Authorizations of Federal Action
1. Commerce clause authorization?
If the federal action arguably resembles an exercise of “police powers” then authorization doubtful.
Morrison (2000). Act of Congress provided a federal civil remedy for victims of gender-motivated violence; the act included a detailed survey of the evidence that such violence had an impact on interstate commerce. Authorized? No. Rehnquist maj: the activity regulated must be “economic.” Whether an activity sufficiently affects interstate commerce is a proper question for judicial review. Noneconomic activity cannot be regulated, even if it has a substantial effect on interstate commerce. Souter dissent: Congress, not Ct, should judge whether there is a substantial effect.
Lopez (1995). Act of Congress banned guns on school campuses. Authorized? No. Rehnquist maj: The clause is not a general grant of police power. The carrying of a gun to school has no substantial effect on interstate commerce. Aggregation of second-level affects leads to a “substantial effect on interstate commerce.” However, such aggregation cannot suffice. If we are to have a government of limited powers, then the authorizations must end somewhere. Thomas: the substantial effects test is a New Deal innovation, having no roots in the original intent of the Framers. Stevens and Breyer sep dissents: The education of children has a substantial impact on interstate commerce. Souter dissent: This is back to the days of judicial activism of Lochner.
Heart of Atlanta Motel (1964). Congress used the commerce clause for the 1965 Civil Rights Act. Here, it was applied to hotels denying use to blacks. Hotels are a channel of interstate commerce.
Wickard (1942). An Act of Congress regulate homegrown and consumed wheat that never was actually sold. Authorized? Yes. Activity has a direct effect on interstate commerce.
1.A. Is the object of federal action a “channel of interstate commerce”?
Heart of Atlanta Motel (1964). Hotels are a channel of interstate commerce.
1.B. Is the object of federal action an “instrumentality of commerce”?
1.C. Is the object of federal action an “economic activity” that has a “substantial effect” on “interstate commerce”?
1.C.1. Is the object an “economic activity”?
Morrison (2000). Gender-motivated violence is not an economic activity, even if it has an economic effect.
1.C.2. Is there a “substantial effect”?
No aggregation of effects to get a “substantial effect.”
Is this question better settled by Congress or by the Court?
Morrison (2000). Violence on women might have a substantial effect on interstate commerce, as Congress’ evidence suggests. But the activity must also be economic in nature. Debate over whether this was a question for judicial review.
Lopez (1995). Guns affects education, affects the quality of the workforce, affects interstate commerce. Yet such strings of causation and aggregation do not qualify.
Wickard (1942). Homegrown wheat has a “direct effect” because of aggregation. Apparently still good law. Is this consistent with Lopez?
1.C.3. Is the effect on “interstate commerce”?
Earlier Cts defined only as selling, not production/manufacturing.
United States v. Darby (1941). An Act of Cg prohibited the shipment in interstate commerce of products made by employees paid less than the federal minimum wage. Authorized? Yes. “Interstate commerce” includes production, not just selling.
2. Taxing clause authorization?
No limits on the authority. Cg may use taxes even to regulate activity it otherwise cannot reach.
JR Ct might invoke the 10th to invalidate an extreme exercise.
Very difficult to formulate a bright-line test that precludes taxing qua regulation.
Should Ct concern itself with purpose analysis, i.e. intended as regulatory or revenue-raising?
Kahriger (1953). Cg imposed a tax on persons in the betting business. Authorized? Yes. Even if the tax has a regulatory effect, as long as it produces revenue it is valid.
Sonzinsky (1937). Cg imposed a tax on weapons dealers. Authorized? Yes. The tax is productive of some revenue. More importantly, Ct should not speculate about Cg’s motives.
Child Labort Tax Case (1922). Cg placed a tax on any good made by child labor. Authorized? No. The 10th prohibits federal action targeting this activity, a realm reserved to the states. No attempt to formulate a doctrine limiting the taxing authorization. Overturned by ?.
3. Spending power authorization? (there is no spending clause).
Comes up when Cg uses a conditional grant to regulate an activity outside its domain. Ct deferential to Cg use of the authorization. Hard to get standing to challenge. Harder to find invalid. Time is due for Ct to narrow the grant of power. But what bright-line doctrine?
Hamilton (spend for gen welfare) v. Madison (spend only on things in enumerated grants of power).
If Madison position, then why does the Taxing Clause enumerate specifics but the Spending Power has no list to narrow down its scope.
Is there a rationale for Ct involvement? Even if Constitution speaks to the matter, perhaps the federal balance better left to political process?
South Dakota v. Dole (1987). Cg law withholds 5% of fed highway funds unless the state changes their drinking age to 21. Probably Cg cannot regulate drinking ages directly. Authorized? Yes. Cg can obtain objectives otherwise denied to it by purchasing compliance with spending power. This conditional grant is “reasonably calculated” to address general welfare. Also, 21st provides no independent bar to the conditional grant. O’Connor dissent: the condition is not reasonably related to expenditure of federal funds. Doesn’t disagree with the doctrine, just application. Federal interest is in highway construction, not safe highways. Drinking age has nothing to do with highway construction. Notes: (1) you can play with the characterization of the federal interest so that the condition is/is not reasonably related.
Helvering v. Davis (1937). Cg created Social Security. Authorized? Yes. Ct will be deferential to Cg findings that the fed action serves the general welfare. Here, obviously reasonable for Cg to believe that this program furthers the general welfare.
Stewart Machine (1937). Ct recognizes that some uses of conditions might be so coercive as “to passt the point at which ‘pressure turns into compulsion.’” Cited in Dole. Perhaps an indication of JR Ct concerns.
Butler (1936). Cg created a program that paid farmers not to farm. Authorized? No. The 10th prohibits federal action targeting this activity, a realm reserved to the states. No attempt to formulate a doctrine limiting the spending authorization.
3.A. Is the federal action in the pursuit of the general welfare?
Dole (1987). Safe interstate travel is part of the general welfare. That goal had been frustrated by the varying state approaches, since underage drivers would drive to one state, drink, and then drive home.
3.B. Are the conditions on a federal grant of money to the states unambiguous?
Dole (1987). Clearly unambiguous. Just mention as an example.
3.C. Are the conditions on a federal grant related to the federal interest in that particular national project?
Manipulate the generality of the “federal interest.”
Dole (1987). The money is for highways; the grant related to the federal interest in safe highways. O’Connor dissent focuses on the definition of the “federal interest”: the money is for highway construction, not safe highways. Also, she’s useful for nailing down this element: “Congress has no power under the Spending Clause to impose requirements on a grant that go beyond specifying how the money should be spent. A requirement that is not a specification is not a condition, but a regulation, which is valid only if it falls within one of Congress’ delegated regulatory powers.” But it’s unclear if the majority agrees with here definition of “condition.”
3.D. Do other constitutional provisions provide an independent bar to the conditional grant of federal funds?
Cg can indirectly reach activities otherwise barred to it. But it cannot bribe states to do something unconstitutional, e.g. criminalize abortion.
Dole (1987). Although the 21st might prohibit Cg from directly legislating the drinking age, Cg can still indirectly “legislate” on that activity.
4. Treaty clause authorization?
No doctrine of limits. JR Court would find some limits. But what bright-line test? Perhaps JR could require that treaty aim at an “international, not local, concern.”
Also unclear which prohibitions apply to the treaty clause.
Missouri v. Holland (1920). Cg. regulated birds through a treaty with the UK. Identical statute was unconstitutional under the 10th. Authorized? Yes. Treaty power authorizes federal action targeting realms in which fed action is otherwise prohibited.
Reid v. Covert: Black, in dicta, distanced Ct from Woods, saying fed action must observe constitutional prohibitions when acting under the treaty power.
5. “War powers” authorization?
No doctrine of limits. Authorizes fed action to remedy the effects of the war, even domestic effects, and even after the war is over. JR Ct would find some. But what bright-line test?
No specific clause authorizing Cg may wage war. But power to declare war, plus Necessary and Proper cl, plus unimaginable prospect that no one is responsible for war, structurally imply such a power.
Woods (1948). Cg law regulated rents. Miller raised rents in violation of the Act. The President had declared war over. Authorized? Yes. The war powers includes the power to “remedy the evils which have arisen from [the war’s] rise and progress” and continues for the duration of that emergency. The war powers does not necessarily end with the cessation of hostilities. Here, Cg is invoking its war powers to cope with a condition that was a direct and immediate result of the war (a housing shortage).
6. 13th Amendment enforcement clause authorization?
6.A. Does the federal action seek to eliminate the “badges and incidents” of slavery? (No state action requirement).
Alfred Mayer (?). Fed law banning racial discrimination in real estate is authorized. Such discrimination is a badge and incident of slavery.
7. 14th Amendment enforcement clause authorization?
7.A. Does the federal action prevent or remedy violations of “Court-recognized rights”?
Does §5 only authorize Cg to provide remedies for violations of rights. Or does it authorize a crusader government bent on eliminating discrimination, both public and private, i.e. Cg may choose the necessary and proper means to protect the rights. Instead Cg must prove its means are proper.
Ct’s definition of the right is the only right that Cg can enforce. It cannot expand or define the right.
City of Boerne (1997). RFRA, Act of Cg, provided a federal remedy for any state action th
the federal law expressly preempt the state law?
1.B.2. Does the federal law field (i.e. implicitly) preempt the state law?
1.B.2.a. Is the field one in which the federal government has traditionally played a unique role?
Foreign affairs and immigration are two such fields. Any others?
Crosby (2000). MA barred state entities from buying goods from companies doing business with Burma, and was stricter than the federal restrictions. Field preempted? Yes. Government has unique role here. Specifically, allowing states to regulate in parallel would undermine the POTUS ability to negotiate and represent the country.
Florida Lime (1963). FL statute required a minimum oil content in avocados that went beyond what the federal law required. Field preemption? No. Of course not a field in which federal government has traditionally played a unique role.
1.B.2.b. Has Congress expressed an intent to occupy the field?
“Expressed” means really expressed. If isn’t right on the money, the court might narrow the category “field” so that the two occupy different fields. Play with the category “field.”
Pacific Gas & Elec. Co. (1983). PG&E argued that the CA statute barring the construction of new nuclear plants was preempted by a federal Act regulating safety of nuclear power and encouraging the building of new plants. Field preemption? No. The government certainly occupies a field of the nuclear industry, but not the entire field. The federal act intends to occupy the safety field; the state intends to occupy the economic field. Notes: (1) Ct might interpret the statutes to have different purposes and thus that Congress did not intend to occupy that specific field that the state is occupying; (2) be creative about the specificity of “field,” i.e. regulate foreign affairs v. regulate economic affairs.
Florida Lime (1963). No evidence that the Act intended to supplant all state regulation of the field.
1.B.2.c. Is the regulation so comprehensive that allowing the states to occupy the field would undermine the federal regulations?
The focus in on “undermine,” not “comprehensive.” Must significantly undermine. PG& featured some undermining, but no conflict.
Pacific Gas & Elec. Co. (1983). Although the federal regulations were quite comprehensive, and even if the state law tended to discourage nuclear energy (while federal law sought its encouragement), still there was no finding of field preemption. Notes: (1) it takes more than a little undermining for field preemption.
1.B.3. Does federal law conflict preempt the state law?
“Conflict preemption” when there is a “physical impossibility in complying with both regulations.”
Florida Lime (1963). No “physical impossibility in complying with both regulations, so no conflict preemption. Notes: (1) when the fed law specifies a standard the issue is whether that is a “minimum” or “the amount.” Here, the state law just went beyond a federal minimum, which is not a conflict.
1.C. Art IV. Privileges and immunities clause prohibition?
Similar to dormant commerce: it prohibits a state from discriminating against out-of-state citizens.
Differences: corps. get no protection; Cg cannot consent to violations; standard of review is stricter than Pike balancing test; does not protect all commercial activity, only “fundamental rights.”
2. Prohibitions on federal action only
2.A. 10th Amendment prohibition?
Earlier Cts used the 10th to set to the side a realm of state control, prohibited to fed action. That realm does not exist today. But could the JR Ct bring back such realm, reviving a prohibition on fed action.
Is the federal balance to be left to the political process or does the Constitution mandate a certain balance?
U.S. Term Limits (1995). AK constitutional amendment created term limits on its federal representatives. Are term limits one of the powers reserved to the states by the 10th? No. Since this power did not exist prior to the Constitution, it could not be a power reserved to the states. More to the point, a state imposed term limits are counter to the structure of the Constitution. Thomas dissent interpreted the 10th literally to reserve this power to the states since the Constitution did not explicitly place the power in the federal government. Structuralism v. Literalism.
2.B. 11th Amendment prohibition?
