Constitutional Law September 7, 2004

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Constitutional LawSeptember 7, 2004

• Other Federal Powers
• Relation to Commerce Power
• Reconstruction Amendments
• Spending Power
• Introduction
• Dole
• Sabri
• Preemption
• Overview
• Express Preemption
• Occupation of the Field
• Conflict Preemption

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Recap

• Other Powers the Commerce Power
• Reconstruction Amendments
• C P Test
• Private Actions
• Remedies vs. States
• Spending
• Regulatory Effects
• The Dole Test for Conditional Spending

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C. Sabri

• Federal Bribery Statute
• Officials in programs w/ Fed.
• No jurisdictional nexus to
• Necessary and Proper to Spending
• Prevent misappropriation
• Fungible
• Dole inapplicable (direct regulation)

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Fed. Powers Comparison
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Federal PreemptionI. Introduction

• Federal Supremacy
• The Supremacy Clause
• McCulloch
• Forms of Preemption
• Express
• Implied
• Occupation of the Field
• Conflict
• Statutory Construction
• Legislative Intent
• Presumption Against Preemption

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II. Express Preemption

• Issues
• Scope of preemption
• Whether state law is within scope
• Cipollone (cigarette warnings)
• Preemption previsions (link)
• Within scope
• Tort remedies requirements
• Failure to warn, etc., preempted
• Savings Clauses

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III. Occupation of the Field

• Is the field occupied? (Hines)
• Pervasiveness of federal regulation
• Dominant federal interest
• Object and purpose reveal intent
• W/in the field? (Pacific Gas)
• Safety Occupied
• Economic Moratorium OK

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III. Conflict Preemption A. Impossibility of
Compliance

• Limited Application
• Cannot Comply with Both
• Not Just Different Standards
• Rare
• Florida Lime Avocado Growers
• Pacific Gas
• May Still Be Obstacle

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B. Obstacle to Purposes

• Pacific Gas
• Development of nuclear power?
• Not at all costs
• Examples of preemptive purposes
• Careful balancing of policies
• Uniform standards
• Overriding policy

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Supremacy Clause, Art. VI, 2
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, any Thing in
the Constitution or Laws of any State to the
Contrary notwithstanding.
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McCulloch
States have no power, by taxation or otherwise,
to retard, impede, burden, or in any manner
control, the operations of the constitutional
laws enacted by Congress . . .
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Preemption Provisions
1965 No statement relating to smoking and
health shall be required in the advertising of
any cigarettes the packages of which are labeled
in conformity with the provisions of this Act.
1969 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
Act.