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1. Implied authorization to regulate foreign affairs? Perez v. Brownell (1958). Cg. legislated on loss of citizenship. Authorized. Although there is no specific grant of power to enact legislation over foreign affairs, there is no doubt that this is a realm in which fed action is authorized. Curtiss-Wright (1936). Sutherland’s dicta emphasize that there are fundamental differences between fed action in internal affairs and fed action in external/foreign affairs. The doctrine that fed action must be explicitly authorized by an enumerated grant of power applies only to internal affairs, as implied by the Constitution’s history which carved powers out of the States’ domain. That doctrine does not apply to fed action in external affairs, which were never part of the States’ domain. Fed action in foreign affairs requires no enumerated grant of power; that fed action is a necessary implication of nationality. Crosby (2000). Not only does fed action in external affairs not rely on a grant of power, the realm of external affairs is exclusively one of fed action. MA statute had barred state entities from buying goods or services from companies doing business with Myanmar. Prohibitions on Government Action
1. Prohibitions on state action only 1.A. Dormant commerce clause prohibition? Structure of C, the history of C, and the Framers’ intent prompt the inference that C mandates a “national common market,” which all States’ have an interest in, and which Ct must affirmatively protect. OK. But Cg can protect that ncm through legislation. Text grants no such role to Ct. Pike v. Bruce Church, Inc. (1970). AZ required all cantaloupe be processed in-state. Not on its face discriminatory. Undue burden? Yes. The appropriate test is if “the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Here, the AZ statute’s apparently legitimate purpose in promoting AZ cantaloupes does not outweigh the burden on the Inc. of building a plant in AZ. Kassel v. Consolidated Freightways Corp. (1981). Corp. challenged an IA statute prohibiting use of longer trucks on its highways. Not “discriminatory.” Undue burden? Powell majority: Yes. Normally state safety regulations will be given deference. However, less deference given to regulation that has a disproportionate impact on out-of-state residents. Here, the state did not prove (no deference after all) that 65-foot trucks are more dangerous than 55-foot; thus state did not prove that the benefit of the law outweighed burden on commerce. Brennan concurrence. the Court should consider the legislative purpose, not just the effects. Rehnquist dissent. Ct should be deferential to state’s alleged purpose, not engage in purpose analysis. Purpose here was safety, thus valid. Notes: (1) not much deference in this case; (2) indeed burden of proof on the state, unlike Pike; (3) this perhaps undermines the precedential value; (4) especially since majority noted the legislative evidence the statute had a protectionist purpose (or is this a modification of the doctrine: discriminatory purpose, facially neutral, presumed unconstitutional under first prong); (5) which makes this a purpose analysis, not an effects analysis under Pike; (6) does Rehnquist reject Pike analysis entirely? 1.A.1. Is the state law “discriminatory? (On its face or, perhaps, through a discriminatory purpose?) 1.A.1.a. If yes, is it necessary and the least restrictive way to achieve an important governmental objective? 1.A.2. If not, does the state law place an “undue burden” on interstate commerce? “Undue burden,” if the law fails the Pike balancing test: the burden impose on commerce is clearly excessive in relation to the local benefits. Kassel and Pike are distinguishable: Kassel places burden of proof on state, uses purpose analysis. Pike problem: burden on whom? Apparently just the challenger. Pike v. Bruce Church, Inc. (1970). Undue burden? Yes. The AZ statute’s apparently legitimate purpose in promoting AZ cantaloupes does not outweigh the burden on the Inc. of building a plant in AZ. Kassel v. Consolidated Freightways Corp. (1981). Undue burden? Yes. The state did not prove (no deference after all) that 65-foot trucks are more dangerous than 55-foot; thus state did not prove that the benefit of the law outweighed burden on commerce. 1.B. Supremacy clause prohibition? 1.B.1. Does the federal law expressly preempt the state law? 1.B.2. Does the federal law field (i.e. implicitly) preempt the state law? 1.B.2.a. Is the field one in which the federal government has traditionally played a unique role? Foreign affairs and immigration are two such fields. Any others? Crosby (2000). MA barred state entities from buying goods from companies doing business with Burma, and was stricter than the federal restrictions. Field preempted? Yes. Government has unique role here. Specifically, allowing states to regulate in parallel would undermine the POTUS ability to negotiate and represent the country. Florida Lime (1963). FL statute required a minimum oil content in avocados that went beyond what the federal law required. Field preemption? No. Of course not a field in which federal government has traditionally played a unique role. 1.B.2.b. Has Congress expressed an intent to occupy the field? “Expressed” means really expressed. If isn’t right on the money, the court might narrow the category “field” so that the two occupy different fields. Play with the category “field.” Pacific Gas & Elec. Co. (1983). PG&E argued that the CA statute barring the construction of new nuclear plants was preempted by a federal Act regulating safety of nuclear power and encouraging the building of new plants. Field preemption? No. The government certainly occupies a field of the nuclear industry, but not the entire field. The federal act intends to occupy the safety field; the state intends to occupy the economic field. Notes: (1) Ct might interpret the statutes to have different purposes and thus that Congress did not intend to occupy that specific field that the state is occupying; (2) be creative about the specificity of “field,” i.e. regulate foreign affairs v. regulate economic affairs. Florida Lime (1963). No evidence that the Act intended to supplant all state regulation of the field. 1.B.2.c. Is the regulation so comprehensive that allowing the states to occupy the field would undermine the federal regulations? The focus in on “undermine,” not “comprehensive.” Must significantly undermine. PG& featured some undermining, but no conflict. Pacific Gas & Elec. Co. (1983). Although the federal regulations were quite comprehensive, and even if the state law tended to discourage nuclear energy (while federal law sought its encouragement), still there was no finding of field preemption. Notes: (1) it takes more than a little undermining for field preemption. 1.B.3. Does federal law conflict preempt the state law? “Conflict preemption” when there is a “physical impossibility in complying with both regulations.” Florida Lime (1963). No “physical impossibility in complying with both regulations, so no conflict preemption. Notes: (1) when the fed law specifies a standard the issue is whether that is a “minimum” or “the amount.” Here, the state law just went beyond a federal minimum, which is not a conflict. 1.C. Art IV. Privileges and immunities clause prohibition? Similar to dormant commerce: it prohibits a state from discriminating against out-of-state citizens. Differences: corps. get no protection; Cg cannot consent to violations; standard of review is stricter than Pike balancing test; does not protect all commercial activity, only “fundamental rights.” 2. Prohibitions on federal action only 2.A. 10th Amendment prohibition? Earlier Cts used the 10th to set to the side a realm of state control, prohibited to fed action. That realm does not exist today. But could the JR Ct bring back such realm, reviving a prohibition on fed action. Is the federal balance to be left to the political process or does the Constitution mandate a certain balance? U.S. Term Limits (1995). AK constitutional amendment created term limits on its federal representatives. Are term limits one of the powers reserved to the states by the 10th? No. Since this power did not exist prior to the Constitution, it could not be a power reserved to the states. More to the point, a state imposed term limits are counter to the structure of the Constitution. Thomas dissent interpreted the 10th literally to reserve this power to the states since the Constitution did not explicitly place the power in the federal government. Structuralism v. Literalism. 2.B. 11th Amendment prohibition? 2.B.1. Is Congress authorized to act under the 14th A, §5 grant of power? 2.B.2. If not, has a law of Congress created a cause of action that makes states liable for damages? The power to sue is the power to destroy. Also, federal balance is a constitutional imperative. But there’s no textual basis for this prohibition. This undermines enforcement of federal rights against the States. Besides political process will protect the states. Hans v. Louisiana (1890). Extended 11th to fed question jurisdiction (originally just DJ). Ex parte Young (1908). 11th permits fed courts to issue an injunction against a state official trying to enforce an unconstitutional law. Edelman v. Jordan (1974). 11th permits lawsuits for prospective injunctive relief against state officers, though no lawsuits for retrospective relief via judgments for damages. Seminole Tribe (1996). Act of Cg imposed a duty on states to negotiate in good faith, authorized by the Indian Commerce Clause. Prohibited? Yes. except when acting under 14th §5 powers, Cg cannot authorize suits for damages against the states. Overturns Pennsylvania v. Union Gas. Souter dissent. Since political safeguards protecting fed balance are working, there is no concern that the states would be endangered by fed authorization of suit against states. Note: (1) one position on this flows naturally from an understanding of whether the political process works to protect States; if it does the states would prevent any authorization of suits that would weaken them. Alden v. Maine (1999). Extends 11th to prohibition against Cg authorizing suit in state courts. Kennedy op recognizes that this extension of the principle could not be found in the text of the 11th. Instead he argues based on structural reasoning/inferences about the Constitution’s design of the federal balance. If the Cg could authorize suits against the states in state court, Cg would be commandeering the judicial processes of the states, and by extension potentially the executive and legislative processes of the states. Also, such suits would threaten the financial integrity of the states. Cg must rely on suits brought by the U.S. itself, the §5 14th A power, and injunctive or declaratory relief to enforce its laws. Souter dissent. This holding has no root in history or text. 2.C. Anti-commandeering clause prohibition? 2.C.1. Is the federal law generally applicable? If a generally applicable law regulates the state governments, no problem. Garcia (1985). Act of Cg required minimum wage and overtime provisions for all workers, providing no exemption for state workers, here mass transit workers. Prohibited (as applied to the states)? No. Blackmun op (5-4). Usery overturned. It proved unworkable: what is a “traditional governmental function.” Here, the law is generally applicable, and includes the state governments only by implication not by intention. The political process, not the judiciary, should protect the federal balance. Indeed, the process seems to be working as evidence of states getting fed money. But even maj op recognized that the political process might fail, requiring Ct intervention in fed balance. Powell dissent. “The States’ role in our system of government (fed balance) is a matter of constitutional law, not of legislative grace (political process).” Powell goes into great detail about how the political process has failed to protect the state side in the federal balance (FN4!). A variety of structural and political changes have combined to weaken the influence of the states in the political process. 17th A provided for direct election of Senators. Political parties have weakened at the local level. There is now a national media, making Cg less responsive to the state and local interests, and more attuned to the national special interests, now better organized at the national level (e.g. farmers, business, environmentalists, the poor). The national setting overwhelms the expression of the States’ interest in the federal balance, thus requiring Ct review of the federal balance. Powell also discussed the importance of federalism, especially tyranny prevention and participatory government. O’Connor dissent. Also stresses that the States must be protected by Ct. Usery (1976). Act of Cg set a minimum wage with no exemption for sate governments. Prohibited (as applied to the states)? Yes. Rehnquist op (5-4). The 10th prohibits Cg from interfering with traditional state and local governmental functions. Cg seeks to wield power in a manner that would impair the States ability to function effectively in the federal system. Fed action could undermine the institutional integrity and strength of the states. Brennan dissent. The Constitution leaves the fed balance to the political process. The maj op is product of judicial activism. 2.C.2. Has a law of Congress “commandeered the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program”? Fed action may not require states to do something, though it can prohibit states from an action. Should the Ct regulate the fed balance? Does such commandeering actually undermine the institutional strength or integrity of the States? New York v. United States (1992). An Act of Cg required the States to take title to nuclear waste under certain circumstances. Does the 10th prohibit Cg from requiring the States to take title? Yes. Cg cannot force a state’s legislature to enact and enforce a federal regulatory scheme. Printz (1997). The Brady Bill required state officials to help implement parts of the gun program. Does the 10th prohibit Cg from conscripting state officials to implement a federal regulatory program? Yes. Besides commandeering state legislative branches, Cg cannot commandeer state executive branches, by requiring state officials to administer a federal regulatory scheme. Reno v. Condon (2000). A federal act prohibited the states from disclosing personal information gained by DMVs. Does the 10th prohibit Cg from preventing the states from engaging in this activity? No (unanimous). Cg can place negative prohibitions (do not do XYZ), but Cg cannot place affirmative obligations on the States (do ABC).
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