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02 Dec 09
Hamdan v. Rumsfeld, 548 U.S. 557 (2006)
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expectation that the military court system established by Congress—with its substantial procedural protections and provision for appellate review by independent civilian judges—“will vindicate servicemen’s constitutional rights,”
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same cannot be said here
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First
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Second
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no right to appeal
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any conviction would be reviewed by a panel consisting of three military officers designated by the Secretary of Defense
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no doubt that the various individuals assigned review power under Commission Order No. 1 would strive to act impartially and ensure that Hamdan receive all protections to which he is entitled. Nonetheless, these review bodies clearly lack the structural insulation from military influence that characterizes the Court of Appeals for the Armed Forces, and thus bear insufficient conceptual similarity to state courts to warrant invocation of abstention principles.
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circumstances of this case
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Quirin “provides a compelling historical precedent for the power of civilian courts to entertain challenges that seek to interrupt the processes of military commissions.”
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Government has identified no other “important countervailing interest” that would permit federal courts to depart from their general “duty to exercise the jurisdiction that is conferred upon them by Congress.”
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Hamdan and the Government both have a compelling interest in knowing in advance whether Hamdan may be tried by a military commission that arguably is without any basis in law and operates free from many of the procedural rules prescribed by Congress for courts-martial—rules intended to safeguard the accused and ensure the reliability of any conviction
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The military commission, a tribunal neither mentioned in the Constitution nor created by statute, was born of military necessity.
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even Quirin did not view the authorization as a sweeping mandate for the President to “invoke military commissions when he deems them necessary.”
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Quirin Court recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President had had before 1916 to convene military commissions—with the express condition that the President and those under his command comply with the law of war
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Government would have us dispense with the inquiry that the Quirin Court undertook and find in either the AUMF or the DTA specific, overriding authorization for the very commission that has been convened to try Hamdan
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Neither of these congressional Acts, however, expands the President’s authority
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First
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Likewise
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DTA obviously “recognize[s]” the existence of the Guantanamo Bay commissions in the weakest sense, Brief for Respondents 15, because it references some of the military orders governing them and creates limited judicial review of their “final decision[s],” DTA §1005(e)(3),
119 Stat.
2743. But the statute also pointedly reserves judgment on whether “the Constitution and laws of the United States are applicable” in reviewing such decisions and whether, if they are, the “standards and procedures” used to try Hamdan and other detainees actually violate the “Constitution and laws.” Ibid. -
Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the “Constitution and laws,” including the law of war.
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Commissions historically have been used in three situations
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First
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Second
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third t
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jurisdiction limited to offenses cognizable during time of war, but its role is primarily a factfinding one—to determine, typically on the battlefield itself, whether the defendant has violated the law of war.
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Since Guantanamo Bay is neither enemy-occupied territory nor under martial law, the law-of-war commission is the only model available. At the same time, no more robust model of executive power exists; Quirin represents the high-water mark of military power to try enemy combatants for war crimes
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four preconditions for exercise of jurisdiction by a tribunal of the type convened to try Hamdan
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First,
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Second
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Third
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Finally
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whether the preconditions designed to ensure that a military necessity exists to justify the use of this extraordinary tribunal have been satisfied here.
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Neither the purported agreement with Osama bin Laden and others to commit war crimes, nor a single overt act, is alleged to have occurred in a theater of war or on any specified date after September 11, 2001. None of the overt acts that Hamdan is alleged to have committed violates the law of war.
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deficiencies in the time and place allegations also underscore—indeed are symptomatic of—the most serious defect of this charge: The offense it alleges is not triable by law-of-war military commission.
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These facts alone cast doubt on the legality of the charge and, hence, the commission; as Winthrop makes plain, the offense alleged must have been committed both in a theater of war and during, not before, the relevant conflict
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When, however, neither the elements of the offense nor the range of permissible punishments is defined by statute or treaty, the precedent must be plain and unambiguous. To demand any less would be to risk concentrating in military hands a degree of adjudicative and punitive power in excess of that contemplated either by statute or by the Constitution
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(“The Founders envisioned the army as a necessary institution, but one dangerous to liberty if not confined within its essential bounds”); The Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison)
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At a minimum, the Government must make a substantial showing that the crime for which it seeks to try a defendant by military commission is acknowledged to be an offense against the law of war. That burden is far from satisfied here. The crime of “conspiracy” has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction,35 and does not appear in either the Geneva Conventions or the Hague Conventions
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Government cites three sources that it says show otherwise
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First
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Second
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Finally
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these sources at best lend little support to the Government’s position and at worst undermine it. By any measure, they fail to satisfy the high standard of clarity
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Court declined to address whether the offense actually qualified as a violation of the law of war
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The Government, defending its charge, argued that the conspiracy alleged “constitute[d] an additional violation of the law of war.” Id., at 15. The saboteurs disagreed; they maintained that “[t]he charge of conspiracy can not stand if the other charges fall.” Id., at 8
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Court, however, declined to resolve the dispute.
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The Court was careful in its decision to identify an overt, “complete” act.
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No mention was made at all of Charge IV—the conspiracy charge.
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Quirin supports Hamdan’s argument that conspiracy is not a violation of the law of war. Not only did the Court pointedly omit any discussion of the conspiracy charge, but its analysis of Charge I placed special emphasis on the completion of an offense;
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swift justice
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limitation makes eminent sense
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same urgency would not have been felt vis-À-vis enemies who had done little more than agree to violate the laws of war
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Winthrop and Howland are only superficially more helpful to the Government
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no support for the inclusion of conspiracy as a violation of the law of war
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Winthrop, apparently recognizing as much, excludes conspiracy of any kind from his own list of offenses against the law of war
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footnote will not support the weight the Government places on it.
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regularly tried war crimes and ordinary crimes together.
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later in his discussion, when he emphasizes that “overt acts” constituting war crimes are the only proper subject at least of those military tribunals not convened to stand in for local courts.
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Henry Wirz
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Wirz was alleged to have personally committed a number of atrocities against his victims, including torture, injection of prisoners with poison, and use of “ferocious and bloodthirsty dogs” to “seize, tear, mangle, and maim the bodies and limbs” of prisoners, many of whom died as a result.
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co-conspirators, R. B. Winder, should not be tried by military commission because there was as yet insufficient evidence of his own personal involvement in the atrocities: “[I]n the case of R. B. Winder, while the evidence at the trial of Wirz was deemed by the court to implicate him in the conspiracy against the lives of all Federal prisoners in rebel hands, no such specific overt acts of violation of the laws of war are as yet fixed upon him as to make it expedient to prefer formal charges and bring him to trial.”
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international sources confirm that the crime charged here is not a recognized violation
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conspiracy to commit genocide and common plan to wage aggressive war, which is a crime against the peace and requires for its commission actual participation in a “concrete plan to wage war.”
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Government has failed even to offer a “merely colorable” case for inclusion of conspiracy among those offenses cognizable by law-of-war military commission.
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Hamdan’s tribunal was appointed not by a military commander in the field of battle, but by a retired major general stationed away from any active hostilities
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agreement
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None of the overt acts alleged to have been committed in furtherance of the agreement is itself a war crime, or even necessarily occurred during time of, or in a theater of, war
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arrested in November 2001 and he was not charged until mid-2004
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commission lacks power to proceed
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compliance
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also violate the Geneva Conventions.
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great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements.
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It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.
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Congress has not issued the Executive a “blank check.”
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Nothing prevents the President from returning to Congress to seek the authority he believes necessary
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exceeds limits that certain statutes, duly enacted by Congress, have placed on the President’s authority to convene military courts
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It is a case where Congress, in the proper exercise of its powers as an independent branch of government, and as part of a long tradition of legislative involvement in matters of military justice, has considered the subject of military tribunals and set limits on the President’s authority.
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Trial by military commission raises separation-of-powers concerns of the highest order
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without independent review
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Concentration of power puts personal liberty in peril of arbitrary action by officials,
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three-part scheme used by Justice Jackson in his opinion in Youngstown Sheet
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President has acted in a field with a history of congressional participation and regulation
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Justice Jackson’s third category
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Common Article 3 of the four Geneva Conventions of 1949
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an acceptable degree of independence from the Executive is necessary to render a commission “regularly constituted” by the standards of our Nation’s system of justice
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The guidance Congress has provided with respect to courts-martial indicates the level of independence and procedural rigor that Congress has deemed necessary, at least as a general matter, in the military context
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At a minimum a military commission like the one at issue—a commission specially convened by the President to try specific persons without express congressional authorization—can be “regularly constituted” by the standards of our military justice system only if some practical need explains deviations from court-martial practice.
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the circumstances of Hamdan’s trial present no exigency requiring special speed or precluding careful consideration of evidence.
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Court is correct to conclude that the military commission the President has convened to try Hamdan is unauthorized
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Hamdan’s military commission exceeds the bounds Congress has placed on the President’s authority in §§836 and 821 of the UCMJ
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Detainee Treatment Act
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well-established duty to respect the Executive’s judgment in matters of military operations and foreign affairs
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indicative of a broader inability on the Executive’s part here to satisfy the most basic precondition—at least in the absence of specific congressional authorization—for establishment of military commissions: military necessity.
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context of the President’s wartime exercise of his commander-in-chief authority in conjunction with the complete support of Congress
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“ ‘unity,’ ”
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the fact that Congress has provided the President with broad authorities does not imply—and the Judicial Branch should not infer—that Congress intended to deprive him of particular powers not specifically enumerated.
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he determines
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d trial
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language of Article 21 presupposes the existence of military commissions under an independent basis of authorization
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emphasize the complete congressional sanction of the President’s exercise of his commander-in-chief authority to conduct the present war
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30 Nov 09
lawschool.westlaw.com - The most comprehensive Web site for law school students and faculty
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Convert all endnotes to footnotes before final submission Manual p. 17
16 Nov 09
Polar Tankers, Inc. v. City of Valdez, 557 U.S. 08310 (2009)
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The Constitution forbids a “State . . . without the Consent of Congress, [to] lay any Duty of Tonnage.” Art. I, §10, cl. 3. The city of Valdez, Alaska, has enacted an ordinance that imposes a personal property tax upon the value of large ships that travel to and from that city. We hold that the ordinance violates the Clause.
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tax upon the value of large ships that travel to and from that city. We hold that the ordinance violates the Clause.
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The Constitution forbids a “State . . . without the Consent of Congress, [to] lay any Duty of Tonnage.” Art. I, §10, cl. 3. The city of Valdez, Alaska, has enacted an ordinance that imposes a personal property tax upon the value of large ships that travel to and from that city. We hold that the ordinance violates the Clause.
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personal property tax upon “[b]oats and vessels of at least 95 feet in length” that regularly travel to the City, are kept or used within the City, or which annually take on at least $1 million worth of cargo or engage in other business transactions of comparable value in the City.
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Polar Tankers argued that the tax effectively imposed a fee on certain vessels for the privilege of entering the port; hence it amounted to a constitutionally forbidden “Duty of Tonnage.”
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also argued that the tax calculation method (as applied to vessels with a tax situs elsewhere) violated the Commerce and Due Process Clauses by failing to take account of the time a ship spent at sea or being serviced or repaired
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The Alaska Superior Court rejected the Tonnage Clause claim, but it accepted the Commerce Clause and Due Process Clause claim.
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the Alaska Supreme Court, rejecting both claims, upheld the tax.
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concluded that “a charge based on the value of property is not a duty of tonnage.”
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We begin, and end, with Polar Tankers’ Tonnage Clause claim. We hold that Valdez’s tax is unconstitutional because it violates that Clause. And we consequently need not consider Polar Tankers’ alternative Commerce Clause and Due Process Clause argument.
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“Duty of Tonnage,” referred in commercial parlance to “a duty” imposed upon a ship, which duty varies according to “the internal cubic capacity of a vessel,” i.e., its tons of carrying capacity
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Court found that the Framers intended those words to refer to more than “a duty” that sets a “certain rate on each ton” of capacity.
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The Court over the course of many years has consistently interpreted the language of the Clause in light of its purpose, a purpose that mirrors the intent of other constitutional provisions which, like the Tonnage Clause itself, seek to “restrai[n] the states themselves from the exercise” of the taxing power “injuriously to the interests of each other.”
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Article I, §10, cl. 2, for example, forbids States to “lay any Imposts or Duties on Imports or Exports.” It thereby seeks to prevent states with “convenient ports” from placing other States at an economic disadvantage by laying levies that would “ta[x] the consumption of their neighbours.”
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In writing the Tonnage Clause, the Framers recognized that, if “the states had been left free to tax the privilege of access by vessels to their harbors the prohibition against duties on imports and exports could have been nullified by taxing the vessels transporting the merchandise.”
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also understood the Clause as reflecting an effort to diminish a State’s ability to obtain certain geographical vessel-related tax advantages whether the vessel in question transports goods between States and foreign nations or, as here, only between the States.
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the Court has said that the Clause, which literally forbids a State to “levy a duty or tax . . . graduated on the tonnage,” must also forbid a State to “effect the same purpose by merely changing the ratio, and graduating it on the number of masts, or of mariners, the size and power of the steam-engine, or the number of passengers which she carries.”
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nothing in the history of the adoption of the Clause, the purpose of the Clause, or this Court’s interpretation of the Clause suggests that it operates as a ban on any and all taxes which fall on vessels that use a State’s port, harbor, or other waterways
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Tonnage Clause cannot be read to give vessels such “preferential treatment.”
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Does the tax before us impose “a charge for the privilege of entering, trading in, or lying in a port”? Certainly, the ordinance that imposes the tax would seem designed to do so.
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Moreover, the tax’s application and its amount depend upon the ship’s capacity. That is to say, the tax applies only to large ships (those at least 95 feet in length), while exempting small one
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Nor can Valdez escape application of the Clause by claiming that the ordinance imposes, not a duty or a tax, but a fee or a charge for “services rendered” to a “vessel,” such as “pilotage,” “wharfage,” “medical inspection,” the “use of locks,” or the like
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Tonnage Clause precedent makes clear that, where a tax otherwise qualifies as a duty of tonnage, a general, revenue-raising purpose argues in favor of, not against, application of the Clause.
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The ordinance applies almost exclusively to oil tankers.
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We conclude that the tax is unconstitutional. We re
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Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977)
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we are presented with "the perennial problem of the validity of a state tax for the privilege of carrying on within a state, certain activities' related to a corporation's operation of an interstate business.
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we are presented with "the perennial problem of the validity of a state tax for the privilege of carrying on within a state, certain activities' related to a corporation's operation of an interstate business.'
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we are presented with "the perennial problem of the validity of a state tax for the privilege of carrying on within a state, certain activities' related to a corporation's operation of an interstate business.
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ented with "the perennial problem of the validity of a state tax for the privilege of carrying on within a state, certain activities' related to a corporation's operation of an interstate business.' Colonial
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e pres
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we are presented with "the perennial problem of the validity of a state tax for the privilege of carrying on within a state, certain activities' related to a corporation's operation of an interstate business.'
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whether Mississippi runs afoul of the Commerce Clause, U.S. Const., Art. I, § 8, cl. 3, when it applies the tax it imposes on 'the privilege of . . . doing business' within the State to appellant's activity in interstate commerce.
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The taxes in question are sales taxes assessed by the Mississippi State Tax Commission against the appellant, Complete Auto Transit, Inc.,
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Appellant is a Michigan corporation engaged in the business of transporting motor vehicles by motor carrier for General Motors Corporation.
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By letter dated October 5, 1971, the Mississippi Tax Commission informed appellant that it was being assessed taxes and interest totaling $122,160.59 for the sales of transportation services during the three-year period from August 1, 1968, through July 31, 1971.
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Appellant claimed that its transportation was but one part of an interstate movement, and that the taxes assessed and paid were unconstitutional as applied to operations in interstate commerce.
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Appellant's attack [on the Mississippi statute] is based solely on decisions of this Court holding that a tax on the 'privilege' of engaging in an activity in the State may not be applied to an activity that is part of interstate commerce.
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Appellee, in its turn, relies on decisions of this Court stating that '(i)t was not the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of state tax burden even though it increases the cost of doing the business,'
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Court has applied this practical analysis in approving many types of tax that avoided running afoul of the prohibition against taxing the 'privilege of doing business,' but in each instance it has refused to overrule the prohibition. Under the present state of the law, the Spector rule, as it has come to be known, has no relationship to economic realities. Rather it stands only as a trap for the unwary draftsman.
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The modern origin of the Spector rule m
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Mr. Justice Frankfurter, speaking for five Members of the Court, announced a blanket prohibition against any state taxation imposed directly on an interstate transaction.
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the rule might have been utilized as the keystone of a movement toward absolute immunity of interstate commerce from state taxation,11 the Court consistently has indicated that 'interstate commerce may be made to pay its way,' and has moved toward a standard of permissibility of state taxation based upon its actual effect rather than its legal terminology.
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The Court recognized that 'where a taxpayer is engaged both in intrastate and interstate commerce, a state may tax the privilege of carrying on intrastate business and, within reasonable limits, may compute the amount of the charge by applying the tax rate to a fair proportion of the taxpayer's business done within the state, including both interstate and intrastate.'
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tax on the 'privilege' of doing business is unconstitutional if applied against what is exclusively interstate commerce
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The Court long since had recognized that interstate commerce may be made to pay its way.
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The Spector rule had come to operate only as a rule of draftsmanship, and served only to distract the courts and parties
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clear that Connecticut could have taxed the apportioned net income derived from the exclusively interstate commerce. It could not, however, tax the 'privilege' of doing business as measured by the apportioned net income.
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'It is a truism that the mere act of carrying on business in interstate commerce does not exempt a corporation from state taxation.
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If Mississippi had called its tax one on 'net income' or on the 'going concern value' of appellant's business, the Spector rule could not invalidate it. There is no economic consequence that follows necessarily from the use of the particular words, 'privilege of doing business,' and a focus on that formalism merely obscrues the question whether the tax produces a forbidden effect
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we now reject the rule of Spector Motor Service, Inc. v. O'Connor, that a state tax on the 'privilege of doing business' is per se unconstitutional when it is applied to interstate commerce, and that case is overruled.
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12 Nov 09
Wyeth v. Levine, 555 U.S. 061249 (2009)
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whether the FDA’s approvals provide Wyeth with a complete defense to Levine’s tort claims. We conclude that they do not.
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Levine developed gangrene, and doctors amputated first her right hand and then her entire forearm
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After settling claims against the health center and clinician, Levine brought an action for damages against Wyeth, relying on common-law negligence and strict-liability theories
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Although Phenergan’s labeling warned of the danger of gangrene and amputation following inadvertent intra-arterial injection,1 Levine alleged that the labeling was defective because it failed to instruct clinicians to use the IV-drip method of intravenous administration instead of the higher risk IV-push method
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The importance of the pre-emption issue
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persuaded us to grant Wyeth’s petition for certiorari
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whether the FDA’s drug labeling judgments “preempt state law product liability claims premised on the theory that different labeling judgments were necessary to make drugs reasonably safe for use.”
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guided by two cornerstones of our pre-emption jurisprudenc
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First, “the purpose
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Second, “[i]n all p
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Wyeth first argues that Levine’s state-law claims are pre-empted because it is impossible for it to comply with both the state-law duties underlying those claims and its federal labeling duties.
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Generally speaking, a manufacturer may only change a drug label after the FDA approves a supplemental application. There is, however, an FDA regulation that permits a manufacturer to make certain changes to its label before receiving the agency’s approval.
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“changes being effected” (CBE) regulation
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Impossibility pre-emption is a demanding defense
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. On the record before us, Wyeth has failed to demonstrate that it was impossible for it to comply
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Wyeth also argues that requiring it to comply with a state-law duty to provide a stronger warning about IV-push administration would obstruct the purposes and objectives of federal drug labeling regulation.
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interfere with “Congress’s purpose to entrust an expert agency to make drug labeling decisions
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We find no merit in this argument, which relies on an untenable interpretation of congressional inten
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Wyeth contends that the FDCA establishes both a floor and a ceiling for drug regulation
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The most glaring problem with this argument is that all evidence of Congress’ purposes is to the contrary.
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Evidently, it determined that widely available state rights of action provided appropriate relief for injured consumers
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If Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an express pre-emption provision at some point during the FDCA’s 70-year history
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Its silence on the issue, coupled with its certain awareness of the prevalence of state tort litigation, is powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness. As Justice O’Connor explained in her opinion for a unanimous Court: “The case for federal pre-emption is particularly weak where Congress has indicated its awareness
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and has nonetheless decided to stand by
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In addition, federal law does not give drug manufacturers an unconditional right to market their federally approved drug at all times with the precise label initially approved by the FDA.
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I cannot join the majority’s implicit endorsement of far-reaching implied pre-emption doctrines. In particular, I have become increasingly skeptical of this Court’s “purposes and objectives” pre-emption jurisprudence.
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a system of dual sovereignty between the States and the Federal Government.” G
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As a result, in order to protect the delicate balance of power mandated by the Constitution, the Supremacy Clause must operate only in accordance with its terms.
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“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Art. VI, cl. 2.
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the Supremacy Clause gives “supreme” status only to those that are “made in Pursuance” of “[t]his Constitution.”
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Federal laws “made in Pursuance” of the Constitution must comply with two key structural limitations in the Constitution that ensure that the Federal Government does not amass too much power at the expense of the States.
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first structural limitation,
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second structural limitation
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I have become “increasing[ly] reluctan[t] to expand federal statutes beyond their terms through doctrines of implied pre-emption.”
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concerns that implied pre-emption doctrines have not always been constitutionally applied
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for example, the Court has pre-empted state law based on its interpretation of broad federal policy objectives, legislative history, or generalized notions of congressional purposes that are not contained within the text of federal law
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Congressional and agency musings, however, do not satisfy the Art. I, §7 requirements for enactment of federal law and, therefore, do not pre-empt state law under the Supremacy Clause.
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Pre-emption analysis should not be “a freewheeling judicial inquiry into whether a state statute is in tension with federal objectives, but an inquiry into whether the ordinary meanings of state and federal law conflict.”
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In sum, the relevant federal law did not give Wyeth a right that the state-law judgment took away, and it was possible for Wyeth to comply with both federal law and the Vermont-law judgment at issue here
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See ante, at 23–24, and nn. 13–14; post, at 6–9 (opinion of Alito, J.). In Geier, pursuant to the National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act)
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The Court’s decision in Geier to apply “purposes and objectives” pre-emption based on agency comments, regulatory history, and agency litigating positions was especially flawed, given that it conflicted with the plain statutory text of the saving clause within the Safety Act, which explicitly preserved state common-law actions by providing that “[c]ompliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law,”
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Applying “purposes and objectives” pre-emption in Geier, as in any case, allowed this Court to vacate a judgment issued by another sovereign based on nothing more than assumptions and goals that were untethered from the constitutionally enacted federal law authorizing the federal regulatory standard that was before the Court
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also problematic because it encourages an overly expansive reading of statutory text
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As this Court has repeatedly noted, “ ‘it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.’
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a statute’s text might reflect a compromise between parties who wanted to pursue a particular goal to different extents
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there is no factual basis for the assumption underlying the Court’s “purposes and objectives” pre-emption jurisprudence that every policy seemingly consistent with federal statutory text has necessarily been authorized by Congress and warrants pre-emptive effect.
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But the relevance is in the fact that no statute explicitly pre-empts the lawsuits, and not in any inferences that the Court may draw from congressional silence about the motivations or policies underlying Congress’ failure to act.
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But once the Court shows a willingness to guess at the intent underlying congressional inaction, the Court could just as easily rely on its own perceptions regarding congressional inaction to give unduly broad pre-emptive effect to federal law.
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This case illustrates that tragic facts make bad law
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10 Nov 09
United Building and Construction Trades Council v. Mayor and Council of Camden, 465 U.S. 208 (1984)
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requires that at least 40% of the employees of contractors and subcontractors working on city construction projects be Camden residents.
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(the Council), challenges that ordinance as a violation of the Privileges and Immunities Clause,
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We conclude that the challenged ordinance is properly subject to the strictures of the Clause. We therefore reverse the judgment of the Supreme Court of New Jersey and remand the case for a determination of the validity of the ordinance under the appropriate constitutional standard
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In light of the decision in White, appellant has abandoned its Commerce Clause challenge to the Camden ordinance.
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only question left for our consideration is whether the Camden ordinance, as now written, violates the Privileges and Immunities Clause.7
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We first address the argument, accepted by the Supreme Court of New Jersey, that the Clause does not even apply to a municipal ordinance such as this. Two separate contentions
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first, that the
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second, that
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first argument can be quickly rejected.
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one cannot easily distinguish municipal from state action in this case:
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e second argument merits more consideration.
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Clause is phrased in terms of state citizenship and was designed "to place the citizens of each State upon the same footing with citizens of other States
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The primary purpose of this clause
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help fuse into one Nation a collection of independent, sovereign States.
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We cannot accept this argument. We have never read the Clause so literally as to apply it only to distinctions based on state citizenship
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out-of-state citizen who ventures into New Jersey will not enjoy the same privileges as the New Jersey citizen residing in Camden.
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e conclude that Camden's ordinance is not immune from constitutional review at the behest of out-of-state residents merely because some in-state residents are similarly disadvantaged
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Application of the Privileges and Immunities Clause to a particular instance of discrimination against out-of-state residents entails a two-step inquiry.
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court must decide whether the ordinance burdens one of those privileges and immunities protected by the Clause.
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whether an out-of-state resident's interest in employment on public works contracts in another State is sufficiently "fundamental" to the promotion of interstate harmony so as to "fall within the purview of the Privileges and Immunities Clause
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pursuit of a common calling is one of the most fundamental of those privileges protected by the Clause.
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Public employment, however, is qualitatively different from employment in the private sector
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no fundamental right to government employment for purposes of the Equal Protection Clause
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the distinction between market participant and market regulator relied upon in White to dispose of the Commerce Clause challenge is not dispositive in this context. The two Clauses have different aims and set different standards for state conduct.
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Commerce Clause acts as an implied restraint upon state regulatory powers.
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The Privileges and Immunities Clause, on the other hand, imposes a direct restraint on state action in the interests of interstate harmony.
-
This concern with comity cuts across the market regulator-market participant distinction that is crucial under the Commerce Clause.
-
It is discrimination against out-of-state residents on matters of fundamental concern which triggers the Clause, not regulation affecting interstate commerce
-
that same exercise of power to bias the employment decisions of private contractors and subcontractors against out-of-state residents may be called to account under the Privileges and Immunities Clause.
-
The opportunity to seek employment with such private employers is "sufficiently basic to the livelihood of the Nation,"
-
The city of Camden contends that its ordinance is necessary to counteract grave economic and social ills.
-
, we find it impossible to evaluate Camden's justification on the record as it now stands. No trial has ever been held in the case. No findings of fact have been made. The Supreme Court of New Jersey certified the case for direct appeal after the brief administrative proceedings
-
It would not be appropriate for this Court either to make factual determinations as an initial matter or to take judicial notice of Camden's decay.
-
wise to remand the case t
-
What the dissent fails to appreciate is that the Camden ordinance at issue in this case was adopted pursuant to a comprehensive, state-wide program applicable in all New Jersey cities.
-
dissent's proposed blanket exemption for all classifications that are less than state-wide would provide States with a simple means for evading the strictures of the Privileges and Immunities Clause.
-
For over a century the underlying meaning of the Privileges and Immunities Clause of the Constitution's Article IV1 has been regarded as settled: at least absent some substantial, noninvidious justification, a State may not discriminate between its own residents and residents of other States on the basis of state citizenship.2
-
Today, however, the Court casually extends the scope of the Clause by holding that it applies to laws that discriminate among state residents on the basis of municipal residence
-
Zobel v. Williams, 457 U.S. 55,
-
The Court declined, however, to hold that the statute violated the Privileges and Immunities Clause.
-
the Court fails to attend to the functional considerations that underlie the Privileges and Immunities Clause.
-
discrimination on the basis of municipal residence is substantially different in this regard from discrimination on the basis of state citizenship
-
What the Court fails to appreciate is that this avenue of relief for New Jersey residents works to protect residents of other States as well; disadvantaged state residents who turn to the state legislature to displace ordinances like Camden's further the interests of nonresidents as well as their own
-
The Court's refusal to accept such an exemption is understandable; what is curious is why the Court attributes the exemption to this dissent.
-
practically equivalent to those explicitly identified by the Clause
-
The Court fails to explain why a classification that benefits all state residents other than the residents of a single locality stands in the same position, in terms of the practical considerations underlying the Clause, as a classification that benefits only the residents of one locality.
-
The fact that no State has attempted anything resembling the Court's proposed maneuver in the two centuries since the adoption of the Clause, despite the fact that none of this Court's precedents has foreclosed the option, strongly suggests that state political processes can be trusted to prevent this kind of Balkanization
-
White v. Massachusetts Council of Construction Employers, Inc., 460 U.S. 204 (1983)
-
executive order1 which required that all construction projects funded in whole or in part by city funds, or funds which the city had the authority to administer, should be performed by a work force consisting of at least half bona fide residents of Boston.2 The Supreme Judicial Court of Massachusetts decided that the order was unconstitutional, observing that the Commerce Clause "presents a clear obstacle to the city's order."
-
We now conclude that it does not and reverse.
- 3 more annotations...
-
-
"market participants." In
-
on the record before us the application of the mayor's executive order to the contracts in question did not violate the Commerce Clause
-
city expended only its own funds in entering into construction contracts for public projects,
-
05 Nov 09
Kassel v. Consolidated Freightways Corp., 450 U.S. 662 (1981)
-
whether an Iowa statute that prohibits the use of certain large trucks within the State unconstitutionally burdens interstate commerce.
-
Unlike all other States in the West and Midwest, App. 605, Iowa generally prohibits the use of 65-foot doubles within its borders.
- 43 more annotations...
-
-
The State of Iowa, however, by statute restricts the length of vehicles that may use its highways.
-
Notwithstanding these restrictions, Iowa's statute permits cities abutting the state line by local ordinance to adopt the length limitations of the adjoining State
-
Iowa also provides for two other relevant exemptions. A
-
Because of Iowa's statutory scheme, Consolidated cannot use its 65-foot doubles to move commodities through the State. Instead, the company must do one of four things:
-
Dissatisfied with these options, Consolidated filed this suit in the District Court averring that Iowa's statutory scheme unconstitutionally burdens interstate commerce.8
-
Iowa defended the law as a reasonable safety measure enacted pursuant to its police power.
-
On the question of safety, the District Court found that the "evidence clearly establishes that the twin is as safe as the semi."
-
"there is no valid safety reason for barring twins from Iowa's highways because of their configuration.
-
"The evidence convincingly, if not overwhelmingly, establishes that the 65 foot twin is as safe as, if not safer than, the 60 foot twin and the 55 foot semi. . . .
-
the District Court applied the standard we enunciated in Raymond Motor Transportation,
-
and concluded that the state law impermissibly burdened interstate commerce:
-
Eighth Circuit affirmed. 6
-
(1980). We now affirm.
-
Iowa thus substantially burdens the interstate flow of goods by truck.
-
Iowa's law is now out of step with the laws of all other Midwestern and Western States
-
here, as here, the State's safety interest has been found to be illusory, and its regulations impair significantly the federal interest in efficient and safe interstate transportation,
-
the state law cannot be harmonized with the Commerce Clause.
-
Consolidated, meanwhile, demonstrated that Iowa's law substantially burdens interstate commerce.
-
Thus, if 65-foot doubles are as safe as 55-foot singles, Iowa's law tends to increase the number of accidents, and to shift the incidence of them from Iowa to other States
-
Iowa urges the Court simply to "defer" to the safety judgment of the State. It argues that the length of trucks is generally, although perhaps imprecisely, related to safety
-
Less deference to the legislative judgment is due, however, where the local regulation bears disproportionately on out-of-state residents and businesses.
-
Such a disproportionate burden is apparent here. I
-
two particularly significant exemptions. First,
-
Second cities abutting
-
The origin of the "border cities exemption" also suggests that Iowa's statute may not have been designed to ban dangerous trucks, but rather to discourage interstate truck traffic.
-
In sum, the statutory exemptions, their history, and the arguments Iowa has advanced in support of its law in this litigation, all suggest that the deference traditionally accorded a State's safety judgment is not warranted.
-
The judgment of the Court of Appeals is affirmed.
-
nearly identical to the Wisconsin regulation struck down in Raymond Motor Transportation
-
I engage in the debate between my Brothers POWELL and REHNQUIST over what the District Court record shows on the question whether 65-foot doubles are more dangerous than shorter trucks.
-
analysis of Commerce Clause challenges to state regulations must take into account three principles: (1)
-
(2) The burdens
-
(3) Protectionist l
-
Both the opinion of my Brother POWELL and the opinion of my Brother REHNQUIST are predicated upon the supposition that the constitutionality of a state regulation is determined by the factual record created by the State's lawyers in trial court
-
supposition cannot be correct, for it would make the constitutionality of state laws and regulations depend on the vagaries of litigation rather than on the judgments made by the State's lawmakers.
-
It is not the function of the court to decide whether in fact the regulation promotes its intended purpose, so long as an examination of the evidence before or available to the lawmaker indicates that the regulation is not wholly irrational in light of its purposes
-
Though my Brother POWELL recognizes that the State's actual purpose in maintaining the truck-length regulation was "to limit the use of its highways by deflecting some through traffic," ante, at 677, he fails to recognize that this purpose, being protectionist in nature, is impermissible under the Commerce Clause
-
"Iowa's length restriction causes the trucks affected by the ban to travel more miles over more dangerous roads in other states which means a greater overall exposure to accidents and fatalities.
-
Iowa may not shunt off its fair share of the burden of maintaining interstate truck routes, nor may it create increased hazards on the highways of neighboring States in order to decrease the hazards on Iowa highways
-
"if safety justifications are not illusory, the Court will not secondguess legislative judgment about their importance in comparison with related burdens on interstate commerce."
-
Here, the decision of Iowa's lawmakers to promote Iowa's safety and other interests at the direct expense of the safety and other interests of neighboring States merits no such deference.
-
The result in this case suggests, to paraphrase Justice Jackson, that the only state truck-length limit "that is valid is one which this Court has not been able to get its hands on."
-
I believe the analysis in both opinions oversteps our "limited authority to review state legislation under the commerce clause,"
-
eriously intrudes upon the fundamental right of the States to pass laws to secure the safety of their citizens. Accordingly, I dissent.
-
Pike v. Bruce Church, Inc., 397 U.S. 137 (1970)
-
appellee is a company engaged in extensive commercial farming operations in Arizona and California
-
The appellant is the official charged with enforcing the Arizona Fruit and Vegetable Standardization Act.1
- 21 more annotations...
-
-
all cantaloupes grown in Arizona and offered for sale must 'be packed in regular compact arrangement in closed standard containers approved by the supervisor * * *.'2
-
the court issued a permanent injunction upon the ground that the challenged order constituted an unlawful burden upon interstate commerce
-
prohibiting the company from shipping its cantaloupes out of the State unless they were packed in containers in a manner and of a kind approved by the appellant. Because cantaloupes in the quantity involved can be so packed only in packing sheds, and because no such facilities were available to the company at Parker or anywhere else nearby in Arizona, the company faced imminent loss o
-
The appellant's threshold contention here is that even though the challenged order expressly forbids the interstate bulk shipment of the company's cantaloupes, it imposes no burden upon interstate commerce
-
Articles being made ready for interstate movement are not necessarily yet in interstate commerce
-
Here, by contrast, the perishable cantaloupes were destined to be shipped to an ascertainable location in California immediately upon harvest.
-
taxes in Federal Compress and Chassaniol were imposed on goods and operations within the State, whereas the application of the statute at issue here would require that an operation now carried on outside the State must be performed instead within the State so that it can be regulated there.
-
Thus it is clear that the appellant's order does affect and burden interstate commerce, and the question then becomes whether it does so unconstitutionally.
-
Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.
-
If a legitimate local purpose is found, then the question becomes one of degree. A
-
more frequently it has spoken in terms of 'direct' and 'indirect' effects and burdens. Se
-
Its purpose and design are simply to protect and enhance the reputation of growers within the State. These are surely legitimate state interest
-
Therefore, as applied to Arizona growers who package their produce in Arizona, we may assume the constitutional validity of the Act. We may further assume that Arizona has full constitutional power to forbid the misleading use of its name on produce that was grown or packed elsewhere.
-
t application of the Act through the appellant's order to the appellee company has a far different impact, and quite a different purpose.
-
The appellant's order would forbid the company to pack its cantaloupes outside Arizona, not for the purpose of keeping the reputation of its growers unsullied, but to enhance their reputation through the reflected good will of the company's superior produce.
-
The appellant, in other words, is not complaining because the company is putting the good name of Arizona on an inferior or deceptively packaged product, but because it is not putting that name on a product that is superior and well packaged.
-
But the State's tenuous interest in having the company's cantaloupes identified as originating in Arizona cannot constitutionally justify the requirement that the company build and operate an unneeded $200,000 packing plant in the State.
-
The nature of that burden is, constitutionally, more significant than its extent.
-
For the Court has viewed with particular suspicion state statutes requiring business operations to be performed in the home State that could more efficiently be performed elsewhere
-
While the order issued under the Arizona statute does not impose such rigidity on an entire industry, it does impose just such a straitjacket on the appellee company with respect to the allocation of its interstate resources.
-
But here the State's interest is minimal at best—
-
Dept. of Revenue of Kentucky v. Davis, 553 U.S. 06666 (2008)
-
for nearly half that time some States have exempted interest on their own bonds from their state income taxes, which are imposed on bond interest from other States.
-
whether Kentucky’s version of this differential tax scheme offends the Commerce Clause. We hold that it does not.
- 62 more annotations...
-
-
excludes “interest on any State or local bond”
-
Commonwealth’s tax benefit to residents who buy its bonds makes lower interest rates acceptable,5 while limiting the exception to Kentucky bonds raises in-state demand for them without also subsidizing other issuers.
-
Funding the work of government this way follows a tradition going back as far as the 17th century
-
Differential tax schemes like Kentucky’s have a long pedigree, too.
-
Today, 41 States have laws like the one before us.
-
sued the tax collectors in state court on a refund claim that Kentucky’s differential taxation of municipal bond income impermissibly discriminates against interstate commerce in violation of the Commerce Clause of the National Constitution.
-
“market-participant” exception
-
We granted certiorari owing to the conflict this raised on an important question of constitutional law, and because the result reached casts constitutional doubt on a tax regime adopted by a majority of the States. 550 U. S. ___ (2007). We now reverse.
-
we have sensed a negative implication in the provision since the early days
-
dormant Commerce Clause is driven by concern about “economic protectionism
-
we ask whether a challenged law discriminates against interstate commerce.
-
exception covers States that go beyond regulation and themselves “participat[e] in the market” so as to “exercis[e] the right to favor [their] own citizens over others.” A
-
no indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market,
-
United Haulers, supra,
-
9 This logic applies with even greater force to laws favoring a State’s municipal bonds, given that the issuance of debt securities to pay for public projects is a quintessentially public function
-
Kentucky must prevail.
-
Bonds place the cost of a project on the citizens who benefit from it over the years, see ibid., and they allow for public work beyond what current revenues could support,
-
fundamental element of dormant Commerce Clause jurisprudence, the principle that “any notion of discrimination assumes a comparison of substantially similar entities.”
-
Viewed through this lens, the Kentucky tax scheme parallels the ordinance upheld in United Haulers: it “benefit[s] a clearly public [issuer, that is, Kentucky], while treating all private [issuers] exactly the same.”
-
The Davises make a fair point to the extent that they argue that Kentucky acts in two roles at once, issuing bonds and setting taxes, and if looked at as a taxing authority it seems to invite dormant Commerce Clause scrutiny of its regulatory activity
-
The Commonwealth has entered the market for debt securities, just as Maryland entered the market for automobile hulks, see Alexandria Scrap
-
But there is no ignoring the fact that imposing the differential tax scheme makes sense only because Kentucky is also a bond issuer.
-
ut when Kentucky exempts its bond interest, it is competing in the market for limited investment dollars, alongside private bond issuers and its sister States, and its tax structure is one of the tools of competition.
-
The failure to appreciate that regulation by taxation here goes hand in hand with market participation by selling bonds allows the Davises to advocate the error of focusing exclusively on the Commonwealth as regulator and ignoring the Commonwealth as bond seller,
-
The Kentucky tax scheme falls outside the forbidden paradigm because the Commonwealth’s direct participation favors, not local private entrepreneurs, but the Commonwealth and local governments.
-
eye toward making some or all of its bonds more marketable
-
The Davises’ request for Pike balancing assumes an answer to an open question: whether Pike even applies to a case of this sort.
-
We need not decide this question today, however, for Kentucky has not argued that Pike is irrelevant,
-
disadvantages that the Davises’ counsel attributes to
-
“First, it harms
-
Second, it similarly harms
-
Third, it harms th
-
Fourth, it harms K
-
Fifth, it harms the
-
It is striking, after all, that most of the harms allegedly flowing directly or indirectly to Kentucky’s sister States and their citizens have failed to dissuade even a single State from supporting the current system
-
unsuitability of the judicial process and judicial forums for making whatever predictions and reaching whatever answers are possible at all
-
congressional forum has two advantages. Congress
-
the case is readily resolved by last Term’s decision in United Haulers
-
I will apply our negative Commerce Clause doctrine only when stare decisis compels me to do so
-
it would be no small leap from invalidating state discrimination in favor of private entities to invalidating state discrimination in favor of the State’s own subdivisions performing a traditional governmental function
-
I would entirely “discard the Court’s negative Commerce Clause jurisprudence.”
-
Eighteenth-century thinkers, even those most prescient, could not foresee our technological and economic interdependence.
-
The national, free market within our borders has been a singular force in shaping the consciousness and creating the reality that we are one in purpose and destiny
-
The explicit, local discrimination the Court ratifies today likely will result in extra, though manageable, accommodation costs
-
This is but a reformulation of the phrase “police power,” long abandoned as a mere tautology.
-
That a law has the police power label—as all laws do—does not exempt it from Commerce Clause analysis.
-
The Court holds the Kentucky law is valid because bond issuance fulfills a governmental function: raising revenue for public projects
-
t, the premise is wrong
-
The law in question operates on those who hold the bonds and trade them, not those who issue them.
-
It is simply not commercial or investment practice to make payment obligations turn upon either the residence of the holder or the State of the issuer.
-
discrimination against out-of-state commerce still would be too plain and prejudicial to be sustained
-
The challenged state activity is differential taxation, not bond issuance
-
The state tax provision at issue could be repealed tomorrow without altering or impairing a single obligation in the bonds
-
The tax imposed here is an explicit discrimination against out-of-state issuances for admitted protectionist purposes
-
f United Haulers. There the Court concluded the ordinance applied equally to interstate and in-state commerce—and so it applied without differentiation between in-state and out-of-state commerce—because the government had monopolized the waste processing industry.
-
Nondiscrimination, not just state involvement, was central to the rationale.
-
That justification cannot be invoked here, for discrimination against out-of-state bonds is the whole purpose of the law in question
-
a “tax exemption is not the sort of direct state involvement in the market that falls within the market-participation doctrine.” Camps Newfound
-
open invitation to enact these kinds of discriminatory laws—laws that, until today, the Court has not upheld
-
. Taxation is a quintessential act of regulation, not market participation.
-
The Court could say there needs to be a sui generis exception, noting that the interstate discrimination has been entrenched in many States and for a considerable time.
-
Instead, today the Court weakens the preventative force of the Commerce Clause and invites other protectionist laws, thus risking further dislocations and market inefficiencies
-
03 Nov 09
South Central Timber v. Wunnicke, 467 U.S. 82 (1984)
-
review a decision of the Court of Appeals for the Ninth Circuit that held that Alaska's requirement that timber taken from state lands be processed within the State prior to export was "implicitly authorized" by Congress and therefore does not violate the Commerce Clause
-
We hold that it was not authorized and reverse the judgment of the Court of Appeals
- 34 more annotations...
-
-
notice that it would sell approximately 49 million board-feet of timber
-
pursuant to 11 Alaska Admin.Code § 76.130 (1974), that "[p]rimary manufacture within the State of Alaska will be required as a special provision of the contract."1
-
brought an action in Federal District Court seeking an injunction, arguing that the requirement violated the negative implications of the Commerce Clause
-
We must first decide whether the court was correct in concluding that Congress has authorized the challenged requirement. If Congress has not, we must respond to respondents' submission that we should affirm the judgment on two grounds not reached by the Court of Appeals: (1)
-
r; and (2),
-
The first of these issues
-
We now turn to the issues left unresolved by the Court of Appeals.
-
r the "market-participant doctrine."
-
if a State is acting as a market participant, rather than as a market regulator, the dormant Commerce Clause places no limitation on its activities
-
Hughes v. Alexandria Scrap Corp., su
-
Reeves, Inc. v. Stake, sup
-
Court recognized the principle that the Commerce Clause places no limitations on a State's refusal to deal with particular parties when it is participating in the interstate market in good
-
White v. Massachusetts Council of Construction Employers, Inc., su
-
informal sense, 'working for the city.'
-
The limit of the market-participant doctrine must be that it allows a State to impose burdens on commerce within the market in which it is a participant, but allows it to go no further
-
The State may not impose conditions, whether by statute, regulation, or contract, that have a substantial regulatory effect outside of that particular market
-
disagreement over the definition of the market. Alaska contends that it is participating in the processed timber market,
-
South-Central argues,
-
it is using its leverage in that market to exert a regulatory effect in the processing market, in which it is not a participant. We agree
-
There are sound reasons for distinguishing between a State's preferring its own residents in the initial disposition of goods when it is a market participant and a State's attachment of restrictions on dispositions subsequent to the goods coming to rest in private hands. First, si
-
We reject the contention that a State's action as a market regulator may be upheld against Commerce Clause challenge on the ground that the State could achieve the same end as a market participant.
-
Second, downstream restrictions have a greater regulatory effect than do limitations on the immediate transaction
-
restricts the post-purchase activity of the purchaser
-
this restriction on private economic activity takes place after the completion of the parties' direct commercial obligations
-
State may not avail itself of the market-participant doctrine to immunize its downstream regulation
-
Finally, the State argues that even if we find that Congress did not authorize the processing restriction, and even if we conclude that its actions do not qualify for the market-participant exception, the restriction does not substantially burden interstate or foreign commerce under ordinary Commerce Clause principles.
-
naked restraint on export of unprocessed logs
-
little question that the processing requirement cannot survive scrutiny
-
protectionist nature of Alaska's local-processing requirement
-
we conclude that it falls within the rule of virtual per se invalidity of laws
-
We are buttressed in our conclusion that the restriction is invalid by the fact that foreign commerce is burdened by the restriction.
-
restrictions burdening foreign commerce are subjected to a more rigorous and searching scrutiny.
-
I believe Alaska's in-state processing requirement constitutes market regulation that is not authorized by Congress.
-
I would remand the case to the Court of Appeals to allow that court to consider whether Alaska was acting as a "market participant" and whether Alaska's primary-manufacture requirement substantially burdened interstate commerce
-
United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 051345 (2007)
-
“Flow control” ordinances require trash haulers to deliver solid waste to a particular waste processing facility.
-
In this case, we face flow control ordinances quite similar to the one invalidated in Carbone. The only salient difference is that the laws at issue here require haulers to bring waste to facilities owned and operated by a state-created public benefit corporation. We find this difference constitutionally significant.
- 38 more annotations...
-
-
Applying the Commerce Clause test reserved for regulations that do not discriminate against interstate commerce, we uphold these ordinances because any incidental burden they may have on interstate commerce does not outweigh the benefits they confer
-
we decide that such flow control ordinances do not discriminate against interstate commerce for purposes of the dormant Commerce Clause.
-
Compelling reasons justify treating these laws differently from laws favoring particular private businesses over their competitors
-
Unlike private enterprise, government is vested with the responsibility of protecting the health, safety, and welfare of its citizens.
-
it does not make sense to regard laws favoring local government and laws favoring private industry with equal skepticism.
-
when a law favors in-state business over out-of-state competition, rigorous scrutiny is appropriate because the law is often the product of “simple economic protectionism.”
-
Laws favoring local government, by contrast, may be directed toward any number of legitimate goals unrelated to protectionism.
-
The contrary approach of treating public and private entities the same under the dormant Commerce Clause would lead to unprecedented and unbounded interference by the courts with state and local government.
-
it was also open to them to vest responsibility for the matter with their government, and to adopt flow control ordinances to support the government effort
-
We should be particularly hesitant to interfere with the Counties’ efforts under the guise of the Commerce Clause because “[w]aste disposal is both typically and traditionally a local government function.”
-
it bears mentioning that the most palpable harm imposed by the ordinances—more expensive trash removal—is likely to fall upon the very people who voted for the laws
-
Here, the citizens and businesses of the Counties bear the costs of the ordinances.
-
We hold that the Counties’ flow control ordinances, which treat in-state private business interests exactly the same as out-of-state ones, do not “discriminate against interstate commerce”
-
Under the Pike test, we will uphold a nondiscriminatory statute like this one “unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.”
-
After years of discovery, both the Magistrate Judge and the District Court could not detect any disparate impact on out-of-state as opposed to in-state businesses.
-
unnecessary to decide whether the ordinances impose any incidental burden on interstate commerce because any arguable burden does not exceed the public benefits of the ordinances.
-
convenient and effective way to finance their integrated package of waste-disposal services. While “revenue generation is not a local interest that can justify discrimination against interstate commerce,” Carbone,511 U. S., at 393 (emphasis added), we think it is a cognizable benefit for purposes of the Pike test.
-
They increase recycling in at least two ways
-
They are invitations to rigorously scrutinize economic legislation passed under the auspices of the police power
-
We should not seek to reclaim that ground for judicial supremacy under the banner of the dormant Commerce Clause.
-
. I write separately to reaffirm my view that “the so-called ‘negative’ Commerce Clause is an unjustified judicial invention, not to be expanded beyond its existing domain.”
-
I have been willing to enforce on stare decisis grounds a “negative” self-executing Commerce Clause in two situations: “(1)
-
(2) agains
-
the flow-control law at issue in this case meets neither condition. It benefits a public
entity -
The negative Commerce Clause has no basis in the Constitution and has proved unworkable in practice.
-
Although I joined C & A Carbone, Inc. v. Clarkstown,
511 U. S. 383 (1994)
, I no longer believe it was correctly decided. -
The Court’s policy preferences are an unsuitable basis for constitutional doctrine because they shift over time,
-
Many of the above-cited cases (and today’s majority and dissent) rest on the erroneous assumption that the Court must choose between economic protectionism and the free market
-
But the Constitution vests that fundamentally legislative choice in Congress.
-
I agree that the Commerce Clause is not a “roving license” and that the Court should not deliver to businesses victories that they failed to obtain through the political process. I differ with the Court because I believe its powerful rhetoric is completely undermined by the doctrine it applies.
-
the Court’s analogy to Lochner v. New York,
198 U. S. 45 (1905)
, suggests that the Court should reject the negative Commerce Clause, rather than tweak it. Ante, at 15. In Lochner the Court located a “right of free contract” in a constitutional provision that says nothing of the sort. -
it further propagates the error by narrowing the negative Commerce Clause for policy reasons—
-
Because the provisions challenged in this case are essentially identical to the ordinance invalidated in Carbone, I respectfully dissent.
-
[W]e have never treated discriminatory legislation with greater deference simply because the entity favored by that legislation was a government-owned enterprise.
-
Nor has this Court ever suggested that discriminatory legislation favoring a state-owned enterprise is entitled to favorable treatment
-
Under the market-participant doctrine, a State is permitted to exercise “ ‘independent discretion as to parties with whom [it] will deal.’ ”
-
“acting as a market participant, rather than as a market regulator,”
-
Respondents are doing exactly what the market-participant doctrine says they cannot: While acting as market participants by operating a fee-for-service business enterprise in an area in which there is an established interstate market, respondents are also regulating that market in a discriminatory manner and claiming that their special governmental status somehow insulates them from a dormant Commerce Clause challenge
-
C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1993)
-
As solid waste output continues apace and landfill capacity becomes more costly and scarce, state and local governments are expending significant resources to develop trash control systems that are efficient, lawful, and protective of the environment.
-
We consider a so-called flow control ordinance
- 39 more annotations...
-
-
purpose of the ordinance is to retain the processing fees charged at the transfer station to amortize the cost of the facility. Because it attains this goal by depriving competitors, including out-of-state firms, of access to a local market, we hold that the flow control ordinance violates the Commerce Clause.
-
e problem, of course, was how to meet the yearly guarantee.
-
The solution the town adopted was the flow control ordinance here in question, L
-
ordinance requires all nonhazardous solid waste within the town to be deposited at the Route 303 transfer station.
-
petitioners in this case are C & A Carbone, Inc., a company engaged in the processing of solid waste, and various related companies or persons, all of whom we designate Carbone
-
It thus forbids Carbone to ship the nonrecyclable waste itself, and it requires Carbone to pay a tipping fee on trash that Carbone has already sorted
-
On July 11, the federal court granted Carbone's injunction, finding a sufficient likelihood that the ordinance violated the Commerce Clause of the United States Constitution.
-
New York court granted summary judgment to respondent. The court declared the flow control ordinance constitutional and enjoined petitioners
-
The Appellate Division affirmed.
-
The court found that the ordinance did not discriminate against interstate commerce, because it "applies evenhandedly to all solid waste processed within the Town, regardless of point of origin."
-
We granted certiorari, 508 U.S. ___ (1993), and now reverse.
-
we confirm that the flow control ordinance does regulate interstate commerce, despite the town's position to the contrary.
-
The town says that its ordinance reaches only waste within its jurisdiction, and is, in practical effect, a quarantine
-
its economic effects are interstate in reach
-
the ordinance prevents everyone except the favored local operator from performing the initial processing step
-
The ordinance thus deprives out-of-state businesses of access to a local market.
-
real question is whether the flow control ordinance is valid despite its undoubted effect on interstate commerce.
-
our case law yields two lines of analysis: first
-
and second, whether
-
ordinance discriminates against interstate commerce, w
-
larkstown protests that its ordinance does not discriminate, because it does not differentiate solid waste on the basis of its geographic origin. All solid waste, regardless of origin, must be processed at the designated transfer station before it leaves the town.
-
As the town itself points out, what makes garbage a profitable business is not its own worth but the fact that its possessor must pay to get rid of it. In other words, the article of commerce is not so much the solid waste itself, but rather the service of processing and disposing of it.
-
ordinance is no less discriminatory because in-state or in-town processors are also covered by the prohibition.
-
Put another way, the offending local laws hoard a local resource -- be it meat, shrimp, or milk -- for the benefit of local businesses that treat it.
-
hoards solid waste, and the demand to get rid of it, for the benefit of the preferred processing facility.
-
They suggest that as landfill space diminishes and environmental cleanup costs escalate, measures like flow control become necessary
-
these arguments must be rejected absent the clearest showing that the unobstructed flow of interstate commerce itself is unable to solve the local problem
-
Here Clarkstown has any number of nondiscriminatory alternatives for addressing the health and environmental problems alleged to justify the ordinance in question. The most obvious would be uniform safety regulations enacted without the object to discriminate
-
Nor may Clarkstown justify the flow control ordinance as a way to steer solid waste away from out-of-town disposal sites that it might deem harmful to the environment. To do so would extend the town's police power beyond its jurisdictional bounds
-
flow control ordinance does serve a central purpose that a nonprotectionist regulation would not: it ensures that the town-sponsored facility will be profitable
-
Clarkstown maintains that special financing is necessary to ensure the long-term survival of the designated facility. If so, the town may subsidize the facility through general taxes or municipal bonds
-
. But having elected to use the open market
-
Though the Clarkstown ordinance may not in explicit terms seek to regulate interstate commerce, it does so nonetheless by its practical effect and design
-
The majority may invoke "well-settled principles of our Commerce Clause jurisprudence," ante at ___, but it does so to strike down an ordinance unlike anything this Court has ever invalidated.
-
majority ignores, however, are the differences between our local processing cases and this one: the exclusion worked by Clarkstown's Local Law 9 bestows no benefit on a class of local private actors, but instead directly aids the government in satisfying a traditional governmental responsibility
-
the majority is in fact greatly extending the Clause's dormant reach.
-
no indication in the record that any out-of-state trash processor has been harmed, or that the interstate movement or disposition of trash will be affected one whit.
-
The town has found a way to finance a public improvement, not by transferring its cost to out-of-state economic interests, but by spreading it among the local generators of trash, an equitable result with tendencies that should not disturb the Commerce Clause and should not be disturbed by us.
-
Local Law 9 conveys a privilege on the municipal government alone, the only market participant that bears responsibility for ensuring that adequate trash processing services continue to be available to Clarkstown residents.
-
Philadelphia v. NJ, 437 U.S. 617 (1978)
-
New Jersey law prohibits the importation of most "solid or liquid waste which originated or was collected outside the territorial limits of the State . . .."
-
Although the Constitution gives Congress the power to regulate commerce among the States, many subjects of potential federal regulation under that power inevitably escape congressional attention "because of their local character and their number and diversity."
- 20 more annotations...
-
-
reflected an alertness to the evils of "economic isolation" and protectionism,
-
incidental burdens on interstate commerce may be unavoidable when a State legislates to safeguard the health and safety of its people.
-
where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected
-
"Where the statute regulates evenhandedly to effectuate a legitimate local public interest,
-
whether ch. 363 is basically a protectionist measure, or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental
-
The purpose of ch. 363 is set out in the statute itself as follows:
-
The New Jersey Supreme Court accepted this statement
-
heavy environmental toll, both from pollution and from loss of scarce open lands;
-
court concluded that ch. 363 was designed to protect, not the State's economy, but its environment, and that its substantial benefits outweigh its "slight" burden on interstate commerce
-
the evil of protectionism can reside in legislative means as well as legislative ends.
-
And it may be assumed as well that New Jersey may pursue those ends by slowing the flow ofall waste into the State's remaining landfills, even though interstate commerce may incidentally be affected
-
whatever New Jersey's ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently
-
Court's decisions holding that a State may not accord its own inhabitants a preferred right of access over consumers in other States to natural resources located within its border
-
The New Jersey law at issue in this case falls squarely within the area that the Commerce Clause puts off limits to state regulation.
-
The appellees argue that not all laws which facially discriminate against out-of-state commerce are forbidden protectionist regulations. In particular, they point to quarantine laws,
-
In the appellees' view, ch. 363 is analogous to such health-protective measures, since it reduces the exposure of New Jersey residents to the allegedly harmful effects of landfill sites.
-
those quarantine laws banned the importation of articles such as diseased livestock that required destruction as soon as possible because their very movement risked contagion and other evils. Those laws thus did not discriminate against interstate commerce as such, but simply prevented traffic in noxious articles, whatever their origin.
-
The harms caused by waste are said to arise after its disposal in landfill sites, and at that point, as New Jersey concedes, there is no basis to distinguish out-of-state waste from domestic waste.
-
That legislative effort is clearly impermissible under the Commerce Clause of the Constitution.
-
The Court points to absolutely no evidence that would contradict this finding by the New Jersey Supreme Court.
-
Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959)
-
We are asked in this case to hold that an Illinois statute1 requiring the use of a certain type of rear fender mudguard on trucks and trailers operated on the highways of that State conflicts with the Commerce Clause of the Constitution.
-
three-judge District Court concluded that it unduly and unreasonably burdened and obstructed interstate commerce, because it made the conventional or straight mudflap, which is legal in at least 45 States, illegal in Illinois, and because the statute, taken together with a Rule of the Arkansas Commerce Commission4 requiring straight mudflaps, rendered the use of the same motor vehicle equipment in both States impossible.
- 16 more annotations...
-
-
The power of the State to regulate the use of its highways is broad and pervasive.
-
These safety measures carry a strong presumption of validity when challenged in court
-
Unless we can conclude on the whole record that 'the total effect of the law as a safety measure in reducing accidents and casualties is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free from interferences which seriously impede it' (Southern Pacific Co. v. State of Arizona, supra, 325 U.S. at pages 775—776, 65 S.Ct. at page 1523) we must uphold the statute.
-
District Court in its opinion stated that it was 'conclusively shown that the contour mud flap possesses no advantages over the conventional or straight mud flap previously required in Illinois and presently required in most of the states
-
rather convincing testimony that use of the contour flap creates hazards previously unknown to those using the highways.'
-
This case presents a different issue. The equipment in the Sproles, Barnwell, and Maurer cases could pass muster in any State, so far as the records in those cases reveal.
-
We had a related problem in Southern Pacific Co. v. State of Arizona, supra, where the Court invalidated a statute of Arizona prescribing a maximum length of 70 cars for freight trains moving through that State
-
It was also found that the Illinois statute seriously interferes with the 'interline' operations of motor carriers—
-
rather massive showing of burden on interstate commerce
-
Appellants' showing was aimed at establishing that contour mudguards prevented the throwing of debris into the faces of drivers of passing cars and into the windshields of a following vehicle.
-
They concluded that, because the Illinois statute is a reasonable exercise of the police power, a federal court is precluded from weighing the relative merits
-
This is one of those cases—few in number—where local safety measures that are nondiscriminatory place an unconstitutional burden on interstate commerce.
-
underlined by the deleterious effect which the Illinois law will have on the 'interline' operation
-
place a great burden of delay and inconvenience on those interstate motor carriers entering or crossing its territory.
-
opinion of the Court clearly demonstrates the heavy burden, in terms of cost and interference with 'interlining,' which the Illinois statute here involved imposes
-
mudflap 'possesses no advantages' in terms of safety over the conventional flap permitted in all other States, and indeed creates certain safety hazards
-
Cooley v. Board of Wardens, 53 U.S. 299 (1851)
-
power to regulate commerce includes the regulation of navigation,
-
the regulation of the qualifications of pilots, of the modes and times of offering and rendering their services, of the responsibilities which shall rest upon them, of the powers they shall possess, of the compensation they may demand, and of the penalties by which their rights and duties may be enforced, do constitute regulations of navigation, and consequently of commerce, within the just meaning of this clause of the Constitution.
- 12 more annotations...
-
-
And if Congress has power to regulate the seamen who assist the pilot in the management of the vessel, a power never denied, we can perceive no valid reason why the pilot should be beyond the reach of the same power.
-
Conflicts between the laws of neighboring states, and discriminations favorable or adverse to commerce with particular foreign nations, might be created by state laws regulating pilotage, deeply affecting that equality of commercial rights, and that freedom from state interference, which those who formed the Constitution were so anxious to secure, and which the experience of more than half a century has taught us to value so highly
-
necessary, therefore, to consider whether this law of Pennsylvania, being a regulation of commerce, is valid.
-
Congress of the 7th of August, 1789,
-
all pilots in the bays, inlets, rivers, harbors, and ports of the United States shall continue to be regulated in conformity with the existing laws of the states,
-
If the Constitution excluded the states from making any law regulating commerce, certainly Congress cannot re-grant, or in any manner re-convey to the states that power
-
yet this act of 1789 gives its sanction only to laws enacted by the states. This necessarily implies a constitutional power to legislate;
-
whether the grant of the commercial power to Congress, did per se deprive the states of all power to regulate pilots
-
Now the power to regulate commerce, embraces a vast field, containing not only many, but exceedingly various subjects, quite unlike in their nature; some imperatively demanding a single uniform rule, operating equally on the commerce of the United States in every port; and some, like the subject now in question, as imperatively demanding that diversity, which alone can meet the local necessities of navigation.
-
Whatever subjects of this power are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress.
-
The act of 1789 contains a clear and authoritative declaration by the first Congress, that the nature of this subject is such, that until Congress should find it necessary to exert its power, it should be left to the legislation of the states; that it is local and not national;
-
It is the opinion of a majority of the court that the mere grant to Congress of the power to regulate commerce, did not deprive the states of power to regulate pilots, and that although Congress has legislated on this subject, its legislation manifests an intention, with a single exception, not to regulate this subject, but to leave its regulation to the several states
-
27 Oct 09
Gibbons v. Ogden, 22 U.S. 1 (1824)
-
the Chancellor perpetuated the injunction, being of the opinion, that the said acts were not repugnant to the constitution and laws of the United States, and were valid
-
appellant contends that this decree is erroneous, because the laws which purport to give the exclusive privilege it sustains, are repugnant to the constitution and laws of the United States.
- 55 more annotations...
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regulate commerce
-
promote the progress of science and useful arts
-
State of New-York maintains the constitutionality of these laws
-
when these allied sovereigns converted their league into a government, when they converted their Congress of Ambassadors, deputed to deliberate on their common concerns, and to recommend measures of general utility, into a Legislature, empowered to enact laws on the most interesting subjects, the whole character in which the States appear, underwent a change, the extent of which must be determined by a fair consideration of the instrument by which that change was effected
-
people to their government
-
It has been said, that these powers ought to be construed strictly. But why ought they to be so construed?
-
necessary and proper
-
nor is there one sentence in the constitution, which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule
-
We do not, therefore, think ourselves justified in adopting it.
-
strict construction?
-
The grant does not convey power which might be beneficial to the grantor, if retained by himself, or which can enure solely to the benefit of the grantee; but is an investment of power for the general advantage, in the hands of agents selected for that purpose; which power can never be exercised by the people themselves, but must be placed in the hands of agents, or lie dormant.
-
'Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.'
-
our constitution being, as was aptly said at the bar, one of enumeration, and not of definition,
-
commerce
-
settle the meaning of the word
-
Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse
-
include navigation, the
-
Yet this power has been exercised from the commencement of the government
-
If the opinion that 'commerce,' as the word is used in the constitution, comprehends navigation also, requires any additional confirmation, that additional confirmation is, we think, furnished by the words of the instrument itself.
-
the exceptions from a power mark its extent
-
The 9th section of the 1st article declares, that 'no preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another.' This clause cannot be understood as applicable to those laws only which are passed for the purposes of revenue, because it is expressly applied to commercial regulations; and the most obvious preference which can be given to one port over another, in regulating commerce, relates to navigation
-
'nor shall vessels bound to or from one State, be obliged to enter, clear, or pay duties, in another.' These words have a direct reference to navigation.
-
Gentlemen have said, in argument, that this is a branch of the war-making power, and that an embargo is an instrument of war, not a regulation of trade.
-
That it may be, and often is, used as an instrument of war, cannot be denied.
-
But all embargoes are not of this description. T
-
these words comprehend every species of commercial intercourse between the United States and foreign nations.
-
If this be the admitted meaning of the word, in its application to foreign nations, it must carry the same meaning throughout the sentence, and remain a unit, unless there be some plain intelligible cause which alters it.
-
'among' means intermingled with
-
It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary
-
it may very properly be restricted to that commerce which concerns more States than one.
-
enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State
-
its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government
-
Commerce among the States must, of necessity, be commerce with the States
-
What is this power?
-
power to regulate; that is, to prescribe the rule by which commerce is to be governed
-
But it has been urged with great earnestness, that, although the power of Congress to regulate commerce with foreign nations, and among the several States, be co-extensive with the subject itself, and have no other limits than are prescribed in the constitution, yet the States may severally exercise the same power, within their respective jurisdictions
-
inseparable attribute of sovereignty
-
appellant, conceding these postulates, except the last, contends, that full power to regulate a particular subject, implies the whole power, and leaves no residuum
-
grant of the power to lay and collect taxes
-
no analogy, then, between the power of taxation and the power of regulating commerce.
-
The sole question is, can a State regulate commerce with foreign nations and among the States, while Congress is regulating it?
-
respondent answer this question in the affirmative, and rely very much on the restrictions in the 10th section,
-
the section which prohibits the States from laying duties on imports or exports, proves that this power might have been exercised
-
that a State might impose duties on exports and imports, if not expressly forbidden, will be conceded; but that it follows as a consequence, from this concession, that a State may regulate commerce with foreign nations and among the States, cannot be admitted
-
duties or imposts on imports or exports,
-
a branch of the taxing power. I
-
8th section: 'Congress shall have power to lay and collect taxes, duties, imposts, and excises;' a
-
In a separate clause of the enumeration, the power to regulate commerce is given, as being entirely distinct from the right to levy taxes and imposts, and as being a new power, not before conferred
-
The right to regulate commerce, even by the imposition of duties, was not controverted; but the right to impose a duty for the purpose of revenue, produced a war as important, perhaps, in its consequences to the human race, as any the world has ever witnessed.
-
that a power to regulate commerce is the source from which the right to pass them is derived, cannot be admitted
-
That inspection laws
-
But, in making these provisions, the opinion is unequivocally manifested, that Congress may control the State laws, so far as it may be necessary to control them, for the regulation of commerce
-
. Any State might now import African slaves into its own territory. But it is obvious, that the power of the States over this subject, previous to the year 1808, constitutes an exception to the power of Congress to regulate commerce, and the exception is expressed in such words, as to manifest clearly the intention to continue the pre-existing right of the States to admit or exclude, for a limited period
-
But the adoption of the State system being temporary, being only 'until further legislative provision shall be made by Congress,' shows, conclusively, an opinion that Congress could control the whole subject, and might adopt the system of the States, or provide one of its own
-
In pursuing this inquiry at the bar, it has been said, that the constitution does not confer the right of intercourse between State and State
-
20 Oct 09
Missouri v. Holland, 252 U.S. 416 (1920)
-
This is a bill in equity brought by the State of Missouri to prevent a game warden of the United States from attempting to enforce the Migratory Bird Treaty Act
-
ground of the bill is that the statute is an unconstitutional interference with the rights reserved to the States by the Tenth Amendment, and that the acts of the defendant done and threatened under that authority invade the sovereign right of the State and contravene its will manifested in statutes.
- 20 more annotations...
-
-
State also alleges a pecuniary interest, as owner of the wild birds
-
treaty between the United States and Great Britain
-
prohibited the killing, capturing or selling any of the migratory birds included in the terms of the treaty
-
Article 2, Section 2, the power to make treaties is delegated expressly, and by Article 6 treaties made under the authority of the United States, along with the Constitution and laws of the United States made in pursuance thereof, are declared the supreme law of the land.
-
If the treaty is valid there can be no dispute about the validity of the statute under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government.
-
It is said that a treaty cannot be valid if it infringes the Constitution, that there are limits, therefore, to the treaty-making power, and that one such limit is that what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a treaty cannot do
-
An earlier act of Congress that attempted by itself and not in pursuance of a treaty to regulate the killing of migratory birds within the States had been held bad in the District Court.
-
Whether the two cases cited were decided rightly or not they cannot be accepted as a test of the treaty power
-
Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States.
-
We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way
-
The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ag
-
The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved.
-
true that as between a State and its inhabitants the State may regulate the killing and sale of such birds, but it does not follow that its authority is exclusive of paramount powers
-
If we are to be accurate we cannot put the case of the State upon higher ground than that the treaty deals with creatures that for the moment are within the state borders, that it must be carried out by officers of the United States within the same territory, and that but for the treaty the State would be free to regulate this subject itself.
-
Valid treaties of course 'are as binding within the territorial limits of the States as they are elsewhere throughout the dominion of the United States.'
-
treaty may override its power
-
Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power
-
But for the treaty and the statute there soon might be no birds for any powers to deal with
-
We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed
-
opinion that the treaty and statute must be upheld
-
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