Federal Legislative Power

Question 1

T/F: It is true that although it is a federal power, states may regulate interstate commerce subject to the negative implications of the Commerce Clause. The negative implications (also called Dormant Commerce Clause) generally prohibit states from discriminating against out-of-state business or unduly burdening interstate commerce.

Answer 1

True.

Question 2

T/F: If Congress has not acted, state regulation of interstate commerce is valid if the regulation does not discriminate against out-of-state competition and does not unduly burden interstate commerce. If the regulation does discriminate against interstate commerce, it is valid if it is necessary to an important, noneconomic government interest.

Answer 2

True.

Question 3

What are exceptions under the Commerce Clause regarding prohibiting states from discriminating against out-of-state competition?

Answer 3

When a state acts as a market participant, it generally is not restricted by the Commerce Clause; it may favor its own citizens, such as by distributing state-owned resources only to residents or paying residents more for something than it would pay a nonresident (although such conduct might violate the Article IV Privileges and Immunities Clause).

When a regulation is necessary to further an important, noneconomic state interest such as health or safety, it is excepted from the general rule of the negative implications of the Commerce Clause prohibiting discrimination against out-of-state competition.

There also is an exception for when the regulation furthers an important, noneconomic state interest such as health or safety and there are no reasonable alternatives available. Actually, this is the same answer as above-if there are no reasonable alternatives, the method chosen is considered a necessary method.

Question 4

The negative implications of the Commerce Clause would not prohibit a regulation:

A Prohibiting out-of-state wastes from being accepted in private landfills

B Favoring local governments when performing government functions, such as exempting local bonds from state tax while subjecting bonds of other states to a tax

C Requiring operations to occur in the state, such as requiring all milk sold within the state to be pasteurized in the state

D Protecting local businesses, such as by placing a surcharge on out-of-state products

Answer 4

A regulation favoring local governments when performing government functions, such as exempting local bonds from state tax while subjecting bonds of other states to a tax, is excepted from the negative implications of the Commerce Clause.

All of the other choices would be invalid under the negative implications of the Commerce Clause: A regulation prohibiting out-of-state wastes from being accepted in private landfills discriminates against out-of-state business, as does a regulation requiring operations to occur in the state, such as requiring all milk sold within the state to be pasteurized in the state, and the negative implications of the Commerce Clause also prohibit regulations protecting local businesses, such as ones placing a surcharge on out-of-state products.

Question 5

States may regulate local aspects of interstate commerce as long as the local regulation does not conflict with or is preempted by federal regulation and the regulation meets what two-part test?

Answer 5

States may regulate local aspects of interstate commerce as long as the local regulation does not conflict with, or is not preempted by, federal regulation and the regulation meets the following tests: (i) the regulation does not discriminate against out-of-state competition in order to benefit local economic interests, and (ii) the incidental burden on interstate commerce does not outweigh the local benefits of the regulation.

Question 6

Large semi-trailer trucks use one of two basic designs of tires. There are some differences in the two designs of the tires, but both are deemed to be equally safe by independent testing labs. A state has enacted a statute banning the use of one of the tire types. The other tire design is legal and available for sale in all states. A trade association of interstate trucking firms has brought suit to have the statute declared unconstitutional. The state argues that no burden exists because the other tire design can be used in all states.

How should the Court rule on the constitutionality of the statute?

Answer 6

The statute banning the use of one of the tire designs is an unconstitutional burden on interstate commerce even though an equally safe alternative is available in all 50 states. If Congress has not enacted laws regarding a subject, a state may regulate local aspects of interstate commerce if the regulation: (i) does not discriminate against out-of-state competition to benefit local economic interests; and (ii) is not unduly burdensome (i.e., the incidental burden on interstate commerce does not outweigh the legitimate local benefits).

The final test is a balancing test to determine whether the regulation is unduly burdensome, and here the regulation probably will fail. In this case, because the other tire design is legal in all 50 states, the burden on interstate commerce is not as great. Nevertheless, it is still significant. By not permitting equally safe alternative types of tires, which might be cheaper or more readily available, the state is imposing an undue burden on all trucking companies in other states whose trailers might at some time pass through the state.

Question 7

The state of Blue enacted a statute to protect its faltering lobster industry. The statute provides that no lobster shall be taken from lobster beds lying within three miles of the state shoreline unless the lobster is at least one pound in weight. The statute’s one-pound limitation is intended to enable young lobsters to reproduce before being caught. At the same time, Congress enacted a lobster conservation act that provides $5 million for research funds to develop and improve breeding grounds for lobsters. The federal act imposes a special excise tax of $1,000 on each lobster caught in violation of state law if later shipped in interstate commerce. A lobsterman who lives in the state of Green, which is just south of the state of Blue, crossed over into waters lying within three miles of the Blue coastline. He was arrested by state Blue law enforcement officers for taking lobsters that weighed less than one pound. The man defended the charge by challenging the constitutionality of the state Blue statute.

What is the likely result?

Answer 7

The statute will be upheld because it does not discriminate against out-of-state economic interests and it is not unduly burdensome. A state or local government may regulate local aspects of interstate commerce if such regulation: (i) does not discriminate against out-of-state competition to benefit local economic interests; and (ii) is not unduly burdensome.

The statute does not discriminate against out-of-state elements of the lobster fishing industry. The statute is designed to maintain the lobster population by allowing lobsters to reproduce. By maintaining the lobster population, the state is attempting to further the legitimate state interest, rather than trying to protect a local business against interstate competition. It is applied evenhandedly (i.e., it does not merely regulate the activities of out-of-state lobster fishers while exempting in-state fishers from those same regulations). Therefore, the statute does not discriminate against interstate commerce.

Question 8

T/F: The Necessary and Proper Clause alone cannot support federal law.

Answer 8

True. If the answer choice is just the Privileges and Immunities Clause, it will be incorrect unless another federal power is linked to it.

Question 9

What is Congress’s taxing power?

Answer 9

Taxes will be upheld if they bear some reasonable relationship to revenue production or if Congress has the power to regulate the activity taxed.

Question 10

T/F: If the regulated intrastate (in the state) activity is non-commercial and non-economic, the Court generally will not aggregate the effects.

Answer 10

True and it is likely not to be something Congress can regulate with the ICC.

Question 11

T/F: Aliens have no right to enter the US and can be refused just for their religious beliefs.

Answer 11

True. How is this okay?

Question 12

T/F: Conduct that occurs in the regular course of the federal legislative process and the motivation behind that conduct are immune from prosecution.

Answer 12

True. Unless it is bribes or is speech outside Congress.

Question 13

When can Congress regulate states through the spending power by imposing conditions on the grant of money to state or local governments?

Answer 13

Only when the conditions are:

(i) clearly stated
(ii) relate to the purpose of the program; and
(iii) are not unduly coercive

Question 14

If you see a question that says that the Court strikes down on 10th Amendment grounds a federal regulation or tax that impacts state or local governmental entities, you can assume what?

Answer 14

That this is wrong.

Question 15

T/F: The Privileges and Immunities Clause prohibits discrimination by a state against non-residents.

Answer 15

True - this does not cover corporations and aliens.

Question 16

When can a state law be valid, despite the Privileges and Immunities Clause?

Answer 16

If the state has a substantial justification for the different treatment. It must show that non-resident either cause or are part of the problem and that the state is attempted to solve that and there is no less restrictive means to solve the problem.

Question 17

If the discrimination against out-of-state entities burdens IC and there is no applicable federal legislation, the action is invalid unless (3):

Answer 17

1. it furthers an important non-economic state interest + no reasonable non-discriminatory alternatives;
2. state is a market participant; OR
3. it involves govt action regarding the performance of a traditional govt function

Question 18

If the action denies an out-of-state person important economic interests or civil liberties and the discrimination is intentionally protectionist, the law is invalid unless:

Answer 18

the state has a substantial justification and there are no less restrictive means

Question 19

What is a use tax and how is it valid under ICC?

Answer 19

A use tax is a tax on goods purchased outside the state, but used within the state. They valid unless it is higher than sales tax.

Question 20

What is a sales tax and how is it valid under ICC?

Answer 20

Sales tax is a tax on the sale of goods consummated within the state. It is valid because there is a substantial nexus between the taxpayer and the taxing state or the tax is properly apportioned.

Question 21

What is a ad valorem tax?

Answer 21

An ad valorem tax is tax on the assessed value of some property.

Commodities: valid only if property is no longer in interstate commerce

Instrumentalities: valid if instrumentality has “taxable situs” in state and tax is fairly apportioned.

Question 22

What is a “doing business” tax?

Answer 22

It is a tax placed on some activity - privilege, license, and occupational tax.

it is valid if:

(a) substantial nexus to taxing state
(b) fairly apportioned
(c) does not discriminate against interstate commerce, and
(d) fairly relates to services provided by the state

Question 23

T/F: Impairment of the Contract Clause applies to state governments only, not to federal.

Answer 23

True. aka how federal government can say no one can contract with Huawei, invalidating past contracts, but a state cannot pull the same.

Question 24

To crack down on illegal immigration, Congress passed a law giving a federal agency the power to make rules to reduce crime related to illegal immigration. The agency passed a rule requiring state cops to verify the identity of anyone arrested, determine if in country legally, and detain while alerting federal authorities.

The governor of the state held a press conference announcing that the state won’t comply.

Can the federal government force the state to comply?

Answer 24

No, because the Tenth Amendment prevents the federal government from requiring state officers to act. Here, the rule requires state officials to detain subjects even after they have been cleared of violating state laws. Regulations may not commandeer state officials.

Question 25

To combat rising unemployment, a state offered a $25,000 prize to anyone who could devise a scheme to create at least 200 jobs within the state and demonstrate its viability. While hiking through a national park within the state, a geologist noticed rock containing titanium. Knowing that titanium was commonly used in military aircraft built within the state and that mining and refining titanium could provide the state with thousands of jobs, the geologist chipped out a sample of the ore and took it back to the state employment division. After reviewing the geologist’s ideas, the state announced in a press release that he was the first recipient of the $25,000 prize. Within a few days, the federal ranger in charge of the valley from which the sample was taken had the geologist arrested for violating a federal law making it illegal to remove any “plants, animals, or minerals from federal lands.” The geologist was convicted and fined $5,000. He appeals the conviction to the federal court of appeals, claiming that the fine is unconstitutional.

How should the court rule?

C - For the government, because the federal statute providing for the fine is constitutional under the Property Clause of Article IV, Section 3 of the federal Constitution.

D - For the government, because the federal statute providing for the fine is constitutional under the Commerce Clause.

Answer 25

The court should affirm the geologist’s conviction. The fine is constitutional under the Property Clause, which gives Congress the power to “make all needful rules and regulations respecting the territory or other property belonging to the United States.” This power permits Congress to acquire and dispose of all kinds of property, and to protect its property with a law such as the one here.

Question 26

A comprehensive federal health-care reform statute created a Federal Health Policy Board, which was directed to monitor the fees charged for various medical procedures covered by insurance. The board also had the power to subpoena records to determine whether fee increases were a true reflection of cost increases. Nothing in the statute provided for caps on fee increases.

Because of the continuing escalation of health-care costs while the statute was being debated, several states had passed health-care legislation on their own. One state passed legislation that prohibited most fee increases of 10% or more per year for specified health-care services covered by insurance, and created a health-care review board to regulate these costs and impose monetary penalties on health-care providers or insurers that tried to circumvent the cap.

Which of the following would be the best basis for finding the state provision unconstitutional?

A - federal legislation was passed after the state legislation and therefore supersedes it.

B - Federal Health Policy Board was constituted with many of the same powers as the state board but was not given the power to impose sanctions.

C - state provision impairs existing contracts between health-care providers and insurers in violation of the Contract Clause.

D - health-care fee caps create an undue burden on interstate commerce even in the absence of federal regulation.

Answer 26

(B) The fact that the federal board was similar to the state board but was not given the power to restrict fee increases and impose sanctions in an otherwise comprehensive bill suggests that such provisions in the state law violate the Supremacy Clause. A state law may fail under the Supremacy Clause even if it does not directly conflict with a federal statute or regulation if it interferes with the achievement of a federal objective or the federal regulations occupy the entire field.

Where the federal laws are comprehensive or a federal agency is created to oversee the field, preemption will often be found. The fact that the health-care legislation was comprehensive but the federal board was not given regulatory or enforcement power suggests that Congress did not want specific restrictions in these areas and may have wanted free-market principles to determine fee increases at the outset. The state board’s power to impose these restrictions may violate the Supremacy Clause under these circumstances. (A) is incorrect because the fact that the federal legislation was passed later does not automatically mean that the state legislation has been superseded. In areas of concurrent legislative power, a state regulation will be upheld if it does not conflict with and is not preempted by federal legislation.

(D) is incorrect because states may regulate local aspects of interstate commerce in the absence of federal regulation as long as the regulation is nondiscriminatory and does not unduly burden interstate commerce, which is a case-by-case balancing test. Here, the legislation appears to be nondiscriminatory and there are insufficient facts to establish that it would constitute an undue burden; hence, (B) presents a stronger argument than (D).

Question 27

A new federal law prohibited the use of various pesticides in areas with a certain population density near navigable waters. A city located in the southeastern United States was plagued by a sharp increase in disease-carrying mosquitoes. The city’s board of health recommended that all residential areas be sprayed with a pesticide proven to be highly effective against mosquitoes. Despite the fact that the federal law would prohibit use of that pesticide in these areas, the city council passed an ordinance adopting the board of health plan, relying on the opinions of several independent experts that the health benefits of reducing the mosquito population outweighed the risks of spraying. An environmentally minded citizen of the city brought an action in federal court challenging the ordinance.

Assuming that the citizen has standing, is the court likely to find the ordinance valid?

A - Yes, because pursuant to the police power, cities have a compelling interest in laws designed to protect the health, safety, and welfare of their citizens.

B - Yes, because controlling health hazards is an integral governmental function.

C - No, because it is superseded by the power of Congress to adopt laws to protect the health, safety, and welfare of citizens.

D - No, because it conflicts with a federal law that Congress had the power to make under the Commerce Clause.

Answer 27

Congress’s power to regulate commerce has been construed broadly, so that it may regulate any activity, local or interstate, that either in itself or in combination with other activities has a substantial economic effect on interstate commerce. If Congress has determined that the use of chemical pesticides and their runoff into waterways (which are channels of interstate commerce) will have an overall detrimental impact on the environment, this determination will be sufficient in this case to satisfy the standards established by the Supreme Court. Therefore, the law probably is a valid exercise of the commerce power. Any state or local action that conflicts with a valid act of Congress is invalid under the Supremacy Clause. (C) is incorrect because Congress does not have a general “police power” to adopt laws on health and safety. The laws that Congress has passed banning activities that it has deemed harmful to public health have been based on its power to regulate interstate commerce.

Question 28

A cattle-producing state adopted a statute requiring any food service business operating in the state to serve beef raised in the United States. A licensed hot dog vendor who worked at a football field within the state and who had been buying hot dogs made with foreign beef for the past several years estimated that switching to an all-beef hot dog made from United States beef would reduce his profits by 10%. An attorney hired by the vendor to challenge the statute discovered during research into the case that most of the footballs used at the football field at which the vendor worked were made of foreign leather.

Which of the following grounds is the vendor’s best argument against the constitutionality of the state statute?

A - The statute burdens foreign commerce.

B - The statute violates equal protection guarantees because it is not rational to prohibit the sale of foreign beef but not foreign leather.

C - The statute substantially interferes with the vendor’s right to earn a living under the Privileges or Immunities Clause of the Fourteenth Amendment.

D - The statute constitutes a taking without due process of law.

Answer 28

The best argument against the constitutionality of the state statute is that it burdens foreign commerce. For all practical purposes, the power to regulate foreign commerce lies exclusively with Congress. Therefore, a state that adopts legislation requiring private vendors to favor United States products over foreign products, as the state did here, may be acting outside the scope of its powers.

(C) is incorrect because the right to earn a living is not a privilege under the Fourteenth Amendment, which protects against infringement of rights of national citizenship, such as the right to petition Congress for redress. (Neither would the statute violate the Privileges and Immunities Clause of Article IV, because that clause only prohibits discrimination against citizens of other states and the statute here treats citizens of all states the same.) (D) is incorrect because the vendor had all of the process that was due him. Because the government action here was a general act and not an individualized adjudication, the vendor had no right to an individual hearing; the normal procedure for adopting a statute is all the process that is due.

Question 29

A city’s water board election laws provide that, although members of the board are elected at large, one member of the board is required to live within each of the five designated water districts within the city. The city’s population was more or less evenly distributed among the districts when this election law was enacted. A resident and registered voter of the city investigated the district residency requirement and discovered that most of the city’s newer residents had moved into the same two water districts, so that the city’s population was no longer evenly distributed among the five water districts. Instead, 80% of the city’s residents lived within its central and eastern water districts, while the other 20% of the city’s residents were scattered among its three other, more rural, districts.

If the resident files suit in federal court challenging the constitutionality of the residency requirement, how will the court most likely rule?

A - The residency requirement is unconstitutional because it impairs the voters’ equal protection rights, in that it gives the voters in the less populous districts more effective representation on the water board.

B - The residency requirement is unconstitutional because it violates the candidates’ equal protection rights.

C - The residency requirement is constitutionally permissible because the water board members do not exercise legislative power.

D - The residency requirement is constitutionally permissible because the water board members are elected at large.

Answer 29

(D) The residency requirement is permissible because the water board is elected at large. EPC prohibits state dilution of the right to vote, so that when a governmental body establishes voting districts for the election of representatives, the number of persons in each district may not vary significantly. This is known as the principle of “one person, one vote.” This principle applies to almost every election where a person is being elected to perform normal governmental functions (e.g., an election for trustees for a junior college district). However, the principle of one person, one vote generally is inapplicable where there is an at-large system of election (except where the system is adopted for discriminatory purposes). Here, the water board members are elected by all of the qualified voters in the city in an at-large system (rather than having the voters of each individual district select one board member apiece), and no discriminatory intent is evident. Thus, the statutory provision requiring board members to reside in each of the five districts does not result in an imbalance or a dilution of the voting rights of the citizens of the city.

Question 30

Small, prolific mussels called zebra mussels were first introduced into the Great Lakes by a foreign cargo ship. They became a serious problem because they attached themselves to smooth, hard surfaces, and often clogged water intake pipes. Congress determined that zebra mussels posed a great threat to the economic welfare of the Great Lakes region and passed a statute requiring all Great Lakes water intakes to be coated with a special chemical compound that repels zebra mussels. Studies by biologists at a major state university showed that while the special chemical compound that the federal government has required was effective, it also was toxic to other aquatic life. The biologists recommended that Great Lakes intake pipes be coated with a less toxic and less expensive copper-based paint. On the basis of those studies and the recommendation, three Great Lakes states adopted laws permitting municipal water districts to coat their intake pipes with copper paint.

Can municipalities using copper-based paint on their intake pipes successfully be prosecuted for violating the federal law?

A - No, because the Tenth Amendment prevents Congress from interfering with integral government functions.

B - No, because the municipalities are taking effective steps to combat zebra mussels in compliance with the spirit and purpose of the federal law.

C - Yes, because Congress is in a better position to regulate the entire Great Lakes region than the individual states.

D - Yes, because Congress may adopt laws regulating navigable waters.

Answer 30

The cities can be prosecuted because state or local government action that conflicts with valid federal laws is invalid under the Supremacy Clause. The federal law here could be found valid as an exercise of the commerce power (Congress can regulate any activity that either in itself or in combination with other activities has a substantial economic effect on interstate commerce) or under the admiralty power (Congress can regulate all navigable waterways). The action of the municipalities directly conflicts with the directives of the federal law and can therefore be stopped.

Question 31

Congress enacted a statute that purported to ban all discrimination against African-Americans in any commercial transaction taking place within the United States.

Would the statute most likely be held constitutional?

A - Yes, under 13th Amendment provisions barring badges or incidents of slavery.

B - Yes, because the federal government has an important interest in furthering the equal protection provisions of the 14th Amendment.

C - No, because Congress’s powers under the Commerce Clause do not extend so far as the statute would require.

D - No, because commercial transactions are not among the privileges or immunities of national citizenship.

Answer 31

The statute is constitutional as a legitimate exercise of congressional enforcement powers under the Enabling Clause of the 13th Amendment. The Enabling Clause of the amendment has been held to confer on Congress the authority to proscribe almost any private racially discriminatory action that can be characterized as a badge or incident of slavery. Because the statute at issue bans all discrimination against African-Americans in commercial transactions, it necessarily reaches private conduct. Such congressional action is constitutionally permissible pursuant to the 13th Amendment.

(C) is incorrect because, even if Congress’s power over interstate commerce would not reach every commercial transaction, the statute would be enforceable under the 13th Amendment, as discussed above.

Question 32

A foreign student who had entered the United States on a student visa four years ago was notified by federal immigration authorities that he was subject to being deported because his visa had expired. Federal law provided that an alien who is subject to being deported has the right to appear before an administrative officer appointed by the Attorney General’s office for a hearing on whether he should be deported. This officer, appointed by the executive branch of the government, has the right under law to make a final order concerning whether the alien should be deported. After a hearing, the administrative officer entered an order allowing the student to remain in the United States as a permanent resident.

However, a congressional rule permitted the House of Representatives, by resolution, to deport “undesirable aliens.” After the administrative judge entered his order, the House passed a resolution that the student should be deported. The student petitioned the federal court to declare the legislative resolution invalid.

Should the court find the resolution to be valid?

A - Yes, because Congress has plenary powers with regard to aliens and naturalization.

B - Yes, because aliens are not “citizens” within the meaning of the Fourteenth Amendment.

C - No, because the federal law removed congressional power with regard to aliens in this circumstance, and the resolution of the House violates the separation of powers doctrine.

D - No, because the student was denied due process when he was not given a hearing before the House of Representatives.

Answer 32

The court should find the resolution invalid. While Congress has broad power to delegate, the separation of powers doctrine forbids Congress from trying to control the exercise of the power delegated in various ways, such as by overturning an executive agency action without bicameralism (i.e., passage by both houses of Congress). By enacting the federal law allowing the administrative law judge to enter a final order with regard to aliens, Congress has given up any control it may have had previously in these situations. The resolution by the House here is an unconstitutional legislative veto that violates the separation of powers doctrine. (A) is incorrect because, while Congress does have plenary power over aliens with regard to immigration and naturalization, here it has given up control over this area by enacting a law allowing an administrative officer appointed by the executive branch to make a final order concerning whether an alien should be deported. (B) is incorrect because the fact that aliens are not citizens has no bearing on whether the House resolution violated the Constitution. (D) is incorrect because, while resident aliens are entitled to notice and hearing before they can be deported, the student did receive a hearing before the administrative officer. There is no requirement that persons affected by legislative action have the right to be heard by the legislative body taking the action. Thus, the better argument as to why the resolution was invalid is based on separation of powers.

Question 33

What’s the Appointments Clause?

Answer 33

The Appointments Clause of the Constitution permits Congress to vest appointments of inferior officers only in the President, the courts, or the heads of departments. Enforcement is an executive act; therefore, Congress cannot appoint members of a commission that exercises enforcement powers. In these facts, the safety commission consists of some members appointed by Congress. This commission therefore violates the Appointments Clause of the Constitution because it has enforcement powers, since it can prosecute violations. Legislative power can be delegated even under vague guidelines without creating an unconstitutional delegation.