CONSTITUTIONAL LAW OUTLINE
Prof. Jonathan Silver
Updated: May 6, 2001
I. Introduction
A. Two Republics
1. 1786-1861
2. 1863-Now
A. Extension of due process to statesAll persons...citizens of U.S...cannot deprive of life, liberty, or property w/o due process of law
B. 14th Amendmentwhat states can/cannot do. Cannot deny equal protection, must apply 1st amd, etc.
B. Marbury v. Madison
1. Marbury brought action for mandamus to Supreme Court to compel Executive appointment. Congress passed a statute that gave original jurisdiction to SC, and SC says statute is not constitutional so it declines to enforce.
A. Article VI, Written Constitution is supreme law. Supremacy Clause
B. Article III. Supreme Court Jurisdiction
C. Oath to uphold Constitutionoath to Constitution/People as sovereign?
C. Branches of Government
1. Executiveenforces statutes, but has discretion over whether to do so
A. Power over other branchescan veto, executive order
B. Where discretion involvedmay only be politically examinable so ct. cannot touch
C. Acts pursuant to Article II.
2. Legislativemakes law
A. Power over other branchescan amend laws, repeal laws, can vote for/against bills
3. Judiciarydetermines law
A. Can declare statutes unconstitutional
B. Decisions binding on public officials, i.e. Cooper v. Aaronstate officials must follow desegregation order announced by ct. in Brown
D. Equity Courts
1. When legal remedy insufficient or unfair; in equity, judges have discretion and there is no jury.
2. Examples: Injunction, relief against statute
3. Problems in equity present a standing problem, when going for anticipatory relief because no harm is yet done.
A. Werth v. SeldinZoning case. Court says the injury must be a consequence of D's actions, so no causationno standing.
B. Lubjan v. Defenders of WildlifeCongress cannot give private citizen new right to enforce wildlife protection law when they were not directly (only theoretically"someday intentions") injured. No cause of actionexecutive is real enforcer. (Note, Scalia wrote the opinion)
1. Question of imminence
2. Congress must specifically grant a remedy
a. Bennet, a water case, people given Exec power to enforce so they have standing.
b. Akins FEC disclosure. Aggrieved citizen has standingright to information is fundamental voting right
c. Senators have no standing to challenge Line Item Vetomay dilute, but injury not fully formed (whereas persons harmed by vetocut out of the budget, may have standing)
E. Mootness--case developed so far it is over, ct wont take it.
1. Roe v. Wade was actually moot when decided, b/c term of pregnancy only 9 months and she couldn't even have the abortion so late, but her condition was "capable of repetition, yet evading review" so the court took it.
2. Compare DeFunis--racial discrimination in admission to law school. By the time the court got it, the guy was almost graduated and wouldn't need to get in again.
F. Ripeness--case must be developed enough to be a real dispute. Ct. Will intervene only if the case is ripe.
1. Adler--Teachers punished for membership in "subversive" group. Court asked to give anticipatory relief.
G. Political Questions--Court does not generally decide political questions.
1. Baker v. Carr--Voting rights case/redistricting. Ct. Said equal protection challenges to districting plans present a justiciable political question
A. Decided under 14th Amendment, implementation unequal (even though "system" of representation may be ok)
B. Dissent says that the court is using Guaranty Clause (US guarantees
republican form of government--"system" , even though state governments
can vary
2. Powell--House refused to seat A.Powell after he was indicted for something. Ct said it wouldn't decide, b/c each house of Congress allowed to set its own qualifications.
A. Also, U.S. v. Nixon--Nixon impeached in House, and "tried" in Senate according to Senate procedures. SC said Senate can construe "try" any way they want and SC will only get involved if unreasonable.
1. Note, is impeachment too much of a threat? What happens when judges are impeached--does this confer illegitimacy on their past orders?
3. Court gives exec branch broad discretion over foreign policy--group couldn't
get SC to stop Vietnam war.
II. BALANCING STATE AND FEDERAL POWER
A. JurisdictionArticle III.
1. Appellate Jurisdiction: SC can take appellate jurisdiction over cases involving federal law which arise in St. court.
A. Martin v. Hunter's Lessee--SC can narrow state court judgements resting on interpretation of federal law.
B. Court has power to declare state laws unconstitutional
C. Adequate and Independent State Grounds may bar SC review.
A. SC can take whole case, even if it involves both federal and state issue.
B. However, if reversing what the State court said about the federal ground would not change outcome (i.e if state gives broader rights than constitution) then the SC cannot touch it, because would then be an advisory opinion, which is prohibited.
-Adequate and independent state ground cannot narrow federal rights (can only expand)
1. Procedural
A. If Independent procedual ground causes D to lose a federal right, decision is subject to broader SC reexamination.
2. Substantive
B. Historically, SC would not decide case if St. ground mooted the federal issue. Yet, in Michigan v. Long, ct said the state court must be explicit that they are relying on the state law. (Basically, if the state court decides the case on state grounds and includes an essay on federal law, it's just dictum)
C. Congress can make exceptions and limit jurisdiction
2. Original Jurisdiction--limited.
A. There is no original jurisdiction for mandamus cases (Marbury) but there is original jurisdiction for habeus cases (release from custody)
3. Can Congress Withdraw Jurisdiction?
A. In McCardle, Congress allowed to repeal appellate jurisdiction in cases of habeus corpus, because some avenue still open in original jurisdiction.
B. In Klein, Congress cannot fuck with presidential pardons and withdraw jurisdiction by substantive law (pardoned person can't get property back). The statute took away all avenues of relief, so SC overturns.
C. In Plaut, Court says Congress cannot command court to reopen final judgements dismissing suits by one private party against another--i.e Judgements not subject to Congressional revision.
4. Should Appellate Jurisdiction be abolished?
A. Wechler--It's up to Congress. Constitution only requires Chief justice/Supreme Court and Articles of Confederation had no federal courts.
B. Hart--Core functions thesis--Congress not allowed to use exceptions/regulations power to interfere with core functions and the essential role of the SC in the Constitution. Three balanced branches
C. Practically
1. Today, Congress may try to take away jurisdiction--wants something substantive, but verses it in jurisdiction--but has not been too sucessful in doing so.
2. If no lower courts, then all fact finding would be in state courts. This is likely to create tremendous bias. Note also that administrative agencies given this same fact-finding power
B. McColloch v. MD.
1. Here, two quasi-sovereigns assert power, and the SC says that the federal government has more bones than the state, and can do what it wants to achieve its goals. Questions asked:
A. Whether the US has the power to charter a bank? YES
B. Whether the State of MD has the power to tax the federal bank's branch in Baltimore, MD? NO
2. Constitutional Authority
A. Enumerated and Implied Powers--
1. X Amendment--Powers not delegated to the US...
A. Constitution does not have to be specific, for it is implied that government can use whatever means to carry out its powers.
B. "Necessary and Proper"
1. MD's argument is that the clause restricted the government's choice of means to something indispensable (cause-in-fact) to carrying out powers.
A. If interpreted as 'absolutely' necessary, Congress would be stripped of power---and more power would go to states
2. Marshall says necessary in the sense that it is calculated to produce ends.
A. Clause is not essential to argument, but gives Marshall a chance to say that necessary should be defined broadly as helpful, enabling.
3. Proper may add a second screen, but may just be made-up legalism.
3. Two premesis: How government was formed? By the states, or by the people?
A. Marshall: People are sovereign and states only convenient vehicles.
1. Weschler--Give Congress discretion, because there are political safeguards built in already.
2. Such a vast, spread out nation that will endure for ages to come.
3. Need to look at this from current perspective--Constitution has lasted so long because details can be filled in--can be construed broadly as times change.
B. Dissent: States retain power under the 10th Amendment.
1. If you believe that states are separate and independent, and that it was the states that gave the nation power, then MD seems to have a point.
2. Thomas, Scalia--power grabbing States and ORIGINAL UNDERSTANDING. Look to what the Framers meant..if you can find it, then you don't have to worry about judicial activism.
C. Term Limits case--Arkansas enacted a statute to impose term limits on federal
representatives. Court says this is unconstitutional.
1. Majority--Because the nation made up of people, and there should be uniform national system.
a. States cannot alter or add to the exclusive 'qualifications' established by the Constitution.
2. Dissent--States can do whatever they want. The ultimate source of Constitutional authority is the consent of the people of each State.
a. Constitution establishes minimum qualifications and states can add or do whatever to it.
3. Kenny's concurrence--is interesting, because he talks about the dual nature of our system and dual Fed and State identities. Also, he winds up siding with the States in Lopez, decided the same week.
4 Tenth Amendment, "powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People"
III. THE COMMERCE POWER
A. . Most important Federal power; it is the power thru which the Federal government does most of its regulating
1. Can Affirmatively legislate--positive law (as opposed to case law)
a. Affirmative commerce power is broad, and New Deal legislation gave it more breath
B. Limits--Wechler says leave it to political branches--court should never say that Congress has exceeded its power. Congressional reps are accountable to people because they face elections.
2. When Congress does nothing, (Dormant Commerce Clause)--the States can enact regulations, with some affect on interstate commerce--some allowed by SC, some not.
B. SC can strike down legislation of Congress if unconstitutional
C. Allows Congress to regulate trade with Foreign nations, Indian tribes, and among the Several States.
D. Partisan politics and commerce regulation
1. Republicans
a. Free trade among States--domestic (dormant commerce clause
b. High tariffs on foreign goods
c. No workplace protection /child labor protections, etc.
d. Note that Republican party wanted to abolish slavery--more workers, lower wages, stimulate economy
2. Democrats
a. Congressional statutes to regulate commerce, equalize things
E. U.S. v. Lopez--Federal statute prohibited possession of a firearm within a certain perimeter of a school.
1. Court Majority here says that Congress cannot sustain this legislation under the Commerce Power. Says that if Congress can use Commerce clause to impose a crim/gun statute, could do anything.
a. Must be 2 separate governments
b. Kennedy is a swing vote here, whereas in Term limits he said no state power to set term limits on federal office, here he is saying no federal power to regulate states.
2. Dissent is Breyer, Stevens, Souter, and Ginsburg. The justices here focuses on the indirect affects on guns in school on commerce.
a. Based on descriptive or factual understanding--it is rational for Congress to conclude that the behavior has an affect on interstate commerce.
b. Fact-finding may show that possession of gun within a school zone has something to do with commerce, at least by a broad stretch
c. Appellate court will not review facts--narrow review, so conviction for offense premised on federal guns/school law must be affirmed.
3. Majority Opinion premise: "Enumeration presupposes something non-enumerated"
a. There must be something that Congress cannot reach
b. Whereas factually, guns/school might affect interstate commerce, but legally Congress cannot reach everything
c. Interstate commerce is expanding like a bubble, but can never fill the box
d. Hart says preserve separate/federal state powers--people can move state to state if they want to live under different laws.
4. Kennedy-O'Connor Concurring opinion
a. People and states crated this country. Each government should have some power to do things on their own so that they can fight with each other and guarantee us the most liberty.
b. Governments will fight with each other instead of consolidating against the people
5. Thomas Concurrence
a. Thomas says that the Original Understanding of the Constitution should be used. He says that this would eliminate the substantial affects test.
1. Note however, the Marshall opinion in Marbury v. Madison (early case) gives Congress more power and places limits on the court's judicial review power.
2. Prof thinks Thomas's opinion may have something to do with his own experience in moving around for education/opportunity.
6. Tenth Amendment may limit Congress's ability to use its commerce power to regulate the states.
a. Tenth Amendment: "powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People"
7. Lopez opinion addresses the notion that there is no Federal Police Power
a. Advantages:
1. People have a choice of where to live--state environs may be different
2. States can experiment with different things, i.e. Vermont civil unions
3. Different states have different needs--hard to fulfill all in Congress, hard to get all Congress to agree
b. Disadvantages
1. no Equal enforcement of rights
2. no uniformity of laws
3. Minor differences in laws, loopholes may be cause for confusion, misunderstanding
F. United States v. Morrison --VAWA provided a federal civil remedy for victims of gender-motivated violence. Court says provision unconstitutional.
1. Majority
a. Link of violence-commerce too "attenuated'
1. Defendant should not be held liable for something so far off.
2. Torts concept of cause
b. No jurisdictional element
1. If Act were to apply to a particular activities which had a direct link to interstate commerce (i.e., if particular gun had previously moved in interstate commerce) then may be within Commerce power
c. No Federal police power
d. Even though more findings here than in Lopez--court does not want Congress to get to everything. Must be something they cannot reach.
2. Dissent
a. Congressional factfindings--here, they have more than in Lopez. Dissent finds that the interstate activity has a substantial effect on interstate commerce.
b. Court says that they do not have the same ability as Congress to fact find. Congress is more accountable because they are popularly elected, so let them legislate when they find this connection
c. Causal connection--Since Congress can show a causal connection to commerce, can regulate. (See Schecter)
3. Theory
a. States to have jurisdiction to regulate violent torts. Even though states not working to protect women, majority in Morrison does not want to give this most fundamental grant of jurisdiction to Congress
b. Education, family law, and general criminal law have traditionally been in the domain of the states. Court may be especially suspicious when Congress interferes in these areas.
G. Case Law reveals ways Congress can legislate under Commerce Clause
1. Channels of interstate commerce
2. Instrumentalities of Interstate commerce
3. Articles moving in interstate commerce
4. Intrastate activities which SUBSTANTIALLY affect interstate commerce
a. Jurisdictional element may allow Congressional regulation
b. When activity itself is commercial, the particular instance does not need to directly affect interstate commerce, as long as the instance is part of a general class of activities that collectively substantially affect interstate commerce (Wickard)
H. Traditionally, Not Commerce
1. Production
2. Antitrust
3. ManufacturingKnight, Court refuses to apply federal statute. Is not commerce, but MANUFACTURING (sugar refining) all intrastate
A. Court looks at each piece of the sugar business separate from other parts. (comparein Shreveport ct looks at inter/intra RR parts together.)
I. Historically
1. Emerging doctrinal difficulties in the 20th Century
A. Ensuring free trade between statesdormant commerce clause preempts States from imposing burdens on commerce
B. Use of the Commerce clause to regulate morality, crime, etc. (Typically state concerns)
1. Champion Lottery (1903) Congress has the power to prohibit certain interstate commercebad conduct.
2. Hipolite Egg (1911) Can confiscate bad eggs anywherecan't trade in bad goods
3. Mann Act case (1913) Congress has the power to prevent transportation of prostitutes
A. Question of pretext: Should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government?"
4. Yet, in Hammer (1918) , ct. says Congress cannot prohibit the transport of goods made by child labor. (Holmes dissentssays should be seen as just as bad as lottery tix, bad eggs, etc.) Ct finally accepts Holmes argument
C. Eye on Labor Issues and National History
1. Historically, labor controlled by others (slavery, feudalism) Court tries to free it up as the labor movement expands 1890-1910.
A. HammerCongress cannot stop child labor practices
B. Railroad Retirement Boardcompulsory retirement provisions cannot be held up under interstate commerce
2. Fascism is becoming a threatpeople scared that government is assuming too much power
3. As the 90's begin, we see countries around the world dividing into smaller and smaller governments. USSR>republics, Yugoslavia>Bosnia/Serbia, etc., UK>Scotland, Ireland
2. "Stream of Commerce" and "Affecting Commerce"
A. (1905) Swift & Co. v. U.S.Ct. sustained Sherman Act injunction against price fixing by meat dealers
1. "Stream of Commerce" invented by judges to justify result. Basically, the 'current of commerce' rationale suggested that some local activities were controllable not b/c of their effects on commerce, but because they could themselves be viewed as 'in commerce or as an integral part of the 'current of commerce'
A "Generalizations don't decide cases" says Holmes.
B. Cannot take something that already exists and give it a new nameprof. doesn't like the idea.
B. Shreveport, (1914) Congress can control intrastate railroad rates (freight hauling) when competition with interstate railroad becomes unfair
1. Ct. Says case is about transportation itself, and interstate transport is what free commerce is all aboutoriginal meaning (taxes, customs, borders)
2. Theory: RR should not be able to use 2 govt. structure to make a lot of money, while hurting consumers RR had used power in one market to offset other marketmarkets so intertwined, that this harms interstate commerce. Ct can regulate
3. AKA "Affecting Commerce"
3. CANT TOUCH THE CHICKEN cutting up the New Deal
A. 1932-1936- SC held unconstitutional many New Deal attempts to deal with Depression, but many 5-4 decisions. Then, J. Roberts switches his vote ("A switch in time saves nine")
1. Schecter poultry casePurely local NY based market for poultry. Court says National Industrial Recovery Act, regulating unfair trade, cannot touch the small business.
A. J. Cardozo and Stone usually upheld New Deal Legislation, Yet, here they concur to invalidate the legislation.
1. "Far reaching and incurable commerce power objection""There is a view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce. Motion at the outer rim is communicated perceptibly, though minutely, to recording interests at the center. A society such as ours is an elastic medium which transmits all tremors throughout its territory; the only question is of their size (quoting J. Learned Hand?) ...To find immediacy or directness HERE (would be going too far) p. 180
2. The law is not indifferent to considerations of degree.----just like torts..is a degree of cause/attenuation
3. "Intimate and Remote" Compare to Pallsgraff, in the RR cases there was a causal relation so close and intimate and obvious as to permit it to be called direct, w/o subjecting the word to an unfair or excessive strain....Connection cannot be too far attenuated (Cardozo also wrote Pallsgraff)
2. In Carter, a Stockholder Derivative Action, Court says tax on corporation not allowedis production, not commerce and Congress cannot reach it. Cardozo dissentssays gvt. can act.
3. Holmes was a "Hand's off kind of guy" Court should NOT overrule Congress's attempts to legislate
4. Congressional authority to legislate under Commerce clause was
E X P A N D E D (1937-1994)
A. Joness Steel (1937) intrastate activities can be regulated by Congress under Fair Labor Standards Act because of their practical effect on interstate commerce
1. Employer violated NRLB Act: Employees were fired for union organizing at steel manufacturing plants in Pennsylvania. Ct said that the NRLB statute can reach employer.
2. Changing economynot just RR's but cars too. Country coming together with transporation.
3. Roberts (said Congress cant touch chicken) SWITCHES his vote here and says that NLRB Act can be enforced
4. NRLB v. Fair LaborThe Labor Board Act's purpose was to prevent strikes and thereby strengthen the economy. The Fair Labor act had to do with individual wages, and told prople what to do.
B. Darby, 1941
1. Congress can control means (regulations on labor) so that ends (goods don't get shipped interstatedisturb market by unfair competition) is reached.
2. Case about lumber manufactured by a company not in compliance with Fair Labor Act.
3. This case practically overrules Hammer (child labor). Here, ct. upholds FLSA.
C. Wickard, 1942
1. Wheat sale by farmerwho grew for home consumption--at a time when there was a problem with the National market for wheat
2. Congress could regulate b/c many farmers, in aggregate affect the wheat market
3. Activity can be reached if it exerts a substantial economic effect even if individual contribution trivial
4. IS THIS GOING TOO FAR?
D. The Civil Rights Era and Commerce Clause Legislation
1. Civil Rights Act passed in 1964. Lyndon Johnson/Robert Kennedy. Possible that the law could have been based on the 14th Amd., but Congress Chose the Commerce Power
A. Commerce Power chosen, b/c formerly successful basis for legislation. Congress couldn't fathom being overruled on this
2. Maryland v. Wirtz (1968)
A. Court sustained Amd's to FLSA. Congress can reach. Extends coverage to private employees who work for corporation that has interstate dealings.
B. Specific job does not have to be involved with interstate commerce, but enterprise must be engaged in commerce or in production of goods for commerce.
3. In Heart of Atlanta Motel and Katzenbach (Ollie's Barbecue) court upheld the application of the Civil Rights Act.
A. Court looks at aggregation, restrictive effect, locations that are near interstate highway or necessity for travel.
5. 1995-present Lopez, Morrison, reverses the tide--Congress must leave something for the states.
a. Also, the court won't give much deference to Congressional fact
findings/Congress's belief that the activity has the required affect on
commerce. Court must find this in fact for itself.
J. FROM U.S. v. CALIFORNIA TO N.Y. v. US External Limits on the Commerce Power: the State Autonomy and Sovereignty Concerns Reflected in the 10th & 11th Amendments
1. The big question is whether a STATE's activities, even tho they otherwise relate to commerce, are nevertheless immune from federal regulation.
2. When Congress makes a law that compels a state to spend a lot of money to accomplish federal goals, then the Court hesitant to let Congress have its way.
A. O'Connor's concurring opinion in Printz (Brady Bill) suggests cooperation of contract to eliminate the money problemotherwise, decision about policy is a decision about States must spend money
B. Feds cannot conscript States to achieve their goals (Printz, NY)
3. The Amendments:
A. 10: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
B. 11: The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State
4. Two premises, phrased a million ways:
A. State Sovereignty:
1. "All is retained which has not been surrendered" if a power is an attribute of state sovereignty reserved by the 10th Amendment, it is necessarily a power the Constitution has not conferred on Congress. (O'Connor, Majority, New York v. US)
2. State Sovereignly trumps take title regulation imposed by congress under the Interstate Commerce Clause. (NY)
3. 10th Amd. is a restraint on IS commerce, on which Congress Cannot trespass
4. States have SOME kind of sovereignty reserved to them by the 10th Amd. NOT AN EMPTY SET, even as IS commerce expands
A. Immunity from federal regulations
B. State Autonomy limit
B. Interstate Commerce trumps the idea that there is state sovereignty
1. "The Constitution enhanced, rather than diminished, the power of the Federal Government." The Tenth Amendment surely does not impose any limit on Congress' exercise of the powers delegated to it by Article I (Incl. the Commerce Clause) (Stevens, Concurring in Part, Dissenting in Part, N.Y. v. US)
2. Interstate commerce clause is the overriding powermakes not difference if states are affected, just as private parties are. (NY)
3. Interstate Commerce Clause swallows everything upstate sovereignty can be an EMPTY SET b/c Interstate Commerce is expansive.
4. If a power is delegated to Congress (who can use it as broadly as they wish), the 10th Amd. expressly disclaims any reservation of that power to the States.
5. Line of CasesRegulatory
A. US v. CaliforniaCt. upholds penalty on state owned RR for violation of Fed. Safety Act (1936)
B. MD v. Wirtz Fed. labor act upheld against challenge that it interfered with operations of State government (1968)
C. Fry v. US Fed. Economic Stablization Act can be applied to wage increases of PUBLIC/STATE employees (wow, this is going far)
D. National League of Cities v. Usery- (1976) Wage/Max hour law CANNOT be applied to state and local government employees (state public servants)
1. Extent of control inconsistent with state sovereigntyaddresses matters that are indisputably attributes of state sovereignty.
1. States compliance with federal law would directly impair their ability to structure integral operation is areas of traditional state government functions.
3. STATES WIN THIS CASE, BUT NOT UNTIL NY DO THEY HAVE THE SAME KIND OF LUCK)
E. Hodel v. VA Surface MiningFed law regulating strip mining upheld against state autonomy challenge, 1981
F. FERC v. Mississippi, 1982, States must consider the adoption of federal utility rates and regulatory standards
G. Garcia v. SanAntonio Metro TransitStates NOT immune from federal regulation, 1985
1. Courts shouldn't determine limitsCongress does
2. Political process provides enough safeguards
H. South Carolina v. Baker, 1988, Fed income tax could be imposed on interest from bearer bonds issued by the states
I. NY v. USCongress can encourage states to do something about radioactive waste, but CANNOT COMPEL States to do so.
1. Strong Federal interest, but Feds cannot conscript states to act
2. Feds can provide incentives to the states to encourage them to adopt suggested regulatory schemes, but Congress cannot simply direct States to dispose waste.
6. Line of CasesMoney Trail
A. Printz, 1997. Scalia opinion, with same 5-4 breakdown of Lopez and Morrison. Ct strikes certain interim provisions of the Brady Handgun Violence Protection Act.
1. O'Connor concurrence is interesting. She suggests there may be another way to make state officers notify gun dealers whether they are selling to dangerous persons. She says cannot compel States to direct (their own) resources; better way would be to do this on a contractual basis and provide them with funds.
B. Reno v. Condon (2000) Court said statute preventing states from selling personal data WAS constitutional. Here, no requirement that states direct funds toward federal purpose (but might lose revenue)
C. Alden v. Maine (1997) Congress attempts to give Cause of Action to state probation officers under Fair Labor Standards Act. to sue in State court.
1. Kennedy Opinion, for the majority, held that Congress, in exercising its Article I powers, may not abrogate state sovereign immunity by authorizing private actions for money damages against non-consenting states in their own courts
A. Note, States can waive immunity if they chose. Can be sued for some things.
B. Probably easier to sue states for injunction, etc. NON-MONETARY
2. Souter dissent--Maine not immune; Not sovereign with respect to the national objective of the FLSA.
3. Note, in Garcia, ct. said that the states not immune to FLSA. The difference??? Thomas replaced Marshall.
D. Kimel v. Florida Board of Regents (2000) Age Discrimination in Employment act amended to give state employees the right to sue in federal court for employer's violations
1. Opinion by O'Connor: Regulation of age discrimination among
employers in general was a valid exercise of commerce power,
however the commerce power does not include the power to
abrogate sovereign immunity. Congress does not have the power
to subject States to suit for money damages at the hands of private
individuals
IV. THE SPENDING POWER
1. Important--Congress can force stuff onto the states by using the spending power and attaching conditions.
2. Congress can raise the federal income tax. States cannot complain. Once raised, Congress has more money to distribute.
3. South Dakota v. Dole--Whether the drinking age rule is a proper condition for receipt of money by the states or an independent regulation which is beyond Congress Power. Ct. Said Congress can attach condition.
4. Sullivan--Abortion gag rule. Congress appropriates funds for Planned Parenthood, and
Dept Health Human Servs attaches condition that employees of clinics that get federal funds
cannot mention abortion. Ct. Upholds.
V. DORMANT COMMERCE CLAUSE
1. Not in constitution, but based on need for free trade zone among states
A. Based on a sleeping legislature--common law can emerge through judicial interpretation.
B. Theoretically, when Congress does not act, statue statute does not conflict with feds. But maybe creates an undue burden on Commerce
C. Three basis on which statue statutes held unconstitutional (p.270)
1. Facially discriminatory against out-of-state interests
A. NJ reserved landfills for own state's waste. Ct said the waste was a national problem, and NJ couldn't discriminate
2. Has protectionist basis/purpose against out of state interests
A. Milk cases--protect local farmers, industry. Unconstitutional
3. Effect of statute unduly burdensome on out of state commerce
VI. TRANSPORTATION
1. Can states enact statutes to regulate transportation and what can the feds do about it.
A. Decisions balance state safety interest v. national free trade interest
B. Also, What burden is being imposed.
2. In 1981 case, Rehnquist dissents--court has only limited authority to review state legislation.