FINAL EXAMINATION/SAMPLE ANSWER

Constitutional Law Powers

Professors Iijima & Pannier

December, 1995

QUESTION I.

Congress enacted the CSRA. Accordingly, the analysis will focus on Congress, rather than on the State's power. Because the CSRA contains two sections which raise different issues, the analysis will treat them separately.

Section 1 of the CSRA:

Under notions of Federalism (see Tenth Amendment), Congress' powers are limited to those enumerated in the Constitution. The Constitution, Article I, Section 8, specifically gives Congress the power to regulate interstate commerce. Congress probably enacted CSRA under its commerce powers because of the reference to "interstate cases" in the hearings and legislative preamble.

A stronger argument may be made under the implied powers doctrine. Under the Necessary and Proper Clause (Article 1, Section 8, Clause 18), Congress has the power to carry out all actions appropriate to achieve its aims under its enumerated powers. Accordingly, Congress may regulate activities related to its powers under the Commerce Clause. Under U.S. v. Lopez, Congress may regulate any activities that have a substantial relationship to interstate commerce.

The failure to pay child-support, regardless of whether or not the payments move interstate, does have a substantial relationship to interstate commerce. The failure to receive such payments may interfere with the custodial parent's ability to purchase goods and services, many of which move interstate. The fact that the impact on interstate commerce of each missed payment might be small, the aggregate impact (see Wickard) could be considered "substantial." Here, $48 billion is lost to interstate markets.

Lopez, however, may have set up additional obstacles to Congress' power to enact the CSRA. First, three of the Justices would require the activity regulated to be commercial in nature. Although the activity (payment of child-support) involves money, this is not the typical buying selling situation at the core of the Commerce Clause. Although this commercial requirement is not the rule, having failed to garner five votes, two additional Justices are skeptical of the regulation of noncommercial activities, particularly when the activity is in an area of traditional state concern. Family law in general, and child-support law in particular, are within the police power of states, involving issues of general welfare. Furthermore, states traditionally have regulated in these areas. Therefore if Congress is unable to give a "clear and manifest" connection between the regulation and interstate commerce, a maiority of the Supreme Court would be likely to strike down the CSRA as outside the scope of Congress' powers.

The Lopez plurality indicated ways Congress could show this clear and manifest connection. First, it suggested (but did not require) that Congress include a "jurisdictional statement" in the statute itself, limiting the scope of the regulation to activities in interstate commerce. For example, the CSRA expressly could have been limited to delinquent child-support payments involving cases in which the obligor-parent and her or his child reside in different states. The CSRA did not contain a jurisdictional statement; although the preamble did state that there was a substantial effect on interstate commerce, the preamble did not specifically limit the Act to interstate cases.

The Lopez plurality also suggested that Congress make findings showing substantial effects on interstate commerce. Testimony in the Congressional hearings established that a great deal of money had not been collected, including $14 billion in interstate cases. The hearings did not specifically determine the impact the lost funds would have on interstate commerce. Because money is involved, however, the impact on interstate commerce may be sufficiently obvious.

Although this is a close question, I believe a majority of the Supreme Court, including Justices Stevens, O'Connor, Kennedy, Souter, Ginsburg, and Breyer, probably would hold that Section 1 of the CSRA is within Congress' Commerce Clause powers.

Section 2 of the CSRA:

The Commerce-Clause analysis, above would apply to Section 2, regarding Congress' ability to regulate child-support payments.

Additionally, Article I, Section 8, Clause 1, the Spending Clause, may provide Congress with the power to enact Section 2. Although there is no "inherent" federal power to provide for general welfare, under its spending power, Congress is allowed to use its power to spend money in order to promote general welfare.

Under its spending power, Congress may condition its grant of funds to states. Congress' conditions, however, must be unambiguous [New York- v. U.S. text at 408]. These conditions are clear regarding both the penalty (70% of federal highway funds) and what the states must do (enact legislation making the willful failure to pay child-support obligations a crime). It is questionable, however, whether "the conditions imposed are reasonably related to the purpose of the expenditure." The relationship between child-support payments and highway funds is quite attenuated. Although it is clear that both the drinking age and highway funds may be related to highway safety, which the Court has allowed, the intersection between child-support payments and highway funds is not obvious.

The CSRA also would be vulnerable to attack under the Tenth Amendment on the grounds that Section 2 interferes with the "states as states." The CSRA specifically targets the states in their regulatory capacity; it is not a generally applicable regulation that happens to apply to states. Accordingly, the analysis from New York v. U.S., not Garcia, would be used to determine whether the CSRA violates the state's regulatory immunity.

The CSRA does not absolutely require the states to regulate, or "commandeer" the states' legislative processes, but, rather, "encourages" the states to regulate by threatening to withhold federal highway funds. Assuming that this is a valid exercise of its spending powers, Congress gives the states one choice (out of two) that Congress is allowed to offer under its enumerated powers. On the other hand, it is arguable that the withholding of 70% of highway funds constitutes coercion because the penalty is so severe. If so, Section 2 would be an unconstitutional interference with state powers.

On balance, I would predict that Section 1 would be held constitutional, and Section 2 would be held unconstitutional.

QUESTION II.

Question II raises questions regarding the reaulatory power of a city. In general, the city of Scotus, as a local subdivision of Mitchell, has general police powers. Because the land available for the disposal of solid and liquid waste was shrinking, Scotus may have had a legitimate interest in protecting the land and health of its residents, as well as environmental concerns. These matters of general welfare are not specifically given to the federal government, so are reserved to the states under the Tenth Amendment.

The specific actions taken by Scotus, however, may violate other provisions of the U.S. Constitution. Because Scotus has adopted two separate measures, each of which raises different issues, the analysis will treat them separately.

Directive to the manager of Scotus-owned landfill

Scotus directed the manager of the Scotus-owned and operated landfill to refuse waste generated outside Scotus. Waste products are considered "commerce." See, e.g., New York v. U.S. This directive, on its face, discriminates against waste coming from out-of-state, and therefore discriminates against interstate commerce. Such measures are generally per se unconstitutional. This is particularly true when the state's purpose is economic protectionism. It is possible that Scotus' purpose is to protect local business interests. Cajetan Corporation, the only corporation whose operations would not be affected by the directive, is the only local corporation which currently dumps waste into the Scotus landfills.

The fact that the directive discriminates against wastes coming from outside the city instead of wastes coming from outside the state does not save the directive. In United Building and Construction Trades Council, the Court held that whether the restriction was conditioned on state or municipal residency, out-of-state individuals are being excluded, that individuals not residing in a given state are ipso facto not residing in a city within that state.

The directive may be saved, however, by the market participant doctrine. Because Scotus is actually operating a waste dump, it has become the equivalent of a private business; it no longer is regulating commerce. It thereby may not be covered by the restrictions against discriminating against interstate commerce.

On the other hand, the market participant doctrine applies to the provision of products, not to the "hoarding" of natural resources. Depending upon whether the dumps are considered mere "holes in the ground" or the end-product of a complex process, like the manufacturing of concrete, the doctrine may or may not protect the Directive.

If the market participant doctrine is not applicable, the Directive still may be valid if it passes the justification (aka strict scrutiny) test. Under this test, state regulations that discriminate against interstate commerce may pass constitutional muster if a legitimate state purpose cannot be achieved by a nondiscriminatory alternative. Here Scotus' ends re health and environmental protection would be considered legitimate. It is likely, however, that Scotus could achieve the same ends through nondiscriminatory means, such as limiting all dumpers evenhandedly, raising fees, increasing recycling, etc. Accordingly, if the market participant doctrine is not available, and the Directive is subject to Commerce Clause limitations, the Directive probably would be held unconstitutional.

Ordinance 72-A

Ordinance 72-A, imposing a 5,000 pound weekly limit on all persons and corporations dumping wastes, is facially neutral in regard to interstate commerce; it does not discriminate on its face as does the directive. It does, however interfere with interstate commerce, since it tends to raise barriers to the inflow of waste from out-of-state. Aquinas Corporation, which had been dumping 100,000 pounds of waste per week in Scotus would be limited to 5,000 pounds.

Because of this interference, the Ordinance might be unconstitutional. The Court usually applies a balancing test to determine whether the state's/city's interests in regulating outweigh Congress' interest in ensuring the free flow of commerce. In balancing these interests, the Court would consider a number of factors. First, the city's interests are very important: its protection of the environment and protection of the health of its residents. Health and environmental issues, as well as the availability of land are arguably local in nature, supporting Scotus' Ordinance. Additionally, in regard to the extent of the burden on interstate commerce, the fact that commerce is merely limited, rather that prohibited, helps Scotus. Under the balancing test, the Ordinance likely would be constitutional.

The Court has sometimes used the rational basis test when state/city regulations interfere with interstate commerce. Under this test, the issue is whether the regulation is rationally related to a legitimate state objective. Here, the limitation of waste dumping, certainly would help preserve dumping space, thereby protecting the environment and public health. The city would not need to open new dump sites, with attendant harms to aesthetic interests, ground water, etc.

It is very possible that, although the Ordinance is not discriminatory auainst interstate commerce on its face, it is discriminatory in effect and purpose. It seems more than coincidental that the local waste producer is not adversely affected by either the Directive or the Ordinance, or even by the two in combination. The out-of-city and out-of-state producers are adversely affected by both Directive and Ordinance, both alone and in combination. Thus, it is likely that Scotus' purpose was, at least in part, to protect local economic interests. Because of the discriminatory effect and purpose, the Court may apply the more intrusive justification test instead of the balancing test to the Ordinance.

Under the justification test Scotus again would argue a legitimate purpose. See above. It would argue that an even-handed limitation is the only nondiscriminatory way to achieve its purposes. It would be less discriminatory, however, to raise the dumping limits so that Aquinas and Boethius would have some access to the dumps. Also, higher fees or recycling efforts would spread the impact to all dumpers. Accordingly, under the justification test, it is likely that the Ordinance would fail.