Strategies and Tactics Flashcards
First, you have to make two determinations:
- To whom does the clause apply? Federal government, states, or both?
- What does the clause do? Is it a source of power — or does it
prohibit something?
Commerce Clause applies to?
Source or prohibition?
Federal Government
Source
Exceptionally broad power
Note: it’s also a LIMIT on the state’s power when there’s no relevant federal legislation
Basically, in determining whether Congress can regulate an activity, you need only determine that (1) the activity is commercial, and (2) the activity “substantially affects” interstate commerce or the activity is part of a general class of activities that, collectively, substantially affect interstate commerce.
If both are true, then the statute is valid under the Commerce Clause. Note that most Commerce Clause questions on the MBE involve the sale or distribution of an item, usually in a commercial setting. (If, on the other hand, the activity involves a non-commercial activity, the test is stricter: You must find a “pretty obvious connection” between the activity and interstate commerce for the statute to be valid under the Commerce Clause.)
You shouldn’t be surprised to see an MBE question in which Congress tries to make someone who is not presently in the market for a good (e.g., broccoli) buy the good or pay a penalty; you should answer that this isn’t authorized by the Commerce Clause (but might be authorized by Congress’s power to tax and spend, if the money is collected by the IRS, as in the Affordable Care Act situation).
On the other hand, where a person is already involved in a relevant aspect of commerce, Congress’s power to regulate the person’s commercial behavior is very broad. Here’s an example. Say Old Mac — a farmer — grows corn on his farm to feed only himself and his pigs. You’re likely to think, “Well, there’s no impact on interstate commerce whatsoever, so Congress can’t regulate Old Mac’s corn production, right?” Wrong. The commerce power would allow Congress to regulate Old Mac’s production: Old Mac is already engaged in an activity (farming), the activity is commercial, and the cumulative (or aggregate) effect of many farmers’ production could substantially affect the supply and demand of commodities interstate.
Analyzing ability of state statute to regulate interstate commerce and no relevant federal legislation, what do you do?
What if there is relev fed legis?
when there’s no relevant federal legislation, then you have to determine if a state regulation unduly burdens interstate commerce.
If relevant federal legislation exists, then your analysis falls under the Supremacy Clause. There are two questions you have to ask:
1. Did Congress expressly authorize or prohibit state regulation? If so, that controls. If not —
2. With no express authorization or prohibition by Congress, you have to determine if the federal law preempts the state law. If the state law directly contradicts the federal law, it will be preempted. If there’s no direct conflict, you have to determine if Congress intended the federal law to occupy the entire field.
Look at four factors to determine if that is the case: (1) whether the subject matter is traditionally classified as local or federal; (2) how pervasive the federal regulation is; (3) how similar the state and federal laws are (the more they coincide, the more likely it is that federal law was intended to supersede state law); and (4) whether there’s a need for uniform federal regulation. You can remember this with a mnemonic —
PUSH (Pervasiveness, Uniformity, Similarity, History).
Note that preemption is an issue any time a state law conflicts with a federal law (or is in the same field). However, it’s most likely to be applied in the area of interstate commerce.
Welfare clause, who does it apply to and is it a source of power?
applies to federal government
Yes, source of power.
The Welfare Clause gives Congress the power to tax and spend for the general welfare. Any federal legislation reasonably related to this power will be valid (assuming it doesn’t violate some other Constitutional provision, such as Equal Protection).
WATCH OUT: t’s easy to forget the limitations on the welfare power. Tax and spend. That’s it. Congress does not have the power to enact any legislation that promotes the general welfare of the nation under the Welfare Clause, even though that’s what you’d expect from its name. Just remember — tax and spend is the scope of the power.
Incidentally, keep in mind that states DO have the power to legislate for the general welfare, but only under their police power, not under the Welfare Clause. (Don’t forget that there is no federal police power
Contracts clause, who does it apply to and is it a source of power?
Applies to: States only.
Source or prohibition: Prohibition.
The Contracts Clause, or “Obligations of Contracts” Clause, prohibits states from passing any law that impairs the obligations of contracts.
**It’s usually correctly applied when the state seems to be trying to escape its own obligations.
the contract must have existed when the statute was passed. States can regulate contract formation prospectively. Thus, when the “Contracts Clause” is an answer choice, the first thing you should do is check to see if the contract in question predates the offending statute. If not, then the Contracts Clause is irrelevant.
Note, some contract impairments are valid.
state modifications of contracts will be permissible if the modifications (1) serve an important and legitimate public interest and (2) are necessary to achieve that public interest; and if (3) the contract impairment is reasonable under the circumstances.
Even more leeway when state is a party to the contract, especially if K involves state surrendering, from the start, an essential attribute of its sovereignty, such as police power or eminent domain
Here’s an example of the Contracts Clause “in action”:
A state statute made it a misdemeanor to construct any building of more
281
than five stories without an automatic fire sprinkler system.
A local construction company built a ten-story federal office building in the state. It constructed the building according to the precise specifications of a federal contract authorized by federal statutes. Because the building was built without the automatic fire sprinkler system required by state law, the state has prosecuted the private contractor.
Which of the following is the company’s strongest defense to that prosecution?
A. The state sprinkler requirement denies the company property or liberty without due process.
B. The state sprinkler requirement denies the company equal protection of the laws.
C. As applied, the state sprinkler requirement violates the supremacy clause.
D. As applied, the state sprinkler requirement violates the obligations of contracts clause.
Remember, when you’re considering the obligations of a contracts issue, the first thing you have to do is see if the contract predates the statute. Here, it apparently doesn’t. That means that the contracts clause does not invalidate the statute, and D can’t be the best response. (In fact, choice C is the best response.)
