1 00:00:00,040 --> 00:00:04,000 Welcome back to the Deep Dive. Our mission today is pretty 2 00:00:04,000 --> 00:00:06,120 specialized, but absolutely critical. 3 00:00:06,120 --> 00:00:09,280 If you're prepping for a Con law final or, you know, staring down 4 00:00:09,280 --> 00:00:12,000 the bar exam, you know the toughest questions are always 5 00:00:12,000 --> 00:00:14,440 right there at the intersection of state and federal power. 6 00:00:14,520 --> 00:00:16,680 That's right. And today we're doing a really 7 00:00:16,680 --> 00:00:19,840 focused deep dive. Think of this as your ultimate 8 00:00:19,840 --> 00:00:22,520 prep session. We are going to connect the dots 9 00:00:22,520 --> 00:00:26,160 between foundational black letter law, things like due 10 00:00:26,160 --> 00:00:30,960 process, and the huge modern shifts from cases like NFIB 11 00:00:30,960 --> 00:00:35,480 Murphy and the big one, National Pork Producers Council V Ross. 12 00:00:35,600 --> 00:00:36,520 Our. Goal is simple. 13 00:00:36,520 --> 00:00:39,640 We want to extract the key rules, nail the tests, and 14 00:00:39,640 --> 00:00:42,520 really clarify the doctrinal fights that define federalism 15 00:00:42,520 --> 00:00:44,400 today. This whole balance between 16 00:00:44,400 --> 00:00:47,480 federal supremacy and state sovereignty, it's classic exam 17 00:00:47,480 --> 00:00:48,920 territory. We're here to give you the 18 00:00:48,920 --> 00:00:50,880 shortcut straight to the winning argument. 19 00:00:51,040 --> 00:00:52,760 To do that you have to start at the foundation. 20 00:00:52,800 --> 00:00:54,440 I mean, you have to start with individual rights. 21 00:00:54,440 --> 00:00:57,240 No matter what the government wants to do, its power is always 22 00:00:57,240 --> 00:00:58,640 limited by the rights of the person. 23 00:00:58,960 --> 00:01:02,520 OK, so let's unpack that with a quick but deep refresher on the 24 00:01:02,520 --> 00:01:04,560 due process clauses. We're talking about the Fifth 25 00:01:04,560 --> 00:01:07,040 Amendment for the feds and the 14th for the states. 26 00:01:07,240 --> 00:01:09,400 Right, and the core rule sounds simple. 27 00:01:09,720 --> 00:01:12,920 Governments can't deprive any person of life, liberty, or 28 00:01:12,920 --> 00:01:15,040 property without due process of law. 29 00:01:15,720 --> 00:01:18,840 But that one sentence, well, it splits constitutional law into 30 00:01:18,840 --> 00:01:21,840 two massive fields that you absolutely have to keep separate 31 00:01:21,840 --> 00:01:24,160 on an exam. First up is procedural due 32 00:01:24,160 --> 00:01:26,520 process. This is all about fair process. 33 00:01:26,760 --> 00:01:30,000 It's the how of a deprivation. So if the government wants to 34 00:01:30,000 --> 00:01:33,320 take away a protected interest, say your public benefits or a 35 00:01:33,320 --> 00:01:37,080 professional license, what steps does it have to take to make it 36 00:01:37,080 --> 00:01:38,400 fair? Exactly. 37 00:01:38,720 --> 00:01:41,080 And the analysis is a three-step process. 38 00:01:41,080 --> 00:01:43,920 First you ask is there a protected interest, life, 39 00:01:43,920 --> 00:01:47,400 liberty or property? Second, was there a deprivation 40 00:01:47,400 --> 00:01:49,800 by the government? And 3rd, and this is the key 41 00:01:49,800 --> 00:01:51,640 part, what procedures are required? 42 00:01:52,000 --> 00:01:54,680 And to answer that, you have to apply the Matthews V Eldridge 43 00:01:54,680 --> 00:01:57,040 factors. The classic balancing test? 44 00:01:57,280 --> 00:01:59,640 Let's name those factors because this is pure Xan gold. 45 00:01:59,920 --> 00:02:01,840 What are the three things the court has to balance? 46 00:02:02,040 --> 00:02:05,400 OK. So first, the private interest 47 00:02:05,400 --> 00:02:07,600 that's affected, I mean how important is this thing to the 48 00:02:07,600 --> 00:02:10,160 individual? Second, you look at the risk of 49 00:02:10,160 --> 00:02:13,200 an erroneous deprivation through the procedures they're currently 50 00:02:13,200 --> 00:02:16,240 using and what value you know additional safeguards might 51 00:02:16,240 --> 00:02:18,200 have. Could a hearing prevent a 52 00:02:18,200 --> 00:02:19,520 mistake? And the third. 53 00:02:19,800 --> 00:02:21,600 The third is the government's interest. 54 00:02:21,640 --> 00:02:25,000 That includes the fiscal and administrative burdens that the 55 00:02:25,000 --> 00:02:28,160 extra procedures would create. You're balancing the person's 56 00:02:28,160 --> 00:02:30,720 need against the government's burden to figure out what 57 00:02:30,720 --> 00:02:33,280 process is due. So that's procedural due 58 00:02:33,280 --> 00:02:37,360 process, but then you have the really contentious area, 59 00:02:37,520 --> 00:02:40,000 substantive due process. This isn't about the how, it's 60 00:02:40,000 --> 00:02:41,520 about the what. It says. 61 00:02:41,520 --> 00:02:43,480 There are some fundamental rights the government can't 62 00:02:43,480 --> 00:02:46,200 interfere with at all, no matter how good the procedures are. 63 00:02:46,360 --> 00:02:49,560 And this is where the standard of review is everything, and 64 00:02:49,560 --> 00:02:52,840 it's totally binary. If a law infringes on a 65 00:02:52,840 --> 00:02:55,800 fundamental right, and we're talking about rights deeply 66 00:02:55,800 --> 00:02:58,480 rooted in history, like marriage, contraception, 67 00:02:58,480 --> 00:03:02,240 parental rights, the government has to satisfy strict scrutiny. 68 00:03:02,400 --> 00:03:05,000 The law have to be necessary for a compelling government 69 00:03:05,000 --> 00:03:07,520 interest. Which is almost always fatal for 70 00:03:07,520 --> 00:03:09,920 the law. Almost always, but for non 71 00:03:09,920 --> 00:03:12,720 fundamental rights, which is basically all economic and 72 00:03:12,720 --> 00:03:15,840 social regulation, you just apply rational basis review. 73 00:03:16,200 --> 00:03:18,760 The law only has to be rationally related to a 74 00:03:18,760 --> 00:03:21,960 legitimate government purpose. And here's where you have to 75 00:03:21,960 --> 00:03:25,040 know about the Lochner era. Historically, we think of 76 00:03:25,040 --> 00:03:29,000 rational basis as super differential now, but it wasn't 77 00:03:29,000 --> 00:03:31,360 always. Back in the day, the court used 78 00:03:31,360 --> 00:03:35,040 a really muscular version of substantive due process to 79 00:03:35,040 --> 00:03:37,600 protect a freedom of contract. Exactly. 80 00:03:37,600 --> 00:03:40,000 They used it to strike down all sorts of state laws, maximum 81 00:03:40,000 --> 00:03:43,240 hours, minimum wage. It was really about a judicial 82 00:03:43,240 --> 00:03:45,200 distrust of progressive legislation. 83 00:03:45,200 --> 00:03:48,560 So when the court abandoned Lochner, it was this huge move 84 00:03:48,560 --> 00:03:50,840 toward judicial restraint in economic matters. 85 00:03:51,400 --> 00:03:53,920 The court basically said, look, debates about the minimum wage 86 00:03:53,920 --> 00:03:56,120 belong in the Legislature, not here. 87 00:03:56,400 --> 00:03:59,880 So when you see a modern rational basis case on an exam, 88 00:03:59,960 --> 00:04:02,720 you should immediately think this is the anti locker rule. 89 00:04:02,720 --> 00:04:04,400 If it's economic, the court's going to uphold it. 90 00:04:04,600 --> 00:04:07,520 The real action and substantive due process today is all about 91 00:04:07,520 --> 00:04:09,600 those personal fundamental rights. 92 00:04:09,720 --> 00:04:11,520 OK, so now let's make that shift you mentioned. 93 00:04:12,080 --> 00:04:15,160 We're moving from protecting individuals from government to 94 00:04:15,160 --> 00:04:17,200 managing the boundaries between governments. 95 00:04:17,720 --> 00:04:19,600 This is all about the Supremacy Clause. 96 00:04:19,839 --> 00:04:23,480 Federal law preempts contrary state law. 97 00:04:24,000 --> 00:04:27,960 And preemption has two basic slavers, express and implied. 98 00:04:28,240 --> 00:04:31,120 Let's start with express. That's when Congress just comes 99 00:04:31,120 --> 00:04:34,920 out and says in the statute, we are preempting state law. 100 00:04:35,040 --> 00:04:36,680 Right. But what's funny is that even 101 00:04:36,680 --> 00:04:38,840 when it's explicit, the fight is never over. 102 00:04:38,880 --> 00:04:41,840 The litigation just shifts to the scope of that preemption. 103 00:04:42,120 --> 00:04:44,920 Did Congress mean to wipe out the whole field, or just this 104 00:04:44,920 --> 00:04:49,000 one little corner of it? The courts spend a ton of time 105 00:04:49,000 --> 00:04:51,440 trying to figure out what Congress actually intended. 106 00:04:51,480 --> 00:04:53,640 And then there's implied preemption, where you have to 107 00:04:53,640 --> 00:04:56,680 infer Congress's intent. And that breaks down into two 108 00:04:56,680 --> 00:04:59,120 main types. The 1st is field preemption. 109 00:04:59,400 --> 00:05:02,360 This is where Congress has legislated so comprehensively in 110 00:05:02,360 --> 00:05:05,520 a particular area that you can just infer they intended to 111 00:05:05,520 --> 00:05:07,320 leave no room for the states to act. 112 00:05:07,480 --> 00:05:10,080 What are some classic examples of that fields where it's just 113 00:05:10,080 --> 00:05:13,480 assumed to be all federal? The classic examples are areas 114 00:05:13,480 --> 00:05:15,840 where the federal interest is just overwhelming. 115 00:05:16,000 --> 00:05:19,320 Think foreign affairs, immigration, nuclear safety. 116 00:05:19,800 --> 00:05:22,440 You know, if a state tried to pass its own stricter safety 117 00:05:22,440 --> 00:05:25,200 rules for a nuclear power plant, that law would almost certainly 118 00:05:25,200 --> 00:05:27,560 be preempted. Federal government has occupied 119 00:05:27,560 --> 00:05:29,800 that entire field. The second type of implied 120 00:05:29,800 --> 00:05:32,920 preemption is conflict preemption, and this one shows 121 00:05:32,920 --> 00:05:36,240 up in 2 critical ways. First, you have impossibility. 122 00:05:36,280 --> 00:05:39,280 This is the cleanest one. It's when it is physically 123 00:05:39,280 --> 00:05:42,200 impossible to comply with both the state law and the federal 124 00:05:42,200 --> 00:05:44,160 law. And for an exam you need to 125 00:05:44,160 --> 00:05:47,160 remember that means literally impossible. 126 00:05:47,480 --> 00:05:49,680 And this is where we have to talk about the drug labeling 127 00:05:49,680 --> 00:05:52,160 cases. The difference between Wyeth and 128 00:05:52,160 --> 00:05:54,760 PLIVA is such a high yield distinction. 129 00:05:54,880 --> 00:05:57,840 It's a perfect example. In Wyeth, a brand name drug 130 00:05:57,840 --> 00:06:01,040 maker was sued under state tort law for not having strong enough 131 00:06:01,040 --> 00:06:03,680 warnings. The Supreme Court said the state 132 00:06:03,680 --> 00:06:07,080 claim could go forward because federal FDA regulations actually 133 00:06:07,080 --> 00:06:09,360 allowed the manufacturer to strengthen its label 134 00:06:09,360 --> 00:06:12,800 unilaterally, so it wasn't impossible to comply with both. 135 00:06:12,920 --> 00:06:16,200 But then came PLIVA, the generic drug case. 136 00:06:16,320 --> 00:06:19,160 Right. And in PLIV, the court found 137 00:06:19,160 --> 00:06:22,160 that generic manufacturers are under completely different 138 00:06:22,160 --> 00:06:25,040 federal rules. Federal law requires their 139 00:06:25,040 --> 00:06:28,160 labels to be identical to the brand name drugs label. 140 00:06:28,360 --> 00:06:30,680 They are prohibited from changing it on their own. 141 00:06:30,760 --> 00:06:32,640 So for them it actually was impossible. 142 00:06:32,760 --> 00:06:35,800 It was a physical legal impossibility. 143 00:06:35,920 --> 00:06:38,960 They couldn't comply with a state tort judgment demanding a 144 00:06:38,960 --> 00:06:42,560 stronger warning because federal law forbade them from making 145 00:06:42,560 --> 00:06:45,280 that change, so the state law was preempted. 146 00:06:45,560 --> 00:06:48,880 The court itself even admitted the result makes little sense, 147 00:06:49,080 --> 00:06:51,120 but felt bound by the technical regulation. 148 00:06:51,120 --> 00:06:53,680 That's a huge point. The technical regulatory 149 00:06:53,680 --> 00:06:56,920 structure creates a preemption shield for generics that brand 150 00:06:56,920 --> 00:06:59,600 name drugs just don't have. It's a paradoxical result you 151 00:06:59,600 --> 00:07:01,680 have to know. The second type of conflict 152 00:07:01,680 --> 00:07:03,640 preemption is obstacle preemption. 153 00:07:03,880 --> 00:07:06,040 This one's much broader, much murkier. 154 00:07:06,160 --> 00:07:08,960 It's when a state law stands as an obstacle to the 155 00:07:08,960 --> 00:07:12,640 accomplishment and execution of the full purposes and objectives 156 00:07:12,640 --> 00:07:15,080 of Congress. That sounds incredibly vague. 157 00:07:15,240 --> 00:07:17,800 How are you supposed to spot an obstacle on an exam? 158 00:07:17,960 --> 00:07:20,080 You have to look at the purpose of the federal law. 159 00:07:20,720 --> 00:07:24,160 In Heinz, the court struck down a Pennsylvania alien 160 00:07:24,160 --> 00:07:26,920 registration law because Congress had already passed a 161 00:07:26,920 --> 00:07:30,600 comprehensive federal one. The court said Congress wanted a 162 00:07:30,600 --> 00:07:34,280 single uniform national system, especially with World War 2 163 00:07:34,280 --> 00:07:37,640 brewing, so the state law, even if it was trying to do the same 164 00:07:37,640 --> 00:07:40,560 thing, was an obstacle to that uniformity. 165 00:07:40,560 --> 00:07:42,320 It interfered with a national goal. 166 00:07:42,400 --> 00:07:44,880 Exactly. The obstacle was non uniformity 167 00:07:44,880 --> 00:07:47,040 itself. A modern example might be a 168 00:07:47,040 --> 00:07:49,520 state trying to ban its government from contracting with 169 00:07:49,520 --> 00:07:51,520 companies that do business in a certain country. 170 00:07:51,680 --> 00:07:53,800 If that interferes with a federal foreign policy 171 00:07:53,800 --> 00:07:56,720 objective, you have to identify the federal purpose first. 172 00:07:57,280 --> 00:07:59,400 And we should quickly reiterate the presumption against 173 00:07:59,400 --> 00:08:02,040 preemption. The starting point is always 174 00:08:02,360 --> 00:08:07,040 that state police powers, health, safety, welfare are not 175 00:08:07,040 --> 00:08:10,760 preempted unless Congress had a clear and manifest purpose. 176 00:08:10,840 --> 00:08:12,720 That's the first sentence of your analysis. 177 00:08:12,720 --> 00:08:15,240 But you also have to be aware, you know, that many scholars 178 00:08:15,240 --> 00:08:17,240 think that presumption doesn't always carry the day in 179 00:08:17,240 --> 00:08:18,720 practice. You have to be ready to argue 180 00:08:18,720 --> 00:08:21,480 both sides. OK, so we've covered how federal 181 00:08:21,480 --> 00:08:25,240 law limits state power. Now let's slip the whole thing 182 00:08:25,240 --> 00:08:27,960 around. How does state sovereignty limit 183 00:08:27,960 --> 00:08:30,480 federal power? And that brings us right to the 184 00:08:30,480 --> 00:08:33,159 10th Amendment and the anti commandeering doctrine. 185 00:08:33,480 --> 00:08:35,960 The core idea is that the federal government cannot 186 00:08:35,960 --> 00:08:39,799 commandeer or order state legislatures to enact laws or 187 00:08:39,799 --> 00:08:43,039 state executive officials to enforce a federal regulatory 188 00:08:43,039 --> 00:08:45,600 program. This comes from huge cases like 189 00:08:45,600 --> 00:08:48,400 New York, the United States and Prince VUS. 190 00:08:48,680 --> 00:08:53,360 And Murphy VNC AA the sports gambling case really laid out 191 00:08:53,360 --> 00:08:54,960 the justifications for this doctrine. 192 00:08:54,960 --> 00:08:58,400 It gave 3 super clear rationales that are perfect for an essay. 193 00:08:58,520 --> 00:09:00,360 They are fantastic points to make. 194 00:09:00,400 --> 00:09:03,200 First, it protects liberty by keeping a healthy balance of 195 00:09:03,200 --> 00:09:04,920 power. You know, it prevents all the 196 00:09:04,920 --> 00:09:08,080 power from concentrating in Washington, DC 2nd and this is 197 00:09:08,080 --> 00:09:10,200 the big one, it promotes political accountability. 198 00:09:10,240 --> 00:09:12,600 Right, because if Congress forces a state to enact an 199 00:09:12,600 --> 00:09:15,440 unpopular policy, who do the Vaders blame? 200 00:09:15,600 --> 00:09:18,560 They blame the state officials, the governor, they're state 201 00:09:18,560 --> 00:09:20,560 reps. The federal politicians who 202 00:09:20,560 --> 00:09:24,040 wrote the law get to hide it. Totally warps the democratic 203 00:09:24,040 --> 00:09:26,360 process. It lets Congress take credit for 204 00:09:26,360 --> 00:09:30,200 popular ideas, but forces the states to take the heat and pay 205 00:09:30,200 --> 00:09:32,440 the administrative costs. Precisely. 206 00:09:32,680 --> 00:09:34,840 And that's the third justification preventing 207 00:09:34,840 --> 00:09:38,040 Congress from shifting the cost of federal programs on to the 208 00:09:38,040 --> 00:09:41,000 states. Now, Congress isn't powerless. 209 00:09:41,520 --> 00:09:44,560 If it wants states to do something, it has constitutional 210 00:09:44,560 --> 00:09:46,560 ways to get it done without commandeering. 211 00:09:47,080 --> 00:09:49,600 What are its main tools? Well, the first is just straight 212 00:09:49,600 --> 00:09:51,880 up preemption. Congress can use its Commerce 213 00:09:51,880 --> 00:09:55,000 Clause power to regulate private actors, and if that displaces 214 00:09:55,000 --> 00:09:56,520 state law, that's perfectly fine. 215 00:09:57,320 --> 00:10:00,160 The 2nd and more common tool is the Spending Clause. 216 00:10:00,600 --> 00:10:03,640 Congress can attach conditions to federal money to induce 217 00:10:03,640 --> 00:10:05,400 states to adopt certain policies. 218 00:10:05,840 --> 00:10:09,680 But, and this is a huge but, there's a limit, and that limit 219 00:10:09,680 --> 00:10:12,120 was established in NFIB V Sebelius. 220 00:10:12,320 --> 00:10:15,400 The Affordable Care Act case. This is where the court drew the 221 00:10:15,400 --> 00:10:18,720 line between a permissible inducement and unconstitutional 222 00:10:18,720 --> 00:10:21,880 coercion. What did the ACA do that crossed 223 00:10:21,880 --> 00:10:23,840 that line? It was about the Medicaid 224 00:10:23,840 --> 00:10:26,440 expansion. The law threatened to withhold 225 00:10:26,480 --> 00:10:29,680 all of the state's existing Medicaid funding, which for some 226 00:10:29,680 --> 00:10:33,520 states was 10 or 20% of their entire budget, if they didn't 227 00:10:33,520 --> 00:10:36,400 agree to the new expansion. And the court said that was a 228 00:10:36,400 --> 00:10:37,800 gun to the head. Exactly. 229 00:10:37,800 --> 00:10:40,400 It left states with no practical choice. 230 00:10:40,560 --> 00:10:43,200 It turned what was supposed to be a voluntary choice and 231 00:10:43,200 --> 00:10:46,000 inducement into an unconstitutional command. 232 00:10:46,640 --> 00:10:49,600 The key is that you can't threaten to take away huge 233 00:10:49,600 --> 00:10:52,480 existing funds that states are already dependent on. 234 00:10:52,720 --> 00:10:54,880 And there's one other way the federal government can regulate 235 00:10:54,880 --> 00:10:56,600 states, right? The regulation of general 236 00:10:56,600 --> 00:10:58,240 applicability. Correct. 237 00:10:58,520 --> 00:11:01,480 The anti commandeering doctrine only applies when the federal 238 00:11:01,480 --> 00:11:03,760 government is trying to regulate the state as a state. 239 00:11:04,400 --> 00:11:07,960 It does not apply when Congress just even handedly regulates an 240 00:11:07,960 --> 00:11:11,120 activity that both States and private actors are involved in. 241 00:11:11,560 --> 00:11:15,120 So a federal law regulating databases can apply to state 242 00:11:15,120 --> 00:11:18,480 owned databases just like it applies to privately owned ones. 243 00:11:18,480 --> 00:11:21,120 So this all comes to a head in Murphy VNC AA. 244 00:11:21,480 --> 00:11:25,120 The federal law passed PFA made it illegal for a state to 245 00:11:25,120 --> 00:11:28,320 authorize sports gambling. And the court said that was a 246 00:11:28,320 --> 00:11:30,280 direct command to the state legislature. 247 00:11:30,400 --> 00:11:33,360 It was telling them what they could and could not legislate. 248 00:11:33,680 --> 00:11:36,480 That's class classic unconstitutional commandeering. 249 00:11:36,600 --> 00:11:39,680 But why couldn't the government just say it was preemption, that 250 00:11:39,680 --> 00:11:42,600 they had preempted the field of authorizing sports gamble? 251 00:11:42,720 --> 00:11:46,520 Because Murphy laid down a really clear two-part test for a 252 00:11:46,520 --> 00:11:48,960 valid preemption. One, it has to be a valid 253 00:11:48,960 --> 00:11:52,240 exercise of an enumerated power like the Commerce Clause, and 254 00:11:52,240 --> 00:11:55,240 two, it has to regulate private actors, not the states 255 00:11:55,240 --> 00:11:57,880 themselves. PCA failed that second part. 256 00:11:58,280 --> 00:12:01,480 The anti authorization rule was only aimed at the state's act of 257 00:12:01,480 --> 00:12:03,800 legislating. It didn't put any restrictions 258 00:12:03,800 --> 00:12:06,280 on a private person, so it wasn't a valid preemption. 259 00:12:06,280 --> 00:12:08,680 It was just an unconstitutional command. 260 00:12:09,120 --> 00:12:12,440 And this reinvigoration of the anti calm deering doctrine has 261 00:12:12,440 --> 00:12:15,640 created a potential problem for a much older federal law right 262 00:12:15,760 --> 00:12:19,560 Public law 86 to 72. This is a really sophisticated 263 00:12:19,560 --> 00:12:22,840 point, a great one for an exam. For decades, this law has 264 00:12:22,840 --> 00:12:25,680 limited a state's power to tax an out of state seller if 265 00:12:25,680 --> 00:12:28,200 they're only connection to the state is soliciting orders. 266 00:12:28,400 --> 00:12:31,720 But then came the 2018 case, South Dakota View Wayfair, which 267 00:12:31,720 --> 00:12:34,320 we'll get to later, But the short version is it said 268 00:12:34,640 --> 00:12:37,640 physical presence is no longer required for a state to tax 269 00:12:37,640 --> 00:12:38,440 someone. Exactly. 270 00:12:38,440 --> 00:12:41,840 So post Wayfair, states now clearly have the sovereign power 271 00:12:41,880 --> 00:12:45,560 to tax remote sellers based on their economic activity in the 272 00:12:45,560 --> 00:12:47,480 state. So the argument now is that 273 00:12:47,480 --> 00:12:52,440 Public Law 86 to 72 is no longer a valid regulation of commerce. 274 00:12:52,560 --> 00:12:56,400 It's an unconstitutional command to the states telling them you 275 00:12:56,400 --> 00:12:59,480 must refrain from exercising your sovereign taxing power. 276 00:12:59,520 --> 00:13:01,520 It looks a lot like the command in Murphy. 277 00:13:01,560 --> 00:13:04,800 It looks exactly like it, and it sets up this fascinating and, as 278 00:13:04,800 --> 00:13:07,560 of now, unresolved constitutional showdown. 279 00:13:07,560 --> 00:13:10,800 OK, let's pivot to the doctrine that police's state regulations 280 00:13:10,800 --> 00:13:13,400 all on its own, the dormant Commerce Clause. 281 00:13:13,960 --> 00:13:16,240 This comes from the idea that since Congress has the power to 282 00:13:16,240 --> 00:13:19,840 regulate commerce, the states implicitly do not, especially 283 00:13:19,840 --> 00:13:21,840 when it comes to discriminating against each other. 284 00:13:22,080 --> 00:13:24,240 Right. Its whole purpose is to prevent 285 00:13:24,240 --> 00:13:27,880 economic protectionism and keep a single, unified national 286 00:13:27,880 --> 00:13:29,960 market. Again, you have to remember the 287 00:13:29,960 --> 00:13:33,080 Lochner era context. Back then, the court used the 288 00:13:33,080 --> 00:13:36,320 DCC really aggressively to strike down state laws it just 289 00:13:36,320 --> 00:13:39,120 didn't like. But after the New Deal, the DCC 290 00:13:39,120 --> 00:13:42,200 got a lot narrower. The modern doctrine is really 291 00:13:42,200 --> 00:13:44,080 focused on rooting out discrimination. 292 00:13:44,400 --> 00:13:47,440 And for your exam, you should think of the modern DCC as 293 00:13:47,440 --> 00:13:49,240 having three analytical branches. 294 00:13:49,240 --> 00:13:51,680 You have to figure out which branch applies because that 295 00:13:51,680 --> 00:13:55,000 tells you what tests to use. Branch 1 is the anti 296 00:13:55,000 --> 00:13:57,960 discrimination rule. This is the heart of the DCC. 297 00:13:58,280 --> 00:14:01,160 It invalidates state laws that discriminate against out of 298 00:14:01,160 --> 00:14:03,960 state goods or businesses, and that discrimination can be 299 00:14:03,960 --> 00:14:06,800 facial right on the face of the law or it can be practical in 300 00:14:06,800 --> 00:14:08,720 its effect. And because discrimination is 301 00:14:08,720 --> 00:14:12,280 the cardinal sin here, the standard is the virtually per SE 302 00:14:12,280 --> 00:14:14,960 rule of invalidity. It's basically strict scrutiny. 303 00:14:15,120 --> 00:14:17,840 And the only way a state can defend A discriminatory law is 304 00:14:17,840 --> 00:14:21,080 to show one, that it has a legitimate local purpose that is 305 00:14:21,080 --> 00:14:23,960 not about economic protectionism, and two, that 306 00:14:23,960 --> 00:14:26,840 there are no reasonable non discriminatory alternatives. 307 00:14:27,080 --> 00:14:28,960 It's an almost impossible standard to meet. 308 00:14:29,520 --> 00:14:34,080 The one case everyone points to is Maine V Taylor or Maine Band 309 00:14:34,080 --> 00:14:37,520 imported bait fish. Right, and they won because they 310 00:14:37,520 --> 00:14:39,960 proved the out of state fish had parasites that would have 311 00:14:39,960 --> 00:14:42,800 devastated the local ecosystem and there was no other way, like 312 00:14:42,800 --> 00:14:46,600 inspection to solve the problem. But that's a rare environmental 313 00:14:46,600 --> 00:14:50,440 case, not an economic one. OK, Branch 2 is Pike balancing. 314 00:14:51,200 --> 00:14:53,880 This applies when a state law is non discriminatory. 315 00:14:53,960 --> 00:14:57,840 It regulates even handedly, but it still imposes an incidental 316 00:14:57,840 --> 00:15:01,200 burden on Interstate commerce. The test here is whether that 317 00:15:01,200 --> 00:15:05,120 burden is clearly excessive in relation to the putative local 318 00:15:05,120 --> 00:15:07,280 benefits. This is a much squishier 319 00:15:07,280 --> 00:15:10,360 balancing test, and the burden often comes from one state 320 00:15:10,600 --> 00:15:14,080 having a weird outlier rule that messes everything up for 321 00:15:14,080 --> 00:15:16,600 national companies. The perfect illustration of 322 00:15:16,600 --> 00:15:19,560 this, even though it's not technically a Pike case, is Bib 323 00:15:19,560 --> 00:15:22,680 V Navajo Freight Lines. Illinois decided to require 324 00:15:22,680 --> 00:15:25,520 contoured mudflaps on trucks when pretty much every other 325 00:15:25,520 --> 00:15:27,120 state required straight ones. So. 326 00:15:27,120 --> 00:15:29,040 If you were a trucker, you'd have to literally stop at the 327 00:15:29,040 --> 00:15:30,720 Illinois border and change your equipment. 328 00:15:30,960 --> 00:15:35,160 Yes, it was a logistical nightmare, and the Supreme Court 329 00:15:35,160 --> 00:15:38,920 struck down the law because the supposed local safety benefit 330 00:15:38,920 --> 00:15:42,560 was tiny compared to the massive burden it placed on the free 331 00:15:42,560 --> 00:15:46,600 flow of Interstate trucking. Finally, Branch 3 is the 332 00:15:46,640 --> 00:15:50,560 extraterritoriality principle. This came from a line of cases 333 00:15:50,560 --> 00:15:54,280 that struck down state laws that tried to directly regulate 334 00:15:54,280 --> 00:15:56,920 commerce happening entirely outside their borders. 335 00:15:56,920 --> 00:16:00,640 Specifically, these were price control or price affirmation 336 00:16:00,640 --> 00:16:02,440 statutes. Yes, that's right. 337 00:16:02,680 --> 00:16:05,880 A state would pass a law saying, for instance, that liquor 338 00:16:05,880 --> 00:16:08,840 distillers couldn't sell their products in state for a price 339 00:16:09,040 --> 00:16:11,600 any higher than the lowest price they charged anywhere else in 340 00:16:11,600 --> 00:16:13,920 the country. It was a way for one state to 341 00:16:13,920 --> 00:16:16,920 project its economic policy across the entire nation, which 342 00:16:16,920 --> 00:16:19,880 is a big no no. And this principle was a mess. 343 00:16:19,880 --> 00:16:22,760 Before the Ross case. The circuit courts were split on 344 00:16:22,760 --> 00:16:25,440 whether it was a broad rule against any law with big out of 345 00:16:25,440 --> 00:16:28,760 state effects or if it was just about these narrow price control 346 00:16:28,760 --> 00:16:31,360 situations. That ambiguity is exactly why 347 00:16:31,360 --> 00:16:34,360 the Supreme Court had to take up National Pork Producers Counsel 348 00:16:34,360 --> 00:16:37,280 V Ross. OK, let's dive deep into Ross. 349 00:16:37,840 --> 00:16:40,320 This is the case about California's Proposition 12, 350 00:16:40,560 --> 00:16:44,200 which banned the in state sale of pork from pigs that were 351 00:16:44,200 --> 00:16:47,360 confined in a cruel manner, essentially setting minimum 352 00:16:47,360 --> 00:16:48,880 space requirements for the animals. 353 00:16:49,160 --> 00:16:51,120 Right. And since California consumes a 354 00:16:51,120 --> 00:16:54,680 ton of pork but produces almost none of it, the practical effect 355 00:16:54,680 --> 00:16:58,120 was that pork producers in Iowa, North Carolina, all over the 356 00:16:58,120 --> 00:17:01,280 country would have to change how they raise pigs if they wanted 357 00:17:01,280 --> 00:17:03,520 to sell in the massive California market. 358 00:17:03,600 --> 00:17:07,160 The pork producers challenge this not as discriminatory, but 359 00:17:07,160 --> 00:17:11,160 under those other two DCC doctrines, extraterritoriality 360 00:17:11,160 --> 00:17:12,839 and Pike balancing. Let's take the 361 00:17:12,839 --> 00:17:15,599 extraterritoriality argument first, the producer said. 362 00:17:15,599 --> 00:17:18,880 Look, this law is forcing us to completely reconfigure our farms 363 00:17:18,880 --> 00:17:21,480 in Iowa just to sell a product in California. 364 00:17:21,480 --> 00:17:24,400 That's an unconstitutional extraterritorial effect. 365 00:17:24,520 --> 00:17:27,440 But the court unanimously rejected that broad argument. 366 00:17:27,440 --> 00:17:29,160 Why? They basically said the old 367 00:17:29,160 --> 00:17:32,760 extraterritoriality cases were all about preventing purposeful 368 00:17:32,760 --> 00:17:35,680 economic protectionism. Like those price control laws, 369 00:17:36,000 --> 00:17:38,320 they weren't a broad rule against any any law with 370 00:17:38,320 --> 00:17:41,120 upstream effects. The key, the court said, is that 371 00:17:41,120 --> 00:17:44,480 Prop 12 only regulate sales that happen inside California. 372 00:17:44,880 --> 00:17:47,600 If an Iowa farmer doesn't want to comply, he just can't sell 373 00:17:47,600 --> 00:17:50,520 his pork in California. The law doesn't reach out and 374 00:17:50,520 --> 00:17:52,400 regulate his farm in Iowa directly. 375 00:17:52,760 --> 00:17:57,000 So the big take away for your exam, the stand alone broad 376 00:17:57,000 --> 00:18:00,320 extracurritoriality doctrine for non discriminatory laws is 377 00:18:00,320 --> 00:18:02,880 basically dead. The analysis now has to go 378 00:18:02,880 --> 00:18:05,160 through Pike balancing. Which brings us to the Pike 379 00:18:05,160 --> 00:18:07,640 claim. In Ross, the producers argued 380 00:18:07,640 --> 00:18:11,000 that the massive compliance costs, a nearly 10% increase at 381 00:18:11,000 --> 00:18:14,280 the farm level, were a clearly excessive burden on the 382 00:18:14,280 --> 00:18:17,160 Interstate pork market, especially when weighed against 383 00:18:17,160 --> 00:18:20,360 California's moral, not economic, interest in animal 384 00:18:20,360 --> 00:18:21,720 welfare. And this is where the court 385 00:18:21,720 --> 00:18:25,400 fractured 6 Justices thought Pike was the right test, but 386 00:18:25,400 --> 00:18:26,720 they still threw out the challenge. 387 00:18:26,920 --> 00:18:29,560 So what happened? Well, the Gorsuch plurality 388 00:18:29,560 --> 00:18:32,720 opinion really focused on the idea that the dormant Commerce 389 00:18:32,720 --> 00:18:36,040 Clause protects the Interstate market as a whole, not 390 00:18:36,240 --> 00:18:39,440 particular firms or particular methods of operation. 391 00:18:39,960 --> 00:18:42,720 So they reasoned that yes, compliance costs would go up, 392 00:18:42,920 --> 00:18:45,320 and yes, some producers who use conventional methods would be 393 00:18:45,320 --> 00:18:48,400 hurt, but the national market for pork would survive. 394 00:18:49,240 --> 00:18:52,480 The DCC, he argued, doesn't guarantee any company a right to 395 00:18:52,480 --> 00:18:56,040 a specific business model or a certain profit margin, so the 396 00:18:56,040 --> 00:18:59,080 challengers hadn't alleged A substantial burden on the market 397 00:18:59,080 --> 00:19:00,880 itself. So just showing it's more 398 00:19:00,880 --> 00:19:03,680 expensive to do business isn't enough, you have to show it's 399 00:19:03,680 --> 00:19:05,360 disrupting the entire national market. 400 00:19:05,480 --> 00:19:08,480 That's the new very high bar, of course. 401 00:19:08,480 --> 00:19:11,000 The four dissenters, led by Chief Justice Roberts, 402 00:19:11,000 --> 00:19:13,800 completely disagreed. They argued that forcing an 403 00:19:13,800 --> 00:19:16,920 entire nationwide industry to change its production methods at 404 00:19:16,920 --> 00:19:19,840 a cost of hundreds of millions of dollars is a substantial 405 00:19:19,840 --> 00:19:21,960 burden on the market, not just on a few firms. 406 00:19:22,160 --> 00:19:25,880 So for exam purposes, the bottom line is that the threshold for a 407 00:19:25,880 --> 00:19:29,280 Pike claim is now incredibly high, especially when you're 408 00:19:29,280 --> 00:19:32,480 challenging a state's health, safety or moral regulation. 409 00:19:32,600 --> 00:19:34,440 The courts are going to be extremely differential. 410 00:19:34,640 --> 00:19:38,320 One last thing on Ross. The dissent, led by Roberts flag 411 00:19:38,320 --> 00:19:40,520 some other potential constitutional problems with 412 00:19:40,520 --> 00:19:43,240 laws like this. He basically laid out a road map 413 00:19:43,240 --> 00:19:45,600 for future challenges. This is great for an issue 414 00:19:45,600 --> 00:19:47,800 spotting essay. What other clauses did he bring 415 00:19:47,800 --> 00:19:49,400 up? He mentioned the import export 416 00:19:49,400 --> 00:19:52,240 clause, the Privileges and immunities clause, and most 417 00:19:52,240 --> 00:19:54,240 interestingly, the Full Faith and Credit clause. 418 00:19:54,720 --> 00:19:57,200 His point on full faith and credit was that some states, 419 00:19:57,200 --> 00:20:01,200 like Ohio, have laws that explicitly authorized the very 420 00:20:01,200 --> 00:20:03,840 pig confinement practices that Prop 12 bans. 421 00:20:03,840 --> 00:20:07,560 So you have a direct conflict. Can California, through its 422 00:20:07,560 --> 00:20:11,040 sales ban, essentially refused to give effect to Ohio's 423 00:20:11,040 --> 00:20:14,080 sovereign public act? It's a really novel and 424 00:20:14,080 --> 00:20:16,400 fascinating question that we might see the court take up 425 00:20:16,400 --> 00:20:17,120 next. OK. 426 00:20:17,120 --> 00:20:19,760 Let's pull all of this together and apply it to the high stakes 427 00:20:19,760 --> 00:20:23,080 area of state taxation. This is a classic exam topic 428 00:20:23,280 --> 00:20:26,560 because it forces you to synthesize due process, the DCC, 429 00:20:26,560 --> 00:20:27,600 all of it. Right. 430 00:20:27,840 --> 00:20:31,080 And for any state tax question, your analysis has to start with 431 00:20:31,080 --> 00:20:34,800 the four part test from the 1977 case Complete Auto. 432 00:20:35,600 --> 00:20:38,440 A state tax is constitutional only if it meets all four 433 00:20:38,440 --> 00:20:41,400 prongs. One, it's applied to an activity 434 00:20:41,400 --> 00:20:45,040 with a substantial Nexus to the state, 2 it's fairly 435 00:20:45,040 --> 00:20:48,720 apportioned, 3 it does not discriminate against Interstate 436 00:20:48,720 --> 00:20:53,160 commerce, and four, it is fairly related to services the state 437 00:20:53,160 --> 00:20:55,120 provides. Let's really focus on the two 438 00:20:55,120 --> 00:20:57,040 trickiest parts, Nexus and apportionment. 439 00:20:57,040 --> 00:20:59,960 OK, Nexus. For decades, the rule for sales 440 00:20:59,960 --> 00:21:02,840 tax under cases like Quill was that a state could only tax a 441 00:21:02,840 --> 00:21:05,280 business that had a physical presence in the state stores 442 00:21:05,280 --> 00:21:08,680 where warehouses employees. This created a huge loophole for 443 00:21:08,680 --> 00:21:11,960 online and mail order retailers. A massive loophole, and it was 444 00:21:11,960 --> 00:21:14,640 based on this weird logic from Quill that even though a 445 00:21:14,640 --> 00:21:16,920 business might have enough contact for due process 446 00:21:16,920 --> 00:21:20,200 purposes, the Commerce Clause required physical presence as a 447 00:21:20,200 --> 00:21:23,520 clear bright line rule to avoid burdening commerce. 448 00:21:23,680 --> 00:21:26,040 A rule that became totally obsolete with the rise of the 449 00:21:26,040 --> 00:21:29,200 Internet. Exactly, and that's why in 2018, 450 00:21:29,200 --> 00:21:31,800 South Dakota V Wayfair completely overruled Quill. 451 00:21:32,320 --> 00:21:35,720 The court said the physical presence rule was artificial and 452 00:21:35,720 --> 00:21:39,120 anachronistic. The new rule is that economic 453 00:21:39,120 --> 00:21:41,920 activity alone can create a substantial Nexus. 454 00:21:42,240 --> 00:21:45,520 So if a remote seller meets a certain threshold of sales or 455 00:21:45,520 --> 00:21:49,440 transactions in a stay, like South Dakota's $100,000 in sales 456 00:21:49,440 --> 00:21:53,080 or 200 transactions, that is enough to establish a Nexus. 457 00:21:53,080 --> 00:21:54,560 It was a revolutionary change. OK. 458 00:21:54,560 --> 00:21:57,120 So that's Nexus. What about fair apportionment? 459 00:21:57,320 --> 00:21:59,720 This is to make sure states don't tax more than their fair 460 00:21:59,720 --> 00:22:01,720 share of a company's income. Exactly. 461 00:22:01,960 --> 00:22:05,320 For a multi state corporation, states have to use a formula to 462 00:22:05,320 --> 00:22:08,400 apportion that company's income. The traditional method is a 463 00:22:08,400 --> 00:22:11,240 three factor formula based on the percentage of the company's 464 00:22:11,240 --> 00:22:14,280 total property, payroll and sales that are in that state. 465 00:22:14,800 --> 00:22:17,280 The goal is to only tax the income that's fairly 466 00:22:17,280 --> 00:22:19,960 attributable to the economic activity happening within your 467 00:22:19,960 --> 00:22:22,040 borders. OK, so now let's connect this 468 00:22:22,040 --> 00:22:25,440 back to our DCC discussion. We know Pike balancing applies 469 00:22:25,440 --> 00:22:28,200 to state regulations, does apply to state taxes. 470 00:22:28,320 --> 00:22:31,200 Can a company argue a state tax is an excessive burden under 471 00:22:31,200 --> 00:22:33,680 Pike? This is a huge point, and the 472 00:22:33,680 --> 00:22:37,240 answer is a clear no. The Supreme Court has never used 473 00:22:37,240 --> 00:22:40,560 Pike balancing to strike down a state tax that otherwise meets 474 00:22:40,560 --> 00:22:42,440 the four complete auto requirements. 475 00:22:43,280 --> 00:22:46,560 Your analysis for a tax must stay within the complete auto 476 00:22:46,560 --> 00:22:47,720 framework. Why not? 477 00:22:47,720 --> 00:22:50,320 I mean, a tax can definitely feel like a burden that falls 478 00:22:50,320 --> 00:22:53,240 mostly on out of Staters. The court has given 2 main 479 00:22:53,240 --> 00:22:55,880 reasons. First, on the issue of non 480 00:22:55,880 --> 00:22:58,080 uniformity, like different states using different 481 00:22:58,080 --> 00:23:01,240 apportionment formulas, the court has said the Constitution 482 00:23:01,240 --> 00:23:04,400 is neutral. One state isn't responsible for 483 00:23:04,400 --> 00:23:07,400 another state's tax system. If that creates a problem, it's 484 00:23:07,400 --> 00:23:11,280 a problem for Congress to solve, not the courts. 2nd, on the 485 00:23:11,280 --> 00:23:14,200 issue of the burden being externalized to out of satyrs, 486 00:23:14,560 --> 00:23:17,480 the court draws a bright line. Taxes are not just a fee for 487 00:23:17,480 --> 00:23:19,840 services, they fund the government as a whole. 488 00:23:20,080 --> 00:23:23,320 And a court has no way to judge how much is too much tax. 489 00:23:23,440 --> 00:23:26,080 Exactly. The court has explicitly said 490 00:23:26,080 --> 00:23:29,280 there's no constitutional way to measure if a tax is excessive. 491 00:23:29,480 --> 00:23:31,840 That is a fundamentally legislative political question. 492 00:23:32,160 --> 00:23:35,360 If a tax is non discriminatory and fairly apportioned how high 493 00:23:35,360 --> 00:23:37,160 it is, well, that's up to the voters and their 494 00:23:37,160 --> 00:23:40,320 representatives. So bottom line for the exam, if 495 00:23:40,320 --> 00:23:43,240 you get a state tax question, stick to the four prongs of 496 00:23:43,240 --> 00:23:46,080 complete auto. Do not bring in pipe balancing. 497 00:23:46,160 --> 00:23:49,480 We have covered a huge amount of ground here, moving all the way 498 00:23:49,480 --> 00:23:52,680 from individual rights to the complex rules of commerce and 499 00:23:52,680 --> 00:23:54,680 tax. Let's do a quick final recap. 500 00:23:54,680 --> 00:23:57,840 The most critical things to remember first due process 501 00:23:58,200 --> 00:24:00,320 procedural is the three Matthews factors. 502 00:24:00,640 --> 00:24:04,240 Substantive is strict scrutiny for fundamental rights, rational 503 00:24:04,240 --> 00:24:07,160 basis for everything else. Second, preemption. 504 00:24:07,760 --> 00:24:10,440 Know the difference between field preemption and conflict 505 00:24:10,440 --> 00:24:14,320 preemption, especially the two types of conflict impossibility. 506 00:24:14,320 --> 00:24:19,040 Remember the YFPLIV paradox and obstacle, and always start with 507 00:24:19,040 --> 00:24:21,560 the presumption against preemption. 3rd anti 508 00:24:21,560 --> 00:24:23,840 commandeering. Know the three justifications, 509 00:24:23,840 --> 00:24:27,000 liberty, accountability, cost and know the Murphy rule. 510 00:24:27,560 --> 00:24:30,640 A valid preemption has to regulate private actors, not 511 00:24:30,640 --> 00:24:33,800 just the state itself. 4th, the doorman Commerce Clause. 512 00:24:34,080 --> 00:24:36,400 It's a decision tree. Is it discriminatory? 513 00:24:36,400 --> 00:24:37,920 If yes, it's almost certainly dead. 514 00:24:38,240 --> 00:24:40,920 If no, you apply Pike balancing, which has a very high 515 00:24:40,920 --> 00:24:42,840 substantial burden threshold after Ross. 516 00:24:43,160 --> 00:24:45,280 And remember, extraterritoriality is now a 517 00:24:45,280 --> 00:24:48,560 very narrow doctrine. And finally state taxes. 518 00:24:48,960 --> 00:24:51,040 Use the four part complete auto test. 519 00:24:51,680 --> 00:24:54,160 Remember, Wayfair killed the physical President's rule for 520 00:24:54,160 --> 00:24:58,360 Nexus and do not do not apply Pike balancing to attacks. 521 00:24:59,000 --> 00:25:01,600 So when you step back, you see these two really interesting 522 00:25:01,600 --> 00:25:03,840 trends. On one hand, the court in Ross 523 00:25:03,840 --> 00:25:06,880 gave states a huge amount of power to regulate for local 524 00:25:06,880 --> 00:25:10,840 health and moral reasons, even if it has big national effects. 525 00:25:11,160 --> 00:25:13,040 That looks like a win for state police power. 526 00:25:13,200 --> 00:25:15,840 But at the same time, you have the court affirming the state 527 00:25:15,840 --> 00:25:19,440 score sovereign power to tax in Wayfair, only to see that power 528 00:25:19,440 --> 00:25:22,360 immediately run into the revitalized anti commandeering 529 00:25:22,360 --> 00:25:23,280 doctrine. Right. 530 00:25:23,280 --> 00:25:26,640 And that potential vulnerability of a 60 year old federal law 531 00:25:26,640 --> 00:25:31,440 like public law 86 to 72 after Murphy and Wayfair reminds us 532 00:25:31,440 --> 00:25:34,160 that this whole balance of federalism is always in motion. 533 00:25:34,440 --> 00:25:36,760 And it raises the final question for you to think about what 534 00:25:36,760 --> 00:25:39,440 other long standing federal statutes which have been on the 535 00:25:39,440 --> 00:25:42,520 books for years might now be vulnerable to an anti 536 00:25:42,520 --> 00:25:45,080 commandeering challenge? What other federal laws out 537 00:25:45,080 --> 00:25:47,400 there are really just telling states what to do instead of 538 00:25:47,400 --> 00:25:51,040 regulating private citizens? A very provocative thought, and 539 00:25:51,040 --> 00:25:53,160 exactly the kind of forward-looking analysis that 540 00:25:53,160 --> 00:25:56,680 will set you apart on an exam. That's all for this deep dive. 541 00:25:56,840 --> 00:26:00,240 Now go master that material. All right, future counselors, 542 00:26:00,240 --> 00:26:02,720 welcome. Today we are going to build your 543 00:26:02,720 --> 00:26:05,960 exam day toolkit for two absolutely critical 544 00:26:05,960 --> 00:26:08,920 constitutional law doctrines. These are the ones that really 545 00:26:08,920 --> 00:26:12,720 define that constant tug of war between federal and state power. 546 00:26:13,520 --> 00:26:15,400 So let's start with this question. 547 00:26:15,640 --> 00:26:18,000 Can Congress just tell a state what to do? 548 00:26:18,480 --> 00:26:21,360 This really gets to the heart of state sovereignty, and it's the 549 00:26:21,360 --> 00:26:23,400 core of the first doctrine we're going to tackle. 550 00:26:23,880 --> 00:26:26,440 Think of it as the ultimate power play in our federal 551 00:26:26,440 --> 00:26:29,440 system. And then on the flip side, what 552 00:26:29,440 --> 00:26:31,960 about this? Can one state, say California or 553 00:26:31,960 --> 00:26:35,400 Texas, pass a law that basically wrecks the national market for, 554 00:26:35,640 --> 00:26:39,040 I don't know, pork or cars? This question sets the stage for 555 00:26:39,040 --> 00:26:41,480 our second topic, a doctrine that's all about keeping our 556 00:26:41,480 --> 00:26:44,520 national economy from shattering into 50 little pieces. 557 00:26:45,400 --> 00:26:47,920 OK, let's dive in. Here is our road map. 558 00:26:47,920 --> 00:26:50,360 For the next few minutes, we're going to cover the clash of 559 00:26:50,360 --> 00:26:53,520 powers, the anti commandeering role, the dormant Commerce 560 00:26:53,520 --> 00:26:56,920 Clause, that famous Pike test balancing test, a really 561 00:26:56,920 --> 00:26:59,480 fascinating modern case, and then we'll wrap it all up with 562 00:26:59,480 --> 00:27:02,320 your exam attack plan. We're moving fast, so let's get 563 00:27:02,320 --> 00:27:05,120 to it. So at its core, everything we're 564 00:27:05,120 --> 00:27:08,000 talking about today lives in the tension between two parts of the 565 00:27:08,000 --> 00:27:10,440 Constitution. You've got the 10th Amendment on 566 00:27:10,440 --> 00:27:13,560 one side, which says powers not given to the feds are reserved 567 00:27:13,560 --> 00:27:16,040 to the states. And on the other side you have 568 00:27:16,040 --> 00:27:18,800 the Commerce Clause, which gives Congress this massive power to 569 00:27:18,800 --> 00:27:20,520 regulate commerce among the states. 570 00:27:21,080 --> 00:27:22,800 The two doctrines we're covering live right in that 571 00:27:22,800 --> 00:27:26,560 constitutional friction zone. All right, let's jump into our 572 00:27:26,560 --> 00:27:29,160 first key rule. This is the one that says the 573 00:27:29,160 --> 00:27:31,880 federal government can't just turn state governments into its 574 00:27:31,880 --> 00:27:33,960 puppets. It's all about protecting the 575 00:27:33,960 --> 00:27:36,320 states from being forced into federal service. 576 00:27:37,120 --> 00:27:39,040 Here it is. This is the black letter rule 577 00:27:39,040 --> 00:27:41,880 you need to have memorized. The federal government cannot 578 00:27:41,880 --> 00:27:45,280 treat state legislators or state executive officials like they're 579 00:27:45,280 --> 00:27:49,280 just field offices for DCA. Big reason for this is political 580 00:27:49,280 --> 00:27:51,560 accountability. You know, if the feds want a 581 00:27:51,560 --> 00:27:54,200 certain policy, they have to use their own agents and their own 582 00:27:54,200 --> 00:27:56,440 money. That way we the voters know 583 00:27:56,440 --> 00:27:58,720 exactly who to praise or who to blame. 584 00:27:59,440 --> 00:28:02,680 And the doctrines evolution is really illustrated perfectly by 585 00:28:02,680 --> 00:28:05,680 these 3 landmark cases. You absolutely have to know 586 00:28:05,680 --> 00:28:09,120 these. 1st, in New York, the United States, the Supreme Court 587 00:28:09,120 --> 00:28:11,600 said Congress can't force the state legislature to actually 588 00:28:11,600 --> 00:28:14,840 enact a federal law. Then just five years later, in 589 00:28:14,840 --> 00:28:18,040 Prince, they extended the rule. Now, Congress also can't press 590 00:28:18,040 --> 00:28:21,320 state officials like local sheriffs into service to enforce 591 00:28:21,320 --> 00:28:23,640 federal law. And then most recently in 592 00:28:23,640 --> 00:28:26,600 Murphy, the sports betting case, the court took it even one step 593 00:28:26,600 --> 00:28:29,520 further, saying Congress can't even prohibit a state from 594 00:28:29,520 --> 00:28:32,560 repealing its own laws. It's a different flavor of 595 00:28:32,560 --> 00:28:34,640 commandeering, but commandeering nonetheless. 596 00:28:35,400 --> 00:28:37,920 So for your exam, the crucial point for issue spotting is 597 00:28:37,920 --> 00:28:40,080 being able to tell the difference between a direct 598 00:28:40,080 --> 00:28:42,120 command, which is unconstitutional, and a 599 00:28:42,120 --> 00:28:45,240 permissible federal action. For instance, if a federal 600 00:28:45,240 --> 00:28:48,560 minimum wage law applies to both state-run hospitals and private 601 00:28:48,560 --> 00:28:51,080 hospitals, that's OK. That's a lot of general 602 00:28:51,080 --> 00:28:53,240 applicability. And remember, Congress can 603 00:28:53,240 --> 00:28:56,320 always use its spending power to persuade states with money like 604 00:28:56,320 --> 00:28:59,560 highway funds, but it can't cross the line into coercion. 605 00:28:59,720 --> 00:29:02,680 That's the key distinction. OK, so we've covered what 606 00:29:02,680 --> 00:29:05,840 Congress can't do to the states. Now let's flip the script and 607 00:29:05,840 --> 00:29:08,000 look at the limits on what states can do to each other's 608 00:29:08,000 --> 00:29:10,720 commerce. This doctrine isn't actually 609 00:29:10,720 --> 00:29:13,880 written in the Constitution, it's implied from the Commerce 610 00:29:13,880 --> 00:29:16,400 Clause itself. The big idea here is that 611 00:29:16,400 --> 00:29:19,160 because Congress has the power to regulate the national 612 00:29:19,160 --> 00:29:22,280 economy, states can't just jump in and create their own little 613 00:29:22,280 --> 00:29:25,200 protectionist schemes. It's what ensures we have one 614 00:29:25,200 --> 00:29:28,680 unified national market, not 50 separate little economies with 615 00:29:28,680 --> 00:29:31,360 walls around them. Now when you see a state law 616 00:29:31,360 --> 00:29:34,400 that affects commerce on an exam, this is your framework. 617 00:29:34,560 --> 00:29:36,480 It's a clean 2 step decision tree. 618 00:29:37,120 --> 00:29:39,760 First you ask, is the law discriminatory? 619 00:29:40,080 --> 00:29:42,600 Does it treat out of state companies or people worse than 620 00:29:42,600 --> 00:29:45,240 the local guys? If it's discriminatory on its 621 00:29:45,240 --> 00:29:47,800 face, it is almost always dead on arrival. 622 00:29:48,000 --> 00:29:50,600 Think of that classic case City of Philadelphia V New Jersey 623 00:29:50,600 --> 00:29:56,080 where Jersey tried to ban out of Only if the law is not 624 00:29:56,080 --> 00:29:59,400 discriminatory do you then move on to Step 2, the balancing 625 00:29:59,400 --> 00:30:02,280 test. OK, so let's drill down on Step 626 00:30:02,280 --> 00:30:06,480 2, the Pike test. I call it the famous fuzzy test 627 00:30:06,480 --> 00:30:09,320 because this is where the analysis gets really nuanced. 628 00:30:09,720 --> 00:30:12,400 And honestly, it's where you can score some major points on an 629 00:30:12,400 --> 00:30:14,360 exam by showing you get the subtlety. 630 00:30:15,040 --> 00:30:17,280 And here's the holding straight from the Pike case. 631 00:30:17,560 --> 00:30:20,640 The magic words for your analysis are clearly excessive. 632 00:30:20,960 --> 00:30:23,120 This is a really high bar for a challenger to meet. 633 00:30:23,520 --> 00:30:25,680 The court isn't just putting things on a scale and seeing 634 00:30:25,680 --> 00:30:27,640 which is heavier. They're looking for a burden 635 00:30:27,640 --> 00:30:30,280 that is way out of proportion to the local good. 636 00:30:30,720 --> 00:30:32,800 And that's because of federalism, the idea that we 637 00:30:32,800 --> 00:30:35,120 generally want to let states legislate for the health and 638 00:30:35,120 --> 00:30:37,760 safety of their citizens as long as they don't completely crush 639 00:30:37,760 --> 00:30:39,120 Interstate commerce while doing it. 640 00:30:39,800 --> 00:30:43,320 So breaking it down like this makes the test a lot less scary. 641 00:30:43,720 --> 00:30:46,000 On your exam, you have to walk through each of these steps. 642 00:30:46,320 --> 00:30:49,560 First define the local interest. Is the state trying to protect 643 00:30:49,560 --> 00:30:53,120 public health, animal welfare? Then you detail the burden. 644 00:30:53,480 --> 00:30:56,440 Does it mess up supply chains? Does it force a whole national 645 00:30:56,440 --> 00:30:58,200 industry to change how it operates? 646 00:30:58,680 --> 00:31:01,040 And finally, you do the weighing and you make the call. 647 00:31:01,520 --> 00:31:03,240 Is that burden clearly excessive? 648 00:31:03,880 --> 00:31:06,800 So let's see how this classic kind of old school doctrine 649 00:31:06,800 --> 00:31:10,200 actually applies today with a super recent, very high profile 650 00:31:10,200 --> 00:31:12,800 Supreme Court case. OK, so this law was not 651 00:31:12,800 --> 00:31:15,640 discriminatory on its face. It applied to California pig 652 00:31:15,640 --> 00:31:18,360 farmers the exact same way it applied to farmers in Iowa or 653 00:31:18,360 --> 00:31:20,560 North Carolina. And because of that, the whole 654 00:31:20,560 --> 00:31:22,360 case got pushed into Pike territory. 655 00:31:22,800 --> 00:31:24,920 The national Pork Producers argue that the burden on their 656 00:31:24,920 --> 00:31:27,960 industry was absolutely massive. They also made this interesting 657 00:31:27,960 --> 00:31:31,200 extraterritoriality argument, basically saying that California 658 00:31:31,200 --> 00:31:33,800 was trying to control conduct that happens entirely outside 659 00:31:33,800 --> 00:31:35,920 its borders. Because the California market is 660 00:31:35,920 --> 00:31:39,160 so huge, they argued, this law effectively forces the entire 661 00:31:39,160 --> 00:31:40,800 country to play by California's rules. 662 00:31:41,360 --> 00:31:44,040 Now, here's where things get really interesting and frankly, 663 00:31:44,040 --> 00:31:45,480 a little messy. If you're looking for a clear 664 00:31:45,480 --> 00:31:48,120 rule, just look at how fractured the court was. 665 00:31:48,240 --> 00:31:50,560 They upheld the law, but they did it for wildly different 666 00:31:50,560 --> 00:31:52,640 reasons. Justice Gorsuch, writing for a 667 00:31:52,640 --> 00:31:55,640 plurality, was just deeply skeptical of having judges try 668 00:31:55,640 --> 00:31:58,840 to weigh a moral benefit like animal welfare against dollars 669 00:31:58,840 --> 00:32:00,520 and cents. He thought, that's a job for 670 00:32:00,520 --> 00:32:03,800 legislators, not the courts. Then you had Sotomayor and 671 00:32:03,800 --> 00:32:05,920 Kagan, who said the pork producers just didn't even 672 00:32:05,920 --> 00:32:08,840 allege a big enough burden to get the Pike balancing started. 673 00:32:09,200 --> 00:32:11,800 But the dissenters, led by the Chief Justice, said, wait a 674 00:32:11,800 --> 00:32:14,960 minute, this is exactly the kind of massive nationwide market 675 00:32:14,960 --> 00:32:16,960 disruption Pike was designed to prevent. 676 00:32:17,440 --> 00:32:20,160 This chaos really shows you just how contentious and difficult 677 00:32:20,160 --> 00:32:23,320 the IC test is to alley in our modern, interconnected economy. 678 00:32:24,120 --> 00:32:26,840 OK, let's bring this all home. Let's put this together into a 679 00:32:26,840 --> 00:32:29,400 ractical framework that you can actually use when you sot these 680 00:32:29,400 --> 00:32:32,880 issues on your final exam. All right, this slide right here 681 00:32:32,880 --> 00:32:36,200 is your exam day CHEAT SHEET. The very first question you must 682 00:32:36,200 --> 00:32:39,600 ask yourself when you read a fact pattern is who is acting? 683 00:32:39,760 --> 00:32:43,480 Is it Congress or is it a state? That one question is the fork in 684 00:32:43,480 --> 00:32:45,240 the road. It tells you exactly which 685 00:32:45,240 --> 00:32:48,160 doctrine to apply and it will guide your entire analysis from 686 00:32:48,160 --> 00:32:49,960 issue spotting all the way to your conclusion. 687 00:32:50,120 --> 00:32:52,400 If you get that first step right, you are well on your way 688 00:32:52,400 --> 00:32:56,120 to a great answer. So that pork producers case 689 00:32:56,120 --> 00:32:58,680 leaves us with this big provocative question. 690 00:32:59,200 --> 00:33:01,680 It really proves that these centuries old doctrines about 691 00:33:01,680 --> 00:33:05,280 federalism and commerce are more relevant and more contested than 692 00:33:05,280 --> 00:33:06,840 ever. Keep that in mind. 693 00:33:07,080 --> 00:33:08,000 Good luck with your studies.