Help with homework :o

[WickedLou9]

So... I am having trouble figuring out the constitutional basis for government regulation of business. IT seems to have something to do with the 14th ammendment and the due process clause but I am having trouble putting 2 and 2 together. I figured if anyone knows it would be one of you guys

[RMNIXON]

All you need to do is read huge paragraphs in between the lines, just like the Commerse Clause, and you will be there in no time at all. That and pretend number 10 is invisible and ignor all original intent.

[Thorgrim]

Here, I'll post some old stuff I have stored, when in doubt wikipedia something:

- McCulloch v. MD (1819)
o Issues:
 (1) Does Congress have the power to incorporate a bank (or anything)? (Yes)
 (2) May a state tax the U.S. Bank? (No)
o Analysis re: Issue 1:
 L1: Art. I lists 17 powers of legis branch & creating a corp. isn’t one
• Necessary & Proper Clause  Congress is primary branch
o Does this comport w/Marbury?
 L2: Necessary & Proper Clause
• MD reads as double requirement – a restriction on power
o “necessary” => has to be essential to carry out one of the 17 enumerated duties
o “proper” => must comply w/Const.
• Marshall: Art. I is a giving clause – reading N&P Clause as a limitation is structurally contradictory
o “necessary” => convenient (b/c when Congress means necessary, it says “absolutely necessary,” like in clause re: states levying taxes
o “proper” => convenient
• Implied N&P Clause – a branch can do those things necessary to execute the powers the Const. allocates to it
o Const. can’t say everything – it is comprised of general principles and we fill in the details
o Could be another answer to Marbury – judicial review is necessary and proper for the execution of the judiciary’s constitutionally-conferred powers (also, Nixon w/ “executive privilege”)
o Marshall has N&P Clause in legis branch – why does he go farther to say it’s implied in every branch?
o Analysis re: Issue 2
 States can’t tax U.S. Bank b/c “power to tax is power to destroy”
 If states can veto anything federal gov’t does, then no difference from Arts. of Confed.
 OK for state to tax real property of bank, but not bank notes b/c
• “virtual representation” – MD property taxes affect everyone, so if taxes were too high, constituents would vote lawmakers out
o Constituency is key to power of taxation
o 1st time we see this arg.
 Original intent – Framers thought a nat’l bank was constitutional
o MD argued that in Const. states granted fed gov’t very little power & rest was reserved to states; Marshall replied that Const. was ratified by THE PEOPLE, not the states; therefore, no power reserved to states
o Marshall implies vast power to Congress in this opinion (unlike Marbury, where he refuses to imply any)


Commerce Clause – Art. I § 8 (3) – one of most important aspects of federalism
- Gibbons v. Ogden (1824)
o Facts: NY granted Gibbons a monopoly to run ferry btw NY & NJ; Ogden started running competing ferry
o Issue: who has power to regulate ferries btw two states?
o Holding: Congress has power to prescribe rule by which commerce is governed
 It can do anything that doesn’t infringe on other constitutional provisions
 * Where no limitations are listed, there are none *
 Power to regulate is a power w/no limitation
 Only limitation: elections – vote out reps who make bad laws
o Since Gibbons, S. Ct. has been reluctant to imply broad powers under CC
- Heart of Atlanta Motel v. U.S. (1964)
o Facts: motel wanted to continue practice of refusing to rent rooms to African Americans & challenged Commerce Clause elements of Civil Rights Act of 1964
o Issue: Does the Commerce Clause include the right to outlaw racial discrimination in interstate commerce?
 Congress used Commerce Clause to get around problem that Const. doesn’t explicitly give it ability to regulate racial discrimination, enforce equality
 Commerce Clause permits regulation in limited area – hotels & restaurants
 14th Am only applies to state action – doesn’t touch private discrimination
o Holding: Congress does have the power
 Test: is the activity to be regulated commerce which concerns more States than one & has a real & substantial relation to nat’l interest?
 Cites evidence that discrimination adversely affects economy
o ∏ wanted to limit exercise of Commerce Clause power to commercial objectives



- U.S. v. Darby (1941)
o Facts: employer challenged his indictment charging him w/violation of FLSA, arguing that his business was local
o Rule: Congress’ control of intrastate activity is OK as long as it’s a means of aiding exercise of a granted power (i.e. Commerce Clause)
 “Affecting commerce rationale” – relied on effects of local economic activity on interstate commerce as basis for congressional authority
 Com Clause is tripartite, including foreign nations, several states & Indian tribes
• ejusdem generic  power re: foreign nations & Indian tribes is broadly construed; therefore regulation re: several states should be also be broadly interpreted
 Undermining FLSA creates unfair competition in interstate commerce
o Considered by some to be enormous expansion of Com Clause power
o 14th Am – better venue for deciding this case?
- Wickard v. Filburn (1942)
o Facts: Filburn exceeded wheat bushel quota under Ag. Adjustment Act, which paid farmers to not produce wheat in order to raise price of wheat b/c farmers were starving
 Wickard was only growing wheat for home consumption – can’t get any more local
o “Aggregate effect” rule – even if produce of local activity will never enter interstate commerce, Congress can regulate if it has a “substantial economic effect on interstate commerce”
- Katzenbach v. McClung (1964)
o Facts: Ollie’s BBQ was 11 blocks from interstate hwy, purchased some food from out-of-state
o S. Ct.: b/c restaurant purchased food from out-of-state, it is w/in Congress’ power to regulate
o Used “affecting commerce” rationale, but more of a stretch than Heart of Atlanta b/c Ollie’s BBQ isn’t right on hwy
o Case was tried in Washington D.C., where there were extensive hearings
o No one wanted to ask the question whether forcing establishments to serve Blacks would increase rather than decrease interstate commerce b/c the hidden agenda was eliminating discrimination
o Stands for the flip-side of Marbury: “and we (S. Ct.) won’t tell you (Congress) want to do”
- Perez v. U.S. (1971)
o Facts: Congress passed regulations on loansharking
o Holding: loansharking affects interstate commerce such that Congress can regulate it
 = outer limit of affecting commerce rationale
 Criminal law is province of states
 Makes it look like Congress has unlimited power b/c only need to invoke Com Clause
New Limits on Commerce Power since 1995
- Caine: these cases implicate state sovereignty in that the SC in holding that Congress exceeded its power under the commerce clause and invaded the rights of states to regulate-or-not-to regulate as states saw fit, and in both cases the states failed to act. In neither case was Congress telling states what to do, as in the next 3 cases
- U.S. v. Lopez (1995)
o First case to impose significant restrictions on Congress’ power under Com Clause – b/c of different composition of court
o S. Ct. invalidated law making it a federal crime to have a gun in a school zone
 First time in 67 years that S. Ct. invalidated a statute
o Majority (Rehnquist): rejects precedent & lays out three-part test
 (1) Congress can regulate the use of the channels of interstate commerce
• Ex. speed limits on interstate highways, can’t ship dead animals across state lines, can’t ship drugs across state lines, etc.
 (2) Congress may regulate interstate activities to protect the channels of interstate commerce
• Ex. law that says you can’t prepare diseased food with intent to ship in interstate commerce – can regulate even though it has never been shipped
 (3) Congress may regulate activities that have a substantial relation to interstate commerce
• Most broad
 Applying this test, gun law fails b/c doesn’t regulate a commercial activity or requirement that possession be related to interstate commerce
• Gov’t didn’t have good stats to back up arg that guns near schools had substantial affect on commerce
o Stevens’ dissent: guns are articles of commerce & can be used to restrain commerce; therefore, law is constitutional
o Souter’s dissent: law should only be subject to a rational basis test
 Deference to Congress’ judgment re: substantial effects
 Congress is better equipped for factfinding
 Court’s role is only to keep Congress honest, not to trump its judgment
o Thomas’ dissent: substantial effects test is much broader than Framers’ original intent re: Com Clause
 Rejects stare decisis in favor of original intent
 Const. doesn’t grant Congress police powers or authority to regulate things that affect interstate commerce
 Would overrule substantial effects test (Wickard, maybe Heart of Atlanta?)
• Obvious consideration that Framers probably didn’t intend for Blacks to have civil rights
- U.S. v. Morrison (2000)
o Facts: Congress passed a law providing for federal remedy for victims of gender-based violence in response to VA’s failure to prosecute VA Tech football players who raped a woman
o S. Ct. found law invalid in spite of fact that gov’t had extensive data to support the affect on commerce (unlike Lopez)
 Changes meaning of Lopez, means it wasn’t just slap on wrist for sloppiness
o Reasoning:
 Gender-motivated violence ≠ economic activity
 Absurd result – federal crimes for everything
 Fails Lopez test
o Dissents:
 S. Ct. should defer to Congressional factfinding & policy judgment (Souter)
 Economic & non-economic distinction is hard to make
• Does it matter if pollution comes from a factory or a home?
 Congressional reps can be voted out for bad policy
 Even if Const. doesn’t say that Congress has the power, it certainly doesn’t say the Court does!
 Cite series of cases where the S. Ct. upheld federal statutes regulating non-economic activities, including racial discrimination
o Good result vs. doctrinal considerations – do you evaluate a legal system based on how well it works or how pretty it is
Other Limitations on Commerce Power
State Autonomy
- Caine: In all of these cases Cong is enacting social welfare legislation for the benefit of all and no state disputes that. Nor is there dispute that the state has failed to act, or that some state interest required to act in a different way.
- NY v. U.S. (1992)
o Facts: Congress passed a radioactive waste law that provided three “incentives” for states to comply; NY sued for declaratory judgment that law exceeded Congress’ power in violation of 10th Am
 Provision at issue was “take title” – required states to take title of waste if they failed to dispose of it internally
o Issue: does federal gov’t have power to tell states what to do, enforce federal regs?
 Fed gov’t is trying to do something good
o Holding: fed gov’t can’t make states enforce fed regs
 L2 analysis: Const. => holding b/c
• We have states
• Fed gov’t is limited
 Fed gov’t compelling states reduces/blurs accountability
 Fed gov’t can accomplish same purpose by
• Making fed funding conditional
• Giving states choice btw regulating per Congress or having state law preempted
o Much different? Can bribe/threaten, but can’t mandate
o Stevens’ dissent: nothing in Const. prevents fed gov’t from mandating state action
- Printz v. U.S. (1997) GET NOTES THESE SUCK
o Facts: Brady Gun Act had an interim provision requiring state CLEOs to run background checks on gun purchasers
o Holding: interim provision requiring state & local officials to participate in federal regulatory scheme is unconstitutional
 In recent history, all enlistment of state officials has been non-compulsory
 Structural arg: dual sovereignty in Const.
 Law would upset balance btw legis & exec b/c Congress could just enlist states to enforce its mandates
- Reno v. Condon (2000)
o Facts: federal law prohibited state practice of selling info about registered drivers
o Ct. upheld law, distinguishing from Printz & NY (is there really a distinguishing principle?)
 State acting in commercial instead of sovereign capacity opens it up to regulation by fed gov’t
 State’s selling driver info = interstate commerce
 Congress does not require states in their sovereign capacity to regulate their own citizens; Congress is regulating states as owners of databases
 Law is OK b/c it’s generally applicable to all who supply info re: motor vehicles
 Unexpected, would think it would be another incarnation of Ct. saying “Congress can’t tell states what to do”

[thomez]

hard to find what isn't there

[WickedLou9]

Originally Posted by thomez

hard to find what isn't there

I'm not really looking for people's opinions about what should or shoudln't be... This is just a factual observation. Business is regulated in the US. There have been supreme court cases challenging various aspects of regulation and the court must have used something in the constitition to justify it. I was just looking for that specific aspect.

The assignment is maddeningly vauge though. I mean this isn't a paper. This is but one part of a homeowork assignment for my class. One could write a 100 page disertation on this:

Government regulation of business is pervasive in the United States. Discuss the regulatory environment in detail, including in your answer:
a. Arguments for and against the regulation of business.
b. The constitutional basis for government regulation of business.
c. Recent trends in regulation.
d. Various ways government regulates business activity.
e. A specific example of government regulation and its impact on business and society.
f. The cost of government regulation and who pays those costs.
g. The future of government regulation.

[WickedLou9]

Originally Posted by Thorgrim

Here, I'll post some old stuff I have stored, when in doubt wikipedia something:

Jesus.

That's alot of stuff. I'm just going to go with the commerce clause. If I were writing a graduate level thesis paper then maybe I could use all of these cases... but shit this is a one page essay for a homework assignment.

Thanks though, my answer was in there.

[Thorgrim]

Originally Posted by WickedLou9

Jesus.

That's alot of stuff. I'm just going to go with the commerce clause. If I were writing a graduate level thesis paper then maybe I could use all of these cases... but shit this is a one page essay for a homework assignment.

Thanks though, my answer was in there.

No problem anytime