Late-Breaking Qs & As

 

Q. For the 4th part of NLC test to be met, in which the state interest must must outweigh the federal interest to get immunity -- do you have an example of this application 

A. The 4th part was added by Justice Blackmun's concurrence.  In Usury he evidently felt that employee protection wasn't a substantial federal interest; but he mentioned environmental protection as one.  See also Hodel (paramount federal interest in strip mining).

 

Q. What is an approved inherent power?

A. The only inherent presidential power recognized (so far) is defense of the nation from invasion or insurrection.

 

Q. What is the standard relationship used for the necessary and proper clause btwn the means and the power used?

A. No std relationship; depends on the power.  Could be RB or substantial relation.

 

Q. I thought that for a law that regulated domestically under Congress war power that you had to have a substantial relationship between the means and the ends a la Woods v. Miller. Is this wrong? All you need is to satisfy the rational basis test for domestic regulation under war power?

A. I read Woods v. Miller as fairly deferential to Congress on the federalism issues attending use of the war power.

 

Q. I understand that in Mculloch, Marshall said that the end must be an enumeratered power, and the means must be plainly adapted (can implied power of Congress) and I think that for tax and spending and war and treaty powers the test is not the RB test, but rather a substantial relationship test, what is the difference between these two tests?

A. We've seen 3 basic tests:
Rational basis:  The courts defer to legislative findings and choices; any legitimate goal is accepted; any rational means allowed
Substantial relation:  a close nexus is required between means and ends
Strict scrutiny:  the law must be necessary in order to achieve a compelling state interest

All 3 tests are in use, depending on the const'l doctrine involved.
Commerce power:  originally rational basis (per Marshall); now substantial relation (per Lopez)
War & Treaty:  rational basis
Spending:  rational basis (for general welfare) and substantial relation (for conditional grants)
Dormant Com Cl.:  strict scrutiny for initentional discrimination
P&I:  subsantial relation

 

Q. Congress can only abrogate state immunity if they clearly state they are abrogating state immunity only under §5 of the 14th Amendment.  But they must be congruent and proportional to a §1 violation.  So for what reasons can Congress abrogate state immunity?  Is it for violation of civil rights (discrimination either under the P&I Clause or Equal Protection) and due process rights?

A. Yes, that's right. And, it is all you need to know, since we didn't get further into congruence and proportionality.

 

Q. Let's say an Act coerces states to follow the regulation by threatening their fed funds. Which test would I apply here? It seems that the law is making the state give up their right to regulate the health and safety of the state - so do I just apply the UC test?

A, You would apply S.Dak v. Dole, as well as Youngstown v. Sawyer.

The President ordered state agencies to comply with his directive.  Had congress done this, it would have been a 10th Amd, version 2 problem.  Ordinarily, this is not a problem (Garcia), so long as uniformly applied to state and private parties (Reno).
However, congress was fairly silent here.  The Pres. is acting in Zone 2.  Hence, you balance the need for unilateral presidential action against the damage done to const'l rights and structure.  The damage here is 10th Amd. version 2 - regulation of states - without the benefit of the Garcia political postulate (states can protect their initerests through their representation in congress).  Arguably, the President's order violates Garcia and invades the states' 10th Amd (ver. 2) rights.

So, even if the President's order survives S.Dak v. Dole (which is an offshoot of UC doctrine, geared specifically to federal spending) - i.e., the condition (states submit to Ver. 2 violation) is substantially related to Congress' purposes in the Medical Research Act - it may fail Youngstown.

 

Q.does the stripping doctrine apply to the President? And when dealing with the stripping doctrine, the officer must breach federal law correct? If this is correct then I am confused as to the discussion about the 11th and 14th amendment. I understand that we treat the official as an individual under the 11th amendment, but we treat them as a state for the 14th bc individuals cannot violate the consitution. Is this right? This may be a very dumb question, but is federal law = to the consitution?

A. The Stripping Doctrine doesn't apply to the President because the federal government doesn't enjoy 11th Amd immunity. When suing a state officer, you can use the stripping doctrine to obtain equitable relief, but not legal relief (damages) because the judgment would be satisfied out of the state treasury. To obtain damages from a state official, or from a state agency, you need one of the exceptions, such as abrogation. Congress can abrogate pursuant to the 14th, but not its section 8 powers. Federal law includes any law of the US (per the supremacy clause); including constitutional and statutory rights.

 

Q. What is the difference between absolute and qualified immunity?

A. A defendant who enjoys absolute immunity (e.g., a judge, prosecutor)  can't be sued even if they acted n bad faith.  Qualified immunity  attaches to most executive officials (e.g., police) and is  appropriate only when the officer acted n good faith.

 

Q. can you please tell me if a Head of a Department is considered a principal or inferior officer?

A. Principal

 

Q, I was wandering if when a state agency is operating under the market participant doctrine can it still claim 11th amendment immunity from suits by private citizens?

A, I don't see why not.  If the state enjoys MPD status because it is  expending state funds, lets say, it would be acting at the height of  its sovereignty.  11th amd immunity would be appropriate there.

 

Q. I am a little confused as to the difference btwn the Unconsitutional grant test and the conditional conditions test? Are
there different elements? I only have the consitutional conditions test, which makes me think I am missing something. My elments for that are:
1. Is it for the general welfare - RB test
2. Are the conditions ambiguous and clear?
3. Is there a substntial relationship btwn the purpose of the grant
and the condition imposed? substantial relationship needed
4. Do the conditions violate any express consitutional provisions?
And should this be called the unconstitutional conditions test?

A. The conditional spending test is a subset of the unconstitutional  conditions test.  The UC test has 3 parts:

1.  Is government providing a legitimate discretionary benefit (one  they don't have to give).
2.  Have they demanded the relinquishment of a const'l right in  exchange for the benefit
3.  Is the condition substantially related to the purpose of the  benefit?

As this is applied to conditional funding to states, it looks like this:

1.  Is this a lawful discretionary exercise of congress' spending  power (grant to states)
     a. is it rationally related to the gen'l welfare
     b. is the grant otherwise lawful (e.g, doesn't violate the  establlshment clause)
2.  Has congress demanded that states relinquish their 10th amendment  rights in exchange for the money (e.g., agree to be commandeered)
     a.  Is the condition unambiguous
3.  Is the condition (e.g., enforcement of 21 yr old drinking age by  states) substantially related to the grant (e.g., federal highway funds)



Q. For the Lopez test, under the 3rd part --- what exactly does it mean to be a jdxal element?

A. That's when enforcement of the federal law depends on their being an  interstate component to the regulated activity.  Thus, had the GFSZA  (Lopez) required the proseductor to prove that the gun had moved in  interstate commerce, then there would have been a jdx'l element, and  that would saved the law.



Q. In the practice exam for Fall, 2004. I thought there would be some discussion about the President's possible immunity from suit, but the answer does not present that. Is this totally off base?

A. Immunity comes into play only when some form of personal liability is  sought from defendant.  In the question, the only relief asked for  was declaratory judgment, which can be obtained from the gov't  lawyers.  Had it also sought damages (or criminal liability), then  discussion of immunity would be appropriate.



Q. If I understand correctly, an association may sue on behalf of its members. Does this mean that there needs to be a discussion about the members' standing?

A. Yes.  And the suit must be germane to the purpose of the  association.  E.g., the Auto Club can sue to challenge a DMV  regulation, but not an education law.

 

Q. My question is regarding the discrepancy between the holding in UBCTC v. Camden and White v. MA Council.  Is the Supreme Court saying that because UBCTC was brought to court in violation of the P&I clause, and that because the P&I clause is expressly stated in the Constitution, the Court cannot make an exception to the P&I Clause?  Whereas in White the law violated the DCC, and because the DCC is an implied restriction on states, the Court can use the MPD exception?  For exam purposes how would the analysis go?  Should we first see if the state law violates the DCC.  Then if it does not violate the DCC or if the law falls under the MPD exception and the law is discriminatory against out-of state citizens, perform a P&I analysis? 

A. A couple of things distinguish the DCC from the P&I clause, and application of the MPD to the former, but not the latter.

First, the MPD is a federalism-based exception to a federalism-based limitation on state action (DCC).  Whereas the P&I clause is not based on federalism, but state comity.

Second, the DCC is implied form the grant of power to congress; it is not an express limitation on state power (as is P&I).  Thus, the S.Ct. simply implies a  little differently when a state is a MPD, but can't employ that technique when a state is violating P&I.

Third, although there is no MPD exception to P&I, the fact that the state is expending its own money is not irrelevant to the P&I analysis.  It may, in fact, tip the scales in favor of the state.

 

Q. If White were to be brought into court for violation of the P&I clause, would the Court have ruled the state law to be unconstitutional?

A. White and Camden are essentially identical cases (on the facts).  The outcomes would be nearly identical had they both raised P&I claims.  But, notice, the S.Ct. merely remanded the Camden case back to the lower court for trial.

 

Q. What will trigger us to do an analysis of Congress' 14th amendment powers? Do we even really know enough to do this analysis? (The boerne, proportional and congruent test seems to be more about state soverignty than about how congress actually uses its 14th amendment, section 5 powers)

A. We spent little time on congress' section 5 powers.  But a law passed pursuant to section 5 has to be both proportional and congruent to a section 1 violation (e.g., equal protection or due process).  The C&P test (Boerne v. Flores) applies whether or not congress has abrogated state sovereign immunity, but seems to apply with greater force when it does abrogate.

 

Q. The intelligable principle doctrine: what exactly constitutes an IP?  For ex giving the exec branch power to "promote the public health" by deciding which agencies can use stem cell research and which cant...it seems to be on the fence.  On one hand, he is being giving a point of reference the way I imagine the Dept of Public Health's charter might look, but on the other hand, he seems to have absolute discretion with seemingly no way to contradict the president's findings.

What should we do with this problem?

A. I agree.  That's a close one.  I think you'd wind up with a split court.

 

Q. First, do we need to be familiar with the Borne test? I don't think we discussed it's elements in class but it was included in your sample answer to the Spring 2005 test and I know you don't cover everything to the same extent eery year.

A. No, we did not cover it.

 

Q. Also, in your sample answer, on the 2nd page when you were discussing the DEA, you said it was an executive agency because the Executive has the power to remove, although that specific fact was not in the fact pattern.Is it safe to assume members of executive agencies such as the DEA and FTC and FDA etc can only be removed by the President, even if this removal  can only be for cause?

A. Unless congress specificially states otherwise, all agencies are created in the executive branch because that's the only place they can actually function.

Q. I have a few questions regarding the Spring 2005 exam (it was the question about the 2 Ca citizens using marijuana for medical purposes). The fact pattern didn't specify whether the case was being brought in state or federal court and one of the issues I thought would be relevant was justiciability. Should we discuss standing etc by saying if this case is brought in federal court, then....and if brought in state court, we would look to the state standards?

A. If the facts don't specifically state that the case is being brought in federal court, then justiciability is probably not a significant issue.  You could address it briefly and move on.

 

Q. The other issues I found were identifying which enumerated power the act was passed under and whether the state law was pre-empted and the actions of the DEA and whether the search was within their delegated authority. Also, there were SOP issues with the DEA agents I thought. Were there more issues that I missed?

A. Congress doesn't always state which power it is using (nor do exams), so you would need to run through all relevant powers.

 
Q. The plaintiffs were suing the Attorney General and, I know this is probably a silly question, but do we assume the Attorney General is part of the DEA for these purposes? Also, by raiding the home the DEA agents were in essence "enforcing the law" correct, so they were an executive agency performing an executive function?

A. The AG is part of the executive branch, but not part of DEA.  Yes, the executive agencies were enforcing the law; that's what they do.

 
Q. The facts stated the plaintiffs were seeking declaratory and injunctive relief but I couldn't really identify what the injunction was for.

A. Injunctive relief is usually to enjoin implementation of the law.

 
Q. Finally, I said  whether the DEA agencts acted within the scope of their authority would be determined by using the Chevron test and briefly described and applied it to the facts. Was this correct or misplaced?

A. Yes, but make sure to place the Chevron test in the broader context of Jackson's 3-zone analysis.

 

Q. would it be correct to say that we use the Rational Basis test in all circumstances except when dealing with interstate commerce where we apply substantial effects under Lopez? And would I be incorrect to say that the court in Wood abandoned the rational basis test in favor of the Substantial Relationship Test, requiring a stronger connection between the area being regulated (in Wood: rent control) and the relative clause (Again in Wood: War Power).

A. No rule of thumb.  You have to go clause by clause.  War Power - rational basis.  Spending Clause - RB for most grant programs, but substantial relation for conditional spending that implicates states rights (unconstitutional conditions doctrine).  14th Amd enforcement powers - Congruence and Proportionality (a form of substantial relation); etc.

 

Q.I am slightly confused as to when to use the substantial effects test as opposed to the Rational basis test. I think we said in class that Lopez overruled the rational basis test, and replaced it with the substantial effects test, but is this in all circumstances, or just in regards to commerce, or do I have the whole thing mixed up? I believe we also used the substantial effects test in Wood v Miller for War & Treaty power, so it appears that substantial effects governs with regard to at least Commerce and War & Treaty Powers. Any guidance you can offer would be greatly appreciated.

A. The rational basis test of McCulloch v. Maryland still applies in many instances (including the War & Treaty power).  But it has been supplanted by the substantial relation test (Lopez v. US) for the interstate commerce clause.

 

Q.Just had a quick question for you about the NLC test. I am wondering if these are elements or factors. The way I see it, the first 3 are elements and then the last is a balancing test. So regardless of meeting these elements, we go on to the 4th element to use a balancing test to overcome possible failure of the element. Is this correct?

A. All 4 factors must be met; the last being a balancing test.  But, of course, NLC isn't good law any more, at least not formally.