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Dormant Commerce Clause, Discriminatory Laws, Privileges and Immunities, Study notes of Law

University of Florida (UF)Law

Constitutional Law (Con Law) study outline for final exams for Professor Mazur's Constitutional Law class at UF Levin College of Law. Section 2 topics include but not limited to: Dormant Commerce Clause, Discriminatory Laws, Privileges and Immunities, 14th Amendment, Executive Power, Protection of Civil Rights, Civil Liberties

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Constitutional Law Outline
Professor Mazur, Spring 2010
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F. Dormant Commerce Clause – Foundation from Gibbons v. Ogden
I. The dormant commerce clause is the principle that state and local laws are unconstitutional if
they place an undue burden on interstate commerce. There is no constitutional provision that
expressly declares that states may not burden interstate commerce. Rather, the Supreme Court has
inferred this from the grant of power to Congress in Article 1 § 8, to regulate commerce among
the states
II. If congress has legislated
1. The question is whether the federal law preempts the state or local law.
a. Even if Congress has not acted or no preemption is found, the state or local law can be
challenged on the ground that it excessively burdens commerce among the states.
III. The Central Question: Is the State Discriminating Against Out-of-Staters?
1. State laws that discriminate are rarely upheld, which nondiscriminatory laws are infrequently
invalidated.
IV. Facially Discriminatory Laws
1. City of Philadelphia v. New Jersey - “All objects of interstate trade merit Commerce Clause
protection.”
a. Facts: New Jersey law that effectively kept landfills in the state exclusively for NJ’s use
by preventing the importation of any wastes from out of state. There is without a doubt
there is a real health and safety concern here which is why they enacted this legislation.
There was a NJ company that had an agreement with the city of Philadelphia to use their
landfill. Accepting and disposing of trash for money.
b. Holding: Just as congress has power to regulate the interstate movement of these wastes,
states are not free from constitutional scrutiny when they restrict that movement. The
commerce clause will protect NJ in the future, just as it protects her neighbors now, from
efforts by one state to isolate itself in the stream of interstate commerce from a problem
shared by all
i. The law makes a facial bias towards instate trash over out of state trash and the Court
says it does not matter what their purpose was, it is irrelevant.
ii. These laws will be invalidated unless the state identifies a valid purpose that cannot
be achieved in a less discriminatory way
2. Hughes v. Oklahoma “Do the minnows know?” – Strictest Scrutiny
a. Facts: Oklahoma statute provides that “[n]o person may transport or ship minnows for
sale outside the state which were seined or procured within the waters of this state…”
The state believes that its conservation measures of the fish and do not want to much
demand for the fish because it will deplete the population.
b. Holding: The statute on its face discriminates against interstate commerce. It forbids the
transportation of natural minnows out of the state for purposes of sale, and this “overtly
blocks the flow of interstate commerce at the state’s borders.”
i. If the concern is depletion of the minnows, which has an impact on our wildlife, what
does it matter who actually is fishing for the minnows? They don’t know who is
taking them so you are discriminating. Depletion by instate is the same by out of state
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Professor Mazur, Spring 2010 F. Dormant Commerce Clause – Foundation from Gibbons v. Ogden I. The dormant commerce clause is the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce. There is no constitutional provision that expressly declares that states may not burden interstate commerce. Rather, the Supreme Court has inferred this from the grant of power to Congress in Article 1 § 8, to regulate commerce among the states II. If congress has legislated

  1. The question is whether the federal law preempts the state or local law. a. Even if Congress has not acted or no preemption is found, the state or local law can be challenged on the ground that it excessively burdens commerce among the states. III. The Central Question : Is the State Discriminating Against Out-of-Staters?
  2. State laws that discriminate are rarely upheld, which nondiscriminatory laws are infrequently invalidated. IV. Facially Discriminatory Laws
  3. City of Philadelphia v. New Jersey - “All objects of interstate trade merit Commerce Clause protection.” a. Facts: New Jersey law that effectively kept landfills in the state exclusively for NJ’s use by preventing the importation of any wastes from out of state. There is without a doubt there is a real health and safety concern here which is why they enacted this legislation. There was a NJ company that had an agreement with the city of Philadelphia to use their landfill. Accepting and disposing of trash for money. b. Holding: Just as congress has power to regulate the interstate movement of these wastes, states are not free from constitutional scrutiny when they restrict that movement. The commerce clause will protect NJ in the future, just as it protects her neighbors now, from efforts by one state to isolate itself in the stream of interstate commerce from a problem shared by all i. The law makes a facial bias towards instate trash over out of state trash and the Court says it does not matter what their purpose was, it is irrelevant. ii. These laws will be invalidated unless the state identifies a valid purpose that cannot be achieved in a less discriminatory way 2. Hughes v. Oklahoma “Do the minnows know?” – Strictest Scrutiny a. Facts: Oklahoma statute provides that “[n]o person may transport or ship minnows for sale outside the state which were seined or procured within the waters of this state…” The state believes that its conservation measures of the fish and do not want to much demand for the fish because it will deplete the population. b. Holding: The statute on its face discriminates against interstate commerce. It forbids the transportation of natural minnows out of the state for purposes of sale, and this “overtly blocks the flow of interstate commerce at the state’s borders.” i. If the concern is depletion of the minnows, which has an impact on our wildlife, what does it matter who actually is fishing for the minnows? They don’t know who is taking them so you are discriminating. Depletion by instate is the same by out of state

Professor Mazur, Spring 2010 so a law only limiting out of state is discriminating. A valid law would put a cap on everyone not just out of state. V. Analysis if a Law is Deemed Discriminatory

  1. There is a strong presumption against discriminatory laws that burden interstate commerce.
  2. A state of local law that discriminates against out of staters will be upheld only if it is proved that the law is necessary to achieve an important government purpose. Hughes v. Oklahoma 3. Maine v. Taylor & United States a. Facts: A species of minnow commonly used as live bait in sport fishing, is prohibited from importation by a Maine statute. Lacey Act which makes it a federal crime “to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce…any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any state or in violation of any foreign law.” b. Holding: “Maine has a legitimate interest in guarding against imperfectly understood environmental risks, despite the possibility that they may ultimately prove to be negligible. The constitutional principles underlying the Commerce Clause cannot be read as requiring the State of Maine to sit idly by and wait until potentially irreversible environmental damage has occurred or until scientific community agrees on what disease organisms are not dangerous before it acts to avoid such consequences.” i. The court allowed this restriction because admitting out-of-state baitfish into Maine risked introducing parasites and predators into its waters. In other words, the Court perceived the Maine objective not as economically helping the Main baitfish industry at the expense of out-of-staters, but as protecting Maine’s fragile marine ecology ii. The statute is facially discriminatory however, it is not the same as NJ. Trash is trash, and trash from out of state is no more dangerous than in state trash, but the out of state fish are different from Maine’s instate fish because the out of state ones come contaminated. iii. Here allowing minnows in would be creating the problem where compared to other cases there was already some problem and they were using discrimination to deal with the problem VI. Analysis If a Law is Deemed Non-Discriminatory
  3. If the court concludes that a state’s law is not discriminatory – it treats in-staters and out-of- staters alike – then it is subject to a much less demanding test
  4. Laws are upheld as long as the benefits to the government outweigh the burdens on interstate commerce 3. Consolidated Freightways Corp. of Delaware v. Raymond Kassel a. Facts: Consolidated is the largest common carriers of freight in the country. They use Iowa’s interstate 80, which is the principal east-west route linking NY, Chicago, and the west coast, and on interstate 35, a major north-south route. They use 2 types of trucks, one consist of a semi which is 55 feet long overall. The other is known as a double, or twin, is 65 feet long overall. Iowa generally prohibits the use of 65 foot doubles within its borders and trucks are restricted to 55 feet.

Professor Mazur, Spring 2010 IV. The Dormant Commerce Clause and the Privileges and Immunities Clause overlap and can both be used to challenge state and local laws that discriminate against out of staters.

  1. Differences between Dormant Commerce Clause (“DCC”) and Privileges and Immunities Clause (PIC) a. The PIC can be used only if there is discrimination against out-of-staters. The DCC can be used to challenge state and local laws that burden interstate commerce regardless of whether they discriminate against out-of staters b. Corporations and aliens can sue under DCC but not PIC c. There are two exceptions to the DCC that do not apply to the PIC i. If Congress approves state laws, the do not violate the DCC ii. There is a market participant exception to the DCC that allows states to favor their own citizens in receiving benefits from government programs and in dealing with government-owned businesses. B. Analysis Under the Privileges and Immunities Clause I. Two basic questions:
  2. Has the state discriminated against out-of-staters with regard to privileges and immunities that it accords to its own citizens?
  3. If there is such discrimination, is there a sufficient justification for the discrimination? a. The clause is not absolute, but it creates a strong presumption against state and local laws that discriminate against out-of-staters with regard to fundamental rights or important economic activity. II. What are the Privileges and Immunities of Citizenship?
  4. Has to be sufficiently fundamental to the promotion of interstate harmony
  5. The rights enumerated in the Bill of Rights seem are the most obvious. If a state were to prevent out of staters from engaging in religious worship, a challenge certainly could be brought under the clause.
  6. Test standard principal rule that the court sets out to determine whether the privileges and immunities doctrine has been violated. a. Whether state law has discriminated against the citizens of another state? i. If YES: What is a privileges and immunity
  • Civil liberties – constitutional rights (fundamental rights)
  • Important economic activity ii. If YES to both : is there a substantial reason for the justification and is it closely related or serving that reason. Sufficient Justification for discrimination 4. Toomer v. Witsell a. Facts: South Carolina Code requires payment of a license fee of $25 for each shrimp boat owned by a resident, and of $2,500 for each one owned by a non-resident b. Holding: the statute plainly and frankly discriminates against non-residents, and the record leaves little doubt but what the discrimination is so great that its practical effect virtually exclusionary. Unless there is something to indicate that non-citizens constitute a peculiar source of evil at which the state is aimed it is unconstitutional, which this one is.

Professor Mazur, Spring 2010 i. “It was long ago decided that one of the privileges which the clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State.”

5. United Building & Construction Trades Council of Camden County v. Mayor & Council of Camden a. Facts: City of Camden requires that at least 40% of the employees of contractors and subcontractors working on city construction projects be Camden residents. b. Holding: The court concludes that Camden’s ordinance is not immune from constitutional review at the behest of out of state resident merely because some instate residents are similarly disadvantaged. It would not be appropriate for this Court either to make factual determinations as an initial matter or to take judicial notice of Camden’s decay. The court deemed it wise to remand the case to the NJ Supreme Court to decide whether consistent with state procedure, on the best method for making the necessary findings. III. What Justifications are sufficient to Permit Discrimination 1. Supreme Court of New Hampshire v. Kathryn A. Piper – Strict Scrutiny a. Facts: New Hampshire Bar limits bar admission to state residents. Piper lives 400 yards from the New Hampshire border and passed the bar exam but she would have to establish a home in New Hampshire prior to being sworn in. b. Holding: Appellant neither advances a substantial reason for its discrimination against nonresident applicants to the bar, nor demonstrates that the discrimination practiced bears a close relationship to its proffered objectives i. Rational basis review- could the legislature rationally believe that this distinction between in and out of states would advance these issues ii. Rational basis is enough in some standards for other types of cases but here this is not a rational basis case. This is a significant scrutiny kind of case without doing research II. The Executive Power A. Express and Inherent Presidential Powers I. Inherent Presidential Power

  1. Article 2 “The executive Power shall be vested in a President of the United States of America.” 2. Youngstown Sheet & Tube Co. v. Sawyer a. Facts: in early 1952, the United Steelworkers Union announced a planned nationwide strike as a result of labor management dispute. A few hours before the strike was to being, President Truman issued Executive Order which directed the secretary of commerce to take possession of the steel mills and to keep them running b. Holding: The Supreme Court declared the seizure of the steel mills unconstitutional. There were 7 different opinions written and Justices in the majority gave several different

Professor Mazur, Spring 2010 a. The president may act unless such conduct violates the Constitution. Federal laws restricting the Presidents power are unconstitutional. b. In recent years, there have been claims of broad inherent presidential power to protect national security and fight terrorism. II. Importances of both: B. War Powers I. The Constitution in Article I, grants Congress the power to declare war and the authority to raise and support the army and the navy. Article II makes the president the commander-in-chief.

  1. Congress also has spending power where they can decide to fund or not fund a war II. Why is it that congress passes the war powers resolution
  2. They couldn’t control the Vietnam war.
  3. This adds what exactly a war is since is vague in the constitution III. Declaration of war
  4. Is it a formal “We declare war”
  5. Somewhat less formal – authorization for use of military forces
  6. Least formal – spending and funding a war IV. Back in the Founders time
  7. There was no standing army so if you were going to wage war there was a deliberate process of raising an army. Reality back then was slow and deliberate, and the president did not have the ability to pick up the phone and conduct a war or start a war.
  8. Now how should we think about the constitutional powers in a modern context. Modern reality with technology and standing army and a military presences around the world. V. Is the wars power resolution constitutional?
  9. Part of it is taken from the necessary and proper clause.
  10. It also makes the president consult with congress before and regularly throughout the war. a. also has to report to congress and terminate the use of troops within 60 days of introducing them if congress hasn’t declared war or extended it by law or specific authorization b. currently there are 2 statutes that authorize the use of military force for post 9-11 and the war in Iraq
  11. Congress is trying to assert its constitutionality for asserting war and regulating the president. How does it work with a commander in chief and a body that declares war. They are trying to define it
  12. These questions have never been answered by the Supreme Court because it is a very political question. “given the courts view that such foreign policy disputes constitute a political question, answers are unlikely to come from the judiciary” a. They are not talking about just politics; its talking about cases for some reason the court believes it is not appropriate for judicial resolution. The Supreme Court consistently has stepped away from the shared powers of the US congress and president with the power of war and how they overlap and separate.

Professor Mazur, Spring 2010 i. Could be possible that they do this because they do not want to take on 2 branches of government at one time and with their decision effecting one of them, getting their powers limited.

  1. Who would have standing to bring a case that says the president has overstepped his bounds by waging a war unauthorized by congress? Unanswered question. C. Executive Privilege I. The ability of the president to keep secret conversations with or memoranda to or from advisors. II. The Constitution does not mention such authority, but presidents have claimed it throughout American history
  2. Necessary in order for presidents to receive candid advice. “Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process” U.S. v. Nixon
  3. Also important to protect national security; diplomacy is regarded as requiring security. III. United States v. Richard M. Nixon, President of the United States
  4. Facts: A subpoena directed the President to produce certain tape recordings and documents relating to his conversations with aides and advisers. Nixon was named as an unindicted co- conspirator for obstruction of justice and conspiracy to defraud. (The tapes ended up showing that Nixon clearly had obstructed justice by ordering the FBI not to investigate the Watergate matter.
  5. Holding: First, the court held that it is the role of the court to decide whether the president has executive privilege and, if so, it's scope. Second , the court recognized the existence of executive privilege. It derives from the supremacy of each branch within its own assigned area of constitutional duties. Third , the court held that executive privilege is not absolute, but rather must yield when there are important countervailing interests. a. "The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Article III. The privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts." b. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the court finds it difficult to accept the argument that even the very important interests in confidentiality of Presidential communications is significantly diminished by production of such material. c. Article I § 3 clause 1 Congress “shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place.” d. The Court leaves open to how it is used in the future where leaves the invitation to say it’s for national security but it also opens the door to the court being intrusive to looking into it. D. The Authority of Congress to Increase Executive Power

Professor Mazur, Spring 2010 a. This was heavily criticized because the Amendment does not limit itself just to the Federal Government II. Slaughter-House Cases : Butchers’ Benevolent Assn. of New Orleans v. Crescent City Livestock Landing & Slaughter- House Co.

  1. Facts: The Louisiana legislature gave a monopoly in the livestock landing and the slaughterhouse business for the city of New Orleans to the Slaughter house company. The law required that the company allow any person to slaughter animals in the slaughterhouse for a fixed fee. Butchers challenged on due process clause, equal protection clause and privileges or immunities grounds.
  2. Holding: The Court narrowly construed all of these provisions and rejected the plaintiffs challenge to the legislatures grant of the monopoly. The Court said that the purpose of the 13 th^ and 14th^ Amendments was solely to protect former slaves. The Court said that the equal protection clause only was meant to protect blacks and offered the prediction “we doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.” (This was overruled). The court also rejected the application of the due process clause to protect a right to practice one’s trade (overruled). The Court narrow interpretation of the Privileges or immunities clause never has been expressly overruled and has precluded the use of that provision to apply to the Bill of Rights. Specifically the court held that the privileges or immunities clause was not meant to protect individuals from state government actions and was not meant to be a basis for federal courts to invalidate state laws. a. Court held that the 14th^ Amendment only as it applies to national, not state citizenship. Not about protecting citizens of the states from the states “Not meant to provide a basis for invalidating state and local laws precluded use of the provision to apply to the Bill of Rights to the states C. The Incorporation of the Bill of Rights into the Due Process Clause of the 14th^ Amendment. I. In 1897 the Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment prevents states from taking property without just compensation II. Twining v. New Jersey
  3. Facts: The court rejected criminal defendants’ claim that a state court had violated their constitutional right by instructing the jury that it could draw a negative inference from their failure to testify at trial.
  4. Holding: The court expressly recognized the possibility that the due process clause of the 14 th^ amendment incorporates provisions of the Bill of Rights and thereby applies them to state and local government. a. The Court said that it “is possible that some of the personal rights safeguarded against state action, because a denial of them would be a denial of due process of law.... If this is so, it is not because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law.” III. Debate over incorporation:

Professor Mazur, Spring 2010

  1. History: Whether the framers of the 14th^ Amendment intended to apply the Bill of Rights to the states.
  2. Federalism: Applying the Bill of Rights to the states imposes a substantial set of restrictions on state and local governments. a. Opponents of total incorporation argued based on federalism: desirability of preserving state and local government autonomy b. Defenders of total incorporation responded that federalism is not sufficient reason for tolerating violations of fundamental liberties
  3. Appropriate Judicial Role: too much judicial discretion/activism under selective? Too much judicial oversight if total is adopted with no room for democracy to operate?