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Tuesday, November 21, 2006
FINALS BLOGGING SERIES: CON LAW Below are supposed to be four short questions with four short answers. As you can see, I forgot about the short part on the first two, but covered all the bases. Whereas on the second two, I got the short part down, but took some scalp with it. The model answers are from my professor. --------------------------------------------------------- 1. Standing CQ: Does a 19 year-old denied purchase of 3.2% beer from a state owned store under a law that allows women to purchase the same have standing? In order for a party to have standing to sue in federal court, there must be an actual case or controversy between two adverse parties, the plaintiff has or imminently will suffer injury, the injury is traceable to the defendants conduct, and the injury caused by the opposing party can be alleviated by a favorable decision in the matter. An injury in fact is defined as a cognizable injury, and not one that is merely speculative in nature (Lujan). A party can also assert the claims of third parties, when the injured third parties are similarly situated to the one bringing the claim and the injured third parties are not likely to assert their own claims. Here, James will have standing to sue as the state's stores refusal to sell him the beer is a cognizable injury due to the states unequal treatment of men and women of the same age group. The Court has held in Boren that state laws prohibiting the sale of alcohol to males under 21 is a cognizable injury sufficient for standing purposes. A bartender was able to assert a claim on behalf of patrons who were unable to purchase 3.2% beer in Oklahoma, due to a state law that prohibited the sale of such beer to males under 21. The Court held the economic interests of the bartender allowed it to act as an advocate for those who were denied access to the market, i.e. the ability to purchase beer at his establishment. In addition, the injured third parties were unlikely to sue due to the costs involved. While the state may likely argue that as a market participant it has the ability to determine whom it may or may not sell beer to, such regulations of the market have been held to be impermissible. It can be inferred from the facts presented that the law is applicable to all liquor stores operating in Calutopia. As such, James may bring such an action here on behalf of himself and others similarly situated. First, as the state has enacted a discriminatory measure due to gender, both James and the state liquor store are adverse to each other, meeting the actual case and controversy requirement. Second, James has suffered both a cognizable injury and injury in fact by the State's active discrimination against males under 21 by denying them the ability to purchase beer when women of the same age are able to do so. Finally, an injunction or invalidation of the state law by a federal court decision has the ability of alleviating the cause of the injury. Absent some valid compelling reason for delineating based on gender by the state, James will have standing to sue. 2. Federal Power: Commerce Clause CQ: Can Congress enact legislation banning smoking in all public places? Under the Commerce Clause of the Constitution, Congress shall have the power to regulate commerce among the several states. While the definition of Commerce has varied throughout the years, the modern Court has defined "commerce" as those "interstate activities that have a substantial economic effect on interstate commerce". This includes the use of the channels of interstate commerce, regulation and protection of persons or things in interstate commerce, and intrastate activities that have a significant effect on interstate commerce. However, the ability to enact such legislation is limited by the Tenth Amendment, which has been defined as enacting an affirmative limit on Congresses ability to control those things that do not have a significant economic effect on interstate commerce. A violation of the Tenth Amendment occurs when the federal government compels the states to enforce federal legislation using local officials. Arguably, the regulation of cigarette smoking falls under the commerce clause power as the manufacture and sale of cigarettes is an interstate activity with a significant economic effect on the national economy. The Congressional intent for enacting such a statute can be inferred to include the costs of medical care due to smoking and its impact on federal medical programs, providing a rational basis for implementation of the legislation. However, the states will likely assert that the implementation of such as law constitutes an impermissible encroachment on the states Tenth Amendment rights through inappropriate means. The program enacted by Congress, will have significant effects on the states, as enforcement of the law will likely be through state and local officials, not federal officials. Requiring the use of local officials to carry out a federal mandate has been held to be impermissible by the Court (Printz). Due to the likely use of local officials to enforce federal legislation, Congress will not be able to enact this legislation. Model Answer Under the doctrine of enumerated powers, Congress may only legislate where there is an explicit or implicit enumerated authorization of power in the Constitution. The commerce clause has been the basis for regulations on behalf of the health and safety of the public since the Lottery Ticket Case. The Lopez test for the Commerce Clause power says Congress may regulate (1) channels (2) instrumentalities, or persons or things in interstate commerce and (3) activities with a substantial effect on interstate commerce, including by cumulative effect. "Buses, airplanes and trains" clearly fall within channels and also instrumentalities, persons or things in interstate commerce. Further, tobacco sales and related health costs have a substantial effect upon interstate commerce given the amount of smoking expenditures and the high costs of tobacco related diseases. Under the approach suggested in Morrison v. Olson, this law does not appear to regulate non-economic conduct traditionally subject to state regulation, that may be outside the scope of the commerce clause. Therefore, this legislation is likely within the power of Congress to enact. Alternatively, there is an argument that cigarette smoking is non-economic conduct and therefore not traditionally subject to state regulation. If so, then under Morrison v. Olson, this is not a proper subject for commerce clause regulation. Finally, there is no suggestion that Congress is trying to "commandeer" state officials or the state legislatures so there is no violation of Tenth Amendment principles. 3. Limits on State regulatory power CQ: Is state legislation violative of the Constitution? Step 1 - HSW - Police Powers Step 2 - Preemption, Congressional Approval Step 3 - Protectionist or Neutral Step 4 - Under the Dormant Commerce Clause, facially neutral legislation that encompasses interstate commerce will be held valid unless the burden outweighs a legitimate state interest. Here, the state has a legitimate interest in banning indoor smoking due to the significant medical costs that are attributable to smoking. The burden imposed by such a regulation is minimal as it does not prevent operators of public transit from conducting business, and any fiscal impacts occurring because of the loss of business from smokers, would be incidental as to its local benefits. The State legislation will be upheld. Model Answer Traditionally, states possess general police powers to regulate on behalf of the health, safety and welfare of the people of a state. The state of Calutopia may legislate on behalf of the health of its residents. If this legislation is designed to prevent smoking related diseases from "second-hand" smoke, this is a proper legislative objective and permissible legislation under a state's police power. There are several constitutional considerations. Such legislation may be pre-empted by federal laws or regulations. In the facts, we are not told of any federal laws so we can assume there is no pre-emption issue. Further, since there are no applicable federal laws, there can be no federal approval of legislation that otherwise would violate the dormant commerce clause. Under dormant commerce clause review, the first consideration is whether the legislation is protectionist or discriminatory against out of state interests. As summarized in Philadelphia v. New Jersey, if the legislation is protectionist, it is per se invalid. Here, since the legislation affects all use of cigarettes in the state and does not appear to favor local smoking interests in favor of out-of-state smoking interests, it does not appear to be discriminatory or protectionist. Next, under the Pike v. Bruce Church balancing test, we must consider whether the burden on interstate commerce is clearly excessive in relation to the putative local benefits and whether there are reasonable nondiscriminatory alternatives. Here, there is a significant health benefit to non-smokers by keeping cigarette smoke away from the general public. While there is a burden upon out of state producers and sellers of cigarettes, when balanced against the health benefits, the health benefits might well out-weigh the minor burden upon interstate commerce in cigarette sales. This legislation is therefore not likely to violate dormant commerce clause principles. Since this does not involve the state in any actual economic activity of buying and selling, this would not involve the market participant exception. 4. Equal protection: Race as admissions factor CQ: May race be used as a factor in state university admissions? Under the Fourteenth Amendment Equal protection clause, no state shall deny to any person within its jurisdiction the equal protection of the laws. Any racial classification, either benign or discriminatory, used by the government is subject to strict scrutiny analysis and will be upheld only upon the government showing a compelling purpose for such a classification. (Richmond) Also, The means employed by the university must not be so narrowly tailored so as to further a compelling governmental interest so as to prevent illegitimate racial stereotypes or prejudice as a motive for the classification. (Grantz). The court has held in Grutter, the use of race as a one factor in a multi-factor holistic analysis for purposes of law school admission is not violative of the 14th amendment, as the methods used by the school did not protect or give an advantage to any one racial group. Also, there is a compelling governmental purpose in higher education to provide for a diverse student body, and the methods used by the school are narrowly tailored for the that purpose. The facts presented here are nearly identical to the facts in Grutter, the use of race as one factor among other factors may be used to promote a compelling state interest in encouraging diversity. The state university admissions policy will be upheld as not violating the 14th amendment equal protection clause. Model Answer Since this is a state university, there is state action and the equal protection clause of the Fourteenth Amendment does apply. The modern approach to equal protection looks to the classifications used by the law or regulation. This law, on its face, allows the use of race in student admissions. Since the use of race is explicit, there is no need to prove discriminatory effect and purpose under the Washington v. Davis intent test. Explicit use of racial classifications is subject to a strict scrutiny standard of judicial review, not the intermediate tier standard, or the deferential rational basis review. Under strict scrutiny, a regulation using race will violate equal protection unless the regulation's use of race is narrowly tailored or necessary to achieve a compelling governmental interest. Under the approach taken in Bakke and affirmed in the recent Grutter case, a college or university's interest in the diversity of its student body is a compelling governmental interest. Thus, the university has a valid compelling interest under strict scrutiny. Next, we must examine whether program is narrowly tailored. We are not given the details of the program, but if race is one factor among many and the program is similar to those in Bakke and Grutter, the program is likely to be found narrowly tailored and upheld. If, however, the admissions program were to consider race as a factor by assigning points to race in a point-based decision making process, then under the Gratz case, the companion to Grutter, the admissions program the point system is not narrowly tailored and would fail strict scrutiny. Similarly, racial quotas - a specified number of slots for a particular race - would not be narrowly tailored under Bakke. Thus, as long as this program does not use a point system and follows Grutter, it is likely to meet the strict scrutiny standard and be upheld.
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