Compiled Handouts
Total Page:16
File Type:pdf, Size:1020Kb
Load more
Recommended publications
-
Congress's Power Over Appropriations: Constitutional And
Congress’s Power Over Appropriations: Constitutional and Statutory Provisions June 16, 2020 Congressional Research Service https://crsreports.congress.gov R46417 SUMMARY R46417 Congress’s Power Over Appropriations: June 16, 2020 Constitutional and Statutory Provisions Sean M. Stiff A body of constitutional and statutory provisions provides Congress with perhaps its most Legislative Attorney important legislative tool: the power to direct and control federal spending. Congress’s “power of the purse” derives from two features of the Constitution: Congress’s enumerated legislative powers, including the power to raise revenue and “pay the Debts and provide for the common Defence and general Welfare of the United States,” and the Appropriations Clause. This latter provision states that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Strictly speaking, the Appropriations Clause does not provide Congress a substantive legislative power but rather constrains government action. But because Article I vests the legislative power of the United States in Congress, and Congress is therefore the moving force in deciding when and on what terms to make public money available through an appropriation, the Appropriations Clause is perhaps the most important piece in the framework establishing Congress’s supremacy over public funds. The Supreme Court has interpreted and applied the Appropriations Clause in relatively few cases. Still, these cases provide important fence posts marking the extent of Congress’s -
THE NEGATIVE IMPLICATIONS of the COMMERCE CLAUSE* Jom B
THE NEGATIVE IMPLICATIONS OF THE COMMERCE CLAUSE* Jom B. SHoLLEYt ON MARCH 4, 1935, the United States Supreme Court held in Baldwin v. Seelig, that the state of New York had no power to protect its milk Producers against underselling by the producers of other states even though the former were by law forbidden to sell below prescribed prices,2 and the resulting competition would go far to wreck the whole statutory system. The particular statute condemned forbade in effect the sale of imported milk in New York unless its producers had been paid the equivalent of the New York standard price. The gist of the opin- ion of Mr. Justice Cardozo is contained in the following excerpts: If New York, in order to promote the economic welfare of her farmers, may guard them against competition with the cheaper prices of Vermont, the door has been opened to rivalries and reprisals that were meant to be averted by subjecting commerce be- tween the states to the power of the nation.3 What is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation. Formulas and catchwords are subor- dinate to this overmastering requirement. Neither the power to tax nor the police power may be used by the state of destination with the aim and effect of establishing an economic barrieragainst competition with the products of another state or the labor of its residents. Restrictions so contrived are an unreasonable clog upon the mobility of commerce. They set up what is equivalent to a rampart of customs duties designed to neutralize advantages belonging to the place of origin. -
The Dormant Commerce Clause and State-Mandated Preference Laws in Public Contracting: Developing a More Substantive Application of the Market-Participant Exception
Michigan Law Review Volume 93 Issue 8 1995 The Dormant Commerce Clause and State-Mandated Preference Laws in Public Contracting: Developing a More Substantive Application of the Market-Participant Exception Benjamin C. Bair University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Commercial Law Commons, Constitutional Law Commons, and the Government Contracts Commons Recommended Citation Benjamin C. Bair, The Dormant Commerce Clause and State-Mandated Preference Laws in Public Contracting: Developing a More Substantive Application of the Market-Participant Exception, 93 MICH. L. REV. 2408 (1995). Available at: https://repository.law.umich.edu/mlr/vol93/iss8/5 This Note is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. The Dormant Commerce Clause and State-Mandated Preference Laws in Public Contracting: Developing a More Substantive Application of the Market-Participant Exception Benjamin C. Bair INTRODUCTION You are a state legislator. Your state's highway construction in dustry has seen better days, and unemployment is rising. Neverthe less, cities and counties in your state are hiring nonresident construction workers and buying cement and gravel from nonresi dent suppliers. Your constituents are upset that their tax dollars are going to outsiders, so you decide to draft a bill requiring all local governments1 in your state to fill at least half of their highway con struction positions with state residents. -
Rejecting Origination Clause Challenges Merely Embody “Two Exceptions” to the General “Presumpt[Ion]” That “[A]Ll Taxes” Are Subject to the Clause
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued May 8, 2014 Decided July 29, 2014 No. 13-5202 MATT SISSEL, APPELLANT v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., APPELLEES Appeal from the United States District Court for the District of Columbia (No. 1:10-cv-01263) Timothy M. Sandefur argued the cause for appellant. With him on the briefs were Paul J. Beard II and Daniel A. Himebaugh. Theodore Hadzi-Antich entered an appearance. John C. Eastman and Anthony T. Caso were on the brief for amicus curiae Center for Constitutional Jurisprudence in support of appellant. Lawrence J. Joseph was on the brief for amicus curiae Association of American Physicians and Surgeons in support of appellant. Joseph E. Schmitz and Paul D. Kamenar were on the brief 2 for amici curiae U.S. Representatives Trent Franks, et al. in support of appellant. Alisa B. Klein, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Stuart F. Delery, Assistant Attorney General, Ronald C. Machen Jr., U.S. Attorney, Beth S. Brinkmann, Deputy Assistant Attorney General, and Mark B. Stern, Attorney. Before: ROGERS, PILLARD and WILKINS, Circuit Judges. Opinion for the Court filed by Circuit Judge ROGERS. ROGERS, Circuit Judge: Section 5000A of the Patient Protection and Affordable Care Act, 26 U.S.C. § 5000A, mandates that as of January 2014, non-exempt individuals maintain minimum health care coverage or, with limited exceptions, pay a penalty. Matt Sissel, who is an artist and small-business owner who serves from time to time on active duty with the National Guard, appeals the dismissal of his complaint alleging that the mandate violates the Commerce Clause, U.S. -
To the General Welfare Clause
\\Server03\productn\C\CHP\4-1\CHP104.txt unknown Seq: 1 23-APR-01 10:05 Restoring the “General” to the General Welfare Clause By John C. Eastman1 Over the past decade, the Supreme Court of the United States has, in a series of important cases, reinvigorated the twin doc- trines of enumerated powers and federalism, restoring to our con- stitutional order some semblance of the founders’ original vision of a national government that was strong within the sphere of power assigned to it but limited by the extent of that sphere. Whether invalidating acts of Congress that “commandeered” state officials to do Congress’s bidding,2 trimming the sails of Congress’s powers under the Interstate Commerce Clause,3 or setting up sovereign immunity barriers to private enforcement of statutory schemes enacted by Congress,4 the Court has reasserted its role to hold 1 Associate Professor, Chapman University School of Law and Director, The Claremont Institute Center for Constitutional Jurisprudence. Ph.D., M.A., The Claremont Graduate School; J.D., The University of Chicago Law School. I wish to thank Chapman law students Chris Bonkoski, Laurie Messerly, Julie Ann Muller, and Tim Sandefur for their superb research assistance on this project, and Jeffrey Renz, who provided helpful comments. I also wish to thank the several panelists at the Chapman Law Review spending clause symposium for their helpful comments about this paper and their participation in the symposium. Finally, I wish to acknowledge the editorial staff of the Chapman Law Review, whose hard work made for an immensely successful symposium. -
COLLECTIVE ACTION FEDERALISM: a GENERAL THEORY of ARTICLE I, SECTION 8 Robert D
COLLECTIVE ACTION FEDERALISM: A GENERAL THEORY OF ARTICLE I, SECTION 8 Robert D. Cooter* & Neil S. Siegel** The Framers of the United States Constitution wrote Article I, Section 8 in order to address some daunting collective action problemsfacing the young na- tion. They especially wanted to protect the states from military warfare by fo- reigners andfrom commercial warfare against one another. The states acted in- dividually when they needed to act collectively, and Congress lacked power under the Articles of Confederation to address these problems. Section 8 thus au- thorized Congress to promote the "general Welfare" of the United States by tack- ling many collective actionproblems that the states could not solve on their own. Subsequent interpretationsof Section 8, both outside and inside the courts, often have focused on the presence or absence of collective action problems in- volving multiple states-but not always. For example, the Supreme Court of the United States, in trying to distinguish the "truly national" from the "truly local" in the context of the Commerce Clause, United States v. Morrison, 529 U.S. 598, * Herman Selvin Professor of Law, University of California at Berkeley. ** Professor of Law and Political Science, Duke University School of Law. I dedicate this Article to the loving memory of my mother, Sharon Ruth Siegel, for giving me life-and a whole lot more. For illuminating comments, we thank Jack Balkin, Sara Beale, Stuart Benjamin, Joseph Blocher, Curtis Bradley, Geoffrey Brennan, Samuel Buell, Erwin Chemerinsky, Jesse Cho- per, Eric Freedman, Philip Frickey, Barry Friedman, Jamal Greene, Daniel Greenwood, Grant Hayden, Laurence Helfer, Don Herzog, Roderick Hills, Donald Horowitz, John Inazu, Margaret Lemos, Anne Joseph O'Connell, Sanford Kadish, Richard Lazarus, Margaret Le- mos, Paul Mishkin, Julian Mortenson, Michael Munger, Richard Pildes, Eric Posner, Robert Post, H. -
Applying Precedents Activity—Answer Key
Applying Precedents Activity Applying Precedents Activity—Answer Key Comparison case: Gibbons v. Ogden (1824) Precedent case: McCulloch v. Maryland (1819) What you need to know before you begin: When the Supreme Court decides a case, it clarifies the law and serves as guidance for how future cases should be decided. Before the Supreme Court makes a decision, it always looks to precedents—past Supreme Court decisions about the same topic—to help make the decision. A principle called stare decisis (literally “let the decision stand”) requires that the precedent be followed. If the case being decided is legally identical to a past decision, then the precedent is considered binding and the Supreme Court must decide the matter the same way. However, cases that make it to the Supreme Court are typically not completely identical to past cases, and justices must consider the similarities and differences when deciding a case. The process of comparing past decisions to new cases is called applying precedent. Lawyers often argue for their side by showing how previous decisions would support the Supreme Court deciding in their favor. This might mean showing how a previous decision that supports their side is analogous (similar) to the case at hand. It can also involve showing that a previous decision that does not support their side is distinguishable (different) from the case they are arguing. How it’s done: In this exercise, you will analyze a precedent and compare it to Gibbons v. Ogden. You have been provided with information about two cases: 1) the background, facts, issue, and constitutional provisions/precedents of the comparison case (Gibbons v. -
Supreme Court Cases
SUPREME COURT CASES Marbury v. Madison (1803) Tinker v. Des Moines (1969) McCulloch v. Maryland (1819) NY Times v. United States (1971) Dred Scott v. Sanford (1857) Furman v Georgia (1972) Plessy v. Ferguson (1896) Roe v. Wade (1973) Schenck v. United States (1919) United States v. Nixon (1974) Korematsu v. United States (1944) Gregg v Georgia (1976) Brown v. Board of Education (1954) Regents of the University of Mapp v. Ohio (1961) California v. Bakke (1978) Engel v. Vitale (1962) New Jersey v. T.L.O (1985) Gideon v. Wainwright (1963) Bethel School District v Fraser (1986) Escobedo v. Illinois (1964) Hazelwood School District v. Heart of Atlanta Motel v US (1964) Kuhlmeier (1988) Miranda v. Arizona (1966) Texas v. Johnson (1989) Marbury v Madison (1803) Issue: Separation of Power Court Case: Marbury sued Madison because he did not receive commission to be a justice of the peace. Marbury asked the Supreme Court to issue an order to force Madison to give him his commission. Court Ruling: Against Marbury. Ruled a portion of the Judiciary Act of 1789 unconstitutional. 1st act of Congress to be declared unconstitutional. Precedent: established judicial review – power of the court to decide whether actions of Congress are constitutional. McCulloch v Maryland (1819) McCulloch v. Maryland (1819) Issue: Federalism (State v. Federal Government) Court Case: McCulloch was a branch manager for the Bank of the United States. Refused to pay a tax to the state of Maryland and was arrested. He appealed conviction on the grounds that a state could not tax the federal government. -
State Regulation and the Dormant Commerce Clause. Daniel A
University of Minnesota Law School Scholarship Repository Constitutional Commentary 1986 State Regulation and the Dormant Commerce Clause. Daniel A. Farber Follow this and additional works at: https://scholarship.law.umn.edu/concomm Part of the Law Commons Recommended Citation Farber, Daniel A., "State Regulation and the Dormant Commerce Clause." (1986). Constitutional Commentary. 173. https://scholarship.law.umn.edu/concomm/173 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Constitutional Commentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. STATE REGULATION AND THE DORMANT COMMERCE CLAUSE Daniel A. Farber* The commerce clause empowers Congress to "regulate Com merce with foreign Nations, and among the several States, and with the Indian Tribes."I Although it speaks only of congressional power, the clause has been interpreted to empower the federal courts to enjoin state laws that interfere unduly with interstate commerce.z Since the Marshall Court, the Supreme Court has continually modified its definition of the judicial role in overseeing state regula tion.3 The Court's current view of the so-called "dormant" com merce clause, in a nutshell, is as follows.4 State regulations having a discriminatory effect on interstate commerce are subject to stringent judicial scrutiny even if the discrimination was inadvertent.S On the other hand, regulations that burden interstate commerce without discriminating against it are subject to a less rigorous balancing test:6 a state law that burdens local and interstate commerce equally will be upheld if the law's local benefits outweigh the burden * Professor of Law, University of Minnesota. -
The Constitutional Legitimacy of the Dormant Commerce Clause
FRIEDMAN&DEACON_BOOK_UPDATED 11/24/2011 8:10 AM A COURSE UNBROKEN: THE CONSTITUTIONAL LEGITIMACY OF THE DORMANT COMMERCE CLAUSE Barry Friedman and Daniel T. Deacon* INTRODUCTION................................................................................. 1877 I. THE FOUNDERS’ FEARS ............................................................. 1884 A. The Threat ............................................................................ 1884 B. Were the Framers Wrong? (Does It Matter?) ................... 1886 C. A Constitution for the Future ............................................. 1894 II. THE REJECTION OF THE “NEGATIVE” AND THE ADOPTION OF JUDICIAL REVIEW ............................................. 1896 III. THE JUSTICIABLE COMMERCE CLAUSE .................................. 1903 A. The Argument for Commerce Clause Exclusivity............ 1905 B. Though Exclusive, States Retained the Police Power ...... 1914 1. The State’s Power of Police .......................................... 1917 2. Shifting Lines................................................................. 1920 C. The Longstanding Acceptance of the Dormant Commerce Power ................................................................ 1928 1. The Absence of Support for Full Concurrence........... 1929 2. Avoiding the Issue by Dissembling.............................. 1932 INTRODUCTION HO is the better originalist, Justice Thomas or Justice Ste- W vens? More attuned to constitutional history, Justice Scalia or Justice Brennan? In one area, at least, the answers -
The General Welfare Clause and the Theory of Public Goods
UC Berkeley Law and Economics Workshop Title The General Welfare Clause and the Theory of Public Goods Permalink https://escholarship.org/uc/item/0wv3n63r Author Siegel, Neil Publication Date 2006-10-09 eScholarship.org Powered by the California Digital Library University of California PRELIMINARY DRAFT The General Welfare Clause and the Theory of Public Goods Robert D. Cooter & Neil S. Siegel* INTRODUCTION The federal government, according to many Americans, should defend the nation, preserve the environment, build highways, promote science, improve health, alleviate poverty, protect civil rights, and fight crime. Because the Constitution establishes a national government of limited powers, Congress requires constitutional authorization to undertake these activities. Proponents of federal power trace much of it to Article I, Section 8, Clause 3, which reads: “The Congress shall have power . [t]o regulate commerce . among the several states . .”1 The Commerce Clause authorizes federal regulation of the channels and instrumentalities of interstate commerce, such as dredging navigable rivers, transporting beef across state lines, and scheduling commercial airplane flights. In addition, Clause 18 gives Congress the power “. [t]o make all laws which shall be necessary and proper for carrying into execution the foregoing powers.”2 The Necessary and Proper Clause, and possibly the Commerce Clause as well, justify federal regulation of activities with significant effects on interstate commerce, such as racial discrimination in hotels.3 * Herman Selvin Professor of Law, University of California at Berkeley, and Assistant Professor of Law and Political Science, Duke University. For useful advice, we thank Stuart Benjamin, Erwin Chemerinsky, Donald Horowitz, Anne Joseph, Richard Lazarus, Richard Pildes, Eric Posner, H. -
1 Bioterrorism May Be Defined As an Overt Release of a Biological Agent
Sutton, “Bioterrorism Preparation and Response Legislation — The Struggle to Protect States’ Sovereignty While Preserving National Security, “ 6 The Georgetown Public Policy Review 93 (Spring 2001). Bioterrorism Preparation and Response Legislation--- The Struggle to Protect States’ Sovereignty While Preserving National Security Victoria Sutton “The means of security can only be regulated by the means and danger of attack. They will, in fact, be determined by these rules and by no others.” ----James Madison, Federalist Paper No. 41 I. Introduction The security of the United States has been a source of national pride and controversy since the founding of the nation. As a nation, we have enjoyed the protection and peace of mind which comes with having the most powerful military in the world. Today, not one living citizen of the United States, can personally remember a war being fought on American soil. However, the threat of biological attack1 —as distinct from chemical and nuclear attacks --- has raised new concerns about our national security. The coordination of traditional emergency response mechanisms within the Constitutional framework are those which are clearly defined and practiced. However, the coordination of peacetime preparations for bioterrorist action is not so clearly defined and remains a vulnerable position for the United States. Where emergency response to natural disasters dictates clear intergovernmental relationships and practiced response operations, a bioterrorism event would be an ongoing disaster with casualties increasing geometrically during the response. In contrast, the casualties in a natural disaster are most likely to have peaked before the response and be in a sharp decline or at zero when the response begins.