Law Commons^™

Constitutional Resilience, Shannon M. Roesler

Washington and Lee Law Review

Since the New Deal era, our system of constitutional governance has relied on expansive federal authority to regulate economic and social problems of national scale. Throughout the twentieth century, Congress passed ambitious federal statutes designed to address these problems. In doing so, it often enlisted states as regulatory partners—creating a system of shared governance that underpins major environmental statutes, such as the Clean Water Act and the Clean Air Act. These governance structures remain important today as we seek to adapt our laws and institutions to the serious disruptions of climate change. But recent Supreme Court decisions challenge this long-established …

Convenient For Who? Apportioning State Income Taxes In The Context Of Remote Work, Brandon Smith

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

The Dormant Commerce Clause As A Way To Combat The Anti-Competitive, Anti-Transmission-Development Effects Of State Right Of First Refusal Laws For Electricity Transmission Construction, Walker Mogen

Michigan Journal of Environmental & Administrative Law

To quickly decarbonize the electricity grid, new sources of renewable energy have to be connected to the grid. To connect these sources of energy to the grid, the rate of construction of new electricity infrastructure must increase quickly. The process to construct new electricity transmission infrastructure, however, is filled with chokepoints that slow its construction. State right of first refusal laws for transmission construction are one the things slowing the build out of the grid. These laws limit which companies can construct new transmission infrastructure to utilities and other companies already operating transmission infrastructure in a state. This Note, using …

Ending The Economic War Among States, Nathan Altstadt

Cleveland State Law Review

The United States is under siege; however, the cause is not a foreign adversary. Rather, infighting among states to attract and retain big businesses is jeopardizing the Nation’s economic prosperity.

States compete for businesses, using tax incentives, hoping to capitalize on the benefits these businesses represent. Benefits include improved job growth numbers, a future increase in tax revenue, or, simply, elevated political clout. While competition can lead to a more efficient use of resources, unregulated competition between states for businesses does not illustrate this theory. A national auction for a business, where states are blind to rival offers, may, and …

Slavery And The History Of Congress's Enumerated Powers, Jeffrey Schmitt

Arkansas Law Review

In his first inaugural address, President Abraham Lincoln declared, “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.” Like virtually all Americans before the Civil War, Lincoln believed in what historians call the “national consensus” on slavery. According to this consensus, Congress’s enumerated powers were not broad enough to justify any regulation of slavery within the states. Legal scholars who support the modern reach of federal powers have thus conventionally argued …

Put A Cork In It: The Use Of H.R. 161 To End Direct Wine Shipping Throughout The States Once And For All, Victoria H. Jones

Journal of Food Law & Policy

Due to Congress' recent agenda, oenophiles throughout the country are up in arms about the possible threat to their beloved wine. Wine lovers and other alcohol enthusiasts face the very real fear that access to their favorite products may soon be heavily restricted. This is in large part attributed to the fact that House Resolution 1161 would effectively change the ways in which states regulate alcohol shipment. The possible implications of this bill range from the forced shutdown of many wineries and distilleries due to lack of funding, to the smaller effects of regulation such as the inability of customers …

Pub. L. No. 86-272 And The Anti-Commandeering Doctrine: Is This Anachronism Constitutionally Vulnerable After Murphy V. Ncaa?, Matthew A. Melone

Michigan Business & Entrepreneurial Law Review

State taxing authority suffers from little of the structural impediments that the Constitution imposes on the federal government’s taxing power but the states’ power to tax is subject to the restrictions imposed on the exercise of any state action by the Constitution. The most significant obstacles to the states’ assertion of their taxing authority have been the Due Process Clause and the Commerce Clause. The Due Process Clause concerns itself with fairness while the Commerce Clause concerns itself with a functioning national economy. Although the two restrictions have different objectives, for quite some time both restrictions shared one attribute—a taxpayer …

Symposium: Pandemics And The Constitution: Why The Special Needs Doctrine Is The Most Appropriate Fourth Amendment Theory For Justifying Police Stops To Enforce Covid-19 Stay-At-Home Orders, Henry F. Fradella

ConLawNOW

Despite the fact that the steps the federal and state governments take to curtail the spread of the viral infection are presumably taken in the best interest of public health, governmental actions and actors must comply with the U.S. Constitution even during a pandemic. Some public health measures, such as stay-at-home orders, restrict the exercise of personal freedoms ranging from the rights to travel and freely associate to the ability to gather in places of worship for religious services. This Essay explores several completing doctrines that might justify the authority of law enforcement to stop people who are out of …

Evaluating Originalism: Commerce And Emoluments, John Vlahoplus

St. John's Law Review

(Excerpt)

This Article suggests that originalist theories share a core focus that meaningfully competes with pluralist theories. The contest is real and appears in centuries of debates within Anglo-American and civil law. The Article locates the Anglo-American origins of originalism in a novel seventeenth-century method of legal interpretation used to achieve a specific political end: to stifle opposition to the union of Scottish and English subjects of King James after his accession to the English crown in 1603. It details the novel method and the competing traditional method of English legal interpretation. It then evaluates originalist interpretations of the Commerce …

The Dormant Commerce Clause And State Clean Energy Legislation, Kevin Todd

Michigan Journal of Environmental & Administrative Law

This Note analyzes recent litigation concerning the constitutionality of state renewable portfolio standards (RPSs) and similar environmental legislation designed to promote clean energy. It begins with a discussion of the current state of both federal and state responses to climate change. From there, it analyzes several legal challenges to state RPSs and other climate-related laws that focus on potential violations of the dormant Commerce Clause. It concludes with a brief exploration of how these cases fit the history and purpose of the dormant Commerce Clause. The Note argues that a narrow view of the doctrine is consistent with the purpose …

Physical Presence Is In No Wayfair!: Addressing The Supreme Court’S Removal Of The Physical Presence Rule And The Need For Congressional Action, Claire Shook

Dickinson Law Review (2017-Present)

The Commerce Clause of Article I grants Congress the power to regulate commerce. In the past, an entity had to have a physical presence in a state for that state to impose taxes on the entity. Due to the changing landscape of online businesses, the U.S. Supreme Court decided in South Dakota v. Wayfair in June 2018 to remove the physical presence rule as it applied to the Commerce Clause analysis of state taxation. The Wayfair decision’s ramification is that states can now impose taxes on businesses conducting sales online without having any physical presence in those states. While the …

Deference Vs. Evidence: An Exploration Of The Appropriate Application Of Putative Benefits To The Pike Balancing Test, Nathan Gniewek

Catholic University Law Review

The Supreme Court has long done battle with the intricacies and subtle implications of the interplay between state and federal power with regard to commerce. Although the Supreme Court crafted the Pike balancing test in 1970, that test has proven a jurisprudential headache due to a lack of a solid definition of the key phrase “putative benefits.”

Since the Supreme Court decided Pike v. Bruce Church, circuit courts have been unable to apply the term consistently when making use of the Pike test, generating a massive circuit split. This Comment teases out the differing treatment of states’ burden of …

Hb 61 - Revenue And Taxation, Taylor N. Armstrong, Caitlin E. Correa

Georgia State University Law Review

The Act amends Georgia’s sales tax statute to shift the burden for the collection of sales taxes on online sales from the purchaser to the retailer.

How The Prohibition On "Under-Ruling" Distorts The Judicial Function (And What To Do About It), A. Christopher Bryant, Kimberly Breedon

Pepperdine Law Review

Lower courts face a dilemma when forced to choose between older Supreme Court precedent that directly controls the present legal dispute and an intervening Supreme Court ruling that relies on rationale which erodes or undermines the rationale of the direct precedent. Nearly thirty years ago, the Supreme Court announced a rule requiring lower courts to follow the older precedent and disregard any inconsistency resulting from intervening rulings, effectively barring lower courts from “under-ruling” the older Supreme Court precedent. This prohibition on “under-ruling,” here referred to as the “Agostini Rule,” reflects a departure from the core rule-of-law values requiring similar cases …

A Unifying Approach To Nexus Under The Dormant Commerce Clause, Adam B. Thimmesch

Michigan Law Review Online

The Supreme Court has long debated the existence and scope of its power to restrict state regulation under the so-called negative or dormant Commerce Clause. The Court took a broad view of that power in the late 1800s, but it has refined and restricted its role over time. One area where the Court has continued to wield considerable power, however, has been in the context of state taxes. Specifically, the Court has continued to restrict states' power to compel out-of-state vendors to collect their sales and use taxes based on a physical-presence "nexus" rule. That rule dates back to the …

Liberty Of Palate, Samuel R. Wiseman

Maine Law Review

As lawmakers concerned with problems as diverse as childhood obesity, animal cruelty, and listeria have increasingly focused their attention on consumers, legal issues surrounding food choice have recently attracted much broader interest. Bans on large sodas in New York City, fast food chains in South Los Angeles, and foie gras in California and Chicago have provoked national controversy, as have federal raids on raw milk sellers. In response, various groups have decried restrictions on their ability to consume the food products of their choice. A few groups have organized around the principle of what we might call liberty of palate, …

Preempting Humanity: Why National Meat Ass'n V. Harris Answered The Wrong Question, Pamela Vesilind

Maine Law Review

The 2011-12 Supreme Court term was notable for high profile cases about state undocumented immigrant law, GPS-enabled police searches,chronic liars claiming military honors, and the constitutionality of the Affordable Health Care Act. As such, it is unsurprising that the decision in National Meat Ass’n v. Harris,notable for its unanimity and matter-of-fact concision, received relatively little attention from the media or the academy. Nevertheless, National Meat is a bellwether federalism opinion, the significance of which has been widely overlooked. At first blush, the legal question in National Meat appeared to be relatively unremarkable: whether the USDA’s slaughterhouse and packing plant regulations …

The Constitution And Slavery Overseas, George Rutherglen

Seattle University Law Review

This Article examines the resources available under American law to address the issues raised by extraterritorial enforcement of one of the most widely recognized human rights—to be free from physical coercion and the loss of liberty. Part I reviews the history of adoption, interpretation, and enforcement of the Thirteenth Amendment. The scope of the Amendment gradually expanded through the joint efforts of Congress and the Supreme Court, resulting in a prohibition that now goes beyond involuntary servitude to all forms of peonage, whether supported by state or private action. Part II then looks to other sources of congressional power—the Commerce …

The Internet Tax Freedom Act: Necessary Protection Or Deferral Of The Problem?, Timothy Fallaw

Journal of Intellectual Property Law

No abstract provided.

The Federalism Cases, Leon Friedman

Touro Law Review

No abstract provided.

Putting The Commerce Back In The Dormant Commerce Clause: State Taxes, State Subsidies, And Commerce Neutrality, Ryan Lirette, Alan D. Viard

Journal of Law and Policy

The unpredictability of the Supreme Court’s dormant Commerce Clause (“DCC”) jurisprudence continues to draw trenchant criticism from commentators and the Justices themselves, as the Court remains unable to explain which state taxes and subsidies impede interstate commerce. We show that these problems can be resolved by a Commerce Neutrality framework requiring that state taxes and subsidies provide a combined treatment of inbound and outbound transactions at least as favorable as their treatment of intrastate transactions. This simple test has an economic foundation because taxes and subsidies that violate it create incentives to engage in intrastate rather than interstate transactions. The …

Wyoming V. Oklahoma: "[M]Isguided Exercise Of Discretion", Heather N. Sigrist

Akron Law Review

The purpose of this casenote is to analyze the Supreme Court's reasoning in Wyoming v. Oklahoma. Section II of this casenote reiterates background law in the area of standing, exclusive original jurisdiction, and the negative Commerce Clause. Section II (A) recapitulates the doctrine of standing to sue. Section II (B) discusses the Supreme Court's exclusive original jurisdiction. Section II (C) summarizes the negative Commerce Clause. Section III presents the statement of the case. Section IV analyzes the Supreme Court's decision in Wyoming v. Oklahoma.

Section IV (A) criticizes the Court for failing to delineate a solid standing causation analysis. Section …

Direct Shipment Of Wine, The Commerce Clause And The Twenty-First Amendment: A Call For Legislative Reform, Lloyd C. Anderson

Akron Law Review

Many states prohibit out-of-state sellers of wine from shipping their product directly to consumers, but permit in-state wine producers to engage in such direct shipment. Recent lower federal court decisions have cast serious constitutional doubt upon the authority of a state to discriminate in this manner against wine producers and sellers from other states in favor of its own domestic wine industry. This issue appears headed for the Supreme Court of the United States in the near future. The outcome cannot be foreseen with certainty, but it is likely the Court will find this discrimination unconstitutional.

‘Twas not always so. …

Jon & Kate Plus The State: Why Congress Should Protect Children In Reality Programming, Dayna B. Royal

Akron Law Review

One is forced to wonder whether any laws exist to protect minors whose personal lives are laid bare as their own parents thrust them into the paparazzi’s spotlight. This article addresses this question, considering the best legal regime for regulating employment of children in reality programming, and suggesting an alternative to the status quo. To that end, Part II begins by identifying the various harms reality programming causes, arguing that participating in reality programming is detrimental both to the individual children who participate and to society in general. Part III surveys the current legal landscape, addressing first the federal law …

House Of Cards: How Rediscovering Republicanism Brings It Crashing Down, Jonathan E. Maddison

Catholic University Law Review

Using Frank Underwood’s maniacal political journey in the Netflix series House of Cards as an example of what is wrong with American politics, this article argues that the Supreme Court’s misapplication of First Amendment principles in Citizens United and other key campaign finance cases plays a large and problematic role. Providing an extensive historical overview of republicanism and First Amendment jurisprudence, this article suggests that a return to republican ideals, while not perfect, is both the solution and proper tool of analysis to be used by the Supreme Court for campaign finance cases and beyond.

Dr. Carb Or: How I Learned To Stop Worrying About The Feds And Love States’ Rights, Dan Strong

Washington and Lee Journal of Energy, Climate, and the Environment

Climate change is one of the largest environmental problems the world is currently facing. At the forefront of the climate change issue is the problem of carbon emissions. Environmentalists were hopeful that a national regulatory structure would be created with the enactment of the Clean Air Act in the 1970s. Since its enactment, however, it is clear the Clean Air Act was not the solution to the national carbon emissions problem environmentalists were hoping for. With the federal government failing to act, states have taken it upon themselves to regulate carbon emissions. California, with its enactment of the California Low …

Treading Water: Can Municipal Efforts To Condemn Underwater Mortgages Prevail?, Michael S. Moskowitz

Pepperdine Law Review

No abstract provided.

The Constitutionality Of California's Cap-And-Trade Program And Recommendations For Design Of Future State Programs, Thomas Alcorn

Michigan Journal of Environmental & Administrative Law

Global climate change has emerged as one of the greatest challenges of our time. While action has stalled on the national stage, states have started to take action to reduce their greenhouse gas emissions. Confronted with the risk of severe impacts that could cost it tens of billions of dollars annually by the end of the century, California has taken the lead and developed the first comprehensive cap-and-trade program in the nation and seeks to achieve significant reductions in the greenhouse gas emissions associated with its economy. The success of California’s program will determine whether other states and the federal …

The Dormant Commerce Clause And California's Low Carbon Fuel Standard, Kathryn Abbott

Michigan Journal of Environmental & Administrative Law

California’s Low Carbon Fuel Standard (LCFS), enacted as part of the State’s pioneering Global Warming Solutions Act (AB 32), purports to regulate the amount of carbon emissions associated with fuels consumed in the state. Part of this scheme involves assigning numeric scores to vehicle fuels reflecting the amount of carbon emissions associated with their production, transportation, and use. The scores are part of a “cap-and-trade” scheme to lower the state’s total amount of carbon emissions associated with fuel use. Out-of-state industry groups brought a challenge in the United States District Court for the Eastern District of California, alleging that the …

The Likely Impact Of National Federation On Commerce Clause Jurisprudence, Robert J. Pushaw Jr., Grant S. Nelson

Pepperdine Law Review

In National Federation of Independent Businesses v. Sebelius, the Supreme Court exhaustively analyzed Congress’s constitutional power to enact the watershed Patient Protection and Affordable Care Act (ACA or “Obamacare”). The ACA imposes a “shared responsibility requirement,” popularly known as the “Individual Mandate” (IM), which forces Americans to buy medical insurance or pay a “penalty.” The ACA’s text and legislative history, as well as the public defenses of it by President Obama and his supporters, consistently described the IM as a valid exercise of Congress’s power “[t]o regulate Commerce . . . among the several States.” This reliance on the Commerce …