CASE GROUP
RULE
ANYTHING ELSE IMPORTANT?
Marbury v. Establishing Supreme Court has the power of
Madison
judicial
judicial review.
review;
separation of
powers
This was NOT a federalism question.
Martin v.
Hunter's
Lessee
Separation of Supreme Court has the power of
powers
judicial review of state civil cases.
Test in Judiciary Act of Section 25, footnote 5, p. 71 - 3rd
where clause.
Storey looked at art 3, section 2,clause 1
Cohens v.
Virginia
Separation of Supreme Court power to review state
powers
criminal cases.
Same judiciary act, 2nd where clause
Supremacy Clause Art 6, Clause 2 – but the intention wasn't to
cover outside of DC; so convictions of state upheld, even
though SCOTUS has judicial review over state criminal
courts.
Ex Parte
McCardle
Separation of Congress has at least some power to
powers
control SCOTUS appellate
jurisdiction.
They still sometimes do hear habeas corpus cases.
McCulloch Federalism
v.
Maryland
Congress can use appropriate means
to obtain a legitimate and
constitutionally enumerated end.
Meaning today: SCOTUS will not
strike down a statute if the means are
not prohibited in the constitution, and
the ends are rationally related to the
enumerated powers in the
constitution.
Necessary and proper clause interpreted broadly – not
interpreted as “absolutely necessary” or “indispensable”
Federal government is not subject to state taxes; federal
government is allowed to establish a bank by the necessary
and proper clause, as a “means” to the enumerated ends of –
spending, taxing, war, etc..
Pretext issue: when Congress enacts a statute and uses a
legitimate means/ends as a pretext to a non-enumerated
means/ends... void.
U.S. Term Federalism
Limits, Inc.
v. Thorton
(1995)
States cannot fix their own term of
years for their congressmen... certain
things are reserved for states by the
10th Amendment – i.e. powers not
delegated to the Federal Gov't by the
constitution, nor prohibited to the
States.
The present day court line-up is tenuous with respect to
federalism issues (demonstrates that we've had a shift since
the New Deal Era).
Gibbons v. Commerce
Ogden
Clause
(1824)
Article 1,
Section 8
Congress can legislate with respect to
all commerce that concerns more state
than one. “Commerce” is more than
buying and selling, it is all
“commercial intercourse” - including
transportation.
Federal government now allowed to license vessels.
Congress could regulate interstate commerce affecting matters
occurring within a state, as long as the activity had some
commercial connection with another state. But completely
internal commerce of a State... may be considered as reserved
for the State itself.
Sole remedy is to elect a new legislature.
United
States v.
E.C.
Knight
The Sugar
Trust case
(1895)
Congress can only regulate
“intrastate” activities that have a
direct effect on interstate commerce.
Manufacturing – indirect
Commerce – direct
(Holds that manufacturing is not commerce.)
Commerce
Clause
CASE GROUP
Shreveport Commerce
Rate Case Clause –
economic
regulatory
laws
(1)
RULE
ANYTHING ELSE IMPORTANT?
Upheld the ICC's right to regulate
intrastate charges, at least of interstate
carriers. Commerce power
necessarily included the right to
regulate “all matters having such a
close and substantial relation to
interstate traffic that control is
essential or appropriate to the security
of that traffic...”
As long as the ultimate object was
the protection of interstate commerce.
First look at the “affecting commerce
rationale”:
1) what is the local activity?
2) what is the relationship between
the local activity and interstate
commerce?
3) what is the rule for the local
activity?
4) is the rule a means to some
interstate commerce end?
Involves interstate commerce act. The opinion held that the
commerce power necessarily included the right to regulate "all
matters having such a close and substantial relation to
interstate traffic that control is essential or appropriate to the
security of that traffic." The fact that the activity being
regulated was intrastate did not place it beyond congressional
control, since the ultimate object was protection of interstate
commerce. Look at the effect that the local activity has on
interstate commerce.
Combination of the N&P clause and commerce clause!
Southern
Railway
Commerce
Clause –
affecting
commerce
Congress has the power to prescribe
safety rules to ensure interstate
commerce will not be interrupted.
Swift v.
United
States
Commerce
clause –
stream of
commerce
Congress upholding the Sherman
Antitrust Act
Champion
v. Ames
The
Lottery
Case 1903
Commerce
Upheld the Federal Lottery Act,
clause –
which prohibited the interstate
police power shipment of lottery tickets
1st case to say - “prohibiting” IC is
included within the commerce clause
(which says “regulating commerce”)
Court is prohibiting interstate transport of certain items or
persons. “Commerce-prohibiting” technique... since
Congress is limiting only the interstate shipment, they are
not interfering with intrastate matters. Lottery are clearly
an “evil” which are desirable for Congress to regulate.
Hipolite
Egg co. v.
United
States –
Bad Egg
Case
(1911)
Commerce
Upheld the Pure Food and Drug Act
clause –
of 1906.
police power
Federal officials could seize a shipment of bad eggs after they
had arrived in their destination. This was “certainly
appropriate to the right to bar them from interstate commerce,
and completes its purpose, which is not to merely prevent the
physical movement of bad articles, but to use them.”
Hoke v.
United
States
(1913)
Commerce
Upheld the Mann Act, which
clause –
prohibited the transportation of
police power women in interstate commerce for
immoral purposes.
Facility of interstate transportation can be taken away from the
systematic enticement to and the enslavement in prostitution
and debauchery of women.
Congress has power over transportation among several states,
that power is complete in itself, and Congress can adopt
means necessary and convenient to exercise – and means may
have police quality.
When goods are sent to a place w/in state w/ expectation
they'll be purchased and then taken to another, and this
happens over and over, the goods are in a "current of
commerce." Uses practical rather than technical definition of
commerce.
Hammer v. Commerce
Daggenhar clause –
t – Child
police power
Labor Case
(1918)
Struck down an act because
manufacturing is not to be touched by
Congress, it should be left to the
states
Distinguished from Lottery Case, Hippolite Egg and Hoke
because in those cases because the “evil” was being
transported in those cases. Here, the goods are fine, the “evil”
is the employment and manufacturing, which is up to the
states to regulate.
Railroad
Commerce
Retirement Clause Board v.
Alton 1935
Invalidated a law establishing a
compulsory retirement and pension
plan for all carriers subject to
Interstate Commerce Act
Court doesn't see the relationship between promoting happy
workers --> efficient transportation system (IC). He thinks
this is an attempt to affect social welfare, out of federal
government's reach.
CASE GROUP
RULE
ANYTHING ELSE IMPORTANT?
Schechter
Poultry –
Sick
chicken
case 1935
Commerce
Clause –
barrier to
New Deal
NIRA held unconstitutional (NIRA
was an effort to control hours and
wages.)
Activities must be in the “current” or “stream” of commerce;
interstate transactions ended when the shipments reached the
NYC Slaughter houses.
Nor was the “affecting commerce” rational allowed, what was
required was a “direct affect.”
Carter
Coal
1935
Commerce
Clause –
barrier to
New Deal
Bituminour Coal Conservation Act
held unconstitutional (which set
maximum hours and minimum wages
for workers in coal mines).
Distinguishes “production” and “commerce.” Production –
purely local activity.
Even though materials would ultimately be sold in IC. The
production did not “directly affect” IC. Furthermore, local
relationship like employer-employee relationships – are “local
evils”, which cannot be controlled by Congress.
Dissent – Cardozo – look at Sherveport, regulating prices
should be okay. That provision of the Act wasn't even looked
at by the majority, but Cardozo believed it should have been
upheld.
(1)
NLRB v.
Jones &
Laughlin
Steel Corp.
1937
Commerce
Uses the “affecting commerce”
Clause – post rationale and says that manufacturing
court packing CAN be viewed as affecting IC.
plan, new SC
majority
“Affecting Commerce” means burdening or obstructing
commerce or the free flow of commerce. This is the
beginning of modern rules and cases.
Relation to IC must be “close and substantial”
Huge transformation in the understanding of the Commerce
Clause Proper inquiry is not the nature of the thing regulated, but its
effect or burden on commerce. Have to look at regulated
activities at a high level of generality.
Wickard v. Commerce
Filburn
Clause
1942
Broadest stretch of Commerce Clause Not possible to parse out effects of individual action –
cases!
individual action may be regulated if it has a substantial
economic effect on interstate commerce, whether local and
themselves not commerce.
US v.
Darby
1941
Commerce
Clause
2 rationales 
US v.
Sullivan
Commerce
Clause
*Court deference to a Congressional
determination that a local activity
affected IC. Shift towards trusting the
political process?
2 rationales 
Overall – no federal police power,
Congress has to get at these ends in a
different way.
US v. Five
Gambling
Devices
Commerce
Clause
Dissent - Bootstrap approach? Not
really, because court says its not a
“regulation” just “reporting
requirements.”
Necessary and proper clause.
1) Regulating a local activity as a means of prohibition on IC
– bootstrapping rationale
2) Affecting Commerce
Uses necessary and proper clause?
1) Affecting Commerce:
-LA – local retail sales of drugs
-IC – druggist who labels properly has higher cost of
production
-Means – Drugist has to properly label ALL drugs
-Ends – Prevents a depression of interstate drug purchases.
2) Bootstrap – regulating labeling as a means of making
effective the prohibition of interstate shipment of mislabeled
drugs.
Dissent - Regulating local activity (incidental registration and
reporting provisions, on any manufacturer and dealer involved
in gambling devices, even if purely intrastate) – as a means of
effectuating the prohibition of interstate shipment of the
gambling devices.
Struck down the statute, doesn't say
its “unconstitutional”, but says that
there aren't any sufficient findings to
prove that it is connected to IC.
Perez v.
Commerce
United
Clause
States
Loansharki
ng Case
Uses Darby – holds that a “class” that
affects IC... a member of that class
(even if purely an intrastate
loanshark)... can still be regulated.
This was a federal criminal statute. So the the broad reach of
the commerce power can apply to criminal statutes as well.
No proof of connection to IC on an individual basis is
necessary, when it is difficult to separate the intrastate and
interstate actors.
CASE GROUP
United
States v.
Bass
Commerce
Clause
Maryland
v. Wirtz
(1968)
Commerce
Clause
RULE
Struck down a statute because there
were no findings .
ANYTHING ELSE IMPORTANT?
Unable to touch criminal activity (which is normally reserved
to the states) because didn't proffer findings to show the
connection.
Court said that it has never declared that Congress may use a
“relatively trivial” impact on IC as an excuse for broad
regulation of state activities.
Hodel v.
Commerce
Virginia
Clause
Surface
(1981)
Min. &
Recl. Ass'n
Upheld the constitutionality of the
surface mining control and
reclamation act of 1977
When congress has determined that an activity affects IC, the
courts need inquire only whether the finding is rational.
US v.
Lopez
(Baby
Lopez
1972)
Commerce
Clause
Although isolated, intrastate dealers
may not have an affect on IC; as a
class, congress provided findings to
show that there is an impact on IC.
Impossible to distinguish intrastate and interstate. Therefore,
can't just say that 1 intrastate dealer has a “trivial impact” that rationale is not good here.
Heart of
Atlanta
(1964)
Commerce
Clause /
Civil Rights
Civil Rights Act can constitutionally
be reached through the commerce
clause.
It is okay that the court is allowing
the congress to correct a moral wrong.
It is clear that the national interest
here is correcting a moral wrong in
addition to the economic effect –
court not bothered by this.
Court noted that racial discrimination discourages travel for a
substantial part of the black community. The court also found
that Congress had power to regulate local incidents of
interstate travel which might have a substantial effect on IC.
“It is said that the operation of the motel here is of a purely
local character. But, assuming this to be true, "if it is interstate
commerce that feels the pinch, it does not matter how local the
operation which applies the squeeze. Thus the power of
Congress to promote interstate commerce also includes the
power to regulate the local incidents thereof, including local
activities in both the States of origin and destination, which
might have a substantial and harmful effect upon that
commerce. One need only examine the evidence which we
have discussed above to see that Congress may -- as it has -prohibit racial discrimination by motels serving travelers,
however "local" their operations may appear.”
Katzenbac
h v.
McClung
(1964)
Ollie's
BBQ
Commerce
Clause /
Civil Rights
Aggregation – although Ollie's is
small, the combination of similar
activities bya number of small
operations will certainly have an
impact on interstate commerce.
Two classes of restaurants that discriminate: one class affects
IC, the other does not; it is impossible to tell them apart, so
Congress can reach all of them (even though no formal
findings).
*Careful to use Civil Rights cases' rationale in non-civil rights
cases – SCOTUS is much more lenient in application of
commerce clause in civil rights cases.
US v.
Lopez
(1995)
Commerce
Clause /
Modern
Congress gave no findings that that
the activity actually being regulated
affected commerce.
Congress made no connection to
interstate commerce with the statute
(jurisdictional hook) – for example,
could have made it a crime to possess
a gun that had been transported in
interstate commerce.
This is distinguished from Wickard, which was “commerce”.
This is a non-economic activity.
Gives us 3 rationales to consider (see
below)! This is the “substantial
affect” rationale here.
Analogous to Bass – need an additional nexus to interstate
commerce so that it will not significantly change the federalstate balance.
4 things in Lopez that matter – 1) no economic basis, 2) no
express jurisdictional element, 3) no formal findings 4)
tenuous relationship b/w local activity and interstate
commerce
CASE GROUP
RULE
ANYTHING ELSE IMPORTANT?
US v.
Morrison
(2000)
Commerce
Clause /
Modern
Congress gave findings, but the court
rejected them finding the connection
too attenuated. If the court accepted
such findings, it would allow
Congress to regulate any criminal
behavior, based on its “aggregate
effect” on IC.
Test: 1-Is it an economic thing; 2Express jurisdictional element to limit
the statute's reach; 3-Formal findings,
particularly for doubtful cases; 4Attenuated relationship between IC
and Economic activity?
Court agreed that the act was beyond Congress's power,
mostly because the court felt that gender-based crimes are not
economic in nature.
Congress could not regulate violent crime that is not directed
at the instrumentalities, channels, or goods involved in IC,
leaving this duty to the states.
Eldred v.
Ashcroft
(2003)
Copyright
Case
Copyright clause (and other explicit
clauses) allow Congress to do more,
without judicial scrutiny.
(Compare to Commerce Clause – which is subject to judicial
approval.)
Gonzales
v. Raich
Commerce
Clause
(2005)
“New era” commerce clause cases
can be justified under 3 rationales: 1)
channels of IC; 2) instrumentalities of
IC and persons or things in IC; 3)
substantial affect – this case is (3).
Unlike those at issue in Lopez and
Morrison, the activities regulated by
this statute are quintessentially
economic (but is that really true?).
REAL CHECK – political process
Uses Wickard, “class of activities”, relies on Congress's
findings A general regulatory statute bears a substantial relation to
commerce, the de minimis character of individual instances
arising under that statute is of no consequence.”
Failure to regulate that class of activity would undercut the
regulation of the interstate market in that commodoty.
McCulloug Taxing
h v.
Power
Maryland
States cannot levy taxes on the US
Government. Both the US
Government and the states have the
power to tax, but not concurrently.
This case turns on the supremacy
clause – Art. 6, Clause 2
Trust the political process. The states can vote their
representatives out if the taxes are too high. But the subjects
of a tax (US gov't) could not, if the states were allowed to tax
the gov't.
When Congress taxes the states – it must be uniform. Dictum
– national government can tax a state bank.
All on part vs. part on all
Bailey v.
Drexel
Furniture
Co. (1922)
Taxing
Power
(Article I,
Section 8)
Child Labor Act struck down. Court
said this was a regulation with a “tax”
as the penalty – NOT a tax with
incidental regulations imposed.
Congress looked at the means/ends. Look at the purpose –
regulation OR raising revenue?
Marshall pretext?
It is okay to use taxes to regulate, long as it is an enumerated
end / AND that it is done fairly.
Veazie
Taxing
Cited in Bailey, a non-analogous case 1) Imposing a tax, by using the N&P clause to achieve an
Power (1869) because in Veazie – they had an
enumerated end – thru commerce clause.
enumerated end – securing a uniform 2) Use the TAX clause, to achieve an enumerated end.
national currency.
McCray
Taxing
Cited in Bailey
Power (1904)
After Bailey (which approves Deremus), okay for Congress to
have more than 1 motive in mind, but the means have to have
some relationship to raising revenue, not just solely related to
the un-enumerated power of suppressing drugs.
US v.
Kahriger
(1935)
Taxing
Power
2 possible purposes:
1) Raise Revenue; 2) Supress gambling (regulatory)
Just because the revenue raised by the tax is negligible doesn't
make it invalid; just because it discourages the activities taxed
doesn't make it invalid.
Upheld the constitutionality of an
occupational tax imposed by the 1951
Revenue Act – which levied a tax on
persons engaged in the business of
accepting wagers and required such
persons to register with the IRS.
CASE GROUP
US v.
Butler
(1936)
Spending
Power
RULE
Congress may not regulate in a
particular area merely on the ground
that it is thereby providing for the
general welfare; only taxing and
spending may be done for the general
welfare.
Dissent – rule now - 1) purpose must
be national; 2) must not be a coercion
in order to regulate an area of state
control; 3) means must be related to
the ends; 4) political check exists.
ANYTHING ELSE IMPORTANT?
The tax is unconstitutional because the spending is
unconstitutional. Congress has no right to regulate areas of
essentially local control, including agriculture, and it also
could not coercively purchase compliance with a regulatory
scheme.
Conditional appropriation of funds would be appropriate, but
that wasn't the case here because the farmer was coerced to
join the program.
Charles C. Spending
Steward v. Power
Davis
(1937)
Sustained the unemployment
Abandoned the requirement for distinction between
compensation provisions of the Social conditional appropriations and appropriations requiring
Security Act. Unlike Butler, funds
binding promises.
were not earmarked. Employer was
entitled to a credit of up to 90% of the
federal tax for any contributions to a
state unemployment fund certified by
a federal agency as meeting the
requirements of the act.
Helvering
v. Davis
(1937)
Spending
power
Upheld the old age benefits
provisions of the Social Security Act,
a federal program that established an
entirely federal program.
Upheld because Cardozo found that a system of old age
pensions is best left to national interests.
Congress has broad discretion to determine spending for
general welfare; problem is a national one.
Oklahoma
v. CSC
Spending
Power
Federal govt, offers 90% of road
money on condition is that Hatch Act
must apply to every employee
involved.
OK wanted an elected highway
commissioner, SCOTUS upholds
federal power if OK wants money
they need to have an non-elected
highway commissioner
Oklahoma v. Civil Service Commission grant o highway
funds given on condition that no state highway employee is
elected. Spending is valid since means (condition) are related
to the end (building the highway) since elected official may
give preference to certain constituents.
Woods v.
Miller Co.
(1948)
War Power
Congress sought to impose rent
controls because of the post-war
housing shortage.
Court held that even though actual combat had terminated, a
state of war still technically existed, additionally the court had
a right to take all N&P means to remedy the post-war
problems.
Missouri v. Treaty Power Congress has the power to make
Holland
treaties, and the states must follow.
(1920)
McCulloug Modern
h v.
Federalism
Maryland Limits on
National
Powers
IS THERE A PARITY OF
INTERGOVERNMENTAL
IMMUNITES??? NO-Marshall says a
national tax on a state bank would be
invalid. Why not? Everybody is
represented in Congress so there is a
national political process. Not all
people of the US are represented in
Maryland's political process. If all the
people of the US are represented in
Congress, then we have a check
because those who impose the tax are
taxing their own constituents.
However, the TAX MUST BE UNIFORM according to the
constitution. So you can't only tax South Dakota. The dictum
is that the national govt can tax a state bank-this dictum does
not hold up initially--The initial fate is that Marshall's dictum
is rejected. COLLECTOR v DAY (1871) rejects this; then at
362 GRAVES OVERRULES THIS AGAIN.
In the years after McCullough, federal immunity from state
taxes grew.
State immunity was not reciprocal, but after the Civil War,
state immunity grew. Then after the 1930's, state immunities
shrank again.
CASE GROUP
Collector
v. Day
Heverling
v.
Gerhardt
RULE
ANYTHING ELSE IMPORTANT?
State
immunity
from federal
taxation
State judges salary is immune from
national taxation-the state is immune
from national taxation so the
employee is derivitively is immune
from tax.
Really a decision that state's are immune from national
taxation. DERIVITIVE IMMUNITY.
Contraction
of state
immunity
Two guiding principles when
Didn't overrule Collector, only limited it to its own facts.
deciding whether state instrumentality
should be immunized from national
What is the constitutional source of state immunity from
taxation
national taxation or state immunity from national regulation?
Federalism – structural principles – derived from
1.Excludes from immunity activities constitution... no-one can deny constitution defines a federal
not essential to preservation of state
government.
governments though the tax collected
from state treasury
The whole constitution points to having two separate
a.Want to see gain from limiting
governments – state and federal. The power to tax is the
national taxing power
power to destroy.
2.Burden on state government should
be other than speculative
a.Should be some corresponding
tangible protection to the state
b.All the state is losing here is ability
to pay employees less than going rate
“the State is as sovereign and independent as the general
government.”
Graves v.
O'Keefe
No immunity of federal employees
Collector v. Day overruled.
from state income tax.
No implied constitutional immunity
from income taxation of the salaries
of officers or employees of the
national or a state government or their
instrumentalities.
New York
v. United
States
(Mineral
Waters
Case)
As long as its not discriminatory, and
as long as we don't tax a state as a
state, then the tax is fine. Although
NY had a conservation interest, they
were still acting as a company – and
that can be taxed.
Look at how ALL the states operate,
to see what ONLY a state can own.
Stone's Concurring – a non discriminatory tax criteria is not a
good criteria. “the problem is not one to be solved by a
formula.” The limitation upon the taxing power of each (state
and federal governments), so far as it affects the other, must
receive a practical construction which permits both to function
with the minimum of interference each with the other.
Black and Douglas dissent – any activity that they engage in
within its police power should be considered a legitimate gov't
activity; constitution is a compact between sovereigns; want to
see the feds and state as co-equals.
Automatic Couplers are required!
This is an interstate commerce
rationale case.
State-owned railroad at port of San Francisco; state owned RR
is charged with federal violation; they did not have the auto
couplers. Stone says if in southern railway we have to worry
about a private railway having an accident disrupting IC, the
problem is just as present if a state owns the RR.
Cal v.
Daley
(Haley?)
RAILWAY LABOR ACT-national
govt can delay strikes.
Interstate Commerce case
Sets rules for col bargaining. CA says no col bargaining;
court says national requirement for col bargaining must be
used.
Case v.
Bowles
WAR POWER STATUTE
EMERGEGNCY PRICE CONTROL
LEGISLATION
STATE OF WA sells timber to run a public school systemthe court says WA can't do this against the price regulation;
national interest in controlling inflaction is more important
than state interest in education.
California
v. US
National
Government
can regulate
states
Congress imposes price limits to hold
down inflation during war.
Maryland
v. Wirtz
National minimum wage upheld for
state employees.
Interstate Commerce
CASE GROUP
Oklahoma
v. Civil
Service
Fry
First modern
signal of
growing
sensitivity on
the Court to
federalistic
limits
North
Carolina v.
Califano
National
League of
Cities
Gives new
vitality to
state
autonomy
RULE
ANYTHING ELSE IMPORTANT?
If you want to get highway funding,
must structure it the way we want to
do it. Government has a legitimate
interest in how their money is spent.
Seems like if wages paid are an essential state function, then
the highways and roads also seem to be an essential,
traditional state role. So this case, which tolerated
governmental interference? OK still good law b/c it was
controlled by spending power, not the commerce power.
Sustained the application of
temporary federal wage controls to
state employees, but opinion was
narrow, because Fry concerned a
national emergency.
Carved out exception to the “limitless” commerce power.
Fry – balancing
Limits imposed by commerce power, don't apply when using
war power, spending power, or to enforce the 14 th amendment.
Commerce Power limits
Conditions for national aid to the
states for hospitals, medical care –
provided states had to undertake a
certain kind of economic regulation to
hold down the cost to deliver medical
care – was inconsistent with North
Carolina constitutional limits.
Response - “Look at footnote 17 –
regarding Fourteenth Amendment.”
The supreme court allowed this-you got to break your
constitution to get national money. So limits on Commerce
Power are not the same as limits on other powers.
Why not? Brennan in dissent says that spending power could
be used to get around this-but if the interference is the same
why does it matter which power is used.
Court held that the 10th Amendment
barred Congress from making federal
minimum wage and overtime rules
applicable to state and municipal
employees.
Three part test for invalidation:
1) Statute must be regulating states as
states
2) Must be addressing matters that are
indisputably attributes of state
sovereignty
3) Compliance would directly impair
the ability of states to perform
integral features of state regulation.
Violated the 10th Amendment sentiment that Congress many
not exercise power in a fashion that impairs the State's
integrity or their ability to function effectively in the federal
system because compliance would have cost the states and
their municipal subdivisions substantial sums, and the rule
stripped the states of their discretion to decide how to allocate
a fixed pool of funds available for salaries.
Doesn't overrule Fry.
Dissent wanted a balancing test – national interests vs.
intrusion on the states.
FRAMEWORK
Three types
of National
Statutes
1) Regulate private sector (under any
power)
2) Regulate states and sometimes
local activities - Garcia
3) Regulate states as agents to
regulate private sector OR
establishing an agency
1) Using the spending power or commerce power to regulate
private activity, less room for states to regulate. Ex.
Regulations that individuals be paid a certain wage. Ex.
Hodel – Congress' power to regulate surface mining because it
leaves ugly scars on earth – under the Commerce clause.
2) Like National League of Cities – extending rules of private
activities to the public sector. Ex. Regulating states as states
– as a result, states can raise taxes or cut funding in some other
area.
3) Get states to pay and enforce national law. Ex. Hodel –
using states to determine nationally-created standards, within a
year, 35/38 states with surface mining decided to appropriate
funds. Ex. “cooperative federalism”
Hodel v.
Virginia
Surface
Min. &
Recl. Ass'n
Category 1 –
regulates
private
activity
Court re-stated the three part National
League of Cities test. Hodel rejected
pre-enforcement facial challenges,
based on the commerce clause and the
10th Amendment, to surface mining
control and reclamation Act, a law
which imposed significant limits on
private mining operations.
1.There must be a showing that the challenged statute
regulates the States as states – FAILS HERE!
2.The Federal regulation must address matters that are
indisputably attributes of state sovereignty
3.It must be apparent that the state's compliance with the
Federal law would directly impair their ability to structure
integral operations in the areas of traditional governmental
functions
10th Amendment challenge fails because #1 in the test failed.
Can't invalidate. This does not require the states to participate,
Feds can do all the regulating. However, if a state wants to,
then they CAN establish a program of “cooperative
federalism” that allows the states within limits established by
the federal minimum standards, to enact and administer their
own regulatory programs.
CASE GROUP
RULE
ANYTHING ELSE IMPORTANT?
United
Category 2 –
Transporta states as
tion Union states
v. Long
Island
Railroad
Co.
Court focused on part 3 of the Hodel
test.
RR operation not typically a state function (usually private
sector).
State policy is overridden.
Railway Labor Act is designed to deal with employeremployee disputes. Congress says no strikes unless there has
been mediation and a cooling off period.
Ferc v.
Miss.
Not invalid because there was an
immediate effect on interstate
commerce.
No interference with traditional
functions, so not invalid.
As for state autonomy -
EEOC v.
Wyoming
Congress suggests regulation standards for electric & natural
gas facilities
1.WI objected because they had jumped through procedural
hoops and done all they wanted to do
-States had to go through administrative proceedings to decide
whether to adopt national standard OR
-They couldn't regulate at all
-State regulation of electric & natural gas is preempted (this is
a position like Steward Machine)
National law pre-empts a Wyoming
law, when Wyoming Game Wardens
must retire after age 55.
Used the 3-part test from Hodel, National League: Part 1) met,
Part 2) Majority doesn't decide, Part 3) “Directly Impair” - no
So, not invalid.
There is sufficiently less serious degree of intrusion, so it is
unnecessary to curb Congress's decision to extend its
regulatory authority.
La Pierre thinks this was correctly
decided
The Fair Labor Standards Act at issue here is the only one
ever held unconstitutional (now as applied to city of San
Antonio)
Garcia v.
San
Antonio
Category 2
South
Dakota v.
Dole
Category 3
Congress enacted a law which
directed the secretary of
transportation to withhold 5% of
federal highway funds to state with a
drinking age of less than 21 years old.
Congress may use the spending power to induce states to
cooperate with regulations in areas that are not easily
controlled. Compliance with this law is voluntary and the
stakes are not high. Additionally, if the funds are accepted by
the state, the conditions are laid out unambiguously and are
fully understood by the states.
NY v.
United
States
Category 3
Statute invalid, Congress may not
simply commandeer the legislative
process of the State by directly
compelling them to enact and enforce
a federal regulatory program.
Congress was forcing NY to choose
between 2 unconstitutional options.
- Congress can regulate by giving
states incentives, so that state chooses
to accept regulation & get federal
benefit, or not. OK so long as choice
exists
- 10th amendment is a truism, but
doesn’t make it meaningless;
confirms the background
understanding that federal
government can’t displace state role
-Congress cannot tell states to regulate, nor can it tell states to
take title to something, so it can’t give them the “choice”
between two unconstitutional means. Can’t force states to
enact or administer programs. To do otherwise is
commandeering
- White dissent: This was something that states actively sought
as a resolution to a collective action problem; majority’s
“civics lesson” assertion of federalism as protecting freedom
rings hollow when compared to this crisis of figuring out how
to dispose of nuclear waste; Congress could attain the same
goals through other powers (condition grants under the
spending clause on taking title, for ex.)
- Majority response: it doesn’t matter if the states wanted this.
Individual political actors might prefer to do away with
balance (shift responsibility), but federalism doesn’t exist at
sufferance of states; it’s for the preservation of individual
liberty
- Stevens concurrence/dissent: Why can’t federal government
tell states what to do here? They can and do direct state
officers all the time.
Issue of Congress regulating SAMTA
Incidentally, San Antonio wages were well above the
- extension of rules for private
minimum (Blackmun may have had national across-the-board
sector applied to public sector
standards on his mind)
National League of Cities overruled
1.Unworkable decision - to hard to
Majority – only wants political process as a safeguard to
figure out what fit
decide protection of state sovereignty. The effectiveness of
2.Tripartite test of NLC and Hodel too the procedural limit is evident by the fact that the states are
difficult
exempt from the operation of many federal statutes and
receive significant federal aid for their own programs.
Overrules National League of Cities
CASE GROUP
RULE
ANYTHING ELSE IMPORTANT?
Printz v.
US
Category 3
Statute invalid, the court concluded
that the Brady Bill violated the
provision of NY v. US which said that
the federal government may not
compel the states to enact or
administer a federal regulatory
program.
Court found that the responsibilities take away from the duties
of the police and diminish the balance of power in the
branches of government.
La Pierre: Court has a problem with provisions under which
the federal government compels states to take certain steps.
However, Congress CAN condition funds, give states a
choice, etc.
*Distinguish Printz and NY from Garcia? Garcia – statute
was generally applicable to states and private enterprise. P &
NY – federal government was trying to force a state or local
government to enact legislation or regulation or tried to force
state or local officials to perform particular governmental
functions. This is violating the state's basic exercise of
sovereignty.
Reno v.
Condon
Category 2
FACTS? Statute upheld, in enacting
this statue, Congress did not run afoul
of the federalism principles
enunicated in NY v. US and Printz.
(Category 3 cases.)
This is within the commerce power to
regulate. This is a law of general
applicability – regulates both the state
and those who have acquired the
information and it applies to the
public and private sector. National
government is not burdening the
public sector more than the private
sector.
Although the court talks about general applicability – doesn't
insist on it. Leaves open the possibility of circumstances that
we don't need general applicability... may be some laws that
fall exclusively on the public sector that are constitutionally
valid.
Fits under the commerce clause in 2 ways - “thing in IC”,
substantial impact
General
Info.
Dormant
Commerce
Clause
Article 1,
Section 8
Dormant Commerce clause is used
when Congress has been silent on an
issue, it has taken no action, express
or implied, indicating its own policy
on a given subject matter. The
objection to state authority rests
entirely on the dormant commerce
clause. On the unexercised
commerce power itself, and on the
free trade value it symbolizes.
Distinguished from the Commerce Clause power – in this
situation, Congress has exercised the commerce power, has
indicated its legislation which compels inconsistent state
action to give way – by virtue not only of the exercise of the
commerce power under Article 1, Section 8, but also because
of the effect of the supremacy clause in Article 6.
COURT'S JOB FOR DCC:
1.Inquire into state ENDS
2.Scrutinize means-ends relationship (to what extent does state
law achieve this end?)
3.Look at burden on interstate commerce
4.Look at interest state intones (economic? Health & safety?
Can't have bad purpose)
Gibbons v. Not really a
Ogden
DCC case
Marshall found the New York
steamboat monopoly grant to be in
conflict with the federal laws
licensing those engaged in coastal
trade.
State law invalid under the supremacy
clause of Article 4.
No analogy between tax and
commerce power.
Yes, states can have these laws, but source is not from any
power to regulate commerce.... source is the background set of
powers, “police powers”.
State power to regulate local activity, comes from police
power. National power to regulate local activities comes from
the fact that the local activity has an affect on commerce.
And supremacy clause lets national law win.
Wilson v.
Black Bird
Creek
Marsh Co.
DCC
Act authorizing the building of a dam
in the creek (which flowed into the
Delaware river) was not repugnant to
the Commerce Clause.
Court noted that the Act was trying to enhance property value
and the health and safety of the inhabitants. Proper use of
police powers.
Cooley v.
DCC
Board of
Wardens of
the Port of
Philly
The Pennsylvania law of 1803 was
struck down because the states were
divested of this power by the grant of
the commercial power to Congress in
an act of 1789.
There are national and local subjects
of commerce.
Court has now abandoned Cooley doctrine.
CASE GROUP
RULE
ANYTHING ELSE IMPORTANT?
Buck v.
DCC
Kuykendall
Judicial inquiry into the purpose
Buck was struck down because it seemed to rest on economic
regulations
Bradley v.
Public
Utilities
Comm'n
DCC
Judicial inquiry into the purpose
Upheld because seemed to rest on safety concerns
Georgia
Railroad
cases
DCC
Judicial inquiry into the effect
1st case – law upheld, safety measure, slow down and blow
the whistle
2nd case – railroads provided evidence that compliance with
the GA law would turn a normally 4.5 hour run to a 10 hour
run. Law rejected!
S.C. State
Highway
Departmen
t v.
Barnwell
Bros.
DCC
(Modern
Balancing
Approach)
RR and Trucking Cases
They upheld the S.C. Law.
As long as the state does not
discriminate, the burden is one which
the Constitution permits because it is
an inseparable incident of the exercise
of a legislative authority, which under
the Constitution, has been left to the
states.
Two part test:
1) Whether the Legislature in adopting regulations such as the
present has acted within its province (ends).
2) Whether the means of regulation chosen are reasonably
adapted to the end sought.
Stone does not look into the affect.
Stone does not scrutinize the legislative basis.
No inquiry into the burden on IC.
*Use this case if: defending state laws.
Southern
DCC
Pacific Co.
v. Arizona
RR and Trucking Case
Arizona Train Limit Law prohibited
operating railroad trains of more than
x cars struck down.
Stone uses the balancing test. Balances the burdens on IC –
which seem to be plenty; with the state's interests – which
seem to be conflicting w.r.t. safety.
Stone also goes beyond Barnwell and scrutinizes the
means/ends.
Difference b/w this and Barnwell articulated by the court –
this is a RR case.
*Use this case if: defending economic interests that are
regulated by state laws.
Bibb v.
Navajo
Freight
Lines, Inc.
RR and Trucking Case
This is the first case when the court
decided to exercise greater scrutiny
that in Barnwell w.r.t. trucking.
State law was that you had to use
contour shaped mud flaps. This law
was struck down.
The truckers argued that getting new mudguards would be too
costly, but this was not enough.
However, 45 states required straight mudguards. This was
important because the effect – would require truckers to shift
their cargo to completely different trucks. This essentially
runs afoul of the policy of free trade reflected in the
Commerce Clause. Burdens IC!
State's interest – safety (even though the trial court found that
the contoured were no more effective than straight) – interest
is illusory!
Douglas looks to see whether the regulations actually work to
offset the costs – would have been different if there were a
stronger showing of safety.
RR and Trucking Case
An Iowa statute prohibits the use of
certain large trucks within the State –
this was held to unconstitutionally
burden IC.
The total effect of the law as a safety
measure in reducing accidents and
casualties is so slight and
problematical that it does not
outweigh the national interest in
keeping interstate commerce free
from interferences that seriously
impede it.
All burdens are imposed out of state –
Iowa's highways don't get wear and
tear. (Even though the statute did
allow these kind of trucks to go to the
border cities.) When the legislature is
burdening those who do not
participate in the political system,
then it is time for judicial
intervention.
Four part test:
1) Look at the state's means
2) Identify means/ends relationship
3) Identify burdens imposed on IC
a. Higher costs
b. More singles on the road = more accidents
c. Burden of de-coupling
4) Balancing tests – state interests vs. burden on IC
Brennan concur – even if you use Barnwell, this does not pass.
Wants rational basis – and look at the legislation's face value.
Rehnquist dissent – useless to speculate why legislators voted
for certain policies. Line-drawing is not for the court; state
legislature is more intimately attached to the issue. Does not
like balancing.
Be careful using transportation cases in other contexts –
these are in a field of their own!
DCC
Kassel v.
DCC
Consolidat
ed
Freightway
s Corp.
CASE GROUP
RULE
ANYTHING ELSE IMPORTANT?
DCC
Milk Cases
NY statute wanted to say you have to
buy milk at a certain price, was
invalidated. NY refused to license
Seelig to sell milk in NY unless it
agreed to conform to the state's price
regulation regarding the sale of
imported milk. Court held that to be
unconstitutional.
Cardozo does not allow this because
of the BURDENS/EFFECTS on IC.
Court held that this amounted to a customs duty, which is
unconstitutional. This is economic protectionism of the NY
dairy farmers.
Cardozo says this is economic, but can also view as safety
purpose. NY state children need milk and NY has an interest
in making sure there is a steady supply.
Court says we can always find a health and safety measure
lurking behind an economic purpose, but the reverse is true as
well.
PURPOSE: Aim and effect of establishing an economic
barrier against competition of products of another state.
Henneford DCC
v. Silas
Mason Co.
State taxes stuff coming in at the
same rate that in-state stuff was
already taxed at. The purpose is
economic, protecting local retailers
from people going out of state to buy.
Distinguish from Baldwin – Baldwin eliminates the
competition because everybody is paying the same price.
Here, just add 2% to everybody's overhead, but the cheapest is
still the cheapest.
Breard v.
DCC
Alexandria
Prohibited door-to-door solicitation of
orders to sell goods except by consent
of the occupants. No constitutional
objection to the ordinance.
Even though there might have been an effect of discriminating
against IC. Because its purpose was to protect the privacy
rights of homeowners, not to provide an economic advantage
to local businesses.
Mintz v.
Baldwin
DCC
Upheld a NY law prohibiting the
importation of cattle unless the were
from herds certified as being free
from Bang's disease.
This was considered to be a health and safety purpose!
Welton v.
Missouri
DCC
Invalidated a MO license requirement Purpose – H&S? Shoddy techniques were the same in state
for OOS peddlers. The law applied
and OOS, hard to argue sanitation end.
only to peddlers of merchandise;
Seems real purpose is protecting economic interest.
peddlers of MO goods did not need a
license.
Dean Milk
Co. v.
Madison
DCC
Milk Cases
Ordinance barred the sale of
pasteurized milk unless it had been
processed and bottled at an approved
pasteurization plant within five miles
of the central square of Madison.
Court strikes statute.
Court says this is a health and safety regulation.
However, in practical effect, it excludes from distribution in
Madison wholesome milk produced and pasteurized in
Illinois.
This took a new view – in town vs. out of town interests,
rather than just in state vs. out of state interests/burdens.
Burdened parties cannot participate in the political process.
Reasonable alternatives were available.
Justice Black Dissent – no burden because any milk producer
can bring their outside milk into Madison to have it
pasteurized and sold in Madison.
Milk Cases
Mississippi tried to enact a reciprocity
agreement that wouldn't allow LA
milk unless LA allowed Miss. milk.
Court struck down.
Uses the Pike Test – p. 317 – when a
law is burdensome! Burden is on
the challengers of the law to say
that it is burdensome. Pike Test:
1) Legitimate local interest
2) Effects on IC incidental
3) Legislation upheld unless the
burden imposed is clearly excessive
in relation to local benefits.
4) Also, can it be promoted with a
lesser impact on IC?
Court said that a self-help, reciprocity agreement is not
allowed, should have taken LA to court if they thought LA
was behaving badly by not accepting their milk.
Reciprocity agreement here is definitely not a H&S measure,
because they would have taken the LA milk as long as LA
signed the agreement.
Miss. Had the obvious alternative of inspecting the LA
shipments of milk to their own standards (Dean Milk teaches
us that the burden of the reciprocity clause cannot be justified
in view less burdensome means.)
Baldwin v.
Seelig
Great
DCC
Atlantic &
Pacific Tea
CASE GROUP
RULE
ANYTHING ELSE IMPORTANT?
Hunt v.
DCC
Wash State
Apple
Advertis.
Comm.
When a regulation is
discriminatory – use the Hunt Test!
Shifts the burden to the lawmakers,
to justify that it WASN'T
discriminatory.
NC Statute saying that all containers
of apples should bear UDSA grade or
none at all. WA apples have their
own stamp, NC doesn't want to allow.
Consumer protection? Not likely, since they allow for no
grade at all.
Balancing test applied.
1) burdens and discriminates against IC – increased costs of
OOS growers, WA loses competitive advantage.
2) Discriminatory, since NC apple growers were behind
legislation.
Burden falls on state to demonstrate non-discriminatory
alternatives – failed to sustain burden. Failed means/end
inquiry: Illusory end, does not provide consumers w/ helpful
information, consumers don't buy the containers – distributors
do!
Alternatives – Require grades at least or beyond USDA grade.
Discrimination against WA outweighs the burden that the state
proved.
Exxon v.
Governor
of MD
1973 Gas shortage – MD statute
prohibited producers and refiners of
petroleum from operating gas stations
in MD.
8-1 majority opinion, majority says
no burden imposed. 34 OOS nonproducer/refiner companies in light of
3,780 local retailers. Others can still
compete in the market, the flow of
gas in IC will not cease. No
discrimination on sales once gas is in
state. Plenty of OOS retail dealers
left to compete with MD independent
retailers.
Blackman says that the discrimination does not have to be
universal to be discrimination., because of Hunt. The big
problem for Blackman is that almost all of the burdens are
hitting out of state people. Majority doesn't care because this
does not impede ISC. But this is probably because MD has no
refineries. MD is an anamoly. This is the law today! Law
invalid since the discrimination exists with respect to the
retailers, since 98% of the affected retailers are owned out of
state and so have no recourse to the legislature. By Hunt, no
need for 100% discrimination to be discriminatory law.
HUNT TEST:
1) Burden falls on State to justify the
legitimate local benefits to justify
inequality
2) Show that alternatives are
inadequate
a. State has an interest in fostering
competition in the market place
b. Don't let them favor their own
stations
3) At least one non-discriminatory
alternative (e.g. Prohibiting
competitive pricing)
4) MD has not knocked out ALL
competition, just clobbered the most
effective OOS competitors. Very
clever, but discriminatory.
Blackmun dissents and La Pierre agrees w/ him.
Milk Cases
Hood was a Boston milk distributor
who obtained milk from NY
producers and maintained three
receiving depots there, sought a NY
license to establish a fourth. NY
commissioner denied a license for the
depot under the state law stating that
licenses for new plants could not be
issued unless the commissioner was
satisfied that “issuance of the license
will not tend to a destructive
competition in a market already
adequately served, and that the
issuance of the license is in the public
interest. LP: The denial of the NY
receiving depot is a direct restriction
on the amount of milk that Hood can
purchase in NY for distribution in
another state.
Although states may impose even burdensome regulations in
the interests of local safety and health, this was a purely
commercial interest . Therefore, a state may not use its
admitted powers to protect the health and safety of its people
as a basis for suppressing competition. Because this statute
has the prohibited effect, it is invalid.
H.P. Hood
& Sons v.
Du Mond
DCC
DCC
Limiting
OOS-ers to
local
products and
resources.
La Pierre – wants us to think about considering distinction
between 197 OOS and 34 non-p/r
Dissent – Black – The language is not discriminatory, it was
not intended to be discriminatory, and it was not administered
in a discriminatory way. The real issue is whether all phases
of interstate business are judicially immunized from state laws
against destructive competitive business. Not up to the Court
to revise a state's economic judgment.
Dissent – Frankfurter – This case should be remanded. We
should balance the state's interest in the prevention of
destructive competition with the effect that the act would have
on IC.
CASE GROUP
RULE
ANYTHING ELSE IMPORTANT?
But the way it was written – PA rule imposed burdens on their
own constituents.
NY is bumping up price on all dairy farmers, out of state as
well; imposing burdens on out of state farmers too.
The purpose of the law obviously is to reach a domestic
situation in the interests of the welfare of the producers and
*Compare to Baldwin – Distinguished consumers of milk in PA. In rejecting the challenge, he
because that act attempted to wholly emphasized that the activity affected was essentially local in
affect interstate commerce by setting PA. If dealers who shipped any fraction of their milk outside
up a tariff barrier against milk
the state were exempt, then there would be a crippling effect
imported into the enacting state.
on local enforcement of the law. Additionally, only a fraction
of the milk produced in PA is shipped elsewhere, so the effect
Winners – PA dairy farmers, hav ea
on IC is minimal.
minimum price floor
Losers – NY milk consumers, PA
consumers, all milk dealers
Milk
Control
Board v.
Eisenberg
Farm
Products
DCC
Milk Cases
Sustained the application of a PA
minimum price regulation to a NY
milk dealer who bought milk from PA
for shipment out of state.
Cities
Service
Gas Co. v.
peerless
Oil & Gas
Co.
DCC
Court rejected a commerce clause
attack on a state regulation of natural
gas prices designed to conserve an
important local resource. An OK
agency fixed a minimum price on all
natural gas taken from a field,
requiring a pipeline company to pay
more than the prevailing rates. Most
of the gas was destined for consumers
outside of OK.
Law is valid, applies to all gas taken from the field, whether
destined for in state or out of state.
Waste Cases
Court held unconstitutional the NJ
law which prohibited the importation
of most “solid or liquid waste which
originated or was collected outside
the territorial limits of this state.”
Regardless of its purpose, a state
cannot discriminate against
movement of goods in IC. LP: The
court finds that the law is
discriminatory on its face, and in
purpose, and the court recognizes a
long standing per se invalidity rule for
state legislation with the intent of
simple economic protectionism
(Baldwin, Buck, Welton).
Hunt test – once there is a showing of discrimination – burden
shifts to state to show that the legitimate state interest
outweighs the discrimination and that there are no other less
discriminatory means to achieve the state's end.
This statute is different than in Hunt, because it is
discriminatory on its face, so didn't use the Hunt test.
Stewart (maj) sees this as economic protectionism.
Pennsylvan DCC – state
ia v. West restraints on
Virginia
exports of
natural
resources
West Virginia required that all local
needs for natural gas be met before
any gas could be exported. Majority
found that requirement a “prohibited
interference” with IC.
Dissent – Holmes – could see nothing in the commerce clause
to prevent a state from giving a preference to its inhabitants in
the enjoyment of its natural advantages.
Foster
Fountain
Packing
Co. v.
Haydel
DCC
LA statute prohibited export of
shrimp until heads and shells had
been removed. LA said needed the
heads and shells for fertilizer.
Invalid
Court – prohibition was an effort to force the packing
industry to locate from neighboring Mississippi back to
Louisiana.
Pike v.
Bruce
Church
DCC
Modern home-state processing
requirement. Arizona required that
cantaloupes be packed in Arizona,
and identified as coming from an
Arizona packer. Invalid.
AZ wanted to ensure that they got
“Arizona Grown” stamp and wanted
to enhance AZ reputation.
Yes, interest was legitimate, but didn't outweigh the burden
imposed on interstate commerce.
Where the statute regulates even-handedly to effectuate a
legitimate local public interest, and its effects on interstate
commerce or only incidental, it will be upheld unless the
burden imposed on such commerce is clearly excessive in
relation to the putative local benefits.
Philadelph DCC
ia v. New
Jersey
Winners – local OK people, hold on to their gas reserves.
Losers – NG companies and consumers
Rehnquist – dissent – Takes seriously the health and safety
purpose of the legislation and equates it to legislation
establishing quarantine laws.
CASE GROUP
RULE
ANYTHING ELSE IMPORTANT?
Hughes v.
Oklahoma
DCC
OK law forbidding any person to
transport or ship minnows for sale
outside the state which were procured
within the waters of the state, invalid.
The law was facially discriminatory (used the Hunt test),
while it may have served a legitimate purpose,
nondiscriminatory alternatives were not considered by the
state.
*So should have applied the “virtual per se rule of invalidity”.
(Like in Philadelphia).
Rehnquist – dissent – thinks its not discriminatory, so use
Pike, and it easily survives the Pike test. The law says “noone” can take the minnows out. Applies alike to both in-state
and out of state minnow growers.
Minnesota
v. Clover
Leaf
Creamery
DCC
Upheld a statute that banned the retail
sale of milk products in plastic
nonreturnable containers but
permitted sales in nonreturnable
containers – mainly containers made
of pulpwood. Legislature found that
the use of nonreturnable containers
presents a solid waste management
problem, promotes energy waste, and
depletes natural resources. Plastic
containers originated out of state,
pulpwood is a major instate product.
State interests outweighed the interstate burden.
This is the place to go if you need to validate state ends!
Court accepts at face value , the state's articulation of
ends.
No approach with a lesser impact on interstate activities is
available.
Uses Pike test.
Maine v.
Taylor
DCC
Court upheld a Maine statute
prohibiting the importation of live
bait-fish because of the adverse
biological consequences of nonnative
species and parasites.
Court has upheld express discrimination against interstate
commerce where the statute serves a legitimate local purpose
that cannot be served as well by an available
nondiscriminatory means. (Proved that testing and screening
wouldn't work. No alternatives!)
American
Trucking
Associatio
ns, Inc. v.
USF
Holland,
Inc.
DCC
Michigan Statute – flat $100 fee for
trucks moving intrastate
P – Interstate trucking companies,
complaining because if they only
have a small amount of business, or a
small number of trips through
Michigan, then they are paying more
money per trip than a company who
only, and frequently, travels
intrastate.
Upheld the statute.
On its face – did not discriminate, applied even handedly to all
carriers. Why didn't court pay attention to P's argument?
Because the record contained no evidence that P's argument
mattered... that it actually affected anything.
Neither burdens nor discriminates.
On its face does not discriminate—everybody pays they same
so this applies EVANHANDEDLY.
*Since this is not discriminatory on its face but seems to be
even handed, the challenger has to show us the burden.
*This is the PIKE BALANCING TEST—so the challenger
must prove the burden and prove what is wrong with this
statute.
*There is no burden and no discrimination, so not violating
the dormant commerce clause.
This is also EXXON.
Granholm
v. Heald
DCC
Invalidated MI and NY laws
providing that in-state wineries could
ship wine directly to consumers, but
OOS wineries could not. Laws
discriminate against IC. This is
explicit discrimination against IC. It
mandates different treatment of instate and OOS economic interests that
benefits the former and burdens the
latter. Mere fact of non-residence
should not foreclose a producer in one
State from access to markets in other
States.
Necessity for reciprocal sale privileges risks trade rivalries and
animosities.
Essentially – this is a low level trade war!
*Invalidity per se, facially discriminatory.
*21st Amendment does not allow States to regulate the direct
shipment on terms that discriminate in favor of in-state
producers.
CASE GROUP
South
Central
Timber
Dev., Inc.
v.
Wunnicke
Exceptions to
DCC – but
really this
WAS a DCC
case, b/c
didn't qualify
for Market
Participation
Exception
RULE
ANYTHING ELSE IMPORTANT?
Market Participation Case
This case allowed Alaska to include
in its contracts a clause requiring that
the purchaser would partially process
the timber in Alaska before it was
shipped out of the state. Designed to
protect existing timber-processing
industries, promote new industries,
and derive revenue from the State's
timber resources.
IF Alaska is acting as a “market participant” rather than as a
market regulator, then the dormant commerce Clause places
no limitation on the activities.
HOWEVER – holds that it was regulating.
Just because a contract was involved, doesn't mean that this is
a “market participant” case.
Analyzes Hughes, Reeves, and White
Distinguish from White – limit of the market-participant
doctrine must be that it allows a State to impose burdens on
commerce within the market in which it is a participant.
Market must be narrowly defined (like in White – state
employees)! Court says – Alaska is not a market participant
in the timber processing market.
Scrutinized under Pike – cannot
survive scrutiny.
Hughes v. Exceptions to
Alexandria DCC
Scrap
Corp.
Reeves,
Inc. v.
Stake
Market Participant Case
Metal processors – junkyards / scrap
yards
Receive a bounty for every car they
crunched into a pile of metal
Junk yards would share this bounty
with towing trucks
If you were a Maryland junkyard – to
get bounty, needed next to nothing
documentation that the vehicle was
abandoned. If out of state – had to
have much more extensive
documentation. If you own a tow
truck – obviously going to bring the
vehicles in state.
Exceptions to Market Participant Case
DCC
Government ownership of cement
plant – SD. Cement plant produced
far more cement than could be used in
SD. Between 1970 and 1977 – 40%
was sold out of state. 1978, SD
enjoyed an economic boom – demand
for cement rocketed. In state demand
exceeded supply of state-owned
cement plant. State government
adopted a policy – no cement
produced at the plant should be sold
outside of SD until in-state demand is
satisfied.
Court – state's activity as a market participant – not subject to
dormant commerce clause scrutiny. This clause is supposed to
be concerned with the state as a regulator, the state regulating
private markets.
THIS case was more like... a state as a buyer of goods.
Yes – Market Participant.
Supreme Court holds – State's decision to sell its state-owned
cement instate only, is not subject to the dormant commerce
clause scrutiny. It is not a market regulator.
State as a seller of goods!
If there is a cement problem: privatize, subsidize, gov't
ownership (market participant case), i.e., socialism—three
possible solutions to the a cement problem or transportation.
ALL THREE WAYS OF ACHIEVING PUBLIC GOODS.
White v.
Exceptions to
mass
DCC
Council of
Constructi
on
Employers,
Inc.
What did the mayor of Boston do?
On any construction publics work
project, financed with residents of
Boston, 50% of jobs must be to
Boston residents. How did he ensure
this? Court – dormant commerce
clause does not apply. Mayor is a
purchaser of labor, entered into labor
market, made rule for the city with
respect to purchasing labor.
How did court take this view? What was the mechanism by
which the Mayor went? Spending... here's the money, on this
condition. Must have 50% city employees. What else could
the Mayor have done? This approach: same rule embodied in
an ordinance – viewed as a regulation. However, doesn't the
city have the same regulatory purpose in mind in both
situations? Sure. When city lawyers have read the case...
and its a condition contract, dormant commerce clause
exception. Is that what this boils down to? For now, settled.
Whether good or bad idea, be alert to such circumstances! (In
state AND in town...)
Corfield v.
Coryell
NJ could limit access to its shellfish
grounds b/c this isn't a fundamental
right guaranteed to all people.
Read P&I clause as a guarantee of certain “fundamental
rights” to all citizens, regardless of the rights states have
afforded to its citizens.
All citizens of free governments are clothed with certain
fundamental rights.
Fundamental Principles – difficult to enumerate:
Protection under the gov't
Liberty, pursuit of happiness, right to property...
Subject nevertheless... to things Gov't thinks it has to do to
promote general good.
Privileges
and
Immunities
CASE GROUP
Toomer v.
Witsell
P&I
RULE
S.C. Statute – imposed license fee for
shrimp boats, $25 fee for residents,
$2500 fee for outsiders.
We need more than just “your OOS,
so you must pay more.”
S.C. Hadn't done anything to nurture
or add anything to its fishing – to
sustain this law. But they haven't, so
they are just discriminating.
Baldwin v.
Montana
Fish and
Game
Comm'n
P&I
Court rejected an Art. IV, Section 2
attack on a Montana elk hunting
license scheme that imposes
substantially higher fees on non
residents than on residents.
Uses “fundamental rights” approach.
Elk hunting by nonresidents is not a
fundamental right.
Hicklin v.
Orbeck
P&I
ANYTHING ELSE IMPORTANT?
Must have a reason for the discrimination other than just “in
state vs. out of state” person.
Denying OOSers means of livelihood!
FRAMEWORK FOR ANALYSIS:
· REASON FOR DISCRIMINATION apart from mere fact of
out of state residency
· RELATIONSHIP OF DISCRIMINATION TO THE
PROBLEM: is the regulation closely related to the
discrimination (a means/end analysis)…
· ALTERNATIVE TO DISCRIMINATION are part of the
means/end analysis
Brennan dissent - Dissent – says, he doesn't care if hunting elk
is a fundamental right. He thinks that any discrimination
should have to be justified by the double inquiry.
1) Is the presence or activity of non-residents the source of
problem?
2) Does discrimination practiced against nonresidents bear a
substantial relation to the problem they present
How do we get to trigger that inquiry – state is letting its
citizens do something, not letting outsiders do something.
How does it answer for Justice Brennan what is protected by
P&I clause? Doesn't want court to make value choices...
Brennan would turn to state law. If the state lets their own
citizens do something, it must be important.
Relies on Toomer approach to
invalidate an Alaska law requiring
that residents be preferred over
nonresidents in certain jobs.
Follows Brennan's dissent in Baldwin.
1) Alaska had not demonstrated “that non-residents were a
peculiar source of evil”. Alaska's unemployment problem was
not caused by the influx of nonresidents.
2) Alaska's discrimination against non-residents did not bear a
substantial relationship to the particular “evil” they were said
to present.
United
P&I
Building &
Constructi
on Trades
Council v.
Mayor and
Council of
Camden
Ordinance required that at least 40%
of the employees of contractors and
subcontractors working on city
construction projects be Camden
residents.
Court determined that it did impinge on the fundamental rights
of interstate employees, but remanded to determine whether
there was a substantial reason for the different treatment.
P&I Clause applies to municipalities b/c municipalities exist
by virtue of the state.
Uses this two part test:
1) Is the interest a fundamental right
or a privilege? Yes.
2) Give the state a chance to justify
the burden.
Significant debate between Blackman and Rehnquist –
whether or not we have political checks. Yes – Blackman –
we don't really need a judicial check. Rehnquist –roll for
judicial intervention, because we don't really have a political
check.
New
P&I
Hampshire
v. Piper
NH limited bar admission to state
residents. Court held that it violated
the P&I clause.
Uses same 2-step test:
1) Is it a P&I protected by the clause?
2)What type of interest state has
advanced that are not the same thing
as – just wanting to discriminate... &
whether the rule is related to that
interest.
ALSO – make SURE – to see if there
are less discriminatory alternatives
(like shrimp case)
1)Yes – as an occupation, its important to the national
economy, out of state lawyers are usually willing to represent
persons with unpopular claims.
2)Reasons advanced by the state:
-state citizens familiar with local rules and procedures (what
does court say – state gave no evidence to support that
evidence... AND if you have passed the bar, then why does it
matter where you live.)
-behave ethically (court – all lawyers, regardless of where they
live care about their reputation, care about discipline of bench
and bar, etc.)
-be available for court proceedings (only viable claim! court you can be required to retain local counsel to represent you
and your clients when you cannot get to court in a quick
fashion – less restrictive measure.)
-more likely to do pro bono work in the state (court - all state
has to do is assign pro bono work)
*Why did Rehnquist dissent? Took a nobler view of practice
of law, had a different understanding of state's interests – want
to have state representatives be lawyers.)
CASE GROUP
Perez v.
Campbell
RULE
ANYTHING ELSE IMPORTANT?
Preemption
In a 5-4 decision (typical for
preemption cases) – found that the
AZ statute was preempted. Found a
conflict with the AZ statute and full
scope of National Law.
Perez seeks to get out of paying $, seeks voluntary discharge
in bankruptcy, one of the debts is a motor vehicle violation
tort judgment. Arizona law – discharge in bankruptcy does
not clear you from loss of drivers license and suspension of
registration if you fail to pay motor vehicle judgment. Interest
– uninsured drivers are not good to have on the road, in order
to make people pay, they would lose their license, etc.
Arizona thought uninsured motor vehicle drivers failing to pay
those injured by their negligence was a big problem. BUT...
section 17 of bankruptcy act – purpose of bankruptcy laws, to
give debtors a new opportunity in life, clear field for future,
free from debt. Arizona suspended license, Perez said they
can't do it, b/c inconsistent with bankruptcy debt. AND, he
has a job, can't get to work without his license. Can't get
“fresh start to life” without his license.
Pacific
Preemption
Gas &
Elec. Co. v.
State
Energy
Resources
Cons &
Dev.
Comm'n
Sustained a CA law dealing with the
problem of finding a long-term
solution for nuclear waste.
Background: ATA – federal
government relaxed its monopoly
over fissionable materials, while
promoting civilian development of
nuclear energy and safeguarding the
public and the environment from the
unpredictable risks of a new
technology. States could continue
their traditional role of regulation of
electricity production.
*Shortage of storage space for spent fuel.
*There are both safety and economic aspects to the nuclear
waste issue – first, if not properly stored, nuclear wastes might
leak and endanger both environment and human health.
Second – lack of long-term disposal option increases the risk
that the insufficiency of interim storage for spent fuel will lead
to reactor-shutdowns, rendering nuclear energy an
unpredictable and uneconomical adventure.
HOLDINGS:
1) state law is intruding on turf that congress reserved – court
– yes gov't has the safety element, but looks at this regulation
as an economic regulation (with a small amount of safety
within)
2) Conflict with NRC provisions - NRC – it IS safe to proceed
with these provisions. Court – Federal doesn't REQUIRE
utility to proceed, just permits it. These are not conflicting
rules.
3) CA law frustrates the goal of developing nuclear
technology. Court – promotion of nuclear power is not to be
accomplished at all costs. Preservation of state regulation in
traditional areas belie that.
THIS IS AN EXAMPLE OF – giving states deference.
Now days – less sympathetic
Florida
Lime and
Avacado
Growers
Invalid preempted because conflicts
with statute enacted under commerce
power
Involed avocados certified as mature under the federal
regulations but containing less than the minimum CA oil
content ?
Preemption
CASE GROUP
C&A
DCC
carbone,
Inc. v.
Town of
Clarkstown
RULE
ANYTHING ELSE IMPORTANT?
Clarkstown enacted a flow control
ordinance, which required that all
solid waste be deposited at a station
they wanted to finance.
Holding – a local government cannot
require that all solid waste within its
boundaries be processed by a specific
local processor.
Economic effects reach IC – deprives
out of state businesses access to local
market, increases private collector's
costs, etc.
City complained that it was not discriminatory b/c it applies to
all waste, before it leaves town.
Court - it DOES discriminate b/c it allows only the favored
processor to process waste within the town's limits. This is
just an example of local processing requirements that have
been held invalid – like Dean Milk.
This case – even more restrictive than Dean Milk b/c it leaves
no room for outside investment.
Discrimination against IC in favor of local business is per se
invalid, unless the municipality has no other means to advance
a legitimate interest. D has a variety of nondiscriminatory
means; fundraising is not adequate to justify discrimination
against OOS business.
O'Connor – concurrence – D's ordinance is different b/c it
does not give more favorable treatment to local interests as a
group as compared to OOS economic interests. Thus, does
not discriminate against IC. But it does impose an excessive
burden!
Dissent – Souter – No evidence that any OOS trash has been
harmed. The ordinance treats all OOT investors and facilities
to the same constraints as local ones, so there is no economic
protectionism. The only right to compete that the commerce
clause protects is the right to compete on terms independent of
one's location. Ordinance merely imposes a burden on local
citizens who adopted it, this is only subject to political
process!
West Lynn
Creamery,
Inc. v.
Healy
DCC
Held invalid a pricing order imposing
an assessment on all fluid milk sold
by dealers to Massachusetts retailers.
Two thirds of that milk was processed
out of state. The entire assessment is
distributed to Massachusetts dairy
farmers. Unconstitutionally
discriminates against IC!
Compares this to a protective tariff or customs duty, which
taxes imported goods only and thereby makes them more
expensive. Such a duty both raises revenue and benefits local
producers at the expense of out-of-state producers.
*The purpose for the milk order is to allow higher-cost in-state
dairy farmers to compete with lower-cost producers in other
states. The effect of the milk pricing order is to make milk
produced out of state more expensive.
*Even though the pricing order is imposed on milk produced
Holding – A state may not impose a
in state as well, its effect on Massachusetts producers is more
tax on all sales of a particular product than offset by the subsidy. Consequently, functions like a
in order to subsidize in-state
tariff.
producers of that product.
*State may properly tax all milk dealers, may also finance the
subsidy of in-state farmers – however the combination impairs
*Distinguish from Hughes v.
the state's political process because those in-state interests who
Alexandria – because in that case,
would otherwise oppose the tax are mollified by the subsidy.
they were using their own money to
*The fact that the taxes are paid by in-state businesses and
subsidize.
consumers is irrelevant. The impact of the order is to divert
the market share to Massachusetts, which hurts OOS.
Concurrence – Based on the court's rationale – any state
subsidy would be invalid because the mere act of assisting instate businesses neutralizes advantages possessed by
competing OOS. Court SHOULD enforce a self-executing
“negative” commerce clause only where the state law facially
discriminates against IC OR where the state law is of a type
previously held unconstitutional. State could not (i) impose
higher tax liability on OOS business, (ii) apply
nondiscriminatory tax that has an exemption for instate
members. Here – (iii) a nondiscriminatory tax, the proceeds
of which were then placed in a segregated fund to pay rebates
or subsidies. (iv) Subsidies local businesses using funds form
its general revenues.
(iii) is closer to (ii) so should be unconstitutional.
Dissent – Rehnquist – Political reality is that there are other
groups, namely the milk dealers and consumers, who could
still oppose the tax, even if the dairy farmers choose not to.
No precedent justifies applying the negative Commerce
Clause against a subsidy funded funded from a lawful neutral
tax.
CASE GROUP
Sabri v.
United
States
N&P Clause
Spending
Power /
Commerce
Power
(Dissent)
RULE
ANYTHING ELSE IMPORTANT?
(1)Statute prohibiting bribery
involving federal funds was not
facially unconstitutional on the
ground that it did not require a nexus
between criminal activity and federal
funds.
(2) Statute did not exceed Congress's
authority under the Spending Clause
(3) Statute did not amount to an
unduly coercive, and impermissibly
sweeping, condition on grant of
federal funds.
*The absence of a jurisdictional hook does not imply
unconstitutionality.
*Just because every bribe does not affect the spending w.r.t.
the general welfare, doesn't mean that this is invalid. People
accepting bribes are in control of monies and spending. We
don't want them to be untrustworthy.
*Here, we do not need inference upon inference ... we can
easily show that the reliability of those who use public money
has A LOT to do with the congressional spending power.
*Validity of attacks alleging overbreadth are not common.
*On its face – does not give a
connection between
Concurring – Kennedy and Scalia – we should still scrutinize
a facial challenge, preserve Lopez and Morrison.
Dissent – Thomas – doesn't want to use the N&P clause, just
look at it on its face. Majority is requiring a rational basis
connection – he would require a tighter fit between the means
and the ends. Focuses on means/ends relationship – and can
use appropriate means and reasonably calculated means.
LA PIERRE DORM. COMM. CLAUSE CHART
ECONOMIC
H&S
BURDEN
Baldwin (VT dairy)
Silas
Milk Cond v. Eisenberg
City Serve (Natl Gas)
Foster (shrimp)
Pike (cantaloupe)
Breard? (door-to-door)
Barnwell (T)
So Pac (T)
Bibb (T)
Kassel (T)
Mintz (diss. cattle)
MN v. Clover Lf Crm
Breard?
DISCRIM
(on face/in effect)
Phil v. NY (DISS see as Envir)
PA v. WV (Natl. Gas)
Hunt (possible)
Hood  Jackson MAJ
Welton (shoddy)
Breard?
Hunt
Contrell
Dean Milk
Blackman DISS in Exxon
Frank & Black DISS in Hood
Hughes (DISS: is Burden)
Maine
Breard?
WAY TO ANALYZE PROBLEMS:
JUDICIAL POWER IN GENERAL
2 fundamentally different ways to use Article III judicial power (from Cohens v. Va):
1. Look at nature of question involved, regardless of the parties
2. Look to see the parties involved
To show a statute is valid, need 1 of these 2:
1. Direct exercise of enumerated power
2. Valid exercise of enumerated power coupled with Necessary & Proper clause
2 possibilities of judicial power of Congress’ powers:
1. Inquiries into ends
2. Inquiries into mens/ends relationship
Marshall’s pre-text reservation (from McCulloch):
-Congress cannot enact a law under the pretext of exercising an enumerated power,
when the purpose of the law is really to do something not enumerated
TAX POWER
Immunities from Taxation:
1. Federal Government immune from State taxation (McCulloch)
2. State immune from Government—only when activity is only performed by the States
(NY v. US—mineral case)
SPENDING POWER
Restraints on Spending Power (from US v. Butler, Stone’s dissent, which is the law
today):
1. Must be national in scope
2. Must be choice (no coercion)
3. Means must be related to ends
4. Political checks
-Spending power is a separate, distinct power from other enumerated powers
4 limits on Spending Power (from South Dakota v. Dole)
1. Must be for general welfare
2. Unambigious conditions
3. Must be related to federal interests
4. Other constitutional provisions may provide an independent bar to conditional grant of
federal funds
National government “compelling” states to do things:
1. Can condition funds (Dole)
2. Can give a choice between state or national implementation (Hodel)
3. Can say regulate our way or don’t regulate at all (FERC)
4. Can regulate area where both states & private parties can act (NY—mineral act)
5. Cannot compel state government to act (Printz, NY—radioactive)
COMMERCE POWER
Old Commerce Power
-Direct/Indirect (Knight)
-Substantial Effect (Wickard, Shreveport Rate?)
4 areas in which Commerce Power can be used to regulate: (p. 2 of Gibbons notes)
1. Prohibit interstate movement of goods (Shreveport Rate)
2 Prohibit people or things in IC (Lottery, Darby)
3. Regulate local activities which substantially affect IC (affecting commerce rationale)
(Jones & Laughlin, Wickard, Perez, 5 Gambling Devices)
4.Bootstrap—regulating local activity as means of making affective prohibition against
interstate movement of goods (Alternative ground in Darby)
3 categories of activity that Congress may regulate under Commerce Power (Lopez):
1. Channels of IC (Darby, Heart of Atlanta)
2. Persons or things in IC (Shreveport Rate)
3. Activities that have a substantial relation to IC (Jones & Laughlin)
4 points from Lopez:
1. Substantial economic effects on IC
2. No jurisdictional element
3. Lacked formal findings as to burden on IC
4. Attenuated link between gun possession & IC
Questions for Commerce cases:
1. What is local activity?
2. Where is IC?
3. What is relationship between local activity and IC?
4. How can Congress regulate this? (means of achieving ends)
3 categories of national legislation:
1. Regulating private activity
2. Regulating state and local governments
3. Requiring state and local governments to perform tasks
DORMANT COMMERCE CLAUSE
Dormant Commerce Clause
1. Burden (in-state and out-of-state treated the same)use Pike test
--unconstitutional if burden on IC outweighs state interest (or other less burdensome
alternatives(?))
2. Discriminationuse Hunt test
--State has burden to show that:
1. Local interest outweighs discrimination
2. No less discriminatory or non-discriminatory alternatives
3. Per se Invalidityuse Philly test (use when economic purpose, discrimination on
face)
3 types of factors in Dormant commerce cases:
1. Purpose of state law
--Buck; Bradley
2. Effect of the state law on IC
3. Extent to which state regulation worked to achieve the state’s interests (Barnwell)
4 catgories:
1. Economic and Burden
--Pike, Baldwin v. Seelig, Henneford (V), Eisenberg (V), Foster Fountain
2. Health & Safety and Burden
--Barnwell (V), Southern Pacific, Bibb, Kassel, Mintz (V), Minnesota (V)
3. Economic and Discriminatory
--Philly, Hunt, Welton, Hood, Pa v. WVa, Polar Ice Cream, Hood (Majority)
4. Health & Safety and Discriminatory
--Hunt, Maine (V), Hughes, Dean Milk, Exxon (V), A&P, Hood (Dissents)
PRIVILEGES & IMMUNITIES
2 distinct threads of Privileges & Immunities Clause
1. See whether interest at stake is fundamental right (Corfield)
2. Focus on rights created by state law and a focus on discrimination (Toomer)
--4 part test:
1. Fundamental right
2. Has to be substantial reason for discrimination independently from discrimination
(i.e. non-residents are the source of the problem)
3. Discrimination must bear close relationship to means
3a. Inquiry into less restrictive means [alternatives] (Piper)
PREEMPTION
1. Express preemption provision—Congress clearly says certain state laws are preempted
2. Express savings clause—Congress doesn’t want their law to oust certain state laws
THE PIKE TEST
A state law that does not discriminate against interstate commerce is presumed to be valid.
It is void only if the challenger to the law can show that the burdens placed on interstate
commerce by the law are clearly excessive in relation to the putative local benefits of the law.
1. US v. Lopez  3 broad categories of activity that Congress may regulate under its
commerce power:
1. 1) The use of the channels of interstate commerce  power to prohibit
1. Moral Objective = ok
2. Direct exercise of the commerce power – no use of the necessary and proper
clause
3. Punishing those who violate interstate shipment = use of the necessary and
proper clause
4. Champion v. Ames  Lottery tickets – function of Congress’ moral judgment
that gambling is bad; pretext to accomplish an end not given to the Congress
5. Hoke v. US  Mann Act – can’t bring women across state lines for commercial
purposes
1. Congress may adopt not only means necessary but convenient to exercise
commerce power, and the means may have the quality of police regulations.
1. Fines and jail time for violators = ok means to reach the ends of regulating
commerce
2. Caminetti v. US  Mann Act should only be applied to commercial
prostitution, not individual acts of prostitution
6. US v. Darby  Fair Labor Standards Act  §15A1 prohibited interstate
shipment of goods produced by individuals working under substandard working
conditions (working for less than minimum wage or for more than 45
hours/week without being paid overtime)
2. 2) The instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from intrastate
activities
1. Shreveport Rate  Congress can regulate local rates to prevent lower prices in
interstate travel
2. Southern Railway
3. Prohibition of destruction of aircraft
4. Affect on interstate commerce rationale still ok? – justify statute under category
2 and try to justify it under category 3 at the same time
3. 3) Activities that have a substantial relation to interstate commerce 
substantially affect interstate commerce
1. A) Intrastate economic activity where the court has concluded that the activity
substantially affected interstate commerce
1. McCulloch – Court can’t tread on Congress’ power to judge relation between
local activity and interstate commerce
2. Here the court takes back the power to judge affect on interstate commerce
3. Cardozo’s Dissent in Carter Coal
4. Perez
5. Ollie’s BBQ
6. Heart of Atlanta
7. Wickard v. Filburn
8. VAWA is not an economic activity and has no substantial jurisdictional hook