Rules for Essay Flashcards
Dormant Commerce Clause
The Dormant Commerce Clause derived from Art 1 § 8 and prohibits states from legislating in ways that discriminate against out of state actors or goods in ways that unduly burden interstate commerce without legitimate justification.
A law can be facially discriminatory, which means that it expressly states within the language of the statute that it discriminates towards out of state actors or goods. City of Philadelphia v NJ
A law can be facially neutral, which means that the statute seems neutral towards out of state actors or goods on its fact, but may have a discriminatory effect or purpose. Hunt v Washington Apple, Exxon Corp v Gov of MD
If a law is determined to be discriminatory, it will likely be found invalid by the court unless it was narrowly tailored to achieve a legitimate local purpose. When examining if a law is legitimately tailored to achieve a legitimate local purpose, courts will look for things like public health and safety concerns that are addressed by the law, and a lack of reasonably nondiscriminatory alternatives available to allow the goal of the law to be achieved. Maine v Taylor, Dean Milk Co
If a law is found to be nondiscriminatory but still burdens interstate commerce, the court will determine whether the benefit to the local or state government outweighs the burden on interstate commerce to decide whether to uphold the law. Pike v Bruce Church, Bibb v Navajo Freight Lines
Dormant Commerce Clause Exceptions
There are two exceptions to the Dormant Commerce Clause when a law will be found valid even if it is discriminatory - when a law has been approved by Congress, or when a state is acting as a market participant.
If the court finds a law invalid under the DCC, Congress may respond by enacting a law that approves the action. This is because Congress has the plenary power to regulate commerce among the states. Western & Southern Life Insurance
If a state is acting as a market participant, and not as a market regulator, it may favor its own citizens in commercial dealings of that market over out of state actors or goods. Reeves v William Stake
However, the state may not impose conditions that exert a downstream regulatory effect. South Central Timber v Wunnicke
Preemption
Preemption derives from the Supremacy Clause of Article IV and provides that federal law shall trump state law in areas of conflict.
There are two types of preemption - express and implied.
Express preemption occurs were a federal law has expressly, within the explicit wording of the law, stated that it preempts state law. Lorillard Tobacco Co v Reilly
Implied preemption is where preemption must be implied by a clear congressional intent to preempt state or local law, and can fall under three categories: conflict, impeding, and field.
Conflict preemption is where the state law in question conflicts with the federal law such that they become mutually exclusive, and a person cannot comply with both. In this situation, federal law would trump the state law. If a person is able to comply with both laws at the same time, preemption will not be found. Florida Lime & Avocado Growers
Impeding preemption is where a state or local law is not mutually exclusive with the federal law, but interferes with attaining a federal legislative goal. Courts must determine the federal objective in the federal law and then decide if the state law unduly interferes with achieving that goal. Pacific Gas & Energy Co
Field preemption is where Congress has given clear intent to have federal law occupy an entire field, such as immigration. States may not enter any area that the federal government has reserved for itself, and a state or local law will be preempted by federal law if it steps within a field Congress has delegated to the federal government. Arizona v US
Checks on the Executive - Suing & Prosecuting the President
As a check on the executive, the President may be sued under certain conditions, but has absolute immunity in others.
The President has absolute immunity from all civil suits for damages based on actions taken in his official capacity while in office. This is because the President’s office is unique and he in entrusted with supervisory and policy responsibilities that require discretion and sensitivities. Absolute immunity for in office matters is important to allow the President to not be burdened as he undertakes his Constitutional duties. Nixon v Fitzgerald
However, the President’s absolute immunity does not extend to actions taken before entering office, and thus he does not have the ability to defer civil litigation until after his term under his immunity privilege. This is because the immunity serves the public interest by allowing officials to perform their duties effectively, but that would not encompass actions the President took before entering office. Further, the President is unlikely to be burdened with civil lawsuits arising from actions taken before office, so there are no risks of large volumes of lawsuits or the President being unable to effectively perform his Constitutional duties. Clinton v Jones
Federal Executive Power - Foreign Policy
Article II gives the President power to make treaties with the advice and consent of the Senate, and Foreign Policy is an area that has traditionally been dictated to the executive branch.
Where there has been an unconstitutional delegation of legislative power that would be struck down were it related to internal national affairs, it can be upheld on the basis of international relations and the exclusive goal of providing relief in a foreign conflict. This is because the President often acts as the sole organ of the nation when it comes to relations with foreign nations - and thus needs the necessary discretion to act in accordance with the demands of current foreign policy. US v Curtiss Wright
In addition, the President also has the exclusive authority to formally recognize a foreign sovereign through an exercise of his exclusive power that Congress may not contradict through statute. This is because recognition of foreign nations means that the President, when making his initial stance on the issue, must be able to maintain the same position through the other branches of government and throughout his agent’s statements and acts, so the nation acts in accordance with all parts when recognizing a foreign sovereign.
Federal Executive Power - Appointment and Removal
The President’s appointment power comes from the Constitution in Article II § 2. The Appointments Clause gives the President appointment power over Supreme Court judges, ambassadors, and principle executive officers.
The President’s removal power is not expressly stated in the Constitution, but is implied. The president may remove all executive officers, with many exceptions because it is not an absolute power.
Congress may not prohibit the President’s removal of executive officials, but can limit their removal as long as limitations do not impede on the President’s ability to discharge constitutional duties. Good cause restrictions for presidential removal have been upheld as adherent to separation of powers.
The court may also limit the president’s removal power if they conclude that independence from the President is desirable for the organization or commission.
Commerce Clause
The Commerce Clause is an enumerated power given to Congress in the Constitution under Art 1 § 8. It gives Congress the power to regulate interstate commerce.
From Lopez, the court determined three areas of commerce that Congress may regulate, 1) the channels of interstate commerce, 2) instrumentalities of interstate commerce, and 3) local, intrastate activities that substantially affect interstate commerce.
The court will also use a “rational basis” test to determine if an economic activity falls under Congress’s purview. This test involves looking at whether Congress had a rational basis to conclude that the activity, when taken in the aggregate, substantially affects interstate commerce.
