Federalism Review

Federalism: the relationship between the federal government and the states.

• The Supremacy Clause (Article VI):  federal law, where applicable, superior to state law. Concept has three basic applications:

  1. federal law expressly preempts state law, which means that the state law is of no effect

  2. Sometimes federal regulation occupies the entire field (implied pre-emption) and there is no room for state regulation.

  3. Federal law often delegates implementation to states (very true of environmental and agricultural laws)

• Concurrent jurisdiction: when the federal statute or regulation does not occupy the entire field and there is room for state regulation.

• Through much of environmental law we will find that the states and the federal government may exercise concurrent authority.

Standards of Supreme Court Review for Constitutionality

Strict Scrutiny

• Law involves equal protection issue of race, country of origin, religion

  • Must be a compelling state interest and law must be narrowly tailored to protect interest

  • Applied to Discriminatory/Dormant Commerce Clause cases

  • Burden of proof on GOVERNMENT

• Intermediate Scrutiny (midlevel, applies to ‘classes’)

  • Sex/gender based classifications

  • Burden of proof on GOVERNMENT

1. There is no “important” government interest

2. Law must be “substantially related” to addressing the policy issue

• Rational Basis (lowest level)

  • Courts are generally deferential to government

  • To challenge a law, plaintiff must generally prove that

    1. Government has no legitimate interest in the regulated subject matter; and

    2. There is no reasonable, rational link between challenged law and government’s legitimate interest

Commerce Clause (Jurisprudence)

Originalist View: The Framers intended that the Commerce Clause only regulate trade, not production of items used in trade

• Under this view, mining, manufacturing, farming are not commerce

• Modern View: Congress has power to regulate activities that substantially affect interstate commerce

  • Wickard v. Filburn

  • Used of Rational Basis Review without calling it that

Commerce Clause, Article I, section 8

“To regulate commerce with foreign nations, and among the several states, and with the Indian tribes”

• Statute comes to Court with presumption of constitutionality

• Congress may regulate: (U.S. v. Lopez, 514 U.S. 549 (1995)

  1. Channels of interstate commerce

  2. Instrumentalities, persons and things in interstate commerce

  3. Activities that substantially affect interstate commerce

Dormant Commerce Clause

Commerce Clause allows Federal Government to regulate commerce inside a state

• cases like Wickard v. Filburn are Permissive application of Commerce Clause

• Commerce Clause also can restrict a state law that unduly burdens interstate commerce

  • Restrictive application of Commerce Clause

• Congress simply allows states to regulate commerce by not acting on the matter (by statute)

  • But federal government or a private party can stop state from regulating interstate commerce

• Lying in wait, a protection of federal power to regulate interstate commerce

  • Such matters for which there is a rational basis for Congress to have deemed having a substantial effect on interstate commerce

  • Remember that Congress doesn’t always win

• Three Issues when state law is challenged

1. Whether state legislation is discriminatory

2. Whether state has proprietary (”ownership”) interest in regulated activity

3. Balance between impact on interstate commerce and state’s legitimate local interest (“Pike Balancing Test”)

Three reasons State Law fails under Dormant Commerce Clause

State legislation is discriminating against certain commercial activity for protectionist purpose

1. State legislation is discriminating certain activity to isolate itself from a problem common to other states

2. State is discriminating against certain commercial activity to generate revenue

• Flow control ordinances – state controls garbage source to raise revenue, keep out trash, etc.

• Challenges to facially discriminatory state laws receives strict scrutiny review

Examples of Protectionism

• State legislation is discriminating against certain commercial activity for protectionist purpose

• Example:  Assessment paid by retailers of out-of-state milk, proceeds go to benefit in-state dairy farmers

  • West Lynn Creamery v. Healy, 512 U.S. 186 (1994) Protecting local industry (dairy) from rigors of interstate commerce prohibited by commerce clause

  • Court says ”differential burden economically impacts interstate commerce”

Geographic Discrimination

• Ex. 1:  municipality declares only milk pasteurized within 5 miles of municipality may be sold in municipality

  • Dean Milk Co. v Madison, 340 U.S. 349 (1951)

  • Milk is interstate product

• Ex. 2:  “Flow Control” statutes where one state prohibits landfill waste from another state (commercial activity)

  • Philadelphia v. New Jersey, 437 U.S. 617 (1978)

  • Garbage is interstate commercial product

• Statute survives challenge if can prove legitimate local purpose that cannot be served by non-discriminatory alternatives

  • Ex. 3:  Quarantine *(*against out-of-state commercial item)

  • Maine v. Taylor, 477 U.S. 131 (1986)

    • Record showed expert testimony that there was no way to screen for parasites proven harmful to native baitfish

National Pork Producers Council v. Ross**, NO. 21-468**

• Justice Gorsuch writes opinion (joined in varying parts by all justices)

• California Proposition 12 (statewide referendum): voters approve measure to require that all pork product sold in CA have animal welfare attributes

  • hogs can stand up, turn around, etc

• Bit of a mixed bag

  • Gorsuch: no need for Pike test because no protectionism

  • Others: Petitioners lose under Pike

Federal Preemption: Supremacy Clause, Article VI

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

• The challenge:  State and local environmental regulation is well within the police power to regulate the health and safety

  • Therefore, local laws have presumption of validity that must be overcome

• Discerning intent of Congress to preempt (3 ways)

  1. Statutory language (revealing express or implied)

  2. Underlying purpose of the act (stated in statute)

  3. Legislative history (published in Congressional Record)

• Rules of judicial construction and interpretation

• EXAMPLE: Constitutional-Doubt Canon. A statute should be interpreted in a way that avoids placing its constitutionality in doubt.

• EXAMPLE: Presumption Against Federal Preemption. A federal statute is presumed to supplement rather than displace state law.

Express vs Implied Preemption

Express Preemption:  The enabling statute is stated in its language that it preempts all other regulation in the subject area

• Easy to spot in statute

• Example:  Federal Cigarette Labeling and Advertising Act :  “No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.” 15 U.S.C. §1334(b)

Implied Preemption

• More difficult to discern

• Two types

  • Field Preemption: By its nature, the federal statute “occupies the field” of the subject matter, leaving no room for state regulation

  • Conflict Preemption:  State law frustrates objectives of Congress or renders compliance federal law impossible

• Will often require a court to investigate the Congressional Record to discern intent of Congress

  • Example:  Rice v. Santa Fe Elevator Corporation, 331 U.S. 218 (1947)

    • Grain warehouses required federal permit per federal Warehouse Act

    • Congress passes uniform law to prevent overlapping state laws (evident in CR)

Statutory Savings Clauses

Three types:

1. Federal statute allows state and local laws and regulations

   • Generally so long as at least as strict as federal

2. Federal statute delegates administration of federal statutes to the states

   • E.g. CERCLA

3. Federal statute preserves common law causes of action

E.g. CWA expressly allows common law claims (i.e. nuisance)

Compact Clause

Restriction on states’ authority to bind each other (hold each other legally accountable) to cooperation without federal approval

1. U.S. Const. Art. I, §10, cl 3:  “No State shall, without the Consent of congress… enter into any Agreement or Compact with another State.”

2. Federal statute required to allow interstate compact

3. Example:  Southern Dairy Compact (1997 to 2014)

   • 16 Southern States

   • Goal of uniform laws, regulation, and pricing for milk

   • NCGS §106-810 (repealed 2014)