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Federalism Review

Review session scheduled for April 22, 2011

Dave Rossi

on 22 April 2011

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Transcript of Federalism Review

Federalism Review David Rossi rossi.da@husky.neu.edu Office Hours (in the Commons)
Tuesday, 2-3pm
Wednesday, 12-1:30pm
Thursday, 3:15-4:15pm Dual
Sovereignty Commerce Clause Section §5 of the 14th Amendment Taxing and Spending Power McCulloch v. Maryland (1819) Congress has the authority to establish a national bank, and Maryland cannot tax that bank. 4 reasons why:
Historical practice
The people are sovereign, not the states
Congress is not limited to only those acts specified in the constitution
Necessary and Proper Clause, Art. 1, §8 U.S. Term Limits v. Thornton (1995) The power to add qualifications was not within the original powers of the pre-Constitution states, and the Framers intended that the Constitution be the exclusive source of qualifications for members of Congress. The Commerce Clause:
Article I, §8, Clause 3:
"Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Text of the Constitution 10th Amendment:
"The powers not delegated to the United States by the Constutiton, nor prohibited by it to the States, are reserved to the States respictively, or to the people." vs. Gibbons v. Ogden (1824) What is commerce?
Commerce "is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for that intercourse." What is "among the states?"
Among the states means "intermingled with."
That is, "commerce that concerns more States than one." What is this power?
"[It] is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than [those] prescribed in the constitution." Pre-
1937 1937-1995 Post 1995 Test United States v. E.C. Knight (1895)
The Sherman Act cannot be used to break up a monopoly in sugar refining industry as it would would constitute a regulation of manufacturing not commerce. Champion v. Ames (1903)
"The Lottery Case"
The power to regulate interstate commerce includes the ability to prohibit items from interstate commerce. Swift Co. v. United States (1905)
"stream of commerce" approach Houston East & West Texas Railway v. United States (1914)
"The Shreveport Rate Case"
Congress has a right to control all matters having a "close and substantial" relation to interstate traffic, such that the control is essential or appropriate to the security, efficiency and maintenance of interstate traffic. Hammer v. Dagenhart (1918)
"The Child Labor Case"
Congress does not have the power to control the States in their exercise of the police power over local trade and manufacture. NLRB v. Jones & Laughlin Steel Corp. (1937)
If activities, intrastate in character, have a "close and substantial" relation to interstate commerce, then Congress has the power to regulate them. United States v. Darby (1941)
"The power of Congress to regulate interstate commerce extends to the regulation through legislative action of activities intrastate which have a substantial effect on the commerce or the exercise of the Congressional power over it." Wickard v. Filburn (1942)
Court can aggregate to determine if there is a substantial effect on interstate commerce. Heart of Atlanta Hotel v. United States (1964)
Test is: (1) is it "commerce which concerns more states than one;" and (2) is there a real and substantial relation to the national interest?
Katzenbach v. McClung (1964)
Congress rationally concluded that discrimination by restaurants has a cumulative effect on interstate commerce
"The power of Congress [under the commerce clause' is broad and sweeping." United States v. Lopez (1995)
Three categories of activities Congress may regulate under its commerce power:
Channels of interstate commerce
Instrumentalities of interstate commerce
Those activities having a substantial relationship to interstate commerce, or which substantially affect interstate commerce. categories of activites that congress may regulate: US. v. Lopez, reaffirmed in U.S. v. Morrison (1) Channels of interstate Commerce Geographical routes, roads waterways
Gibbons v. Odgen Hotels
Heart of Atlanta Restaurants
Katzenbach Goods Shipped via interstate commerce
U.S. v. Darby (2) Instrumentalities of Interstate Commerce Persons or things in interstate commerce
U.S. v. Darby Eventhough the threat may come from intrastate activities
Shreveport Rate Case Destruction of aircraft or thefts from interstate shipments
Perez (3) Activities having a substantial relationship to interstate commerce or which substantially affect interstate commerce Substantial relation
Jones & Laughlin Steel To determine substantial effect you can aggregate
Wickard, Reich Congress's power to regulate is plenary. Katzenbach But is limited by: 10th Amendment
ie Hammer v. Dagenhart No indirect or remote effects on interstate commerce
ie Morrison, E.C. Knight "The Congress shall have power to enforce by appropriate legislation, the provisions of this article." Civil Rights Cases (1883) No authority under the 13th Amendment because discrimination based on color does not rise to the level of "badges and incidents of slavery." 14th Amendment only applies to governmentaction and therefore cannot be used by Congress to regulate private behavior. Harlan Dissent: Common carriers perform essentially public functions Jones v. Alfred H. Mayer Co. (1968) Congress can prohibit private discrimination in selling and leasing property under the 13th Amendment "Congress has the power under the 13th Amendment rationally to determine what are the badges and incidents of slavery, and the authority to translate that determination into effective legislation South Carolina v. Katzenbach (1966) Voting Rights Act was a valid exercise of Congressional Power because its provisions were a remedy for proven violations of the 15th Amendment. Katzenbach v. Morgan (1966)
The purpose of §5 was to give broad powers to Congress to determine what legislation is appropriate to secure guarantees of the 14th Amendment. City of Boerne v. Flores (1997) Employment Division v. Smith (1990) Facially neutral regulation of conduct that incidentally inhibits a religious practice is not subject to any stringent constitutional standard. Facially neutral regulation of conduct that incidentally inhibits a religious practice is not subject to any stringent constitutional standard. In response, Congress enacted the Religious Freedom Restoration Act ("RFRA") in 1993. "There must be a congruence and porportionality between the injury to be prevented or remedied and the means adopted to that end" for Congress to exercise power under §5 of the 14th Amendment. Here, there was no congressional record of discrimination. United States v. Morrison (2000) VAWA was not authorized under §5 of the 14th Amendment because it was not aimed at a state or state action. Not remedial or corrective in character. AND Nevada Department of Human Resources v. Hibbs (2000) FMLA upheld under §5 of the 14th amendment because:
Narrowly targeted
Record of gender-based discrimination Tennessee v. Lane (2004) A strong record of discrimination supported the conclusion that Title II was a "congruent and proportional" response. Northwest Austin Mun. Utility Dist. No. One v. Holder (2009) Extension of §5 of the Voting Rights Act upheld because it was voluntary.
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