Sources of Law II

1
Sources of Law II

• United States Constitution
• Establishes Congress, the Presidency and Courts
• Residual powers to states
• Guarantees basic rights to all citizens State
  Constitutions
• Create state executive, legislative and judicial
  systems
• International Law Treaties, International rules
• Statutes
• Common Law
• Administrative Law

2
Division of power in both Constitutionsvertical
and horizontal

• Separation of Powers Horizontal division of
  federal government power
• Federal government is divided into three branches
  -- Executive, Legislative, and Judicial.

• Federalism -- the U.S. national governments
  power is limited to only the issues listed in
  Article I, 8. Remainder reserved to states.

The courts can rule a law unconstitutional, but...
Congress can pass statutes, but...
The President can veto a bill, but...
Congress can override a veto, but...
The President can appoint federal judges, but...
Congress has to approve the Presidents nominee...

• Individual Rights -- rights of citizens against
  government.

3
Federalism the Commerce Clause Article I,
Section 8

• The Congress shall have Power . . . To regulate
  Commerce with foreign Nations, and among the
  several States, and with the Indian Tribes . . .
• Congressional regulations of areas traditionally
  within state police power must be tied to the
  regulation of commerce.
• Substantial Effect Rule -- Congress may regulate
  any activity which has a substantial economic
  effect on interstate commerce.

4
The Dormant Commerce Clause

• States may regulate commerce in its own borders,
  but what if a state tries to regulate commerce
  across state borders?
• Hunt v. Washington Apple Growers

Why do courts interpret the U.S. Constitution to
limit state power in this way?
5
Conflict between national and local law
EXAMPLE Company A wants to build a hazardous
waste incinerator in Mobile Alabama. The people
of Mobile dont want the incinerator there, but
the Company has obtained the required permit for
hazardous waste incinerators from the U.S.
Environmental Protection Agency. However, a
preexisting state statute (passed to keep out an
earlier proposed facility) bans hazardous waste
incinerators within the state of Alabama. In
addition, the Mobile City Council passes an
ordinance banning hazardous waste incinerators
within the city limits.
6
Federalism and the 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 . . .
7
Supremacy Clause (contd)

• Three types of Supremacy Clause Preemption
• If a federal statute says that it preempts state
  and local law, it does (express preemption)
• If there is conflict between statutes, the
  federal controls the issue and the state statute
  is void (conflict preemption)
• Even with no direct conflict, federal law will
  prevail if the issue is one that Congress
  controls exclusively (I.e. if Congress occupies
  the field).
• So, state law prevails only when there is no
  opposing federal law and no exclusive federal
  control.

8
Executive Power

• Article II defines the powers and
  responsibilities of the President -- in general
  he is to enforce the nations laws.
• Appointment -- The president nominates federal
  judges (including Supreme Court Justices) and
  heads of most administrative agencies.
• Legislation -- The president and his advisors can
  propose bills to Congress and the president can
  veto bills from Congress.
• Foreign Policy -- The president coordinates
  international efforts, negotiates treaties and is
  the Commander in Chief of the military, but he
  may not declare war.

9
Protected Rights Free Speech

• The First Amendment of the U.S. Constitution
  states, Congress shall make no law abridging
  the freedom of speech.
• Speech includes non-verbal communication, such as
  signs, symbols and acts (like flag-burning).
• Political speech -- about a politician or
  political process is protected, and can be found
  illegal only if it is intended and likely to
  promote lawless conduct. Reasonable time, place
  and manner regulation is permitted.

10
Protected Rights Free Speech

• Obscenity is not protected by the Constitution.
• Commercial speech -- designed to propose a
  commercial transaction -- is regulated more
  strictly than other speech and may be outlawed if
  false or misleading.
• Bad Frog Brewery v. NYS Liquor Auth.

11
Protected Rights Religion

• The First Amendment of the U.S. Constitution also
  guarantees the free exercise or religion, and
  prohibits government from establishing an
  official religion
• Free exercise
• Separation of church and state

12
Fifth Amendment

• Privilege against self-incrimination
• rights of the accused (next week)
• Verniero v. Beverly Hills Ltd., Inc.

13
Fifth Amendment

• No person shall be deprived of life, liberty,
  or property without due process of law nor shall
  private property be taken for public use, without
  just compensation.
• The Takings Clause -- when the government takes
  private property for public use, it must pay a
  fair price.
• Regulatory Takings the Lucas and Dolan cases

14
14th Amendment -- Equal Protection

• No state shall deny to any person within its
  jurisdiction the equal protection of the laws.
• What sort of distinctions may government make?

• Usually acceptable -- based on economic and
  social relations (e.g.,income tax)
• Sometimes acceptable -- based on gender if there
  is a good reason.
• Never acceptable -- based on race, ethnicity and
  fundamental rights are almost never upheld.
• rational basis test WHS Realty v. Morristown

15

• What is international law?

• Treaties (e.g., Law of the Sea GATT), and
• Rules developed by international organizations
  created by treaties (e.g., U.N. WTO)

How is international law enforced? Is it
different in some fundamental way from other
sources of law like constitutions, statutes,
regulations, and common law?
16

• Unlike federal or state statutory law, judge-made
  common law, or administrative law, international
  law is not created by a sovereign. That is,
  international laws are not effective until
  ratified by sovereign national governments.
• However, their indirect effect (through national
  enforcement) can be significant and profound.

17

• International Law
• What is the significance of
• the principle of comity
• the act of state doctrine
• sovereign immunity

18

• GATT/WTO
• Regional Agreements
• NAFTA free trade
• EU trade plus ever closer union
• Do member states give away their sovereignty when
  they join arrangements like these? If so, how?