Commerce Clause
The commerce clause is found in
Article I, §8, Cl. 3 of the U.S. Constitution
Where is the Necessary and Proper Clause located?
The Necessary and Proper Clause, found in Article I, Section 8, Clause 18 of the U.S. Constitution
Where in the Constitution is the Dormant Commerce Clause found?
No where
What is preemption?
Preemption is when the federal government can tell a state that it cannot pass a law because there's already a law the federal government has passed on the same thing
What does the State Action Doctrine say?
A state must be an actor in order for the Constitution to apply to a lawsuit.
What amendments are not incorporated?
3, 5 (partially), 7
What case used commerce power to pass the Civil Rights Act, and was it constitutional?
Heart of Atlanta Motel v. United States (1964) and yes it was constitutional
What does the Necessary and Proper Clause do?
It grants Congress the authority to make all laws necessary to execute its enumerated powers
Where does the Dormant Commerce Clause come from?
The Commerce Clause
What was the first case that used preemption?
Gibbons v. Ogden (1824)
What is not state action?
1. Receiving government funding
2. Having a state license
3. Monopolies
What does the incorporation doctrine apply to?
The specific rights to the states/ applies the Bill of Rights to states
The Commerce Clause gives Congress the power to:
Regulate commerce with foreign nations, and among the several states, and with Indian the tribes
What is another name for the Necessary and Proper Clause?
The Elastic Clause
What is the Dormant Commerce Clause also called?
The negative commerce Clause
If a law is spoken on its face, it is:
Express
What should we remember about Ms.Jackson's case:
Monopoly -> heavily regulated -> state actor
The Supreme Court ruled that a heavily regulated private utility with a partial monopoly does not act as a state agent when it terminates service, meaning its actions are not bound by the 14th Amendment's due process clause.
What case is the first time the amendments were being tested?
Slaughterhouse cases (1873) are the first time the Reconstruction amendments were being heard
What does "among" mean in the definition of the Commerce Clause? (3)
1. Intermingling
2. In the midst of
3. Between
The Necessary and Proper Clause is famously interpreted in what case?
McCulloch v. Maryland (1819)
The Dormant Commerce Clause deals with: ______
States
What are the 3 types of implied preemption?
1. Conflict preemption
2. Obstacle preemption
3. Field preemption
Acts have to be _____ and _______ done by state actor
Traditionally and exclusively (Manhattan v. Halleck (2019))
The Privileges or Immunities Clause was buried for ___ years after the Slaughterhouse cases
112 years
What is the standard/modern view of the Commerce Clause, and what case gave it to us?
The standard/modern view of the Commerce Clause: Congress can use its Commerce power to regulate
1. channels of interstate commerce (planes, trains, automobiles)
2. instrumentalities of interstate commerce (persons, things, bank transfers, communications
3. activities that substantially affect interstate commerce
U.S. v. Lopez gives us this
McCulloch says: "the power to ________________________________"
The power to tax is the power to destroy
What are the exceptions to the Dormant Commerce Clause?
1. Congress passes a law that allows for the discrimination to occur
2. The state discriminating is a market participant
Which case gave us the floor (minimum)/ceiling (maximum) standard?
FL Lime & Avacado v. Paul (1963)
What are the state actor exceptions for when a private entity's conduct is treated as government action?
1. Public Function - private entity does government acts
2. Nexus:
Entanglement - government is so entangled in bad behavior but does not stop it? Constitution applies
Entwinement - people of the government are so entwined /w private actor (Brentwood)
3. Judicial enforcement - private parties use coercive power (Black people can't buy houses here)
4. State Compulsion - State forces private actor to take specific action
JEEPS
What is it called when the Supreme Court did not apply entire Bill of Rights at once
Selective incorporation
What case allowed Congress to regulate a farmer's ability to grow wheat on his own land for his own use, and why?
Wickard v. Filburn, because the aggregate effects of that intrastate activity substantially affected interstate commerce
How many times was the Necessary and Proper Clause used by itself?
Twice ever
Philadelphia v. New Jersey said that
States may not discriminate against interstate commerce by prohibiting out-of-state waste
Where does preemption come from?
The Supremacy Clause (Art. 6, Cl. 2)
A mall owner would be a _________ actor
Private
Non-incorporated amendents do not:
Apply to the states
The most children and teachers in the U.S. were killed after what case?
Lopez (1995)
Federal law ________
Is supreme
What does the Pike Test balance?
1. The burden the state law puts on interstate commerce; and
2. Whether the burden exceeds the local benefit
(Local benefit v. harm)
True or False: If laws are similar but there are 2 different objectives or rationales, then they may not be preemptive.
True (Pacific Gas (1983))
True or false: Merely because the state gives you a license does not mean that there is state action
True
Due process is
Notice or hearing (procedural) or appeal (sometimes)
Does commerce apply to restaurants serving intersate travelers?
Yes, in Katzenbach v. McClung (1964) aka Ollie's BBQ
What established the power of Congress to create another bank in McCulloch?
Historical practice (the first bank gave authority)
What is looked at if a law is discriminatory in its effect?
What types of fields are usually federally occupied and what cases gives them to us?
1. Immigration
2. Foreign affairs
3. military/war power
4. Ambassadors
5. Bankruptcy
6. Patents/Copyright
7. Minting money
Arizona v. U.S. (2012)
True or false: A private school receiving public money and subject to public regulations because it performs a public service, without more, does not constitute a “state actor” for purposes of the Fourteenth Amendment.
True (Rendell-Baker v. Kohn (1982)
The 1st amendment started applying to states in:
1925 (Gitlow v. N.Y.)