Question I

(1) I will first address whether Congress can require or allow this type of training procedure.

The first part of this issue relates to whether Congress can implement these police regulations. Congress' power must either come from the enumerated powers in the Constitution or from the implied powers under the Necessary and Proper Clause. Nothing in Congress' enumerated powers in Art. I §8 indicates that Congress can regulate state police activities and therefore this power, if it is to be valid, must stem from the Necessary and Proper Clause. The Necessary and Proper Clause (N&P Clause) allows Congress to regulate anything that is rationally related or through a means which is appropriate and conductive to reaching a legitimate goal. Here I believe Congress would argue that its power to set forth regulations regarding police stems from the Commerce Clause (CC). These types of regulations aid in the free flow of people and car through Interstate Commerce (IC). Therefore, Congress has justification in regulating or providing state regulations for police procedure.

The second part of this issue is whether state intergovernmental immunity would give the state immunity from ISA. Here Congress is regulating the state as a state and not people and therefore immunity is an issue.

Under the-test supplied in class, absent state consent (questionable as to whether the state can

consent in light of the holding in NY v. US) (here no consent), state government is free from fed reg,

if the reg is discriminatory or it directly compels or coerces the state to regulate. This freedom is derived from the Tenth Amendment. Here, it doesn't appear that the ISA is discriminatory, so the issue remains whether it is requiring the state to regulate.

Under the most recent SC decision, NY v. US, the SC held that Congress cannot directly compel the state to regulate a certain activity unless it gives the state options. The option provided for in NY was granting of fed funds if adopt regulations. This option was upheld because it is related to the Taxing and Spending power of C. Here, there is no apparent option for the state to either adopt certain regulations or lose funding.

The second option was from the CC or cooperative federalism in which the state could either adopt the federal regulations provided for by Congress or its own regulations would be preempted under the Supremacy Clause. Again, there is no indication that the state was given the option to either adopt the fed regulations or have them preempted.

The option that was provided for is very similar to the option offered in NY v. US which the SC struck down. In NY, Congress said either the state would have to regulate or the state would be considered as having title to the waste and therefore liable for any resulting injury. Here, if the state doesn't adopt the ISA reg it was subject to suit. I believe under the NY v. US standards, this regulation would be struck down under intergovernmental immunity.

Issue Two: Whether Jones has a case which can be brought in state or federal court.

Whether Jones can bring an action in state court is dependent upon the laws of the state which we did not cover.

Whether Jones has a justiciable case for federal court. I will attempt to answer this in the alternative--one as if the ISA regulation was valid and the other as if it were invalid.)

The first question is whether this is an issue that can be raised in a federal court--here it can be because it will ultimately revolve around constitutional issues which Art III and Malbury v. Madison says the state has the power to do.

The second question relates to the Eleventh Amendment. The Eleventh Amendment states that federal judicial power shall not be said to allow a citizen of another state to sue a state. It has also been interpreted to prohibit a citizen from suing his own state.

There are, however, of course exceptions.

The first would relate to Jones' suit against Cagney and Lacey. Under the "Stripping Doctrine" state officials are stripped of any immunity provided by the Eleventh Amendment if their actions were in violation of federal, not state, constitutional law. Here I am presuming, that the police officers are considered state employees rather than city. Here, presumably Jones would be arguing, that Cagney and Lacey violated his fed constitutional rights and the suit could proceed with the following limitation: his damages suit, if the damages would come from state funds, would be prohibited because the stripping doctrine doesn't extend to suits for damages from past conduct--it only extends to future conduct.

His suit against Central City could proceed without any problem from the Eleventh Amendment because it does not apply to cities.

His suit against Furillo could only proceed under the same theory as Cagney and Lacey but I believe in Furillo's case the suit would be against the state in actuality and would be barred under the Eleventh Amendment along with the suit against the state of Mitchell.

Of course, if the federal regulation could stand, I believe Congress can make specific exceptions to the Eleventh Amendment immunity and all the suits could proceed.

The next issues all relate directly to justiciable case requirements stemming directly from the case and controversy requirement of Art 3, § 2[1] and prudential considerations.

The first requirement is standing which is considered closely connected with the case and controversy requirement. To have standing there must be an injury in fact from threatened or imminent personal injury from the challenged action. There must be a causal connection and that the harm caused will likely be redressed by judicial resolution.

Here, Jones has an actual injury from the police officer's actions which was caused by the challenged act and favorable judicial resolution will presumably redress the injury at least in a monetary way.

As to his injunction--this becomes more tricky and is similar to the choke hold case discussed in class. Here to get injunctive relief will be more difficult because it is talking about future harm and whether this is sufficient to bring injunctive action. I believe for this issue the imminence, at least for the standing issue, would be sufficient and the other two requirements would be met. Even if the injury in fact wouldn't be sufficient, Congress can give an individual standing if Congress points to a specific statutory ground (which here it has if it is valid) and the requirement of causation and redress are met. They must also comply with the other constitutional provisions.

I believe Jones would have standing, whether or not the ISA regulation is valid.

The next issue is mootness which has more prudential overtones than cases and controversy overtones. The prudential considerations are imposed by the court to limit the number of constitutional questions which can reach the court before it is time or appropriate.

Mootness exists where the facts have changed since the filing of the case so resolution will no longer benefit the parties involved. In federal court, controversy must exist at all stages of the case. Here I don't believe that there is a mootness issue because first he has a damages claim which isn't moot because it hasn't been paid. As to the injunction, it doesn't indicate that Central City police officers have stopped making the investigatory stops.

Mootness won't bar Jones' claim.

It is, however, ripeness that will present a problem for Jones. Ripeness is also a prudential consideration. For federal review, the issues involved must be sufficiently developed that a federal court should make a decision. Again, the damage suit will not raise a problem because it is sufficiently developed. The injunctive relief will however present a problem.

There are several considerations for a ripeness resolution.

(1) The first is clarity of conduct and it is here that Jones will run into trouble as the plaintiff did in the choke hold case discussed in class. Here, we don't know exactly what each party's conduct will be the next time this same situation arises. We know African Americans will continue to drive but what we don't know is whether the police officers will actually stop all or most African Americans. Nor do we know that either Central City or the Mitchell State Police Academy advocates this particular type of conduct. If we knew that police officers from Central City allow or in the majority of cases do make such discriminatory stops, then perhaps this would not be a problem. But the facts do not indicate this, so these challenges would probably fail as to the ripeness issue.

As to Cagney and Lacey, may also have same problem unless can show that they always make these kinds of stops.

(2) A second ripeness issue stems from the kind of challenge Jones has brought. Had there been a statute requiring these types of investigatory stops, then this may not have been a problem but because he is challenging the conduct, these challenges are harder to get through on the ripeness injunctive relief.

In sum, I don't think Jones' injunctive relief will continue based on the ripeness issue. I believe this is so even though Congress gave Jones permission, assuming this regulation is valid. Congress, in giving the right to sue, must still follow constitutional requirements. While the ripeness issue is basically made up of prudential considerations, it also has a case and controversy requirement that the court can't render advisory opinions.

There appear to be no political questions raised.

In sum, I believe Jones' suit for injunctive relief will fail and his damage suit can continue with those limitations previously mentioned.

Also his request for federal court to order state to follow certain procedures will fail because of the immunity issue previously discussed.

Question II.

Issue One: Will the federal regulations under the Supremacy clause preempt Mitchell's statute?

Art. VI of the Constitution provides that the laws of the U.S. shall be the supreme law of the land, meaning that they take precedence over any state law. There are three ways in which the state law could be preempted. The first is where there is a direct conflict--here there doesn't appear to be so. The second way is where Congress has preempted the field. Arguably, Congress may have preempted the field of regulating, transfer of new life into the lakes. Congress, may have believed that fish life were the only threat to state's lakes. This, I believe, would not be a strong argument. For this to succeed, the field would have to be defined very largely and further Court will only find that Congress, has preempted if the intent is unmistakable or the thing regulated allows no other interpretation. Here I don't believe it was clear intent nor is milfoil such that preemption is the only interpretation. The third preemption would result from implied preemption.

A state statute is impliedly preempted where Congress has adopted a persuasive regulatory scheme. Again, whether this test would apply depends upon how you define the field of regulation. I don't believe this would apply to milfoil because Congress didn't address this and its regulations applied only to animal species, not plant species. A second way it could be impliedly preempted is where national interests are dominant or like a Cooley approach where it demands a single regulation. Here I don't believe milfoil would be something requiring a single regulation. The final way it could be impliedly preempted is where Congress' objective would be harmed. Again, I don't think this is the case.

I don't believe that Mitchell's statute would be preempted.

The next issues involve interstate commerce.

Before Mitchell's regulation can be considered, it must be determined whether Mitchell is a market participant. Under the market participant doctrine, the court cannot reject a state law as impermissible regulation of commerce when the state is acting within a participant manner in the given market rather than in a regulatory foundation. I believe this would fail because:

(1) Arguably Mitchell is acting as a participant in providing, the cleaning of the boats by providing it themselves instead of leaving, it to private industry (somewhat similar to the cement case). It is making a small profit. However, this would fail because the regulation goes beyond supplying a product. It is regulation.

(2) It also relates to a use of natural resources which the cement case indicated that the market participant doctrine would not probably apply to.

The major issue is whether the Mitchell statute is an impermissible regulation of interstate commerce (IC). If Congress hasn't preempted the state regulation or consented, a balancing test must be applied. Here, neither of these two would apparently apply.

The dormant clause of the CC allows states to regulate IC where the burden on IC is not too great or where the state interests are very strong.

Before balancing, we must determine what part of interstate commerce is being regulated. Here, Mitchell is trying to regulate or inhibit the interstate flow of traffic.

Further, it is useful to determine whether the statute is discriminatory on its face, which results in a more stringent test of the balancing. Arguably, it is discriminatory because it has harsher standards for out-of-state than state residents. However, in the end I don't believe that this discrimination will be that great when the state interests are examined.

Moreover, it does not appear to be motivated by economic protectionism unless there is a tourist argument entrenched somewhere which the facts do not indicate and I will not assume.

On to the balancing.

The applicable scale for weighing, of state interest is:

state interest served minus state interest disserved in light of alternatives available

State interests served

Here there is a strong state interest served by keeping state lakes free of milfoil. The state has a strong interest in preventing the destruction of its natural resources so long as that protection doesn't isolate the state's natural resources from use by others, which this isn't doing. I liken this case to the most recent fish case where the SC upheld a statute prohibiting importation of certain fish because of harm to a pure fish located in that state. Here, Mitchell has an equally strong interest in preventing further contamination of its lakes and their destruction.

Conservation also appears to be increasing in the SC balancing of valid state interests, so it probably would be a valid and strong state interest served by this regulation. Moreover, where there isn't an outright discriminatory intent and trad'l state interests involved the court tends to defer to the state as to valid state interests.

Further, the state may have a health and safety issue if milfoil can contribute to disease or harm swimmers who get caught up in it or boats that may get caught up in it.

State interests disserved

I cannot think of any interests disserved by this regulation unless it is tourism may be somewhat inhibited by the cost of the boat cleaning. If there are other interests they may cancel out the interests served and indicate a hidden objective I don't believe is present.

Alternatives available

If there are more or equally effective alternatives available to the challenged state, a state statute which inhibits IC will be invalid.

Opponents will argue that the state does have several alternatives available; that is the raking and chemical and biological weapons. But, as the facts indicate, these are not totally effective, expensive to the state, and perhaps even harmful. The court generally will not consider a state spending money as a valid alternative (truck length case and damage to roads). Further, abstract possibilities or other as-of-yet ineffective alternatives will not cause the rejection of the state statute. (Minnow case.) Here, based on the facts, the state has chosen an appropriate means to deal with the problem unless expert testimony would establish that cleaning isn't as effective as the other alternatives.

Also opponents may arcrue that the cleaning could be voluntary by the owners. But again the facts indicate that owner-certified clean boats still contained some milfoil.

Additionally, the states have directed their attention to the greatest cause of contamination.

Opponents' strongest argument against the method chosen is the one-time inspection of state residents' boats. I believe that this part of the statute will pose a problem because a presumably more effective alternative would be requiring all boats to be cleaned each time they enter a new lake. If the boats, even in-state, travel from one of the 47 infested lakes to one of the noninfested lakes, the state's purpose would be harmed or destroyed.

This second part of balancing looks at the fed side and balances:

federal interest disserved minus federal interest served alternatives available to IC

Interests disserved

Here the interstate flow of recreational boats and people is limited by this regulation and a discriminatory one because it applies different to out of state travelers. This area is one that does lend itself to multiple regulations so therefore travelers wouldn't have to be worried about differing or inconsistent regulations. Nor would it require extraterritorial action because they must be inspected in-state.

Minus federal interests served

I can't think of any interests served unless it is the discernible interest of preserving lakes which really hasn't been recognized by the courts.

Alternatives available

Here the alternatives are to spend money which the court really doesn't take as that strong of an inhibition. It also requires IC to take time to get the boats inspected, which I believe is minimal and would be a valid alternative. The alternative that would be the strongest argument for opponents is that they have no choice and either must pay or not use any of Mitchell's lakes.

In the end, because of the differing monetary amounts charged between state and non-state residents and the one time versus multiple inspections, I do not believe that portion of the regulation would stand, because of the burdens of discrimination and no other alternative to IC.

I do believe, however, that Mitchell could inspect the boats and require annual cleaning of boats so long as it applied more equally to both in-state and IC travelers.

I would urge a rethinking of the requirements for certification of clean under the statute because I believe that aspect could stand on its own but in light of the Court's view on how states can affect IC, the requirements of different amounts charged and the one-time inspection in light of the multiple inspection each time the boat changes lakes would not stand.

The final issue is a Privileges and Immunities (P&I) Clause challenge.

Under the P&I Clause, each citizen of every state must be given the same privileges as a citizen/resident of the state he/she is in, Art IV. The P&I Clause, however, applies only to things critical to the vitality of the nation as a single entity. Recreational boating is not a basic and essential activity like jobs are. The courts have rejected P&I Clause challenges where the issue involved recreational hunting and I believe they would similarly reject a P&I Clause challenge to this statute.

Of course, if it related to commercial boating, then it probably would stand because it would apply to a trade.

Opponents would also be correct on the second aspect that there is an insufficient connection between the statute and state interest. Here, out-of-state boats in light of the current infestation of in-state lakes is the evil to be prevented, not the out-of-state resident.