CHAPTER 2: THE FEDERAL LEGISLATIVE POWER A.

INTRODUCTION: CONGRESS AND THE STATES Congress may act only if there is express or implied authority in the Constitution, whereas states may act unless the Constitution prohibits the action. Article 1 of the Constitution contains affirmative grants of power to Congress. Congress may not exercise authority unless pursuant to an Article 1 enumerated power. Even where Congress has properly excised an Article 1 power, it may be checked pursuant to another constitutional imperative. rotection of !tate sovereignty, i.e. maintenance of the division of power in the federalist system may re"uire congressional legislation to be nullified. !tates have sovereignty, but they are still sub#ect to the supremacy clause Congressional powers$ 1. Commerce %includes slavery& '. atents (. )eclaring war *. +aw of Contracts %!ee ,! Const art.1, sec. -& .o bill of attainder %law against one person&. +incoln was the last president to suspend habeas corpus. THE FRAMEWORK FOR ANALYSIS: McCULLOCH v. MARYLAND Congress created the /ank of the ,nited !tates in 1012 after heavy debate over its constitutionality. Alexander 3amilton, an advocate for federal power, championed the bank. After the /ank4s charter expired in 1-11, ensuing economic troubles led to its recreation in 1-15. Continued economic problems led to additional criticism of the /ank and the enactment of state laws designed to hamper its operation. 6aryland4s tax on the /ank spawned McCulloch v. Maryland, which settled Congress4 power to create the /ank. 6cCollough represented the national bank and was a cashier at their /altimore branch. McCulloch v. Maryland %1-11& interpreted the limited power of government Facts: 6aryland % & attempted to impose a tax on the federal bank. 7he bank4s cashier, 6cCulloch %)& refused to pay the tax. 6aryland % & sued 6cCulloch %)&, arguing that %1& the establishment of the bank is unconstitutional, and %'& the bank may be forced to pay state taxes. Issue: 1& 6ay Congress constitutionally establish8incorporate a national bank9 '& 6ay a state impose restrictions8controls on federally established agencies against the 1 of ((

federal government4s activities the federal government4s directives9 H !"#$%$ :E! Ru!e: ,nder the Necessa&' a$" P& (e& C!ause %,.!. Const. Art. 1 !ec. -, cl. 1-&, Congress may enact legislation so long as its ends are legitimate under the Constitution and the legislation is appropriate and plainly adapted to those ends. Case V ca)u!a&': .ugatory$ ;noperative< useless N tes: Established that the !upremacy Clause has merit. WHAT ROLE SHOULD CONCERN OVER PROTECTING STATES HAVE IN DEFINING CONGRESS*S POWERS+ 55*2. 7he balance of power8autonomy b8w the !tates and the .ational =overnment has been an ongoing point of contention. > ;n settling the "uestion, there are two key issues$ 3ow pressing is the need to protect state sovereignty18federalism'9 7hose who oppose #udicial protection of states as a limit on Congress4s power argue that national legislation is needed to deal with national problems saying the Court should not circumscribe the scope of Congress4s authority to use the 12th Amendment( to invalidate federal laws. 7hose who favor #udicial use of federalism as a constraint on Congress4s power usually identify three benefits of protecting state governments$ 1& decreasing the likelihood of federal tyranny %7he division of power vertically b8w federal and state lessens the chance of federal tyranny.& '& enhancing democratic rule by providing government that is closer to the people, and %!tates are closer to the people and thus more likely to be responsive to public needs and concerns.& (& allowing states to be laboratories for new ideas.

55*1. !hould the courts %#udiciary& protect state autonomy* %by enforcing the 12th Amendment&, or leave it to the political process9 ? @ne view is that #udicial enforcement of federalism as a limit 1!upreme dominion, authority or rule. 7he supreme political authority of independent state. 7he state itself. '7he relationship and distribution of power b8w the national and regional governments w8in a federal system of government. (7he powers not delegated to the ,.!. by the Constitution, nor prohibited by it to the !tates, are reserved to the !tates respectively, or to the people. *7he right of selfAgovernment. A self governing state. ' of ((

on Congress is unnecessary b8c the political process will ade"uately protect state government interests. %;nterests of the states are represented in the national political process and that the nature of that process provides sufficient protection of state sovereignty, thus making it unnecessary for the courts to enforce federalism as a limit on Congress.& At the time the Constitution was written states chose !enators and thus were directly represented in Congress. 3owever, today, with popular election of !enators, it is harder to argue that states interest are ade"uately protected in Congress.

7he !upreme Court has defined the scope of Congress4s powers under three crucial constitutional provisions$ 00**. 7he Commerce ower 00*B. 7he !pending ower 00*5. C B of the 1*th Amendment

THE COMMERCE POWER Article 1, C - states$ D7he Congress shall have the power . . . to regulate Commerce with foreign .ations, and among the several !tates, and with the ;ndian 7ribes . . .E !ince the 1112Fs, the Court has again narrowed the scope of the commerce power and revived the 12th Amendment as an independent, #udicially enforceable limit on federal actions. 7he !upreme Court when making this determination is considering three "uestions$ . Ghat is commerce9 %;s it one stage of business or does it include all aspects of business and even life in the ,.!.9& . Ghat meaning does Damong the several statesE take9 %;s it limited to instances where there is a direct effect on interstate commerce, or is any effect on interstate activities sufficient9& . )oes the 12th Amendment act to invalidate congressional action that is valid under the Commerce Clause9 % ut another way$ )oes the 12th Amendment limit Congress< if Congress is acting w8in the scope of the commerce power, can a law be declared unconstitutional as violating the 12th Amendment9& 7here are * eras of the commerce clause$ -. T.e I$#t#a! E&a: Gibbons v. Ogden "e/#$es t.e C 00e&ce P 1e& a.2.a. t.e Ma&s.a!! e&a u$t#! -345 ( of ((

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@gden successfully sued for an in#unction in the .: state courts. 7he court !upreme Court considered the scope of Congress4s powers and then whether the .: grant of a monopoly was unconstitutional.

Gibbons v. Ogden %1-'*& )efined commerce narrowly Facts: @gden %)& was granted an exclusive ferry operations license by .: !tate. =ibbons % & began a competing ferry service and challenges. @gden4s %)& exclusive license under the Commerce Clause. Issue: 6ay a state legislate in the area of interstate commerce in a way that conflicts with federal law9 .@ Ru!e: 7he federal commerce power extends to all commerce among and b8w the states and foreign nations, w8 only commerce having connections solely w8in a single state being unreachable under the commerce power. C!ass N te: 7he "uestion in this case was if a boat crossing the river was commerce9 )efined commerce as including navigation. !aid it meant commerce going on between states< he said it is a broader definition than buying and selling it is navigation. )oes he define any limits to this power9 12th Amendment states real clearly Dpowers not delegated to the ,.!. by the Constitution nor prohibited to the states are reserved respectively to the states or to the people.E NOTES: T.e C 00e&ce C!ause has two general purposes$ Hirst, it provides Congress w8 the authority to affirmatively regulate all commerce that is not exclusively founded and finished w8in the borders of a single state. %7his may be thought of as the positive or regulatory side of the clause.& !econd, the commerce clause, w8out any affirmative declarations by Congress, acts as a limit on the exercise of state power in the interstate commerce arena. %7his is often called the dormant commerce clause.& 7o what commerce does this power extend9 7he constitution informs us, to commerce Dwith foreign nations, and among the several !tates, and with the ;ndian tribes.E Ghat is this power9 ;t is the power to regulate< that is to prescribe the rule by which commerce is to be governed. I$te&state 6. I$t&astate$ I$te&state$ cross state lines I$t&astate$ within a particular state Gibbbons involved congressional ability to override state actions that conflict with federal statutory provisions. 7he federal commerce power extends to all commerce among and b8w the !tates and foreign nations, with only commerce having connections solely w8in a single state being unreachable under the commerce power. * of ((

7he broad Gibbons interpretation was not limited until the late 1-22s when the Court began to protect from federal regulation commerce dealing with wholly intrastate business.

Ieep addressing same three issues$ 1& what is commerce< '& what does among the states mean< and (& does the 12th amendment limit the power of Congress in the area of commerce9 Among$ between< means that it only regulates commerce that goes on between states %i.e., things sold within a state would not be included&< in the midst of %broad definition&< anything in the midst of commerce< intermingled with %purely internal and has no ma#or affects on interstate commerce, then not included< but if it does have affects on interstate commerce, then it is included&. 12th amendment$ +imits commerce clause by reserving powers to state not expressly given to Hederal government. %Jiddick& 2. T.e -345s 7 -489: A L#0#te" Fe"e&a! C 00e&ce P 1e& T.e L c.$e& E&a Concurrent with the ;ndustrial Jevolution and the growth of the national economy, Congress began using the Commerce Clause much more extensively to regulate businesses. Additionally, the Court applied the 12th Amendment to reserve a Kone of activities for exclusive state control and invalidated federal laws that were within Congress4s commerce power that usurped state prerogatives. L L a. 7he court limited Congress4s power by narrowly defining DcommerceE< restricting the meaning of Damong the statesE< using the 12th Amendment to check regulation of matters left to the !tates. @nly the Dmanufacturing and salesE is considered commerce.

W.at Is :C 00e&ce;+

United tates v. !.C. "night Co. %1-1B& #hat is co$$erce% Facts: A sugar refining company gained a monopoly in the industry by purchasing several other refineries. Issue: 6ay Congress, pursuant to its commerce power, regulate the manufacturing of goods, before any have actually entered into the stream of interstate commerce9 .@ Ru!e: 6anufacturing is separate from DcommerceE because it occurs before any goods are transported in interstate commerce, and thus the federal government may not regulate manufacturing in and of itself. %.otes$ 7hey narrowed the definition of commerce.& Case in which government had started its AntiAtrust laws$ prohibit the existence of B of ((

monopolies. /aton Jouge Gater Co. Example of a privately owned charter %monopoly& Ghy did we pass the !herman Antitrust Act %was under 6cIinnley&$ to prevent free market from creating monopolies Ghat created the atmosphere for the need for the !herman Anti 7rust Act9 .orman Jockerfeller %skyrocketed the prices where he had control of the market& =overnment policy$ government protects monopolies in the private sector when it is beneficial %government protects one industry, but applies !herman Antitrust to others& Case V ca)u!a&': Elasticity of )emand$ 7he rate at which demand for something changes as its price is increased or decreased. Ghen a shift in price causes very little change in the "uantity demanded, the item is said to be inelastic. 6onopoly$ Exclusive use or control over something. NOTES: 7he ,nited !tates % & charged that the ac"uisition constituted illegal combinations in restraint of trade. 7he power to regulate commerce is independent of the power to regulate monopolies. 6a#ority opinion here represents an overly strict interpretation of interstate commerce. 7he Court holds that until goods are actually moved in interstate commerce, they are not sub#ect to regulation by the federal government. %7he Court missed the point here. /y )efendant monopoliKing the sugar industry he could charge higher prices for sugar, which would have an effect on interstate commerce.& )efined commerce as not production< it is transactions of another nature. Carter v. Carter Coal Co. %11(5& Facts: Congress passed, pursuant to its commerce power, a law regulating the managementAemployee relations in the coal mining industry. 7he law is being challenged on the ground that Congress does not have the power to regulate such activities because they do not constitute Dinterstate commerce.E Issue: )oes the commerce power authoriKe Congress to legislate in the area of purely local activities, such as laborAmanagement relations9 .@ Ru!e: urely local activities, such as the negotiation of wages and working conditions, are outside of the Congress4 realm of authority under the Commerce Clause. Case V ca)u!a&': ;nstruments$ ;tems that facilitate interstate commerce, such as railroads, waterways, and highways, as well as the actual carriers of goods, such as trains and other vehicles. Commerce$ intercourse for the purposes of trade< includes transportation, purchase, sale and exchange of commodities between citiKens of different states. %7he power to regulate commerce embraces the instruments by which it is carried on.& NOTES: Congress can regulate commerce or intercourse for the purposes of trade. 3owever, in the instant case it is trying to regulate intercourse for the purposes of production, not of trade. )efendant says they are in production not commerce.

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W.at D es :A0 $% t.e States; Mea$+

Houston& !ast ' #est (e)as Rail*ay Co$+any v. United tates %111*& %the !hreveport Jate cases& Facts: )ue to state regulations of intrastate transport, a railway company charged much higher rates for interstate transport between !hreveport, +A and certain 7exas locations than it did for transport exclusively within 7exas, leading the ;nterstate Commerce Commission to implement price controls. Issue: 6ay Congress regulate intrastate commerce where it is found to affect interstate commerce9 :E! Ru!e: Congress has authority to regulate intrastate commerce where it has the potential to affect interstate commerce absent federal regulation. Case V ca)u!a&': ;ntrastate Commerce$ Commerce occurring solely within the borders of one state. Ta&#//$ A tax on goods imported from foreign nations exacted by the importing nation. NOTES: ;nterstate trade was not left to be destroyed or impeded by the rivalries of local government. Ghenever the two are so closely related that the government of one involves the control of the other, it is Congress, not the state, which is entitled to set the final and dominant rule. %7his case broadly defined Damong the statesE& ;f in#ected into stream of commerce, becomes commerce. Congress set rates of railroads in one state %intrastate&< because dealt with transportation. %;nstrumentality of Commerce& how commerce is moved. ;f Congress doesn4t regulate the rates in 7exas, then it is going to affect the rates in +ouisiana. ;f it is in a state it can affect what goes across state lines. A.L.A. checter ,oultry Cor+oration v. United tates %11(B& Facts: Congress enacted a law governing wages, working conditions, and prices for poultry transported in interstate commerce. Gholesalers that purchase the chickens after they4ve arrived inAstate challenge the law as unconstitutional. Issue: )oes the commerce power extend to goods moved in interstate commerce after they have arrived and been sold in their state of final destination9 .@ Ru!e: @nce goods that have traveled in interstate commerce %stream of commerce& are sold or disposed of in the state of their final destination, they are no longer in interstate commerce and thus not sub#ect to federal law. Case V ca)u!a&': Consignment$ 7he placing of an item for sale by another, acting as the owner4s agent, in return for a certain percentage, or commission, of the sales price to be paid to the agent upon the item4s sale. NOTES: 3ere the court uses Dstream of commerceE to define Damong the statesE. %7his case narrowly defined Damong the statesE& Attempting to regulate the raising of chickens. !aid Congress could not regulate. Causes =reat )epression$ more production than we could see at prices that are profitable< 0 of ((

employment rate went down. .ational Codes were an attempt to regulate the supply available for sale. !upply of chickens in one part of the nation were affecting supply of chickens in another part of the nationM choice taken by national government is we will regulate the production of chickens. Court re#ected this decision in this case. Court said though chickens might affect prices in other economies...it is indirectly. Alton R.R. Co. NOTES: 7he stream of commerce theory allowed Congress to reach any activities incident to the movement of goods in interstate commerce, unless the activity was remote from any regulation of commerce. DOES THE TENTH AMENDMENT LIMIT CONGRESSIONAL PO ERS! 7he 12th Amendment as a check on the commerce power. 7he 12th Amendment has been construed in two ways$ As a truism that places no additional limits on congressional

. authority< . An affirmative limit that may restrict the scope of Congress4s proper exercise of authority.

Ha$$er v. Dagenhart %111-& Facts: A father wanting to put his two minor children to work in a cotton mill is suing on the ground that Congress4 use of the commerce power to regulate child labor in the states by blocking the interstate transportation of childAmade goods in unconstitutional. Issue: 6ay Congress rely on the Commerce Clause in attempting to regulate local activities, such as child labor, by prohibiting the interstate transportation of goods manufactured through such local activities9 .@ Ru!e: 7he commerce power does not allow Congress to regulate in areas traditionally left up to the states4 police power, such as the area of child labor laws. Court defined commerce as not including production. ;s .ational ,niformity one of the ob#ectives of the commerce clause9 ;f we need nationally uniformity do we need it on everything9 Ghere do we end uniformity...the need for national uniformity9 Gho regulated abortion before Joe v. Gade9 7he states ;f Joe v. Gade is overturned who will regulate abortions again9 !tates %therefore in +a. it would be illegal as it exist on the books today.& )oes the definition of morality nationally and locally change9 Everything made with child labor, do we want to regulate that, does it matter that it travels across - of ((

state lines9 Court regulates unsafe foods, drugs. Congress passed a bill saying all Class Actions should be filed in federal courts. )on4t we need reservation of states rights9 Cha$+ion v. A$es %112(& Nthe +ottery CaseO Facts: 7he Fe"e&a! L tte&' Act prohibited interstate shipment of lottery tickets. ;t is being challenged as unconstitutional in that such shipments are not commerce. Issue: ;s the prohibition of the interstate shipment of items ad#udged to be evil or pestilent within Congress4 authority under the Commerce Clause9 :E! Ru!e: Congress may, pursuant to the Commerce Clause, prohibit the interstate shipment of items ad#udged to be evil or pestilent in order to protect the commerce concerning all states. NOTES: 7he authority given to Congress was plenary. %Court holds that Congress has the authority, pursuant to the Commerce Clause, to both regulate and prohibit interstate commerce. Can4t transport lottery tickets b8w state lines. 7his case says commerce are things that involve moral turpitude. Ma$$ Act$ made it a crime for a man to transport a lady over state lines for purposes of sex or other acts of immorality. Gas no express constitutional re"uirement to control crimes enforced by state government. ( "uestions$ 1& Ghat is commerce9 '& Ghat is among the states9 (& )oes the 12th amendment create any special amendment for local government9 7his case is the bedrock for present day criminal law. Jeasoning similar to Joe v. Gade. 7hey decide unilateral that lotteries are about morality and morality fits under the commerce clause. 8. -489 7 -445s: ,& a" Fe"e&a! C 00e&ce P 1e& <-4897-44=> T.e R se6e!t E&a T.e E?(a$s#6e E&a / t.e C 00e&ce C!ause 7he economic strife of the 11(2s and 11*2s, with its concomitant political pressure, including Joosevelt4s Court packing plan, led the !upreme Court to broaden the federal commerce power. 7he unemployment rate went down during this era. 7ariff P a tax on imported goods.

"E# DECISIONS CHANGING THE COMMERCE CLA$SE DOCTRINE 7hree key decisions are symbolic of this era$ . Congressional power to regulate interstate commerce extends to the regulation of intrastate activities that may burden or obstruct interstate 1 of ((

commerce. . Congress has the authority, under the Commerce Clause, to exclude any article from interstate commerce, in #udgment that they are in#urious to the public health, morals or welfare. . Congress4s commerce authority extends to all activities having a substantial effect on interstates commerce, including those that do not have such a substantial effect individually, but do when #udged by their national aggregate effects. 11(0 resident Joosevelt trying to pull us out of the biggest depression. 3ave economic pressures of the depression. Joosevelt gets elected to unprecedented (rd term as president. 3e goes to Congress and says ; can4t get those fools to elect 3oover...; will elect B more #ustices to !upreme Court....he introduces a bill, one of the #ustices retires....vote switched...definition of commerce begins to change. N.L.R.-. v. .ones ' Laughlin teel Cor+. %11(0& Facts: A steel corporation whose operations span the continent is being sued by the government for violating the .ational +abor Jelations Act for committing unfair labor practices. Issue: 6ay Congress exercise its commerce power in the area of labor management relations9 :E! Ru!e: Congressional power to regulate interstate commerce extends to the regulation of intrastate activities that may burden or obstruct interstate commerce. Case V ca)u!a&': ;ntegrated$ A business term describing the level of consolidation a corporation has in its industry. Hull vertical integration occurs when a corporation owns or controls all aspects of the chains of production and distribution, including the raw material that go into the finished product, all the way to the means of transporting the finished products to the buyers. 3oriKontal integration occurs when a corporation controls one aspect of production, such as when a company owns numerous steel mills, but not the coal or iron mills supplying the raw materials. @ne corporation can accomplish vertical and horiKontal integration. NOTES: )efines the term Daffecting commerceE$ means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce. Court says this in unconstitutional b8c it is production not commerce. Court starts to change its view in this case. Commerce involves production. 7hen they say production is commerce. @nce it decided that said test is )oes it have a significant effect on interstate commerce9 ;f work stoppage would effect the price of goods in another state...it deals with commerce. Jesult...the need for uniformity. United tates v. Darby %11*1& Facts: A =eorgia lumber company violated federal minimum wage8maximum hour laws. ;ts defense is that the federal government overreached its Commerce Clause authority in 12 of ((

setting the standards. Issue: 6ay Congress exercise police powers by excluding from interstate commerce articles the production for which deteriorates the public health, morals or welfare of the nation9 H !"#$%: :E! Ru!e: Congress has the authority, under the Commerce Clause, to exclude any article from interstate commerce, in #udgment that they are in#urious to the public health, morals or welfare. Case V ca)u!a&': plenary power$ Complete power or authority #ic/ard v. 0ilburn %11*'& Facts: Gickard exceeded his allotted "uota for wheat production, the excess amount to be used for his own consumption. 3e was fined by the government and seeks to have the "uota ruled unconstitutional. Issue: )oes the commerce power extend to the regulation of the production of items not intended for distribution in the national market existing for such items9 :E! Ru!e: Congress4 commerce authority extends to all activities having a substantial effect on interstates commerce, including those that do not have such a substantial effect individually, but do when #udged by their national aggregate effects. Case V ca)u!a&': Aggregate$ ;n total< considering all similar production8consumption throughout the nation. Ghat is commerce9 Harmer buys wheat, plants, harvest manually, feeds chicken and family from wheat grown....chickens nor grain goes across state lines. ;t is commerce b8c he put chickens in commerce.....o problem with regulating agriculture at the national level. 3elped b8c anything national government wanted to regulate it classified as commerce. ;f it doesn4t cross state lines then how is Congress going to regulate....Constitution doesn4t say Congress can only regulate interstate commerce. Every chicken sold effects somebody someplace. ;t is discouraging interstate commerce, so it is having an impact on the economy. Gith broad definition we have crossed the apex. )id not have to prove crossed state lines, now federal government could also regulate matters within a state. .ones Laughlin& Darby& and #ic/ard, these three cases adopt a broad definition of DcommerceE and Damong the statesE and re#ect the 12th Amendment as a limit on Congress4s Commerce Clause power. At this point Congress can regulate activity, intrastate or interstate, that has a substantial effect on interstate commerce. Hrom 11(0 until 111', not one federal law was invalidated as exceeding the scope of Congress4s Commerce Clause authority and only once was a federal law found to violate the 12th Amendment, and that case was expressly overruled less than a year later.

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THE MEANING OF :COMMERCE AMONG THE STATES; Congress may not regulate private behavior under the 1*th Amendment. !ince the 11*2Fs, the !upreme Court has considered congressional exercise of the commerce power in three general areas$ 1. civil rights, '. federal regulatory laws, and (. criminal laws. Civil rights laws$ Civil Jights Act of 115* is among the most important federal laws enacted during the '2th century. +aw prohibits private employment discrimination based on race, gender, or religion, and forbids racial discrimination by places of public accommodation such as hotels and restaurants. Congress enacted this legislation under its Commerce Clause power.

Heart o1 Atlanta Motel& 2nc. v. United tates %115*& Facts: An Atlanta, =eorgia motel wishes to continue its racially discriminatory operations in spite of the 115* Civil Jights Act %Act& barring racial discrimination in public accommodations. Issue: 6ay Congress exercise the commerce power by regulating local activities that are seen as exerting a substantial and harmful effect on interstate commerce9 :E! Ru!e: Congress has the power, under the Commerce Clause, to regulate local activities that could reasonably be seen as exerting a substantial and harmful effect upon interstate commerce. NOTES: 3ow obstructions in commerce may be removed Q what means are to be employed Q is within the sound and exclusive discretion of Congress, and is sub#ect to only one caveat Q that the means chosen by it must be reasonably adapted to the end permitted by the Constitution. "at3enbac/ v. McClung& r. and McClung& .r. %115*& Facts: 7he owners of a restaurant in /irmingham, Alabama continued to exclude .egro patrons from their restaurant dining area, in violation of the Civil Jights Act of 115*. Issue: )oes a commercial enterprise serving the public fall within the reach of Congress4 commerce authority when it sells goods a substantial portion of which have moved in interstate commerce9 Ghether the particular restaurant either serves or offers to serve interstate travelers or serves food a substantial portion of which has moved in interstate commerce9 H !"#$%: :E!. Ru!e$ Congress4 commerce authority extends to any public commercial establishment selling goods that have moved in interstate commerce and8or serving interstate travelers. ;n Hodel v. 4irginia@ the Court held that Commerce Clause legislation could be invalidated only where there is no rational basis for a congressional finding that the regulated activity affects interstate commerce, or that there is no reasonable connection between the regulatory means selected and the asserted ends. Congress may use the commerce power to enact criminal statutes so long as the 1' of ((

criminal activity in "uestion has a substantial effect on interstate commerce, even if the activity is purely intrastate. ,ere3 v. United tates.556loan shar/ Ghat is an instrumentality of intrastate commerce9 vehicles %mode of transportation& Ghat is a channel9 Joadway, river, ocean, airway )o we have different types of person9 :es %aliens, alien citiKens, citiKens& Can Congress prohibit nonAcitiKens from entering the ,.!.9 :E! ;f a person crossing state lines %illegal alien Q 6exico to ,.!.&, can Congress prohibit9 :E! )issent of P%r%& talks about regulating. .@7E! 7@ C@.!;)EJ THE TENTH AMENDMENT ,ETWEEN -489 AND THE -445s. National League o1 Cities v. Usery %1105& Facts: An amendment to the Hair +abor !tandards Act extended wage and hour re"uirements to state employees. 7he !tates are seeking to have the regulations as applied to them declared unconstitutional. Issue: )oes the Commerce Clause grant Congress the authority to regulate the conduct of cities in their integral functions9 H !"#$%: .@. Ru!e: 7he Commerce Clause does not empower Congress to regulate states or local governments in their integral governmental functions. NOTES: 7he integral governmental activity at issue in this case was the !tate4s employerA employee relations. N tes t C $s#"e& 7est for the 12th amendment N@REJJ,+E)O Hor a federal law to violate the 12th amendment, it needed to regulate Dthe !tates as !tatesE, it must Daddress matters that are indisputably attribute NsO of state sovereignty it must 1. directly impair the !tate4s ability to structure integral operations in areas of traditional governmental functions '. must not be such that the nature of the federal interest #ustifies state submission Garcia v. an Antonio Metro+olitan (ransit Authority %11-B& Facts: Application of the Hair +abor !tandards Act to a city4s mass transit system fuels a revisitation of .ational +eague of Cities v. ,sery. Issue: 6ay Congress regulate a city4s mass transit authority4s employerAemployee relations under the Commerce Clause9 H !"#$%: :E!. Ru!e: Congress has full authority under the Commerce Clause to regulate the traditional, or core, functions of state and local governments notwithstanding the 12th Amendment. Case V ca)u!a&': A priori$ A logical reasoning process running from what is general and leading to the more 1( of ((

specific. Geal$ A sound, healthy or prosperous state. NOTES: 7his case overruled Na'ional L%a(u% o) Ci'i%s. constitutionality of the Hair +abor !tandards Act %H+!A&. A.

/oth cases considered the

-445s 7 +++: Na&& 1#$% t.e C 00e&ce P 1e& a$" Re6#6a! / t.e Te$t. A0e$"0e$t as a C $st&a#$t $ C $%&ess ;n Lo*%& the !upreme Court found for the 1st time in 52 years that a federal law exceeded Congress4s Commerce Clause. !upreme Court reaffirmed Lo*%& in $.S. v. Morrison< N# v. $.S.+ and Prin'& v. $.S. 7wo "uestions to focus on in the next cases$ 1& )escriptively, what principles does the Court articulate as to when Congress exceeds the scope of its commerce clause authority and when Congress violates the 12th Amendment9 '& .ormatively, does the Court persuasively #ustify the desirability of these limits on federal powers9 W.at #s C $%&ess*s Aut. &#t' t Re%u!ate :C 00e&ce A0 $% t.e States;+ Jestricting the commerce power anew ;n the 1112s, the !upreme Court began to interpret the Commerce Clause more narrowly and the 12th Amendment more broadly.

a.

United tates v. Lo+e3 %111B& Facts: A 1'th grade student was convicted of violating the =unAHree Sones Act of 1112, which makes it a federal offense to possess a gun near a school. Issue: )oes the commerce power extend to regulation of activities having only a potential attenuated and distended effect upon interstate commerce9 H !"#$%: .@. Ru!e: Congressional authority to regulate pursuant to the Commerce Clause extends to only those activities that rationally implicate 1& the channels of interstate commerce< '& the instrumentalities of interstate commerce< or (& activities having a substantial effect upon interstate commerce. 7he thing in "uestion needs to have a Dsubstantial effectE on interstate commerce. Case V ca)u!a&': A fortiori$ with even greater force. Jational basis$ a standard of review that asks whether Congress could have %not does8did have& had a reasonable basis for reaching the conclusions necessary for its legislation to be constitutional. NOTES: 7his case created a civil cause of action for women who are raped. Amended the standing re"uirement of the code of civil procedure to allow any women who has been raped to have standing in federal court to sue. 1* of ((

*' ,.!.C. C11-($ cause of action for private conduct. United tates v. Morrison %'222& Facts: An alleged rape victim sought to sue her accused attackers under the federal Riolence Against Gomen Act %Act or RAGA&. 7he accused asserts that RAGA is an unconstitutional exercise of congressional authority. Issue: 6ay Congress regulate under the Commerce Clause local activities that are not economic in nature9 H !"#$%: .@. Ru!e: Congress may not, pursuant to the Commerce Clause, regulate a local activity solely on the basis that it has substantial effects on interstate commerce when viewed in its nationwide aggregate. NOTES: Morrison thus limited the Court4s broad holding in ic,ard. 3ave a civil cause of action against a government official. Ghy can4t we sue a rapist9 1st Q non economic< 'nd would allow federal government to regulate all areas i.e. Hamily law olid #aste Agency o1 Northern Coo/ County v. United tates Ar$y Cor+s o1 !ngineers Facts: Issue: )id they find that garbage was part of commerce9 3olding$ .@. NOTES: 7he Court does not declare the federal law unconstitutional. ;nstead, to avoid serious "uestions about its constitutionality, the Court narrowly interpreted the federal statute. Ghere an otherwise acceptable construction of a federal statute would raise serious constitutional problems, court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. %;n other words, to avoid the constitutional issue the court will interpret the federal statute narrowly excluding the act in "uestion.& T Although interpreting laws narrowly to avoid constitutional doubts is not new, its application to the commerce clause gives a powerful tool to lawyers challenging the application of federal civil and criminal laws. 7hey need not persuade the Court that a federal statute is unconstitutional on its face or as applied. ;nstead, t.e' $!' $ee" t s. 1 t.at a$ a((!#cat# $ / t.e !a1 1 u!" &a#se :c $st#tut# $a! " u)ts.; age 55 in supplement %A)) CA!E&. ). D es t.e Te$t. A0e$"0e$t L#0#t C $%&ess*s Aut. &#t'+ 12th Amendment limitations given a new life ;n Gr%(ory v. Ashcro)' %1111& the Court breathed new life into the 12th Amendment when it relied on the Amendment and federalism concerns for a rule of construction in holding that a federal law imposing a substantial burden on state governments will be given force as applicable to the !tates only if Congress gave a clear indication that the law should so apply. U 7he court construed the 12th Amendment as a 1B of ((

constitutional protection of state sovereignty and a check on potential federal tyranny. Ne* Yor/ v. United tates %111'& Nused the 12th amendment to invalidate federal lawsO Facts: Congress passed legislation re"uiring states to either provide for radioactive waste disposal or take title to waste generated within their borders. 7he legislation is being challenged as an unconstitutional exercise of federal power over the !tates. 6onetary incentive to help regulate radioactive waste. Case revolved around (rd part of the act D7itle provisionE Q either state can provide facility to dispose of the waste would be re"uired to take title of the waste. Issue: 6ay Congress force a state to adopt8enact a certain regulatory scheme9 .@ Ru!e: Congress does not have the authority to commandeer state governments by forcing them to implement particular regulations. Case V ca)u!a&': 7autology$ 7he consideration of or inclusion of a variable twice in figuring causation or the end result. Case about Dnot in my backyardE %everybody loves to dispose of nuclear waste except Dnot in my backyardE&. Ghat is the difference b8w regulating nuclear waste and driving across state lines9 Ghat does it trigger in the 12th amendment9 Jegulating the states as states. ;f states are not commerce they cannot be regulated as commerce. 3ere we are telling them you may not be in commerce but we are going to make you take title.....73;! CA..@7 3A E.....it steps across the line. ,rint3 v. United tates %1110& Nused the 12th amendment to invalidate federal lawsO Facts: 7he federal /rady Act re"uired local law enforcement officials to temporarily administer its background check program. 7wo local law enforcement officers challenge the /rady Act4s impressment of local law enforcement officials. Issue: 6ay Congress compel state and local government officials to implement and administer federal regulatory programs9 .@ Ghy9 N%- #or, v. $.S. 3ere they said rely on $.S. v. N.#. we are mandating that states administer a federal regulatory program. Ru!e$ Congress does not have authority to compel states to enact, enforce, or administer federal regulatory programs, and cannot circumvent this prohibition by conscripting state officials directly. Case V ca)u!a&': #urisprudence$ the body of law, formed by precedent, a court relied on in deciding an issue. Another case where Congress tells the states that they have to do something. /rady 3andgun Riolence revention Act$ commanding state and local law enforcement officers to conduct background checks on prospective handgun purchasers and to perform certain related tasks, violate the Constitution.

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Reno v. Condon %'222& Facts: Congress passed legislation placing certain prohibitions on the dissemination of private information given states by individuals in applying for a driver4s license. @ne !tate challenges the constitutionality of the legislation as it applies to states. Issue: 6ay Congress regulate state activities that necessarily impose costs of compliance9 :E! Ru!e: !tates are re"uired to comply with constitutionally valid legislation, regulating state activities, even when compliance means incurring additional costs to be borne by the !tates. NOTES: 7he ,.!. asserts that the ) A is a proper exercise of Congress4s authority to regulate interstate commerce under the Commerce Clause. 7his is based on the fact that personal, identifying information that the ) A regulates is a Dthing in interstate commerce,E and that the sale or release of that information in interstate commerce is therefore a proper sub#ect of congressional regulation. 7his is a revenue source for states....and Congress is interfering with this...can they9 :es Ghy was the court unanimous here9 /ecause it did not re"uire the states to do anything< %like it did in N# and Prin&& did not re"uire government officials to participate....it did not target states as states...more like Garcia. C. THE TABING AND SPENDING POWER (he co+e o1 the (a)ing and +ending ,o*er A&t#c!e - C 3$ DCongress shall have ower to lay and collect 7axes, )uties, ;mposts and Excises, to pay the )ebts and provide for the common )efense and general Gelfare of the ,.!.< but all )uties ;mposts and Excises shall be uniform throughout the ,.!. ower to tax and spend is one of the most important of all Congressional powers. !ection 1 % aragraph 0& FOR WHAT PURPOSES MAY CONGRESS TAB AND SPEND+ Congress has the broad authority to tax and spend for the general welfare. United tates v. -utler %11(5& Facts: Congress attempted to regulate the "uantity of local agricultural production through use of the taxing spending powers. 7he regulation is challenged as being outside Congress4s enumerated powers. Issue: 6ay the taxing and spending powers be used to purchase8force compliance with federal goals in an area of concern reserved to the states9 .@ Ru!e: Congress may not use the taxing or spending powers to force compliance in an area where the Constitution does not give Congress independent power to regulate. H !"#$%: Congress is not limited to spending only to achieve the specific powers granted in Article 1 of the Constitution. Jather, Congress may spend in any way it believes would serve the general welfare, so long as it does not violate another constitutional provision. Case V ca)u!a&': EndAJun$ 7aking an indirect route in reaching a goal because the most direct route, and usually 10 of ((

the most proper route, is blocked in some way. NOTES: 7wo issues in .u'l%r that are important$ 1& the scope of Congress4s taxing and spending power< and '& whether the 12th Amendment is a limit on it. .u'l%r holding remains good law on the first issue, but its ruling as to the 12th Amendment is no longer followed. Chas C. te*ard Mach& Co. 4. Davis %11(0& Issue: Ralidity of the tax imposed by the !ocial !ecurity Act on employers or more9 Congress can use a tax law simultaneously to regulate and to generate funds.

Sa)&# 6. U$#te" States HAC7!$ !abri was a real estate developer who proposed to build a hotel and retail structure in 6inneapolis. 3e lacked confidence in his ability to to adapt to licensing and Koning laws and thus offered ( bribes to a city councilmen who was on the board to fund housing and economic developments within the city. 1- ,.!.C. imposed federal penalties on anyone who corruptly gives, offers, or agrees to give anything of value w8 intent to influence or reward an agent of an org. in connection w8 any business involving anything of value of Bk or more. Hor criminal liability to lie, the statute re"uires the org. to recv benefits in excess of 12k under a federal program. 7he org the city councilmen worked for received '( millin of federal money. ;!!,E$ Ghether 1- ,.!.C. proscribing bribery of state, local, and tribal officials of entities that receive at least V12,222 in federal funds is a valid exercise of congressional authority under Article ; of the Constitution9 3$ !abri4s argument was that there was a failure to re"uire proof of a connection between the federal funds and the alleged bribe. A 3@+);.=$ :E! (he +ending ,o*er ,& a" Sc (e / t.e S(e$"#$% P 1e& Congress has broad power to spend funds to advance the Dgeneral welfare.E C $"#t# $s $ G&a$ts t State G 6e&$0e$ts @ne important issue of the spending power concerns the ability of Congress to place conditions on grants to state and local governments. 7he Court has held that Congress may place strings on such grants, so long as the conditions are expressly stated and so long as they have some relationship to the purpose of the spending program. 1- of ((

outh Da/ota v. Dole %11-0& Naffirms Congress4s power to place conditions on grants to state and local governmentsO Fe". La1: sought to create a '1AyearAold drinking age by withholding a portion of federal highway funds from any state government that failed to impose such a drinking age. Facts: !outh )akota % & challenges a federal law Nappropriations billO withholding BW of federal highway funds from any state with a drinking age limit less than '1 years of age. Congress attempted to regulate activities of drinking age b8c of its uncertainty about its power to impose a national minimum drinking age directly. !outh )akota allowed people 11 and under to purchase alcohol Class .otes$ Jemember this case is not about federal highways, but state highways where money is appropriated from states and federal government. Hederal money comes with conditions and strings attached. ;n this case the appropriations bill8federal law re"uired states who wanted the BW of federal highway funds to pass a law that only people over '1. Issue: 6ay Congress use its spending power to regulate activities in areas reserved to the !tates9 Ca$ t.e /e"e&a! % 6e&$0e$t &eDu#&e )' a((& (&#at# $ states t e$act a !a1+ :E! Ru!e: Ralid use of the !pending power is sub#ect to three re"uirements$ 1& ;t must be used for the general welfare< 7he general welfare is #udged by Congress '& Any conditions on receipt of funds must be unambiguous< and (& Any conditions must be related to the federal interest in the particular national pro#ects or programs being funded. NOTES: 7he Court emphasiKed that the condition imposed by Congress was directly related to one of the main purposes behind federal highway money$ creating safe interstate travel. Congress puts conditions on the money that it spends. Can Congress tell the states what to do under these acts9 7hey can put limitations on how they spend their money. Congress has plenary power to spend w8 limitations$ %+isted in rule& !tates can be coerced with money...they do it all the time. D. CONGRESS*S POWERS UNDER THE POST7CIVIL WAR AMENDMENTS @ther powers granted to Congress under the Constitution are foreign policy and domestic affairs. 11 of ((

 policy$

/ &e#%$ ( !#c' Congress has several important powers with regard to foreign to ratify treaties to regulate foreign commerce to define and punish Dpiracies and felonies committed on the high !eas and @ffenses against the law of .ations to declare war to grant letters of mar"ue and reprisal to raise, support, and regulate an army and a navy to regulate immigration T&eat#es ? 7he Constitution gives the president authority, Dby and with the Advice and Consent of the !enate, to make treaties provided two thirds of the !enators present concur.E ? ;f there is a conflict between a treaty and a federal statute, the one adopted last in time controls. Q Executive agreements$ agreements between the president and the head of a foreign country that are effective when signed by the president and the head of the foreign nation.

Wa& P 1e&s Congressional authority in the area of war powers, there are two distinct "uestions$ 1& Ghat constitutes declaration of war9 '& Ghen may the president use American troops in hostilities without congressional approval9 .either of these "uestions ever has been clearly answered by the !upreme Court. " 0est#c a//a#&s Congress is accorded 0 other ma#or powers over domestic affairs. . Congress can establish Duniform +aws on the sub#ect of /ankruptcies throughout the ,.!.E . Congress has the power to Dcoin 6oney, regulate the Ralue thereof, and of foreign Coin, and fix the !tandard of Geights and 6easuresE and Dto provide for the punishment of counterfeiting the '2 of ((

!ecurities and current Coin of the ,.!.E . Congress has the authority Dto establish ost @ffices and ost Joads.E . Congress has the power Dto promote the rogress of !cience and useful Arts, by securing for limited 7imes to Authors and ;nventors the exclusive Jight to their respective Gritings and )iscoveries.E %Copyrights and atents& . Congress has the authority Dto constitute 7ribunals inferior to the !upreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.E . Congress has the power to create a Ddistrict to be the !eat of =overnment of the ,.!.E to govern that area, and Dto exercise like Authority over all laces purchased by the Consent of the +egislature of the !tate in which the !ame shall be, for the Erection of Horts, 6agaKines, Arsenals, dockAyards, and other needful /uildingsE ;.e. Congress granted authority to create ).C. and govern it. . Congress has the authority to approve interstate compacts. CONGRESS*S POWERS UNDER THE RECONSTRUCTION ERA AMENDMENTS After the Civil Gar, three important amendments were added to the Constitution. . 1(th$ prohibition of slavery. !ection ' . 1*th$ everyone born or naturaliKed in ,.!. are citiKens, and no state can abridge the privileges, nor be deprived of life, liberty or property without due process, or deny a person e"ual protection of the laws. !ection B Congress shall have power by appropriate legislation . 1Bth$ right to vote.

' ma#or "uestions arise concerning the scope of this power. 6ay Congress regulate private conduct under this authority, or is Congress limited to regulating only government actions9 Ghat is the scope of Congress4 power under these amendments9 Ma' C $%&ess Re%u!ate P&#6ate C $"uct+

Civil Rights Cases %1--(& H !"#$%: Congress, pursuant to C ' of the 1(th amendment and C B of the 1*th '1 of ((

amendment may regulate only state and local government actions, not private conduct. C ' of the 1(th amendment Congress shall have power to enforce this article by appropriate legislation C B of the 1*th amendment

by appropriate legislation, the provisions of this article.

7he Congress shall have power to enforce,

Civil Rights Cases %1-0B& /roadly prohibited private racial discrimination by hotels, restaurants, transportation, and other public accommodations. Civil Jights Act of 1-0B provided that all persons were entitled to full and e"ual en#oyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances, on land or water, theaters, and other places of public amusement< H !"#$%: Act was unconstitutional and adopted a restrictive view as to the power of Congress to use these provisions to regulate private behavior. E Court said that Congress4 power was limited to ensuring and end to slavery< Congress could not use this power to eliminate discrimination. ;t went beyond the scope of merely ending slavery. Q Court also said that the 1*th amendment only applies to government action and that therefore it cannot be used by Congress to regulate private behavior. NOTES: .ow it is well established that the 1(th amendment may prohibit private discrimination. P& )!e0 t.#s #s $ t 1.at t.e -At. a0e$"0e$t sa#" D#" a!! / t.ese statutes &e%u!ate (&#6ate c $"uct+ Ca$ C F )e use" t e?te$" t.e sc (e / &#%.ts )' C $%&ess+ Ca$ C $%&ess $!' (& 6#"e &e0e"#es / & &#%.ts $!' (& 6#"e" )' t.e c u&ts....a$" $ t )e a)!e t c&eate a""#t# $a! &#%.ts+ United tates v. Morrison %'222& %Assault Rictim& Facts: An alleged rape victim sought to sue her accused attackers under the federal Riolence Against Gomen Act %Act or RAGA&. 7he accused asserts that RAGA is an unconstitutional exercise of congressional authority. 7he case involved a suit brought by a woman who allegedly was raped by football players at RA 7ech< the defendants were not criminally prosecuted and ultimately avoided even university discipline. Issue: )oes the 1*th Amendment provide Congress the authority to regulate the activities of private individuals9 .@ Ghat is the meaning of the section B in 1*th amendment9 Court !tated that a literal meaning of the amendment only applies to state action. '' of ((

H !"#$%: 7he law exceeded the scope of the commerce power because Congress cannot regulate nonAeconomic activity based on a cumulative impact on interstate commerce. Ru!e: Congress4s authority to regulate under the 1*th Amendment extends only to state activity, not activities of private individuals. NOTES: etitioners complaint can be sustained neither under the Commerce Clause nor under C B of the 1*th amendment. !he would have to seek relief under the state of RA. ;n Morrison the !upreme Court expressly reaffirmed the Civil Jights Cases. Case met with no opposition...why9 +imitation on federal government and a vindication of !tates4 rights. );!!E.7 .@7E!$ Ghy cant congress provide a remedy against private actors9 /ecause those private actors did not violate the Constitution. 2. W.at #s t.e Sc (e / C $%&ess*s P 1e&+ @ne approach is narrow and accords Congress only authority to prevent or provide remedies for violations of rights recogniKed by the !upreme Court< under this view, Congress cannot expand the scope of rights or provide additional rights. %!een as solely the Court4s role to decide the rights protected under the Constitution< Congress4 role is limited to enacting laws to prevent and remedy violations.& !econd view also accords Congress authority to interpret the 1*th amendment to expand the scope of rights or even to create new rights. ,nder this view, Congress, by statute, may create rights where the Court has not found them in the Constitution, but Congress cannot dilute or diminish constitutional rights. %!ee both Congress and the Court as having authority to recogniKe and rights under the Constitution.& "at3enbach v. Morgan %1155& Facts: .ew :ork voters are challenging federal law prohibiting .ew :ork from enforcing its English literacy voting re"uirement.
!ection *%e& of the Roting Jights Act of 115B provided that no person who has completed 5th grade in a uerto Jican school, where instruction was in !panish, shall be denied the right to vote due to his or her inability to read or write English. A .ew :ork statute re"uired that voters be literate in English. 7his section of the Act was designed to enfranchise several hundred thousand people that migrated to .: from uerto Jico, and allow them to vote.

7here are two different views as to the scope of Congress4s power under the postACivil Gar Amendments and particularly C B of the 1*th amendment.

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Jegistered voter filed suit challenging the constitutionality of the Act that allowed the Jicans to vote

uerto

Issue: )oes the 1*th Amendment authoriKe Congress to prohibit enforcement of state laws found to abrogate guaranteed civil rights, regardless of whether the state law is unconstitutional under some independent constitutional provision9 :E! Ru!e: !ection B of the 1*th Amendment authoriKes Congress to enact remedial legislation prohibiting enforcement of state laws found to abrogate civil rights, even though such state laws are not unconstitutional. Case V ca)u!a&': ro tanto$ as far as it lasts or goes. NOTES: Court accorded Congress broad authority under C B of the 1*th amend. Q .ationalist perspective !trange description of Congress4s power under the 1*th amendment. C B of the 1*th Amendment two conflicting viewpoints...)oes Congress have the authority9 1st "uestion in the above case ;s it Constitutional9 'nd "uestion is the !upremacy Clause of the ,.!. Constitution9 !tate statute deemed unconstitutional b8c it conflicts with the Constitution. +ast paragraph on pg. 11'... D/y including C B the draftsmen sought to grant to Congress, by a specific provision applicable to the 1*th amendment, the same...E City o1 -oerne v. 0lores %1110& Ndelegates the scope of Congressional powerO Facts: Hlores % &, after the city of /oerne %)& denied a permit to expand the church, is suing under the Jeligious Hreedom Jestoration Act %JHJA&. JHJA prohibits government from substantially burdening a persons exercise of religion even if the burden results from a rule of %e$e&a! a((!#ca)#!#t' unless the government can demonstrate the burden 1& is in furtherance of a compelling governmental interest and '& is the least restrictive means of furthering that compelling governmental interest. Issue: )oes C B of the 1*th Amendment allow Congress to regulate state and8or local activities in a manner that defines the substantive scope of constitutional guarantees9 .@ Ghether JHJA can be considered enforcement legislation under section B of the 1* th amendment9 H !"#$%: Congress under C B of the 1*th amend. may not create new rights or expand the scope of rights< rather Congress is limited to laws that prevent or remedy violations of rights recogniKed by the !upreme Court, and these must be narrowly tailored Q DproportionateE '* of ((

and DcongruentE Q to the constitutional violation. Ru!e: !ection B of the 1*th Amendment gives Congress the power to enact laws as remedial %affording a remedy< intending to correct or improve& measures and to prevent constitutional violations, but does not allow Congress to define the substantive %creates, defines, and regulates rights, as distinguished from the part which prescribes the remedies and the procedure for the enforcement of rights& scope of constitutional guarantees. Case V ca)u!a&': Jatio decidendi$ the rule of law that a court bases its decision on in a particular case. NOTES: the Court clearly chose to limit Congress4s power under C B. Q the Court declared the Jeligious Hreedom Jestoration Act unconstitutional. Q Congress4s power under C B extends only to enforcing the provisions of the 1*th amendment. %+egislation which alters the meaning of the Hree Exercise Clause cannot be said to be enforcing the Clause. Congress has been given the power to Denforce,E not the power to determine what constitutes a constitutional violation. Congress4s powers are &e0e"#a!.& Q 7he Court alone determines the meaning of substantive constitutional provisions< Congress is limited to enacting laws to enforce these rights. Conflicts with the separation of powers
Congress does not enforce a constitutional right by changing what the right is. ;t has been given the power to enforce, not the power to determine what constitutes a constitutional violation. the JHJA contradicts vital principals necessary to maintain the separation of powers and federal balance.

+aw of general applicabilityapplies to everyone. Su)sta$t#6e a$" te?tua! (& 6#s# $s ;n the above case, Congress established a new right. Congress may use C B to remedy. 7his is a change in the interpretation of Mor(an. Ghy is this case important9$ it discriminates against religion9 AntiAreligion9 AntiAseparation of powers9 @r does it enforce the long holding of separation of powers9 Court has limited Congress4 power to enact Jeligious Jestoration Act. Court did not find the need to expand the substantive rights. E. CONGRESS*S POWER TO AUTHORIGE SUITS AGAINST STATE GOVERNMENTS -. ,ac2%& u$" I00u$#t' $ t.e E!e6e$t. A0e$"0e$t a$" State S 6e&e#%$

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11th Amendment$ 7he Xudicial power of the ,nited !tates shall not be construed to extend to any suit in law or e"uity, commenced or prosecuted against one of the ,nited !tates by CitiKens of another !tate, or by CitiKens or !ub#ects of any foreign state.E Nprobably the most difficult to understandO Can now sue !tate of +a. ;n tort and Is. 2. C $%&ess*s P 1e& t Aut. &#He Su#ts A%a#$st State G 6e&$0e$ts T.e --t. A0e$"0e$t a$" C $%&ess*s P 1e& t O6e&&#"e It 70it3+atric/ v. -it3er %1105& Facts: Congress amended 7itle R;; of the Civil Jights Act to allow a federal cause of action against state governments for employment discrimination. 7he provision is being challenged under the 11th Amendment. Issue: 6ay Congress use its enforcement powers under C B of the 1*th Amendment to provide a federal cause of action against a state official or government in spite of the 11th Amendment4s grant of sovereign immunity to the !tate9
rinciple that the sovereign cannot be sued in its own courts or in any other court without its consent and permission; a principle which applies with full force to the several states of the Union. 49 Am J1st States 91. !he principle that the United States is immune from suit e"cept where it consents thereto# as by a statute such as the $ederal !ort %laims Act. &' US% 1491 et se(.; &) Am J&d %ts 1*&. !he principle that a sovereign state is bound to respect the independence of every other sovereign state# so that the courts of one country will not sit in +udgment on the acts of the government of another# done within its own territory.

H !"#$%: :E!. Ru!e: .o constitutional provision prohibits Congress from providing for a private cause of action in the federal courts against a state government as a means of enforcing the guarantees of the 1*th Amendment. A$a!'s#s$ 3ere the Court construes two constitutional amendments, seemingly at odds with each other, in a way that preserves each, as much as possible, in their independent spheres. 7he logic behind the Court4s holding is that in order for full effect to be given to the 1*th amendment, which was adopted by the people, it necessarily must control the 11th amendment4s grant of sovereign immunity to the !tates. @therwise, a very important tool in the 1*th amendment4s arsenal of enforcement would be rendered useless, marginaliKing the Amendment itself. ;mplicit in the people4s approval of the 1*th amendment is an understanding that its enforcement must control any seemingly contradictory laws, including the 11th amendment. 7he Court4s interpretation is analogous to the canon of statutory interpretation holding that statutes should be construed, if at all possible, in a manner that avoids constitutional conflicts. '5 of ((

C B creates an exception to the 11th amendment Ncan override !overeign ;mmunity because it was passed after the 11th amendmentO< doesn4t overrule it< both are valid. AAA * types of scrutiny$ 1. !trict scrutiny Q means strictly apply< it important to and must be a compelling state interest %e.g., marriage, race& '. Jational basis Q rationally related to a legitimate government function %most things tend to be rational basis& %e.g., gender, age& (. ;ntermediate scrutiny %a.k.a. Drational basis with biteE& *. .o scrutiny ,ennsylvania v. Union Gas Co. Congress may override the 11th Amendment and authoriKe suits against state governments pursuant to any of its constitutional powers, so long as the law in its text expressly authoriKes such suits. ;ssues$ )oes the Comprehensive Environmental Jesponse, Compensation, and +iability Act of 11-2 as amended by the !uperfund Amendments and JeauthoriKation Act of 11-5 %!AJA& authoriKe suits against state governments in federal court9 :E! ;f so, does Congress, when legislating pursuant to the Commerce clause, have the authority to create such state government liability9 :E! e$inole (ribe o1 0lorida v. 0lorida %1115& N;ndian =aming Jegulatory ActO Facts: Congress passed a law allowing states to be sued for failing to negotiate in good faith when ;ndian tribes regarding the formation of gaming compacts between those parties. 7he law is challenged as a violation of the 11th Amendment4s sovereign immunity. Issue: 6ay Congress abrogate the !tate4s sovereign immunity under the 11th Amendment in an effort to enforce constitutional provisions falling outside the scope of the 1*th Amendment9 .@ Ru!e: Congress may not, outside enforcement of 1*th Amendment =uarantees, authoriKe federal lawsuits against states in abrogation of the 11th Amendment4s guarantee of state sovereign immunity. Case V ca)u!a&': !overeign immunity$ a government4s immunity from being sub#ect to suit, whether by its own citiKens in its own courts, or in federal court, or otherwise. A$a!'s#s$ 7he Court holds in S%/inol% that Congress may not vest federal courts with #urisdiction over federal "uestion suits against state governments, regardless of whether the plaintiff is from the wouldAbeAdefendantA!tate or some other state or nation. 7he rule is, of course, "ualified by '0 of ((

Congress4 authority to enforce the substantive guarantees of the 1*th amendment, as set forth in 0i'&*a'ric,. 3ow does this ruling #ibe with the text of the 11th amendment9 ;n plain English, the 11th amendment means that Congress may not vest #urisdiction in the federal courts over suits against !tates brought by citiKens of a different state, or of another country. 7he amendment thus does not address suits brought against a !tate by one of its own citiKens. 7he Court4s ruling, insofar as it affects suits against states by their own citiKens, thus has no support in the text of the 11th amendment. .@7E!$ A following this case, it was clear that Congress may authoriKe suits against state government only when it is acting pursuant to section B of the Hourteenth Amendment
J@CE),JA+ 3;!7@J:$ A ;ndian tribe filed suit against Hlorida to compel negotiations under the ;ndian =aming Jegulatory Act A Court denied Hlorida4s motion to dismiss A !tate appealed HAC7!$ A ;ndian =aming Jegulatory Act allows an ;ndian tribe to conduct certain gaming activities only in conformance with a valid compact between the tribe and the !tate in which the gaming activities are located A !tates %under the Act& have a duty to negotiate in good faith with a tribe toward the formation of a compact A 7ribe %under Act& may sue a !tate in federal court in order to compel the !tate to do #ust that A 7he !eminoles sued Hlorida for refusing to enter those negotiations for inclusion of certain gaming activities in a tribalAstate compact, violating good faith negotiations A Hlorida moved to dismiss on the ground that it violated Hlorida4s sovereign immunity from suit in a federal court o )istrict Court denied, but Court of Appeals reversed, saying that the ;ndian Commerce Clause did not grant Congress the power to abrogate the !tates4 Eleventh Amendment immunity o Also said that an ;ndian tribe is not allowed to force goodAfaith negotiations by suing a !tate or its governor ;!!,E$ A Gas the Act in "uestion passed pursuant to a constitutional provision granting Congress power to abrogate9 3@+);.=$ A Affirmed< )ismissed for lack of #urisdiction A 7he ;ndian Commerce Clause does not grant Congress the power to abrogate states4 immunity. A @verruled P%nnsylvania v. $nion Gas J,+E$ A A Congress lacks authority under the ;ndian Commerce Clause to abrogate the states4 Eleventh Amendment immunity Congress4 intent to abrogate the !tates4 immunity from suit must be obvious from a Dclear legislative statement.E

A.A+:!;!$ A Even when the Constitution vests in Congress complete lawAmaking authority over a particular area, the Eleventh Amendment prevents Congressional authoriKation of suits by private parties against unconsenting !tates A 7he Eleventh Amendment restricts the #udicial power under Article ;;;, and Article ; cannot be used to circumvent the constitutional limitations placed upon federal #urisdiction

0lorida ,re+aid ,ostsecondary !ducation !)+ense -oard v. College avings -an/ and United tates %1111& Ninvolve the authority of Congress to authoriKe suits against state governmentsO Facts: Congress enacted legislation providing a right to sue states in federal court over patent infringement. 7he legislation is challenged as beyond Congress4 1*th Amendment '- of ((

enforcement authority. College !avings /ank marketed and sold certificates of deposits to finance future college expenses. Hlorida repaid, entity created by the state of Hlorida, administered similar tuition prepayment contracts available to H+ residents and their children. College !avings claims Hlorida repaid directly and indirectly infringed College !aving4s patent. Issue: 6ay Congress properly use its 1*th Amendment enforcement authority to abrogate %repeal& the !tates4 sovereign immunity by providing a right to sue !tates in federal court for patent infringement9 H !"#$%: .@. Ru!e: Hor Congress4 abrogation of !tate sovereignty pursuant to the 1*th Amendment to be constitutional, it must$ 1& show a history or pattern of unconstitutional activity by !tate giving rise to a need for remedial or preventive federal regulation, and ;n enacting the atent Jemedy Act, Congress identified no pattern of patent infringement by the !tates, let alone a pattern of constitutional violations. At most Congress heard testimony that patent infringement by !tates might increase in the future. ;nterfering with a patent owners right to exclude others, does not by itself violate the Constitution. @nly when the states provide no rememdy or inade"uate remedies to in#ured patent owners '& limit the scope of the remedy, making it proportionate to the constitutional violations giving rise to the need for enforcement. Congress barely considered the availability of state remedies for patent infringement Case V ca)u!a&': Copyright$ an exclusive property right in any original work of an author allowing the owner to control the dissemination of the work. atent$ an exclusive property right to an invention allowing the owner to control the use and8or disposition of the invention for a set number of years. A$a!'s#s: ;n previous cases testing the limits of Congress4 C B authority to enforce the substantive provisions of the 1*th amendment, the Court extended deference to Congressional findings of constitutional violations #ustifying an abrogation of the !tates4 11th amendment sovereign immunity. :et here, such deference is lacking. Ghat explains this shift9 @ne may assert that there has not been a shift< that in Ci'y o) .o%rn% the Court set forth a congruence re"uirement mandating that the scope of congressional abrogation of !tate sovereignty be in proportion to the evils being remedied, thus effectively re"uiring Congress to make findings reflecting a need for remedial measures in an in"uiry separate from whether there are, or have been, persistent or potential constitutional violations. Congress did, as the dissent recogniKes, find #ustification for '1 of ((

the Act4s C B enforcement provisions. Ghile it is certainly proper as a matter of stare decisis, flowing from Ci'y o) .o%rn%, to re"uire proportionality, re"uiring a panoply of congressional findings reflecting widespread due process abuse by the !tates finds little if any support in the Court4s #urisprudence. NOTES: 7he Court clearly chose to limit Congress4s power under C B. "i$el v. 0lorida -oard o1 Regents %'222& Ninvolve the authority of Congress to authoriKe suits against state governmentsO Facts: Congress extended coverage of federal age discrimination laws to the !tates using its C B authority to enforce the 1*th Amendment. 7he extension is challenged as outside the scope of this authority. Claim was brought to seek money damages for their state employers alleged discrimination on the basis of age. Issue: 6ay Congress abrogate the !tates4 sovereign immunity pursuant to C ( of the 1*th Amendment absent a sufficient finding of state constitutional violations to be remedied by the congressional enactment9 Ghether the A)EA contains a clear statement of Congress4s intent to abrogate the !tate4s 11th amendment immunity and if so whether the A)EA is a proper exercise of Congress4s constitutional authority9 H !"#$%: .@. :es there is a clear statement /,7 abrogation exceeded Congress4s authority Ru!e: ;n order for Congressional legislation abrogating !tate sovereign immunity pursuant to C B of the 1*th Amendment to be valid, its substantive re"uirements must be congruent with and proportionate to the unconstitutional actions of the !tates. Case V ca)u!a&': Jational basis$ the re"uirement under the E"ual rotection Clause that a government classification bear some reasonable relation to the legitimate end sought in applying the classification at issue. NOTES: the Court clearly chose to limit Congress4 power under C B. Age )iscrimination in Employment act %1150& makes it unlawful for an employer, including !tate, to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual. !tates may discriminate on the basis of age without offending the 1* th amendment if the age classification in "uestion is rationally related to a legitimate state interest.

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-oard o1 (rustees& University o1 Alaba$a v. Garrett Facts: =arrett was the director of nursing at the univ. of Alabama. and was later diagnosed with breast cancer. 7reatments re"uired =arret to take substantial leave from work. ,pon returning to work =arretts supervisor informed her that she would have to give up her director position. 7hus =arret received a transfer and accepted a lower paying position A)A prohibits certain employers including !tates from discriminating against a "ualified individual with a disability because of the disability of such individual in regard to #ob application procedures, the hiring, advancement, or discharge of employees, employee compensation, #ob training, and other terms, conditions, and privileges of employment. 7he act re"uires employers to make reasonable accommodations to the known physical or mental limitations of an otherwise "ualified individual with a disability who is an applicant or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the employers business. Issue: Ghether employees of the state of Alabama may recover money damages by reason of the state4s failure to comply with provisions of title ; of the A)A of 11129 Ghether Congress acted within its constitutional authority by sub#ecting the !tates to suits in federal court for money damages under the A)A9 Ghether the states can be sub#ected to liability in suits brought not by the Hederal =overnment but by private persons seeking to collect moneys from the state treasury without the consent of the state. H !"#$%: N ADA can apply to states only to the extent that the statute is appropriate %section& B legislation. Me$t# $e" Cases Cl%burn% v. Cl%burn% !tates are not re"uired by the 1*th amendment to make special accommodations for the disabled, so long as their actions towards such individuals are rational. Reas $#$%: ;n order to authoriKe private individuals to recover money damages against the !tates, there must be a pattern of discrimination by the states which violates the 1*th amendment. CONGRESS*S GREATER AUTHORITY TO LEGISLATE CONCERNING TYPES OF DISCRIMINATION AND RIGHTS THAT RECEIVE HEIGHTENED SCRUTINY !upreme Court uses heightened scrutiny for some types of discrimination and for fundamental rights. Ex. )iscrimination based on race or infringement of fundamental rights must meet strict scrutiny, which means it must be necessary to achieve a compelling government purpose. !ome types of discrimination must meet intermediate scrutiny which means they must be substantially (1 of ((

related to achieving a substantial government purpose. Nevada De+t. o1 Hu$an Resources v. Hibbs Facts: FMLA IFa0#!' a$" Me"#ca! Lea6e Act / -448J entitled eligible employees to take up to 1' work weeks of unpaid leave annually for any of several reasons, including the onset of a serious heath condition in an employee4s spouse, child, or parent. Issue: Ghether Congress acted within its constitutional authority when it sought to abrogate the !tate4s immunity for purposes of the H6+A4s family leave provision. H !"#$%: YES

Reas $#$%: by setting a minimum standard of family leave for all eligible employees, irrespective of gender, the H6+A attacks the formerly state sanctioned stereotype that only women are responsible for family caregiving, thereby reducing employers incentives to engage in discrimination by basing hiring and promotion decisions on stereotypes. Ru!e: (ennessee v. Lane Facts: 7itle ;; of the A)A provides that no "ualified individual with a disability shall by reason of such disability be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be sub#ected to discrimination by any such entity. %public entity is to include state and local govts and their agents and instrumentalities A)A )orbids discri/ina'ion a(ains' *%rsons -i'h disabili'i%s in Ti'l% I%/*loy/%n' Ti'l% II*ublic s%rvic%s1 *ro(ra/s1 and ac'ivi'i%s Ti'l% III *ublic acco//oda'ions +ane and Xones filed action against the state of 7. alleging past and ongoing violations of 7itle ;;. /oth are paraplegics and use wheelchairs. 7hey claim they were denied access to and the services of the state court system by reason of their disabilities. +ane claims he had to crawl up ' flights of stairs to answer to charges. ,pon being presented with the obstacle again he refused. 7hus he was arrested and #ailed for failure to appear. Xones was a court reporter who was unable to gain access to certain courthouses. 7hus she lost work and the opportunity to participate in the #udicial process. Issue: Ghether 7itle ;; exceeds Congress4s power under section B of the 1*th amendment9 7E!7$ (' of ((

Ghether Congress une"uivocally expressed its intent to abrogate the immunity9 Ghether Congress acted pursuant to a valid grant of constitutional authority9 Reas $#$%: )ue process clause re"uires states to afford certain civil litigants an opportunity to be heard by removing obstacles to their full participation in #udicial proceedings. .otes to Consider 7he appropriateness of the remedy depends on the gravity of the harm it seeks to prevent. CONGRESS*S POWER TO AUTHORIGE SUITS AGAINST GOVERNMENTS IN STATE COURTS Alden v. Maine %1111& Facts: 7wo probation officers sued their state employer in state court for violating federal employment laws. 7he !tate raises the state sovereign immunity defense. Issue: )oes any of Congress4 enumerated powers under Article ; authoriKe it to abrogate the !tates4 sovereign immunity from suits in its own courts9 H !"#$%: .@ Ru!e: Congress does not possess the authority, under its Article ; powers, to abrogate the !tates4 sovereign immunity from suits in its own state courts. Congress cant authoriKe suits against state governments in state court. !tate governments may not be sued in state court, even on federal claims without their consent. Case V ca)u!a&': 6unicipal corporation$ a political subdivision of a !tate, i.e. a city, town, etc., formed by state charter, having the power of selfAgovernance. Jatification$ process by which the Constitution and amendments thereto are vested with legal force< the Constitution sets forth the manners in which amendments may be ratified. !tates can waive their 11th amendment immunity, but it must be explicitly waived. g 1' supplement

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