QUESTION: To me the line between a market regulator and market participant seems very blurry. How does a court determine when a State is acting as a market participant versus a market regulator?
ANSWER: The essential question is whether the government is entering a market in its proprietary capacity, as either a buyer or seller of goods or services, or instead is using its coercive power to dictate the ways in which the governed conduct their business or other activities. The former is market participation, the latter regulation.
QUESTION: In Hunt, for instance, it seems to me that the the State was participating in the sale of apples. So why then did the Court determine they were a state regulator as opposed to a market participant?
ANSWER: I don't think so. The State of North Carolina was not selling or buying apples. Nor did its regulation dictate the terms on which the state was going to do so in the future. Rather, the state law at issue was dictating the terms on which private persons were to sell apples within the state: namely, with only the USDA grade on the outside of the crate. This is regulation. It is a coercive mandate on the conduct of others. It is not simply stating the terms on which the state itself would act as a buyer or seller of apples.
Tuesday, March 30, 2010
Monday, March 29, 2010
Privileges and immunities
QUESTION: A "State" cannot abridge the rights of individuals from out of state to obtain things at the same price of their residents. But can a private business do so?
ANSWER: Sure, as a matter of constitutional law. There is no constitutional constraint on what private persons do (other than the Thirteenth Amendment).
ANSWER: Again, no constitutional problem. There may be statutory obligations imposed on private actors that make this sort of think illegal. But it would not be a constitutional problem.
QUESTION: It seems to me these run in the face of the clause, except that these are not state actors. Is there a difference?
ANSWER: Sure, as a matter of constitutional law. There is no constitutional constraint on what private persons do (other than the Thirteenth Amendment).
QUESTION: I suppose my concrete example would be not allowing out-of-state licenses to serve for purposes of alcoholic or drug related purchases. Is that permissible?
ANSWER: If this is simply the policy of a private actor, sure, no constitutional problem there.
QUESTION: What about not allowing passports to serve as identification?
ANSWER: Again, no constitutional problem. There may be statutory obligations imposed on private actors that make this sort of think illegal. But it would not be a constitutional problem.
QUESTION: It seems to me these run in the face of the clause, except that these are not state actors. Is there a difference?
ANSWER: Yes, a big one. Constitutional law constrains the government (only).
Questions on Pike balancing
QUESTION: The basis for deciding the existence and extent of any burden on interstate commerce is worryingly vague, and Justice Stewart's opinion makes it sound as though such decisions should be made on a case by case basis since they are purely relational in nature to local interests.
ANSWER: I think that is probably right, if we take the test seriously. But I don't. I think something else is going on.
QUESTION: Such decision-making seems to grant too much judicial power, to the point that it encroaches on the nation's legislative powers and even the states' executive powers.
ANSWER: Perhaps. But Congress has been aware of this judicial practice form many years and chosen not to enact any legislation to shut it down. It could do so tomorrow if it wanted.
QUESTION: My views are that business laws and regulations that effectuate "clearly excessive" burdens on interstate commerce should be remedied through further/amended laws passed by the legislature, and not by the courts.
ANSWER: That is a perfectly defensible position. But I will raise the same point as above: at what point can we say that Congress has effectively blessed this doctrine by not intervening?
QUESTION: The burden that was to be imposed on Bruce Church may have been unfair, but unfairness does not seem to me to be actionable.
ANSWER: But couldn't you say that administrative order in that case discriminated against interstate commerce? What purpose did Arizona have for requiring Bruce Church to pack the cantaloupes in Arizona? And isn't "unfairness" "actionable" when it constitutes discrimination against interstate commerce?
QUESTION: The question of whether it was unjust, however, should have been answered by legislation. Is the Court able to overcome this apparent overstepping of boundaries simply through the omnipotence of the Commerce Clause?
ANSWER: I guess it is the Court's understanding of the Commerce Clause. As well as Congress's longstanding acquiescence.
QUESTION: Or is it due to lack of legislation that addresses the issue?
ANSWER: Well, yes, that too. There is never a dormant Commerce Clause issue if Congress has spoken to the question.
QUESTION: Or is a Court judgment simply a more expedient way of arriving at a solution than the legislative process?
ANSWER: I would not say "simply more expedient," though you could certainly make the case that having the courts monitor such laws makes more sense than leaving it to Congress. The judicial system is much better equipped to combat such frequent instances of protectionism and "undue burdens." But it is not "simply" that. It is also the long history of the Commerce Clause's purposes, combined with Congress's apparent blessing of what the Court has been doing for more than 150 years.
ANSWER: I would not say "simply more expedient," though you could certainly make the case that having the courts monitor such laws makes more sense than leaving it to Congress. The judicial system is much better equipped to combat such frequent instances of protectionism and "undue burdens." But it is not "simply" that. It is also the long history of the Commerce Clause's purposes, combined with Congress's apparent blessing of what the Court has been doing for more than 150 years.
Revisiting the Necessary and Proper Clause
QUESTION: My notes from M'Culloch say that as long as the end is legitimate (enumerated in the Constitution) and consistent with the Constitution, Congress may enact any law. Is that right?
ANSWER: I think that is a fair summary.
QUESTION: In looking at his concurrence in Raich, Scalia seems to be saying that: (1) the "substantial effects" test is not enough in and of itself to bring the case under the Commerce Clause; (2) the Act therefore only regulates intrastate commerce, which in turn is actually a component of a broader interstate commerce regulatory scheme; (3) Congress therefore actually derives its ability to pass the Act through the necessary and proper clause because....; (4) The reason the Act is Constitutional under the Necessary and Proper is that Congress can point to a "legitimate end", intrastate commerce which in turn is a component of a broader regulation of interstate commerce... Is that right?
ANSWER: I think that is generally correct. I think the basic point is that the CSA plainly regulates an interstate commercial activity, and that its sweeping up purely intrastate, non-commercial instances of that activity is necessary and proper because of the difficulty in distinguishing them from the interstate or commercial instances.
QUESTION: My concern is whether or not Congress can come up with some outlandish law that did not fit under any specific enumerated power and simply say its covered under the "necessary and proper clause."
ANSWER: The answer would be no, at least in theory. The N&P Clause can only be used in conjunction with another enumerated power.
QUESTION: In reading Scalia's opinion, it seems that the Necessary and Proper Clause acts as more of a gap filler where the end is enumerated but the specific means may not be.
ANSWER: Right, at least generally. Means generally are not articulated elsewhere, only ends. So the N&P Clause makes clear that all appropriate means to accomplish the enumerated ends are constitutional.
QUESTION: If I am thinking about this correctly.......going to M'Culloch - it seems unclear which enumerated power Congress was acting on. The only options would have been (1) the Commerce Clause since it was a "national bank" or (2) "General Welfare"?
ANSWER: I think those are two prominent ones. I think raising and supporting an army and navy would work, especially at that time. So would coining money, borrowing, and paying the debts of the national government. You are right, though, that Marshall was not clear on this. There was sort of a grab bag. Everyone seemed to accept that, if one accepted the broad meaning of the N&P Clause (as Marshall did), the Bank was an appropriate means to some set of (somewhat undefined) enumerated ends.
ANSWER: I think that is a fair summary.
QUESTION: In looking at his concurrence in Raich, Scalia seems to be saying that: (1) the "substantial effects" test is not enough in and of itself to bring the case under the Commerce Clause; (2) the Act therefore only regulates intrastate commerce, which in turn is actually a component of a broader interstate commerce regulatory scheme; (3) Congress therefore actually derives its ability to pass the Act through the necessary and proper clause because....; (4) The reason the Act is Constitutional under the Necessary and Proper is that Congress can point to a "legitimate end", intrastate commerce which in turn is a component of a broader regulation of interstate commerce... Is that right?
ANSWER: I think that is generally correct. I think the basic point is that the CSA plainly regulates an interstate commercial activity, and that its sweeping up purely intrastate, non-commercial instances of that activity is necessary and proper because of the difficulty in distinguishing them from the interstate or commercial instances.
QUESTION: My concern is whether or not Congress can come up with some outlandish law that did not fit under any specific enumerated power and simply say its covered under the "necessary and proper clause."
ANSWER: The answer would be no, at least in theory. The N&P Clause can only be used in conjunction with another enumerated power.
QUESTION: In reading Scalia's opinion, it seems that the Necessary and Proper Clause acts as more of a gap filler where the end is enumerated but the specific means may not be.
ANSWER: Right, at least generally. Means generally are not articulated elsewhere, only ends. So the N&P Clause makes clear that all appropriate means to accomplish the enumerated ends are constitutional.
QUESTION: If I am thinking about this correctly.......going to M'Culloch - it seems unclear which enumerated power Congress was acting on. The only options would have been (1) the Commerce Clause since it was a "national bank" or (2) "General Welfare"?
ANSWER: I think those are two prominent ones. I think raising and supporting an army and navy would work, especially at that time. So would coining money, borrowing, and paying the debts of the national government. You are right, though, that Marshall was not clear on this. There was sort of a grab bag. Everyone seemed to accept that, if one accepted the broad meaning of the N&P Clause (as Marshall did), the Bank was an appropriate means to some set of (somewhat undefined) enumerated ends.
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