CONSTITUTIONAL LAW SPRING 2007 – PROF. FISCHER
Outline for Class 8: Commerce Clause II: History of Interpretation of
the Commerce Clause from 1937-1995
I.
Central Themes
III.
Constitutional Text
i.
ii.
iii.
iv.
Does the Constitution contain guidelines for its own
interpretation? If so, where?
Commerce Clause at Article I Cl 8 § 3. It provides that
“The Congress shall have Power . . . to regulate Commerce
with foreign Nations, and among the several States, and with
the Indian Tribes.”
Vague Terms: “Commerce”, “among the several States”
Tenth Amendment: 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.
III. Wrap-Up: Interpretation of the Commerce Clause from Gibbons v.
Ogden (1824) to 1937– focus on generally narrow and fomalistic
interpretation of terms “Commerce” and “among the . . . States,” as
well as view that Tenth Amendment imposed limits on Commerce
power and reserved a zone of activity exclusively state regulation.
Some inconsistency in case law. Court criticized for not developing
principled distinction between “direct” and “indirect” effects on
interstate commerce.
IV. Interpretation of the Commerce Clause from 1936 –1995: A Broad
Interpretation of the Commerce Power- focus on broad- interpretation of
“Commerce” and “among the . . . States”, as well as view that Tenth
Amendment does not limit Commerce power. Rational-basis scrutiny.
Deferential approach of Court.
i.
Regulatory Laws – (Substantial) Effects Test
a. NLRB v. Jones & Laughlin (1937) (CB p. 143)
b. United States v. Darby (1941) (CB p. 144)
c. Wickard v. Filburn (1942) (CB p. 147)
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d. Hodel v. Virginia Surface Mining & Recl. Ass’n (1981)
(CB p. 148) (pay attention to Rehnquist warning in his
concurring opinion)
ii.
Civil Rights Laws
a.
Heart of Atlanta Motel v. United States (1964) (CB p.
150)
b.
Katzenbach v. McClung (1964) (CB p. 151)
iii.
Criminal laws
Perez v. United States (1971) (CB p. 153)
V. Interpretation of the Commerce Clause from 1995-present: New
Limits on the Commerce Power
i. United States v. Lopez (1995) (CB p. 153)
ii. United States v. Morrison (2000) (CB p. 173)
iii. Gonzalez v. Raich (2005) (Supplement p. 9)
iv. Open Questions
CONSTITUTIONAL LAW SPRING 2007 – PROF. FISCHER
Outline for Class 9: Limits on Congressional Power: The Tenth
Amendment
I.
Central Themes
II.
Constitutional Text
Tenth Amendment: 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.
IV.
(Review) Early Nineteenth Century Interpretation of the Tenth
Amendment
Gibbons v. Ogden (1824) (CB p. 124) –“This power, like all others vested
in Congress, is complete in itself, may be exercised to the utmost extent,
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and acknowledges no limitations, other than are prescribed in the
constitution. [If], as has always been understood, the sovereignty of
Congress, though limited to specified objects, is plenary as to those objects,
the power over commerce with foreign nations, and among the several
states, is vested in Congress as absolutely as it would be in a single
government.” (CB at 125)
V.
(Review) Interpretation of the Tenth Amendment from 18951936
Tenth Amendment reserves a zone of activity to states for their
exclusive control. Federal laws intruding into this reserved zone were
declared unconstitutional by the Court. Eg. Hammer v. Dagenhart (the
“Child Labor Case”) (1918) (CB p. 132)
VI.
Interpretation of the Tenth Amendment from 1936-1990s
Courts generally took the view that the Tenth Amendment is not
judicially enforceable.
i.
ii.
iii.
United States v. Darby (1941) (CB p. 144) (overrules
Hammer v. Dagenhart): “[Whatever] their motive and
purpose, regulations of commerce which do not infringe some
constitutional prohibition are within the plenary power
conferred on Congress by the Commerce Clause.” (CB p.
145) “the Tenth Amendment . . .[states] but a truism that all
is retained which has not been surrendered. There is nothing
in the history of its adoption to suggest that it was more than
declaratory of the relationship between the national and state
governments as it had been established by the Constitution
before the amendment or that its purpose was other than to
allay fears that the new national government might seek to
exercise powers not granted, and that the sates might not be
able to exercise fully their [reserved powers].” (CB p. 146)
National League of Cities v. Usery (1976) (CB p. 180)
(overruled state autonomy aspect of Maryland v. Wirtz
(1968) (5-4) (CB p. 180)
Usery was distinguished in several other cases that followed,
which all rejected Tenth Amendment challenges to federal
laws. Note role of Justice Blackmun in each case:
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1. Hodel v. Virginia Surface Mining & Reel Ass’n
(1981) (CB p. 182)
2. United Transportation Union v. Long Island
Railroad Co. (1982) (CB p. 182) (unanimous)
3. FERC v. Mississippi (1982) (5-4) (CB p. 182)
4. EEOC v. Wyoming (1983) (5-4) (CB p. 182)
iv.
Garcia v. San Antonio Metropolitan Transit Authority (1985)
(5-4) (CB p. 182)
VII. Interpretation of the Tenth Amendment from 1990s to present
i.
ii.
iii.
New York v. United States (1992) (6-3) (CB p. 187)
Printz v. United States (1997) (5-4) (CB p. 193)
Reno v. Condon (2000) (unanimous) (CB p. 203)
CONSTITUTIONAL LAW SPRING 2007 – PROF. FISCHER
Outline for Class 10: More on Congressional Powers and Limits on
Those Powers: The Eleventh Amendment, The Taxing and Spending
Powers
III.
Central Themes
IV.
[not finished in previous class on Tenth Amendment]
Interpretation of the Tenth Amendment from 1990s to present
a. New York v. United States (1992) (6-3) [CB p. 187]
b. Printz v. United States (1997) (5-4) [CB p. 193]
c. Reno v. Condon (2000) (unanimous) [CB p. 203]
V.
Eleventh Amendment: State Sovereign Immunity Limits on
Congressional Power - Balancing the Value of State Sovereignty
Against Federal Supremacy
A. Constitutional Text: The judicial power of the United States
shall not be construed to extend to any [suit] commenced or
prosecuted against one of the United States by Citizens of another
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State, or by Citizens or Subjects or any Foreign States. (adopted
after Chisholm v. Georgia (1793) [CB p. 204)]
B. Hans v. Louisiana (1890) [CB p. 204] : broad interpretation of
Eleventh Amendment
C. Limits on Eleventh Amendment: Suits Against State Officers: Ex
parte Young (1908) [CB p. 204] (suits for injunction against
state officials) (note: some exceptions which include
prohibition on suing state officers on pendant state law claims,
and prohibition on enforcing federal statutes that contain
comprehensive enforcement mechanisms (like Seminole Tribe)
Edelman v. Jordan (1974) [CB p. 204] (suits against state
officials for prospective injunctive relief but not retroactive
relief to be paid from the state treasury)
D. Limits on Eleventh Amendment: Congressional Abrogation:
Fitzpatrick v. Bitzer (1976) [CB p. 205] (upheld abrogation in
statute adopted under § 5 of the Fourteenth Amendment);
Pennsylvania v. Union Gas Co. (1989) [CB p. 205] (upheld
abrogation in legislation enacted under Article I commerce
power)
E. Seminole Tribe of Florida v. Florida (1996) [CB p. 205]
(overruled Union Gas)
F. Extension of Sovereign Immunity to suits against states in state
courts: Alden v. Maine (1999) [CB p. 207] (based on structure
of constitution)
G. Extension of Sovereign Immunity to Federal Administrative
Proceedings Against states: Florida Maritime Commission v.
South Carolina State Ports Authority (2002) [CB p. 212]
H. Court Narrows Its View of Congressional Power under § 5 of the
Fourteenth Amendment: Florida Prepaid Postsecondary
Education Expense Board v. College Savings Bank (1999) [CB
p. 209]; Kimel v. Florida Board of Regents (2000) [CB p. 211];
Board of Trustees of Univ. of Alabama v. Garrett (2001) [CB p.
211]
I. Court has recently found some federal statutes to validly
abrogate state sovereign immunity under § 5 of the Fourteenth
Amendment: Nevada Department of Human Resources v. Hibbs
(2003) [CB p. 215] and Tennessee v. Lane (2004) [CB p. 211]
J. Recent case: United States v. Georgia (2006) (Supp. p. 12)
(Title II of the ADA abrogated state sovereign immunity
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where the claim was based on state conduct that violated VIII
and XIV Amendments, though unclear whether Congress has
the power to apply the ADA to state prisons generally)
K. Other Limits on Eleventh Amendment: suits against cities and
localities, some suits brought by states against states, suits
brought by the federal government against states, waiver
(explicit and constructive (constructive is very rare))
VI.
Taxing and Spending Powers
A. Constitutional Text
Taxing and Spending Clauses - Art. I § 8 c. 1: “Congress shall
have Power to lay and collect Taxes, Duties, Imposts and Excises, to
pay the Debts and provide for the common Defence and general
Welfare of the United States; but all Duties, Imposts and Excises
shall be uniform throughout the United States.”
B. Historical Need for Taxing Power
C. Scope of Taxing and Spending Powers: U.S. v. Butler (1936)
[CB p. 222]
i. Madisonian vs. Hamiltonian debate
ii. Coercion
iii. Tenth Amendment limitation: Disguised regulation of
production
iv. Later cases endorsed broad view of congressional
discretion: Steward Machine Co. v. Davis (1937) [CB p, 227],
Helvering v. Davis (1937) [CB p. 229]
D.Conditional Federal Grants
i. U.S. v. Butler (1936) [CB p. 222]
ii. South Carolina v. Dole (1987) [CB p. 230]
E.Textual Limits on the Taxing Power
i.
Uniformity: Art. I § 8 cl. 1
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ii.
iii.
Proportionality: Art. I § 2 cl 3: “direct Taxes shall be
apportioned among the several States which may be
included within this Union, according to their respective
Numbers”; Art. I § 9 cl 4: “[n]o Capitation or other
direct Tax shall be laid, unless in proportion to the
Census.”
Prohibition on Export Taxes or Duties: Art. I § 9 cl 5:
“No Tax or Duty shall be laid on Articles exported from
any State.”
F.Other Limits on Taxing Power
i. Must raise revenue
ii. Must not be penal or prohibitory
a.
b.
c.
d.
Child Labor Tax Case (1922) [CB p. 217]
United States v. Constantine (1935) [CB p. 219]
Sonzinsky v. United States (1937) [CB p. 220]
United States v. Kahriger (1953) [CB p. 220]
G. Hypothetical: What if, in response to Lopez (1995) [CB p. 153],
Congress enacted the Gun-Free School Zones Tax Act
(“GFSZTA”) which imposed a $10,000 tax on any person who
knowingly possessed a firearm in a school zone? Supposed a
person assessed with this tax challenged the constitutionality of
the GFSZTA?
CONSTITUTIONAL LAW SPRING 2007 – PROF. FISCHER
Outline for Class 11: More on Congressional Powers:The Taxing and
Spending Powers
REVIEW CLASS TOMORROW FRIDAY FEBRUARY 2 at 11:00 a.m.
in Room 303
VII. Central Themes
VIII. Taxing and Spending Powers
A. Constitutional Text
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Taxing and Spending Clauses - Art. I § 8 c. 1: “Congress shall
have Power to lay and collect Taxes, Duties, Imposts and Excises, to
pay the Debts and provide for the common Defence and general
Welfare of the United States; but all Duties, Imposts and Excises
shall be uniform throughout the United States.”
B. Historical Need for Taxing Power
C. Scope of Taxing and Spending Powers: U.S. v. Butler (1936)
[CB p. 222]
v. Madisonian vs. Hamiltonian debate
vi. Coercion
vii.
Tenth Amendment limitation: Disguised regulation of
production
viii.
Later cases endorsed broad view of congressional
discretion: Steward Machine Co. v. Davis (1937) [CB p, 227],
Helvering v. Davis (1937) [CB p. 229]
D.Conditional Federal Grants
iii. U.S. v. Butler (1936) [CB p. 222]
iv. South Carolina v. Dole (1987) [CB p. 230]
E.Textual Limits on the Taxing Power
iv.
v.
vi.
Uniformity: Art. I § 8 cl. 1
Proportionality: Art. I § 2 cl 3: “direct Taxes shall be
apportioned among the several States which may be
included within this Union, according to their respective
Numbers”; Art. I § 9 cl 4: “[n]o Capitation or other
direct Tax shall be laid, unless in proportion to the
Census.”
Prohibition on Export Taxes or Duties: Art. I § 9 cl 5:
“No Tax or Duty shall be laid on Articles exported from
any State.”
F.Other Limits on Taxing Power
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i. Must raise revenue
ii. Must not be penal or prohibitory
e.
f.
g.
h.
Child Labor Tax Case (1922) [CB p. 217]
United States v. Constantine (1935) [CB p. 219]
Sonzinsky v. United States (1937) [CB p. 220]
United States v. Kahriger (1953) [CB p. 220]
G. Hypothetical: What if, in response to Lopez (1995) [CB p. 153],
Congress enacted the Gun-Free School Zones Tax Act
(“GFSZTA”) which imposed a $10,000 tax on any person who
knowingly possessed a firearm in a school zone? Supposed a
person assessed with this tax challenged the constitutionality of
the GFSZTA?
CONSTITUTIONAL LAW SPRING 2007 – PROF. FISCHER
Outline for Class 12: More on Congressional Powers: The Dormant
Commerce Clause
I.
Central Themes
II.
Basis for the Dormant Commerce Clause (“DCC”): Textual?
III.
Contrast: Preemption and Dormant Commerce Clause
IV.
Relationship of DCC to other constitutional provisions that we
will study later in the course (Privileges and Immunities Clause
in Article IV, Equal Protection Clause of the XIV Amendment)
V.
Should there be a DCC? Arguments pro (e.g. Justice Jackson)
and con (e.g. Justices Scalia and Thomas)
VI.
Historical Approach to the DCC
i.
Gibbons v. Ogden (1824) “commerce”-“police power”
distinction
ii.
Early Taney Court – deep divisions on the DCC
iii. Cooley v. Board of Wardens (1851) (CB p. 251)
“national”-“local” distinction
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iv.
Di Santo v. Pennsylvania (1927) (CB p. 255) “direct”“indirect” distinction
VII. Modern Approach to the DCC
i.
State laws that facially or overtly discriminate against
out-of-state interests: prima facie presumption of
invalidity
a. West Lynn Creamery v. Healy (1994) (CB p. 264)
b. General Motors v. Tracy (1997) (CB p. 266)
c. Camps Newfound/Owatonna, Inc. v. Town of
Harrison (1997) (CB p. 266)
d. Home processing cases (CB p. 268)
ii.
State laws that are not facially or overtly discriminatory
but are protectionist in purpose or effect
a. Exxon Corp. v. Governor of Maryland (1978) (CB p.
303)
b. Minnesota v. Clover Leaf Creamery (1981) (CB p.
304)
iii. Nondiscriminatory state laws
a. Balancing Approach: Pike v. Bruce Church, Inc.
(1970) (CB p. 286)
b. South Carolina State Highway Department v.
Barnwell Bros. (1938) (CB p. 288)
c. Southern Pacific Co. v. Arizona (1945) (CB p. 289)
d. Bibb v. Navajo Freight Lines (1959) (CB p. 293)
e. Edgar v. MITE Corp. (1982) (CB p. 306)
f. CTS Corp. v. Dynamics Corp. of America (1987) (CB
p. 306)
iv.
The Market Participation Exception
a. Hughes v. Alexandria Scrap Corp. (1976) (CB p. 312)
b. Reeves, Inc. v. Stake (1980) (CB p. 312)
c. White v. Massachusetts Council of Construction
Employers, Inc. (1983) (CB p. 312)
d. South-Central Timber Development, Inc. v. Wunnicke
(1984) (CB p. 311)
e. Should there be a Market Participation Exception?
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