QUESTION: I'm getting confused when trying to justify congressional authority on some power other than commerce, spending, or tax. Would I turn to the necessary and proper clause or section 5 of the 14th Amendment or something else? Basically, I'm fuzzy on how to explain congressional authority when the statute has nothing to do with money.
ANSWER: A couple of response. First, much of what Congress can regulate using its commerce power need not concern money, at least directly. Recall Wickard v. Filburn. Or Gonzales v. Raich. Even the Civil Rights Act cases from the 1960s -- Heart of Atlanta Motel and McClung -- were not really about money, but instead racial discrimination. Second, yes, if the three powers you mention cannot justify the legislation, we have to look elsewhere, such as Section 5 or the treaty power (or the postal roads power or whatever). Just to be clear, though: the Necessary and Proper Clause is not a "power" by itself. It is about means, not ends. So it can never be invoked by Congress standing alone. Instead, it permits Congress wide latitude in selecting appropriate means once it is resolved that the objective is within Congress's enumerated powers.
Monday, May 4, 2009
Friday, May 1, 2009
Privileges and/or immunities
More from my inbox:
QUESTION: I am having some trouble understanding the difference between the P&I clause in the 14th amendment and the Art. 4 Sec. 2 P&I clause. My understanding is that Art. 4 P&I is a limit on states ability to regulate in a way that discriminates on the basis of state residency, but that it only protects certain P&I like the right to common calling/vocation, access to courts/medical care, right to travel etc. My question, is why do the plaintiffs in the Slaughter House cases challenge the monopoly law under the 14th amendment P&I clause? If the Art. 4 clause applies to states, and one of the fundamental P&I it protects is common calling/vocation, then why do they even bother trying to invalidate the law through the 14th amendment?
ANSWER: In short, the plaintiffs in Slaughter-House -- butchers who were forced to use the Crescent City Livestock slaughter-house -- were Louisiana residents. They had no basis for claiming that they had been discriminated against due to their state of residence. And it is only that sort of discrimination that is the concern of the Privileges and Immunities Clause of Article IV, section 2.
QUESTION: I have similar confusion about the Saenz case. Why did the court use the 14th amendment P&I clause to knock down the state law when the right to travel is protected by the Art. 4 P&I clause? Why didn’t they simply invalidate the law using the Art. 4 P&I clause?
ANSWER: Those are different aspects of the right to travel. The one at issue in Saenz concerned the right of interstate migration, the right to move from one state to another and become a resident of that second state. The aspect of the right to travel protected by Article IV, section 2 is the right, as a non-resident, to visit another state and generally to be treated equally. Because the plaintiffs in Saenz were California residents, Article IV, section 2 was simply irrelevant.
QUESTION: In the Slaughter-House decision there is some line about how the 14th amendment P&I clause “was not meant to protect individuals from state government actions and was not meant to be a basis for federal courts to invalidate state laws.” Wasn’t the entire purpose of the 14th amendment to protect people from states? Isn’t the court in Saenz using 14th amendments P&I clause as a basis for invalidating the CA law?
ANSWER: Well, I think that line is a bit of an overstatement. Even the majority in Slaughter-House would have agreed that the Privileges or Immunities Clause of the Fourteenth Amendment is a constitutional restriction on how states treat their own citizens. But they construed it as applying to a very small, relatively insignificant batch of rights. One, though, was the right to interstate migration, and this was the right vindicated in Saenz.
QUESTION: I am having some trouble understanding the difference between the P&I clause in the 14th amendment and the Art. 4 Sec. 2 P&I clause. My understanding is that Art. 4 P&I is a limit on states ability to regulate in a way that discriminates on the basis of state residency, but that it only protects certain P&I like the right to common calling/vocation, access to courts/medical care, right to travel etc. My question, is why do the plaintiffs in the Slaughter House cases challenge the monopoly law under the 14th amendment P&I clause? If the Art. 4 clause applies to states, and one of the fundamental P&I it protects is common calling/vocation, then why do they even bother trying to invalidate the law through the 14th amendment?
ANSWER: In short, the plaintiffs in Slaughter-House -- butchers who were forced to use the Crescent City Livestock slaughter-house -- were Louisiana residents. They had no basis for claiming that they had been discriminated against due to their state of residence. And it is only that sort of discrimination that is the concern of the Privileges and Immunities Clause of Article IV, section 2.
QUESTION: I have similar confusion about the Saenz case. Why did the court use the 14th amendment P&I clause to knock down the state law when the right to travel is protected by the Art. 4 P&I clause? Why didn’t they simply invalidate the law using the Art. 4 P&I clause?
ANSWER: Those are different aspects of the right to travel. The one at issue in Saenz concerned the right of interstate migration, the right to move from one state to another and become a resident of that second state. The aspect of the right to travel protected by Article IV, section 2 is the right, as a non-resident, to visit another state and generally to be treated equally. Because the plaintiffs in Saenz were California residents, Article IV, section 2 was simply irrelevant.
QUESTION: In the Slaughter-House decision there is some line about how the 14th amendment P&I clause “was not meant to protect individuals from state government actions and was not meant to be a basis for federal courts to invalidate state laws.” Wasn’t the entire purpose of the 14th amendment to protect people from states? Isn’t the court in Saenz using 14th amendments P&I clause as a basis for invalidating the CA law?
ANSWER: Well, I think that line is a bit of an overstatement. Even the majority in Slaughter-House would have agreed that the Privileges or Immunities Clause of the Fourteenth Amendment is a constitutional restriction on how states treat their own citizens. But they construed it as applying to a very small, relatively insignificant batch of rights. One, though, was the right to interstate migration, and this was the right vindicated in Saenz.
Levels of scrutiny
Several questions in my inbox concerning the applicable levels of judicial scrutiny in particular contexts:
QUESTION: I had a few questions on the level of scrutiny used for Dormant commerce clause and also for enumerated rights. First, the dormant Commerce Clause, for facially discriminatory laws: The language of substantial interest with no reasonable alternative sounds a lot like the intermediate scrutiny of Article IV except that "no reasonable alternative" sounds more demanding than "substantially related to." If anything that sounds a lot like strict scrutiny's necessary, is it a hybrid of the two or is it pretty much intermediate scrutiny?
ANSWER: I would characterize it as a sort of hybrid, tailored to the underlying purposes of the clause. The requirement is (a) a legitimate (i.e., non-protectionist) purpose, and (b) means that are necessary (i.e., no nondiscriminatory alternatives) to achieve that interest. The applicable scrutiny is "strict" in a sense, but only with respect to the means-ends fit, not the importance of the state objective.
QUESTION: For Neutral with Undue Burden under the dormant Commerce Clause: "legitimate interest" seems to imply deferential scrutiny but the Pike balancing is much more strict than a "rational basis" for the law.
ANSWER: I'm not sure I agree. I would characterize the Pike test as fairly deferential.
QUESTION: Is the "legitimate interest" portion really the same interest as deferential scrutiny?
ANSWER: I think it is the same as that for discriminatory state laws. The purpose the law serves, in this context, must be something other than economic protectionism.
QUESTION: Are all currently incorporated enumerated rights given strict scrutiny? What about non incorporated enumerated rights when it is a federal law that's at issue?
ANSWER: This is complicated. With respect to specifically incorporated rights appearing in the first eight amendments (such as the right to counsel, the right to confront witnesses, or the right to be free from unreasonable searches or seizures), the Court has worked out clause- or right-specific doctrines. I'm not sure I would really characterize those doctrines as "strict scrutiny"; that would be painting with too broad a brush. Certainly the governmental action gets close judicial examination. But it is not the same sort of analysis as what we have seen with respect to the rights deemed "fundamental" as a matter of due process that we have studied, where the Court asks whether the government's interest is compelling and whether the means are narrowly tailored. Perhaps it is strict scrutiny in some sense, but it is translated into a particular doctrinal context, such that the constitutional analysis proceeds differently. You will see this in great detail if you take criminal procedure. And you will see it next fall with respect to the First Amendment.
QUESTION: I had a few questions on the level of scrutiny used for Dormant commerce clause and also for enumerated rights. First, the dormant Commerce Clause, for facially discriminatory laws: The language of substantial interest with no reasonable alternative sounds a lot like the intermediate scrutiny of Article IV except that "no reasonable alternative" sounds more demanding than "substantially related to." If anything that sounds a lot like strict scrutiny's necessary, is it a hybrid of the two or is it pretty much intermediate scrutiny?
ANSWER: I would characterize it as a sort of hybrid, tailored to the underlying purposes of the clause. The requirement is (a) a legitimate (i.e., non-protectionist) purpose, and (b) means that are necessary (i.e., no nondiscriminatory alternatives) to achieve that interest. The applicable scrutiny is "strict" in a sense, but only with respect to the means-ends fit, not the importance of the state objective.
QUESTION: For Neutral with Undue Burden under the dormant Commerce Clause: "legitimate interest" seems to imply deferential scrutiny but the Pike balancing is much more strict than a "rational basis" for the law.
ANSWER: I'm not sure I agree. I would characterize the Pike test as fairly deferential.
QUESTION: Is the "legitimate interest" portion really the same interest as deferential scrutiny?
ANSWER: I think it is the same as that for discriminatory state laws. The purpose the law serves, in this context, must be something other than economic protectionism.
QUESTION: Are all currently incorporated enumerated rights given strict scrutiny? What about non incorporated enumerated rights when it is a federal law that's at issue?
ANSWER: This is complicated. With respect to specifically incorporated rights appearing in the first eight amendments (such as the right to counsel, the right to confront witnesses, or the right to be free from unreasonable searches or seizures), the Court has worked out clause- or right-specific doctrines. I'm not sure I would really characterize those doctrines as "strict scrutiny"; that would be painting with too broad a brush. Certainly the governmental action gets close judicial examination. But it is not the same sort of analysis as what we have seen with respect to the rights deemed "fundamental" as a matter of due process that we have studied, where the Court asks whether the government's interest is compelling and whether the means are narrowly tailored. Perhaps it is strict scrutiny in some sense, but it is translated into a particular doctrinal context, such that the constitutional analysis proceeds differently. You will see this in great detail if you take criminal procedure. And you will see it next fall with respect to the First Amendment.
My availability between now and the final exam
Here is a schedule of when I will be holding office hours (and having a review session) over the next two weeks:
Monday, May 4: office hours from 11:00 to 1:00.
Tuesday, May 5: office hours from noon to 2:00.
Tuesday, May 12: office hours from 9:30 to noon, review session from 1:00 to 3:30.
Wednesday, May 13: office hours from 9:15 to 11:15.
I might be free at a few other times, but this is what I can commit to for the time being. Also, I am happy to field questions by e-mail. Those of a general interest I will answer on the course blog.
Monday, May 4: office hours from 11:00 to 1:00.
Tuesday, May 5: office hours from noon to 2:00.
Tuesday, May 12: office hours from 9:30 to noon, review session from 1:00 to 3:30.
Wednesday, May 13: office hours from 9:15 to 11:15.
I might be free at a few other times, but this is what I can commit to for the time being. Also, I am happy to field questions by e-mail. Those of a general interest I will answer on the course blog.
Thursday, April 30, 2009
Exemptions from anti-discrimination laws
I just received this interesting question regarding the California Supreme Court's decision of earlier this week.
QUESTION: Hi Joony. I saw this article today and was wondering what it means constitutionally. It seems to me that the private schools referenced in this article can now discriminate against students on ANY basis, including race. Wouldn't that violate federal law? Are they exempt? Please let me know what you think about this.
ANSWER: Hi studenty. Actually, many civil rights laws exempt private clubs and organizations, especially religious ones, from their coverage. Sometimes these exemptions are purely a policy choice. (My recollection is that private schools are, in fact, exempt from many federal civil rights laws, but I'm not certain of this. Certain forms of discrimination, however, can disqualify them from various benefits, such as being declared a charity, donations to which would generate a federal tax deduction.) In some instances, though, these exemptions are constitutionally required by virtue of the First Amendment. The Supreme Court has interpreted the First Amendment as protecting a right of association, and that right includes the right not to be forced by the government to associate with people who would undermine the organization's message. The most famous case on this point is Boy Scouts v. Dale, where the Court invalidated New Jersey's attempt to apply its law prohibiting discrimination on the basis of sexual orientation to the Boy Scouts, who had dismissed a gay scout leader. Not many organizations are exempt statutorily, and fewer still would have a First Amendment claim to be entitled to continue their discrimination. But the short answer to your question is yes, there are several such exemptions in civil rights laws, and many are constitutionally necessary.
QUESTION: Hi Joony. I saw this article today and was wondering what it means constitutionally. It seems to me that the private schools referenced in this article can now discriminate against students on ANY basis, including race. Wouldn't that violate federal law? Are they exempt? Please let me know what you think about this.
ANSWER: Hi studenty. Actually, many civil rights laws exempt private clubs and organizations, especially religious ones, from their coverage. Sometimes these exemptions are purely a policy choice. (My recollection is that private schools are, in fact, exempt from many federal civil rights laws, but I'm not certain of this. Certain forms of discrimination, however, can disqualify them from various benefits, such as being declared a charity, donations to which would generate a federal tax deduction.) In some instances, though, these exemptions are constitutionally required by virtue of the First Amendment. The Supreme Court has interpreted the First Amendment as protecting a right of association, and that right includes the right not to be forced by the government to associate with people who would undermine the organization's message. The most famous case on this point is Boy Scouts v. Dale, where the Court invalidated New Jersey's attempt to apply its law prohibiting discrimination on the basis of sexual orientation to the Boy Scouts, who had dismissed a gay scout leader. Not many organizations are exempt statutorily, and fewer still would have a First Amendment claim to be entitled to continue their discrimination. But the short answer to your question is yes, there are several such exemptions in civil rights laws, and many are constitutionally necessary.
Thursday, March 26, 2009
Quarantines and the dormant Commerce Clause
Yesterday in class, Hannah raised the question posed by then-Justice Rehnquist in his dissent in Philadelphia v. New Jersey: how was New Jersey's out-of-state solid waste ban any different from state quarantines, which the Court had previously upheld. I tried to answer her question, but I could tell my effort was not terribly successful. Let me explain further now.
In the quarantine situation, the state is attempting to completely bar or eradicate some noxious agent from within its borders: hoof and mouth disease, the Mediterranean fruit fly, or whatever. To eradicate this menace, the state takes a few complementary steps. First, it takes action to destroy its existence within the state's borders. Second, it bars anything from coming into the state that might contain the agent. (This second step, of course, is the quarantine that has been upheld on dormant Commerce Clause challenge.) The quarantine is constitutional because, when seen in context, it is part of a nondiscriminatory effort to completely eradicate or eliminate the destructive agent from within the state's borders. (Alternatively, you could say the state has no non-discriminatory alternatives to accomplish this aspect of its objective.)
Contrast that with how New Jersey approached the problem of solid waste. It did not think that the existence of solid waste per se within its borders was a public health problem. Nor did it think that the disposal of solid waste within its borders was a public health problem. Instead, it wanted to reduce the amount of solid waste disposal within its borders. This is a perfectly legitimate objective, but it cannot be pursued in a discriminatory fashion. New Jersey cannot pursue its goal of having less solid waste by placing the burden of that reduction entirely on out-of-state waste producers.
A more analogous case would be if California, instead of wanting to completely eradicate the Mediterranean fruit fly, only wanted to reduce the size of its population. And pursuant to that goal, the state sought to accomplish that objective through a law that discriminated based on geographic origin -- for instance, by prohibiting the importation of fresh fruit. Even if such a measure would reduce the fruit fly population, California could not accomplish that goal by foisting the burden on fruit farmers entirely on out-of-state producers.
In short, in the quarantine cases the state's objective, though similar, was qualitatively different: complete eradication. Seen in that light, the bar at the border was effectively nondiscriminatory. Persons trying to bring diseased cattle into the state were really treated no differently than in-state residents who owned cattle that the state learned were diseased.
In the quarantine situation, the state is attempting to completely bar or eradicate some noxious agent from within its borders: hoof and mouth disease, the Mediterranean fruit fly, or whatever. To eradicate this menace, the state takes a few complementary steps. First, it takes action to destroy its existence within the state's borders. Second, it bars anything from coming into the state that might contain the agent. (This second step, of course, is the quarantine that has been upheld on dormant Commerce Clause challenge.) The quarantine is constitutional because, when seen in context, it is part of a nondiscriminatory effort to completely eradicate or eliminate the destructive agent from within the state's borders. (Alternatively, you could say the state has no non-discriminatory alternatives to accomplish this aspect of its objective.)
Contrast that with how New Jersey approached the problem of solid waste. It did not think that the existence of solid waste per se within its borders was a public health problem. Nor did it think that the disposal of solid waste within its borders was a public health problem. Instead, it wanted to reduce the amount of solid waste disposal within its borders. This is a perfectly legitimate objective, but it cannot be pursued in a discriminatory fashion. New Jersey cannot pursue its goal of having less solid waste by placing the burden of that reduction entirely on out-of-state waste producers.
A more analogous case would be if California, instead of wanting to completely eradicate the Mediterranean fruit fly, only wanted to reduce the size of its population. And pursuant to that goal, the state sought to accomplish that objective through a law that discriminated based on geographic origin -- for instance, by prohibiting the importation of fresh fruit. Even if such a measure would reduce the fruit fly population, California could not accomplish that goal by foisting the burden on fruit farmers entirely on out-of-state producers.
In short, in the quarantine cases the state's objective, though similar, was qualitatively different: complete eradication. Seen in that light, the bar at the border was effectively nondiscriminatory. Persons trying to bring diseased cattle into the state were really treated no differently than in-state residents who owned cattle that the state learned were diseased.
More on the doctrinal framework under the dormant Commerce Clause
A quick clarification about the doctrinal framework for analyzing dormant Commerce Clause problems. Yesterday, a couple of you asked this question: if a state successfully demonstrates that it has no nondiscriminatory alternatives to accomplish the objectives of the law, must the state still demonstrate (under the balancing test of Pike v. Bruce Church) that the law's burden on interstate commerce is not "clearly excessive" relative to its putative benefits? The practical answer is no.
In essence, the Court has created a two-tiered scheme of judicial scrutiny for laws challenged under the dormant Commerce Clause. If the state law discriminates against interstate commerce (whether on its face, in its purpose, or in its practical effect), it is subject to the "strictest of scrutiny" and will only be constitutional if the state demonstrates that the law (a) advances legitimate (i.e., non-protectionist) interests, and (b) the state has no other, nondiscriminatory alternatives for accomplishing those goals.
If the state law does not discriminate against interstate commerce, it is subject to a much milder, more deferential standard of scrutiny: it will only be invalidated if it places burdens on interstate commerce that are "clearly excessive" relative to its putative benefits.
The Court has always conceived of these as alternative paths, with one being much stricter than the other. Thus, if a state law survives the stricter test (for discriminatory laws), then a fortiori it should follow that the law satisfies the more deferential Pike balancing test.
In essence, the Court has created a two-tiered scheme of judicial scrutiny for laws challenged under the dormant Commerce Clause. If the state law discriminates against interstate commerce (whether on its face, in its purpose, or in its practical effect), it is subject to the "strictest of scrutiny" and will only be constitutional if the state demonstrates that the law (a) advances legitimate (i.e., non-protectionist) interests, and (b) the state has no other, nondiscriminatory alternatives for accomplishing those goals.
If the state law does not discriminate against interstate commerce, it is subject to a much milder, more deferential standard of scrutiny: it will only be invalidated if it places burdens on interstate commerce that are "clearly excessive" relative to its putative benefits.
The Court has always conceived of these as alternative paths, with one being much stricter than the other. Thus, if a state law survives the stricter test (for discriminatory laws), then a fortiori it should follow that the law satisfies the more deferential Pike balancing test.
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