This page will be used to post selected questions that I receive from students during the study and exam period and my answers to those questions.  The questions will be posted anonymously and may be edited so that they are of general interest to the class.  I will add new questions and answers as they are submitted.  After the list of current questions, you will find questions from prior years.

Spring 2013 Questions

Question Number One

Regarding Congress' power under the Commerce Clause and with respect to Category Three Regulation of Local Activities with a Substantial Economic Effect on Interstate Commerce, I want to be sure about the scope of Congress' power when they regulate in the aggregate as distinguished from regulating under a comprehensive regulatory scheme.
 
My understanding (Wickard) is that Congress can regulate an individual instance of economic activity under an aggregation theory. However, if Congress has enacted a comprehensive regulatory scheme, Congress has an additional constitutionally permissive reach into non-economic aspects of the activity that is not available under an aggregation theory. Is this a correct way to look at it?
 
Additionally I am unclear if reach into regulating a class of actvities as in Perez is available under an aggregation theory, or when there is a comprehensive regulatory scheme, or if it is stands alone?

Answer Number One

Your understanding of the difference between aggregation (adding up all the small instances of economic activity to show a substantial effect on interstate commerce) vs. the use of a comprehensive regulatory scheme (regulating both economic and noneconomic activity because both are integral parts of a problem that Congress is addressing allowing a court to characterize the scheme in its entirety as a regulation of economic activity) is one hundred percent correct.

As to the class of activities theory described in Perez, that's a harder question to answer. One reason it's harder is that Perez comes long before Lopez decided that the distinction between economic and noneconomic activities was relevant. Therefore, Perez wasn't using the class of activities concept to justify regulating noneconomic activities. After all, all lending of money is a quintessential economic activity so that wasn't a problem facing the Court. On the other hand, it also wasn't using it for aggregation purposes because it didn't claim that lending money like Perez did, independent of interstate organized crime, had an effect on interstate commerce. I think it could have made this argument (as we discussed in class), but it didn't.

That means it wasn't really using the class of activities concept for either of the two purposes. However, I think it's closer to the comprehensive regulatory scheme theory, but not to include some noneconomic instances of the activity in the regulatory scheme. Instead, it's to include some instances of the activity that don't have any proven effect on interstate commerce in the regulatory scheme. In the opinion, in talking about both Heart of Atlanta Motel v. United States and Katzenbach v. McClung, both of which the Perez Court says are cases that relied on the class of activities test, the Court says:
In emphasis of our position that it was the class of activities regulated that was the measure, we acknowledged that Congress appropriately considered the "total incidence" of the practice on commerce. Where the class of activities is regulated and that class is within the reach of federal power, the courts have no power "to excise, as trivial, individual instances" of the class.
The Court is saying that when, in general, most instances of an activity are tied to interstate commerce (like serving patrons in a restaurant that buys its food from interstate commerce or providing lodging for travelers or lending money at extortionate rates), Congress can regulate all instances of the activity without the need to prove that any individual instance has a tie to interstate commerce. That means that the class can include some instances of the activity that have no effect on interstate commerce, not even a trivial one.

Question Number Two

Regarding the Privileges & Immunities Clause of Article IV, I have a question concerning the third preliminary hurdle that a challenger must satisfy. Why have access to private employment opportunities been found to be fundamental/essential activities protected by Art. 4 Sec. 2.?

Answer Number Two

The purpose of the Privileges & Immunities Clause of Article IV is similar to the dormant Commerce Clause. It makes sure that economic opportunities within a state (e.g., selling a product, getting a job) are available to residents and nonresidents. This supports the idea of the nation being a single economic unit with states not being able to erect trade barriers to wall off competition from other states. Both clauses focus on the private marketplace rather than government employment and government services. They do this in different ways with the dormant Commerce Clause having the market participant exception to protect the state's own participation in the market and the P & I Clause using the third hurdle as a way of allowing the states to protect their own activities and resources such as who the states hire to work for the government and other opportunities such as subsidies that states make available.

Question Number Three

I see how the undue burden test can be a substitute for strict scrutiny in abortion cases, but I don't understand its sorting function. I also don’t understand how the undue burden test can subject regulations that are relatively minor intrusions to the minimum rationality test. Since we have discussed abortion and reproductive rights as fundamental issues, I can't understand why there would be any time where the minimum scrutiny standard applies. Would you be able to provide a few examples?

Answer Number Three

The undue burden test focuses exclusively on the impact of the abortion regulation on the pregnant woman. It has nothing to do with the state objectives or the relationship between the ends and the means. In that sense it isn't a traditional standard of review. It is inserted in the analysis even thought the Court has reaffirmed that the woman has a fundamental right to choose whether or not to terminate her pregnancy up to the point of viability. It's principle purpose is to allow the state to adopt some regulations of abortion that would be unconstitutional if the Court were to continue to apply the strict scrutiny standard to all abortion regulations. It does this by dividing regulations of abortion into 2 categories - regulations that severely limit a woman's right to terminate a pregnancy (undue burdens) and regulations that have only a minor impact on the woman's right to terminate her pregnancy (less than undue burdens). Regulations that fall into the first category continue to be analyzed under the strict scrutiny test. Regulations in the second category are essentially excluded from the category of laws that interfere with a fundamental right and so they are analyzed under minimum rationality review. Another way to look at it is that the fundamental right to terminate a pregnancy has been narrowed so the right only protects against major intrusions on the right (laws that impose an undue burden), but the fundamental right does not extend to protecting against minor intrusions on the right.

As for some examples, less than undue burdens were found in Casey when the state imposed informed consent requirements, imposed a 24 hour waiting period between receiving certain information and obtaining an abortion, and required abortion providers to report information about abortions they have performed to the state. Having found them to impose less than an undue burden, they were all upheld. By contrast, the spousal notification provision was found to impose an undue burden and was struck down. Right now there are battles in the courts about requiring that physicians who perform abortions at abortion clinics have admitting privileges to a local hospital and requiring that women undergo a sonogram before obtaining an abortion. The constitutionality of these requirements likely will turn on whether they do or do not impose an undue burden. If they do, they likely won’t be able to survive strict scrutiny because they aren’t necessary to protect a woman’s health. If they don’t, they likely will be able to survive minimum rationality because there are rational reasons for the requirements.  

Question Number Four

My question concerns the Dormant Commerce Clause and economic protectionist as not being a legitimate local purpose. I find it very hard to distinguish when the state is engaging in legitimate purposes such as health, safety, or consumer protection and when it is acting as an economic protectionist by benefiting in-state economic interests by burdening out of state competitors. If would appreciate it if you could help distinguish this a little bit better.

Answer Number Four

Under dormant Commerce Clause analysis, the challenger can make an economic protectionism argument if there is any evidence that the purpose of a state law is to help out some local businesses by gaining some economic advantage for them at the expense of out-of-state businesses, or is intended to avoid some economic burden the state would otherwise bear by shifting that burden to other states, or is designed to protect the state's economy at the expense of the economies of other states. In these circumstances, the state will try to defend against this argument by trying to show it has a legitimate reason for the law like health, safety, environmental protection, etc.. Most dormant Commerce Clause questions will suggest some legitimate reason for the law, but many will also suggest the possibility of economic protectionism. If you see both, that gives each side an argument. One reason that it's hard to tell the difference is that health, safety, environmental protection, etc. often involve saving or spending money. However, the issue is why was the law enacted. One way to study for this is to look at prior questions where points were given for economic protectionism and try and identify what facts could be used to both make that argument and to refute that argument. I think you'll see a pattern if you look at a number of such questions.


Fall 2012 Questions

Question Number One

I’m having a bit of difficulty deciding when to use the Pike Balancing Test vs. the Strict Test. I understand I need to use the balancing test when the law does not discriminates against interstate commerce and the strict test when it does. However, Hunt v. Washington State Apple Advertising Commission has confused me completely. The law was found to be facially neutral but discriminatory in effect and the Strict Test applied. How is this different from the Pike law, which involved advertising the state of origin on cantaloupes? Won’t the effect on interstate commerce be the same as in Hunt? How do you know which test to use when a law is discriminatory in effect?

Answer Number One

The strict test is used if the law is discriminatory on its face or in its effect. However, the challenger must prove that the law has a discriminatory effect and that is not always easy to do. Since the challenger can't know in presenting arguments whether a law that is not discriminatory on its face will be considered discriminatory in its effect, the challenger has to argue in the alternative. First, the challenger should make arguments to show that the law is discriminatory in effect and should be analyzed under the strict test (and then apply that test) and second, in the alternative, the challenger should argue that the law is unconstitutional even under the Pike balancing test. The government makes the same arguments in reverse. It argues the law is not discriminatory in effect and should be analyzed under the Pike balancing test (and then applies that test) and then argues that the law is constitutional even if the court applies the strict test. This second argument is usually not easy to make so the challenger should only spend serious time on it if the facts make such an argument plausible.

As for Pike, many academics argue that the Court should have applied the strict test on the facts of Pike rather than the balancing test. However, at the time of Pike, the idea that a law could be discriminatory in effect and thus subject to the strict test had not been established by the Court to the extent it has been today. The confusion over what test to use in Pike shows the wisdom of alternative arguments as I describe in the first paragraph. Luckily, advocates don't need to resolve this dilemma because they are permitted to argue in the alternative. It's only judges that have to decide between the two tests.

Question Number Two

I was under the assumption that the undue burden test only applied to abortion cases and that all other rights that the court deemed fundamental went through the strict scrutiny test. Am I wrong?

Answer Number Two

On the issue of the undue burden test, in addition to the abortion context, the Court has used a version of this test in the context of the right to marry as well. This suggests the possibility that where rights are fundamental, but where there is a tradition of the government regulating them in minor ways, the Court might use the undue burden test as a way to treat differently two different categories of regulations: those that impose an undue burden and those that don't. In addition to the right to marry, a number of lower courts have applied the undue burden test to gun regulations, thereby treating a total ban on gun ownership as an undue burden subject to the strict scrutiny test and lesser restraints like a background check as less than an undue burden and therefore subject to a rational basis test. It is impossible to know whether the Supreme Court will adopt this approach, but the fact that some lower courts do shows that courts don't view the undue burden approach as limited to the abortion context.

I am not suggesting using this test in every case outside the abortion context involving a possible fundamental right, and certainly not instead of the strict scrutiny test. I would start with using the two traditional tests that apply in due process cases: minimum scrutiny and strict scrutiny. However, in appropriate circumstances (where the law is not a total prohibition on the exercise of the right), analyzing the problem alternatively under the undue burden test will probably get you some extra points. I think you will see this in some of the exam answer sheets I have posted.


Questions From Earlier Years

Question Number One

I came across a portion of my notes dedicated to early tests attempting to place judicial limitations on Congress' authority over interstate commerce (direct. v indirect effects, stream of commerce test, etc.).  Would these be worth discussing on the exam, or have they largely been replaced?

Answer Number One

To the extent that your notes are from the time period between 1895 and 1936, these are cases we studied as historical background for the modern commerce clause approach. The modern period begins in 1937 (The Commerce Power After the New Deal). It starts with Jones & Laughlin, Darby, and Wickard v. Filburn. However, some of the approaches in the earlier cases are not that different from some of the current approaches (e.g., the substantial economic effects test in the Shreveport Rate Case is not that different from the test in Wickard v. Filburn). Despite the overlap, you'd be better off studying the current approaches as reflected in the Course Review. So, for example, the current test used when Congress regulates local economic activities is whether Congress could have rationally concluded that the regulated activity has a substantial economic effect on interstate commerce (in the aggregate). This is similar to the Shreveport Rate Case approach, but that fact is not going to be useful on the exam. That's why I say you should just focus on the current tests and how to apply those tests. There won't be any points allocated on the exam for discussing the historical origins of the test now used. I think the answer sheets from previous exams and the model answers that I've posted are consistent with this advice.

Question Number Two

Under the Privileges and Immunities Clause of Article IV, what is the difference between the first part of the test (does the state or locality have a substantial reason for treating nonresidents differently) and the second part (does the degree of discrimination against nonresidents bear a substantial relation to the state or local government's objective). If the state had a substantial reason for treading the nonresidents differently, wouldn't the discrimination necessarily bear a substantial relation to the state's objective? I have a hard time seeing the difference between the two steps.

Answer Number Two

The first prong of the test focuses on the ends and the second prong focuses on the suitability of the means in relation to the ends. These are the same two prongs that exist under all of the levels of scrutiny (minimum, intermediate, and strict). If the state has a substantial reason for treating residents and nonresidents differently that doesn't necessarily mean that the way in which they are treated differently would be constitutional. For example, they could be treated differently by excluding nonresidents entirely as in the New Hampshire bar admission case (Piper) or treated differently by subjecting nonresidents to an additional continuing education requirement. The first method of different treatment is unconstitutional, but the second might be okay. That's why the second prong of the test focuses on the degree of discrimination. Some lesser degrees might be suitable whereas some greater degrees of discrimination might not be, as in my bar membership example.

Question Number Three

Under intermediate scrutiny as used in equal protection analysis, I understand that the availability of alternative means is relevant to the inquiry, but also that unlike strict scrutiny, it is not necessary to satisfy the test that there be no less discriminatory alternative means available. I am having trouble reconciling this. If intermediate scrutiny does not require the least discriminatory alternative, then why is it relevant that there are alternative means?

Answer Number Three

The reason alternatives matter is because the requirement that there be a substantial relationship between ends and the use of the classification or a close fit between ends and the use of the classification can be tested by looking at alternatives that employ a closer fit between ends and means. In addition, sometimes the issue of a substantial relationship is looked at in terms of whether the means are substantially broader (substantially more discriminatory) than they need to be and that too can be considered by examining alternative means to see whether they are substantially narrower than the regulation that is being challenged. Neither of these reasons for looking at alternatives requires that the government must choose the least discriminatory means available.

Question Number Four

It was my understanding that when preemption is express, it is easy to spot, and in that case the federal regulation/law would prevail. However, I have read that in some cases even express preemption language may have more than one plausible reading. Is this something that we should not be concerned about?

Answer Number Four

All preemption issues are ultimately issues of statutory interpretation. Everything about a statute can be unclear. It can be unclear whether there is express preemption and particularly what the scope of the express preemption is. It can be unclear whether Congress expressly intended not to preempt and what the scope of the intended non-preemption is. If there is express language, particularly on an exam, it is usually easy to spot that there is language in the statute that permits you to make an express preemption or non-preemption argument. The harder part is figuring out what the scope of that language is in terms of what exactly is being expressly preempted. If you look at Question III of the model answer for the 2004 exam, you will see that the challenger in that case makes an express preemption argument and the government in response argues that the language of the statute does not expressly preempt the state law being challenged. This is an example of a situation where there is clearly an express preemption argument that can be made, but both sides can make an argument about the statutory language with the challenger saying it is express preemptive language and the government saying it isn't. This would be true in the real world, but it is especially true on an exam where the goal is to craft most issues so they are arguable both ways.