COMMERCE CLAUSE

BASIC ARCHITECTURE OF CONSTITUTIONAL ARGUMENTS Pertaining to the Exercise of Fed power: 1) defined scope of enumerated powers 2) structure: separation of powers and federalism 3) Limitations (liberty, bill of rights, etc.) Pertaining to the Exercise of state power: 1) (police powers) 2) structure: supremacy (preemption) 3) limitations (liberty, bill of rights etc.)

FOREIGN AFFAIRS Powers over Foreign Affairs Commerce with foreign nations War powers Treaty power Non-treaty agreements with foreign nations War Powers (Necessary & Proper Clause) Preparedness for war Action to prevent war Initiate or respond to war Wage war End war Ameliorate post-war effects The Treaty Power Agreement with a foreign nation or nations Topic of interest to the community of nations (Complies with treaty ratification procedures) The Treaty Power (Necessary & Proper Clause) Non-self executing treaty may be enforced by Congress Non-Treaty Intl Agreements Pursuant to congressional authorization Pursuant to a treaty authorization Independent constitutional authority of the Executive Branch (Executive Agreement) Executive Agreements Pursuant to the Presidents inherent power to represent the nation in foreign affairs Pursuant to the Presidents power to recognize foreign nations Pursuant to the Presidents power as Commander-in-Chief (Pursuant to the Presidents responsibility to faithfully execute the laws)

SFIB v. SEBELIUS Patient Protection and Affordable Care Act Individual Mandate Medicaid Expansion Chief Justice Roberts Opinion: Part I Background (5-person majority) Part II Anti-Injunction Act (5-person majority) Part IIIA1 = Commerce Clause (CJ) Part IIIA2 = Necessary & Proper Clause (CJ) Part IIIB = Taxing Power (intro) (CJ) Part IIIC = Taxing Power Applied (5-p majority) Part IV = Spending Power (3-person plurality) Justice Ginsburg, concurring & dissenting (plus 3): Part IA = The Health Care Market Part IB = Impact of the Uninsured Part IC = States Cant Solve Alone Part ID = Congressional Response Part IIA = Future Contingencies Part IIB = Commerce Principles Part IIC = Commerce Applied Part IID = Critique of CJ Roberts Part IIIA = Necessary & Proper Clause Part IV = Concurs re Taxing Power & questions the relevance of CJs Commerce Power discussion Part V Medicaid Expansion Justice Scalia, dissenting (plus 3): Intro = Summary Part IA = Necessary & Proper Part IB = Commerce Clause Part II = Taxing Power Part IV = Spending Power Part V = Severance The Court Majority: Individual Mandate Not within the defined scope of the Commerce Power (5/4) CJ plus Scalia 4-person concurrence Not N&P to the exercise of the Commerce Power (5/4) CJ plus Scalia 4person concurrence

Within the defined scope of the Taxing Power (5/4) CJ plus Ginsburg 4person concurrence

Medicaid Expansion Beyond the defined scope of the Spending Power (coercion) (5/4) CJ, joined by Breyer & Kagan, plus Scalia 4-person concurrence Severable (5/4) CJ plus Ginsburg 4-person concurrence

SUPREMACY & PREEMPTION Article VI, cl.2 McCulloch Gibbons Preemption Conflict Preemption Field Preemption Conflict Preemption Physical Impossibility OR Obstacle to the accomplishment of the congressional objective Field Preemption express and implied Express field preemption Text reveals intent to preempt Implied field preemption Intent inferred from the nature of the federal scheme Implied Field Preemption Police powers not overcome unless intent is clear Pervasiveness of the federal scheme Dominant federal interest Object of federal regulation may reveal a purpose to preempt Legislative history

Arizona v. US
Arizonas SB 1070: Misdemeanor for failure to comply with federal alien-registration requirements Misdemeanor for unauthorized alien to work Arrest w/o warrant for any public offense that officer believes renders individual removable Verification requirement with respect to certain stop, detentions and arrests Section 3: Willful failure to complete and carry an alien registration document Field Preemption Conflict Preemption Section 5(c): Misdemeanor for an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor. Field Preemption Conflict Preemption Section 6: a state officer without a warrant, may arrest a person if the officer has PC to believe ... [the person] has committed any public offense that makes [him] removable from the US. Field Preemption Conflict Preemption Section 2(B): state officers must make a reasonable attempt ... to determine the immigration status of any person they stop, detain, or arrest on some other legitimate basis if reasonable suspicion exists that the person is an alien and is unlawfully present in the US.... [A]ny person arrested shall have the persons immigration status determined before the person is released. Field Preemption Conflict Preemption