Understanding Power Allocation between Federal and State Governments in Constitutional Law, Summaries of Civil Law

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M. Dawson,

Law attack outline

Running Themes

• Who is the sovereign? o Are the People the sovereign and they allocate power to the State and Federal government respectively? o Are the States the sovereign and they allocate power to the Federal government?
• What view of Federalism is being used? o The Federal government is an authority with broad, implied powers, with minimal limitations o The Federal government is an authority with limited, enumerated powers, with a number of limitations
• Is this a political decision for Congress or a legal decision for the Court? o How much deference does the Court owe Congress in each situation?
• Where does the authority/power being asserted derive from? o Textually? Structurally? Historical precedent?
• What principles are being embodied? o Functionalist and practical? Formalistic? Policy goals?
• Who is asserting the right/authority? o The People? The State? The Federal government? A particular branch? Judicial Review

1. Horizontal judicial review: Marbury v. Madison
2. Adequate and Independent State Grounds (Vertical) a. “Plain and clear statement” (Michigan v. Long) i. State court required to clearly and expressly state that decision based on adequate and independent state grounds b. Adequate: procedural grounds (focus on opportunity to litigate) c. Independent: state substantive grounds (whether state law was dispositive and fully supported the result) i. Not independent when:
3. State and federal rights are identical (courts will interpret state as using federal right)
4. State rights intertwined with federal law
5. Court could have, but did not, properly rely on state law d. Presumption of reviewability: state court decision fairly appears to rest primarily on federal law (or to be interwoven with federal law) and when adequacy and independence of any possible state law ground not clear from face of opinion Justiciability: must be a justiciable “case and controversy” in order for federal court to resolve the issue (derived from Art. III, power to resolve cases/controversies, and separation of powers) -- outcome usually relies heavily on the merits
6. Ask yourself: a. Who is the right’s holder? b. Who is the injured party? c. Who is the law being asserted against?
7. Standing -- constitutional and prudential considerations a. Constitutional: i. Injury in fact

1. Clinton, Powell ii. Political question: not justiciable b/c is merely a policy decision
2. Nixon
3. Advisory Opinion a. 3 policy considerations: i. To keep the courts out of the legislative process (limit court's power to deciding actual disputes) ii. Conserve judicial resources iii. Ensures that cases will be presented to the court in specific instances, NOT hypothetical legal questions b. 2 requirements: i. There must be an actual dispute between adverse litigants ii. Must be a substantial likelihood that a federal court decision in favor of a claimant will bring about some change or have some effect Commerce Clause
4. Federal Statute a. Step 1: Is there standing? b. Step 2: N+P Clause (very brief) can be read to give fed gov’t more broad implied powers c. Step 3: Gibbons Q1+ i. Gibbons Q1: does the federal statute regulate commerce?
5. Intercourse, all phases of business transactions, navigation OR a. Gibbons, Cooley, Shreveport ii. Gibbons Q2: scope of fed regulatory authority?
6. Concerns more than one state, NOT completely internal OR
7. Intrastate commerce that impacts interstate activities OR
8. All objects of interstate trade d. Step 4: answer Gibbons Qs using Lopez/Morrison i. 3 categories of interstate commerce fed gov’t can regulate (Morrison)
9. Channels of interstate commerce (used as basis for regulating local activities) a. Darby (Hammer); Heart of Atlanta; Katzenbach
10. Instrumentalities of interstate commerce (transportation and people/things moving across state lines) a. Shreveport
11. Activities that have a “substantial relationship” to interstate commerce a. Morrison; EC Knight; Laughlin; Wickard b. 4 considerations for “substantial relationship” (cases) i. Commercial/economic in nature (vs. police power)
12. Includes aggregation analysis (Wickard) ii. Jurisdictional nexus iii. Congressional findings demonstrate substantial effects

iv. Effects cannot be too attenuated e. Step 5: make initial commerce clause conclusion f. Step 6: analyze with Raich and see if conclusion changes at all i. Statutory scheme

1. It is immaterial whether activity is commercial or not, if failure to regulate commerce would undercut an interstate market then it is appropriate
2. Court split: commercial and local vs. non-commercial and local ii. Arguments in favor of upholding
3. Rational basis review: “substantial effects test” is a political judgment for Congress to make (deference)
4. Raich defines economic as production, distribution, and consumption of commodities iii. Arguments against upholding
5. Try to say statute is not a part of statutory scheme g. Three Other Considerations (last step?): i. Necessary and Proper: Art. I, Sec 8 -- “Congress has the power to make all laws which shall be necessary and proper for carrying into execution powers by this Constitution”
6. Means-ends test: means are constitutional if meant to accomplish constitutional enumerated ends (very discretionary)
7. Original intent: was intention of Founders that Congress would have reasonable range of choices to exercise enumerated powers ii. 10th Amendment: for or against depending on people or states being sovereign iii. Structural: fed gov’t could not function without it; Congress is not limited to the means in the enumeration (similar to N+P Clause)
8. State Statute -- Dormant Commerce Clause a. Step 1: Is there standing? b. Step 2: Briefly mention 11th Amendment -- suit could be barred (Ex Parte Young and Edelman exceptions) c. Step 3: Mention Cooley Compromise (overlap of state/federal regulatory power depends on subject matter being regulated) i. Quick policy: balkanization; support legitimate state interests d. Step 4: Pike Test i. Question 1: Does the state statute regulate even-handedly to effectuate a legitimate state interest (effects of which on interstate commerce are only incidental)?
9. Statute must serve legitimate purpose, BUT important part of this analysis is means by which purpose was effectuated
10. Can regulation be labeled as economic protectionism? (gives citizens preferred right over out of state consumers)
11. 2 possible outcomes: a. If fails Question 1, use Hughes strictest scrutiny test: legitimate local purpose AND no less discriminatory alternatives available (strong presumption against validity)

i. Determine federal objective and state objective ii. Can either narrowly or broadly construe the purpose iii. Intent of Congress in creating statute is key:

1. Degree of detail of the statute; statutory language; statements in legislative history; types of pre-emption often overlap 10th Amendment: if federal statute seeks to commandeer states to enact federal regulation
2. Step 1: go thru trend (i.e., pendulum swinging on how applied)
3. Step 2: Modern Test -- New York a. Federal gov’t encouraging or coercing states? (2 ways to encourage) i. Financial: 3 sources of power that allows Congress to do this
4. Congress can authorize states to impose tax
5. Taxing Power a. Has to be an incentive b. Considerations for incentive vs. mandate i. Burden on states ii. Scienter iii. Agency imposing/collecting
6. Spending Clause a. Has to maintain element of choice b. Reasonable relationship between spending and policy requirement ii. Tightening process: limiting access for non-complying states
7. Maintains ability of state officials to choose -- retains political accountability b. Consider political accountability -- need to give local officials a choice so that citizens know who to blame **Other Amendments/Topics
8. 11th Amendment** a. Step 1: Who is bringing the suit? b. Step 2: Who is the suit against? i. State -- not OK (under Hans) ii. State official when they are a substantial party in interest
9. Ex Parte Young: state officials do not have immunity b/c their illegal conduct strips them of their official capacity to act on behalf of the state so aren’t protected as officials of the state
10. Edelman: only get prospective injunctive relief against state official (no damages) iii. Municipality
11. Pennhurst: immunity extends to local gov’t when there is so much state involvement in municipality’s actions that relief in essence runs against the state c. CHECK: Did statute attempt to waive state immunity? (Seminole Tribe) i. (1) Statutory language to abrogate is clear? ii. (2) Did Congress have power to do so? (only under §5 of 14th Am., not under Commerce Clause)

1. Power to do so under Commerce Clause is minority view iii. If no to either, check to see if state official can be sued 1. 14th Amendment (Privileges and Immunities) and Bill of Rights a. Bill of Rights: does not apply to states (fundamental rights come from states, not from the Bill of Rights/fed gov’t) b. 14th Amendment: i. Privileges and Immunities: outcome -- cannot sue state under federal right b/c fundamental rights come from states
2. Only applies to “citizens” ii. Due Process: much broader protection; applies to all “persons” 2. Separation of Powers -- see cases a. Foreign affairs vs. domestic decision-making powers b. Functional vs. formalistic approach