To Uphold A Federal Law

To uphold a federal law
1) Supremacy Clause
2) Any enumerated power of Congress
3) Federal Property Law
To uphold a state law
1) Police Power
2) Dormant Commerce Clause
Foreign Affairs
1) President does not have plenary power to conduct foreign affairs – the power is not exclusive, it
is shared with Congress
2) Sources of Power:
a) #1 Source of Foreign Affairs power is as Commander-in-Chief
b) Treaty Power
c) Congressional Authorization – Congress may delegate portions of its commerce power to
the President and he/she may then go out and conduct foreign affairs accordingly
3) Heirarchy of laws:
a) Constitution
b) Treaty AND an Act of Congress
i) If there is a conflict between the two of them, the last-in-time will prevail
c) Executive Agreement – an informal means by which the President may conduct day-to-day
economic and business transactions with foreign countries (unlike a treaty, Senate
consent/ratification is not required) AND Executive Order
d) State Law
Doctrine of Enumerated Powers
1) Federal Government only has that authority which the Constitution confers upon it – both
express and implied powers
2) All powers not belonging to the Federal Government are reserved to the states under the 10 th
Amendment
3) The 10th Amendment is the home of the police power. Police Power protects any health, safety,
welfare, morals or aesthetics interest
a) Apply rational basis language – rational basis implies police power
b) “Constitutional because it is a ‘reasonable’ regulation.” or “Constitutional because it furthers
a ‘legitimate’ interest.”
4) Article 1, Section 8 is the list of the enumerated powers of Congress:
a) Commerce Power
b) Taxing and Spending Power
c) War Power
d) Postal Power
e) Power to legislate for DC
f) Copyright Power
g) Patent Power
h) Bankruptcy power
i) Power to Coin Money
j) Immigration and Naturalization Power
5) These powers are magnified by the ‘Necessary and Proper Clause’
a) Not on its own a valid source of power
b) It carries into execution one of the enumerated powers
Commerce Power
1) Affectation doctrine – NLRB v. Jones-Laughlin Steel - Congress may regulate any activity which
has ‘a substantial economic effect’ on the stream of interstate commerce
a) Congress can regulate for non-commercial reasons as well:
i) Social Welfare Measures
ii) Health Regulations
iii) Civil Rights
A) Congress can regulate restaurants for discriminatory practices
B) Congress can regulate hotels for discriminatory practices
b) Limitation: US v. Lopez – Congress passed a law that made it a federal crime to possess a
firearm in a school zone. The Supreme Court said Congress went BEYOND its commerce
power. The link between gun possession in the school and interstate commerce was held to
be too tenuous to be a ‘substantial effect’. Because if it did, there would be effectively no
limit to Congress’ commerce power. It would be instead, in effect, a general police power.
2) Cumulative impact doctrine
a) Wicker v. Fillburn – Louisiana wheat farmer who grew wheat only for his own personal
consumption, none of it left the state. The Supreme Court ruled that even an entirely intra-
state activity has a ‘cumulative impact’ on interstate commerce and ruled that Federal
Commerce Clause powers applied here.
th
10 Amendment (weak limit on commerce power, not too strong)
1) Powers not delegated to the federal government are reserved for the states
2) Garcia case – Federal statute that established minimum wage and overtime provisions that
applied to all businesses of a certain size. No exemptions given to state employees. State argues
that the 10th Amendment would preclude Congress from passing this law. Supreme Court held
that the regulation was constitutional within the commerce power and the 10 th Amendment will
not invalidate it
3) New York v. United States – Congress passed a federal law that said the state of New York must
pass legislation to arrange for the disposal of toxic waste generated within its borders or else be
deemed to ‘take title’ to the waste and be liable for damages. The 10 th Amendment DOES
prevent Congress from interfering in certain ways in state’s lawmaking processes. Congress may
not commandeer the states to enact or enforce a federal regulatory program.
Taxing and Spending Power
Dormant Commerce Clause

State regulation of interstate commerce is valid if:
1) Non-Discriminatory
a) State may act as a market participant, not as a market regulator
b) Purposeful discrimination is automatically struck down
c) What you’re likely to see is a legitimate intent but discriminatory impact
i) If that is the case, then it must be the least restrictive means
ii) New Jersey v. Philadelphia – This NJ law is unconstitutional because it is not the
least restrictive means possible (could move the dump sites, make them get a
license, charge a fee, etc.)
iii) EXCEPTION: Rieves v. Stake – (market participant doctrine – state may
discriminate without violating the dormant commerce clause) – state
discriminated but it used its own funds to create the institution. Court ruled it
may then give preference to local hiring and give subsidies, etc.
2) No undue burden on interstate commerce
a) South Carolina v. Barnwell – imposed width restrictions on trucks. State interest was police
power (aka safety interests, South Carolina roads were narrow). In this case, the safety
interests were held to outweigh the burdens on interstate commerce and the law was
upheld.
b) Illinois – rounded mudguards – truckers were going to have to change their mudguards to
do business in Illinois. Court said the safety benefit was marginal so the burden outweighed
the benefit and ruled the law unconstitutional.
Article 4 Privileges and Immunities Clause (Comedy Clause)

1) Prevents one state from discriminating against citizens of another state regarding basic
economic rights and activities
a) Tumor v. Whitsell – South Carolina required $25 for a resident to acquire commercial shrimp
fishermen license, while $2500 for a non-resident. This was a violation of the Article 4 Clause
and was ruled unconstitutional
b) Baldwin v. Montana Fish & Game – State of Montana charged residents $9 for a recreational
hunting license. Out-of-staters were charged $225 for the same license. Law upheld because
this was a RECREATIONAL use, not a COMMERCIAL use like Tumor.
c) Peiper v. New Hampshire – Peiper lived in Vermont, resident of Vermont but wanted to take
the NH Bar Exam. NH required a 6-month residency period. Souter said this NH law was
discriminating against citizens regarding a basic right or liberty (the right to take a Bar Exam)
and violated the Article 4 Clause.
2) If Article 4 is going to be the correct answer, look for economic discrimination against citizens or
residents. THEN, it is a viable answer choice. Most of the time, however, economic
discrimination is going to be a Commerce Clause issue. Neither corporations nor aliens are
deemed citizens for Privileges and Immunities purposes.
State Action (procedural hurdle)
State Action is a threshold requirement of governmental conduct which must be satisfied before private
discrimination can be restricted under the 1 st, 14th and 15th Amendments
1) Situation where we have a private individual who is discriminating in some way and a plaintiff is
trying to restrict this individual from acting in this manner
2) We must show that there is some connection, some nexus, some link between that private actor
and the government
3) State Action is not required by the 13 th Amendment which prohibits any badge or incident of
slavery or involuntary servitude
4) Trend of the Court ever since the Burger Court and the Renquist Court is to narrow the scope of
state action (to allow the individual to discriminate)
5) Three main areas of state action
a) Public Function: Private entity performing activities traditionally and exclusively performed
by the Government
i) Classic Example: Company Town. If the company discriminates against any person in
that town, the 14th Amendment applies
ii) Not many company towns left
iii) No Public function for utility company operating under heavy state regulation
b) Significant state involvement/entanglement: Symbiotic relationship between the state and
the private actor
i) Public School – agency of the state
ii) Burton v. Wilmington – Parking Authority – City built a parking garage and in that
garage was a restaurant that was discriminating. Yes, there is state action so equal
protection clause can be applied because the city played a significant role in the
success of the business (symbiotic relationship).
iii) Private school purchases text books from the state – enough of a connection/nexus
to constitute state involvement to constitute state action
iv) Granting of a liquor license on its own is NOT a significant enough connection to
constitute significant state involvement
v) Private school which is merely licensed by the state is NOT enough to constitute
state involvement
c) Encourages or facilitates acts of private discrimination - Shelly v. Kramer – judicial
enforcement of racially-discriminatory covenant is not allowed because that would amount
to state action and would violate the Equal Protection Clause of the 14 th Amendment
d)

To Uphold A Federal Law

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What are the main sources of power for conducting foreign affairs?

What are the main limitations on Congress' power under the Commerce Clause?

To uphold a federal law

Dormant Commerce Clause

Article 4 Privileges and Immunities Clause (Comedy Clause)

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