Constitutional Law Flashcards
Ripeness v. Mootness
Ripeness and mootness are related concepts in that the court will not hear a case unless there is a live controversy. Ripeness bars consideration of claims before they have been developed; mootness bars their consideration after they have been resolved.
- (a) Ripeness → A plaintiff generally is not entitled to review of a state law before it is enforced (i.e., may not obtain a declaratory judgment). Thus, a federal court will not hear a case unless the plaintiff has been harmed or there is an immediate threat of harm.
- (b) Mootness → A federal court will not hear a case that has become moot; a real, live controversy must exist at all stages of review, not merely when the complaint is filed.
Standing Requirements
A plaintiff will be able to show a sufficient stake in the controversy only if she can show: (1) injury in fact; (2) causation; and (3) redressability. Standing must be met at all stages of litigation, including on appeal.
- (1) Injury in Fact → Injury in fact requires both: (i) a particularized injury—an injury that affects the plaintiff in a personal and individual way; and (ii) a concrete injury—one that exists in fact.
- (2) Causation → There must be a causal connection between the injury and the conduct complained of—i.e., the injury must be fairly traceable to the challenged conduct of the defendant and not be attributable to some independent third party not before the court.
- (3) Redressability → In determining whether a litigant has a sufficient injury to establish standing, courts ask whether a ruling favorable to the litigant would eliminate the harm to him.
“Zone of Interests” (Standing)
In some instances a plaintiff may bring suit to force government actors to conform their conduct to the requirements of a specific federal statute. Even in such cases, the person must have an “injury in fact.” Often, the Court asks whether the injury caused to the individual or group seeking to enforce the federal statute is within the “zone of interests” that Congress meant to protect with the statute.
If Congress intended the statute to protect such persons, and intended to allow private persons to bring federal court actions to enforce the statute, the courts are likely to be lenient in granting standing to those persons.
Third Party Standing
To have standing, the claimant must have suffered or may presently suffer a direct impairment of his own rights. For a plaintiff to assert third party rights, there must be:
- (i) a substantial or special relationship between the claimant and the third party;
- (ii) proof of the impossibility or impracticability of the third party asserting his or her own interest; and
- (iii) a risk that the rights are so inextricably connected to the third party’s rights that vindication of one right will necessarily vindicate the other.
Note: (i) and (iii) satisfy each other.
Organizational Standing
An organization (unincorporated association, corporation, union, etc.) has standing to challenge action that causes injury to the organization itself. An organization also has standing to challenge actions that cause an injury in fact to its members if the organization can demonstrate the following three facts:
- (i) there must be an injury in fact to the members of the organization that would give individual members a right to sue on their own behalf;
- (ii) the injury to the members must be related to the organization’s purpose; and
- (iii) neither the nature of the claim nor the relief requested requires participation of the individual members in the lawsuit.
Taxpayer Standing
A taxpayer, of course, has standing to litigate her tax bill (e.g., whether she really owes X dollars). However, people generally do not have standing as taxpayers to challenge the way tax dollars are spent by the state or federal government, because their interest is too remote. Nor do taxpayers have standing to challenge a law granting tax credits to persons who contribute to organizations that provide scholarships to students attending private schools.
Presidential Power as Chief Executive
The President’s power over internal (i.e., within the United States) affairs as the chief executive is unclear. Clearly the President has some power to direct subordinate executive officers, and there is a long history of presidents issuing executive orders. Perhaps the best guide for determining the validity of presidential actions regarding internal affairs can be based on Justice Jackson’s opinion in Youngstown:
- (i) Where the President acts with the express or implied authority of Congress, his authority is at its maximum and his actions likely are valid;
- (ii) Where the President acts where Congress is silent, his action will be upheld as long as the act does not take over the powers of another branch of the government or prevent another branch from carrying out its tasks; and
- (iii) Where the President acts against the express will of Congress, he has little authority and his action likely is invalid.
Presidential Appointment Powers
Under Article II, Section 2, the President is empowered “with the advice and consent of the Senate” to appoint “all ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for . . . but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”
Congressional Appointment Powers
A special prosecutor with the limited duties of investigating a narrow range of persons and subjects (e.g., to investigate alleged misconduct of a government employee) is an inferior officer. Therefore, under the Appointment Clause, Congress is free to vest the power to appoint a special prosecutor in the judiciary. (Morrison v. Olson).
Under constitutional separation of powers, while all executive power is vested in the President and the President has the authority to remove those who assist him in carrying out his duties, Congress can create expert agencies led by a group of principal officers removable by the President only for good cause.
Presidential Removal Power
Under the Court’s decisions, the President probably can remove high level, purely executive officers (e.g., Cabinet members) at will, without any interference from Congress. However, after Morrison v. Olson, it appears that Congress may provide statutory limitations (e.g., removal for good cause) on the President’s power to remove all other executive appointees.
Congressional Removal Power
Congress cannot give itself the power to remove an officer charged with the execution of laws except through impeachment. A congressional attempt through legislation to remove from government employment specifically named government employees is likely to be held invalid as a bill of attainder.
Bicameralism Requirement
A legislative veto is an attempt by Congress to overturn an executive agency action without bicameralism or presentment. Legislative vetoes of executive actions are invalid. (Chadha). The legislative veto usually arises where Congress delegates discretionary power to the President or an executive agency.
In an attempt to control the delegation, Congress requires the President or agency to present any action taken under the discretionary power to certain members of Congress for approval. If they disapprove, they veto the action and that is the final decision on the action. This is unconstitutional, because, to be valid, legislative action (the veto) must be approved by both houses and presented to the President for his approval.
In Chadha, the Court also noted that the legislative veto violates the implied separation of powers requirements of the Constitution.
Executive Privilege
The executive privilege is not a constitutional power, but rather is an inherent privilege necessary to protect the confidentiality of presidential communications. Presidential documents and conversations are presumptively privileged, but the privilege must yield to the need for such materials as evidence in a criminal case to which they are relevant and otherwise admissible. This determination must be made by the trial judge after hearing the evidence.
Presidential Immunity
The President has absolute immunity from civil damages based on any action that the President took within his official responsibilities (even if the action was only arguably within the “outer perimeter” of presidential responsibility). (Nixon v. Fitzgerald). However, the President has no immunity from private suits in federal courts based on conduct that allegedly occurred before taking office. (Clinton v. Jones). The immunity is intended only to enable the President to perform his designated functions without fear of personal liability.
Presidential Foreign Relation Powers
The President’s power to represent and act for the United States in day-to-day foreign relations is paramount. He has the power to appoint and receive ambassadors and make treaties (with the advice and consent of the Senate), and to enter into executive agreements. His power is broad even as to foreign affairs that require congressional consent. No significant judicial control has been exercised over this power.
Power to Recognize Foreign States → The power to recognize foreign states lies exclusively with the president.
- For example, Zivotofsky → Legislation requiring the secretary of state, upon request, to designate “Israel” and not “Jerusalem” as the place of birth on the passport of a U.S. citizen born in Jerusalem infringes on the long-time executive branch policy of favoring recognition of Jerusalem.
Presidential Treaty Power
The treaty power is granted to the President “by and with the advice and consent of the Senate, provided two-thirds of the Senators present concur.” Like other federal law, treaties are the “supreme law of the land.” Any state action or law in conflict with a United States treaty is invalid (regardless of whether it is a state law or a state constitutional provision).
- Conflict with Congressional Acts → Valid treaties are on a “supremacy parity” with acts of Congress; a conflict between an act of Congress and a treaty is resolved by order of adoption—the last in time prevails.
- Conflict with Constitution → Treaties are not co-equal with the Constitution. For example, no treaty (or executive agreement) could confer on Congress authority to act in a manner inconsistent with any specific provision of the Constitution.
Executive Agreements
The President’s power to enter into agreements (i.e., executive agreements) with the heads of foreign countries is not expressly provided for in the Constitution; nevertheless, the power has become institutionalized. Executive agreements can probably be on any subject as long as they do not violate the Constitution. They are very similar to treaties, except that they do not require the consent of the Senate.
Executive agreements that are not consented to by the Senate are not the “supreme law of the land.” Thus, conflicting federal statutes and treaties will prevail over an executive agreement, regardless of which was adopted first. However, executive agreements prevail over conflicting state laws.
For example, Regan → The President, with the implicit approval of Congress, has power to settle claims of United States citizens against foreign governments through an executive agreement.
Presidential War Powers
Although lacking the power to declare or initiate a “formal” war, the President has extensive military powers (essentially an external field, although applicable to civil war as well and to many domestic affairs caught up in military necessities). This power includes the establishment of military governments in occupied territories, including military tribunals.
- Actual Hostilities → The President may act militarily under his power as commander in chief of the armed forces and militia (when federalized), under Article II, Section 2, in actual hostilities against the United States without a congressional declaration of war.
“Necessary and Proper” Clause
The Necessary and Proper Clause grants Congress the power to make all laws necessary and proper (i.e., appropriate) for carrying into execution any power granted to any branch of the federal government. The Necessary and Proper Clause is not itself a basis of power; it merely gives Congress power to execute specifically granted powers. Thus, if a bar exam question asks what is the best source of power for a particular act of Congress, the answer should not be the Necessary and Proper Clause, standing alone.
- Limitation → Congress cannot adopt a law that is expressly prohibited by another provision of the Constitution.
Commerce Power
Article I, Section 8, Clause 3 empowers Congress to “regulate commerce with foreign nations and among the several states, and with the Indian tribes.” Chief Justice Marshall, in Gibbons v. Ogden, defined commerce as “every species of commercial intercourse. . . which concerns more states than one” and included within the concept virtually every form of activity involving or affecting two or more states.
The Supreme Court has sustained congressional power to regulate any activity, local or interstate, that either in itself or in combination with other activities has a “substantial economic effect upon,” or “effect on movement in,” interstate commerce.
Commerce Power Categories
The Supreme Court has recently made clear that the power of Congress to regulate commerce, although very broad, does have limits so as not to obliterate the distinction between what is national and what is local. To be within Congress’s power under the Commerce Clause, a federal law must either:
- (a) regulate the channels of interstate commerce;
- (b) regulate the instrumentalities of interstate commerce and persons and things in interstate commerce; or
- (c) regulate activities that have a substantial effect on interstate commerce.
Intrastate Activity (Commerce Powers)
When Congress attempts to regulate intrastate activity under the third category of Commerce Powers, the Court will uphold the regulation if it is of economic or commercial activity and the court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce.
- For example, Gonzalez, in which the Court upheld regulation of intrastate cultivation and use of marijuana (permitted by state law for medicinal purposes) because it was part of a comprehensive federal program to combat interstate traffic in illicit drugs.
If the regulated intrastate activity is not commercial or economic, the Court generally will not aggregate the effects and the regulation will be upheld only if Congress can show a direct substantial economic effect on interstate commerce, which it generally will not be able to do.
- For example, Lopez, where a federal statute barring possession of a gun in a school zone was held invalid.
Preemption
Most governmental power is concurrent, belonging to both the states and the federal government. Thus, it is possible for states and the federal government to pass legislation on the same subject matter. When this occurs, the Supremacy Clause provides that the federal law is supreme, and the state law is rendered void if it is preempted. State law may be preempted expressly or impliedly.
- Express Preemption → A federal law may expressly provide that the states may not adopt laws concerning the subject matter of the federal legislation. Note, however, that an express preemption clause will be narrowly construed.
- Implied Preemption → Even if federal law does not expressly prohibit state action, state laws will nevertheless be held impliedly preempted if they actually conflict with federal requirements, they prevent achievement of federal objectives, or Congress has preempted the entire field.
- Presumption Against Preemption → The Supreme Court has stated that in all preemption cases, especially any involving a field traditionally within the power of the states (e.g., regulations involving health, safety, or welfare), it will start with the presumption that the historic state police powers are not to be superseded unless that was the clear and manifest purpose of Congress.
Types of Implied Preemption
- (a) Actual Conflict Between State and Federal Law Requirements → A valid act of Congress or federal regulation supersedes any state or local action that actually conflicts with the federal rule—whether by commanding conduct inconsistent with that required by the federal rule, or by forbidding conduct that the federal rule is designed to foster.
- (b) State Prevents Achievement of Federal Objective → State law will also be held impliedly preempted if it interferes with achievement of a federal objective. This is true even if the state or local law was enacted for some valid purpose and not merely to frustrate the federal law.
- (c) Field Preemption → A state or local law may also be found to be preempted if it appears that Congress intended to “occupy” the entire field, thus precluding any state or local regulation. The courts will look at the federal regulatory scheme to deduce Congress’s intent. For example, if the federal laws are comprehensive or a federal agency is created to oversee the field, preemption will often be found.
Separation of Powers and Court Decisions
The Constitution separates governmental powers among the branches of government. This separation of powers doctrine prohibits the legislature from interfering with the courts’ final judgments. However, Congress may change federal statutes and may direct federal courts to apply those changes in all cases in which a final judgment has not been rendered.
- Example: The Supreme Court inferred a limitations period under an ambiguous federal securities law. Because new Supreme Court rulings generally apply to all pending cases, the limitations period imposed by the Court resulted in the dismissal of many pending cases as time-barred. Congress amended the securities law to provide (i) a different limitations period and (ii) a special motion for reinstating the cases dismissed as time-barred by the Supreme Court’s ruling. Because the dismissed cases were final judgments, the statute providing for the reinstatement violated the separation of powers doctrine under the Constitution. (Plaut v. Spendthrift Farm, Inc.)
Federal Review of State Acts
Federal review of state acts (executive, legislative, or judicial) was established by the Marshall Court in a series of decisions. Clear basis exists here in the Supremacy Clause of Article VI, which states that the Constitution, Laws, and Treaties of the United States take precedence over state laws and that the judges of the state courts must follow federal law, anything in the constitution or laws of any state to the contrary notwithstanding.
Article III & Constitutional Authorization
The federal government is a government of limited powers, which means that for federal action to be legitimate, it must be authorized. The Constitution is the instrument that authorizes the federal government to act. Thus, whenever a question involves action by an entity of the federal government, the action will be valid only if it is authorized by the Constitution. The Constitution authorizes a federal court system in Article III, which provides that federal courts shall have judicial power over all “cases and controversies.”
Article III courts are those established by Congress pursuant to the provisions of Article III, Section 1. Congress has power to delineate the jurisdictional limits, both original and appellate, of these courts, although it is bound by the standards of judicial power set forth in Article III as to subject matter, parties, and the requirement of “case or controversy.” Thus, Congress cannot require these courts to render advisory opinions or perform administrative or nonjudicial functions.
Original Jurisdiction of the Supreme Court
Under Article III, Section 2, the Supreme Court has original jurisdiction “in all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party.” This provision is self-executing: Congress may neither restrict nor enlarge the Supreme Court’s original jurisdiction, but Congress may give concurrent jurisdiction to lower federal courts and has done so regarding all cases except those between states.
Statutory Appellate Jurisdiction of the Supreme Court
Congress has provided two methods for invoking Supreme Court appellate jurisdiction: appeal (where jurisdiction is mandatory), and certiorari (where jurisdiction is within the Court’s discretion). Very few cases fall within the Court’s mandatory appeal jurisdiction; thus, appellate jurisdiction is almost completely discretionary.
The Supreme Court has complete discretion to hear cases that come to it by writ of certiorari. A case will be heard if four justices agree to hear it. The following cases may be heard by certiorari:
- (1) Cases from the highest state courts where (i) the constitutionality of a federal statute, federal treaty, or state statute is called into question; or (ii) a state statute allegedly violates federal law; and
- (2) All cases from federal courts of appeals.
Congressional Limits on Statutory Regulation of Supreme Court Appellate Jurisdiction
Ex parte McCardle has been read as giving Congress full power to regulate and limit the Supreme Court’s appellate jurisdiction. However, possible limitations on such congressional power have been suggested:
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(1) Congress may eliminate specific avenues for Supreme Court review as long as it does not eliminate all avenues.
- For example, in McCardle, two statutes had allowed the Supreme Court to grant habeas corpus to federal prisoners. The Supreme Court upheld the constitutionality of the repeal of one of the statutes because the other statute remained as an avenue for Supreme Court habeas corpus review.
- (2) Although Congress may eliminate Supreme Court review of certain cases within the federal judicial power, it must permit jurisdiction to remain in some lower federal court.
- (3) If Congress were to deny all Supreme Court review of an alleged violation of constitutional rights—or go even further and deny a hearing before any federal judge on such a claim—this would violate due process of law.
Justiciability Limitations
Even if a federal court has jurisdiction over the subject matter of a case, it still might refuse to hear the case. Whether the court will hear the case (i.e., whether the case is justiciable) depends on whether a “case or controversy” is involved, and on whether other limitations on jurisdiction are present. Justicibility issues include:
- (1) advisory opinions,
- (2) ripeness,
- (3) mootness,
- (4) standing,
- (5) political questions, and
- (6) adequate and independent state grounds.
Advisory Opinions
The Supreme Court’s interpretation of the “case and controversy” requirement in Article III bars rendition of “advisory” opinions. Thus, federal courts will not render decisions in moot cases, collusive suits, or cases involving challenges to governmental legislation or policy whose enforcement is neither actual nor threatened.
Political Questions
The Court will not decide political questions. Political questions are:
- (a) those issues committed by the Constitution to another branch of government; or
- (b) those inherently incapable of resolution and enforcement by the judicial process.
Congressional Appointment of Officers With Administrative or Enforcement Powers
Although Congress may appoint its own officers to carry on internal legislative tasks (i.e., its staff), it may not appoint members of a body with administrative or enforcement powers; such persons are “officers of the United States” and must, pursuant to Article II, Section 2, be appointed by the President with senatorial confirmation unless Congress has vested their appointment in the President alone, in federal courts, or in heads of departments. (Bucky v. Valeo).
Conressional Delegation and Limitations
Congress has broad discretion to delegate its legislative power to executive officers and/or administrative agencies, and even delegation of rulemaking power to the courts has been upheld. (Mistretta v. U.S.).
- (a) Power Cannot Be Uniquely Confined to Congress → To be delegable, the power must not be uniquely confined to Congress; e.g., the power to declare war cannot be delegated, nor the power to impeach.
- (b) Clear Standard → It is said that delegation will be upheld only if it includes intelligible standards for the delegate to follow. However, as a practical matter almost anything will pass as an “intelligible standard” (e.g., “upholding public interest, convenience, or necessity”).
- (c) Separation of Powers Limitations → While Congress has broad power to delegate, the separation of powers doctrine restricts Congress from keeping certain controls over certain delegates.
- (d) Important Liberty Interests → If the delegate interferes with the exercise of a fundamental liberty or right, the burden falls upon the delegate to show that she has the power to prevent the exercise of the right and her decision was in furtherance of that particular policy.
- (e) Criminal vs. Civil Punishment → The legislature may delegate its authority to enact regulations, the violation of which are crimes, but prosecution for such violations must be left to the executive and judicial branches. However, agencies may enact and impose civil penalties (i.e., fines labeled as civil fines) without prosecution in court.
Presidential Veto
The veto power allows the President only to approve or reject a bill in toto; he cannot cancel part (through a line item veto) and approve other parts. Rationale: The President’s veto power does not authorize him to amend or repeal laws passed by Congress. (Clinton v. City of New York).
Adequate and Independent State Grounds
The Supreme Court will hear a case from a state court only if the state court judgment turned on federal grounds. The Court will refuse jurisdiction if it finds adequate and independent nonfederal grounds to support the state decision.
- (a) “Adequate” → The nonfederal grounds must be “adequate” in that they are fully dispositive of the case, so that even if the federal grounds are wrongly decided, it would not affect the outcome of the case. Where that is the case, the Supreme Court’s review of the federal law grounds for the state court’s decision would have no effect on the judgment rendered by the state court, so that the Supreme Court, in effect, would be rendering an advisory opinion.
- (b) “Independent” → The nonfederal grounds must also be “independent.” If the state court’s interpretation of its state provision was based on federal case law interpreting an identical federal provision, the state law grounds for the decision are not independent.
- (c) Where Basis Is Unclear → If it is unclear whether the state court decision turned on federal or state law, the Supreme Court may dismiss the case or remand it to the state court for clarification. However, the Court will usually assume that there is no adequate state ground unless the state court expressly stated that its decision rests on state law.
Dormant Commerce Clause
The dormant aspect of the commerce clause occurs when two events coalesce: (1) a state regulates interstate commerce (or foreign or Indian commerce), and (2) Congress has not preempted the state regulation by federal legislation. In the absence of such congressional action the Court implies some limits upon state regulation of interstate commerce. If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce if the regulation:
- (1) does not discriminate against out-of-state competition to benefit local economic interests; and
- (2) is not unduly burdensome (i.e., the incidental burden on interstate commerce does not outweigh the legitimate local benefits produced by the regulation).
If either test is not met, the regulation will be held void for violating the Commerce Clause.
Discriminatory Regulations (Dormant Commerce Clause)
State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid.
- Examples: (1) regulations protecting local businesses, (2) regulations requiring local operations, (3) regulations limiting access to in-state products, and (4) regulations prohibiting out-of-state wastes.
However, a discriminatory state or local law may be valid if it furthers an important, noneconomic state interest (e.g., health or safety) and there are no reasonable alternatives available.
Market-Participant Doctrine (Dormant Commerce Clause)
The Commerce Clause does not prevent a state from preferring its own citizens when the state is acting as a market participant (e.g., buying or selling products, hiring labor, giving subsidies). For example, a state may purchase scrap automobiles from its citizens at a higher-than-market rate and refuse to pay nonresidents the same amount.
- (a) Limitation, Interstate Privileges and Immunities Clause → While a state or local government does not violate the Commerce Clause by preferring its own citizens while acting as a market participant, there is no market participant exception to the Interstate Privileges and Immunities Clause. Thus, a regulation that interferes with private sector employment may violate the Privileges and Immunities Clause unless the regulating entity can show a substantial justification for the regulation.
- (b) Limitation, “Downstream” Restrictions → While a state may choose to sell only to state residents, it may not attach conditions to a sale that would discriminate against interstate commerce. For example, Alaska violated the Commerce Clause when it imposed a contractual requirement on purchasers of state-owned timber that the timber be processed in Alaska before being shipped out of state.
Traditional Government Functions (Dormant Commerce Clause)
The Supreme Court applies a more lenient standard when a law favors government action involving the performance of a traditional government function (such as waste disposal). Discrimination against interstate commerce in such a case is permissible because it is likely motivated by legitimate objectives rather than by economic protectionism.
- Example: A county flow control ordinance that favored a state-created public waste facility by requiring waste haulers to bring the wastes to the state facility rather than to private facilities is valid.
Nondiscriminatory Laws (Dormant Commerce Clause)
Sometimes a nondiscriminatory state or local law that regulates commerce may impose a burden on interstate commerce; e.g., a state law regulating the size of trucks within that state may burden interstate commerce because interstate trucking operations will be subject to the law when their trucks enter the state. A nondiscriminatory law will be invalidated only if the burden on interstate commerce outweighs the promotion of legitimate (not discriminatory) local interests. This is a case-by-case balancing test.
- (a) Absence of Conflict with Other States → State and local laws regulating commerce are more likely to be upheld when there is little chance that states would have conflicting regulations of the same subject matter.
- (b) State Control of Corporations → A different standard may apply to statutes regulating the internal governance of a corporation adopted by the state of incorporation. Because of the states’ long history of regulating the internal governance of corporations that they create, and because of their strong interest in doing so, even a statute that heavily impacts interstate commerce may be upheld.
Federal Police Power
Congress has no general police power (i.e., power to legislate for the health, welfare, morals, etc., of the citizens). Thus, on the bar exam the validity of a federal statute cannot rely on “the police power.” However, Congress can exercise police power-type powers as to the District of Columbia pursuant to its power to legislate over the capital [Art. I, §8, cl. 17] and over all United States possessions (e.g., territories, military bases, Indian reservations) pursuant to the property power.
Exclusive State Powers
Whereas the federal government has only those powers granted to it by the Constitution, the state governments are governments of “unlimited” powers, having all powers not prohibited to them by the Constitution. This is recognized by the Tenth Amendment, which provides that all powers not delegated to the federal government by the Constitution are reserved to the states (or to the people). However, given the expansive interpretation of federal powers (e.g., the commerce power; see II.A.4., supra), little state power is exclusive.
Tenth Amendment
The Tenth Amendment provides that powers not delegated to the United States by the Constitution, nor prohibited to the states, are reserved to the states. This reservation of power is often cited as a restriction on Congress’s power to regulate the states.
Tax or Regulation Applying to State and Private Entities (Tenth Amendment)
The Supreme Court will not likely strike down on Tenth Amendment grounds a tax or regulation that subjects states or local governments to regulations or taxes that apply to both the public sector and the private sector. It has held that in such cases, the states’ interests are best protected by the states’ representation in Congress.
- Example: Congress can require state and local governments to follow the provisions of the Federal Fair Labor and Standards Act requiring minimum wages for all employees. (Garcia).
Tax or Regulation that Applies Only to the States
The Tenth Amendment does limit Congress’s power to regulate the states alone by requiring the states to act in a particular way. Congress may not compel states to enact or enforce a regulatory program. Similarly, if Congress passes a tax that does not apply to private businesses but merely taxes state government entities, there is a possibility that the Court would use the Tenth Amendment to prohibit the tax.
- (a) Exemption, Civil Rights → Congress may use its power under the Fourteenth and Fifteenth Amendments to restrict state activities that it determines would violate the civil liberties of persons within the state.
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(b) Exemption, Spending Power Conditions → Congress may also “regulate” states through the spending power by imposing conditions on the grant of money to state or local governments (sometimes referred to as grants with strings attached). Such conditions will not violate the Tenth Amendment merely because Congress lacked the power to directly regulate the activity that is the subject of the spending program if the conditions:
- (i) are clearly stated;
- (ii) relate to the purpose of the program; and
- (iii) are not unduly coercive.
Anti-Commandeering Doctrine
The Supreme Court has held that the Tenth Amendment prohibits Congress from adopting a statute that “commandeers” state officials by requiring states to regulate their own citizens. However, the Court has allowed Congress to regulate the states by prohibiting them from performing certain acts.
Taxing Power
Congress has the power to lay and collect taxes, imposts, and excises, but they must be uniform throughout the United States. [Art. I, §8]. Capitation or other direct taxes must be laid in proportion to the census [Art. I, §9, cl. 4], and direct taxes must be apportioned among the states [Art. I, §2, cl. 3].
- (a) What Is a Tax? → The determination of whether a legislative enactment imposes a tax does not depend on the label Congress gives it, but rather on its function. (Sebelius).
- (b) Uniformity → Requirement of uniformity in the levy of indirect taxes (generally, this means any kind of “privilege” tax, including duties and excises) has been interpreted by the Court to mean geographical uniformity only—i.e., identical taxation of the taxed Article in every state where it is found.
Spending Power
Congress may spend to “provide for the common defense and general welfare.” [Art. I, §8] This spending may be for any public purpose—not merely the accomplishment of other enumerated powers. However, non-spending regulations are not authorized. Remember that the Bill of Rights still applies to this power; i.e., the federal government could not condition welfare payments on an agreement not to criticize government policies.
- Regulation Through Spending → Note that Congress can use its spending power to “regulate” areas, even where it otherwise has no power to regulate the area, by requiring entities that accept government money to act in a certain manner (i.e., attaching “strings” to government grants).
Interstate Privileges and Immunities
Article IV, Section 2, the Interstate Privileges and Immunities Clause, provides that “[t]he Citizens of each state shall be entitled to all Privileges and Immunities of citizens in the several states.” Thus, it prohibits discrimination by a state against nonresidents.
- (1) Corporations and Aliens Not Protected → Corporations and aliens are not citizens of a state for purposes of the Privileges and Immunities Clause.
- (2) Only “Fundamental Rights” Protected → The Interstate Privileges and Immunities Clause prohibits discrimination by a state against nonresidents of the state when the discrimination concerns “fundamental rights”—i.e., rights relating to important commercial activities (such as pursuit of a livelihood) or civil liberties. However, the Clause applies only if the discrimination is intentionally protectionist in nature.
- (3) Substantial Justification Exception → A state law discriminating against nonresidents may be valid if the state has a substantial justification for the different treatment. In effect, it must show that nonresidents either cause or are part of the problem it is attempting to solve, and that there are no less restrictive means to solve the problem.
Procedural Due Process
At the very least, due process requires that before a person is deprived of life, liberty, or property he must be given “notice of the case against him and opportunity to meet it.” While all intentional governmental deprivations of life, liberty, or property require fair process, what constitutes fair process in terms of the timing and scope of the hearing varies according to the circumstances of the deprivation. The Court will weigh:
- (i) the importance of the individual interest involved;
- (ii) the value of specific procedural safeguards to that interest; and
- (iii) the governmental interest in fiscal and administrative efficiency.
In all situations, the Court will probably require fair procedures and an unbiased decisionmaker. Normally, the person whose interest is being deprived should also receive notice of the government’s action and have an opportunity to respond before termination of the interest. However, the court may allow a post-termination hearing in situations where a pre-termination hearing is highly impracticable.
Incorporation Doctrine (Substantive Due Process)
Perhaps the most enduring monument of substantive due process is the incorporation doctrine, by which most of the substantive guarantees of the Bill of Rights have been “incorporated” into the Fourteenth Amendment’s due process clause and thus made applicable to the states. The debate over incorporation was not so much about whether the Fourteenth Amendment’s due process clause made any of the Bill of Rights guarantees applicable to the states, but whether the due process clause incorporated those guarantees in toto and all at once or did so selectively.
- Bill of Rights Not Included → The Slaughterhouse Cases held that the fundamental rights protected against federal abuse (first 10 Amendments) are not privileges or immunities of national citizenship within the meaning of the Fourteenth Amendment; nor are such other basic rights as the right to live, work, and eat. Thus, the guarantees of the Bill of Rights are protected from state action only by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
