General Principles
Pat is building a solar photovoltaic generating station on 40 acres of her farm. Under a government program, she is entitled to a substantial federal subsidy for doing so. The government did not pay her within the time her application said it would. She sued. Six months later the government paid her what she was owed, including interest accrued for the delay in payment, and moves to have the suit dismissed. What result?
Yes. The dispute is now moot insofar as Pat has received all the relief to which she is entitled and the case should be dismissed.
Assume the Supreme Court declares a statute unconstitutional. The president orders the Attorney General and the Department of Justice to enforce the statute because she disagrees with the Supreme Court’s interpretation of the Constitution on this point. What should the Attorney General and Department of Justice do, and why?
Refuse to enforce the statute because the Supreme Court has the final say on interpreting the constitution, including the power to declare statutes unconstitutional. Marbury v. Madison (1803).
Congress wants to generate funds to pay for educational grants. Would a one percent sales tax on all transactions done over the Internet be constitutional?
This is a simply a taxing program and as such is constitutional. It taxes transactions so the “direct” tax or “capitation” tax bar does not apply. It is designed to raise money for a program for the general welfare. The funds do not need to be earmarked for any particular program, but could be.
Can the state of Texas constitutionally impose a 3 percent sales tax on goods manufactured and sold within the state and a 6 percent sales tax on goods manufactured elsewhere and shipped into the state? Why or why not? What rule is implicated?
No, under the Dormant Commerce Clause, the state cannot impose a discriminatory law that imposes a burden on interstate commerce.
Laws affecting the fundamental rights of some groups but not others are subjected to which of the following:
A. Rational basis review.
B. Intermediate scrutiny.
C. Strict scrutiny.
D. It depends on whether the groups are suspect or nonsuspect classification
C. Strict scrutiny
As with suspect classification, laws affecting fundamental rights are always subject to strict scrutiny. Despite (d), this is true regardless of the group whose rights are being infringed upon, so long as some other groups are not similarly impeded.
Assume a federal agency states that a general contractor cannot hire a trade contractor owned or managed by a relative of an owner or manager of the general contractor. May owns May’s Road Construction, Inc. Pat, May’s sister, owns Pat’s Paving, Inc. Pat submitted the lowest responsive responsible bid on a federal highway project on which May’s Road Construction was the general contractor. May asks Pat to sue May’s Road Construction after May rejected Pat’s low bid on the grounds of the anti-nepotism law. May said she would pay all the attorneys’ fees for both sides. What result?
The advisory opinion bar would apply because the lawsuit is collusive and therefore no real case or controversy exists.
Would a law requiring that all appeals in all intellectual property cases in the areas of patent, copyright, and trademark be appealed to the Federal Circuit Court of Appeals be constitutional?
Yes. It would be constitutional under congressional power to establish lower courts and to set the jurisdiction of the courts.
Is a federal law requiring all state-employed medical officers to create a program to vaccinate the entire population of the state against the Zika virus constitutional?
No. This requirement would run afoul of the non-commandeering theory of the Court. The federal government cannot commandeer state officials to administer a federal program.
The state of Organix completely prohibits the use of herbicides and pesticides in agriculture. Riddit, a maker of the most popular agricultural herbicides and pesticides, wants to sell its products to farmers in Organix. Organix based its decision to ban herbicides and pesticides on studies showing that herbicides and pesticides have a deleterious effect on the environment, including especially on bees, a critical pollinator. Is the Organix program constitutional?
The prohibition is probably constitutional under Maine v. Taylor (1986) because of the important public interest being served in health and safety and there is no other method of meeting the goal that would be as effective and would still allow Riddit products to be sold in the Organix. Nonetheless, the matter is not free from doubt because it does undermine the idea of an integrated national economy. One can imagine the Supreme Court deciding that this intrusion into the economy for merely environmental reasons is too much.
In light of recent events Congress passes a law temporarily prohibiting any citizen of the United States who has gained their citizenship within the past 5 years from leaving the country until such time as they schedule and undergo an interview. Is the law valid?
YES, because this is not a fundamental right and the law will likely survive rational basis review.
The right to travel abroad is not a fundamental right, even though the right to travel freely among the states is a fundamental right. The law will therefore be subjected only to rational basis review, which it would likely pass.
Jon, Jim, and Mary sought a marriage license from the state license-issuing authority but were not given one because the state does not recognize marriage between more than two people. They sued the state marriage licensing authority to obtain a court order that the state issue the license. What result?
Jon, Jim, and Mary have standing to sue since they have experienced a particular impact, they have a constitutionally cognizable claim of liberty that they assert has been affected, and the court could redress the putative denial of liberty by ordering the state to issue the license
The Senate ratified a duly negotiated treaty presented to it by the president that ends the imposition of sanctions on Logiland. Two years later, the House and Senate pass a bill that re-imposes sanctions on Logiland. The president vetoes it. Both houses of Congress vote to override the veto. The president does not re-impose sanctions, citing the treaty and his power over foreign affairs. What result?
The later law prevails, and the president is violating the law. It seems unlikely that the president’s authority would fall into category three of the Justice Jackson typology such that the president can ignore the will of Congress in this regard.
Assume there is no federal law or regulation regarding the safe design of car seats for children, and the state of Safeness passes a law requiring all children under five years old who are passengers in cars be in a state-approved car seat with a five-point harness. Assume further that all child car seats are manufactured in another state and so must pass through interstate commerce to reach the state of Safeness. Is this sort of regulation within the general power of a state to regulate?
Yes. States have general power over matters of health and safety and can regulate on matters within the state itself, including product safety standards, unless federal preempts the state from doing so. Issues concerning the extent of the state power will be explored in more detail in chapter 5 concerning the federal power under the Commerce Clause and in chapter 11 concerning express and implied limits the Constitution places on state power.
Organix prohibits the sale of nonorganically produced food of all types in all stores in the state and also prohibits the sale of genetically modified organisms (GMOs), which includes most corn and grains grown today. Prest, the maker of the most popular brand of corn flakes, as well as other breakfast cereals, wants to sell its cereals in the state, but most of its products contain GMOs grown using pesticides and herbicides. Organix based its action on its belief that organic foods are healthier for its people. Will Prest prevail when the state sues it for selling the non-organic GMO food in Organix?
Prest is unlikely to prevail in this case if the law enacted by the state of Organix meets constitutional scrutiny—specifically under the Dormant Commerce Clause and federal preemption doctrine.
Here’s a breakdown of the legal issues:
1. Dormant Commerce Clause
This doctrine prohibits states from passing legislation that discriminates against or unduly burdens interstate commerce.
If the law is facially neutral but has a disproportionate effect on out-of-state companies (e.g., Prest), the court will apply a balancing test (Pike v. Bruce Church):
Is the burden on interstate commerce clearly excessive compared to the local benefits?
Organix would argue that the law promotes public health—a legitimate state interest.
Prest would argue that the law burdens national food distribution and essentially excludes major products from the market.
The outcome depends on whether a court finds the health justification sufficient to outweigh the economic burden on interstate commerce.
2. Federal Preemption
If federal law (like the Federal Food, Drug, and Cosmetic Act (FDCA) or regulations under the USDA or FDA) authorizes GMO use or prevents state bans, the state law could be preempted.
Courts generally find express preemption rare unless Congress clearly intended to occupy the field.
However, if the FDA or USDA permits GMO food but doesn’t explicitly prohibit state-level bans, Organix's law may not be preempted.
3. Rational Basis Review (Substantive Due Process)
Courts give states broad leeway to regulate for health and safety.
As long as Organix can show a rational basis for its law (e.g., promoting health through organic standards), it's likely to survive a due process challenge.
Conclusion
Prest probably will not prevail if:
The court finds the public health rationale compelling enough under the Dormant Commerce Clause, and
There's no federal preemption preventing Organix’s law.
Joe is a fervent supporter of his chosen political party. He is so passionate that on election day he kidnaps a group of people who he believes intend to vote for his candidate's opponent. In so doing he hopes that lacking their votes the opponent will lose. Once the poles close Joe releases his hostages, who after giving their statements to police join the opponent at his victory party. The next day several of the hostages file due process claims against Joe. What is the likely result of the claims?
Joe WINS, because there is no state action.
There is no exception to the state action requirement, although private entities can sometimes fulfill the requirement if there is a sufficiently close nexus between their action and the state. In this case, however, Joe's kidnapping does not satisfy the state action requirement and while the hostages might have a number of tort claims against Joe there is no due process claim here.
Congress makes it a crime to tamper with the United States mail.
Congress has plenary power to create and regulate a postal system, and criminalizing mail tampering is constitutional under the Necessary and Proper Clause.
Congress passes a law that forces the president to submit an annual report on national security to a Congressional committee, giving Congress the authority to review and even reject certain decisions the president makes regarding the allocation of military funds. The president claims this infringes on his constitutional authority as commander-in-chief. Does Congress have the power to require this report and review?
Yes. Congress has the constitutional authority to make laws related to military funding and national defense, even if the law may place some limitations on the president’s discretion. Under the War Powers Resolution and the Necessary and Proper Clause, Congress may regulate and oversee military matters, though the president maintains control over direct military action. The law does not violate the separation of powers.
Congress enacts a law prohibiting the sale of firearms over the Internet.
Constitutional. A firearm is an article of commerce and the Internet is a medium used for doing commerce.
Because Congress is not banning the sale of firearms generally (which would violate the Second Amendment), but rather just limiting a channel of distribution, this should not be constitutionally problematic.
Organix State University School of Agriculture (OSUSA) has successfully developed techniques for growing non-GMO corn and grains without using pesticides and herbicides and produces and sells its non-GMO corn and grain seeds. Can Organix constitutionally require that all OSUSA products be sold first to satisfy in-state demand for the seeds before any can be sold to buyers from out of state? Why or why not?
Yes. Under the market participation exception to the Dormant Commerce Cause, a state can prefer its own citizens if the state acts as a market participant (buying, selling, hiring, subsidies) on top of its normal role as a market regulator.
Northernstate is known for having particularly high unemployment benefits. In recent years, unemployed citizens of other states have moved to Northernstate in order to avail themselves of these benefits. Northernstate legislature recently passed a law which limits new citizens' unemployment benefits for the first year of their residency in Northernstate to the amount they would have received in their previous state. Is the law valid?
NO, because there is a fundamental right at stake here and the law will not likely survive strict scrutiny.
The fundamental right at stake here is the right to travel freely among the states, which includes the right to not be discriminated against by the new home state.
A person is paid minimum wage under a contract for life, which includes a provision that the person cannot break the contract or buy out of it or otherwise escape it without the permission of the employer.
This would be slavery by another name and would be unconstitutional. Congress could constitutionally enact a law outlawing such a contract as a badge or incident of slavery.
In response to a national economic crisis, the president issues an executive order suspending the enforcement of a federal statute that mandates a minimum wage increase, arguing that the increase would harm efforts to stabilize the economy. Congress disagrees, believing the president’s action oversteps executive authority, and passes a law that nullifies the president’s executive order. The president vetoes the bill, citing his constitutional role in managing economic affairs during emergencies. What result?
The law passed by Congress prevails. The president does not have the constitutional authority to override or suspend a law passed by Congress through an executive order. Congress has the power to legislate and override a presidential veto with a two-thirds majority. In this case, Congress can pass the law, and the president’s veto cannot prevent it, reflecting the principle that Congress holds the primary authority in making laws, even during times of emergency.
Congress holds hearings and makes findings that homosexuals have been and still are targeted specifically for violent attack. In response Congress makes it a felony to commit violence against someone on the basis of sexual orientation.
This is not economic activity and falls squarely within the Morrison (2000) rule and so one cannot aggregate the incidents of the problems to find a substantial effect on interstate commerce.
Concerned by a rise in nighttime truck accidents on steep mountain passes, the State of Ridgeway passes a law requiring all commercial trucks traveling on its highways to be equipped with high-intensity fog lights. The law applies equally to in-state and out-of-state carriers, and Ridgeway presents traffic safety data to support the regulation. A national trucking association challenges the law, arguing it imposes a burden on interstate commerce in violation of the Dormant Commerce Clause.
The law is a valid exercise of the state’s police powers to protect highway safety. Because it applies evenhandedly to in-state and out-of-state carriers and is motivated by a legitimate local interest rather than economic protectionism, it is not discriminatory. Under the Pike v. Bruce Church balancing test, any incidental burden on interstate commerce does not clearly exceed the local benefits. Therefore, the regulation does not violate the Dormant Commerce Clause.
After a city inspector negligently left a backyard gate unlatched, Amanda’s dog Rehnquist escaped and was picked up by Mill Valley’s animal control. Rehnquist wore a tag identifying Amanda as the owner. The city left a notice on Amanda’s door stating the dog must be claimed within three days or it would be “sold or otherwise disposed of.” Amanda, still away on vacation, never received the notice. Three days later, Rehnquist was sold to a meat company for $15 and never seen again. Amanda sues the city, alleging a violation of her constitutional rights.
Amanda’s strongest constitutional claim is that Mill Valley deprived her of property without providing adequate notice and an opportunity to be heard, in violation of the Due Process Clause of the Fourteenth Amendment. The city ordinance authorized the permanent sale or disposal of a known owner's property interest in a living animal after only a brief notice period, relying solely on a physical door posting. Given the significant private interest at stake and the risk of erroneous deprivation, the city’s process likely fails the Mathews v. Eldridge balancing test. Thus, the ordinance likely violates procedural due process.