Federal Legislative Power (Article 1)

Question 1

Values of Federalism

Answer 1

Efficiency, Promoting individual choice, Encouraging experimentation, Promoting democracy, Preventing tyranny, Protecting Liberty

Question 2

Commerce Clause

Answer 2

Constitutional Provision – Article I, Section 8: Congress shall have the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

Question 3

Commerce Clause Description

Answer 3

1) Plenary - Complete in itself, may be exercised to the utmost extension without limit (gibbons)
2) Aggregate Effects test (wilburn)
3) Congress can regulate the channels of interstate commerce

Can regulate the instrumentalities of interstate commerce

Can regulate those activities that substantiall affect interstate commerce. Congress must prove by legislative finding. (findings alone is not sufficient for commerce clause regulation)This category permits Congress to reach into the states to regulate an intrastate activity (Lopez)

4) Crime and education are traditionally state roles (Morrison)
5) Can regulate purely intrastate activity that is not itself commercial, if it concludes that the failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. (raich)
6) Congress only has the power to regulate commercial activity it does not have the power to regulate inactivity. (NFIB)
7) When it comes to non economic activities, substantial affect cannot be based on cumulative impact (US v. Morrison)

Question 4

Dormant Commerce Clause

Answer 4

Inferred from the commerce power; applies when the state regulates an activity affecting interstate commerce in the absence of federal law.

Question 5

DCC - Category 1

Answer 5

Statute is explicitly protectionist

SOR: Per Se Invalid because the statute’s purpose and effect are directly contrary to the core purpose of the commerce clause.

Example: West Lynn Creamery v. Healy

Facts: Massachusetts enacted a statute taxing all milk sales in the state. The taxes, collected on sales of milk produced in state and outside it, went to a subsidy whose proceeds were then distributed to Massachusetts milk producers.

Holding: This statute is unconstitutional. Though the tax applies to all milk sold in the states, the subsidy collected from the taxes was only given to MA dairy farmers. The statute thus allows MA dairy farmers who produce at higher costs to sell at or below the price charged by lower out-of- state producers. This is a protectionist measure – it discriminates against out-of-state milk producers!

Question 6

DCC - Category 2

Answer 6

State legislation discriminates against interstate commerce for an ostensibly legitimate state purpose (health/environmental/safety)

Not Protectionist on its face, facially neutral but discriminatory impact/effect

SOR: Strict Scrutiny

1) smoke out protectionists statutes
2) does not represent the interests of the country, the national interests are not represented in state legislatures. Representation reinforcement

Question 7

DCC - Category 3

Answer 7

State legislation that does not facially discriminate against interstate commerce but has a discriminatory effect on interstate commerce

SOR: Strict Scrutiny

Hunt v. Washington Apple

Question 8

DCC - Category 4

Answer 8

State legislation that neither facially discriminates nor has a discriminatory effect on out-of-state commerce. Burdens everyone

Balancing Test – The statute is put on trial and the Court must weigh the state’s asserted purpose against the degree of interference with interstate commerce

Kassel v. Consolidated Freightways

Question 9

Supremacy Clause

Answer 9

The Supreme Clause (Article VI) states that the constitution and the laws made pursuant to it are the supreme law of the land. If there is a conflict between federal and state law, the federal law controls and the state law is invalid

Question 10

Types of Preemption

Answer 10

1) Express Preemption - the federal statute expressly refers to preemption and identifies the states laws supplanted by the federal statute. Example: federal nuclear regulations explicitly provide that the states may not regulate this area
2) Conflict Preemption - compliance with both state and federal regulations is a physical impossibility. Two types:

i. Express – the state statute directly conflicts with an express provision of a federal law.
ii. Implied – No direct conflict between the statutes, but the challenged law stands as an obstacle to the accomplishment and execution of the full principles and objectives of Congress.

3) Field Preemption - the federal regulation in the area is so extensive it gives rise to the inference that Congress left no room for the states to supplant federal law.