I.

Issue I: Whether the Mitchell Statute is preempted by federal legislation.

If a state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," the state law is preempted under Art. VI(2) of the U.S. Constitution. Because the federal government is considering a potential federal statute providing universal health care coverage, the statute is clearly not yet enacted. Therefore, there can be no conflict between federal and state legislation and the Mitchell Act is not preempted.

Issue II: Whether the Mitchell Statute is invalid under the Commerce Clause [Art. I, § 8(3)].

Under Heart of Atlanta, the movement of people is a part of commerce. The Commerce Clause has negative implications on state power to legislate in areas where Congress has not spoken (see preemption above). The states may then regulate and their regulation will be upheld against Commerce Clause attack as long as it does not interfere unreasonably with national interests. In order to determine whether a state regulation will be upheld, the following balancing test can be used:

State interests

State interest served: health care

minus

State interests disserved: not everyone is covered. In light of alternatives available to the state: a more or equally effective but less restrictive means of accomplishing the health care goal; a less effective statute; spend money; or no alternative available.

VERSUS

National interests

National interests disserved: interstate flow of seasonal workers free of:

1) this regulation

2) differing state regulation

3) incompatible state regulation

4) discriminatory regulation

National interest served: uniform health care, at least for the State of Mitchell

In light of alternatives available to Interstate Commerce (IC) spend money; spend time; less effective operations; taking extra-territorial actions; no alternative available.

The state interest served is clearly an important one. It is so important that Congress is considering legislation regarding the same issue. However, even if a state law is designed to serve a legitimate policy power objective, that does not mean that it is not discriminatory. City of Philadelphia v. New Jersey. The Supreme Court (S.Ct.) there held that "the end of protectionism can reside in legislative means as well a legislative ends."

The Act discriminates on its face against seasonal workers and their employees, who are not entitled to participate in the plan. Although apparently many employers, in particular former-ranchers, have lobbied against application of the Act to them and are happy with that stae of affairs, seasonal employees are seriously harmed and discriminated against.

It may be assumed that many seasonal employees actually live in the state, but that others do not. By definition, they do not live in the county of their employment 30 days before starting to work. § 402(22)(c) of the Act. Thus, IC is affected.

The S.Ct. has held that legislation that employs discrimination means or results in discriminatory ends shall be subjected to the strictest scrutiny, and that the state will have to prove that less restrictive alternatives did not exist. Hughes v. Oklahoma. On the other hand, a state may use discriminatory means to serve a legitimate state police power interest if no less restrictive means are available. Maine v. Taylor.

The Hughes burden is heavy. Yet, although IC is undoubtedly affect (see above), it is not so certain that IC will decrease. Non-seasonal employees may likely be attracted to Mitchell's good health care benefits. Studies have shown that fringe benefits are very important in today's job market and are frequently the reason why top employees stay with companies despite the lower annual wages. Seasonal employees on the other hand do not experience worsening conditions. Their situation "merely" does not improve. (It should be noted that insurance premiums for employees not insured through their employer could very well rise, due to a decrease in the basis of healthy, working subscribers. This could have a significant impact on IC.)

That said, it seems that Mitchell could well have brought the employees under that Act, as is evidenced by the fact that the Mitchell State Health Department will make recommendations on how to do this shortly. (20 months after the Act went into effect.) To quote the S.Ct. in Hughes, "the State made a choice of the most discriminatory means available even though nondiscriminatory alternatives would seem likely to fulfill the State's purported legitimate local purpose more effectively." This is supported by evidence of former-rancher pressure. (Under the Act, employers cannot participate, even if they want to. This seems to counter the argument that providing coverage under an employer-based health care system is a complicated matter.

Ergo, the facts seem to suggest that the Act may very well fail the Hughes strict scrutiny test and be held unconstitutional under the Commerce Clause no matter how beneficial it is locally.

The Act is not saved by a market-participant exception to the Commerce Clause, because the state does not seem to either subsidize private businesses or spend money to run a proprietary business, even if Plan B is operated by the State Health Department. (operation of ownership).

Issue III: Whether the Mitchell Act is unconstitutional under the Interstate Privileges and Immunities Clause (Art. IV, § 2[1]).

Facts that could be resolved through Commerce Clause analysis may be equally responsive to resolution under the Interstate Privileges and Immunities Clause (P&I Clause). This Article protects out-of-state citizens from unreasonable discrimination in regard to their fundamental national interests -- interests which concern the nation as a single entity. The Clause requires that when a state confers a benefit on its own citizens, it cannot deny the same benefit on out-of-state citizens, unless it demonstrates substantial justification. This generally means that the state must establish that (1) non-residents are a particular source of the problem that the state is seeking to remedy and (2) that the law bears a substantial relationship to the eradication of the problem. Hicklin v. Orbeck; United Building & Constr. Trades Council.

United established that interest in employment is sufficiently basic to the livelihood of the nation to fall within the scope of the clause. It would be difficult to establish that Mitchell has a substantial state interest in not granting employer co-paid health care benefits to out-of-state citizens, and even harder to establish that out-of-state citizens who are needed on a seasonal basis are an (?). The same analysis set out above in the Commerce Clause analysis regarding available alternatives applies here: non- or less discriminatory measures would seem to adequately serve the state interest of health care for employees.

Because Mitchell treats non-citizens unequally to Citizens of Mitchell regarding employment and health care benefits, it violates the P&I Clause.

It should be noted that in United Building, the S.Ct. held that conditioning the exercise of a privilege upon municipal rather than state citizenship or residency does not remove the regulation from the reach of the P&I Clause. In the case at hand, conditioning entitlement to the privilege on county citizenship or residency equally does not remove the regulation (Act) from the reach of the P&I Clause.

The Act is unconstitutional under the P&I Clause.

II.

Issue 1. Constitutional litigation initiated in federal court.

The first issue here is whether Alvarez (A), Baez (B), and Chavez (C) may bring this action against the M Dept. of Health and it's director in federal court. Art. III § 2 [1] says judicial power extends to all cases & controversies arising under the Const. The 11th Amendment has been construed (extended) to mean that a citizen of one's own state may not sue that state. Because the federal cts have discretion to decline to hear certain cases, a rule has evolved: unless a state unequivocally consents to being sued in federal ct, the fed ct may not hear a private person's suit against the state.

In this case, since M has not consented, A, B & C may not bring this action in federal court against M's Health Dept. (which is one of the state's agencies). Therefore the state itself may not be named in this action. There is an exception for this rule, however, with regard to state employees. This exception (called the Ex Parte Young doctrine or the stripping doctrine) allows a person to sue a state employee because of the fiction that a state employee acting in violation of the Const. is not acting under state authority and can therefore be sued for injunctive relief for violating federal law. Here, the Act is a state statute and the state employee can still be sued for an injunction because Pennhurst extended the stripping doctrine to an employee carrying out a state law which violates the Constitution.

Therefore with regard to the injunctive relief, Nora Nightingale (N), the state employee, can be enjoined from carrying out the Act.

As to the damage claims, the federal ct can hear A B & C's claims against N only for future damages, not retroactive damages which will come from the state funds. Here, the $ would come from state funds because N is acting under state law (even though under the Ex Parte Young fiction she is acting on her own. Therefore the federal ct may award damages (if A, B & C win) for the difference in health care costs between what they pay & what's provided for the upcoming summer of 1994, but not for last summer (1993).

Issue 2: Justifiability

In order for A, B & C to bring their suits at all in federal court, it must be determined that they have standing, that their cases are not moot, that their actions are ripe, and that there are no political questions involved. These doctrines reflect both constitutional & prudential concerns. The const. concern arises from Art. III, § 2, the "cases & controversies" clause of the Const. The prudential concerns are judge-made law and can be changed from time to time (unlike the cases & controversies concerns).

The first of the doctrines which must be applied is standing, which is primarily a constitutional concern. The cases & controv. clause lends itself to the fact that an actual injury in fact has occurred. In order for there to be standing a plaintiff (P) must have suffered an actual or imminent invasion of legally protected interest (harm); the harm must be caused by the conduct in question (causation); and the harm is likely to be redressed by a favorable decision (re??). The injury in fact cannot be a general grievance affecting everybody.

In this case A & B have both suffered an injury in fact because both worked at Presidio (P) during the summer of 1993 when the Act was in place. C, however, did not, and it is not clear from the facts if he has even been employed since moving to M. If he has been, though, & was denied insurance because of his recent move, he has also suffered an injury in fact.

The next doctrine to be applied is mootness. If the issue in a case has become irrelevant because of events, since suit was brought, the case is moot. There is an important exception to the mootness rule, however, and that is if the issue is capable of repetition yet evading review, the case will not be moot. For example, Roe v. Wade (pregnant women). See also DeJune's (decided differently because that particular law student would never again be applying to law school). The rationale is that this type of case will always become moot because of timing -- by the time the suit is actually heard, the issue will no longer be present.

This case is such a case -- capable of repetition yet evading review. Even if A, B & C bring suit every summer, by the time the courts hear the issue, the summer will be over. The employees will no longer be employed by P & the issue of no health care will be moot (thanks to our short summers in MN).

Therefore, because of this exception, A, B & C should not be denied access to federal ct because of mootness.

The next concern is whether this case is ripe or not. A case is ripe if facts are sufficiently developed that a court should decide the case. Factors to consider are: (1) whether a plaintiff (P) will engage in certain conduct (likelihood), (2) whether that conduct will take a certain form, (3) the likelihood that the defendant's (D) conduct will take a certain form, (4) the present injury occasioned by threat of D's conduct, (5) whether the challenge is to the statute or conduct, and (6) whether the case arose in fed or st court.

Applying the factors to the facts in this case, I believe the P's case would be ripe. Especially with regard to A, it is very likely he will again work at P, and probably B will too. (C may fail this part of the test -- it is not quite as likely that he will work there since he never has before).

There is also a substantial likelihood that M's conduct towards health insurance will be the same in 1994 as in 1993. Section 406(27) provides only that by 12/1/94 recommendations are to be made to the Gov. concerning seasonal workers (which probably means no action on in at all at least for a couple yrs after that). Therefore, unless the law is changed, M's conduct will prob. be the same.

There is probably no present injury caused by the threat of M's conduct next summer unless worry or stress is an injury. Another factor that will weigh heavily in A, B & C's favor is that the challenge in this case is to a statute, not conduct & therefore the case is more likely to be found ripe. Finally, a factor which will weigh (slightly against the Ps will be that this case was brought in fed ct rather than state ct (and a case is more likely to be found ripe if it is brought in state court).

In conclusion, because of the likelihood of TT's conduct repeating itself (working at P again in 1994), and the likelihood of M's denying them health insurance and also because this case is a challenge against a statute, the action will be found to be ripe. Per the Lyons case the Ps have a much better chance getting past damages than injunction in the future, but this case is very distinguishable from Lyons because here the likelihood that D's conduct will take a certain form is very certain (unlike Lyons). A's action will definitely be found to be ripe, B's action will probably be found to be so, but C will probably not have a case which can be heard because it is not ripe.

III.

Authority to agree

The legislature derives its powers from those listed in Art. I § 8. (The enumerated powers). Additionally, the federal legis. has implied powers via Art. 1 § 18: the enumerated powers plus all laws "necessary & proper" to their execution. Some commentators also describe the federal authority to act as falling under those inherent powers traditionally exercised by a sovereign. The inherent sovereign powers "doctrine" applies only to foreign & territorial matters, though. Thus, Congress (if the agreemt was statutory?) has power to act on trade w/ foreign nations under the commerce power. Or if the agreement was via a treaty or executive agreement, the President has authority via the Art 2 sec. 2 treaty power.

Treaties & Agreements

Treaties and agreements may cover any subject capable of negotiation, such as commerce (here). They are the "supreme law of the land" under Article III & thus take precedence over conflicting state laws.

The federal agreement w/ Mexico may (if the ct determined there was in fact employmt discrimination) may preempt the statute as it relates to Baez.