Question I.

The first issue is what kind of government action is involved - this is federal action by Congress. The federal government is one of limited, enumerated powers. There is no general federal police power and no right to regulate for the health, safety or general welfare of the citizenry. Each act of federal legislation must come within one of Congress' specific enumerated powers. Thus, for federal action to be valid, it must fall within a specifically enumerated power under the constitution and it must not violate any particular limitation.

The two branches of government at issue here (and their powers) are the Congress (Cg.) and the President (Pres.) The Constitution sets out a comprehensive list of Cg's powers in Article 1. The main Cg'l powers at issue here are Art. I § 8 clauses 1, 3, and 18; and Art. II § 2 cl. 2 (setting out the appointment role of Cg.). These powers are the Taxing and Spending powers, the Commerce power, and the Necessary and Proper clause. Art.11, 32 cl. 2 provides for Cg's role in approving Presidential appointments and vesting appointment power for officials (lower level) in other branches.

Under the Taxing and Spending clause, Congress has the power to lay and collect taxes. Section 2 of the act at issue here provides that the Sec. of Transp. can withhold funds from any state failing to enact the law. These facts are similar to those of Dole. That case asserts the proposition that Cg. may be able to buy compliance it may not be able to require. Congress may use its conditional spending power to achieve a particular result. This is especially helpful to Congress if it is otherwise prohibited from enacting particular legislation (i.e. if it violated the 10th Amendment which states that powers not given to the fed. is reserved for the states - often comes up on commerce clause situations discussed below). The only limit on this clause really is the requirement that it be done for the general welfare -prohibiting smoking is within the general health and welfare, the nation (as exemplified by the Cg'l hearings on this issue). Although the "general welfare" language itself doesn't grant an independent power, Dole says this type of "purchased compliance" is Constitutional.

The next (and biggest) Cg'l power at issue is the Commerce power in cl. 3.'This power is discussed often in conjunction with cl. 18, the necessary and proper clause, which stands for the notion that if Congress is seeking all objective that is within the specifically enumerated powers then Cg. call use any means that is rationally related to that objective and is not specifically prohibited by the Constitution McCulloch v. M D.

Section 1 of the FCSA is probably constitutional under the Commerce clause. I believe that there is a rational basis supporting Cg's view that all activity being regulated affects commerce. Another issue is whether the means sought by Cg. is reasonably adapted to the ends sought to be achieved (this is the Hodel 2-part test). EPA and OSHA representatives testified that this is a serious problem. This activity occurs in many places, most of which are in or affect interstate commerce. All of the establishments listed in section arguably affect interstate commerce. If there is any doubt, the affectation doctrine states that Cg. can reach even local activity if it can rationally conclude it affects interstate commerce. The "direct affects" or "substantially affects" tests are arguably no longer plausible.

Furthermore, the long line of cases interpreting Cg's power under the Commerce clause supports the constitutionality of this act. The cumulative effects theory under Wickard v. Filburn states that if the activity in question occurs repeatedly, it will have an effect on interstate comm. Perez applied Wickard by stating that if an activity or person is a member of a class that affects interstate comm, Cg. may reach it. Smoking in the establishments, because the establishments themselves affect interstate commerce, can be said to be reachable by Cg's commerce power. Additionally the Necessary and Proper cl. helps Cg. get at what is interstate commerce and it will most likely be able to regulate it here - along with the help of cases like Heart of Atlanta Motel; the movement of people is interstate commerce (which takes care of places like cafes, bars, hotels, etc.)

Are the means selected by Cg. reasonably adapted to the ends sought to be achieved? Due to the deference courts usually pay Cg. under commerce cl. issues, the means used by Cg. here will probably be upheld by a court. An employer failing to correct violations brought to its attention will pay a heavy fine and states may lose valuable highway funds. It will undoubtedly be argued that these penalties are excessive, but it is equally possible a court may uphold them. Smoking is a serious problem and it sounds like Cg. did its homework in investigating the problem (the hearings). (Note: one argument might be that a more reasonable approach is to put the heavy burdens on those places employing waitresses).

Finally, a possible limit on Cg's power here is the 10th Amendment. N.Y. v. U.S. states that the fed. gov't can encourage (Dole) states to adapt fed. regs. but can't coerce. The policy argument is that people must have a choice. N.Y. states that the alternatives are that fed. could offer states a choice of regulatory or preempt (cooperative federalism). However, Garcia, an earlier case rejected the principle that the 10th amendment state sovereignty is a significant limit on Cg's comm. power. There will be an argument made that the heavy fines (i.e. highway funds removal) is coercion, but I would rely on Dole and the fed's ability to purchase compliance.

Section 3 of the FECA raises appointments clause questions - and thus separation of powers issues. Art. II § 2, cf. 2 gives both the Pres. and Cg. some powers in the appointment of executive officials. The Pres., not Cg. is given the power to appoint executive officers (high-level officers). Cg. can't appoint lower-level officials either, but it may say which of the other entities may appoint them .

Thus, because Cg, has no power to appoint federal executive officers - and board members or all agency are arguably so, the creation of this commission is unconstitutional. As for removal, Congress may not remove an executive officer whether high or low level. (Bowsher). However, Cg, call to some extent limit the power of the Pres. to remove an officer if Cg. specifies a term of office and then provides that removal is only for cause (e.g. Morrison v. Olson), factors which we don't know of from the facts given.

Question II.

The first issue is whether ZEPA is preempted by the Dormant Commerce Clause (DCC) Art. I § 8 cl. 3 gives Congress the power to regulate interstate commerce. The DCC is invoked based on the negative presumption that if Congress has not acted on some matter of interstate trade it did so purposefully with the intent that there be no regulation on that matter and therefore the states are not permitted to act.

Before the general test of the DCC may be applied, several threshold issues must be addressed. First in. this case Congress has neither expressly preempted or consented to the state regulation. Congressional action would be dispositive. Second, the state clearly is regulating and not acting as a market participant. Finally the regulation does affect interstate commerce. It bars certain products from the state.

The regulation appears appropriate for DCC analysis. The DCC analysis is a balancing test. The states interest served, minus the states interest disserved, viewed in light of the alternatives are weighed against the federal interests disserved, minus the federal interests served in light of the alternatives available to the affected segment of commerce. In general the federal interest must clearly outweigh the state interest before DCC violation will be found. However, if the regulation discriminates against interstate commerce it will be subject to strict scrutiny.

Here the regulation is discriminatory and protectionist in its affect. (See further discussion of discriminatory effect in Privileges & Immunities discussion infra). However, the DCC test is concerned with the means of regulation not its affect. Here all producers in state or out may not sell or distribute products containing Zytron-28. If the discriminatory effect is considered the state would have the obligation of showing its purpose could not be served is well by other non-discriminatory means. If it considers Zytron-28 too dangerous, I cannot think of other less discriminatory regulation (a ban on use would be more discriminatory). I feel the normal presumption of validity should be applied in the DCC analysis to the ZEPA.

In applying the balancing test, the state interest served is protecting safety, health, and the environment. All of these are important state concerns. The Environmental Protection Agency (EPA) study indicates that

"manufacturing methods" introduced present substantial environmental and health risks. It is somewhat unclear

whether the risks are involved in just the manufacturing process or in the use of the products. If it is just the

manufacturing process the ZEPA ban on manufacturing may be appropriate but the ban on sale and distribution may not serve a state interest (other than protectionism). Also relevant to the state interest served is the matter of

whether the subject matter is local and the burden rolls mostly in state. The health and environmental nature of the risks here would tend to militate for national rather than state regulation.

The state interest served must be netted against state interests of the same type disserved. Here state environmental interests might be disserved by the ban in that Zytron-28 (Z-28) tires last 3 times longer than conventional tires. Banning Z-28 will triple the disposal problems of tires replaced with conventional ones.

The state's net interest served must be viewed in light of alternatives. Again the matter depends on whether use or production of the tires creates the risk. If production alone creates the risk, a more efficient alternative may be to ban manufacturing of the product within the state (although that may create a DCC problem of excluding commerce). If the use of the tires is the problem, a more efficient alternative may be a total ban on their use (although this may be more burdensome to interstate commerce - requiring cars to change tires at the border - it probably would be prohibited).

In all the state's interest must be balanced against the federal interest in the unrestricted flow of tires. The federal interest disserved does not appear excessively strong - differing regulations among the states would limit markets for Z-28 producers but would not prohibit its use or transportation through states. Also since the ZEPA does not ban the use of Z-28 there is not extraterritorial regulation that drivers must change tires before entering Mitchell. The legislation does seem to serve a federal interest expressed by (the EPA in protecting the environment. The fact that the issue would be better resolved by national regulation argues against ZEPA.

On balance the DCC issue will turn on the true nature of the Z-28 hazards. If the hazards are in production (as they appear they may be) no state interests are served by the prohibition on sale and distribution and those provisions of the act will be unconstitutional. If the hazards are in use the presumption of validity will prevail and the ZEPA will be upheld.

A second issue is whether ZEPA violates the Privileges & Immunities (P&I) clause, Art. IV § 2[l]. P&I prohibits discrimination against out of state citizens by a state. Since Ockham operates as a sole proprietor the P&I clause will apply to him. As noted ZEPA does discriminate in its effect because the only manufacturers are out of state. Two steps must be met for P&I protection.

Step 1. The right being protected must be of fundamental national interest. Here Ockham's right to produce and sell his product is such a right.

Step 11. (A) The non-resident must be some particular source of a problem and (B) the differentiated treatment must be closely related to that problem. Here again the issues turn on whether manufacturing or use of Z28 presents the risk. If the risk is in manufacturing, then the non-resident does not represent a source of hazard to Mitchell and ZEPA probably would violate P&I. If the hazard is in use, the out of state producer is a source of the problem and ZEPA is closely related to a substantial state interest in curing that problem. The P&I clause would not be violated.

A final consideration is whether Mitchell's action is preempted by Congressional action. Here we have a federal EPA finding but no indication of Congressional action, hence no preemption.

In conclusion, the issue of ZEPA's Constitutionality turns on the nature of the hazard. If it is in manufacturing, ZEPA's prohibitions against sale and distribution are unconstitutional under DCC and P&I. If use represents the hazard the whole ZEPA probably stands.

Question III

Issue #1

Constitutional litigation initiated in federal court.

Assumption: AUPEF and Erigena are "citizens of M (since Erigena ("E") couldn't purchase the Z-28 tires).

I Ith Amendment

The 11th Amendment has been construed or extended to mean that a citizen of one's own state may not sue the state. Unless a state unequivocally consents to being sued in federal court, the federal court has discretion to decline to hear certain cases and it may not hear a private person's suit against his state of residency. (Note: if AUPEF and E were of diverse citizenship from M, the case could not be heard based on diversity since citizens of other states are also prohibited from suing states.)

Since there is no evidence or consent by M to be sued in the facts, the state of M would/could not be brought into federal court. AUPEF and E would have to seek relief in M state courts (depending on M's laws, etc). Therefore. the state of M may not be a named defendant in this action.

Vivian Vegas ("Vegas") requires further analysis under in exception to the 11th Amendment rule against suits of states by its citizens. Under the Ex Parte Young doctrine, or the stripping doctrine, a citizen/person is allowed to sue a state employee when that employee acts in violation of the Counst. In such circumstances, it is found that he is not acting under state authority and therefore call be sued for injunctive relief (and monetary damages under some circumstances.)

Here the "Act" is a state statute and Vegas as attorney general would be or had enforced a state law that violates the Constitution. Under Pennhurst, (the state employee (Vegas), can still be sued for injunctive relief since the stripping doctrine extends to state employees carrying out unconstitutional state laws

So injunctive relief can be sought from Vegas to prevent her from enforcing ZEPA in the future. However, the federal court will only be able to hear damage claims against Vegas for future damages. The fed. ct. may not hear claims for retroactive damages that will be paid out of state funds. Since Vegas is in reality acting under state law, albeit an unconstitutional one (and in spite of the legal fiction that hers is action on her own), retroactive damages would he paid out of state funds and claims for such are not allowed. Damages would be limited to future - which Plaintiffs would have to establish.

Retroactive monetary damages would be available if Vegas were being sued personally - but this is not the case by these facts and I don't believe there to be a case to be made by Plaintiff's which would allow Plaintiff's to sue Vegas Outside her duties as an AG.

Justiciability

In order for AUPEF and E to bring their suits in fed. ct., it must be determined that they have standing, that their actions are ripe, that their cases are not moot and that the issue at bar does not involve a political question. Additionally, prudential concerns must be considered.

Standing

Art. III, § 2 (1) allows fed. cts. to hear only cases & controversies ("cc"). In order for a Plaintiff to satisfy the Const. concern of standing an actual injury in fact must have occurred. There must be:

1). Actual or imminent invasion of a legally protected interest (harm)

2). caused by the conduct in question (causation), and

3). the harm is likely to be redress and by a favorable decision (redressability).

The injury in fact cannot be a general grievance effecting everybody.

From the facts that AUPEF members (including E) tried but couldn't purchase Z-28 tires, there is an "injury" - which was caused by enforcement of ZEPA - from which an injunction against its enforcement by the AG would adequately redress the harm (allowing AUPEF & E to obtain Z-28 tires).

Also under self-imposed rules, AUPEF may assert 3d party rights of its members (outside those including E, who actually were harmed in fact by their attempt to purchase) since:

1. It is an organization asserting its members rights and

2. AUPEF's assertion protects 3d party's enjoyment of rights of which AUPEF is an adequate

representative.

I believe that both AUPEF and E can establish standing, although AUPEF may have to Counter a "generalized

grievance" contention since the injury has not been statutorily defined by Congress.

Ripeness

A case is ripe if the facts are sufficiently well developed to allow a court to decide the case. Additionally, the ct. must determine that the issues are at a level of maturity that the ct. should make a decision. Factors of ripeness include:

1). The likelihood that Plaintiff will engage in the conduct.

2). The certainty that the conduct will take a particular form.

3). The likelihood that Defendant will respond & that response will take a particular form.

4). Any present injury occasioned by the threat of Defendant's response.

5). The fact that Plaintiff is Challenging a statute on its face rather than the application of the statute.

6). That fact that the case arose in state court rather than fed. ct.

Applying the factors to this case, the matter appears to be ripe - "harm" has occurred and will be repeated.

Mootness

If the issue at ban has become irrelevant or the facts have changed that a decision will no longer benefit the person requesting it - the matter is moot. This is not so on the facts provided. No changes were stated - the case remains live. The exception for potential of repetition is therefore, not required to be applied either.

Political Question

The present facts do not seem to present a political question to the ct. for decision. Since (1) the court doesn't clearly commit the decision to another branch of the government; (2) the cts are not faced with unmanageable standards upon which to base a decision; (3) no preliminary policy decision is required (perhaps an EPA decision is associated with existing regulations). And there doesn't appear to be an "imperative need" to defer to the other branches. Therefore, a judicial decision is possible & proper here.

Prudential Considerations

There is no evidence in the facts that the federal ct. should discretionarily refuse to hear this case because:

1. It might cause significant separation of power difficulties or

2. It might unduly interfere with normal political processes, or

3. the fed. courts could become overwhelmed with new litigation.

Conclusion

AUPEF and E probably have a case that can be heard in fed. ct. but only against Vegas as AF and only for injunctive relief and future monetary damages (if any). All the elements of justiciability seem satisfied to clear the way for this action.