Andy Wilson

Unit Exam #2

October 21, 2005

1. Judge Benjamin Cardozo stated that there was “the tendency of a principal to

extend itself to the limits of its logic.” The idea being that a principal can be extended

and applied only so far as it stays within the bounds of its own logical context. This can

most clearly be seen in the expansion, and more recently checking, of Congressional

power through the Commerce Clause. The Commerce Clause, found in Section 8 of

Article 1, states that “Congress shall have power to regulate commerce with foreign

nations, and among the Indian tribes.” Throughout American history the Commerce

Clause has been expanded to cover different matters from navigation to farming to civil

rights. More recently the expansion of power under the Commerce clause has been

checked by the Supreme Court.

The expansion of power under the Commerce Clause began with its interpretation

in the case of Gibbons v. Ogden. In the case Aaron Ogden sued his former associate and

current rival Thomas Gibbons for operating a steam boat without a license in New York

harbor.

Chief Justice John Marshall ruled in the case that since a “strict construction” of

the Commerce Clause “would cripple the government, and render it unequal to the

objects for which it is declared to be instituted, and to which the powers given, as fairly

understood, render it competent”, it was necessary to use an “enlarged construction” in

interpreting the Commerce Clause. It is Chief Justice Marshall’s broad reading of the
Commerce Clause which gives it importance. Marshall wrote, in describing the positives

of using the Commerce Clause, this: “It is the power to regulate; that is, to prescribe the

rule by which commerce is to be governed. This power, like all others vested in

congress, is complete in itself, may be exercised to its utmost extent, and acknowledges

no limitations, other than are prescribed in the constitution.” This interpretation of the

Commerce Clause allowed for an unrestrained and some would say over reaching

exercise of Congressional power.

Marshall’s broad construction of the Commerce Clause continued to expand into

fields other than commerce. In 1938 the U.S. passed the Agricultural Adjustment Act in

order to stabilize agricultural production. The Act allowed farmers to grow only a certain

amount of wheat and penalized those who grew more. Roscoe Filburn planted wheat

each in year in order to feed his livestock and poultry. He accepted an allotment of 11.1

acres, but actually planted 23 acres. The extra acres Filburn planted to feed his livestock

but the AAA did not care and penalized him. Filburn resisted and obtained an injunction

against Secretary of Agriculture Claude R. Wickard. The 1944 Supreme Court case of

Wickard v. Filburn was the result.

Filburn argued that Congress’ power under the Commerce Clause did not apply

because his actions were “local in character.” The government argued “that the statute

regulates neither production nor consumption, but only marketing; and, in the alternative,

that if the Act does go beyond the regulation of marketing it is sustainable as a “necessary

and proper” implementation of the power of Congress over interstate commerce.” The

Court paid little heed to Filburn and ruled in favor of Wickard. The Court ruled:

But even if appellant’s activity be local and though it may not be regarded
as commerce, it may still, whatever it’s nature, be reached by Congress if
 it exerts a substantial economic effect on interstate commerce and this
irrespective of whether such effect is what might as some earlier time have
been defined as “direct” or “indirect”…
The Court determined to uphold the broad and far reaching parts of the

Commerce Clause, showing the many areas that its power could be felt.

During the 1990’s a series of cases curbed the “extending” of the Commerce

Clause. The first case was United States v. Lopez. In the Gun-Free School Zones Act of

1990 (Section 922(q), Congress made it a federal crime for anyone to possess a gun on

school grounds or within 1000 ft. of a school. In 1992 Alfonso Lopez Jr. was charged

under this statute. After much discussion and debate his case was sent to the Supreme

Court in United States v. Lopez.

In the opinion of the Court, as delivered by Chief Justice Rehnquist, there are

three categories which should be considered when determining whether an activity may

be regulated under Congress’ commerce power.

First, Congress may regulate the use of interstate commerce. Second,

Congress is empowered to regulate and protect the instrumentalities of
interstate commerce, or persons or things in interstate commerce, even
though the threat may come from intrastate activities. Finally, Congress’
commerce authority includes the power to regulate those activities having
a substantial relation to interstate commerce
The Court found that not only did Section 922(q) not fall into any of these

categories but it in fact was a dangerous precedent being set. The justices felt that if the

powers under the Commerce Clause were expanded to include matters of education then

there would be little to stop the Congress from spreading into such areas as family law.

They stated “To uphold the Government’s contentions here, we would have to pile

inference upon inference in a manner that would bid fair to convert congressional

authority under the Commerce Clause to police power of the sort retained by the States.”
 Even though the Court upheld the limits of Congressional authority under the

Commerce Clause, the Court was again tested by Congress in the case of Printz v. United

States. In the case the Court struck down a section of the Brady gun control law that

required state officials to conduct background checks of perspective purchasers of

handguns. Even though Congress may regulate the firearms trade, the Court determined

that the Tenth Amendment determined how that regulation could proceed. The Court

ruled that the states and Congress are coequals. No state can officer can be expected to

administer federal just as no federal official can be expected to administer state law.

Judge Benjamin Cardozo stated that there was “the tendency of a principal to

extend itself to the limits of its logic.” The cases of Gibbons v. Ogden and Wickard v.

Filburn demonstrated how the principal of Congress’ Commerce Clause could be

extended to include a wide variety of topics. Yet once the principle reached the limits of

its logic it was stopped from spreading. The cases of United States v. Lopez and Printz v.

United showed how the Court would stop a principal, such as the Commerce Clause,

from being used by the Government to encroach on areas that did not have power.

2. If Nebraska were to pass a state constitutional amendment to limit all officials at

the state and federal level to only three terms, the issue would need to be examined in two

questions. The first question is can a state determine the number of terms for a state

officials and second, whether or not a state can do the same for it’s federally elected

officials. These two questions can be answered by examining the Qualification Clauses

of Article 1 and the Tenth Amendment. The Qualifications Clauses uphold the standards

for federally elected officials. Theses standards, while relevant to the federal
government, cannot be executed against the states. The Tenth Amendment states that

“the powers not delegated to the United States by the Constitution, nor prohibited by it to

the States, are reserved to the States respectively, or to the people.” This therefore leaves

it up to the states to determine how many terms a state official may serve. The first

question is therefore answered in the affirmative; Nebraska may delegate term limits for

state officials.

In order to answer the second question one needs to examine the case of U.S.

Term Limits, Inc. v. Thornton. In Arkansas voters approved Amendment 73, which placed

term limits on officials of both the House of Representatives and the Senate. Ray

Thornton, a six term member of the House of Representatives challenged the ruling. The

question raised in the case was are the qualifications of the Qualification Clause a limit

on the Tenth Amendment, and if so, are they constitutional. In 1995 the Supreme Court

heard the case and decided that:

The Tenth Amendment thus provides no basis for concluding that the
States possess reserved power to add qualifications to those that are fixed
in the Constitution. Instead, any state power to set the qualifications for
membership must derive not from the reserved powers of state
sovereignty, but rather the delegated powers of national sovereignty. In
the absence of any constitutional delegation to the states of power to add
qualifications to those enumerated in the Constitution, such a power does
not exist.
It is therefore possible for the states to create a limit for the number of terms that a

state official may serve but in regards to federal officials the state has no right to create

term limits.

3. If the state of California desired to enact a $5.00 tax on a pack of cigarettes in

order to discourage sales, it would be constitutionally permissible. The Tenth

Amendment grants state governments the ability to perform those things which are not
restricted to it by the Constitution. Since the Constitution does not forbid the States from

collecting taxes, they are therefore free to enact taxes as long as they are within

constitutional bounds. In the case of Gibbons v. Ogden, Chief Justice Marshall stated

that:

Congress is authorized to lay and collect taxes, etc., to pay the debts, and
provide for the common defense and general welfare of the United States.
This does not interfere with the power of the states to tax for the support
of their own governments; nor is the exercise of that power by the states
an exercise of any portion of the power that is granted to the United States.
In imposing taxes for state purposes which are within the exclusive
province of the States. When, then, each government exercises the power
of taxation neither is exercising the power of the other.
The fact does remain that even though the States do have the right to enact their

own taxes; Congress through the Commerce Clause has the right to trump any state tax or

action. In the case of California’s $5.00 tax, congress would have the power to enact the

Federal Tobacco Act nullifying the tax. Chief Justice Marshall stated that “Since

however, in exercising the power of regulating their own purely internal affairs whether

trading or police, the states may sometimes enact laws, the validity of which depends on

their not interfering with, and being contrary to, an act of congress passed in pursuance of

the constitution.” Chief Justice Marshall also stated later in Gibbons v. Ogden that:

But the framers of our constitution foresaw the state of things, and
provided for it, by declaring the supremacy not only of itself, but of the
laws made in pursuance of it. The nullity of any act, inconsistent with the
constitution is produced by the declaration, that the constitution is the
supreme law…. In every such case, the act of congress, or the treaty, is
supreme; and the law of the state, though enacted in the exercise of powers
not controverted, must yield to it…
With the precedent set in Gibbons v. Ogden, the state of California may in fact

establish a $5.00 tax on a pack of cigarettes. Since this tax would undoubtedly affect

interstate commerce, congress would step in. With the enactment of the Federal Tobacco

Act, congress would be within its constitutional right under the Commerce Clause.
7. If a state desires to restrict toxic waste from another state while at the same time

disposing of small amounts of toxic waste produced within its borders, that state is in

violation of the Commerce Clause. If such a case were to appear before the Supreme

Court, the case that would most likely be looked at for reference would be that of

Philadelphia v. New Jersey.

The debate concerning Philadelphia v. New Jersey began when a 1974 New

Jersey law restricted the importation of solid waste from another state into New Jersey.

The city of Philadelphia and, other out-of-state cities, and private landfills challenged this

bill on commerce clause grounds. The New Jersey Supreme Court upheld the bill

because it was seen as protecting the environmental and well being of the people of New

Jersey, but this excuse was thrown out by the U.S. Supreme Court on the basis that even

though New Jersey may have been trying to protect the people and its environment it was

still discriminating between its waste and that of other states. Justice Stewart stated that:

But whatever New Jersey’s ultimate purpose, it may not be accomplished

by discriminating against articles of commerce coming from outside the
state unless there is some reason, apart from their origin, to treat them
differently. Both on its face and in its plain effect, ch. 363 violates this
principle of nondiscrimination.
The Commerce Clause clearly decrees that any sort of protectionist measure

enacted by one towards the interstate commerce of another is strictly off limits. If one

state denies the waste of another while at the same time disposing of their own; and the

main bias for refusing the waste is because it came from another state then there is a

violation of the principle of nondiscrimination. As Justice Stewart stated in the

conclusion of his opinion:

The harms caused by waste are said to arise after its disposal in landfill
sites, and at that point, as New Jersey concedes, there is no basis to
distinguish out-of-state waste from domestic waste. If one is inherently
 harmful, so is the other. Yet New Jersey has banned the former while
leaving its landfill sites open to the latter. The New Jersey law blocks the
importation of waste in an obvious effort to saddle those outside the state
with the entire burden of slowing the flow of refuse into New Jersey’s
remaining landfill sites. That legislative effort is clearly impermissible
under the Commerce Clause of the Constitution.
Although, in the case of Philadelphia v. New Jersey, New Jersey was forced to

repel its protectionist measures under the Commerce Clause. The Commerce Clause will

also ultimately “protect New Jersey and other states from the efforts by one State to

isolate itself in the stream of interstate commerce from a problem shared by all.”

9. The President of the United States can be sued only for actions that occurred

before his presidency. In the case of Jones v. Clinton, then sitting President Bill Clinton

was accused of sexually assaulting his then aide Paula Jones. She alleged that while

Clinton was governor of Arkansas he sexually assaulted and harassed her. The Supreme

Court ruled that since the Paula Jones incident had occurred prior to Clinton’s presidency

and since immunities are grounded in “the nature of the function performed, not the

identity of the actor who performed it,” Clinton could not claim immunity.

A President can also be sued to bring forward needed information in a criminal

trial. In the case of United States v. Nixon, sitting President Richard Nixon was sued in

order to make him comply with a subpoena duces tecum to produce recordings needed

for a criminal investigation. The Supreme Court ruled the need for evidence in a criminal

case outweighed Nixon’s desire for confidentiality. Chief Justice Burger stated:

We conclude that when the ground for asserting privilege as to subpoenaed

materials sought for use in a criminal trial is based only on the generalized
interest in confidentiality; it cannot prevail over the fundamental demands
of due process of law in the fair administration of criminal justice. The
generalized assertion of privilege must yield to the demonstrated specific
need for evidence in a pending criminal trial.
 The President, however, does have immunity when lawsuits arise during his term

of office. In the case of Nixon v. Fitzgerald, Ernest Fitzgerald claimed that he was fired

from his job due to his being a whistle blower. Fitzgerald filed suit for damages against

various persons in the Department of Defense and the White House staff. The case went

to the Supreme Court where it was decided that since Fitzgerald’s claim had been made

during the Nixon’s presidency, he was entitled to full immunity. The Court stated that

“We hold the petitioner, as a former President of the United States, is entitled to absolute

immunity from damages liability predicated in his official acts. We consider this

immunity a functionally mandated incident of the President’s unique office, rooted in the

constitutional tradition of the separation of powers and supported by our history.”

In the case of Nixon v. Fitzgerald, part of the reason that the case was thrown out

was because the trial of a President would be a distraction from his presidential duties.

The President must “concern himself with matters likely to “arouse the intense feelings;”

not be concerned with matters that are not of national importance. In retrospect the

precedents set forth in Nixon v. Fitzgerald should have been more thoroughly

investigated in the case of Jones v. Clinton. Instead of being able to focus his attention on

a relevant national security matter such as international terrorism, President Clinton was

instead focusing his trials. Making the President subject to suits during his presidency

distracted him from the more important job of fulfilling the office of the President.