I have received a few questions in the last week seeking a clarification on the similarities or differences between the Constitution's two clauses guaranteeing citizens their privileges or immunities. These questions are representative.
QUESTION: I am still unclear about the differences between the two. If you can review my summary below, I would appreciate it if you can correct my understanding or fill in any missing key points.
Privileges and Immunities Clause of Artilce IV Sec. 2
- General Purpose: to protect against state discrimination of out-of-staters with regard to "fundamental" rights or important economic activities.
- Test: Intermediate Scrutiny Test: Such discrimination will be allowed only it is substantially related to achieving a substantial state interest
ANSWER: That seems like an accurate summary to me. The one caveat I would add is that the rights for which Article IV scrutiny is triggered (when provided on a discriminatory basis) are a not necessarily the same as those considered "fundamental" as a matter of due process. There may be considerable overlap, but they are not the same. For instance, commercial shrimping is not protected by the Due Process Clause.
QUESTION: Privileges or Immunities Clause of 14th Amend. (I am unclear about this one)
- General Purpose: after incorporation, 14th Amend protects citizens from discrimination of fundamental rights, such as rights enumerated in the Bill of Rights, by the State. (Are there any other fundamental rights?)
- Test: Strict Scrutiny Test: State's interest must be compelling and necessary means.
ANSWER: Not quite. I think it is true that the Court has come to understand one of the purposes of Section 1 of the Fourteenth Amendment as prohibiting states from depriving persons of their "fundamental rights"--most of the rights enshrined in the first eight amendments as well as some other unenumerated ones. But it has not done this via the Privileges or Immunities Clause. Rather, it has occurred as a matter of due process. The only right that the Supreme Court has recognized as protected by the Privileges or Immunities Clause of the Fourteenth Amendment is the aspect of the right to travel that involves interstate migration of United States citizens. And Saenz v. Roe suggests that the infringement of this right warrants strict scrutiny.
Wednesday, November 12, 2008
Thursday, November 6, 2008
Next week's assignments
The assignments for next week's classes remain those set out in the assignment schedule. We will start class Monday by discussing Saenz and revisiting Problem 10, and then move on to the Lochner era and its demise. Wednesday, we take up various "economic" rights protected by the Constitution, including the right to just compensation when property is taken by the government. Because it is recent decision that has generated a great deal of controversy, I have assigned Kelo v. City of New London, which concerns the use of the eminent domain power for purposes of "economic development." A PDF of the full opinion is posted on the ClarNet course page. We will discuss Kelo either towards the end of Wendesday's class or at the beginning of the following week. Please read the majority opinion (authored by Justice Stevens) and Justice O'Connor's dissent.
Monday, November 3, 2008
A primer on the Electoral College
For those of you interested in a well written, relatively brief (20 pp.) primer on the Electoral College, you can find one here.
More dormant Commerce Clause questions
From my e-mail inbox over the weekend:
Question: In the Dean Milk case, we discussed alternative methods to achieving the state interest. One of the non-discriminatory alternatives was merely increasing the cost of milk to represent the true cost of the extra inspection. Is the essential difference between the two (the alternative we discussed and the actual law) the fact that the law coerces or mandates the milk in Madison to be only of local farmers or pasteurizers, whereas the alternative is an economic or market justification?
Answer: Yes and no. I would say that the difference is that Madison's law discriminated against interstate commerce (as it flatly barred milk based on geographic origin), whereas the alternative you mention did not. To be clear, the alternative you reference was to charge each seller of milk the actual cost to the City of Madison of inspecting their processing plants. This might naturally be a bit more for out-of-state producers, given the additional transportation costs. But the law would be non-discriminatory. All sellers would simply be forced to reimburse the City for the incurred inspection costs.
Question: In the Washington Apple case, where we discussed discrimination in affect and purpose, we established that the law was certainly discriminatory in practical effect. At the end of the case, you alluded you a point, and forgive me if I totally butchered it, but something along the lines of: If a law is found to have such a discriminatory affect, as in this case, to force the Washington apple producers to lose out in their competitive advantage, we can easily infer that the purpose of the law had to have been discriminatory. Is that how we determine discrimination in purpose?
Answer: Again, yes and no. I think in this particular case it was not so difficult to infer, especially when the proffered justifications by the North Carolina legislature rang so hollow. But this will not be true in every case. Again, as Exxon shows, a mere disparate impact on interstate commerce is insufficient to show discrimination in practical effect for purposes of the dormant Commerce Clause.
Question: How do we know if an interest is legitimate? From my understanding, it takes a examination of what the law is seeking to protect on its face but is there more to it, such as a test to apply?
Answer: There is no simple answer to this question, as it varies by context. With respect to the dormant Commerce Clause, almost any conceivable public interest is legitimate other than protecting the economic interests of the state's residents, or a subset of the state's residents. This is economic protectionism, and it is precisely what the dormant Commerce Clause seeks to forbid. Recall, though, that this is a perfectly legitimate interest if the state is acting as a market participant. Moreover, as we will see when we examine the Due Process Clause in the next few weeks, protecting the state's economic interests would be a legitimate interest for purposes of due process. So, what is legitimate depends on the context in which the question is raised.
Question: In the Dean Milk case, we discussed alternative methods to achieving the state interest. One of the non-discriminatory alternatives was merely increasing the cost of milk to represent the true cost of the extra inspection. Is the essential difference between the two (the alternative we discussed and the actual law) the fact that the law coerces or mandates the milk in Madison to be only of local farmers or pasteurizers, whereas the alternative is an economic or market justification?
Answer: Yes and no. I would say that the difference is that Madison's law discriminated against interstate commerce (as it flatly barred milk based on geographic origin), whereas the alternative you mention did not. To be clear, the alternative you reference was to charge each seller of milk the actual cost to the City of Madison of inspecting their processing plants. This might naturally be a bit more for out-of-state producers, given the additional transportation costs. But the law would be non-discriminatory. All sellers would simply be forced to reimburse the City for the incurred inspection costs.
Question: In the Washington Apple case, where we discussed discrimination in affect and purpose, we established that the law was certainly discriminatory in practical effect. At the end of the case, you alluded you a point, and forgive me if I totally butchered it, but something along the lines of: If a law is found to have such a discriminatory affect, as in this case, to force the Washington apple producers to lose out in their competitive advantage, we can easily infer that the purpose of the law had to have been discriminatory. Is that how we determine discrimination in purpose?
Answer: Again, yes and no. I think in this particular case it was not so difficult to infer, especially when the proffered justifications by the North Carolina legislature rang so hollow. But this will not be true in every case. Again, as Exxon shows, a mere disparate impact on interstate commerce is insufficient to show discrimination in practical effect for purposes of the dormant Commerce Clause.
Question: How do we know if an interest is legitimate? From my understanding, it takes a examination of what the law is seeking to protect on its face but is there more to it, such as a test to apply?
Answer: There is no simple answer to this question, as it varies by context. With respect to the dormant Commerce Clause, almost any conceivable public interest is legitimate other than protecting the economic interests of the state's residents, or a subset of the state's residents. This is economic protectionism, and it is precisely what the dormant Commerce Clause seeks to forbid. Recall, though, that this is a perfectly legitimate interest if the state is acting as a market participant. Moreover, as we will see when we examine the Due Process Clause in the next few weeks, protecting the state's economic interests would be a legitimate interest for purposes of due process. So, what is legitimate depends on the context in which the question is raised.
Tuesday, October 28, 2008
Some more on the dormant Commerce Clause
This material is nothing if not a bit confusing, if only because what seems to be happening diverges from the doctrine articulated by the Court. So let me recap a few basic principles, in hopes of alleviating some of that confusion.
* First, as a doctrinal matter, the analysis is fairly simple. The first question we ask is whether the law at issue discriminates against interstate commerce. If it does, we apply "rigorous scrutiny," which requires a legitimate (i.e., non-protectionist) state interest and that the means be necessary to accomplish that objective. If the court determines the law to be non-discriminatory, we apply the Pike balancing test, and the law is unconstitutional only if its burden on interstate commerce is clearly excessive relative to its putative local benefits.
* Second, a law can qualify as discriminatory against interstate commerce on its face, in its purpose, or in its practical effect. The first two are fairly straightforward, and both clearly identify laws that are intended to discriminate against interstate commerce. The last is problematic category. As Exxon shows, not all laws that affect interstate commerce disproportionately are deemed to "discriminate in practical effect." As I tried to explain last night, I think what is ultimately driving that determination is an intuition that the law is motivated by a discriminatory purpose (even if the Court is unwilling to so state).
* Third, the same sort of thing seems to be going on in the Court's application of the Pike balancing test. That is, it sure seems that when the Court comes to the conclusion that the burdens imposed on interstate commerce are "clearly excessive" in light of what the state is attempting to accomplish, at least a strong inference is raised that something else is afoot. Again, this is not what the Court says in Pike or Kassel, but it seems to be what is going on.
* Finally, let me add one caveat that I forgot to mention last night. There are a class of cases where the Court has found the burden on interstate commerce "clearly excessive" when there probably was no protectionism afoot, and those are cases where states have done something to clog the channels of interstate commerce. Bibb might be the best example. It is unclear how requiring contoured mudflaps could have accomplished a protectionist objective. (I would want to look at the factual record to be sure, but it certainly seems counterintuitive.) Yet the Court invalidated the law. I think the idea is that, given that we are an economic union, states cannot adopt commercial laws that tend to impede the flow of commerce throughout the nation when their ideosyncrisy tends to clog up the flow of commerce. Kassel might also be classified as such a case, but as I said last night, I think Kassel can also be unsderstood as involving protectionism.
I hope this helps in some way. And, as always, feel free to ask more questions.
* First, as a doctrinal matter, the analysis is fairly simple. The first question we ask is whether the law at issue discriminates against interstate commerce. If it does, we apply "rigorous scrutiny," which requires a legitimate (i.e., non-protectionist) state interest and that the means be necessary to accomplish that objective. If the court determines the law to be non-discriminatory, we apply the Pike balancing test, and the law is unconstitutional only if its burden on interstate commerce is clearly excessive relative to its putative local benefits.
* Second, a law can qualify as discriminatory against interstate commerce on its face, in its purpose, or in its practical effect. The first two are fairly straightforward, and both clearly identify laws that are intended to discriminate against interstate commerce. The last is problematic category. As Exxon shows, not all laws that affect interstate commerce disproportionately are deemed to "discriminate in practical effect." As I tried to explain last night, I think what is ultimately driving that determination is an intuition that the law is motivated by a discriminatory purpose (even if the Court is unwilling to so state).
* Third, the same sort of thing seems to be going on in the Court's application of the Pike balancing test. That is, it sure seems that when the Court comes to the conclusion that the burdens imposed on interstate commerce are "clearly excessive" in light of what the state is attempting to accomplish, at least a strong inference is raised that something else is afoot. Again, this is not what the Court says in Pike or Kassel, but it seems to be what is going on.
* Finally, let me add one caveat that I forgot to mention last night. There are a class of cases where the Court has found the burden on interstate commerce "clearly excessive" when there probably was no protectionism afoot, and those are cases where states have done something to clog the channels of interstate commerce. Bibb might be the best example. It is unclear how requiring contoured mudflaps could have accomplished a protectionist objective. (I would want to look at the factual record to be sure, but it certainly seems counterintuitive.) Yet the Court invalidated the law. I think the idea is that, given that we are an economic union, states cannot adopt commercial laws that tend to impede the flow of commerce throughout the nation when their ideosyncrisy tends to clog up the flow of commerce. Kassel might also be classified as such a case, but as I said last night, I think Kassel can also be unsderstood as involving protectionism.
I hope this helps in some way. And, as always, feel free to ask more questions.
Thursday, October 16, 2008
Next week
The reading assignments for next week's classes remain those set out in the assignment schedule. We will cover preemption on Monday and begin the material on the dormant Commerce Clause Wednesday. There is one modification: there will be no Problem 9. (I could manage to devise a preemption problem that justified the time it would take to cover in class.)
Also, as I mentioned in class last night, the lawyer for the Petitioner in Van de Kamp v. Goldstein, No. 07-854, will be mooting his Supreme Court argument at noon on Wednesday in our Moot Court Room. The question presented is whether supervising prosecutors are absolutely immune from civil rights claims based on their failure to implement an information management system tracking the information on government informants. All of the official documents in the case can be found here. (As a result of my participatin in the argument as a judge, I will not be available for my regularly scheduled office hours from noon to 1:30 next Wednesday.)
Also, as I mentioned in class last night, the lawyer for the Petitioner in Van de Kamp v. Goldstein, No. 07-854, will be mooting his Supreme Court argument at noon on Wednesday in our Moot Court Room. The question presented is whether supervising prosecutors are absolutely immune from civil rights claims based on their failure to implement an information management system tracking the information on government informants. All of the official documents in the case can be found here. (As a result of my participatin in the argument as a judge, I will not be available for my regularly scheduled office hours from noon to 1:30 next Wednesday.)
Thursday, October 9, 2008
Analysis of Problem 8
For those interested in a thorough analysis of the constitutional problem with the appointment of administrative law judges within the PTO, you can read this short paper by Professor John Duffy of George Washington University Law School. (Once arriving at the page with the abstract, you can download a PDF version of the paper.) It was Duffy's research that led to the story blowing up this past summer, and the recent scramble in Congress to devise some sort of a fix.
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