Privleges or immunities

QUESTION: I am emailing you because I am having a hard time wrapping my head around the Privileges and Immunities of the 14th Amendment. My question deals with the analytical framework of the clause. I understand we first must determine whether the right is "fundamental".

 

ACTUALLY, NO, THAT IS NOT RELEVANT UNDER THIS CLAUSE -- AT LEAST AS I UNDERSTAND IT. SAENZ ESSENTIALLY HOLDS THAT THE THIRD COMPONENT OF THE RIGHT TO TRAVEL INTERSTATE -- THE RIGHT TO MIGRATE -- IS ONE OF THE PRIVILEGES OR IMMUNITIES PROTECTED BY THE CLAUSE. THUS, AS I UNDERSTAND THAT DECISION, ANY INFRINGEMENT ON THIS RIGHT, NO MATTER WHAT IT IS WITH RESPECT TO, WILL BE SUBJECTED TO STRICT SCRUTINY. THAT IS, THE "RIGHT" ON WHICH THE STATE DISCRIMINATES AGAINST NEW RESIDENTS NEED NOT BE "FUNDAMENTAL" IN ANY SENSE.

 

QUESTION: I am unclear what test we apply to find out whether the right is "fundamental". Is it the same fundamental test we used for incorporation or something totally different?

 

AGAIN, I DO NOT THINK THERE IS ANY SUCH INQUIRY. THERE IS UNDER ART. IV, BUT THAT IS A DIFFERENT QUESTION.

 

QUESTION: Does the Privileges or Immunities Clause of the 14th Amendment only deal with the 3rd right to travel - the right to migrate?

 

PROBABLY. PERHAPS IT ALSO PROTECTS THE FIRST COMPONENT -- THE RIGHT TO PHYSICAL MOVEMENT ACROSS STATE BORDERS -- BUT THE COURT HAS NOT CLEARLY SO HELD.

QUESTION: For example, let's say I, a California resident, went on vacation in Nevada. Under Art IV, Sec 2's privileges and immunities I would be able to enjoy the same privileges as a resident of Nevada, with some exceptions (i.e. - voting). However, if I established residence in Nevada, then I would be protected not under Art IV, Sec 2, but under the 14th Amendment. Is that correct?

 

YOU GOT IT. AND IN A CASE LIKE PROBLEM 6, IT IS SORT OF UNCLEAR WHICH OF THESE TWO PROTECTIONS APPLIES. BUT WE KNOW THAT IT CANNOT BE BOTH AT THE SAME TIME -- YOU ARE EITHER A NEW RESIDENT OF NEVADA, OR YOU ARE A CALIFORNIA RESIDENT VISITING.

Questions about Lochner and incorporation

QUESTION: I want to make sure I understand the difference between what Lochner said and the way it is now.  From my understanding, Lochner said that the right to contract was fundamental and that a state cannot regulate an individual economic right to contract (like minimum hours). Now, all the state needs is a legitimate interest (almost any public interest it seems) and a loose fit between the law and that interest. In effect, now a state can regulate minimum wage or hours nearly at will, whereas before, it was almost impossible. Is this a correct understanding?

 

ANSWER: Essentially, yes. I think there are a few more subtleties to Lochner that we did not really discuss. For instance, government could regulate the maximum hours of miners, for instance, because the Court saw that as raising "real" public safety concerns (as opposed to the "pretextual" ones asserted by New York in Lochner itself). But yes, your summary is basically correct.

QUESTION: The next question is when we should be considering historical recognition of a right and importance of that right.  We first talked about that in the incorporation context, but it was also mentioned tonight.  Should those considerations be taken into account /applied in any instance involving individual rights (economic or not)?

ANSWER: The question whether a right is "fundamental" as a matter of due process, such that the government's infringement on that right is subject to strict scrutiny, is precisely the same question we ask with respect to incorporation (i.e., whether one of the rights protected by the Bill of Rights applies to the states). Indeed, it is precisely the same issue, the only possible difference being that in the incorporation context, the right happens to be textually spelled out in one of the first eight amendments to the Constitution. But the "implicit in a scheme of ordered liberty"/"deeply rooted in the our nation's history and traditions" question is the same inquiry whenever we are asking whether a right is "fundamental" as a matter of due process. This is the incorporation question, precisely because the Court has held that the rights that are incorporated are those that are "fundamental." But, of course, it has not stopped with those textually spelled out in the Bill of Rights. Thus, it is also the question we ask in Griswold, in Roe, in Casey, and perhaps in Lawrence v. Texas and Perry v. Schwarzenneger.

Appropos of our discussion . . .

. . . the Ninth Circuit just issued an opinion this morning holding that an Arizona law requiring that voters present proof of citizenship when registering to vote was preempted by federal immigration law. You can find the Ninth Circuit's opinion here, and you can find commentary here. The decision was 2-1. Judge Sandra Ikuta wrote the majority, and she was joined by former Justice Sandra Day O'Connor. Judge Alex Kozinski authored a lengthy dissent. (Interestingly, Judge Ikuta clerked for Judge Kozinski, and then for Justice O'Connor, in the 1980s.)

Preemption, commandeering, marijuana, and immigration

During last night's class, we had a terrific discussion that weaved several different constitutional principles together. The two principal questions spurring the discussion were these:

1. How is it that California's Compassionate Use Act (or, more clearly, Prop 19 if it passes) does not "frustrate the purpose" of the federal Controlled Substances Act?

2. How is the California marijuana example (where state law is not preempted) distinguishable from Arizona's S.B. 1070, which essentially creates state offenses that are tied to the violation of federal law, and thus indirectly permits state officers to enforce federal immigration law?

These are complicated issues, and one blog post cannot comprehensively address all of the subtleties. But I think the essential point is this: state laws that permit certain behavior generally can never be preempted. For all they do, at a basic level, is is provide that the state will not regulate the activity in question (or a specific subset of that activity). The easiest way to see why this must be so is that, if a permissive state law were preempted by a federal statute, then the federal statute would effectively be commanding the state instead to regulate that activity. And we know that, under the anti-commandeering principle, Congress cannot require states affirmatively to regulate according to the federal government's instructions. Thus, so long as the state law is merely permitting something to occur (whether that permission is characterized as "action" or "inaction"), it cannot be preempted.

(No doubt, if Prop 19 passes, it will frustrate the purposes of federal law in a colloquial sense. But it will not in a legal sense, due to the implications of such an understanding outlined above.)

In contrast, state laws that forbid certain activity, or penalize or sanction that activity, are clearly subject to preemption. These are the laws that can frustrate the purpose of federal law. For example, the Illinois common law rule concerning unreasonably dangerous consumer products was potentially subject to preemption because it imposes liability on product manufacturers (in certain circumstances).

And the same is true of Arizona's SB 1070. Among other things, it (1) requires that all persons who have been arrested have their immigration status verified prior to release, (2) requires police officers to make a reasonable attempt to determine an individual's immigration status during any lawful stop, (3) makes it a misdemeanor for a person unlawfully present in United States to apply for work, and (4) permits police officers to make warrantless arrests when the officer has probable cause to believe that the suspect has committed an offense that renders the suspect removable. All of these are limitations imposed on activity, or the authorization to impose such limitations. Declaring these provisions preempted would not force Arizona to do anything--other than to stand down its enforcement machinery. (It need not even actually repeal its law; it would just be enjoined from enforcing it.)

So the real difference is between state laws that permit (like California's more permissive marijuana policy) and those that forbid, constrain, or sanction. The latter are subject to preemption, while the former are not.

McCulloch and the Necessary and Proper Clause

QUESTION: I was going over my notes again from our class on McCulloch and had a question. You mentioned that the Necessary and Proper Clause does not grant any power in and of itself, and that Congress is entitled to adopt appropriate means, but only in service to some other enumerated power, such as the commerce power or the power to establish post roads (or something like that). What was the other enumerated power for Congress in this case?

ANSWER: Very good question. Marshall never directly answers this question, but Hamilton did (in his memo to President Washington about the constitutionality of the first Bank of the United States, and on which much of Marshall's opinion in McCulloch was based). The principal ones? The power to raise and support an army and navy; the power to pay the debts of the United States; the power to borrow money; and the power to collect taxes. Those are all enumerated powers elsewhere in Article I, section 8, and establishing a Bank of the United States, in the Court's view, was "appropriate" or "conducive" to those ends.

QUESTION: Does that mean that in the case of McCulloch, Congress had the power under the Necessary and Proper clause to create the bank in service to the Commerce Clause?

ANSWER: I'm unsure about this. Claiming that the creation of the bank was necessary and proper to regulate interstate commerce might have been plausible. But the federal regulation of interstate commerce at the time was quite minimal. So it is possible, but I do not know. Regardless, there were the other enumerated powers (mentioned above) that the creation of the bank was a means to accomplishing. Thus, whether the bank was a proper means to the regulation of interstate commerce ultimately did not matter.

QUESTION: Also, does this mean that when we look at a statute we should first look at whether it was "necessary and proper" and then look to see if there is another enumerated power that it functions in service to?

ANSWER: I think that probably has things backwards--at least in my mind. Here is how I think about it. First, I ask whether it rather directly serves an enumerated power, and then I ask whether, given the additional leeway provided by the Necessary and Proper Clause, it might still be justified by the two clauses together. Put differently, the Necessary and Proper Clause, at least since McCulloch, has meant that Congress has fairly broad leeway in its choice of means. But the means must be in service of an enumerated power. And we cannot really evaluate whether a law is an appropriate means without first asking, "A means to what?" So before you can even think about the Necessary and Proper Clause question, you have to have identified the relevant enumerated power.

More on Youngstown

QUESTION: Regarding Youngstown: it's unclear to me why the part of Art. II that says "the executive power shall be vested in a President" did not allow President Truman to issue the order. We discussed how the Constitution doesn't spell out the presidential powers, and also how it doesn't limit the President's powers to only what is granted. What I'm missing is how we get from there to "can't do it." Is the key that the Article is about "executive" power? And that this power precludes "creating law," which, clearly, the opinion thinks the President is doing?

ANSWER: I don't think there is an easy, obvious answer to this question. But I think there are some concepts that help fill in the gaps. First, the "executive power" is a power to execute something. And that execution is generally the law as enacted by the Congress of the United States. In Youngstown, there was no federal statute to execute (at least according to the majority). If anything, Congress had precluded the President from taking the action at issue. Thus, the seizure of the steel mills could not be justified as a straightforward, typical use of the "executive power"--executing a law enacted by Congress. The question then becomes whether the President nonetheless had the authority to take this action. One argument as to why it should have been constitutional was that, given the powers granted by Article II to the President, Congress lacked the authority to prevent the President from taking this action. This the Court clearly rejects. While there might be some overlap in powers in this context, it certainly is not an area, said the Court, that is reserved exclusively to the President. A final argument--or perhaps one that hangs over all of this--is the one you reference, that the Constitution grants the president the "executive power," and not "all executive powers herein granted." Thus, it perhaps implies that the President possesses executive powers beyond those actually granted to the President in Article II. It is unclear precisely what this adds, other than to arguably establish the idea that the President is not completely limited to (1) executing laws enacted by Congress, and (2) fulfilling responsibilities or exercising powers expressly granted by Article II. Here, at least according to the majority, this does not really matter, as Congress had clearly disapproved of the President's action. As a result, even if the President does possess such additional authority, it would not have helped him here.

The DPPA and "conflicts" between state and federal law

QUESTION: Isn't the relationship between the Compassionate Use Act and the Controlled Substances Act in Raich somewhat analogous to South Carolina law and the DPPA in Reno v. Condon? In Condon, the Supreme Court says that "South Carolina law conflicts with the DPPA's provisions." Is this statement any different from "South Carolina law conflicts with the DPPA?"

ANSWER: I think you are right, and that the word "conflicts" here might be employed a bit too loosely. What is different about Condon, though, is that the DPPA is controlling the state itself. So when South Carolina law stated that the state DMV would disseminate this information, it was really saying that this would happen--not just that, as a matter of South Carolina law, it was permissible. It was an expression of what the state, itself, intended to do. In this sense, there was a conflict, in a way that there was not between the CSA and the Compassionate Use Act, both of which only regulate private persons. Nonetheless, your larger point rings true: When state law permits something and federal law prohibits it, there generally is not a conflict between the two. Rather, the state has simply chosen not to regulate the activity in question, even though the federal government has made the opposite choice.