Commandeering and preemption

The second (and related) review question I wanted to address in class yesterday was why the federal preemption of state law (by a federal statute) does not constitute a "commandeering" of the states in violation of New York and Printz.

 

Here is why it is potentially a problem. Recall that not all commands that Congress issues to states are unconstitutional. Indeed, the Court in New York and Printz was careful to distinguish Garcia, where the Court upheld the application of the FLSA's maximum-hour and minimum-wage provisions to the states. We spent some time (about six weeks ago) discussing how Garcia was distinguishable. First, the FLSA was "generally applicable": it applied not just to the states (or their subdivisions), but also to private employers. Second, and more fundamentally, at issue in New York and Printz were laws that regulated the states in their capacity to regulate or govern their won citizens, whereas the FLSA regulates the states in a proprietary capacity, as objects of regulation.

 

Notice that these two grounds, though, fail to distinguish preemption. Preemption is not "generally applicable"; rather, it is directed at states alone, as private parties are not capable of enacting laws or regulations. More fundamentally, preemption is directed at states in their capacity of governors of their own citizens. A federal statute that preempts state law is directly commanding the state as to how it is to regulate or govern its own residents. (E.g., "State, you shall not require any automobile manufacturer or seller to equip any particular car model with airbags.")

 

So how are the two doctrines compatible? The key is the difference between an affirmative command (as in New York) and a prohibition (preemption). The anti-commandeering principle forbids Congress from ordering states or their political subdivisions to take affirmative action to govern or regulate in a particular way. But it does not forbid Congress, in its regulation, to forbid states from regulating in a particular way (or perhaps in a particular field at all). Of course, Congress must be acting within its enumerated powers in enacting the relevant statute. But assuming it is, effectively ordering a state not to regulate is not a forbidden "commandeering."

 

This is how these different doctrines--concerning enumerated powers, commandeering, and preemption--all fit together.

Some more Q & A

QUESTION: I am working through Youngstown, thoroughly enjoying Justice Jackson's concurrence, when a pang of uncertainty hit me. If I may ask, how much should I let myself enjoy such lines as

“[no] doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture"

while working through the material? Naturally, the reasoning is interesting. But it is not the reasoning of the majority. Also, I have the impression the case book's chief editors, both from Stanford, would not be so inconsistent as to leave out the names of any Justices joining Jackson here when Kennedy's concurrence in Lopez included O'Connor as joining. Left with the firm yet somewhat disappointed belief that Jackson's vivid concurrence is his opinion alone, would space in my notes be better spent recording the analysis of several Justices dissenting after Jackson?


ANSWER: Your confusion is entirely understandable, but no. Jackson's concurrence has grown to be the most important--indeed, the most precedential--of all the opinions in Youngstown. No doubt, as a technical legal matter, it is not controlling. But as we have discussed already, several times, constitutional law is more than technical legalities. Jackson's opinion has gained in stature, eclipsing all the others, such that it is the one now most frequently cited by the Court itself. It is the one quoted by Senators at confirmation hearings. It is the one most law students remember after they have long left constitutional law as a subject. So, no, it is time well spent. Really, reading any Jackson opinion is usually time well spent. He was a great justice.

QUESTION: Toward the end of your 110216 lecture, you argued that the reason why VAWA exceeds the congressional power afforded by XIV amend § 5 is because VAWA provides remedy for a civil suit. Civil suits, where individuals are claiming damages against other individuals, do not fall within congressional power under XIV amend § 5, because XIV amend § 1 only applies to state activities. 

ANSWER: Very close, but not quite. The critical distinction was not that the action was civil, but that it was against a private individual, not someone acting on behalf of the government.

 

QUESTION: How can Congress, if it so wishes, regulate a civil activity through the power of XIV amend § 5? 

ANSWER: Under Morrison, I don't think it can--if by "civil" you mean private or non-governmental.

QUESTION: Specifically I am asking the following four questions:

1) Could, Congress use XIV amend § 5 to legislate any civil disputes where one citizen is suing another citizen for damages?

ANSWER: Yes, if it is a civil action against a government or a government official.

2) Assuming Congress cannot regulate any civil dispute directly, can Congress somehow regulate state through XIV amend § 5 so that a medium for civil dispute under federal law is possible? (i.e. is indirect regulation of individuals through its power to regulate states possible?)

ANSWER: I'm not sure I fully understand this distinction. Congress can regulate state action to enforce the terms of Section 1 of the Fourteenth Amendment. Because private individuals, by definition, cannot violate Section 1 of the Fourteenth Amendment, Congress cannot aim to regulate their behavior with Section 5--directly or indirectly.

3) How can Congress, in enacting any legislation that regulates state activity not violate the dual sovereignty doctrine?

 ANSWER: Congress can regulate the conduct of states. See Garcia. What it cannot do is commandeer them. Only commandeering violates the structural principles of dual sovereignty. (Moreover, it is unclear whether the anti-commandeering doctrine would apply to valid Section 5 legislation. Both New York and Printz involved statutes that were enacted using the commerce power.)

4) Is it possible to rephrase or reframe VAWA in a way so that VAWA falls within the breadth of congressional power afforded by XIV amend § 5 while at the same time, achieving the ultimate goal of VAWA (the goal being, providing a federal medium where damages from gender based violence can be sought by victims from perpetrators)?

ANSWER: I don't think so, at least unless we change the fact that it is regulating the conduct of private individuals.

QUESTION: As an aside, because I cannot think of federal civil legislation off the top my head, through my research of federal civil laws, I came across 42 U.S.C. § 1983 where it states:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law...”

As a superficial analysis, it seems that this piece of legislation, which deals in civil actions (person against citizens) grounds itself on XIV § 5 through XIV § 1. 

ANSWER: Exactly, the crucial difference being that it only regulates the conduct of those who act under color of state law. In other words, it regulates the actions of governmental officials.

QUESTION: If my assumptions are correct, could VAWA be framed in a similar way, such that the rights and privileges protected under VAWA is through the “equal protection” clause of XIV § 1?

ANSWER: Again, no, so long as the regulated activity is that of a private individual. The civil-criminal distinction is irrelevant. What matters is that governments (and persons acting with governmental authority) can violate the Equal Protection Clause. Private persons cannot. Thus, only the regulation of the former (under Morrison) can be justified under Section 5 as "enforcing" Section 1.

QUESTION: I am slightly confused about the difference and interaction between the first and third incentives in New York v. United States. My understanding after reading the case and a few supplements is that Congress may entice a state to voluntarily adopt a federal regulatory scheme (meaning enforce what the federal government desires) through monetary incentives, but if that state decides not to adopt the federal regulatory scheme, if given authority by the Commerce Clause (or some other provision of the Constitution) Congress can pass a national regulation that would preempt any state regulation that wasn't in compliance. If the latter happens, the federal government will be responsible for enforcing that regulation; this being said, the Court said Congress cannot force a state to enforce a federal regulatory scheme. Is this a correct interpretation? 

ANSWER: Essentially, yes. The critical question, as you say, is whether the state has a choice. Or, to put it differently, Congress can never force a state to affirmatively regulate or govern its citizens according to the federal government's instructions. It can offer the states some money in exchange for them doing so (such as in Dole). It can preempt state law (i.e., tell states to get out of the way). And it can offer states a choice to govern in a particular way, but it they do not, tell them that they will be preempted. All are of those are okay. What it cannot do is force the states to govern their residents in a particular fashion.

Some questions and answers, on judicial review and McCardle

QUESTION: On Lincoln versus Faubus: If the analysis is that there is very little difference between the president's and the governor's power to openly proceed as they wished notwithstanding the holding of the SCOTUS, what then, is the power of the SCOTUS?

 

ANSWER: Good question. Isn't the lesson, to some degree, that it depends on the degree to which other political figures will go along with (and enforce) the Court's decisions? Lincoln had a much broader and more powerful political coalition behind his position. Faubus was representing a vocal but geographically small minority, which was ultimately overwhelmed by the prevailing national view on the morality of racial segregation.

 

QUESTION: If the argument is that because both officials swore in order to come into office that they will uphold the Constitution of the United States, and that oath gave them the power to interpret the constitution, what then prevents, as you pointed out, a clerk of a federal judge, when he or she swore to uphold the Constitution of the United States, from openly defying the SCOTUS's decision when he or she sincerely believe the decision is against the principles of the Constitution?

 

ANSWER: Another good question. First, on a very practical level, that clerk might well be fired if her boss disagrees. Second, there is now a very strong general sense among Americans that it just does not work very well if we do not defer to the Supreme Court in its interpretations of the Constitution. That is, the Nation might well grind to a halt if everyone was always litigating their own understanding of the Constitution. Perhaps the larger point is that it is really norms and customs, rather than the strict dictates of law, that prevents this from happening.

 

QUESTION: While freedom of speech guarantees every individual citizen the right to advocate at the top of their lungs in which her fellows advocate at the top of their lungs in opposition, fundamentally there is a line between advocacy, the right to speech, and rebellion, the acts in defiance. Here, and in other cases, Lincon and Faubus not only advocated the unconstitutionality of SCOTUS's decisions, but that they performed in opposition. Are they, the president and the governor, then, by their actions, demonstrating that they are above the law? Or even worse, that they are the law? Who decides?

 

ANSWER: I think you could make decent arguments that neither were acting "unlawfully" (though Lincoln plainly was when he defied the court in the habeas case, In re Merryman). But there is a difference between the letter and the spirit of the law. And you could say that both acted contrary to its broader spirit -- Lincoln in a noble cause, Faubus in a rather pathetic one.

 

QUESTION: In a system of check and balances, where the Congress, the President, and the Court play a role in this dance of justice for the country, if each branch disagrees with the other on the interpretation of fundamental, constitutional matters, wouldn't we arrive at a system where everyone would be shouting to the rain on their issues, claiming that their perspectives are constitutional and that the perspectives of their opponents are not.

 

ANSWER: Two responses. First, again, the Nation will not tolerate too much of this, and generally has disciplined political leaders that they believed had not shown adequate respect for the rule of law. Second, everyone shouting to the rain about fundamental issues . . . is that really so different from the system we have now?

 

QUESTION: How could resolution arrive from such a system? Wouldn't the natural foreseeable path for such a system be chaos and disorder?

 

ANSWER: Perhaps, and I think that is precisely what has operated as the ultimate check. The People would not tolerate it. And that means that it generally not in political officials' interests to act in this fashion. But if it were -- witness the unhappy Terry Shiavo affair -- things can get a little messy. As I think Justice Breyer explained well in his essay, these things turn more on habits of mind and cultural and political norms of a people and a society. We just don't really tolerate this sort of behavior in our elected officials, and thus they are much less apt to challenge the Court.

 

QUESTION: Obviously, we have not yet reached that state in the US, so the begging question again, is, who has the ultimate power to prevent such an undesirable outcome?

 

ANSWER: There is no clear answer to this. It depends. It is sort of up to each generation to decide. In our system, to some degree, it is up for grabs. Different periods of history have seen different allocations of this authority. I think it is fair to say, though, that over time we have gradually moved closer and closer to a system of judicial supremacy.

QUESTION: At least twice in history, the President has repealed Supreme Court's writ of habeas corpus, and at least once, the President has defied the SCOTUS holding that the president lacks the power to repeal SCOTUS's writ of habeas corpus. Under Article III, section 2, clause 1 of the Constitution, it states "the judicial power shall extend to all cases...arising under the Constitution," and then clause 2 states, "the Supreme Court shall have appellate jurisdiction...under such regulations as the congress shall make."

 

ANSWER: But that is not mandatory. That provision is setting out the full scope of the subject matter jurisdiction that Congress is permitted to invest in the federal courts. Congress has never--ever--given the federal courts the full scope of the jurisdiction spelled out in Art. III, sec. 2, clause 1. 

 

QUESTION: How could these paragraphs reconcile in cases where they contradict? For example, imagine a situation where Congress has taken away SCOTUS's entire power for appellate review, and yet, dispute arising under the Constitution review occurs. Under Article III, section 1, clause 1, SCOTUS would have the power to review it, not just through original jurisdiction but also by appellate jurisdiction, as indicated by the language "all cases." However, under Article III, section 2, clause 2 would clearly state SCOTUS lacks the jurisdiction for review. Again, how does one reconcile situations such as this?

 

ANSWER: I think there are a few different questions here. First, with respect to the lower federal courts, this has always been the case. That is, there have always been cases to which "the judicial power shall extend" under Article III, but for which Congress has not granted the lower federal courts jurisdiction. We will talk about this Wednesday (1/26), but this has always been assumed to be part of the original compromise, to leave the existence and jurisdiction of lower federal courts to the discretion of Congress. As to the Supreme Court, I think it is a harder question. What if Congress completely cut off any way to get to the Supreme Court on a constitutional claim? I think the law is unclear as to whether Congress could do this. McCardle does not answer it. Certainly, Congress can give the Supreme Court discretion as to whether to hear such a claim. Thus, there is no individual "right" to have your federal claim considered on the merits by the Supreme Court. But what if Congress forbid it? I think the answer remains unclear.

 

QUESTION: Who decides?

 

ANSWER: The Court, I think, in interpreting the scope of Article III. And if the People disagree with the Court, then we get back to all the questions raised above.

 

QUESTION: Further, if Congress can take away SCOTUS's fundamental appellate jurisdiction such as the writ of habeas corpus, what is the limit of Congress's power?

 

ANSWER: Again, I think this is unclear. The check may ultimately be more political than legal.

 

QUESTION: How much of SCOTUS's responsibilities can the Congress chip away through legislature such that the framework provided by Article III, section 1--"the judicial power of the United States, shall be vested in one Supreme Court"--would still hold? How much of SCOTUS's responsibility can be disposed of before it cease to have the judicial power of the United States?

 

ANSWER: Very good question. It is not just an Article III question, but one that invokes basic separation of powers principles. Again, I do not think any authoritative sources of law give us a clear answer.

 

QUESTION: Finally, On Ex parte McCardle: I still struggle with the interpretation of the last paragraph. My feeble attempt at deciphering this paragraph is that Chief Justice Chase is trying to articulate, while Congress has the power to regulate the appellate jurisdiction of the Supreme Court, any regulation has only post hoc effect, and any judgment prior to the enactment of the repeal act would still be effective. From the discussion in class, this does not seem to be the significance of that last paragraph, and if I am not mistaken, you suggested that SCOTUS still had jurisdiction on some levels. What is that level? How would you have interpreted the last paragraph?

 

ANSWER: As to the narrower question, yes, litigants like McCardle could have gotten to the Court with their habeas claims through a different route, under the Judiciary Act of 1789 using, in conjunction with the writ of habeas corpus, a writ of certiorari. As to your broader question, about how I would interpret that last paragraph, here is my best stab. Chase is basically saying this: "Look, we are not deciding whether this Repeal Act would be constitutional if it completely removed the Supreme Court's appellate jurisdiction in all cases in which the litigant was seeking a writ of habeas corpus. There is another statute that provides for that jurisdiction, on which prior litigants have relied, and which we have used to review habeas petitions on appeal. Now, we are not saying that the Repeal Act would necessarily be unconstitutional if it had completely cut off all appellate routes to the Court. Rather, we want to make clear that we are not deciding this issue one way or  the other today. We reserve it for another day."

Cohens v. Virginia and the Supreme Court's original jurisdiction

Madhuri asked a great question yesterday concerning Cohens and Article III's allocation of the Supreme Court's original and appellate jurisdiction. In essence her question was this: if Marbury held that Article III defines what must be in the Court's original and appellate jurisdiction, and Virginia was a party in Cohens, and Article III states that the Court shall have original jurisdiction "In all Cases . . . in which a State shall be a Party," what gives? How can these fit together?

 

They can't. So the Court (and Chief Justice Marshall himself, the author of both) effectively overruled this part of Marbury in Cohens. He held (in a portion of the opinion not included in the casebook) that, although Congress cannot expand the original jurisdiction of the Supreme Court beyond those cases specified in Article III (which was the precise problem in Marbury), Congress can permit those same cases to come to the Court on appeal (in Cohens, from a state court).

 

Why? The basic problem is that something had to give. A state is always a party in a criminal prosecution initiated by a state. (At that time, as now, more than 90%, perhaps 99%, of criminal prosecutions were initiated by states, not the federal government.) By necessity, a criminal case initiated by a state against a defendant originates in a state trial court. Thus, such a case simply could never reach the Supreme Court of the United States if the Supreme Court could only exercise original jurisdiction over cases in which a state was a party. In other words, that reading of Article III would render every single criminal prosecution initiated by a state immune from federal judicial review, no matter the federal constitutional or statutory problems it raised.

 

(Perhaps such convictions could be challenged by seeking a writ of habeas corpus in federal court. But that is an indirect challenge to a conviction, not a direct appeal. Moreover, federal habeas review of state criminal convictions did not exist until the 20th century.)

 

Faced with this structural implication, the Court held that Congress could authorize the Court to exercise appellate jurisdiction in cases that Article III specifies as falling within the Court's original jurisdiction.

 

As the Judiciary Act currently reads, there is only one set of cases in which the Supreme Court's jurisdiction is original and exclusive: suits between two states. The others may be brought as an original matter, but need not be. The Court can review them on appeal as well, and it basically always does.

Tiers of scrutiny

QUESTION: What is the scrutiny applied in Eisenstadt v. Baird? We have that it is the minimum rationality standard. But doesn't this case decide that the right to privacy is fundamental, so strict scrutiny should apply?

ANSWER: You are right -- if the Court had decided the case on due process grounds. But that sentence in our casebook was really an aside. If you look at the full opinion, you will see that the Court decided the case based on the Equal Protection Clause. The statute (at least in its application) discriminated on the basis marital status. The Court subjected this discrimination to rational basis review, and held (perhaps disingenuously) that the law failed to rationally further a legitimate state interest. (More candidly, I would call this rational basis "plus," as the Court was certainly more demanding than the test of Lee Optical.)

QUESTION: What level of scrutiny applied in Griswold? We think it's strict scrutiny because our notes say "high level of scrutiny" and again it concerns fundamental right to privacy.

ANSWER: That seems like a logical inference to me. The Court does not use the magic words, but yes, I think it was applying strict scrutiny.

QUESTION: What are the strict scrutiny cases? Griswold, Eisenstadt, and Lochner?

ANSWER: Due process decisions that seem to apply strict scrutiny, or something like strict scrutiny, would include Lochner, Pierce, Meyer, Griswold, Roe, Casey, Loving, Zablocki, arguably Lawrence, and Perry v. Schwarzenegger. 

When are agencies part of the Executive Branch?

QUESTION: I'm a little confused on what agencies are classified as, such as the EPA. In your 2008 model answer it was stated that the commission was placed in the executive branch (I think), and thus the line-item veto and non-delegation doctrine doesn't really apply in regards to the President's authority over what is actually goes into law. I thought the Commission to be a quasi-legislative branch that has both authority to create the law and dictate enforcement (although that was limited as custom agents would which is strictly a part of the executive branch). I would argue that having the President able to essentially veto what he wants from the agency, and the agency is more legislative then not. So the President is overstepping the boundaries set by separation of power as he is essentially deciding what laws gets passed. Is this an incorrect analysis or just a different viewpoint (that would still receive mostly full credit if this was an exam answer)?

ANSWER: I would say, candidly, that your analysis is largely incorrect. Let me try to explain in a few steps. First, where an agency is "placed" is not really the issue. Rather, the issue is whether the agency is involved in the execution or implementation of federal law. Any agency so doing is part of the "executive branch," at least in a sense. Now, some people will say that independent agencies are not part of the Executive Branch because they are independent of the President--independent typically because their heads are not removable by the President at will. I would say that this lessens presidential control, but it does nothing to obviate the underlying reality that the agency is executing federal law. Second, sure, the agency is "quasi legislative" in the sense you describe. But so is every agency. All execution of law involves some discretion, and often it is sensible to announce in advance, in the form of regulations (that look like statutes) how the agency plans to exercise that discretion. But this does not make them an extension of Congress, or part of the legislative branch. Recall that, under cases such as Chadha and Bowsher and Buckley that Congress can play no role in the execution of federal law. So this agency cannot constitutionally be a part of the legislative branch. Third, once we resolve that the agency is part of the bureaucracy that is executing federal law (whatever exact label we place on it), it should become clear that there can be no line-item veto problem. the President is merely adjusting how the law is being executed; he is not altering the statute itself. Finally, the delegation issue is only relevant in evaluating the standard that Congress has given the executive branch as a whole. So long as that states an intelligible principle for enforcement, that doctrine is satisfied.

  

QUESTION: Also, what are agencies like the EPA actually classified under and who is in charge of them? It seems that they are legislative in the fact that they create regulations but also executive as they enforce these regulations (through fines and whatnot). So is the legislative branch or he executive branch in charge of them or are they independent from both?

ANSWER: The EPA has responsibilities of enforcing and executing federal law, thus it is a part of the Executive Branch. The head is the Administrator of the EPA. Again, you are right that much of what it does seems legislative in nature. But the better way to understand this is as the exercise of discretion in the enforcement of federal law. 

Jurisdictional elements

QUESTION: I am a little confused about the idea of jurisdictional element. Is the only way to satisfy jurisdictional element to state specifically in the legislation "X in interstate commerce," or would something that is clearly used only in connection to interstate commerce suffice?

ANSWER: The term "jurisdictional element" refers specifically to additional explicit language in the statute. So, as you have phrased the question, I think yes, by definition, there is no jurisdictional element if that connection to interstate commerce is not specifically stated in the statute. (That is not to say, of course, that every statute needs a jurisdictional element. Indeed, many things, by their nature, are always in interstate commerce, such that it would be superfluous to include such additional language.)

QUESTION: For example, if there were legislation that barred handguns at weigh stations on interstate freeways, would the inclusion of the location "weigh stations" work as a jurisdictional element (assuming the only possible connection weigh stations have to commerce is in interstate commerce) and obviate the need to include " handguns in interstate commerce" in the phrasing of the law?

ANSWER: I would say "weigh stations on interstate freeways" would probably be a considered a jurisdictional element, yes. It is limited the scope of the regulated activity to a subclass with a closer connection to interstate commerce. Notice, too, that this jurisdictional element might actually bring the regulation into a different category under Lopez--namely, it might render the statute a regulation of the use of the channels of interstate commerce.

QUESTION: Congress is seeking to regulate the substantial effect, so it seems valid to transfer the jurisdictional element from "handguns in interstate commerce" to "handguns at place that is used exclusively for intestate commerce." The Lopez court used the phrasing "nexus with interstate commerce" and it seems as if, in this hypo, the weigh station is as good a nexus as any.

ANSWER: I would generally agree. I would just caution, though, that the existence of a "jurisdictional element" in a statute will not necessarily render a statute a valid use of the commerce power. Jurisdictional elements can come in sorts of different shapes and sizes, some creating a close nexus with interstate commerce and some requiring only a very attenuated one. So it all depends on how much work the jurisdictional element actually does.

QUESTION: For reference: in Lopez the court found that the statute stating "'for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.'" 18 U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V)" was not within the commerce clause for lack of a jurisdictional element. However, the inclusion of "firearm that has moved in or that otherwise affects interstate or foreign commerce" solved the jurisdictional element problem. 

ANSWER: Not necessarily. That was Congress's fix, but the Supreme Court has not held that it was sufficient. So this remains a bit unclear at this point.

QUESTION: If the requirement is that Congress add the phrasing adopted in the second statute, the whole exercise seems rather silly. Can't that just be implied (hello, implied pre-emption!), like so many other things?

ANSWER: I agree, at least to some degree. But again, we are not sure that Congress's fix was sufficient. Moreover, Lopez might have been more symbolic than real. And yes, I think it could be inferred in some circumstances (as mentioned above), but obviously the Court was unwilling to make that inference in Lopez.