Constitutional Law Class Notes 1/27/04


Next week, we’ll read the Sabri briefs!


Active reading in law is important!  Think as you read!  Ask questions as you read!  It’s different than other kinds of reading.  Computer-screen reading may not be as active as reading and note-taking on a page.  Foley says to read more than once!


We read Condon first, and then we read Printz.  Ideally, we should go back and reread Condon.


Tenth Amendment flip-flops


This is one of the reasons that the Tenth Amendment is so difficult.  The Court has been really inconsistent over time, even in recent years.  The current view of the Tenth Amendment is that it’s an entirely separate question, analytically distinct from the “power” question.  But that hasn’t always been the Court’s view.  The Court has flipped and flopped, back and forth again.  We’ll focus on the era from 1968 (Wirtz) to the present.  There were several cases involving the Fair Labor Standards Act, which was passed pursuant to the Commerce Clause.  After the New Deal, the Court said that Congress could regulate wages and hours and all that kind of stuff in all sorts of industries.  Congress was given general authority to do things like set the minimum wage for people who work at McDonald’s.


Congress passed a minimum wage law that is generally applicable to all sorts of kinds of workers.  They extended the same law to people who work for state and local agencies.  There are a few exceptions, but most people who work for state or local governments must earn a certain minimum wage.  Congress says that these workers’ wages and salaries affect the interstate labor market.


In Maryland v. Wirtz, Maryland said that Congress may have Commerce Clause power over workers in the state, but that Congress can’t regulate state workers.  The Court disagreed, saying that there is no separate question.  If Congress has the Commerce Clause power, then the Tenth Amendment is satisfied.  The Court basically said it was two ways to ask the same question.  The Tenth Amendment was declared to be redundant to the Commerce Clause.


But then, in National League of Cities in 1976, they said exactly the opposite thing and overruled Maryland v. Wirtz.  It was exactly the same question!  The issue was the wages and salaries of state employees, but the Court came to the opposite conclusion.


But then, in Garcia v. San Antonio MTA in 1985, the Court reversed again!  The Court said that the federal government could regulate the salaries of private bus drivers, like Greyhound drivers, and that the federal government could also set minimum wages for public bus drivers.


But then, in New York v. United States, Garcia was not explicitly overruled.  There’s no doubt that the decisions were inconsistent.  The New York case related to the transport of radioactive waste.  As a practical matter, this case overruled Garcia.  The Court was embarrassed to admit it.  Also, the New York case covered an environmental law, not a labor law.  So Garcia is out the window, and we’re in a new era of the separate inquiry.


But we don’t yet know the “contours” of this separate inquiry.  The Court didn’t say that we were going to resurrect the analysis of National League of Cities.  Instead, they set up the “anti-commandeering principle.”  They said that what was problematic about the laws in New York or Printz was that Congress has inappropriately “commandeered” state governments.  In New York, Congress was said to unlawfully commandeer state legislatures and tell them what to do.  In Printz, state and local law enforcement officials were forced to perform regulatory tasks by the federal government.


So the issue in the labor law cases was whether the federal government can force states and state agencies to pay their workers a certain minimum wage.  Twice the Court said yes, and once the Court said no.  But this isn’t about “commandeering”.


When Garcia was decided in 1985 and Rehnquist is on the losing side, he writes a dissent basically saying “We’ll be back!  You haven’t heard the last of us!”  Foley says that this suggests that the “anti-commandeering” principle is not the end of the road.  Foley thinks they’re keen to get another fact pattern just like Garcia so that they can explicitly overrule it.  Then we won’t be quite as sure what the Tenth Amendment means.  But this hasn’t happened yet, so we’re in a state of flux.


So there are a few different possible Tenth Amendment principles (the following quotes from a Foley handout):


1.     Congress can regulate the states in the same way that it regulates private entities, but it cannot regulate states in any way that is being distinctive to a state (except by requiring state judges to follow federal law).

2.     Congress cannot “commandeer” state officials as agents of the federal government.

3.     Congress may regulate the states directly, in ways that are unique to being a state, but cannot do so in a way that forces a state to regulate its own citizens differently that the state itself would choose.

4.     Congress may prohibit the states from doing things, but not require them to do things.

5.     Congress cannot force states to undertake specific actions vis-à-vis their own citizens that are inconsistent with a state’s status as a sovereign.

6.     Congress may not regulate state governments in ways that are inconsistent with a state’s status or dignity as a sovereign government, including regulations that force states to undertake specific actions concerning their own citizens that a state does not wish to undertake.


Whatever a majority of the Supreme Court justices say in an opinion is given very heavy weight in the entire legal system.


The Court can rely on its dicta, ignore its dicta, or repudiate its dicta.  It can even overrule itself.  So relying on the dicta of a Supreme Court opinion when you’re going to argue before that Court is shakier than if you rely on Supreme Court dicta in lower court.


If the Court makes two statements, and the first statement by itself is enough to get to the final conclusion, then the second statement is dicta and only the first statement is the holding.  On the other hand, if the Court only used one statement to support its conclusion, but you could think of a narrower statement that would have been enough to get to the conclusion, then it’s more contested whether the statement they made was the holding or dicta.


Printz v. United States


This is a particularly dense case.  No matter who you think is right in this case, there seem to be plausible arguments on both sides.  It’s not a very deferential opinion to Congress.


What are these three cases telling us?  They’re not necessarily the same formulations of the rule.


It looks like we have four categories:



Generally applicable

Specifically directed


OK (at least in Condon)


Affirmative duties


NO (at least in Printz)


Under the new jurisprudence, there’s a lot we don’t know!


For tomorrow, think about the example in Printz of having to report missing children.  Reno v. Condon also involves information (driver privacy).  Can we distinguish cases where Congress orders states to do or not do certain things with respect to information?  O’Connor’s concurrence suggests that the ruling in Printz is not limited to regulations on information.  We’ll also focus on the issue of terrorism tomorrow.


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