III. Federalism

Question 1

The Scope of the National Powers

Importance of McCulloch v. Maryland

Answer 1

(Marshall) Bank is constitutional b/c NPC (w//in scope of const., mean is appropriate and plainly adapted to that end, enumerated powers, and is not prohibited by const.) and MD tax was intended to suppress Federal bank only which cannot be constitutional b/c supremacy clause + otherwise all states would not have to listen to federal government

Rejects Jefferson’s interpretation since NPC is w/in I.8 (powers) not I.9 (limitations) + 10th Amendment changed from 10th Amendment correlate to remove “expressly delegated” → delegated which means Congress has some implied powers, as part of way to fix weak AoC gov.

Question 2

The Scope of the National Powers

Madison, Jefferson, and Hamilton view on BofUS

Answer 2

• Madison = no authority b/c not related to any enumerated powers nor was it enumerated (not taxing/war/commerce) + policy considerations (taking control away from local banks, creating monetary rich royal class)
• Jefferson NPC = was a limitation for Congress; only do that which is necessary for enumerated power or strictly necessary
• Hamilton NPC = expansive view: if needful, requisite, incidental, useful or conductive, then it was OK ; means-end-scrutiny if means employed are helpful to a proper end, then it is OK

Question 3

Commerce (1): Arc

What was Marshall’s analysis of the CC

Answer 3

• “Commerce” understood in a broader sense encompassing all exchanges occurring between the federal government even those that extend into state borders
• “Among the several states” restricted to actions involving interstate commerce
• “Regulate” refers to the matters that do not involve completely internal state affairs; or effectively all affairs that do not solely involve the powers of state governance of internal affairs

Question 4

Commerce (1): Arc

Importance of Bedford resolution

Answer 4

Congress supposed to be able to act I.8 where states are separately incompetent to act; concerned that big states would dominate the smaller states, prelude to the construction of Art 1.8

Question 5

Commerce (1): Arc

What is Express preemption

Answer 5

federal government states that state law is become nullified by federal law (SC)

Question 6

Commerce (1): Arc

What is Implied Conflict preemption

Answer 6

can exist under state and federal laws at the same time (actual conflict);
however state law will have to yield for (obstacle conflicts) federal law

Question 7

Commerce (1): Arc

What is Implied Field preemption

Answer 7

• does the federal government occupy the field of commerce that state law is involved in?
• If federal law regulates or applies to a field states are foreclosed from acting (regulating) in that field of commerce

Question 8

Commerce (1): Arc

What is Dormant Commerce Clause (field preemption)

Answer 8

prohibition of states passing laws that discriminate or excessively burdens interstate commerce

Question 9

Commerce (1): Arc

Significance of Gibbons v. Ogden (Inner Limits)

CC & N&P after Gibbons v Ogden

Answer 9

• NY statute that gives exclusive use of waterways to those w/ a license violated the commerce clause

Commerce Clause After
* The power to regulate commerce extends to every species of commercial intercourse between the United States and foreign nations, and among the several States. It does not stop at the external boundary of a State; But it does not extend to a commerce which is completely internal.
* State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress

Neccessary and Proper After
* Marshall concluded that the Commerce Clause empowers Congress “to prescribe the rule by which commerce is to be governed,” including “every species of commercial intercourse” among the states.
* Gibbons relied on the Necessary and Proper Clause as supporting a broad construction of commerce power, while at same time noting that the power did not reach purely intrastate commerce that “does not extend to or affect other States,” because such power “would be inconvenient, and is certainly unnecessary.”

Question 10

Commerce (1): Arc

Expansion of the Commerce Arc under: E.C Knight, Champion/Ames, Caminetti, Shreeveport Rate Case

Answer 10

• US v. E.C. Knight → (5-4) Court adopted a restrictive interpretation of commerce; manufacturing =/= commerce; narrowly defining commerce b/c afraid it would be all encompassing;
• Champion v. Ames → (5-4) leaning in the opposite direction of E.C. Knight adopting an expansive interpretation of the commerce power; channels for interstate commerce are w/in commerce clause or allowed to regulate trade of noxious goods; The power to regulate included the power to prohibit commerce
• Caminetti v. US → (5-3) broad interaction of Commerce power following Champion; Court can regulate human-trafficking ish even though not a commercial activity bc it was across interstate channels w/in Congress’ power; keep the channels of interstate commerce free from immoral and injurious uses
• Houston E. & W. T. Ry. Co. v. U.S (Shreeveport Rate Case) → (7-2) adopting expansive interpretation of power to regulate the instrumentalities of commerce

Question 11

Commerce (1): Arc

Significance of Hammer v. Dagenhart

Answer 11

Does congress have the power to regulate the manufacturing of state goods
* Congress can not prohibit interstate transportation of goods made under certain child labor conditions under the commerce clause
* The production of articles, intended for interstate commerce, is a matter of local regulation; otherwise, all manufacture intended for interstate shipment would be brought under federal control

Commerce Clause After
* A.L.A. Schechter Poultry Corp v. U.S. →Where the effect of intrastate transactions upon interstate commerce is merely indirect, such transactions remain within the domain of state power
* Carter Coal Co. → The effect of labor provisions falls upon production and not upon commerce; Production is a purely local activity
* National Labor Relations Board v. Jones & Laughlin Steel Corp. → more expansive interpretation of the commerce clause; Court upheld (5-4) the NLR act rejecting aspects of Schechter Poultry and Carter Coal finding that the national labor relations board operates within the sphere of constitutional authority

Question 12

Commerce (1): Arc

Significance of US v. Darby

Answer 12

• overturns Dagenhart by allowing to regulate things that substantially affect commerce
• The power of congress is not confined to the regulation of commerce among the states
• It extends into those intrastate activities that affect interstate commerce or the exercise of power of congress over interstate commerce

Question 13

Commerce (2): Modern doctrine and federalism

Significance of Wickard v. Filburn

Answer 13

• Justice Jackson: “Substantial Effect” test → requires a substantial connection between a federal law and some impact on interstate commerce and thus imposes limited but specific restrictions on Congress’ enumerated power
• Adopts aggregate impact (not an individual’s contribution but taken as a whole, will it have a substantial effect on interstate commerce)
• Rejects direct/indirect test and manufacturing/production test (Overturns ALA Schechter Poultry)

Question 14

Commerce (2): Modern doctrine and federalism

Significance of US v. Lopez (Outer Limits) + Lopez Test

Answer 14

• Gun regulation does not substantially affect interstate commerce so is not part of commerce power
• Lopez Test: Commerce Clause provides the regulation of 3 categories
  The channels of interstate commerce (1.8.3)
  The instrumentalities of interstate commerce, and persons or things in interstate commerce (1.8.3)
  Activities that substantially affect interstate commerce (1.8.18)
  1. Link to commerce is too attenuated (cannot pile inference on inference). Guns near schools have an impact on performance which will hinder interstate commerce
  2. Different from Wickard b/c Wickard (growing wheat) was an economic activity and guns near schools is not
• Kennedy concurrence - Actor nor conduct, nor purpose of the statute have a commercial core; this is a police power of the state so this disturbs federalism
• Thomas concurrence - Commerce = selling/bartering so this is far too sweeping. If Congress has power to regulate things that substantially affect commerce, many other I.8 powers are redundant
• Breyer dissent - statute has a purpose based on rational basis analysis and Congress is given deference + empirical evidence of guns in schools having an impact on commerce

Question 15

Commerce, the N&P Clause, and State Sovereignty

Significance of Gonzales v. Raich

Answer 15

• Can congress regulate purely intrastate growing of MJ in someone’s backyard? Yes
• Wickard establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that the product is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity
• Congress has a rational basis for concluding that leaving home-consumed marijuana outside of federal control would similarly affect price and market conditions (as they did in Wickard)
• N&P → Lopez implicitly acknowledges that Congress’s authority to enact laws N&P for regulating interstate commerce is not limited to laws directed against economic activities that have substantial effect on interstate commerce

Question 16

Commerce, the N&P Clause, and State Sovereignty

Significance of Garcia v. San Antonio Metro Transit Authority

Answer 16

• Congress has the constitutional authority to regulate the wages and hours of state employees under the Commerce Clause.
• The states occupy a special and specific position in the constitutional system; the principal and basic limit on federal commerce power is that inherent in all congressional action is the build-in restraints that the system provides states through the participation in the federal government action
• States play a significant role in electing representatives to the legislative and executive branches of the federal government.
  Elected representatives then continue to represent the interests of their states while in office

Question 17

Commerce, the N&P Clause, and State Sovereignty

Significance of Printz v. US

Answer 17

• Congress may not compel state officials to participate in the administration of federal programs.
• New York v. US the framers explicitly chose a constitution that confers upon congress the power to regulate individuals not the states
• Citizens have two political capacities the state and the federal
• The separation of these two spheres is intended to ensure the constitutions structural protections of liberty
• Allowing the federal government to have control of state officers would affect the separation and equilibrium of the powers between the three branches of government as well

Question 18

Tax and Spend

Significance of South Dakota v. Dole Spending + Test

Answer 18

Can Congress compel drinking age using federal funding limits? Yes
Test:
(1) has to be used for general welfare
(2) conditions have to be clear and ambiguous to allow states to make a choice
(3) condition has to be related to the federal interest
(4) can’t be unconstitutional
* Spending clause is unlimited in the scope of objectives pertaining to general welfare
* O’Connor dissent - Congress can attach conditions, but disagrees w/ application b/c condition is not related to federal interest of highway safety b/c over inclusive (prohibits teens who may not want to drive) and under inclusive (does not stop all highway drunk driving)

Question 19

Tax and Spend

Significance of NFIB v. Sebelius

Answer 19

See Chart on Outline;
1. Anti-injunction Act
2. Individual Mandate
3. Medicaid Expansion
4. Severability of Medicaid expansion

Question 20

War Powers (1)

What evidence is there for Practice & Precedent of War Powers

Answer 20

• WWII - clear declaration of war
• Gulf of Tonkin resolution - Congress approves and supports President decisions to repel attacks and prevent further aggression (President given discretion to determine when needed - Nemo Iudex en casa sua)
• Korean war - no war declaration, only funding
• Military personnel used as police in Korea → can the treaty override the Constitution?
• Kosovo - Clinton bombing for months w/o any authorization
• Cuban Missile Crisis: Covert Operations → are they wars?

Question 21

War Powers (1)

Significance of the Prize Cases

Answer 21

• Did the president have a right to institute a blockade of ports in possession of persons in armed rebellion against the government, on the principles of international law, as known and acknowledged among the states, yes
• Was the property of persons domiciled or residing within those states a proper subject of capture on the seas as enemies property, yes
• (Grier) When a threat is internal, the President can determine what is appropriate. Can use executive power to prosecute the war (so seizing property makes sense b/c southern states are the enemy and their property can be used by them in the war force so can seize it)
• President war powers are more than just moving of troops; includes seizure of enemy property

Question 22

War Powers (1)

What was Gulf of Tonkin Resolution

Answer 22

to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression
to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom

Question 23

War Powers (1)

Importance of War Powers Resolution of 1973 & Nixon Veto

Answer 23

Concurrent resolution cannot overpower constitution
* Opted’s passed by Congress with regards to certain actions of the government; not submitted to the president for approval, however, the executive doesn’t have to take action under these resolutions

• Nixon Argues for cooperation b/w executive and legislative
• Recall, don’t want friction in gov to protect rights → Fed 51

Section 2 – Imminent involvement, declare hostilities, continued use of forces
* President can only direct armed forces where Congress declares war or there is statutory authorization or when US is in national emergency due to attack (not every attack is a national emergency so this is limiting
* All of these fail to meet the originalist arguments raised
* 2C – This section is a constitutional interpretation of the presidential war powers, read more as a concurrent resolution rather than binding

Section 5 – concurrent resolutions bear no power of law and the president cannot counter them with a veto
* Impliedly stating that the president can raise war up until congress says it can’t
* Cannot declare how the president declares war
* The blending of structural mechanisms into a collective judgment breaks the mechanism of separation of powers
* Section 5(b) Congressional Action - Requires that congress act in response to the presidential use of military forces

Section 8
* Can congress bind future congressional action – cannot infer from any treaty to claim action; Funding of war =/= authorization

Question 24

War Powers (1)

Importance of AUMF

Answer 24

the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons

Question 25

War Powers (2)

Significance of Trump Administration Drone Strike Procedure

Answer 25

• Originalist claim stating the founders intended for war to be a boots on the ground scenario; this cuts to the basis thought of the debate behind the construction of constitutional war powers – the avoidance of excessive loss of life
• The counter for this would be the fact that drone strikes eliminate this concern by completely removing US troops from the equation
• Brutus was right – the court has dramatically expanded the war powers of the president