Con Law Attack Outline PDF

Neil is Wise, Upright, and Learned I. COMMERCE CLAUSE – Extent of Federal Power  Congress’ most significant regulatory power (the power to set up rules that govern those outside of gov’t). 2 Aspects of CC: (1) Commerce, (2) Between the State A. Article 1 § 8 cl 3: “T...

Neil is Wise, Upright, and Learned I. COMMERCE CLAUSE – Extent of Federal Power  Congress’ most significant regulatory power (the power to set up rules that govern those outside of gov’t). 2 Aspects of CC: (1) Commerce, (2) Between the State A. Article 1 § 8 cl 3: “The Congress shall have power... to regulate commerce with foreign nations and among the several states and with the Indian tribes” 1. Congress effectuates commerce through the Necessary and Proper Clause 2. McCulloch v. Maryland: extent of Congressional power is EXPANSIVE, BROAD a. Congress has the power to do what is necessary and proper to effectuate purpose b. Congress has implied power () 1) Congress may act if there is a rational relationship to a legitimate ends c. Power to charter bank not defined specifically in Constitution, but McCulloch tells us to read powers that Constitution specifically grants to Congress broadly 1) Applies to all powers, but specifically to commerce power 3. N & P clause - Necessary: Convenient/practical – it’s in the section about Congress’s powers,not limits B. What is Commerce? 1. First cite Gibbons v. Ogden and say: a. Commerce is more than the narrow view of bartering or buying and selling, traffic or transportation 1) Traffic = buying and selling, or interchange of commodities b. “Among the States”: Commerce defined expansively to include intercourse btwn nations & parts of nations 1) Navigation = commercial intercourse btwn nations & parts of nations c. To be effective, Congress’ commerce power must be interpreted broadly 2. Gibbons v. Ogden (1824): Activities that affect interstate commerce are within Congress’ jurisdiction to regulate – commerce is not limited to bartering, but also includes transportation a. Any intercourse that affects other states b. “Among the States” 1) Intermingling among states - Restricted to commerce which concerns more than 1 state 2) Commerce does not stop at the boundary line of each state, but can be introduced to the interior c. The 10th Amendment does not limit Congress when Congress is acting under an enumerated power (the commerce clause) d. Commerce includes the movement incident to the purchase/sale e. The thing being regulated must be commerce and it must be between the states f. It’s not the judiciary’s job to 2nd guess the legislature, the political process is Congress’s check 3. Examine how tight the nexus btwn commerce & the power Congress trying to regulate 4. Limits on Federal power a. Constitution – says it must be interstate and must be commerce, but no definitions b. Political process – principle restraint the political process. If Congress oversteps its bounds, the recourse is to vote them out of office 5. Under Gibbons, Congress may not regulate activity that is purely intrastate (Marijuana garden) C. Some Limiting Cases: 1. US v. E.C. Knight a. Question is whether the Sherman act applies to a sugar monopoly. b. The Court says that commerce is not part of manufacturing, just because something is made for interstate commerce doesn’t mean Congress can regulate the production c. Enumeration of a thing presupposes something not articulated 1) We need some powers reserved to the states d. Gibbons seems to say that commerce is exchange of a thing for value – so production is not commerce 1) So after this case, it seems that only states can bust the monopoly 2. Hammer v. Dagenhart a. Commerce power controls the means by which commerce is carried on, not the ability to prohibit 1) This doesn’t stay law for long b. Distinguished the other cases because transportation was necessary to the accomplishment of the harmful result 1) But where the thing is not bad in itself, Congress cannot regulate 3. Carter v. Carter Coal 1  a. Production was a purely local activity, but wages affected price, but Court said Congress couldn’t regulate b. Direct v. Indirect effect on IC 1) Direct means it proximately produced the effect 4. NLRB v. Jones and Laughlin Steel Corp a. Court says Congress can regulate activities that affect commerce, as long as these activities will affect commerce immediately and catastrophically 1) This standard changes soon D. Then say: There are 3 Ways Congress Can Regulate commerce – CURRENT DOCTRINE (Lopez, Morrison): 3 Main categories of activity that Congress can regulate under Commerce Power Law must regulate economic activity to be subject to Commerce Power Economic = production, distribution, consumption of goods & services Must BE an economic activity, NOT affect the economy 3-Ways Congress Can Regulate – Test of what falls within Commerce Power, from Lopez: 1. Congress may regulate CHANNELS of interstate commerce Here, Cong a. Channel is the flow of items in interstate commerce or the stream of commerce regulating 1) Within Stream of IC: items, services, labor moving in stream of IC Private 2) Congress can regulate the use of the stream or the stream itself people b. Examples 1) In Darby, lumber was produced for interstate commerce, so even though the goods themselves are harmless, since they used substandard labor and were shipped, Congress Whether Congress can regulate shipment across state lines can regulate is i. It is part of the stream via channels of IC, so Congress can regulate it obvious under ii. Court said Hammer v. Dagenhart was wrong – Congress can prohibit things Channels in interstate commerce & Instruments: 1. Power to regulate does include the power to prohibit Language in 2. Doesn’t matter what is motivating congress, so long as the law is a act or statute regulation of interstate commerce will elude to 3. If it affects commerce, Congress can regulate it IC a. Congress can prohibit the market from transmitting evils 2) In Heart of Atlanta, the ct upheld a federal law prohibiting discrimination by hotels/restaurants as an example of protecting the channels of IC, i. Because discrimination burdened interstate commerce 2. Congress may regulate INSTRUMENTALITIES of interstate commerce a. Instrumentalities themselves are what the stream of commerce flows over: 1) Things that IC move on from State A to State B: RR, phone, mail 2) Shreveport Rate Case: Cong can regulate the vehicle of IC itself – here, railroad i. Court says that when interstate and intrastate are so related that the governing of one affects the governing of both, then Congress controls 1. It’s okay for Congress to have an effect on intrastate commerce when it is regulating interstate commerce b. Instrumentalities include persons or things used to move or moved in IC 1) What goods/persons flow over the stream of commerce and cross state lines i. Ex: Mann Act prostitutes; goods made by laborers not paid min wage 2) Champion v. Ames: Congress can regulate lottery tickets 3) Hotels in gray area, can fit in both categories, analysis is same c. For exam, Channels v. Instrumentalities doesn’t really matter, just pick one and talk sensibly 3. Congress may regulate wholly intrastate activities that exert substantial effect on IC. Activity must be an economic activity that has a substantially effect on interstate commerce a. Cong cannot regulate any activity – Congress can only regulate ECONOMIC activities that have substantial effect on IC (Even if purely local activity) (biggest open ? after Lopez; money not changing hands is not going to prevent ct from reg pot; ct wouldn’t reg alimony – family law is traditional state activity; slippery slope) 1) Is ECONOMIC: home-grown wheat, restaurants catering to intrastate guests i. Wickard: anything can be regulated as long as it is economic and exerts substantial economic effect on IC in the aggregation Ways to Prove: 1. Even if appelle’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 Aggregation exerts a substantial economic effect on interstate commerce and this Congressional Findings Jurisdictional Nexus 2  irrespective of whether such effect is what might at some earlier time have been defined as direct or indirect a. Any activity that in the aggregate has a substantial impact on interstate commerce is within Congress’s power to regulate b. So in the marijuana garden -in the aggregate, it will have a substantial effect. The illegality doesn’t matter – could effect the black market 2. Farming, growing, producing = economic activities ii. Katzenbach: AL restaurant 11 blocks from highway can be regulated by Congress if it is an economic activity that burdens IC 1. Civil rights cases – race discrimination affects economy b/c it’s inefficient iii. We can characterize any activity as economic if we want 1. Think about underlying values – Affect Congress doing its job or more of a concern about proper role of the states in our system a. Might think of whether activity being regulated has been w/ either the states or federal government b. Nation’s economy is not obviously threatened by this activity? c. Is the activity one that we want to call economic activity? 2. Congress’s argument – interest because there are ramifications on IC, so it should be regarded as econ – but not clear def of econ, so argue a. Otherwise Congress can’t do its job v. state autonomy iv. Economic characterization depends on the underlying constitutional principles v. Economic = Prudction, consumption, distribution - Definitely 2) Is NOT Economic: possession of weapon, gender violence i. Lopez: possession is NOT an economic activity, so even if in the aggregate has effect on commerce, it is still not w/in Congress’ power 1. Pre-Lopez, Congress could regulate any activity as long as it had a rational basis for finding the activity has a subst. effect on IC ii. Morrison: gender-related crimes of violence are NOT economic & not directed at instrumentalities, channels, or goods involved in IC iii. Economic activity v. Economic Effect 1. Is it something we want Congress to be able to regulate? 2. Start w/ characterization – econ v. non-econ 3. Then go to const principles – effective government v. state autonomy a. If states could choose, we wouldn’t have uniformity b. But, low on Congress’s radar? (weak), but this is also something left to the states and it’s a slippery slope (GOOD) 4. Ultimately, it comes down to whether it’s stepping on the authority of the states or whether this is a national problem and if Cong can’t make individual possession illegal (for ex.) then it can’t regulate nat. market 3) EXCEPTION: Congress can reach if non-economic if part of a comprehensive economic regulation i. Gonzales v. Raich – Court said Congress could regulate home grown marijuana because very comprehensive statute and in the aggregate this weed could have an effect b. Aggregation Principle: tool for establishing substantial effect can be met by aggregation 1) Re-affirmed in Lopez; wheat is still within Congress’ power 2) Aggregation will apply to tuition aggregating with # of students 3) Would coming out one-way put us back pre-1937 (direct/indirect, commerce/non- commerce)  analytical reason for not accepting use of aggregation in a particular hypo 4. Ways to prove substantial effect, or other 2 categories: a. Congressional Findings  did Congress have a rational basis for determining that activity being regulated has substantial effect on IC? 1) Congress can regulate anything that has a rational basis impact on IC – don’t even have to prove the effect, just articulate a rational basis i. Extraordinarily deferential b. Evaluate Jurisdictional Element  whether there is a connection btwn activity & IC 1) J.E. is something added to description so Congress has power over item – a fix 3  2) If J.E. is in Congressional Act, it is clear to cts that activity being regulated falls under or is limited by one of the 3 approved categories, thus in Congress’ CC power & constitutional i. If stat has a JD element, it will always be valid, so Q will be whether it moved in SOC ii. If none, unless it specifically mentions RR’s, etc., you operate in cat 3, trying to reach activities even though they’re not IC 3) Lopez: after Gun-Free School Zones Act held unconst b/c not valid exercise of Congress’ commerce power: i. Possession is not economic, so law was changed to make it illegal to possess in school zones guns that had passed through IC 4) Pot: instead of banning all distribution of pot, ban all dist that affects IC i. Might say forbidden to possess pot that affects IC E. Limits on Congress’ Commerce Power: 1. HOW TO ANSWER: a. Determine if Act of Congress is authorized by a power in Article I 1) Congress can regulate people, not states 2) Is it a generally applicable law? 3) Are there alternatives? b. Determine if Act of Congress invades province of state sovereignty reserved in 10th Amendment 1) Legislature – NO (NY v. US) 2) Executive – NO (Printz) 3) Judicial – YES (Testa) c. If Congress is attempting to regulate the states as states (via commandeering) or legislate on behalf of federal gov’t, then its attempt will be held unconstitutional 2. Principles of Federalism provide limits on Congress’ ability to federally regulate and limit Congress’ Commerce Clause power: a. 10th AMENDMENT: State autonomy defense – powers not delegated to fed gov’t by Here, Congress is Constitution, nor prohibited to the states, are reserved to the States or people regulating State 1) Aggregation of implied principles that emanate from 10th Amendment Governments & 2) Congress can pass a statute that is a legitimate use of its commerce power, but cannot do Private People so in a way that compels a state to act in a certain way i. By forcing states to implement, enforce, etc. laws b. Consider whether the activity is a traditional area of state regulation 1) Yes – ct may conclude that activity is not economic i. Lopez: Rehnquist mentions areas of traditional state power “where States historically have been sovereign” as outside the area of federal control, including: education, criminal law enforcement, family law 2) No, not traditional area of state reg: Congress may have reasons to regulate i. Global economy, Congress’ ability to effectuate national policy 3. Congressional Attempts to Regulate only the States: a. Anti-Commandeering Principles: 1) State Legislature: Congress cannot commandeer state legislative or regulatory processes to enact a law  statutes that exclusively apply to state legs unconst i. Congress cannot compel states to govern according to their instructions or direct states to pass a state law 1. Citizens would not know who to blame; political process would not be effectual ii. NY v. US: radioactive waste forced on states who didn’t take possession was unconstitutional – can’t force state to take title – 10th amendment imposes limits on Fed government and background principle of const says some kind of reserved state sovereignty 1. Concern of accountability – state legis held responsible for fed actions 2. Imbalancing power between state and federal government iii. Cong may not commandeer the state legis process, but may provide incentives iv. Cong commandeers when it seeks to deploy state sovereignty on Cong’s behalf v. As long as Cong applies laws to states as they would any other actor, they’re permissible – but where law applies only to the states, it may be invalid if it commandeers sovereignty of the states 4  2) State Executive: Congress cannot commandeer state Executive i. Cong cannot compel states to enact or enforce fed regulatory program ii. Printz v. US: gun control act req local law enforcement for back-ground check until nat’l system unconst b/c of anti-commandeering 3) State Judiciary: Congress MAY commandeer state judiciary i. Testa v. Katt: State cts cannot refuse to apply federal law as mandated by supremacy clause – every judge bound by federal law b. Congress can stop short of demand – Non-Commandeering Alternatives by Federal Directive: 1) Conditional Grants – Monetary Inducement: Voluntary Participation by States: fed gov’t offers inducements with $ incentives i. Condition state $ to states on teaching evolution 2) Regulatory Choice: if Cong has authority to regulate area, can give states choice to self- regulate to fed satisfaction, or fed gov’t will step-in and regulate for states (ozone) i. Cong can permit states to discriminate against IC if accept regulatory choice 3) Prohibition – possible cat: suggested in Reno v. Cardon (sell driver lic info) i. No 10th violation: not telling state to do something, telling not to do ii. Not regulating how states reg their citizens, but reg state activities iii. Regulating the states not as a sovereign, but as an object of regulation – nothing to do with deploying state sovereignty on behalf of federal gov’t 4. Generally Applicable Federal Statute: Applies to all ERs, including to states as ERs a. No constitutional bar if it is a general applicable federal statute (Garcia) b. Garcia v. San Antonio Metro Transit: fed statute that says all ERs must pay minimum wage applies to both private ERs and public ERs – generally applicable laws OK 1) National League of cities overruled because the unelected judiciary is not qualified to determine what state functions are “integral” 2) Where there is a legal principle to be applied, the courts should do it, but where the determination rests on a policy issue, the judy is not equipped c. Generally applicable fed law may apply to states b/c 1) People elect Congress and rely on political process; and i. How do we enforce limits on fed power – political limits, voting, etc. 1. System of selecting presidents allows states to exercise some control and make sure pres/candidates are aware of issues 2. Congressional districts come from the states 2) Congress has authority to decide if a generally-applicable law applies to states, d. However, no way of enforcing right: 11th Amendment – State Sovereign Immunity limits Congress’ ability to provide effective remedy for violations of generally applic statutes – exempts states from all suits seeking monetary damages from states 1) 11th Amend: prohibits fed gov’t from allowing individuals to sue the state for $ damages for violating a federal statute in federal ct or state ct i. Immunity applies to both judicial and administrative proceedings ii. Cannot sue in State Court either: 11th Amendment state sovereign immunity can be inferred from penumbral enumerations from Const 2) Hans v. Louisiana – immunity applies to diversity and FQ JD 3) Alden v. Maine – Can’t sue in state court, can’t sue the state unless the state says you can i. Const. history and structure protect state sovereignty and forbid individuals from vindicating rights w/o state consent in state and federal court e. Exceptions: 1) Can sue state – if have Standing – for injunctive & declaratory relief i. If State doesn’t comply w/ injunction, then you could pursue suit against an individual (Kinkopf as governor doesn’t comply w/ injunction) 2) State can voluntary waive its sovereign immunity (incentive such as funding, etc.) 3) Federal Abrogation: fed gov’t has authority to abrogate (annul) state sovereign immunity if it acts pursuant to powers to enforce 13th, 14th & 15th amendments (after the 11th amendment) i. Congress can provide COA & injured party receive $ damages f. THUS, in reality and effectively Garcia means little b/c limited relief to individuals 1) Even though Congress can create a generally applicable statute, 11th amend precludes its enforcement by an individual against a state 2) Can still be enforced against a private entity with private COA 5  F. How to Answer: 1. 1st Question: IS THE FEDERAL LAW VALID? CAN CONGRESS REGULATE THE EXCHANGE? a. Define issue specifically & accurately b. Pot: grown in CA by charitable people; only using CA equipment; no $ changes hands 2. Next: IS ACTIVITY A CHANNEL OR INSTRUMENTALITY (dismiss quickly), OR DOES ACTIVITY SUBSTANTIALLY EFFECT INTERSTATE COMMERCE? a. It does not have to substantially effect commerce: TALK ABOUT AGGREGATE b. Can aggregate activity with all activities of the sort. So if in the aggregate the activity has a substantial effect on interstate commerce, the Congress can regulate the distribution of marijuana – as long as the distribution is economic c. Counter: Would coming out 1-way put us back pre-1937 (direct/indirect, commerce/non-comm) 1) Analytical COUNTER for not accepting use of aggregation in particular hypo 3. Must be an Economic Activity – IS REGULATION OF POT (or X) IS ECONOMIC? a. TALK HISTORY/PRECEDENT HERE b. Questions: 1) Whether or not activity that gov’t is charged with regulating is state commerce that gov’t ought to be able to get to, or 2) Is it an activity which gov’t should be limited from regulating c. In determining what is economic activity, what is persuasive to court is not $, but the underlying concerns: 1) ANALYZE EFFECTIVE-GOVERNMENT VS. LIBERTY: Congress is concerned with preserving effective government, while opponents want to preserve individual liberty i. Congress: concern for regulating pharmaceutical drug schedules, drugs, comprehensive regulation of distribution of meds, safety 1. If can evade regulation, renders Congress’ laws and commercial TALK judgment fare less effective HISTORY & ii. Liberty: this is construction of artificial tests so Congress can regulate what PRECEDENT should be the domain of the state and the individual HERE 1. Facts are stronger here: the need to maintain actual limits on Congress’ power a. From enumerated powers of Constitution: McCulloch v. Maryland, Gibbons v. Ogden b. Congress trying to presuppose something not enum 2) SLIPPERY SLOPE IMPACTS: there will be nothing that Cong can’t reach i. If Congress can regulate this activity, what limits on Congress’ power are left? ii. Any substituted activity could be IC b/c of opportunity cost. iii. Argue: 1. This is purely local 2. This is purely charitable 3. This is not commerce 4. FINALLY CONCLUDE – are there any stronger arguments a. Recent precedent, stronger arguments, etc. II. SEPARATION OF POWERS: Horizontal allocation of power among braches – Executive, Legislative, Judicial = inevitable friction safeguards against tyranny and promotes efficiency/effective gov’t A. Federalist Papers (Madison) advocate for Separation of Powers – background: 1. Federalist #10: Principle concern is factions, best way to remove influence of factions is to remove effects a. Having a large republic will result in many factions, but no majority. Lots of people and interests 2. Federalist #47: rebuts arg that Const violates principle of SOP 3. Federalist #48: Constitution should not rest on legal definitions of power to do job of keeping powers separate; legislatures are well-positioned to drawing other powers into their own sphere a. Can’t trust mere Parchment barriers, like Const or Bill of Rights to protect from tyranny b. Representative Republic: split Houses so harder to legislate harder to oppress; allows for deliberation for accountable decision-making w/ nat’l interest over private interest 4. Federalist #51: Madison defends why our system of checks & balances in Const is way to go a. SOP responds to concerns of faction: Must structure gov’t & political process with internal checks to counter ambition with ambition/abuse of other branches B. Text of Constitution applicable to SOP: 1. Article I: vests “herein granted powers” in the legislature 6  a. Necessary & Proper Clause – Art I, § 8 1) “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 gov’t of the US, or in any Dept hereof” b. Bicameralism & Presentment – anything less is an unconstitutional one-house veto 1) Bicameral Requirement (Art I, § 1, cl. 7): no law shall take effect without concurrence of the prescribed majority of both Houses i. Constitution lists times bicam not needed: impeachment, treatises 2) Presentment Requirement (Art I, § 7, cl. 2/3): every bill which shall have passed the House of Reps and Sen shall, before it becomes law, be presented to the Pres of the US c. Art I § 8 cl. 11: Congress has power to declare war d. Art I, § 8, cl. 12/13: Congress has power to raise & support army 2. Article II vests executive power, but Art I only vests legislative power in an enumerated list a. The enumeration power presupposes something not enumerated 3. Article II: vests Executive power in President a. Note: no executive privilege in Constitution, but there is some: b. Vesting Clause (Art II, § I): “The executive power shall be vested in a President of the USA” c. Commander in Chief Clause (Art II, § 2): President has the power to invade once Congress declares war (but since he can still get us started, War Res of 1973 passed saying Pres may only introduce troops if: 1) Declaration of War 2) Specific statutory authorization 3) National emergency created by attack on US d. Take-Care Clause (Art II, § 3): “President shall take care that the laws be faithfully executed…” e. President’s Appointment Power (Art II, § 2): Pres “shall nominate...with the advice and consent of the Senate, shall appoint Ambassadors, other public ministers and consuls, judges of the USSC and all other officers of the US…but Cong may…vest the app’t of such inferior officers as they think proper, in the Pres alone, to the courts of law, or in the heads of departments.” f. NO Constitutional provision addresses removal power 4. Takings Clause (5th Amendment) a. “No person shall…be deprived of life, liberty, or property, without due process of law b. Textual limit on powers C. Tensions between Congressional & Presidential Power: 1. WAR POWER 2. EXECUTIVE DETENTION OF ENEMY COMBATTANTS 3. APPOINTMENT/REMOVAL 4. EXECUTIVE PRIVILEDGE 5. BICAMERALISM & PRESENTMENT D. SOP FRAMEWORK – Executive Authority to Make National Domestic Policy 1. When should Ct take a formalistic approach & when should a functional balancing approach? a. Formalistic approach – follow text and framers’ intent: 1) Used in (1) & (2) when reason to worry that checks & balances won’t work or when conceivable threat to liberty 2) Statutes often struck down under formal approach even if there is only a possible infringement on liberty 3) Put a label on power exercised to see if branches exercise of it is constitutional i. Problem: Don’t know which powers are executive, legislative or judicial; can make powers appear to be the power you want b. Functional balancing approach – guided by Federalist Papers & SOP values 1) Used in cases where it’s better for politics to fight it out 2) Statutes often upheld under the functional approach unless there is a very real infringement on liberty 3) Must show high threat to liberty for Ct to strike 2. CATEGORY 1: EXPRESS TEXTUAL PROCEDURE: where Const expressly sets forth procedure in its text that procedure must be followed to the letter & level – Is there an express textual procedure in the Constitution? (FORMALISTIC) Where a procedure, Congress must comply – NO DEVIATION a. DOES VIOLATE EXPRESS TEXTUAL PROCEDURE 1) Clinton v. NY (1998, line item veto): 7  i. Congress cannot delegate its legislative power by allowing the President to amend an act passed by Congress without Bicameralism & Presentment ii. Cancellations are repeals, must go through B/P. iii. Const text grants prez blanket veto, amount to exclusion by expressing one, statutory powers can be exempted, const veto power > stat veto power Bicameralism 2) INS v. Chadha (1983): Congress cannot have a one-house legislative veto & i. If legis exercises power – Bicam/present; If exec/judy does: no bicam/present Presentment ii. B/c it fails to conform with Bicameralism & Presentment and alters the legal rights and duties of a person outside the legislative sphere And iii. If it’s in legis sphere, cong can’t do it w/o B/P. But if in legis sphere (capitol Appointments police, subpoena for hearings, etc.), B/P not necessary 3) Buckley v. Valeo (1976): Congress can’t create an agency that can alter legal rights/duties i. Cong can’t give appointment power of FEC officers to itself b/c Const allows Pres to appoint officers in the Appointments Clause – since Cong can’t alter rights outside legis sphere, and FEC is made by Cong, FEC could bypass B/P b. DOES NOT VIOLATE EXPRESS TEXTUAL PROCEDURE 1) Any legislative act that conforms to bicameralism & presentment provision 3. CATEGORY 2: ANTI-AGGRANDIZING PRINCIPLE: no branch may aggrandize its own power at expense of another branch – Is there an anti-aggrandizing principle in Constitution? (FORMALISTIC) a. Anti-aggrandizing is an action of Congress where Cong trying to give itself or delegate power it Bolstering own power does not have, at the expense of another branch at the expense of 1) Only concerned with affirmative granting of power, not undermining competition another’s power: b. ASK: Does this give Congress (or someone Congress controls) new power? 1) Congress may alter the legal rights and obligations outside the legislative sphere when it Removal (resuming uses bicameralism & presentment power) 2) Court is not deferential/functional – doesn’t care that it is hard for Congress to do something because Const. strikes this balance c. Applied formalistic, no funct analysis – doesn’t matter if Congress doesn’t actually control, it’s enough that the power rests in their hands – NO DEFERENCE d. DOES VIOLATE ANTI-AGGRANDIZEMENT 1) INS v. Chadha 2) Myers v. US (1926): Pres fired P’land postmaster in violation of federal law i. Justice Taft of Maj held: the law was an unconstitutional infringement on President’s power b/c the power to remove is incident of the Appointment Power – Officers must be removable at will of prez for reasons of history/funct ii. Congress cannot grant itself power (aggrandize) it did not have when it set its CONGRESS Acting limits on the Pres’s authority to remove an executive official 3) Bowsher v. Senate & House (1986) i. Congress cannot grant an officer under its control (Comp General) executive power that it does not have ii. Balanced Budget Act unconstitutional b/c Comp Gen was delegated executive power while under Congressional control b/c they had removal power 1. Power to remove is power to control 2. Even though the power was limited, Cong could still use it for control 4) Youngstown Sheet & Tube (1952, Steel seizure case): 6-3 ct declared executive seizure of steel mills unconstitutional b/c presidential order amounts to law making, a legislative function entrusted in Cong in good times & bad PRESIDENT Acting: i. In domestic arena, Presidential authority must stem from Constitution or statute, President may execute and President cannot aggrandize his war power under guise of Take-Care Clause laws, NOT make laws by taking away Congress’ legislative power ii. President has power in 3 ways: (Jackson concurrence) 1. P + C: With express or implied authorization of Congress Exception to P+C: a. Strongest presumption with wide judicial latitude Executive Detainee b. Only illegal if it would be illegal for prez to do this Applies when Cases 2. P: Pres acting alone; Cong has authority but hasn’t spoken to it PRESIDENT is Go thru Youngstown specifically; Overlapping powers & Cong is silent Aggregating analysis, but still must pass due process a. Balancing Analysis – Congress has acquiesced Power 3. P – C: P & C have concurrent powers, but President relies on own powers without a Congressional act (ex. Power to pardon) 8  a. Scrutinized with caution b/c of const equilibrium b. Prez prevails when Congress is precluded from acting here c. If Const. divides the power between 2 branches, Prez cant win iii. Due Process Considerations 1. Balancing individual interests v. Government 2. Individual liberty v. preventing enemy combatants from fighting e. DOES NOT VIOLATE ANTI-AGGRANDIZEMENT 1) Dames & Moore v. Ragan (1981): Iran hostages released in an executive agreement, not ratified by Senate, in exchange for US transferring frozen assets to Iran & moving all P+C Iranian cases from US cts to a tribunal Anti-Aggrandizement i. President is given wider latitude in implied powers in foreign arena not violated ii. This falls under P of Youngstown: strongest presumption when executive agreement has had continuous & systemic precedent f. In habeas corpus issues, the most important factor is who is in control TAKING 4. CATEGORY 3: GENERAL STATEMENT OF SOP PRINCIPLES: No branch may act in a way that AWAY prevents another branch from fulfilling its constitutional role – Is there a General Separation of Powers POWER principle? (FUNCTIONAL) (Generally use this category if not in 1, 2, or 4). from another a. Questions to Ask: branch 1) What does entity do? 2) Is this messing around in business of or is it a core power of another branch? 3) Does the act prevent a branch from fulfilling its constitutional role? b. Next, use BALANCING TEST of interests of branches (from Morrison) (Highly deferential and functional b/c principle is to let politics fight it out) 1) Does infringe on an inherent power of another branch? 2) Is the office purely executive? Quasi-Judicial? Quasi-Legislative? 3) Does act in question infringe on another branch’s constitutional role? c. Has congress prevented another branch from fulfilling its const duty, from accomp. Its const functions? Only if the statute prevents the other branch from fulfilling its role will it be struck down. Court is deferential to branches and interprets functionally d. VIOLATES GENERAL SOP 1) NY vs. US: States cannot waive their federalism concerns 2) US v. Nixon (1974): Nixon tried to argue exec privilege against judiciary to withhold taped conversations from criminal subpoena – ct can’t review case Doesn’t fall into either category: i. Even if ct could review, P has Executive Privilege = General SOP Gen SOP & Anti-Agg (pres trying ii. Absolute E Priv = military, diplomatic secrets, etc. (we want candid advice) to exercise judical power) iii. General pres comm’s conditionally priv – Balanced against other interests (due process, administration of crim justice) – This would prevent Judy from job 1. Limited exec priv only deals w/ criminal cases 2. Limited doesn’t apply in civil/congressional cases = absolute iv. Refusing request doesn’t prevent Pres from fulfilling duties of job 3) Nixon v. Fitzgerald: Pres absolutely immune from civil damage liability for his official acts in absence of explicit affirmative acts by Congress (we want prez to be free to exercise official duties w/o fear of suit) i. If Cong passes stat allowing suit – look at general SOP: Congress is preventing prez from fulfilling const role, but pres should have vetoed, so uphold it 4) Clinton v. Jones (1997): i. President has no immunity for non-official acts under Executive Privilege ii. Civil lawsuit based on actions he took before he became President does not interfere with his ability to do his job iii. If this is a problem -courts will weed out frivolous suits or Cong will act e. DOES NOT VIOLATE GENERAL SOP 1) Humphrey’s Executor v. US (1935): FTC Act only allowed removal for cause & FDR fired him anyway. But, Pres does not have unfettered removal power Overruled by i. For Congress to restrict FTC officers to only be removed for cause doesn’t Morrison – violate gen SOP b/c FTC is independent regulatory agency DON’T USE ii. Held: Congress could limit removal power for some officers that are to be independent based on character of office, as long as President still has power to remove officers or prosecutors for cause 1. Then does not prevent President from fulfilling his role 9  iii. Contrast with Myers, which was a purely executive office 2) Morrison v. Olsen (1988): i. Judges can assign a prosecutor without violating gen SOP principle Legitimately limited 1. Limited Pres’ power, but did not totally take away Pres’ power  Pres ii. The law allowed independent counsel to investigate Prez, VP, cabinet, Justice still able to perform Dept (doesn’t go lower than Secretary), AG, Dep AG, Ass. AG, heads of each his constitutional role department and head of prez’s political party 1. Law allowed AG to term independent counsel only for Good cause iii. B/C leaves President some removal power, so President can still take care that the laws are faithfully executed. iv. Congress limited prosecutor’s duties, jurisdiction & tenure v. Dissent: Scalia said power is quintessential executive & usurps Pres’s power – check should be political, not congressional vi. Inferior officers may be appointed w/o consent of senate: temporary, appt’d to handle matter, office only exists when issue is alive; can’t do anything other than for which he was appointed – how does office function, where in rank does IC fall – Interbranch appointments permissible if some congruity between the appointing branch and the office being fulfilled vii. Standard: whether restriction prevents pres’s from perf. Const. duties 3) Mistretta v. US (1989): i. Judges can assign sentencing guidelines b/c judiciary function, so does not impede on legislature ii. Ct would be deferential if Congress decided via bicameralism & presentment 5. CATEGORY 4: NON-DELEGATION DOCTRINE: no branch may delegate its constitutional authority to anyone else – Is there a non-delegation principle? (FUNCTIONAL) a. IMPOSSIBLE TO VIOLATE if there is an INTELLIGIBLE PRINCIPLE 1) Is there an intelligible principle in Congress’ delegation of power? i. Answer is always Yes! Court can find an intelligible principle on its own 2) Extremely deferential standard of view – defers to legislative branch as to how to reallocate power among them b. Once Cong has decided gov’t should do something, it can delegate rulemaking power as long as accomp. By intelligible principle (courts often find one in stat structure/history if Cong forgets) c. Why?  Federalist Papers 1) Cts job is not to protect Congress’ power; each branch will protect itself d. May delegate for various reasons: Volume, flexibility, punt, expertise 1) Reasons to worry? Too much power to prez, lack of accountability, etc. e. Non-Delegation only held to be VIOLATED during New Deal in these 2 cases: 1) Panama Refining v. Ryan (1935): statute authorized President to prohibit transportation of excess petroleum  unconstitutional delegation i. Text problem: Congress has power to regulate commerce under Commerce Clause. Ct held unconstitutional b/c this goes beyond the limits of permitted delegation ii. Statute lacked limits on what prez can/can’t do – he had unlimited discretion 2) Sick Chicken case (1935): statute authorizing trade associations to come up with their own fair competition codes with Presidential approval i. Unconstitutional delegation of power ii. There is no opposite of fair competition, so this is delegation running riot f. EXAM: determine if Congress has the authority under commerce clause in first place 1) Ex. Can Congress regulate hot oil? g. Cases holding Non-Delegation Doctrine NOT VIOLATED: 1) Field v. Clark (1892): statute authorized pres to suspend imports if country wasn’t reciprocating: Constitutional Delegation of power i. Text problem: Cong has power to regulate foreign commerce under the Commerce Clause ii. Ct upheld delegation b/c Pres was in fact-finding role, not legislative iii. Functional decision 2) Mistretta v. US (1989): Ct approved broad delegation of power to US Sentencing Commission (part of judicial branch) for sentencing guidelines i. Delegation of legislative power to the judicial branch constitutional 10  ii. Congress can delegate if it clearly delineates general policy, agency to apply it, and specific boundaries of delegated authority = INTELLIGIBLE PRINCIPLE iii. As long as there is an intelligible principle, it’s not delegating legis power iv. Legis power = power to initiate 6. Cats 1 & 2 are interpreted formalisticly, Cats 3 and 4 are deferential and functional 7. Whose action is being challenged? a. Prez? – Jackson’s Steel Seizure Framework b. Congress -Morrison c. Frameworks are essentially the same – whomever files suit will tell you which cat to use 1) Prez wins in cat 3 if has preclusive power – wins in General sep of power (cat 3) if cong has prevented pres from perf’ing his role – so they’ve gotten into something preclusive d. Where you argue is which category you fit in III. JUDICIAL POWER: Article III A. JUDICIAL REVIEW: the power to strike down statutes as unconstitutional 1. Article III 2. Marbury v. Madison (1803): Court establishes the power of Judicial Review of executive actions a. Established the authority for the judiciary to review the constitutionality of executive and federal acts – judiciary can strike down statutes as unconstitutional b. Judiciary most vigilant in laws that operate to prevent democratic process or oppression of groups that can’t protect selves through political process c. When Jefferson elected, he instructed SOS Madison to withhold the undelivered presidential judicial commissions (Marbury confirmed during Adams’ term) 1) Ct held it lacked jurisdiction to hear the case, holding: i. Could only hear appeals or specific cases of original jurisdiction, which screwed Marbury, but also held that TEXT & STRUCTURE of the Constitution affords the Ct the right of judicial review 3. Baker v. Carr: Expanded Marbury – Court is ultimate interpreter of the Constitution (as long as not political question & has standing) a. So give new label: Have equal protection claim, a judicially manageable standard, but still not justiciable; Ct decides what Equality means, the ultimate power grab B. JUSTICIABILITY: limitations placed on federal courts by the Case – or – Controversy Doctrine 1. CASE OR CONTROVERSY must exist a. Art III, § 2, cl. 1 1) Actual Adverse parties 2) Legally binding judgment b. Ct prefers to answer questions in adversarial setting 1) Ensures that cts only hears cases or controversies 2) Ensures that the Ct retains adversarial process (zealous representation) 2. No ADVISORY OPINIONS – prohibited 1) Art III – text of Cont only allows judicial power to cases and controversies 2) However, federal law permits Declaratory Judgments i. Here, there is a “v”; have adverse parties & case about something imminent, and what is up for grabs is a legally binding remedy 3. POLITICAL QUESTIONS – non-justiciable: allegations of constitutional violations that federal cts will not adjudicate; leaves some constitutional questions unresolved a. 2-Test to determine if Political Question: 1) Determine the Question 2) Does question fall within a constitutional or prudential consideration? i. Textual Commitment: text of Const commits ? to another branch Constitutional: - 1. Pardons  textually committed to Pres, not to Cts - most important; ii. Judicially Manageable Standards – is there one to decide the case? - absolutely “no” 1. Fuzzy category – matter of prudence or const law? - must satisfy a. Will take as a matter of prudence if text committed to someone else iii. Policy: policy determination that is inappropriate for Cts to make  does case involve judicially manageable standards? 1. If no, ct not equipped to make policy decisions Prudential: iv. Respect for Coordinate Branch: Is there a reason for Ct to defer to legislative Discretionary or executive judgment that already has been made 11  1. Should respect, if textually committed to another branch v. Adherence: need for adherence to a decision already made vi. Embarrassment: for multifarious pronouncements for what const means; Primary application in foreign affairs b. Reasons that Political Questions are Nonjusticiable: 1) Maintain SOP; Minimize judicial intrusion into operation of other branches; Allocates decisions to the branch with superior expertise c. Examples of what the Ct will not answer – non-justiciable: 1) Congressional membership: Powell v. McCormack i. Powell excluded from House seat; self-governance issue for House 2) President & Foreign policy: Goldwater v. Carter i. Presidential actions terminating treaty is political, not judicial role to decide; Foreign affairs textually committed away from judiciary 3) Challenging impeachment: Nixon v. US i. Textually committed to Senate to decide impeachment route ii. No judicially manageable standards in how to run trial 1. Specifically reserves criminal prosecution, as sep process 2. Rehnquist infers that impeachment withheld from Ct, too C. STANDING: P must suffer actual or threatened injury resulting from alleged illegal action 1. Game = LINE UP CASES ON BOTH SIDES & USE CASES TO SUPPORT YOUR ARG a. Ask: Who gets to bring a lawsuit? Is the Plaintiff the proper party? b. Game is whether terms are const. or prudential elements; if cts want to hear case, they will couch terms in Prudential terms, so if not satisfied can get around 2. Doctrine of Standing: fed cts scrutinize parties to ensure they have a particular interest in case a. Rooted in Art III – Enforces the Case or Controversy requirement b. Cases that involve standing usually involve the litigant’s failure to satisfy the constitutional requirements that a claim must reflect 1) Assume that question is unconstitutional & there was injury 3. 3 CONSTITUTIONAL Requirements for Standing: if any of 3 missing no case or controversy a. Injury-in-Fact: P must have suffered an injury in fact or invasion of legally-protected interest, which is both (1) concrete & particularized & (2) actual or imminent 1) MUST FIRST IDENTIFY HARM & INJURY! 3 Constitutional i. Causation depends on how you define injury, as does redressibility Requirements MUST ii. What kinds of injuries count? EXPANSIVE view/definition of injury: ALWAYS be satisfied 1. Physical; Economic; Access; Aesthetic; Established in gov’t to have standing, even if enactments/statutes Congress waives by iii. Game begins with defining injury – eye on Causation & Redress statute the Prudential 1. Alimony Considerations a. Right to Money  no standing b. Right to Process to ask for money  standing 2) Concrete & Particularized (Standing) = Personal to P i. Friends of Earth v. Laidlaw (2000): personal injury against wastewater plant that polluted prevented use, despite lack of harm to environment  Injury was the lack of access ii. Changing facts of Lujan: if petitioner was researcher, would be more likely to prove a specific basis of injury 3) NOT Concrete or Particularized (no standing) = Not Personal to P i. Lujan v. Defenders of Wildlife: Injury to cogniziable interest (being able to see animals in their habitat), but injury of wanting to visit wildlife in future was not concrete – they could remedy this by buying plane tickets, etc. ii. Bush v. Gore: case had to come from his injury – not the violation of FL voters’ rights – but his interests and the voters’ were intertwined 1. Be careful not to confuse injury with right! 4) Imminent = standing i. Arlington Heights v. Metro Housing (1977): builder w/ plans had standing 5) Not Imminent = no standing – similar to generalized grievances i. Warth & Seldin (1975): home builders: ct held no concrete or imminent injury b/c builders had no specific plans, only speculative 12  ii. Lujan v. Defenders of Wildlife: a vague possible future injury was unsatisfactory to establish standing without a concrete travel plan to see animals b. Causation: There must be a causal connection btwn the injury & conduct complained of – injury must be fairly traceable to (not necessarily caused by) D’s conduct; can’t be result of 3rd party 1) Found connection btwn injury & conduct = standing 2) Found no connection btwn injury & conduct = no standing i. Warth v. Seldin: ct held the zoning ordinances didn’t cause Ps’ injury; injury caused by builders not building suitable housing/market forces ii. Allen v. Wright (1984): P suing IRS had no standing b/c it was speculative that changing a school’s tax-exempt status would change the school’s discriminatory status – remedy would depend on 3P’s c. Redressability: It must be likely, not just speculative, that injury will be redressable by a favorable decision; ct must be able to prove a remedy 1) Held that court could provide a remedy: i. Friends of Earth v. Laidlaw: aesthetic injury caused by failure to enforce Clean Water Act with fines is not speculative 1. Enforcing fines will remedy the situation (although ignored that polluters may pay fine, but not stop polluting) ii. Mass. V. EPA – Even though foreign greenhouse gasses have a greater effect, Court can still redress because small decrease may have an impact 2) Held that court could not provide a remedy: i. Warth v. Seldin: P’s complaint was they wanted to live in town & couldn’t afford it b/c of zoning restrictions; however, suing Zoning Bd wouldn’t provide relief, b/c depends on efforts of 3rd parties to build housing  no avail. remedy ii. Lujan v. Defenders of Wildlife: US gov’t was only a small contributor in project, so enforcement could not be guaranteed 4. 3 PRUDENTIAL Elements for Standing: not required by Const, but Congress can waive by issuing statute (absent authorization from Cong, ct won’t hear case) – must still have 3 Const a. NO Generalized Grievances: Interest in having gov’t obey laws is too generalist; particular injury to a taxpayer is not sufficiently particularized & is generalized; but violations of Establishment Clause (direct subsides or tax breaks) are particularized 1) Found only a Generalized Grievance = NO Standing i. US v. Richardson: CIA not required to disclose its classified budget b/c provision did not create an individual right to the information 1. Law is in Constitution, not statute that Congress has written 2. Taxpayer injury is not sufficiently particularized ii. Lujan v. Defenders of Wildlife: provision for citizens to sue written incorrectly to override prohibition of generalized grievance – Cong must identify the individual interest 1. It’s not particularized b/c Cong never created right to see animals iii. Frothingham v. Mellon: taxpayers have no interest when money is shared with millions of others 2) Found a Particular Injury b/c Congress created it = Standing: i. FEC v. Akins (1998): voters could challenge FEC to report disclosures b/c Congress created the personal right to information, overriding generalized grievance argument ii. Whistleblower: b/c Congress creates right to sue on behalf of US 3) Must sue for individualized harm, numerocity does not make a general grievance though b. NO 3rd Party Grievance: complaint must be P’s own right 1) When Interests are entwined, they may be the same interests = Standing: i. Craig v. Boren: different drinking ages by gender, and bars could sue b/c rights of buyers & sellers are intimately bound as to be 2 sides to the same transaction c. Right created must be within Zone of Interest: 1) Almost never comes up D. Animal Nexus: anyone who has an interest in studying these animals has an interest, but there must be alimit, and it doesn’t mean you’ve been actually/imminently harmed E. Vocational Nexus: anyone with professional interest can sue (if your occupation involves the animal) – scalia says this is also invalid b/c anyone who works w/ the animal anywhere in the world is outside the limit F. MOOTNESS: Case cannot be moot: if the case no longer exists 13  1. Actual controversy must exist at all points of review, not just at time of complaint 2. Some exceptions – like those that evade review but are capable of repetition a. Roe v. Wade: gestation period too short for ct to review G. RIPENESS: Case must be ripe – not ripe if a case has not happened yet 1. To prevent premature adjudication IV. DORMANT COMMERCE CLAUSE: How Constitution Limits Powers of State Governments A. Federal limits on state power to regulate national economy include the Dormant Commerce Clause & exercised power that has not been challenged  states cannot discriminate against out of state commerce when regulating their own economy 1. Prevents protectionism by states b/c it is contrary to free market 2. Protects out of state interests against oppressive, in state regulation 3. Principle & Purpose of CC: create single national market; integrated national economy B. Dormant Commerce Clause – congress is silent; has taken no action 1. DCC is negative implication of Commerce Clause 2. States are prohibited from legislation even though Cong is silent b/c idea of Commerce Clause is a free nat’l market w/out state-protectionism, & regulation by states is inconsistent w/ principle a. Constitution does not require a national free market, but leaves it up to Congress to decide to what extent we want discrimination, protectionism, segmentation b. Gibbons v. Ogden: exclusive national commerce power co-exists with state power to enact legislation that might affect commerce – Inspection laws, Quarantine laws, etc. 3. Dormant Commerce Clause is an implied power of the federal gov’t in the Supremacy Clause a. If there is a conflict btwn federal & state law, federal law wins 4. Default rule – if a state loses a DCC issue, it can seek Cong to overrule (instead of const amendment). C. Subsidies vs. Tariffs/Taxes: Ct has said that subsidies are permissible 1. From competitive standpoint, no difference btwn subsidy & tariff = state has conferred a benefit only to in- state producers; state bears no cost. However, only subsidies are permissible 2. Ga can attract computer tip manufacturers by giving subsidy to in-state manuf 3. But see West Lynn Creamery: state levied a uniform tax then gave subsidy kick-back only to local producers & violated DCC – funds were in Segregated Fund a. Same as tariff, b/c it essentially eliminated tax for in-state producers; segregated fund 4. General Treasury: (Ct has not answered – but still serves as tariff) When deposit subsidy funds in general treasury, and not separate fund, making those funds available to every interest in state a. Political process serves as check on econ protectionism giving of subsidies b. But with tariffs, no representation reinforcement 5. What is discriminatory about subsidy depends on where subsidy comes from a. If it’s a tariff on in/out of state producers, but only in-state gets sub, then discriminatory 6. Carrots are okay, the stick is not (subsidies okay, but penalties on out of state interests are not) 7. States cant impose a tax on only out of state a. Can impose a tax on all chips; can subsidize instate interests D. Framework to Evaluate if a state statute violates Dormant Commerce Clause: Discriminatory vs. Burden 1. IS THE STATE LAW DISCRIMINATORY? 2 types of discrimination: facial; de facto Most important argument/answer is with this first question a. FACIAL: Overt laws are facially discriminatory: protect local interests at expense of out-of-state interests, impair national economic vision, & violate DCC 1) Philadelphia v. NJ (1978): NJ law prohibiting import of solid waste from out-of-state held be economic protectionism i. State “purpose” of health is overridden b/c real reason held to be economic protectionism ii. Commerce = provision of service (space in landfill) for a fee iii. Statute is economic protectionism: costs lower for NJ operators; higher for out of state operators who must go to other states iv. Per Se Invalid Test, b/c discriminatory statute: 1. Legitimate interest: health of its citizens 2. But Reasonable Non-Discriminatory Alternatives are available: moving garbage interstate is not what’s dangerous (as with quarantine laws) a. On test, will prob need to come up w/ a non-disc alternative v. Maine Baitfish case is the only case to satisfy the Per se test – argument about protecting streams against foreign parasites 14  2) Do the things being treated differently, are themselves alike? Do what being regulated compete with each other? Compare apples to apples. i. General Motors v. Tracy: regulated and unregulated natural gas are not alike; are provided to different markets 1. State can treat differently under tax regime; not disc 2. Focus first on whether the items that are treated differently are for all other purposes the same (Apples v. Oranges) ii. Camps Newfound v. Town of Harrison: state property tax exemption unconstitutional on non-profits whose clients are from in state b. DE FACTO: Non-overt laws in purpose or effect are de-facto discrim – by burdening interstate commerce for favoring local interests at expense of out-of-state competitors 1) Ex.: GA passes law that all cola sold must be from red can (coke) i. State’s rationale: protect consumers from confusion; red can is cola ii. Facially neutral, but effect is discriminatory – only coke can be sold iii. Discriminatory Purpose not hard to find, too – help local coke market 2) DO NOT VIOLATE DCC – state law is valid – PUT UNDER PIKE i. Henneford v. Silas (1937): SEE UNDER PIKE ii. Breard v. Alexandria: SEE UNDER PIKE 3) Non-Overt in Purpose – discriminatory in PURPOSE  VIOLATES DCC i. Look to see if purpose is real or flimsy 1. when Purpose real/non-discriminatory & minimal effect = ct says law not discriminatory (Exxon) NO  go to Pike 2. When Purpose is real & non-discriminatory, assumption that effect is real = YES – Per Se invalid test ii. Baldwin v. Seelig (1935): NY law stabilizing milk prices w/ minimum price for milk producers to sell to NY dealer held to be discriminatory 1. Even if go out-of-state to buy, law says still must pay min NY price if buy out-of-state in order to sell within NY 2. State cant protect local econ interests by limiting access to local markets by out-of-state sellers & eliminating other states’ advantage 4) Non-Overt in Effect – discrim effect is εε of purpose  VIOLATES DCC i. Look to see if effects are extreme, costly; burden on all states ii. Bacchus Imports v. Dias (1984): HI statute excepting local-grown brandy from state liquor tax violates DCC 1. Because law enacted to promote & benefit local pineapple wine industry 2. Effect: create tax benefits exclusive for HI corporations 3. cts don’t want to call state’s liars iii. Hunt v. WA Apple Ads (1977): NC law held invalid b/c required apples shipped into NC bear only US grade (WA had its own grades) 1. Facially neutral – law applies equally to all apples 2. Discriminated in favor of local growers when non-discrim alternatives were available; undermine WA comp advantage 3. Effect: only WA growers have to incur cost by changing grading & marketing; burden entirely out-of-state 4. If client industry, argue Hunt iv. HP Hood & Sons v. DuMond (1949): milk hoarding for local-consumption prevents out-of-state sales violates DCC 1. Inhibits interstate movement of goods c. If YES – law is discriminatory & per se invalid under Per Se Invalid Test: 1) Is there a legitimate state interest? i. Only legit state interest in ME baitfish (intro of non-native parasites could cause environmental havoc); Like quarantine laws 2) Is there a non-disc alternative for achieving state interest? Is it least restrictive means? i. Hard to satisfy. Always & Likely that alternative available 1. Example – subsidies d. If NO – still subject to commerce clause scrutiny  Balancing Test (BELOW) 2. “NO” – LAWS ARE SEEMINGLY NEUTRAL 15  a.If the law is non-discriminatory – treats in-state & out-of-state the same – apply the PIKE BALANCING TEST: presumption of validity unless the Burdens on Interstate Commerce are clearly excessive in relation to Benefits to State 1) VALID Presumption – if answered “NO” – law presumed valid 2) Burden must clearly exceed benefit 3) Weigh state’s interest, promoting health, safety & welfare of cit with burdens 4) Ct will uphold the law as long as it can find a rational basis b. BENEFITS OUTWEIGH BURDENS: does not violate DCC & held to be valid 1) Exxon v. Governor of MD (1978): MD law prohibiting petroleum producers from also operating retail store didn’t favor local producers – MINIMUM EFFECT/LEGITIMATE PURPOSE  goes to balancing Strong legitimate i. No, Law not discriminatory on face – does not distinguish btwn in-state & out- purpose & minimum of-state companies in retail market effect 1. But no in-state producers; all integrated gas stations owned by out-of- state; independent stations owned by 99% in-state 2. Purpose of law not obviously discriminatory, even though effect is: MD was making sure free-market actually operates ii. Did not prohibit flow of interstate goods iii. If client state, argue Exxon STRONG non- 2) MN v. Clover Leaf Creamery (1981): MN state law upheld as not violating DCC b/c OK discriminatory to ban non-returnable plastic bottles b/c burden is minor purpose override i. Strong Non-Discriminatory Purpose – bio hazards –override any small small discriminatory effects (only instate paper manufacturers, no plastic) which might discriminatory have occurred as bi-product effect ii. Law not facially discriminatory – treats all paper/plastic man same 1. But, MN has big tree/paper industry; no plastic industry – so burden entirely out-of-state plastic industry iii. Benefit – plastic trash; Burden – minor & could fall in-state 1. Burdens imposed by MN’s law fall on in-state milk industry, represented in MN political process (as opposed to WA apple growers in Hunt) – cts can let them fight out 3) Breard v. Alexandria: city ord prohibiting door-to-door sales const i. Strong Non-Discriminatory Purpose – privacy –override any small discr effects which might have occurred as bi-product ii. Not facially discriminatory; ct says treated equally 1. Arg that disc: local retailers benefit b/c don’t have to attract market iii. Not comparing apples: door to door sales v. retail marketing iv. Purpose: here, ct believes city’s purpose legitimate to protect privacy 4) Henneford v. Silas (1937): WA tax of items purchased in OR where there is no tax held not to violate DCC (contrast with Baldwin) i. Use Tax did not undermine competitive advantage ii. Instead, prevented WA sales tax from being a disadvantage to its retailers; Compensatory tax to equalize sales tax OK - No effect 5) Argue Both Ways i. Hunt – on these facts, law is disc ii. Exxon/Cloverleaf – not disc c. BURDEN IS CLEARLY EXCESSIVE OF BENEFIT: violates DCC; law not valid 1) Pike v. Bruce Church (1970): AZ statute requiring cantaloupes be processed in-state with label of origin unconstitutional i. Not for safety 2) Kassel v. Consolidated Freight (1981): IA law prohibiting double semis unconstitutional (opposite of Barnwell) i. Serious burden on interstate commerce outweighs safety 1. Law cannot answer questions to safety ii. 7 justices: look at purpose created by lawyers – promotes safety 1. Dissent Brennan: should look at actual protectionist purpose – limit interstate truck traffic 3. IS THERE AN EXCEPTION?. a. Congress can consent to state laws that discriminate would otherwise violate the DCC 16  1) Congress cannot authorize discrimination in violation of the Privileges & Immunity clauses or the 14th Amendment 2) McCarran Act: ensured continued state authority over insurance regulation & tax from acts of Cong that invalidated, impaired or superseded state authority b. MARKET PARTICIPATION DOCTRINE: exemption to DCC 1) If a state produces goods and sells them as a market participant, and not acting as a market regulator, state can discriminate and DCC does not apply i. Market power vs. coercive power 2) To apply, market participation must occur within the market the state is participating in, not in after-market 3) Preservation of a single national market is still goal (even though MP exception allows states to remove selves from nat’l market) 4) Still must evaluate if regulation violates DCC & if state is acting only as a market participant to get the exception 5) Net Result of MP: switch default rule (discriminatory state commercial regulation impermissible, unless Congress decides to make ok) i. Here: Discriminatory market behavior is permissible, unless Cong forbids it ii. Market Participant Exception NOT applied – still violates DCC 6) South Central Timber v. Wunnicke (1984): Alaska law required timber be processed in state before shipped for sale – usually facially discriminatory, but AK tried to claim it was exempt b/c it was a market participant. Discriminates against out-of-state processors & imposing cost on purchaser i. Unconstitutional violation of DCC because law Protectionist ii. Market Participant Doctrine does not allow imposition of conditions just because state is a market participant iii. AK trying to reg more than transaction – processing after sale as well 1. Ct defined relevant market narrowly – market for raw, unprocessed timber – trying to make sure MP exception does not overtake DCC; nation is single economic unit c. Market Participant Exception has been applied only 3 times: 1) Hughes v. Alexandria Scrap: MD bounty on out-of-state junk autos reduced flow of interstate goods i. Did not violate CC b/c MD was the purchaser of scrap as a market participant 2) Reeves v. Stake: SD state-owned cement plant restricted sale to only state residents i. Did not violate CC b/c state was market participant and can sell to who it wants ii. Regulating the mere transaction is allowed 3) White v. MA Construction Council: Boston order requiring city construction projects to include 50% city resident work-force constitutional i. As market participant, city is choosing its trading partners d. Privileges and Immunities Clause – Article 4 1) United Building and Construction Trades Council v. Mayor of Camden i. Ordinance required 40% of construction jobs must go to Camden residents. Court found a substantial interest beca