Constitutional Law Attack Outline

Constitutional Law

Attack Outline

Spring 2015 – UVA Law

Judicial Review

• Marbury (1803): Court has power to review laws in light of the constitution (cannot expand Article 3) and is binding on other branches

• Martin v. Hunter’s Lessee (1816): This is also binding on the states.

  • Limit: state supreme courts on state constitutional issues, needs federal question

• U.S. v. Klein (1972): congress cannot use appellate jurisdiction control to change outcome of one case

• Cooper v. Aaron (1958): Death of departmentalism; SCOTUS is supreme interpreter of constitution (Eisenhower enforced opinion he disagreed with)

  • Hollingsworth v. Perry (2013): exception, state officials are not bound to defend laws in court against constitutional challenges

• Walter Nixon v. U.S. (1993): non-justicible question, textually demonstrative commitment to coordinate branch (constitution doesn’t say anything about it) – different from passing laws in general

• See also standing

Commerce Clause (see also Necessary & Proper)

• Gibbons v. Ogden (1824): Includes regulation of goods in movement, also implicitly preempts state regulation.

• Champion v. Ames (Lottery Case): OK to use moral reasons to regulate instrumentalities of commerce that cross state lines

• Houston East & West Texas RR (Shreveport Rate Case, 1914): OK to regulate intrastate commerce that affects interstate commerce (through instrumentalities of commerce).

• Hammer v. Dagenhart, (1918) Overruled: Pre-New Deal, based on morality + intrastate commerce that merely affected interstate commerce could be too attenuated.

  • Refusal to combine Champion v. Ames moral reasons with Shreveport Rate Case intrastate regulations

  • Carter Coal (1936): Overruled, Labor law struck down for being too attenuated, no “direct effect”

  • Schecter Poultry (1935): Wage and hour law struck down for being too attenuated

• NLRB v. Jones and Laughlin Steel (1937): E.g. vertically integrated activities cannot be done except through interstate commerce, so Congress may regulate

• Darby (1941): Intrastate activities with moral reasons that have an interstate effect may be regulated. New Deal. Sawmill case. Overrules Dagenhart. 10^th Amendment = truism

  • Allows Champion v. Ames and Shreveport Rate Case to be combined. Moral reasons with interstate effect/presence

• Wickard (1942): Fungible goods may be aggregated to find interstate commerce even if the individual person regulated acts purely intrastate. (Kansas wheat farmer)

• Heart of Atlanta (1964): Channels of interstate commerce, e.g. hotels on an interstate highway, may be regulated for moral reasons. These are also taken in aggregation

• Katzenbach v. McClung (1964): Aggregation of businesses may restrict blacks’ willingness to travel which will affect interstate commerce. Based on data, defer to congress

  • Must have rational basis for regulating the industry

• Perez (1971): Broadest possible interpretation. Moral reasons with tenuous interstate effect--aggregate of intrastate loan sharks may affect interstate commerce. Deference to the judgment of the legislature. Part of class that impacts interstate commerce even if some don’t, not an aggregate case

• Morton v. Bloom (1973): Beginning of limits. Individual factual circumstances (one-man mine) can put you outside of the interstate commerce Congress intended to regulate.

• Lopez and Morrison (1995, 2000): Four factor test walking back the line from Darby and eliminating full legislative deference: now questions the findings of Congress

  • Current Indicators: (1) Intention of Congress--economic/business related?; (2) jurisdictional hook; (3) requirement and evaluation of Congressional findings; (4) Attenuation of link to commerce/substantiality of relation w/o deference to congress.

  • Still in existence: (1) channels of interstate commerce (highways, Heart of Atlanta, Champion), (2) instrumentalities (e.g. vehicles, things in IC like goods) of interstate commerce, and (3) activities that substantially affect commerce

  • But see Gonzales (2005): marijuana may still be regulated because it is part of an interstate market.

  • See Comstock for prong (4)?

  • Bigger concern for things normally left to the states

• NFIB v. Sebelius (ACA Case, 2012): no majority, but not constitutional under commerce clause

  • Roberts: inactivity vs. activity

  • Scalia +: unconstitutional per Morrison

Necessary and Proper

• McCulloch v. Maryland (1819): Necessary means facilitative or useful in achieving an enumerated power (does not need to be absolutely necessary)

• Comstock (2010): Need links in the chain; post-release prison detention center OK because it’s connected to prisons which are needed to enforce laws made in pursuance of enumerated powers. Necessary and proper doesn’t stand alone

• Kebodeaux (2013): Necessary and proper is not its own source of power, must be attached to an enumerated power, allows long chain.

Tenth Amendment

• National League of Cities: States may use 10th amendment to set lower minimum wages than federal government. Overruled

• Garcia (1985): Overruled National League of Cities and strips 10th amendment of its power

• Printz (1997): Lone exception: federal government may not commandeer state workers to do work that federal law enforcement should be doing.

Dormant Commerce Clause

• Preemption: Look for it first

  • Explicit Preemption: congress says states can’t act

  • Implicit Preemption: conflicts with existing law

  • Occupation of the Field: so much federal regulation that it’s apparent that Congress intended to keep the states out

  • Note: state subsidies, spending, are different. But taxing is not

• Explicit Protectionism and Discrimination: Always Unconstitutional

  • Bacchus Imports v. Dias: Hawaii can’t tax other wine to favor its own wine

  • Baldwin v. JAF Seelig: Safety reasons are not enough to save protectionist regulations on fungible goods (prices for milk to oust out of staters)

  • Dean Milk v. Madison: Cannot draw geographic lines (even if they aren’t state lines) to restrict sales of fungible goods

  • No need...

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