerce feels the pinch, it does NOT matter how local the operation which applies the squeeze” Katzenbach v. McClung & McClung Summary: Family BBQ near interstate hwy refused to seat black people; 46% of their meet is from out of state Rule: “When the court finds that legislators, in light of the fats and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, the investigation is at an end” If, in aggregate, it “substantially affects commerce” AND Congress has a “rational basis,” the act will be upheld Rational basis was a VERY low bar 1995-Present—Narrowing of the Commerce Power History: Prior to Lopez in 1995, court interpreted commerce clause to allow congress to do pretty must anything—it was a carte blanche situation US v. Lopez Summary: Congress made it illegal for any person knowingly possess a firearm in a school zone; Lopez, a 12th grader, carried a concealed gun to his high school Holding: CC does NOT extend to regulation of carrying handguns “To uphold the government’s contentions here, we have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the CC to a general police power of the sort retained by the States.” Rule: Four categories which congress has power over (1) Channels: Freeways, air traffic (goods and services that affect these, and move through) (2) Instrumentalities: Buses, trucks, mail, telephone, etc… (3) Substantially Affect: Impacts Commerce Only economic activities can be aggregated Courts look to legislative history Look for a proximate cause Must have a hook (4) Express Jurisdictional Limit: To the extent that congress regulates something w/a jurisdictional hook, it is OK So long as they limit the JXN of it or make it part of the rule that must be proved by prosecution, it is OK for CC Only “economic activities” can be aggregated Reconciling w/Precedent No tie to interstate commerce—purely a criminal act Have a gun near a school is criminal NOT commerce—so even in aggregate it is still not commerce Pre-Lopez rational basis was sufficient—now, Congress’s regulation must IN FACT have a substantial effect on interstate commerce Existence of findings is NOT necessarily enough for it be sufficient and fall under the CC It is NOT going against prior precedent—modern precedent still stands they are just limiting the very expansive previous precedent There has always been limits, and congress has never breached them until now Kennedy/O’Connor’s Concurrence: This decision is OK b/c it respects stare decisis Federalism: Question of states rights is, in part, driving the decision b/c there are “traditional concerns” that should be left to the state b/c they are “laboratories” Traditional concerns include: Education, crime, family law (marriage, custody, etc) Thomas’s Concurrence: Go back to the textual origin of the CC Anything beyond “bartering and selling” is NOT commerce Must be transactional to make sense of “among states” We don’t apply “substantially affect” to all of Congress’s powers—make war—so why should we here? Breyer’s Dissent: Ct is returning to categorical judgment—trying to find logic for why there are limits to CC—this failed in past, why go back to the past problems Wants Rational Basis Test: “Ct must give Cong. a degree of leeway in determining the existence of a significant factual contention, the question before us is not whether the regulated activity sufficiently affected interstate commerce; rather, whether Cong. had a rational basis for so concluding” US v. Morrison Summary: A college girl was raped; school did very little; she sued under the VAWA which provided a civil remedy for the victims of gender-motivated violence Difference from Lopez: Here, congress did a 4 year study to prove the effect of interstate commerce, and then passed the law Rule: Findings are NOT necessarily enough “We the court are the deciders of whether there is a sufficient connection—there must be a line upon what is clearly local and what is clearly federal” “Simply b/c Congress may conclude that a particular activity substantially affects interstate commerce does NOT make it so” Holding: The studies indicated that congress was making inferences which it is not supposed to do Causal chain is two long here—if this was allowed, congress could regulate anything Pierce County Washington v. Guillen Summary: Cong. passed legislation meant to assist states in identifying highways in need of safety improvement; made the state reports confidential; man sued for information to prove that state knew of dangerous intersection that killed his wife Rule: We do allow a pile of “inferences upon inferences” as long as congress can see a link between them Holding: CC lets congress regulate and protect instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities A road does NOT lose its character of being an “instrumentality” just b/c it is solely w/in the state b/c it connects to the federal system of interstate highways “Even though the threat comes from purely local activities and we are adding onto the road itself b/c of unforeseen side effect to the system, congress could reasonably believe that the confidentiality aspect would affect interstate commerce” Gonzales v. Raich—A step back Summary: CSA regulated marijuana against a CA statutes for medical uses; 2 women were “suffering” by not having their pot plants; FDA took plants Holding: Fed. government can regulate marijuana b/c it is a good in commerce Different from Morrizon and Lopez b/c there congress didn’t regulate the overall market, just individual instances Additionally, here, the activities are quintessentially economic Once you confirm that it’s economic, all you have to do is use rational basis test to determine if Congress had a rational reason behind the legislation Rely heavily on the Wickard principle Rule: If the activity and regulation aim is commercial/economic—we can evoke Wickard and Civil Rights cases that allow regulation of purely local or intrastate activities Scalia’s Concurrence: “Substantial effect test” is justified by the CC and the Necessary and Proper Clause Here congress is trying to regulate a large market and thus trying to regulate a small part that would affect the whole is fine b/c of the N&P O’Connor’s Dissent: States are laboratories and intruding on something that is arguable not economic, the ruins the benefit of having the laboratory system “Something more than an assertion is required when Congress purports to have power over local activity whose connection to an intrastate market is not self-evident. Otherwise the N&P clause will always be a back door for unconstitutional federal regulation” Creates “perverse incentives” for congress—so long as they regulate wide enough (b/c a wide net will definitely affect commerce) you can add smaller, unrelated legislation that otherwise would fail as long as it is related to the broader scheme Thomas’s Dissent: Need to go back to 1790 and use the text and history of the clause to enact legislation under it Text suggest to him that CC can only regulate actual goods across actual state borders Spending Power—Covered in the NY v. US and South Dakota v. Dole Generally: Comes from Art. 1, §8 Power to tax (for whatever it wants) Uses this power to persuade states to comply when federalism otherwise would keep Congress from doing what it wants Rule: Congress may use the spending power to create fiscal incentives to get states to pass federal law MUST spend with “general welfare” Test: Congress MUST attach “reasonable conditions” with legislation Must help/be related to the general welfare Must be expressly explicit—can NOT just sneak it in there If it’s ambiguous, the states will get the money and won’t really have any strings attached to it—the courts will side with the states, not with congress on ambiguity issues Conditions on federal grants must have a “reasonable relationship” with a legitimate federal interests in a particular federal program Reasonable relationship has a wide latitude (seen in SD v. Dole—hwy $ & drinking age) Other constitutnal provisions may provide an indpndnt bar to the conditional grant of fed. funds Limits: Congress does NOT always regulate by dangling a financial carrot in front of the state b/c they may run out of money and it is not reasonable in the long run Limitations on Congress: 10th and 11th Amendments Can Congress require states to comply with federal law? YES—Whenever it wants Typically considered a 10th amendment question: “The powers delegated to the US by the constitution, nor prohibited by the states, are reserved to the States respectively, or to the people” During the broad time of the CC allowance, the 10th amendment was seen as a “truism” that served mostly as a reminder to respect state’s rights Court’s were sick of this when Usery was decided National League of Cities v. Usery Summary: Congress enacted the “Fair Labor Standards Act” and required employers covered under the Act to pay their employees a minimum wage and time and a half over 40 hours; several states and cities challenged the constitutionality of this act Rule: In areas of “traditional state activities”—federal government can NOT infringe on state decisions b/c of federalism and the 10th amendment Problem: No definition of “traditional state activities” Holding: Limited by the 10th amendment “States qua states”: States can choose to be a state and operating as such, and sovereigns do NOT let other sovereigns tell them how to things—there are “functions essential to separate and independent existence” Policy Justifications: Increases costs for states, decreases cadet training times, forces states to cut services to meet the increase in salary wages Garcia v. San Antonio Metropolitan Transit Authority—Step back (Blackmun switched his vote) Holding: Overrules Usery—it is “unworkable and unsound” Determining what constitutes “traditional governmental functions” is too difficult to use as a rule and has lead to inconsistent results This allows unelected courts to choose when they like a regulation and when they don’t This is NOT an area best left up to the judicial realm because: 10th amendment does NOT have a meaningful thrust (a provision which prohibits this) States can protect themselves through the political process—senators are chosen by states and electoral college selects the president States are protected by the structures of the constitution (provisions which protect states)—instead of substance of the constitution Not a workable standard—too much impairment and discrepency Rule: Congress CAN apply rules to states if generally applicable (if it happens to affect states, that is OK—it just can NOT be aimed directly at states) Dissent: Rehnquist says that we will probably come back to this philosophy soon—this makes the court look illegitimate and a body that does NOT enforce core constitutional values This decision “reduces the 10th amendment to meaningless rhetoric when Congress acts pursuant to the CC” “The court, an unelected majority of five justices, today rejects almost 200 years of the understanding of the constitutional status of the 10th amendment” Effect: 10th amendment has NO “meaningful thrust” in these types of cases Congress must be very explicit in its language The 10th amendment, if congress has the CC hook, will NOT stand as a limitation to the federal government’s power to force states to comply with federal law May Congress tell the states what laws to enact? NO (5-4) NY v. US (5-4 decision) Summary: A federal law created a statutory duty for states to provide safe disposal of radioactive waste generated w/in their border; the law provided states would “take title” to any waste w/in the borders that were NOT properly disposed of and would be liable for any/all damages incurred Holding: “The federal government cannot commandeer the legislative process” and the take title provision “commandeered” the state governments by directly compelling them to participate in the federal regulatory system “States are NOT mere political subdivisions of the U.S.—state governments are neither regional offices nor administrative agencies of the federal government” Majority adopts a very formalistic approach Rule: 10th amendment precludes Congress from forcing a state to pass law—Congress has power to encourage (through “dangling a carrot”) states to pass law, but is prohibited from “compelling” a state to pass a law Congress may do the following: Force states to obey federal law Say that congress will be taking over the whole field and only federal laws will govern in that area Entice the states to act by “dangling a carrot” May use the spending power (see previous section on hooks) Reasoning: Government can NOT force a legislative act b/c there is NO political accountability—if the states are required to pass the law, the citizens will be mad at the state government, not the federal government Makes it so congress is NOT accountable to the people and the states are the one who get the “bad rap” Two choices between two unconstitutional provisions is NO choice at all “State officials canNOT consent to an enlargement of the powers of Congress beyond those enumerated in the constitution” Even if it is “OK” with everyone else Dissent: (Functionalist approach) “The ultimate irony of the decision today is that in its formalistically rigid obeisance to federalism, the court gives Congress fewer incentives to defer to the wishes of the state officials in achieving local solutions to local problems” The statute passed was a cooperative scheme South Dakota v. Dole Summary: Federal government passed the “National Minimum Drinking Age Act” that required all states to pass a law limiting drinking age to over 21 or they would lose 5% of their hwy fund grant given by the government; ND had 18 yr old drinking age and didn’t want to change it Holding: Congress had a “reasonable link” between (regulation) regulating drinking age and (condition) federal highway funds Court interpreted broadly the third test in the spending power See spending power discussion Dissent: By the majority’s interpretation, the link is too easy to make and Congress can regulate almost anything Although nothing is “forcing” the states to take the money, they are effectively being forced b/c they need the money to operate/maintain their roads May Congress force state executive officials to enforce federal law against state’s own citizens? NO Printz v. US Summary: Brady Act was passed requiring background checks before purchasing a handgun; until the federal agency was ready to do it, the Act required local state police to do the background check for each purchase Majority: Text: Not much textual support—the 10th amendment does NOT articulate specific provisions of protection Tradition/History: Congress has historically made “suggestions” to state legislatures—they never required them to enforce them State court can be mandated to take federal cases b/c of a federal order, but the constitution provides for this Structure: Federalism and separation of powers arguments States under our system operate independently; since they are sovereign, they cannot be told what to do Federal government has its own executive branch, and congress could get around the president by assigning actions to local executive authorities and NOT the federal executive authority Precedent: US v. NY provided that you could NOT do this—not really a good argument b/c the facts and situations are completely different—and the same political accountability and separation of power concerns exist here Policy/Dynamic Interpretation: Temporary usurpation is STILL unconstitutional Federalism is a fundamental aspect of our government Lack of accountability to congress Very formalist approach Minority: Text: The CC coupled with the N&PC allow for Congress to do this 10th amendment is NOT a limitation to enumerated powers—the text reads that “powers not delegated to the US by the Constitution, nor prohibited by the states, are reserved to the States respectively, or to the people” Test Note: INCLUDE THIS ARGUMENT! Jones really likes this argument and it would go well in 10th amendment analysis Tradition/History: A of C failed b/c of this problem—thus they gave more power to the fed govt Federalist papers argued for this power and that this would occur Early on the federal government relied on state officials to collect taxes Structure: States are already represented by Senators (E.g.- Unfunded Mandate Reform) “A structural problem that vanishes when the statute affects private individuals as well as public officials is NOT much of a structural problem” Precedent: There is NO mandate in the Brady Bill for state legislatures to enact laws like in NY—this is merely asking the states to do something that they are already equipped to do (not an additional burden) Commandeering the executive is different than commandeering the legislative Policy/Dynamic Interpretation: If there is an emergency, not allowing for exceptions or for the federal government to do this would really hurt efficiency and possible help that could be rendered We actually have the federal power to press private people into action—to the extent we can demand our citizens to do something surely we can require the states to do it too Very functional approach Reno v. Condon- Tell states to obey fed law = OK, tell states to enact federal law = NOT OK Summary: Federal law prohibited states from disclosing personal information gained by departments or motor vehicles, such as addresses, phone numbers, SSN #s, and medical info Holding: “The law does NOT require the states in their sovereign capacity to regulate their own citizens. It does NOT require SC legislature to enact law or regulations, and it does NOT require state officials to assit in the enforcement of federal statutes” Rule: Congress may prohibit state governments from engaging in harmful conduct, Directory: resource -> collection -> EA88E61A-F827-4590-985B-EC1F412EAE4E collection -> A chapter of the kappa beta delta international honor society collection -> Example of a Letter of Application for Candidacy for Business and Separate Accounting* Program Accreditation collection -> Northeastern Council of Business Schools & Programs (October 14-15, 2016) collection -> Defense of Investment Professionals: Securities Litigation in the finra arbitration Setting By collection -> Airborne Topographic Lidar EA88E61A-F827-4590-985B-EC1F412EAE4E -> Jurisdiction over the Parties or Their Property (jop) collection -> Riparian Water Boundaries Titles and Rights EA88E61A-F827-4590-985B-EC1F412EAE4E -> Five Juicy questions where the heck does property go upon death of decedent? 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