Con Law Flashcards
ISSUE: May the federal government force a state law enforcement officer or agency to assist in the enforcement of federal drug laws by requiring the officer or agency to conduct investigations of possible drug use by persons they take into custody and to make reports to the federal government? ANSWER: No. The federal government may not command a law enforcement officer or agency of State A to investigate and report on potential violations of federal law.
The central issue raised by the statute described in this question (the “Federal Drug Abuse Prevention Act”) is whether its provisions violate fundamental principles of federalism. Under the system of dual sovereignty established by the Constitution, the States retain a significant measure of sovereign authority. The Tenth Amendment confirms that the powers of the federal government are subject, in some cases, to limits necessary to protect “state sovereignty” from federal intrusion. One of those limits is that Congress may not “require the States to govern according to Congress’ instructions.” For example, a federal law that commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program is unconstitutional.
In Printz v. United States, the Supreme Court held that “commandeering” of State officials was also unconstitutional under the federalism principle emanating from the Tenth Amendment. In Printz, Congress ordered state law enforcement officials to conduct background checks of persons purchasing firearms. By legislating to force the law enforcement officers to take certain actions “in their official capacities as state officers,” the Court said, Congress was acting to control their actions “as agents of the State.” Such an effort by the federal government “to direct the functioning of the state executive, and hence to compromise the structural framework of dual sovereignty” is unconstitutional. The Court held definitively that “the Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” Section 11 of the Federal Drug Abuse Prevention Act violates federalism principles. The law requires a State A law enforcement officer or agency to undertake investigations aimed at detecting violations of federal drug laws and to report to federal authorities on suspected violations. It seeks to compel state officers to participate in the enforcement of the federal laws against the use of marijuana and thus unconstitutionally intrudes upon state sovereign authority.
ISSUE: May the federal government condition the grant of federal money for state and local law enforcement activities on a state’s adoption of laws that criminalize use of federally controlled drugs? ANSWER: Yes. The federal government probably can deny federal law enforcement funds to State A if it does not criminalize the use of marijuana
Section 15 of the Federal Drug Abuse Prevention Act seeks to implement the federal anti- marijuana policy by denying funding from the Justice Assistance Grant program to states that do not criminalize use of marijuana. Congress may use a threat to withhold federal money to induce a state to exercise its sovereign authority (e.g., by passing certain laws) to achieve congressional goals. The Supreme Court has repeatedly held that such threats are constitutional exercises of Congress’s power to spend money for the “general welfare of the United States” unless they are unduly coercive.
In South Dakota v. Dole, the Court held that Congress may condition the states’ receipt or use of federal funds on state compliance with “federal statutory and administrative directives.” When using its spending power in this way, Congress must satisfy certain requirements. First, the spending must be for the general welfare, although a “court should defer substantially to the judgment of Congress” in this regard. Second, the condition imposed by Congress must be imposed unambiguously. Third, the condition imposed must be related “to the federal interest in particular national projects or programs.” Fourth, the condition imposed must not “be used to induce the States to engage in activities that would themselves be unconstitutional.” Finally, a condition will be deemed improper if it is “so coercive as to pass the point at which ‘pressure turns into compulsion.’” For example, conditioning continued receipt of Medicaid funds on compliance with new requirements is unconstitutional economic dragooning that leaves the States with no real option but to acquiesce, because the threatened funding constituted over 10% of the State budgets.
In this case, Section 15 of the Act is probably constitutional. First, both the federal spending program and the imposed condition are in pursuit of the general welfare. The Supreme Court has said that Congress’s view of “the general welfare” deserves substantial deference, and there is no reason to believe that a court would second-guess Congress’s judgment that the general welfare is served by assisting with the funding of state law enforcement agencies in states that criminalize the use of drugs that Congress considers dangerous.
The other three basic requirements are also satisfied. The condition being imposed on states that receive funding from this particular program is unambiguous. The condition also relates generally to the purpose of the federal funding, which is evidently to support and improve state and local law enforcement. Finally, a requirement that the states criminalize the use of certain drugs does not induce any state to engage in unconstitutional activity.
The threat of a loss of Justice Assistance Grant funds is probably not so coercive as to amount to an unconstitutional intrusion on State A’s sovereignty. The amount of money involved in this case ($10 million) is only a small fraction (less than 2%) of State A’s law enforcement budget and thus likely a far smaller part of its total state budget. This is utterly unlike the substantial economic loss (typically 10% of the entire state budget) that faced the states in Sebelius, where the Court concluded that the states had “no real option” other than to follow federal wishes. Rather, this is much closer to the “relatively mild encouragement” that was upheld in South Dakota v. Dole (requiring South Dakota to raise the drinking age to 21 years or lose highway funding amounting to less than half of one percent of the state’s total budget). In short, although the funding condition acts as an incentive for State A to adhere to federal policy, it does not “indirectly coerce” the State “to adopt a federal regulatory system as its own.” It therefore is a proper exercise of Congress’s spending power and does not run afoul of constitutional principles of federalism.
ISSUE: Can a private company maintain a suit against a state in federal court seeking damages based upon a claim that the state injured its business by enforcing an unconstitutional law? ANSWER: No. Because states are immune under the Eleventh Amendment from suits for damages in federal court, a federal court would dismiss the bank’s damages claim against State A if State A made a claim of sovereign immunity.
The Eleventh Amendment provides that “the Judicial power of the United States” does not extend to “any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State .” As “one of the United States,” State A is immune from suit unless it agrees to be sued. While this immunity of States from suits has been described as an “anachronistic survival of monarchical privilege,” it is nonetheless firmly established. While a state may waive its immunity, there is no evidence that State A has done so in this case. Here, the bank, a resident of State B, is suing State A for damages in federal court; this is barred by the Eleventh Amendment.
[NOTE: A state’s Eleventh Amendment immunity may be abrogated in certain circumstances by congressional action under Congress’s enforcement powers in the Fourteenth Amendment. There is no such action by Congress in this case, so the exception is not germane.]
ISSUE: Can a private company maintain a suit against a state official in federal court to enjoin that official from enforcing an allegedly unconstitutional law? ANSWER: Yes. Pursuant to the doctrine of Ex parte Young, a suit against State A’s Superintendent of Banking to enjoin the enforcement of an allegedly unconstitutional statute is not barred by the Eleventh Amendment.
“Official-capacity actions against state officials for prospective relief are not treated as actions against the State.” Thus, even when a damages claim against the state is barred under the Eleventh Amendment, a suit against public officials in their official capacity seeking an injunction may be maintained.
Here, the bank could maintain an action in federal court against State A’s Superintendent of Banking in her official capacity to enjoin enforcement of an allegedly unconstitutional law.
[NOTE: An examinee might also point out that the federal court would have jurisdiction over this suit because the bank’s claim raises a federal question.]
ISSUE: Does a state law that requires a multistate business to adopt expensive security measures as a condition of providing certain services in the state impose an unconstitutional burden on interstate commerce? ANSWER: Yes. Although the statute does not discriminate against interstate commerce, it does impose a significant burden on interstate commerce. A court could conclude that the law unconstitutionally burdens interstate commerce if the court determines that the burden imposed is clearly excessive in relation to the purported benefits.
The Supreme Court of the United States has long held that the Constitution’s grant to Congress of the power to regulate interstate commerce also limits, by implication, the right of state or local governments to adopt laws that regulate interstate commerce. This is often referred to as “dormant commerce clause” analysis. A state law that discriminates against interstate commerce in a way “that operates as a tariff or trade barrier against out-of-state interests” is subject to strict review and is virtually per se unconstitutional. A nondiscriminatory state law that imposes an “incidental” burden on interstate commerce will nonetheless be unconstitutional if the burden it imposes is “clearly excessive in relation to the putative local benefits.”
The State A law in this case is facially nondiscriminatory. It applies equally to local banks and to banks from other states. There are also no facts to suggest that it operates in a discriminatory fashion or that it imposes a heavier burden on out-of-state banks offering services to State A businesses than it imposes on in-state banks.
Because the law “regulates evenhandedly,” the question is whether it “effectuates a legitimate local public interest” and whether the burden, if any, is “clearly excessive in relation to the putative local benefits.”
State A plainly has a “legitimate local public interest” in protecting local businesses from the significant losses that can result from electronic funds transfer fraud. State A’s law seeks to reduce such fraud by requiring banks to adopt certain security measures that the legislature believes will reduce the risk of such fraud. The legislature’s judgment that biometric identification is superior to other anti-fraud techniques is not a judgment that a court will normally second-guess. State A adopted its law in response to lobbying by a local business that stands to benefit from the law. But that does not mean that the law does not serve a legitimate state interest. For example, one court accepted the judgment of a state legislature that a ban on plastic nonreturnable milk containers served environmental goals despite contrary evidence suggesting that such a ban would cause continued use of ecologically undesirable paperboard milk containers. However, it is unclear whether the security measures required by State A produce real and substantial benefits.
The benefits of the law must be weighed against the burden it imposes. The law burdens interstate commerce by increasing the expenses of out-of-state banks that wish to offer certain electronic banking services to State A businesses. Compliance with the law would require the bank to make substantial changes to its entire electronic banking system at a cost of $50 million. This cost is substantial enough to deter the bank from offering certain services in State A at all. A court could find that this is a real and substantial burden placed on interstate commerce.
In sum, if the benefits of the security measures required by State A are substantial enough to justify the burdens, the statute is constitutional. Otherwise, it is not.
May a state enact a law that has the effect of favoring an in-state industry at the expense of an out-of-state industry where there are environmental reasons to favor the in-state industry? ANSWER: Yes. Section 1 of the Act, which requires utilities to use environmentally friendly energy sources, is probably valid given that it is not facially discriminatory against out-of-state energy producers and its discriminatory impact is not in the market being regulated (generation of electricity), but instead affects another market (natural gas production). Further, the law appears to satisfy the Pike balancing test, given that its burdens on interstate commerce are not clearly excessive in light of the putative in-state benefits.
State laws that discriminate against out-of-state commerce in favor of in-state commerce – either on their face or in practical effect – are subject to strict scrutiny and thus a nearly per se rule of invalidity. Even if not discriminatory, state laws that affect interstate commerce can also be invalidated if the burden on interstate commerce is clearly excessive in relation to the putative in-state benefits.
Section 1 is not facially discriminatory. Utilities may meet the requirement that 50% of their electricity come from environmentally friendly energy sources by acquiring electricity from out- of-state wind or other environmentally friendly energy sources; natural gas does not qualify as an environmentally friendly energy source regardless of where it is produced.
Section 1, however, may be discriminatory in practical effect because it favors an in-state industry (wind) over an out-of-state industry (natural gas). For example, the Supreme Court has invalidated state statutes that impose labeling requirements on out-of-state apple producers, effectively advantaging in-state apple producers. This discriminatory-impact argument, however, likely fails under Exxon Corp. v. Governor of Maryland. In Exxon, the Court read the Hunt discriminatory-impact test to apply to a direct impact on out-of-state firms in the primary market (e.g. apples) regulated by the state. In Exxon, the discriminatory impact was in a market (e.g. refining) different from the one regulated by the state (e.g. service stations), and so the state law was not found to be discriminatory. Here, the discriminatory impact of Section 1 is felt in a market (i.e. natural gas production) different from the one being regulated (i.e. generation of electricity). For example, the Supreme Court upheld a state law requiring milk to be sold in paper cartons, even though it favored the in-state paper industry over the out-of-state plastics industry. Although evidence of protectionist motives (such as statements in the legislative history) might be relevant to whether the law is discriminatory in practical effect, the facts do not suggest any such motive.
Further, Section 1 does not appear to burden interstate commerce in ways that are clearly excessive in relation to the putative in-state benefits. There is no indication of an especially significant burden on interstate commerce. Conversely, the findings of the legislature indicate that the law’s goal is to promote environmentally friendly energy sources, which could reduce air pollution and generate other significant local benefits (e.g., less use of water in electricity production).
ISSUE: May a state deny an out-of-state utility a permit to construct a coal-burning power plant because the plant, although it meets urgent out-of-state energy needs, does not meet urgent energy needs of the permitting state? ANSWER: No. Section 2 of the Act, as applied by the Public Service Commission, is likely unconstitutional because it discriminates against out-of-state consumers by preventing the export of electricity from new coal-burning power plants. Although the environmental purposes of the law are legitimate, the law is not narrowly tailored to meet them.
Section 2 of the Act, and the Public Service Commission’s denial of a permit for an out-of-state utility’s coal-burning power plant, are discriminatory on their face. While a general ban on the construction of coal-burning power plants would not be discriminatory because it would treat resident and nonresident producers and consumers alike, the State A law creates an exception for the urgent energy needs of state residents only. Thus, the law treats in-state electricity consumers more favorably than out-of-state consumers and effectively bans the export of electricity from new in-state coal-burning plants.
The permit denial here discriminates against out-of-state consumers. If the application had been for the sale of electricity to meet the urgent needs of consumers in State A, the application could have been approved. Instead, it was denied because the State B utility only identified the urgent needs of consumers in State B. The case is analogous to City of Philadelphia v. New Jersey, where the Court invalidated a New Jersey law prohibiting the disposal of out-of-state waste in New Jersey landfills, effectively precluding the export of waste disposal services and preferring in-state consumers. In City of Philadelphia, the Court made clear that it does not matter whether the law has a legitimate environmental purpose – the state may not use discriminatory means to accomplish it.
Insofar as the law is discriminatory, it is invalid unless it is narrowly tailored to meet a legitimate, non-protectionist purpose. For example, the Supreme Court upheld a ban on importation of live baitfish because of threat of parasites introduced into in-state waters. In particular, a law is not narrowly tailored if there are less discriminatory alternative means to accomplish the state’s purpose. Thus, although reducing air pollution from coal-burning plants (the apparent reason for Section 2) may be a legitimate, non-protectionist purpose, the law is not narrowly tailored. There are less discriminatory alternatives that would better accomplish the state’s objectives, such as: (1) strict environmental regulation of all in-state coal-burning power plants; (2) an across-the-board ban on all in-state coal-burning power plants (without any exception); and (3) an exception for such plants for urgent energy needs that does not discriminate against out-of-state consumers.
ISSUE: May a state favor in-state vendors when purchasing goods and services? ANSWER: Yes. Section 3, even though it discriminates against out-of-state vendors by requiring the state to prefer in-state vendors, is a valid exercise of the state’s role as a “market participant
The state may discriminate in favor of residents when buying or selling goods and services because the state is acting as a “market participant” rather than as a regulator of an economic activity. For example, in one case, a state-owned cement plant could confine sales to state residents during cement shortage. In another case, the court held that a state bounty for scrap automobiles can favor in-state processors of junked vehicles. Thus, even though the out- of-state vendor meets all of State A’s requirements for an “environmentally friendly” vendor, State A is still entitled to favor in-state vendors over the out-of-state vendor. As such, State A may limit its purchases to vendors in the state.
ISSUE: Does the Act violate the Equal Protection Clause of the Fourteenth Amendment? ANSWER: No. A court would assess the constitutionality of the Act under the “rational basis” test. Here, the state has a “legitimate interest” in promoting safe and efficient firefighting, and lowering the retirement age is “rationally related” to achieving this interest. Thus, a court is likely to conclude that State A has not violated the Equal Protection Clause of the Fourteenth Amendment.
The applicable constitutional provision is the Equal Protection Clause of the Fourteenth Amendment, which states: “Nor shall any State deny to any person within its jurisdiction the equal protection of the laws.” The allegedly unconstitutional discrimination is age-based discrimination because employees like the firefighter cannot continue as firefighters once they reach 50 years of age.
The Supreme Court has developed three levels of scrutiny for equal protection claims: strict, intermediate, and the lowest, “rational basis.” The Court has consistently applied rational basis scrutiny to age-based classifications. For example, the Supreme Court has upheld a 50-year-old retirement age for state police and applied rational basis review to such age-based classifications.
Under the rational basis test, the issues are whether State A has a “legitimate interest” that is served by the discriminatory classification and whether the means used to achieve this legitimate state interest are “reasonably related” or “rationally related” to that state interest. The Court generally applies this test with substantial deference to legislative judgment.
Here, the firefighter will likely argue that State A is violating his right to the “equal protection of the laws” by depriving him, and other firefighters, of employment solely because they have reached the age of 50. More specifically, he will argue that he and the other firefighters 50 and older are being forced to retire without regard to whether they are capable firefighters, an action not taken against those under the age of 50.
State A will likely argue that lowering the retirement age for firefighters will improve workforce quality, enhance public safety, and reduce expenses. Because these are “legitimate” state interests, this argument is likely to succeed.
Given the legitimacy of State A’s objectives, the question then becomes whether a mandatory retirement at age 50 is reasonably related to attaining those objectives. Although the firefighter may be a qualified firefighter notwithstanding his age, that is not the relevant question. The question is whether State A has reason to believe that one’s physical fitness and ability to be a firefighter, in general, decline with age. The question specifies that the legislature heard evidence from relevant professionals in support of that position. Hence, the conclusion that a mandatory retirement age would, in general, improve the fitness of the workforce is reasonable. Under the rational basis test, it is not necessary for the fit between ends and means to be perfect. The fit merely has to be “reasonable” or “rational.”
The fact that State A may have also enacted the statute to save money does not alter this analysis. One legitimate purpose to which the lines drawn by the statute are rationally related is sufficient to uphold a statute under the lenient rational basis test. Because State A has a legitimate governmental purpose for enacting this statute, and because lowering the retirement age is rationally related to the achievement of this purpose, a court is likely to conclude that the Act does not violate the Equal Protection Clause of the Fourteenth Amendment.
ISSUE: Would Congress have authority under Section Five of the Fourteenth Amendment to enact a statute barring states from establishing a maximum age for firefighters? ANSWER: No. Because age-based discrimination, in the form of a mandatory retirement age, is not a plausible constitutional injury, Congress does not have the authority under Section Five of the Fourteenth Amendment to enact legislation to remedy that injury.
Congress’s powers are limited to those expressed or implied in the Constitution. To enact a law on a particular topic, Congress must rely on some identified grant of legislative authority in the Constitution. Section Five of the Fourteenth Amendment is one such grant of authority.
While a mandatory retirement age for firefighters does not violate the Equal Protection Clause of the Fourteenth Amendment, “legislation which deters or remedies constitutional violations can fall within the sweep of Congress’s enforcement power even if in the process it prohibits conduct which is not itself unconstitutional.” Congress’s power, however, is remedial. It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation. In drawing “the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law,” the Supreme Court stated that the constitutional question is whether there is a “congruence and proportionality between the constitutional injury to be prevented or remedied and the means adopted to that end.” Lacking such a connection, legislation may become substantive in operation and effect. This proportionality requirement allows Congress to outlaw conduct that courts likely would hold unconstitutional under existing judicial precedent. Congress may also outlaw a broader range of conduct to prevent constitutional violations. But Congress cannot rely on its Fourteenth Amendment enforcement power to prohibit a kind of behavior that is unlikely to involve a constitutional violation at all.
Because age is not a suspect classification under the Equal Protection Clause, states may discriminate on the basis of age without offending the Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest. The proposed federal statute would prohibit mandatory retirement requirements that courts likely would find constitutional. In 2000, the Supreme Court held that a federal statute generally prohibiting age discrimination by employers (including states) exceeded the power of Congress to legislate pursuant to Section Five of the Fourteenth Amendment. Indeed, Congress’s primary goal here would be to outlaw a kind of discrimination that does not violate the Fourteenth Amendment. The Supreme Court clearly held that Congress cannot, under its Fourteenth Amendment power, legislate to prohibit constitutional behavior where there is no constitutional injury to be prevented or remedied. Therefore, a court would likely hold that Congress would not have the power under Section Five of the Fourteenth Amendment to enact a statute barring age requirements for firefighters.
[NOTE: This question does not raise any questions about sovereign immunity under the Eleventh Amendment inasmuch as Congress can abrogate that immunity when it acts pursuant to Section Five of the Fourteenth Amendment. In addition, this question does not ask whether Congress could pass such a statute under its Commerce Power. ]
%] ISSUE: Is the city ordinance requirement that businesses install floodlights a taking? ANSWER: No. The ordinance requiring that businesses install floodlights is not a per se taking under Loretto. It is not a regulatory taking under the Penn Central balancing test because the cost of compliance with the ordinance may be offset by an expected increase in business and compliance does not interfere with the business’s primary use of its property as a restaurant.
The city ordinance requiring a business to install floodlights does not effect a per se taking of the sort described in Loretto v. Teleprompter Manhattan CATV Corp., because no property is physically taken by the government and the ordinance does not involve a physical invasion of private property by a third party.
Even though the ordinance does not constitute an occupation of the property by either the government or a third party, it is still subject to the three-factor balancing test under Penn Central Transportation Co. v. City of New York, to determine whether it is a “regulatory taking.” Under Penn Central, a court must balance (1) “the economic impact of the regulation on the claimant,” (2) “the extent to which the regulation has interfered with distinct investment-backed expectations,” and (3) “the character of the governmental action.” Here, each factor weighs against finding that the ordinance is a taking.
First, the ordinance requirement likely has a minimal economic impact on the restaurant. Compliance with the ordinance is estimated to cost $1,000, and the city has found that businesses will likely recoup that cost in increased sales. Also, because the ordinance does not interfere with the operation of the restaurant, the owner may still earn a reasonable return on its investment in the property.
Second, the ordinance does not interfere with the business’s investment-backed expectations. As in Penn Central, the challenged law does not interfere with the owner’s “primary expectation” for use of the property – in Penn Central, as a railroad terminal, and here, as a restaurant. Further, the ordinance does not prevent the restaurant from expanding to meet the changing business environment.
Third, the character of the government action does not weigh in favor of a taking. While Penn Central does say that a “physical invasion” is more likely to pose a taking, Loretto suggests that the Court’s main concern is with physical invasions by third parties. Also, like the landmark law challenged in Penn Central, the ordinance here “adjusts the benefits and burdens of economic life to promote the common good.” In Penn Central, the landmark law restricted development of the railroad terminal to promote the common interest in preserving historic landmarks. Here, the ordinance requires the businesses to install floodlights to promote the common interest in crime prevention and public safety.
Because the ordinance is clearly a valid exercise of the police power, it satisfies the takings clause’s public-use requirement.
In sum, all three factors weigh against finding a taking under the Penn Central balancing test.
ISSUE: Is conditioning the approval of a building permit on the grant of an easement to install surveillance equipment a taking of property? ANSWER: Yes. The permit condition may be unconstitutional as an uncompensated taking of property because the city has not made an individualized determination that the easement condition is roughly proportional to the impact of the restaurant’s proposed addition.
In Dolan v. City of Tigard, the Supreme Court set forth the test for determining whether an exaction imposed by a government in exchange for a discretionary benefit conferred by the government, such as a condition on the approval of a building permit in this case, constitutes an uncompensated taking under the Fifth Amendment. The exaction is not a taking if (1) there is an “essential nexus” between the “public need or burden” to which the proposed development contributes and “the permit condition exacted by the city,” and (2) the government makes “some sort of individualized determination that the required dedication is roughly proportional both in nature and extent to the impact of the proposed development.”
Here, the city likely can meet the nexus requirement. In Dolan, the landowner sought to double the size of its business, which would have increased traffic on nearby roadways. In exchange for approving the development, the city sought an easement for a bike and pedestrian path. The Court found the required nexus between the easement and the city’s “attempt to reduce traffic congestion by providing for alternative means of transportation.” Here, a similar nexus likely exists between the requested easement and the city’s interest in crime prevention and public safety. Increased patronage and economic activity at the restaurant might attract additional crime to the area, and the requested easement to install surveillance equipment would attempt to address that increased crime.
The exaction here, however, may fail the second prong of the Dolan test – that the exaction be roughly proportional to the anticipated impact of the requested development. As noted, the city in Dolan claimed that a bike and pedestrian path was needed to offset the increase in traffic due to the proposed doubling of the business. The Court explained that the government must demonstrate that the additional traffic reasonably was related to the requested exaction and that the government must “make some effort to quantify its findings in support of the dedication for the pedestrian/bicycle pathway beyond the conclusory statement that it could offset some of the traffic demand generated.” The city simply speculates that increased patronage of the restaurant “might” increase crime, and that the surveillance equipment “might” alleviate this increased crime. Because the city has not made “some effort to quantify its findings” in support of the easement, it has not shown that the burden of the easement is roughly proportional to the benefits thought to flow from it.
Thus, the exaction appears to be an uncompensated taking of property in violation of the Fifth Amendment as applied to the states through the Fourteenth Amendment.
%] ISSUE: Does AutoCo’s operation of a “company town” result in its actions counting as those of the state for purposes of constitutional analysis? ANSWER: Yes. AutoCo’s operation of a company town (including a school) makes it a state actor under the public function strand of the state action doctrine.
The individual rights protections of the Constitution apply only where there is “state action” – either direct action by the government or some action by a private party that is fairly attributable to the government. As a general rule, the actions of a private company like AutoCo or of a private school like the school operated by AutoCo would not constitute state action, and the protections of the Constitution (in this case the First Amendment) would not apply.
However, there are situations in which the actions of a private actor are attributed to the state. One such situation is when the private actor undertakes a public function. There are not many bright-line rules in the Supreme Court’s state action doctrine, but one of them is this: Where a private actor undertakes a “public function,” the Constitution applies to those actions. Where a corporation operates a privately owned “company town” that provides essential services typically provided by a state actor, the public function doctrine applies and the Constitution binds agents of the town as if they were agents of the government. Here, AutoCo does more than own the town; it provides security services, fire protection, sanitation services, and a school. Thus the actions of AutoCo constitute state action and are governed by the Fourteenth Amendment.
ISSUE: Does the arrest of a pamphleteer in connection with violation of an anti-littering rule, where the littering is done by the recipients of leaflets distributed by the pamphleteer, violate the First Amendment as applied through the Fourteenth Amendment? ANSWER: Yes. Because the father was distributing leaflets in a traditional public forum, his trespass arrest violated the First Amendment as applied through the Fourteenth Amendment.
As explained in Point One, AutoCo is treated as a state actor. Thus, Oakwood’s commercial district is treated as government-owned property for purposes of the First Amendment. Thus, the leafleting here is subject to the First Amendment because it is an expressive activity. When expression takes place on government-owned property, government regulation of the expression is assessed under the public forum doctrine. Public streets and sidewalks have long been held to be the classic example of a “traditional public forum” open to the public for expression. Because the father was distributing leaflets while standing on a street corner in the commercial district, his expressive activity occurred in a traditional public forum. When a state tries to regulate expressive activity in a traditional public forum, it is prohibited from doing so based on the expressive activity’s content unless its regulation is narrowly tailored to achieve a compelling governmental interest (“strict scrutiny”). In this case, however, AutoCo is regulating the father’s expressive activity on the ostensibly neutral ground that his expressive activity has produced litter and made the street unsightly. When a state tries to regulate expressive activity without regard to its content, intermediate scrutiny applies. Under intermediate scrutiny, the true purpose of the regulation may not be the suppression of ideas (if so, then strict scrutiny applies), the regulation must be narrowly tailored to achieve a significant governmental interest, and it must leave open ample alternative channels for expressive activity. Here, the application of the ordinance to the father will fail for two reasons. First, the Supreme Court has held that the government’s interest in keeping the streets clean is insufficient to ban leafleting in the public streets, as the government power to regulate with incidental effects on public sidewalk speech is very limited. Second, the regulation (a blanket ban on distribution that results in littering) is not narrowly tailored to protect expression. A narrowly tailored alternative would be prosecution only of people who litter. Moreover, the effect of the littering rule is likely to be a ban on all leafleting, thus eliminating an entire class of means of expression. This raises the possibility that there are not “ample alternative channels of communication” open to the father as required under the Court’s standard of review for content-neutral regulation of speech.
ISSUE: Does Congress have authority under the Commerce Clause to regulate employer precautions against workplace violence? ANSWER: Yes. Congress has power under the Commerce Clause to regulate workplace violence only if the court concludes that the Act regulates an economic activity with a substantial aggregate effect on interstate commerce
In United States v. Lopez, the Supreme Court of the United States clarified that Congress may enact three types of regulations under the Commerce Clause. First, Congress may regulate the channels of interstate commerce, which are the pathways through which interstate travel and communications pass. Examples of the channels include interstate highways and phone lines. Second, Congress may regulate the people and instrumentalities that work and travel in the channels of interstate commerce. Examples include people such as airline pilots and flight attendants, as well as the airplanes on which they travel. Third, Congress may regulate activities that substantially affect interstate commerce. The Act does not fit within either of the first two Lopez categories. First, the statute applies to any workplace, regardless of its location, and so it does not narrowly regulate the channels of interstate commerce. Second, the Act applies to all employees and not only those people or instrumentalities in the channels of interstate commerce. Consequently, the Act will be valid only if it regulates an activity that substantially affects interstate commerce. The key to satisfying the substantial effects requirement is the threshold determination of whether the regulated activity is economic or commercial in nature. When Congress regulates an economic or commercial activity, the Court will uphold the regulation if Congress had a rational basis for concluding that the class of activities subject to regulation, in the aggregate, has a substantial effect on interstate commerce. Aggregation on a national scale typically makes this an easy standard to meet. On the other hand, if the regulated activity is not economic or commercial in nature, the Court will not aggregate to find a substantial effect, and the standard becomes extremely difficult to meet. Therefore, the key question is whether violence in the workplace is an economic or commercial activity. In Morrison, the Court held that Congress exceeded its commerce power by enacting a statute giving a cause of action to the victims of gender-motivated violence. It therefore can be argued here, as Morrison held, that acts of violence are not economic or commercial in nature, and thus in applying the substantial effects test, the court may only measure the effect of the particular act of violence at issue in the suit and not the aggregate effect of all acts of violence in the workplace. One could argue that Morrison is distinguishable because the statute at issue here is limited to violence in the workplace. The workplace is an economic environment, and workplace violence directly impedes productivity of the workplace. The court therefore should conclude that the statute at issue here is an economic regulation and thus is within the commerce power of Congress because, based on the facts given in the problem, Congress had a rational basis for concluding that workplace violence, in the aggregate, has a substantial effect on interstate commerce.
