LAW 531-001 – Constitutional Law I


Constitutional issues should be assessed by either the law of nature or the constitutional framework.

Framework questions are assessed using the text, original intent, and precedence.

States are not sovereign in the sense of nation states.

Scrutiny
Minimal Scrutiny

Under minimal scrutiny, the challenger has the burden of proving that the law is not rationally related to a legitimate government objective.

Intermediate Scrutiny

Under intermediate scrutiny, the government has the burden of proving that the actual purpose of the law is important and that the law is substantially related to the accomplishment of that purpose.

Strict Scrutiny

Under strict scrutiny, the government has the burden of proving that the law is necessary to accomplish a compelling government objective.

Strict scrutiny is usually only applied when a fundamental due process right is violated or when a decision is based on race.

Standing

Standing issues generally comprise:

  • Case and controversy
    • Personal, actual, or imminent injury in fact
    • Caused by or fairly traceable to the defendant's action complained of
    • Redressable by the courts
  • Combination of prudential and constitutional concerns
  • Constitutional requirements
    • Injury
    • Causation
    • Redressability
Generalized Injury

There are two types of generalized injury, taxpayer standing and citizen standing.

Taxpayer Standing

Taxpayer standing is based on pocketbook injuries caused by the government misusing money paid by taxpayers. Taxpayer standing is generally not sufficient alone for prudential reasons, but it constitutionally sufficient if it meets the three requirements of a case in controversy.

Taxpayer Standing Table
Case Violation Government Power Type of Aid Standing?
Frothingham Violated enumerated powers Spending Money for welfare No
Flast Establishment clause Spending Money for religious schools Yes
Valley Forge Establishment clause Article IV disposal Property for Christian college No
Hein Establishment clause Spending Money for President for faith groups No
Arizona Christian School Organization Establishment clause Police powers Tax credits No
Medicare (Hypothetical) Violated enumerated powers Commerce & spending Money for retirees No?
Citizen Standing

Citizen standing is based on psychic injuries caused by the government not following the law. Citizen standing is not constitutionally valid because psychic injuries do not qualify as injuries, so Congress cannot create them.

Marshall Analysis
Commerce Clause
Marshall Approach

The Marshall analysis requires both a valid subject and object.

Subject

First, the subject of the statute must be determined. The subject of the commerce clause is "commerce" "among the several states."

Regardless of whether the subject of the statute is commerce or not, it still requires a valid object. If the subject is commerce, it must be calculated to effect a valid object, while under the Necessary and Proper Clause, the subject must be plainly adapted to the object.

Object

Then, the object of the statute must be determined and analyzed.

Marshall listed three possible objects for valid exercise of the commerce clause:

  1. To remove discriminatory trade barriers imposed on out-of-staters
  2. To promote harmonious relations among the states
  3. To preempt or remedy a state laws
Current Approach

The Marshall analysis has been largely abandoned for the Commerce Clause.

Basically go: ChampionWickardLopezRaich

The object test was removed in Champion, which instead allows any statute which is calculated to effect a police power. Now, virtually anything is a valid object under the General Welfare Clause.

Under the prohibition principle, the subject test is still used sometimes. Champion. Generally it is not required however. Wickard's substantial effect test allows any activity which in the aggregate substantially affects interstate commerce to be a valid subject matter.

Lopez tried to limit Congress' power by clarifying that Wickard required the activity to be economic, but listed three ways to get around it:

  1. Making the statute an essential part of a larger regulation of economic activity
  2. Showing some nexus to interstate commerce
  3. Develop a better legislative record showing some substantial effect on interstate commerce

Raich then loosened even the substantial effect however, saying that an actual effect need not be shown, but only a rational basis for thinking it might. This will basically never be questioned.

So, in summary: Congress must have a rational basis for finding that some economic activity in the aggregate substantially affects interstate commerce for the purpose of promoting the general welfare.

Dormant Commerce Clause
  1. Calculated to effect (not a pretext)
  2. Not prohibited
    1. Four categories for dormant commerce clause prohibition:
      1. Facial discrimination – strict scrutiny
        • Exceptions:
          1. Strict scrutiny
          2. Level playing field
          3. Public function
          4. Subsidy
          5. Market participant
          6. Congress approves state discrimination
          1. 21st Amendment (according to a minority of justices)
      2. Discriminatory purpose – strict scrutiny
      3. Discriminatory effect – balancing test (Southern Pacific)
      4. Burden on interstate commerce – balancing test (Pike)
    2. Other Constitutional prohibitions
    3. Federal statute
    4. State constitution
    5. Law of nature
Tax Clause

With the tax clause, the subject is usually assumed either a tax or a penalty.

The proper object of taxing is to raise revenue. The object of the penalty should also be analyzed to determine its object (usually to regulate something). It could still be valid if Congress has the power to regulate the matter.

Congress has the power to regulate activities, but it cannot regulate inactivity. It can tax inactivity however.

It should then actually be determined if the tax is actually a tax or is a penalty. This is done using seven factors from Sebelius:

  1. payment is made to the U.S. Treasury,
  2. amount is calculated in much the same way as income tax liability,
  3. payment provisions are included in the Tax Code,
  4. payments produce some revenue,
  5. a payment is less than the cost of insurance,
  6. the Act specifies no scienter element, and
  7. the IRS possesses only those enforcement powers that it exercises in other types of tax cases.
Spending Clause
Dormant Commerce Clause
  1. Calculated to effect (not a pretext)
  2. Not prohibited
    1. Four categories for dormant commerce clause prohibition:
      1. Facial discrimination – strict scrutiny
        • Exceptions:
          1. Strict scrutiny
          2. Level playing field
          3. Public function
          4. Subsidy
          5. Market participant
          6. Congress approves state discrimination
          1. 21st Amendment (according to a minority of justices)
      2. Discriminatory purpose – strict scrutiny
      3. Discriminatory effect – balancing test (Southern Pacific)
      4. Burden on interstate commerce – balancing test (Pike)
    2. Other Constitutional prohibitions
    3. Federal statute
    4. State constitution
    5. Law of nature
Privileges and Immunities Clause
Preemption

Congress can preempt valid state laws by passing valid federal laws first pursuant to the Supremacy Clause.

Preemption may be either express or implied.

Express Preemption

Express preemption requires explicit preemptive language in a federal law that defines the existence and scope of the preemption.

Implied Preemption

Preemption can also be implied. This can take the form of either field preemption or conflict preemption.

Field Preemption

Field Preemption occurs when federal law leaves no doubt that Congress intended to occupy an entire field.

This can be detected in several ways:

  1. The federal regulation being so pervasive to imply that Congress intended to displace state regulatory authority
  2. The federal law touches a field in which the federal interest is so dominant that the federal system is assumed to preclude enforcement of state laws on the subject
  3. The object sought to be obtained by the federal law and the character of obligations imposed by it reveal a congressional intent to fully occupy the field
Conflict Preemption

Conflict preemption can occur in two ways, impossibility and standing as an obstacle.

Impossibility Conflict Preemption

Impossibility conflict preemption occurs when compliance with both state and federal law is literally impossible.

Obstacle Conflict Preemption

Obstacle conflict preemption is when a state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."