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JUDICIAL REVIEWExclusive SCOTUS ability to (1) Interp. Constn; (2) Invalidate laws by Cong (legisv) or axns by Pres (execv) repugnant to ConstnJudicial Review in Constn! However . . . 1. Art. III, 2: Judicial Power (limited, original jdxn) Over cases + controversies: Arising under the Constn, laws, treaties of U.S. Admiralty & Maritime jxdn When U.S. = party Bw 2+ states Bw a state and citizens of another state Bw citizens of different states Bw citz of same state claiming lands under grants of diff. states Bw a state/its citz, and foreign states, citz, subjects2. Art. VI, 2: Supremacy ClauseThis Constn [ Art. Confed.], and the Laws of the U.S. [federal] which shall be made in Pursuance thereof [made accord. to Constn]; and all Treaties made [still binding], or which shall be made, under the Authority of the U.S., shall be the supreme Law of the Land [over what? STATE LAWS]; and the Judges in every State shall be bound thereby, any Thing in the Constn or Laws of any State to the Contrary notwithstanding.3. Marbury MAJOR versus Marbury MINOR/MODEST: Is Constn supreme law? Courts exclusive/ultimate interprs of Constn?BROADNARROW

M regards the courts as having special competence to interp. law EXCLUSIVE interprs Hamiltons #78: If actually deciding constty of exec + leg then actually pwr (puppet strings over sword + purse) Exercise jgmt will (Jgs = robots) Judiciary = shield of Constn, to block legisr passing unconstl laws Marshall wrote Constn is a rule for the govt of courts as well as the legr Judl rev as BYPRODUCT of SCOTUS duty to decide cases in accord. w/ Constn (system has two levels of law: statry + constl) Unclear why SCOTUS interps binding o/s 4 corners of ctrm

4. POLICY: Why entrust Constn to Judiciary? Least dangerous branch; politicized or involved in legn Restraints: Justiciability, Art. IIIs internal limitns, Congress SOP; each branch has its own duties Efficiency; Dangers of Judl Rev? WHO WATCHES THE WATCHMEN Counter Majoritarianism, judl activism, lifetime tenure Fedst Pprs #78: Cts enforcing ppls will ctr-majn, judl activismREVIEW ACTS OF CONGRESS: Combine cases + controversies clause, Supremacy clause, Marbury SCOTUS has judl review over Congl acts + to declare them void for contravention of Constn.Marbury v. Madison (1803, Marshall) (Horizontal uniformity) It is emphatically the province and duty of the judl dept. to say what the law is. Strikes down a congl law extending additl power for SCOTUS to hear cases involving execv officers (re: Mandamus); BUT execv and legv branch have discretion (Exec. acting as Exec, etc . . . ) Art. III is exclusive/exhausting, or else meaningless (expresio unius); provides origl jxdn to SCOTUS in limited circs + appellate jxdn for all others If Cong were to interp. Constn, fox in hen house; too much powerREVIEW STATE COURT DECISIONSMartin v. Hunters Lessee (1816, Story) (Vertical uniformity) Issue: VA accept SCOTUS interp of U.S. Treaty (attempt at vertical deptsm) SCOTUS has final rev over state holdings based on fedl law/Constl issues, upheld Judiciary Act of 1789 25 Need Vertical Judl Review!1. Uniformity of laws (ex: have a treaty interpd 50 diff ways in 50 states)2. Avoid state jealousies/biased interests (Marshall asserts state courts capable of dealing with fedl Constl issues w/o being swayed by politics)3. Art. IIIs in all other cases before mentioned the SC shall have appellate jdxn (nature of the CASE not the court system) Cong. estd SCOTUS but other fedl cts; if hear state cases, what is it meant to hear?4. Entitles s power of removal to Fedl Ct (fairness/rights!)Cohens v. VA (1821, Marshall) Issue: brothers in VA sold DC lottery tix in violation of VA law (jdxn question) SCOTUS sustained 25 jdxn to review validity of state laws in criminal proceedings that have fedl Constl elementsLEGAL PRINCIPLES: SUPREMACY CLAUSE + BINDING O/S CT ROOMCooper v. Aaron (1958, Warren) Issue: School board in Little Rock AK postpones legally mandated desegn (response to Brown v. Board) b/c turmoil States must follow SCOTUS decisions; What SCOTUS decides lmtd to facts of a single case; obligate decs of other branches (Pres can pardon/veto) Big Marbury! SCOTUS as exclusive interpr of Constn, and SCOTUS decisions binding But! Lincoln/Dred Scott (binding on that case, not every case like it) Little Marbury in that what SCOTUS decides for a particular case is supreme law for those particular parties, but if SCOTUS creates law to rule people as a whole via one case b/w two parties, that is overextension of SCOTUS power

1Tension!Broad/Narrow BrownBig/Little MarburyN+PLevel of GENERALITYStates Ints + [Narrow] Tailoring for CAsStandard of Review?Formal/Function SOP

LIMITATIONS ON SCOTUS: POLICY + SUMMARYPOLITICAL RESTRAINTS Art. II 2 cl.2 Judl Selection: Exec. Appoints, Senate confirms Art. III 1, Art. II 4 Behavior/Impeachment: Justices apptd to hold Offices during good behavior (life tenure); Impeachable for treason, bribery, high crimes & misdemeanors Packing/Budgets Art. III 2 Jdxn Stripping: Cong can make exceptions to app. jdxn Legv overriding of Statutory Interps Art. II 2 cl.1 Pardon Power Vetos of Constl Legn Art. V Constl Amendments: either/or 2/3 Congl vote to propose amdmt, Ratifn by 3/4 states 2/3 states apply to Cong to call Constl Convention

JUSTICIABILITY SCOTUS self-imposed limitation, cases + controversies of Art. III 2 Judicially created doctrines define/limit circs under which Art. III fedl ct may exercise Constl authority. Why? Broadly, concerned w/ SOP Conserve Judl Resources Judl Efficiency (prevent ideoll suits, limit cts pltcl activity) Improve Judl Decision-making Promote Fairness Adversaries bring out the FACTS Policy AGAINST: burdening courts ability to adjudicate RIGHTS by keeping out cases that need justice!

ADVISORY OPINIONS Will not comment until there is a case, between parties. No moot cases, collusive cases, theoretical cases Even though an advisory opinion would not be binding, SCOTUS will not issue legal advise to execv, legv branch due to unintended consequences. (SCOTUS make law!) Not advisory if:1. Actual dispute b/w adverse parties/litigants2. Substl likelihood that decision will bring change/FXWho: StandingSCOTUS will not hear constl challenge unless person challenging the law meets Standing reqts Art. III 2: extends judl pwr to all cases in law and equity, but not all questions in law; restrictions promote fairness + check SOP Need1. Injury in-fact Real, imminent; probable, general2. Causation Burden of proof on Harm must be fairly traceable to s axn3. Redressability Overlaps w/ causation; Connection b/w alleged injury and judl relief reqd; Must be likely speculative that injury redressed by favorable decision; Partial redress may be sufficientPrudential Standing DoctrineGoes above and beyond case + controversy reqts, based on prudential fedsm and SOP notions1. Third-Party ( must assert own interests)2. Generalized Grievances (no abstract question of pub. sig.)3. Zone of Interest (s complaint must fall within ZOI protected/regd by statute or Constl guarantee in question)What: Political QuestionExists if (1) There is a textually demonstrable commitment of the issue to another branch; OR (2) a lack of judly manageable standards (inherently incapable of resolution by judicial process) Baker Six Factor Test:1. Textually demonstrable commitment (in Constn)?2. Lack of judicially discoverable/manageable standards3. Turns on POLICY DECISION?4. Unusual need for adherence to already made political decision?5. Potential for embarrassment from different branches saying diff. things?6. Disrespect for another political branch (foreign policy, step on s/os toes)? When: Mootness/Ripeness Mootness: its too late to bring the case; must be an actual controversy at all stages of trial (under Big Marbury, matter b/c clear issue to adjudicate) EXCEPTION: Capable of Repetition but Evading ReviewReasonable expectation that same will be subj. to same axn again + resolve issue b/c of short duration of axn (ex: Pregnancy Roe) Ripeness: Its too early to bring the case; seeking anticipatory relief

JUSTICIABILITY: THE WHOSTANDINGART. III 2 Cases + Controversies; Subj-matter Jdxn1. Injury In-Fact: Concrete + Particularized; Actual or Imminent Specifically: physical bodily injury, financial harm; Broadly: Vote dilution, loss of opp to participate in racially neutral procedureLujan v. Defenders of Wildlife (1992, Scalia) FACTS: Enviro group suing over lack of adherence to the ESA; claimed physical injury by # dangered species (elephant/leopard habitat) SCOTUS says imminent harm ( give time frame for total of habitat) + too general (hurts everyone equally special harm); s essentially challenging policy FX Congl Conferral of Standing: Cong created citz suit in stat itselfIf clearly o/s Art III judl pwr, Cong create it; b/c Cong get around other Constl provns by statute, shouldnt be able to here; SOPLegr decides what law is absent individualized case (standing essentially); Judl make law! To make decn absent standing judry is making law; TOO BROAD MARBURY Private attny genl in conflict w/ Pres attny genl if create a right to such a thing, youre creating the rt to challenge Pres ability to do his job Konto ex: W tries to enforce contempt order (DAs discretion) of exBF who pay ch supp; enforcing supp if allowed, overburden DA On the other hand . . . If s/t harming entire country, shouldnt SCOTUS address? If hurts everyone in general, shouldnt legr address? Legr deals with whole sale issues; judry a/b retail issues Legr already created this law what suppd to do now? (amend ESA to impose stricter sanctions . . . ?) spending time/money on prepng this litigation must actually be injured?Massachusetts v. EPA (2007, Stevens) FACTS: global temps CO2 Group of states, local govts, priv. orgs. allege EPA abdicated responsty under Clean Air Act to reg emissions of greenhouse gases; EPA claims harms so widespread, standing presents insuperable jdxnl obstacle SCOTUS says 1. Just b/c climate change risks + harms widely spread, mean Mass has < interest in litigations outcome; 2. Global warming swallow Ms coastal land as landowner, M has special particularized injury Compared to Lujan, where s directly harmed + show imminent harmFEC v. Adkins (1998) Where harm is concrete, tho widely shared, Ct finds injury in-fact. Here, injury directly reld to voting (most basic pltcl rt) suffly concrete + specificRaines v. Byrd (1998) Senators suing Pres to strike down Line Item Veto Act No standing b/c injury wholly abstract and widely dispersed Concurring: political issue for SCOTUSUS v. Richardson (1974) SCOTUS held that a taxpayer have standing to claim that a law keeping CIA expenditures secret violated Statement of the Account Clause (Cong/Govt periodically make acctng to ppl of budget show how $ spent) s interest is non-differentiated, has no bigger interest than anyone else Think Lujan counter-args here . . . Broad Marbury likely like, What!?Schleisinger v. Reservists Committee to Stop the War (1974) SCOTUS held that past/present members of armed forces Reserves lacked standing to challenge membership of certain members of Congress in the Reserves as violating Incompatibility Clause ( hold Execv + Legiv office at same time) Interests too generalized; hurts everyone in country2. Causation: s burden to show harm fairly traceable to s axnAllen v. Wright (1984) AA parents sued IRS, claiming IRS failed to fulfill obligation to deny tax-exempt status to racially discrimry priv schools. SCOTUS held that injury fairly traceable to IRS conduct; problem belongs to the school, not to IRS s asking for relief that solve problemCounterarg to any traditional narrow standing question:Mass v. EPA (2007, Stevens) EPA dispute causation DESPITE . . . Greenhouse gases from new vehicles insignificant India/China produce majority of GHGs By not regng, EPA contributing to problem + harming sWhat level of causation needed for standing? In environl cases, Cts use precautionary principle where accept lower causation cnxn b/c of significance (size, danger, timeliness) of injury OR . . . just wanted to find for MA and want to overturn Lujan3. Redressability: Must be likely speculative that decision will resolve injuryLujan Injunction unlikely to stop the projects endangering the animals, since American aid consists of such small % of total project costMass v. EPA s only need to allege their harms caused by global harming would be reduced, not completely eliminated, by enforcemt.Prudential Standing Doctrine (may be overridden by statuteBennet v. Spear)1. No Third Parties (vs. Usturia: something is wrong with YOUR injury) Exception: Craig v. Boren (1976)Seller of beer challenged sex discn law for small beer on behalf of men; buyer + seller have interchangeable econc interests2. No Generalized Grievances ( abstract questns of wide pub. sig.) Raines v. Byrd (Line Item Veto Act) US v. Richardson (Accounts Clause case) Schleisinger v. Reservists (Incompatibility Clause case)3. Zone of Interest Penned Sheep Case: Sheep had to be penned for disease-avoidance purposes but sued when sheep died b/c they fell overboard in a storm; what statute designed to address, so sue based on itCommon Standing Issues Congressional Conferral of Standing Cong may create new injuries sufficient for standing, BUT SUE W/O ACTUAL STANDING Kennedy LujanCong candefine injuries + articulate chain of causation giving rise to C/C where exist before, but Cong must ID the injury it seeks to vindicate Qui Tam Act private Attny Genl stands in as US govt for any case meeting Art III reqt Standing of Organizations May sue for injury to organization itself or members IF: Injury in-fact to members that would give them standing; AND Injury related to orgs purpose; AND Neither nature of claim, nor relief reqd, reqs participation of the individl members in lawsuit Taxpayer Standing to say law unconstlNo standing UNLESS (1) brought under Estabmt Cl AND (2) Appropriation ( tax credit) enacted by Cong under tax/spend pwr Flast: exceptn to ban on taxpayer standing b/c appropn + under establishmt clause exception (carved out generzd grievances for establishment clause) Hein: ltd Flast, only applicable to Congl appropn exec choice AZ Christian Sch: standing b/c it was a tax credit appropn; semantic arg

JUSTICIABILITY: THE WHATPOLITICAL QUESTIONQuestions, in their nature political, or which are, by the Constn and laws, submitted to the execv can never be made in this Ct. (Marbury) Two forks:1. Inapprop. to attribute finality to axn of pltcl depts., OR Would the courts decision to hear case step on toes of legv or execv branch?2. There is a lack of judicially manageable standards to resolve/enforce issue by judl process Whether the court is designed to handle the issue, or if the political process is better suited to resolve issue? Often involves the Republican question, or the electoral process See Art. IV Guaranty Clause: The US shall guarantee to every State in this Union a Republican Form of Govt Deemed entirely nonjusticiable!The Baker Test (ultimately SOP issue)Baker v. Carr (1962, Brennan) TN voters claimed deprived of eq. protxn b/c their votes count < other districts votes because update in voting district since 1901. SCOTUS said nonjusticiable: just b/c suit seeks proxn of political rt does not mean it presents a political question. Deemed eq. protxn issue b/c one person, one vote1. Constn expressly committed to altv branch2. judly manageable standard for resolution3. Impossty of deciding w/o initial policy determination (by necly nonjudl discretion)4. Unusual need to adhere to political decision already made5. Impossty of cts undertaking ind. resolution w/o expressing lack of respect due coord. branches of govt (step on s/o toes)6. Potential embarrassment from diff. branches saying diff. things (Want govt to have one unified voice)Republican form of govt (Guarantee Cl.) = nonjusticiable ALWAYSLuther v. Borden (1849)Civil War RI charter question. SCOTUS said this was a nonjusticiable political question. What constts Republican form of govt is a philosl question Congress must necly decide what govt is estd in the state before it can determine whether it is Repub. or not. If you dont know what Repub. govt is, you cant say whether guaranteed. Reasoning: (1) If negate a govt, by default you are negating all laws enacted until that point chaos; (2) judiciarys responsibility to settle issue of state govl authority; (3) Fedsm/state sovereignty must follow state courts decisions unless Constl ground for overturning; (4) Judiciary authd to resolve Guaranty Clause issues#1: Textually demonstrable commitment in ConstnNixon v. US (1993)SCOTUS held challenges to impeachment process nonjusticiable, based on Art. I 3 Senate has sole power to decide issues of impeachment. House impeaches; Senate tries.Powell v. McCormack (1969)Issue of what a house members Congl quals pltcl quest, based on Art. I 5, Cong. shall be the judge of the quals of its members ( say quals aforementioned, so the House decides whether a member meets quals) BUT . . . WHAT those quals are is an Art. I 2 justiciable quest.#5: Disrespect coord. branches govt (step on s/os toes)Powell v. McCormack (1969)Even if interp. may embarrass another branch, justiciable b/c Amer govt reqs fed cts occasionally to interp Constn s/t at variance w/ another branchs constrxn. (Is broad Marbury sneaking back in?)Nixon v. US (1993)If SCOTUS can review Senates impeachmt of own members, this is fox/hen house issue why pltcl quest.Coleman v. Miller (1939)Question of what is reasonable period of time for state ratification of Constl amendment, under Art. V, is nonjusticiable; Same prudential reasoning as Nixon (fox/hen house)Zivotofsky (Israeli passport case)Nonjusticiable, BUT this is more of a basic SOP case, who trumps who: Exec/Legisv. Here, ab recognition of govt but whether state dept has to print Israel or not. Cong has Naturalizn + Immigrn Pwrs; Exec. deals with FR/Ambassadors. Passport belongs to Sec. of State.#6: Embarrassing when diff. branches saying diff. thingsGoldwater v. Carter (1979)SCOTUS denied cert, but concurrence said nonjusticiable question whether Pres can terminate a treaty, b/c involves authority of the Pres and the conduct of US FR. If Pres can enact the treaty, he can repeal/terminate it unilaterally.

FEDERAL POWERSWhen Articles of Confed Constn . . . Stronger fedl govt Robust govt role for statesWhy Fedsm? Mutually hostile state tariff barriers prevent state civil war State military too weak; better centralized State fund issues; collect taxes poor states! Failed to pay off war debts States failed to enforce natl treaty obligationsFedsm, textually: Art. I 8 Congl powers Levy taxes Reg. interstate + foreign commerce Art. I 8 Cl. 18 N+P Clause To make all laws which shall be N+P for carrying into Execution the foregoing powers, and all other powers vested by this Constn in the US govt, or any Dept./officer thereofHow assuage fears of power of Centrd Govt Federalist No. 44 N+P clause harmless b/c all the reqd power to execute genl pwrs would have gone to govt anyway 10th Amendment Powers not delegated to Fed, nor prohibd by Constn, reserved to states or to ppl Federalist No. 51 Dbl security to ppls rts by preventing concentration of power: (1) Vertical SOP (natl/state govts); (2) Horizontal SOP (fedl branches)Fedl/State govts have DISTINCT contributions to natl welfare: Art. I + II enumerate fedl power (affirmly) but provide for spec. state immunities suggest by negv implication that natl govt aggrandize itself @ states expense Art I 10 expressly limits states ( enter treaties, coin money, grant titles of nobility); otherwise, state power left open-ended

IMPLIED AUTHORITY OF FEDL GOVTMcCulloch v. Maryland (1819, Marshall) SCOTUS attempts to answer where sovereignty lies in vertically divd power Issue: Whether fedl bank can exist (yes), and whether states may tax fedl bank (no) Implied fedl pwrs not listed; implied state limitations not listed. Enumd powers = enumd ends (Konto) If the end is legit (w/i scope of Constn), then the means (so long as prohibd by + consistent w/ words and spirit of Constn), then constl BUT Cong pass laws under PRETEXT of its powers Problem with means/ends: (1) Theyre hard to distinguish! (2) Textually, 8 uses a lot of means language instead of ends language Two holdings:1. Cong has pwr to create the fedl bank b/c it fall under N+P clause Intertextual analysis: Framers knew how to write absolutely necessary (Art. I 9) and chose not to Necessary = convenient, useful, essential OR does it mean potentially helpful? (problematic) Proper LIMITS Fed b/c limits necry BUT Marshall say what is improper Proper = proportionality? Even if no N+P cl., we would read in the means2. States cannot tax fedl banks; pwr to tax = pwr to , which may defeat + render useless pwr to create Ppl have pwr to vote, but for whole US MD taxing fedl govt = taxation w/o representationIMPLIED LIMITATIONS ON THE STATESUS Term Limits v. Thornton (1995, Stevens) Facts: AK passed amendmt prohibng otherwise eligible candidate for legr if already run for 3 House/2 Senate terms SCOTUS says unconstl 10th Amendmt provides no basis for concluding states possess reserved pwr to add quals to those fixed in Constn, b/c Constn gives Fed pwr to create the quals (Art. I 3) Expresio Unius (Art. I 3 say additl quals can be added) BUT . . . Dissent says where Constn silent (ie: adding quals), states have right to act (10th amendmt) BUT . . . If states had that pwr, there would be 50 diff kinds of state senators Disuniformity in fed (b/c these fedl agents) AND one state be able to change rules for a fedl agent

COMMERCE CLAUSE 1/2Art. I 8 cl. 3Commerce PwrCongress shall have Power to regulate Commerce with foreign Nations, and among the several States, and with Indian TribesArt. I 8 cl. 18Necessary + ProperTo make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constn in the govt of the US, or in any Dept. or Officer thereof

Interpd broadly to include activities that, in the aggregate, have a substl effect on interstate comm. Conflict b/w fedl need to regulate modern, natl market + state sovereignty @ core of fedst system, which played out in Rehnquist Cts CC jurisprudenceCC Test NOW: THIS IS HAZY GO BOTH WAYS!I. IS THE ACTIVITY ECONOMIC OR NONECONOMIC?II. Whether Cong can REGULATE: (Lopez):1. Is it a channel of interstate commerce (big picture, mvmt bw states)?2. Is it an instrumentality (facilitator: RR, radiowaves) of interstate commerce?3. Is it a LOCAL activity w/ substl reln to interstate commerce? TENSION: how much is substl Economic activity in the aggregate, have a substl FX on interstate commerce? (NLRB/Wickard/Raich) PLUS FACTORSEconomic OR noneconomic1. Tradly subject of state regn? (think a/b Comstock)2. Part of a larger regn of econc activity? (Raich/Wickard)3. Congl findings on impact? Beefy findings of econc FX save invalid jdxnl nexus (Morrison)PRE-NEW DEALGibbons v. Ogden (1824, Marshall)Expansive Interp. of CC (DICTA=Big M) NY legr gave exclusive monopoly to ; operates compv steamboat service licensed under Fedl statute; wins b/c of Supremacy Cl. + CC Commerce = commercial intercourse more than buy/sell, incs navigation; among several states = intermingled w/ No real 10th Am limit to plenary com. pwr Sole restraint = pltcl processMODERN/POST-NEW DEAL COMMERCE CLAUSENLRB v. Jones (1937, Hughes)FX Test SCOTUS upholds fedl act ceasing discrimn + coercion of union empees at steel company (4th largest in US); Act real regn of commerce, but union issues w/i zone of regn b/c immed. + catastrophic FX on commerce Activities in rel. to prodv industry, tho look local in isolation, fall under realm of fedl regn when regns FX is immed. + catastrophic to interstate commerce Distinguishes Schechter + Carter, saying FX in those cases too remote (unlike Carter, this regn would affect rates/wages in other states) When industries org on a natl scale, making their interstate relations a major part of activities, Cong must reg.US v. Darby (1941, Stone)Aggregate Substl FX w/ Ratl Basis Def/In Commerce (SOC) SCOTUS upholds FLSA; you cant ship goods across interstate lines, when goods made in substandard conditions or by empees making < prescribed min. wage (overrules Hammer) (1) Intrastate activities, in aggregate, having substl FX on interstate commerce; (2) Ratl basis deference to legrSCOTUS eval. motive/purpose in enacting legn (More def. than McCulloughreject pretext limitation?) Even if one persons FX small + localized (+ even if Congl motive is to control aspects of local prodxn), must consider FX after aggregation of class of activity being regd Analogize w/ ShreveportN+P to reg. s/t before it even gets to market; substandard work conditions FX interstate commerce + strong cnxn bw in-state rates and rates in other states (Race to the bottom!); Critique: You can aggregate a/t + make it have substl FX BUT . . . thats what ratl basis test is for: helps draw lineMODERN/POST-NEW DEAL CONTDWickard v. Filburn (1942, Jackson)Outer Limit of Aggregate Substl FX SCOTUS upheld law prevng man from exceeding wheat quota even tho using what for himself + livestock. If he grow himself, he would have to buy it from w/o else in aggregt, FX supply + demand interstate comm.REHNQUIST LIMITATIONS ON CC (WHERE WE ARE NOW)US v. Lopez (1995, Rehnquist)3 Prong Test; Substl FX + should I include 4-pt test in Raich? Gun-Free School Zone Act case; SCOTUS strikes as unconstl If activity/regn is econc, aggregate test permissible; if not econc in nature, must have direct substl FX on interst. comm. Cong can regulate three types of activities: (1) Channels interstate commerce (big picture); (2) Instrumentalities (facilitatOR: RR/radiowave) of interstate commerce; (3, most imp.) Activities w/ substl rel. to interstate commerce What happened to N+P? (McCullough was a/b means/ends; SCOTUS says that here, end as interst. comm. is a pretext) Concurring: Checks + Balances (Fedsm); Accountability (fed regs, states blamed); Proceed with caution w/ CC b/c we have a big stake in it; Dissent: EVERYTHING is interconnected in natl econy; Cong could have had ratl basis for regn. Moral issue, like Alis BBQ/Lotry, and Cong can reg commerce + morality stop Cong from actingUS v. Morrison (2000, Rehnquist)Affirms Lopez + est jdxnl nexus thru Congl findings SCOTUS struck 1994 Act providing civil remedy for victims of gender-motivated crimes Ratl basis test good enough when activity econc (Limits Darby: not as much deference to Cong, even when Cong believes s/t to be econc activity, may not be). Cong CANNOT reg non-econc activity based on aggregt substl FX test Dissent: (1) Wants to continue substl FX b/c gender-based crimes may FX interst. comm. in terms of mobility of empees + prodxn/consumptn of certain goods. Should foxus on Congl data showing FX on commerce; (2) Nation too interconnected for this NOT to be interstate commerce issue Not overruling Heart of ATL b/c there, business a/b travelGonzales v. Raich (2005, Stevens)Substl Aggregate FX of Econ . . . Personal growth/use of pot, even entering SOC, regble under Controlled Substances Act (Facts analogous to Wickard, except opp. reasoning: we want pot out of mrkt, whereas wanted what in mrkt) b/c there is an FX on supply/demand FX prices in drug mrkt Uphold Wickard rule of aggregate FX of intrastate commerce on interstate activity; OK to reg if upholding/implementing N+P for wider regn of interstate comm. Growing = manufacturing ( like Lopez having a gun) commerce ( like Sugar Trust) Concurrence: Need N+P, not just CC to reg. under CSA; Dissent: Reduces Morrison/Lopez to drafting guides (jdxnl nexus reqt); this is a state issue, as other criml conduct tradly is; too much Congl deference; distinguishes Wickard: W had > FX on commerceAffordable Care Act (ACA)/Sebelius SCOTUS 2012 SCOTUS struck individual mandate provision under comm pwr: N+P for CC Flipside of Lottery Case: you can ban, reg. activity; but you cannot mandate transaxns that yet exist! WHAT ABOUT . . . Heart of ATL: Mandated commercial sales . . . within context of preexisting transaxns Ollies BBQ: business already estd, Fedl govt just prescribed a RULE OSHA Rules for restaurant safety: same thing Application of Lopez: Fed aggregate non-econc activity and reg. under CC. Here, Fed trying to reg the aggregate inactivity, but no such thing as aggregate inactivity having substl FX on anythingComstock (2010)Used N+P to allow contd regulation of fedl prisoners (sex offenders) b/c regn of fedl prisons already enumd pwr Dissent: enumed pwr; Concurrence: Appl N+P Apply CC heightened stand review

COMMERCE CLAUSE 2/2PRE-NEW DEAL1. Direct vs. Indirect Test (Formalistic)US v. EC Knight (Sugar Trust Case) 1895, Fuller Op/Harlan Dissent NOT GOOD LAW SCOTUS affirmed dismissal of govt civil axn under Sherman Act to set aside acquisition by American Sugar Refining Co. of 4 other sugar refineries stock Just b/c you control manufacture mean you DIRECTLY monopolize prods commerce b/c Congs pwr to reg comm xtend to internal police, Cong step in here (manuf comm) Dissent: Disturbing freedom in buying/selling articles manufd to be sold in other states DIRECTLY FX consumrs in all states2. Substl Econc FX Testwhat is practical physl/econc FX of regd INTRAstate activities in INTERstate comm?Houston v. US (Shreveport Case) 1914, Hughes NOT GOOD LAW Cong has auth. to reg. INTRAstate RR rates that discrim. against INTERstate RR traffic, when RRs had lwr rates for hauls b/w 2 pts in TX than rates bw pts inTX + Shreveport, LA, b/c unjustly promoting traffic w/i TX When inter/intrastate transaxns so related that govt of ONE involves control of the other, Cong may step in. OTHERWISE, State>Fed (OLD DIRECT FX TEST)3. SOC Testwhen local activities integral to current of comm, regbleSwift v. US 1905, Homes When comml mvmt of commodity is expected to go from one state to another, and they do (1) typically + (2) on constantly recurring course, Cong. can reg b/c there is a stream of commerce Predictability!4. Morals RegnLocally occurring but natl concern to halt objble commoditiesChampion v. Ames (Lottery Case) 1903, Harlan SCOTUS upheld fed Act prohibng interstate transport of lottery tix Lottery tix = subj. of traffic subjects of commerce regble Suppression of nuisances injurious to pub. health or morality is among the most important duties of gvot PRETEXT of Morals regn = CC Opposite of todayno morals under CC, yes econcHipolite Egg v. US 1911 SCOTUS upheld confiscation of shipmt preserved eggs b/c label disclose a deleterious ingredient illegally xported articles may be seized wherever found, even if at destinationHoke v. US 1913 SCOTUS upheld Mann Act, prohibng xportatn of women in interstate comm If Cong can remove lotteries, then may remove women to protect them from exploitation; CC + N+PHammer v. Dagenhart (Child Labor Case) 1918, Day Op/Holmes Dissent Cong indirectly reg. state police pwrs thru bans on interstate comm. of harmless goods made by kids. reg. to prevent unfair comp/inequality bw states w/ better/worse child labor lawsRace to the bottom! (Darby overrules) Distinguish Hipolite/Hoke/Lottery: those cases dealt w/ particular character of particular commodities + govl scope over those particular commods (regn = prohibitn) Dissent: Reg of interstate comm unconstl b/c it happens to interfere w/ domestic state policy; Congl motive shouldnt matter; Child labor = evil should be regd/dNEW DEAL ERACong. relied on Substly FX test of Shreveport + SOC rationale of Swift in passing legnRR Retirement Bd v. Alton RR 1935, Roberts SCOTUS struck down compulsory retirement/pensions for RR workers (first test of major ND legn) Roberts noted that pensions were related solely to socl welfare of worker remote from regn of commerce SCOTUS moving away from natl police pwr/regn morals/socl context + back towards needing a direct influence/FX on comm.Schechter Poultry Corp. v. US (Sick Chickens) 1933 SCOTUS struck Natl Industry Recovery Act 1933: (1) unconstly delegd legv pwr, and (2) Act appld wage/hour/purchase rules to local businesses (poultry retailers) selling interstate Govt arg of FX interst comm too attenuated, not suffly directCarter v. Carter Coal 1936 SCOTUS invald Coal Conservation Act (NLRA like labor regs for coal industry) b/c labor provisions fall upon PRODXN comm. Cong reg b/c in CC Prodxn may FX comm, but here, all local FX fedl authority Distinction b/w direct + indirect FX turns, upon magnitude of cause/FX, but upon the MANNER in which FX brought about (relation bw activity/condition + FX)POST-NEW DEAL COMMERCE CLAUSE + CIVIL RIGHTS SCOTUS accepted that Cong was dealing with moral prob (Lottery)Heart of ATL Motel 1964, Clark Title VII of Civil Rts Act 1964 prohibd discimn anywhere that offers to serve interstate travelers, or where a substl portion of food it serves has moved in commerce SCOTUS said discrimry policies @ inns impeded interstate travel by (1) impairing travelers convenience/pleasure and (2) discourage substl travel falls under CC, so provision validKatzenbach v. McClurg (Ollies BBQ) 1964, Clark SCOTUS upheld Title VII application to BBQ place in AL prohibd AA, b/c substl portion of food served came thru interst. comm. Why not just protect out-of-state AA? Overinclusive N+P to enforce blanket banCOMMERCE CLAUSE + CRIMEPerez v. US 1971, Douglasouter limits of FX commerce rationale SCOTUS upheld conviction under fedl criml prohibn on loan sharking Even where extortionate credit transaxns are purely intrastate in character they directly affect interstate + foreign comm b/c local ops raise funds to finance natl extortion ops.

FEDERAL LIMITS ON COMMERCE POWER: 10TH AMENDMENT10th Am: The powers not delegated to the US by the Constn, nor prohibd by it to the States, are reserved to the States respectively, or to the people These cases are a/b the limits on Cong to reg. states themselves Concern: fedl regns overstepping boundaries of state sovereignty States rights expressed but derived from structural postulates implicit in fedl scheme + 10th/11th amendments Placeholder for Fedsm b/c fedsm never appears in Constn. It may be a penumbraTension: Supremacy Clause + 10th AmPro State GovtPro Centralized Govt

1. Idea of LOCALstates know states + tailor to state needs2. Vote w/ your feet state/local govts cater to DIVERSITY3. State experimentation yields new practices4. Meaningful govt-citz relationship w/ smaller govt (participation)1. Control neg. externalities (air poll)2. Public goods (mltry)3. Social insurance/aid for natl disasters4. Redistrib wealth among states =ly5. Prevent v competition (child labor)6. Protect Rts from tyranny of local majorities (thru diversity)

Coyle v. OK (1911) SCOTUS invald conditn in fedl enabling act, admitting OK to the union, that purported to specify the state capital The power to locate and change its own seat of govt are essentially state pwrs beyond Congs controlUS v. CA (1936, Stone) SCOTUS upheld penalty imposed on state RR for violating Fedl Safety Appliance Act States sovereign pwr necly diminished to the extent of the grants of pwr to the fedl govt in the Constn SCOTUS also rejected CAs claim of immunity from fedl regn for activities in which States tradly engage limitation upon plenary pwr to reg. comm.NY v. US (1946, Frankfurter) SCOTUS upheld appln of fedl tax to NYs sale of bottled mineral water from state-owned springs Congs pwr to tax is like comm. pwr in terms of reach + so long as Cong. tapping a source of revenue that is not uniquely State activity/propty, Constn allows tax (state more like private actor here)Natl League of Cities v. Usery 1976, Rehnquist BAD LAW SCOTUS struck application of FLSA to states (reqd minimum wage for state + local empees) as unconstl States are ind. and sep. entities from fedl govt tradl state govt functions out of fedl govts reach Why? Fedsm! What would be left for states to reg if fedl regs state/municipalities?Garcia v. San Antonio MTA 1985, Blackmun OVERRULES NATL LEAGUE SCOTUS applies FLSA to states, to protect the states generally States sovereign interests more properly protected by procedural safeguards inherent in structure of fedl system (ie: pltcl process) than by judly created limits on fedl pwr So long as fedl law unduly burden state, applble to states REJECTS rule of state immunity from fedl regn that turns on judicial appraisal of whether a particular govl function is integral or traditional too hard to know what is integral/tradl Dissent: (Powell) believe pltcl process will protect states from unduly burdensome regs b/c legn of past 30 yrs less less repv of state/local interests; Wants to preserve demc self-govt. (OConnor) Fedsm reqs that States have legit interests which Fedl bound to respect despite fedl law supremacySC v. Baker 1988, BrennanLikelihood of pltcl process breaking down = tough arg to make SCOTUS rejects Garcias some judicial interventn approp. to compensate for failings in natl pltcl process when upheld fedl income tax for interest from state-issued bonds Nothing in Garcia or 10th Am authng SCOTUS to second-guess substv basis for Congl legn; b/c pltcl process defective, nor leave SC isolated + pwrless, 10th am implicated Incentives OK; Coercion OK ( force states to pass legn) Taxation laws generally more deferential b/c pltcl process itself holds Cong to a higher standardmore acctble. Its more diff to get tax passed.ANTI-COMMANDEERINGb/w Natl League and Garcia, SCOTUS dicta suggested Cong compel state legv process w/ fedl regs.New York v. US (1992, OConnor) Fedl amendmt to Low-Level Radioactive Waste Policy Act 1985 gave incentives for states to comply w/ act, which reqd states to dispose of waste generated w/i the state. SCOTUS upheld two provisions (monetarystate could impose surcharge on disposal of waste from another state + access--cost of access to disposal sites + deny access to waste gend by states mtg fedl deadlines) and struck one (take titleif state failed to dispose of internly gend waste, state must take title of waste liable for harms from waste). Cong hijack state legv process. Cong may exercise legn OVER PPL Cong may reg commerce directly, but reg. HOW STATE REGs. Cong may ENCOURAGE, but a choice b/w two fedl regs choice ACCTBLTY: when state coerced, its not adequately repd + if s/t went wrong, state would bear brunt of damage even tho strong-armed by fed Distingd Garcia: There, SCOTUS said issue for judiciary but for pltcl process to discern. Here, SCOTUS put similar question of state sovty under 10th Am, rather than question of pltcl process Dissent: Act was solution to natl prob that states consented to. Now, Fed has to do s/t BIGGER + more bureaucratic, which is worse for statesPrintz v. NY (1997)Ventriloquist Congress SCOTUS invald Act reqng state + local law enforcemt to conduct background checks on handgun purchasers Cong. force state/local law enforcemt officers into Fedl service (s accountability when state officers have to administer fedl law) There is a system of dual sovty in America; Framers intend for fedl govt to act as a central govt that acts upon + thru States. They are SEPARATE systems exercising concurrent auth. over ppl Dissent: Stevens args that outcome s safeguards against tyranny b/c Cong/fedl govt would have to get BIGGER to enact fedl policy if have state officers execute fedl lawReno v. Condon (2000, Rehnquist) SCOTUS upheld fedl law (Drivers Privacy Protection Act 1994) limiting the commercial vending of personal data by the states (DMVs prohibd from selling/disclosing personal information w/o persons consent) Rejected SCs commandeering claim + relied on SC v. Baker: DPPA req. states to reg. own citz, req. state officials to assist/implement fedl statute. DPPA regs States as OWNERS OF DATABASES Also, DPPA is genly applicable + only applicable to states (like NY water bottle case)IN-CLASS HYPO: No person, sheriff or not, can have weapon 3+ bullets This is literal state disarmament by Fedl First Natl Leage, then Garcia (G wins) question of Baker? NY (92), have states change their legnincentive OK, coercion ok

FEDERAL LIMITS ON COMMERCE POWER: 11TH AMENDMENT11th Am: The judl pwr of the US shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the States by Citizens of another State, or by Citz or Subjs of any Foreign State. Adopted in response to Chisholm v. GA (1793), in which SCOTUS took origl jdxn of suit against GA by SC creditor seeking paymt for goods GA bought in revolution As Art. I + 10th Am go together, Art. III + 11th Am go together; 11th Am restricts Art. III; Art. I be used to circumvent that restxn Is power to sue, like power to tax, the power to destroy?WHAT IS BARREDWHAT IS NOT BARRED

1. Suits for damages2. Injv/declry relief where state named as party3. Suits against state officers, where retroactive damages will be paid out of State treasury, OR where axn = functional equivalent of quiet title axn, divesting state of land4. Suits against state officers for violating state law (diversity jdxn)1. Suits for damages under 14 Am 52. Injv/declry relief where state official named as party b/c official acted o/s constl authty3. Axns by Fedl govt or other State govt4. Bankruptcy proceedings5. Axns against local (city/county) govts

Hans v. LA (1890)11th Am extends not only to cases w/i diversity jdxn but also to cases w/i fedl question jdxn of fedl ctsCANT SUE OWN STATE IN FEDEx parte Young (1908)Fedl Ct could issue an injunction against state officials who sought to enforce unconstl state law b/c really the state but the official acting beyond constl authorityEdelman v. Jordan (1974)11th Am permits suits for injunctive relief against state officers, but not suits for damagesFitzpatrick v. Bitzer (1976)Cong. Can abrogate 11th am immunity + allow states to be sued directly for damages, pursuant to Enforcemt Pwr of 14th Amendmt SCOTUS left open issue whether Cong could do the same under CCPA v. Union Gas Co. (1989)SCOTUS upheld fedl environl law allowing suits for damages against states, when pursuant to CCSeminole Tribe of FL v. FL (1996)SCOTUS overruled PA v. Union Gas, preventing the abrogation of immunity w/o states consent when Cong acting under Art I 8 comm. pwrAlden v. ME (1999)Extended Seminole to state courts on the grounds of Constl structure + history Congs ability to push states into fedl cts s fedsm by commandeer[ing] the entire pltcl machinery of the state against its will Majority: Doctrine that sov be sued w/o its consent was universal in the states at the time of Constns ratification Dissent: Rule prevents Cong from providing a fedl forum for axn against statesEXTENDING IMMUNITY (Prohibd under CC + 14th Am)FL Prepaid Post Secry Edu. Expense Brd v. Coll. Savings Bank (1999)State entities (pub. universities) immune from patent/TM infringement axns in fedl CtKimel v. FL (2000)States immune from ADEA suitsBrd Trustees of Univ. AL v. Garrett (2001)States immune from Title I/Disabilities suits

FEDL PWR V. FEDL REMEDIES a/b limiting Congl reach in regn but a/b limiting remedial MEANS by which Cong may enforce regn otherwise w/i substv legv pwr STILL WAYS TO ENFORCE FEDL LAW:1. Injunctions/declarry jgmts2. Fedl officials may enforce fedl statutes via fedl agencies @ fedl expense3. Cong can condition fedl spending pgms @ states agreement to waive immunity

STATE IMMUNITY + FEDL AGENCY PROCEEDINGSFedl Maritime Commission v. SC State Ports Auth. (2002)Cruiseship companys adminv complaint alleging SC authority violated fedl shipping act by prohibng berths in state ports for gambling vessels Even if commission exercise US judl pwr, to avoid 11th amendmt, adjudication of private complaint s sovn immunityFMC adjudication is like civil litignDissent: FMC acting under exec. Pwrthis decision agency flexty fairness effective law enforcemt bureaucracy

ART. I BANKRUPTCY PWRCentral VA Commty College v. Katz (2006)Art. I 8 cl. 4 Bankruptcy pwr upheld State could be subj to creditors in fedl bankruptcy Bankruptcy cl. Aimed to provide limd subordination of state to fed

11th Am = placeholder for sovereign immunity text meaningless + SCOTUS given its their preferred meaning, exceptions incd

TAXING POWER 1/2Art. I 8 cl. 1 grants Cong the pwr to lay taxes for the genl welfare. Purpose: revenue generation BUT . . . Ct has allowed taxes that reg activity + produce little revenue allowing Cong to reach ends beyond their enumd pwr. Taxes both discourage/encourage behavior + raise revenue Ct afforded Cong great deference in this determination, stating cts have auth to limit exercise of the tax pwr unless there are penalty provns extraneous to any tax need (Kahriger)Art. I 8 cl. 1: Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debrs and provide for the common Defence and genl Welfare of the US; but all Duties, Imposts and Excises shall be uniform throughout the USArt. I 8 cl. 18 (N+P)

TAX PWR AS REGULATORY DEVICE: TAX VERSUS PENALTYChild Labor Tax Law 19191: After Hammer, Cong. imposed 10% tax of annual net profits on emprs of child labor in covered business (if wanted torev, tax so )Bailey v.. Drexel Furniture Co (Child Labor Tax Case) 1922 Regulation thru tax is permissible if it is incidental/rationally related to the tax itself + if the regn is within Congs authority A tax should be enacted w/ primary purpose of taxing, to reg s/t unrelated to the tax; Tax cannot look like a penalty SCOTUS held that commerce pwr reg child labor tax pwr cannot reg. it either Reasoning: All taxes have regry FX, but regn cannot be CRUX of tax. Here, pretext passage of McCullogh applies: goal was to child empt Court looked to . . . Veazie Bank v. Fenno (1869)d tax on circng notes of ppl + state banks from 1%-10% upheld; Cong has auth to provide for natl currency McCray v. US (1904)d tax on margarine upheld on same grounds as Veazie; Cong has auth to reg interstate commerce. Even though the tax was 40x regular tax, and even though Congl motive disclosed in its selection to discourage sale/manufacture of an article by higher tax invalidate tax US v. Duremus (1919)Narcotic Drug Act imposed specl tax on manufactr, importn, sale, gift of opium/coca leaves + compounds or derivatives. Just b/c motives beyond taxation invalidateTensions: Should Cong be able to reg thru taxes no matter what, so long as act w/i their immed. pwrs? Is that dishonest? Is that too much Congl pwr? Is that unconstl?FEDERAL EXCISE + LICENSE TAXUS v. Constantine (1935) convicted of selling liquor w/o paying specl excise tax of $1000 (imposed by Cong.), in additn to $25 business tax SCOTUS said it was a penalty tax invadd state police pwrSonzinsky v. US (1937)SCOTUS sustained Natl Firearms Act 1934, which imposed $200 annual tax license on dealers in firearms SCOTUS said prodv of some revenue speculate as to Congl motives nor to extent which it may operate to restrict activities taxed attended by an offensive regn + operates as tax by accumng some revenueUS v. Kahriger (1953, Reed)SCOTUS upheld 1951 Revenue Act, which taxed professional gamblers + reqd them to register w/ Collector of Internal Revenue It is okay for Cong to have dual motivescontracts judl pwr from Bailey UNLESS there are penalty provisns extraneous to any tax need, SCOTUS have auth to limit Congs tax pwr Just bc a tax discourages certain activities make it unconstl A tax need not raise significant money. A tax that is unsuccessful at raising funds can still be constl, as long as raises some money, and here, tax raised revenues > revenues from narcotics + firearms taxes SCOTUS upheld Distinguish Child Labor Case ( dress up penalty as tax); Here, penalties ok so long extraneous to tax need ( over the top? Ratly reld) With child labor: imagine a tax that was higher for evening empees? Jackson Concurrence: Purported tax law imposed tax and reporting obligations only on certain gamblers whose activities in most states were illegal difficult to regard as ratl or good-faith revenue measure BUT joined majority b/c dissent agree on an opinion that impair legit use of taxing pwr Frankfurter Dissent: When oblique use is made of taxing pwr, SCOTUS cannot shut its eyes to regulations designed to control conduct the Constn left to the States just because Cong. wrapped the legn in the verbal cellophane of a revenue measure.TAXING POWER POST-NEW DEALAsking whether tax impermissibly regulates depends on affirmative answer to antecedent question whether an area of state autonomy in which it would be impermissible for the fedl govt to reg. The more expansive the concept of permissible fedl regn, the more attenuated the area of IMpermissible regry intrustion thru taxation.Affordable Care ActSCOTUS draw line b/w tax + penalty (implicate that if penalty bad) although Congs pwr to tax BROADER Congs pwr to reg commerce BUT have as great pwr to control individs as in commerce pwr (broader deeper). BY STATUTE, TAX > THAN THE ALTV BEHAV.Konto says: Where is the tax going? Earmarkedlooks like tax; If not regn?

TAXING PWR RUBRICApplying ACA1. Is tax meant to make s/t illegal (primarily regry penalty invalidBailey test; if primarily revenue tax valid) B/c tax is cheaper than insurance + dont want insurance just pay tax Konto: Incoherent to say incentivizing b/c paying penalty get anything + buy insurance you do get something CA: ppl w/o insurance believe getting anything anyway ($1000 of insurance provides $250 of benefit, $750 is penalty; break even) Some class of ppl will choose to pay tax rather than change behavior b/c tax isnt so high (like Bailey) tax is okay = b/c some ppl change their mind; not forcing ppl to change their minds ACA discussion of Bailey1. Exceedingly heavy burden on company Can still choose not to do it2. Only imposed on those who knowingly empld under age labors (cant have scienter reqt sounds criminal punitive tax) Imposed upon everyone3. Enforced in part by DOL IRS enforces it

When answering/approaching Tax issue on Exam:

SPENDING POWERArt. I 8 cl. 1 provides that Cong has the pwr to spend money in order to pay the debts and provide for common defense and general welfare of the US. In 1936 (Butler), SCOTUS adopted broad Hamiltonian view that Congs pwr to spend for genl welfare is not limd to the Constns direct grants under Art. I 8 Not as many cases challenging spending pwr b/c of standing issues with taxpayers Purpose: provide for GENERAL (Natl concern; not local) welfare But... SCOTUS gives great deference Cong. in deciding what is for the common benefitArt. I 8 cl. 1: Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debrs and provide for the common Defence and genl Welfare of the US; but all Duties, Imposts and Excises shall be uniform throughout the USArt. I 8 cl. 18 (N+P)

Agricultural Adjustment Act (AAA) 1933 sought to stabilize farm prices by curtailing agro prodxn; Sec. Agr. Kd with farmers to reduce productive acreage in xchange for benefit payments (processing tax paid by processor upon first domestic processing of commodity)US v. Butler 1936, Roberts SCOTUS invalidd Act, claiming an invalid exercise of spending pwr b/c unconstl means to reg. agricultural prodxn (pretext) Cong may spend in any way believes would serve genl welfare, so long as it doesnt violate another constl provisn (reserved states rts) Cong may place conditions on grants, so long as the conditions are expressly stated and have some relationship to the purpose of the spending power Adopted Hamiltons interp of taxing/spendingCong has substv pwr to tax/appropriate, limited only by the reqt that it shall be exercised to provide for the genl welfare of US Like Child Labor Tax Case: If Cong use tax pwr as instrument to enforce regn of state-concerned matters (child labor), then use spending pwr to reg same kind of state-concerned issue of agro prodxn Pwr to confer/withhold unlmtd benefits = pwr to coerce/destroy Dissent (Brandeis, Cardozo): Threat of loss hope of gain = essence of econc coercion; here it was persuasion coercionSPENDING PWR POST-NEW DEAL: 1937 SOCL SEC. CASESSteward Machine v. DavisTitle IX of Socl Sec. Act imposed payroll tax on emprs of 8+ ( earmarked tax, went to genl funds) BUT a credit provision (allowed employer to receive up to 90% credit of fedl tax for contributions to fedly certd state unempt fund) sought to induce states to enact laws in compliance SCOTUS upheld tax + credit provision; motive to encourage behavior coercion Distinct from Butler: Here: (1) no earmarked taxes; (2) state approval given; (3) state can repeal law; no irrevocable K; (4) not a means to an unconstl endHelvering v. DavisSCOTUS upheld old age benefits provision of Titles VIII + II of 1935 Socl Sec. Act Provision imposed fedl taxes on covered emprs + empees to provide for payment of fedl old age benefits; try to enlist state legrs but involved exclusively fedl spending scheme SCOTUS said the best place for this legn is national (national v. local welfare)CURRENT DEFERENTIAL APPROACH TO CONDITL SPENDINGSouth Dakota v. Dole 1987 RehnquistNatl Min. Age Drinking Act conditioned hwy funds to states on states agreement to raise drinking age + withheld 5% of fedl hwy funds payable to states from any state who permitted purchase of alc to ppl


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