A Federal System
The Commerce Power
The "Dormant" Commerce Clause
State Authority

A FEDERAL SYSTEM

A.     The nature of authority.

1.     All human authority is delegated, not inherent. God has all authority, some of which He has delegated to man. What has not been delegated, God has reserved for Himself.

2.     All human authority is limited, not absolute. Man has only the authority God gives him, which is limited by the terms of the delegation. Thus, all human authority must be justified.

3.     Human authority is diffuse, not concentrated. God hasn't given anyone total authority, but has diffused authority among people as He wills.

1.     Although rights of the people are endowed by the Creator, governments are not. Rather, governments are instituted by people. The people have an inalienable right to institute their own government.

2.     Civil rulers have no authority to adopt a new form of government. The rulers may propose a new government, but the people must ratify it to become effective.

3.     God does not usurp the authority of the people, but waits for them to act lawfully.

1.     All civil authority belongs to the people, some of which has been delegated to the federal government. What the people have not delegated has been reserved. The government has no inherent authority.

2.     The U.S. government has only the authority expressly enumerated in the Constitution. Public officials have no right to define their own powers.

3.     No government branch, department or official has absolute power. The separation of powers is mandatory, and the authority to regulate must always be justified.

4.     The U.S. Constitution is a covenant of the whole people, not a treaty between sovereign states.

1.     A constitution is not like a statute or a detailed legal code. Its function is to outline the major organs of government and to designate its important purposes.

2.     A constitution specifies the purposes of government which are intended to be permanent, not the means of government which are subject to change.

3.     A constitution is primarily a legal, not a political, document which must be interpreted according to a purpose (or "object") type of analysis.

4.     Matters of degree and/or politics do not guide constitutional interpretation. A purpose is either wholly constitutional (plenary) or wholly unconstitutional (entirely forbidden).

1.     Textual analysis: 1) Examine the text; 2) its relation to other parts of the document (context); 3) and then the historical context.

2.     Object or purpose analysis: There must be a legitimate end or purpose. Purposes must be expressed or they do not exist - there are no implied purposes for federal power.

3.     Enumerated powers are supreme (plenary) within their sphere (proper purpose).

4.     The means to carry out an enumerated power are not expressed, but may be implied if not expressly denied by the Constitution. However, such implied powers can never expand the scope of legitimate purposes for federal power.

5.     Congress has the implied power (means) to make all laws necessary and proper for executing any enumerated power (purpose) expressly granted to it.

THE COMMERCE POWER

A.     The nature of a federal republic

1.     A "federal" society is where civil power is allocated between national and local government via a covenant law framework.

2.     A "republic" is where civil power is exercised by representatives of the people under "the rule of law."

3.     The people, who have all civil authority, separately delegated some authority to the states and some authority to the national government.

4.     The same authority was never delegated to both the state and national governments. Thus, states are not political subdivisions of the nation.

5.     The question of national authority and the relationship between federal and state authorities is one of law, not of degree.

6.     National unity is required in "great" matters, but diversity is desired in "small" matters. Most matters in U.S. are "small."

7.     The determination of whether a matter is "great" or "small" is made by an object/ purpose analysis.

1.     Constitutional interpretation is a matter of law, not politics, governed by ends, not means. Words are to be employed in their natural sense, and language read in the light of the instrument's purpose.

2.     The threshold question in examining any federal law is whether Congress has subject matter jurisdiction, that is, a subject matter entrusted to Congress.

3.     No state has jurisdiction over any federal subject matter. Federal subject matter jurisdiction is exclusive and preemptive.

4.     If Congress has subject matter jurisdiction, the next task is to determine the purposes for which it may exercise such power.

5.     No state may usurp any purpose entrusted to Congress, whose power is plenary as to specified objects. State and federal purposes are neither "shared" nor concurrent, but are mutually exclusive.

6.     If a legitimate national purpose and a legitimate state purpose conflict, the will of Congress is supreme.

7.     The Constitution does not impliedly negate state laws having a legitimate state purpose in the absence of Congressional action.

8.     Congress and the states may employ similar means to accomplish their respective purposes. However, some means are constitutionally prohibited.

1.     Congress and the states share general police powers. The relationship between federal and state authorities is merely one of degree.

2.     The motive and purpose of Congress are beyond judicial question. Congress has power to promote the general welfare in any way it sees fit.

3.     Congress and the states both have subject matter jurisdiction over interstate commerce. Some subjects of commerce require national unity, while other subjects demand local diversity.

4.     Congress has plenary power to decide whether a subject demands national unity or local diversity. If Congress fails to decide, the courts may decide.

5.     If the courts decide that a subject demands uniformity, state legislation to the contrary is impliedly preempted.

6.     Once subject matter jurisdiction is established, any legislative purpose is sufficient. An object/purpose analysis is irrelevant.

7.     In fact, subject matter jurisdiction is unnecessary. Any federal regulation is valid which merely affects commerce.

8.     Congress, under its general police power, may even regulate purely private acts which merely affect commerce in the aggregate.

9.     Ultimately, any means can be used by Congress to accomplish any purpose affecting interstate commerce, and all subject matters are potentially "great."

THE "DORMANT" COMMERCE CLAUSE

A.     Regulation of foreign commerce.

1.     Congress has the exclusive power to regulate commerce with foreign nations.

2.     Foreign commerce includes traffic on the high seas, even though both terminal ports are within the United States.

3.     However, states may regulate local aspects of port pilotage and navigation of ships in foreign commerce.

1.     Generally, when Congress regulates interstate commerce, conflicting state laws are superseded and even nonconflicting state laws in the field may be preempted.

2.     If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce. However, it must not "discriminate against" or "unduly burden" interstate commerce, or else it will violate the Dormant or Negative Commerce Clause.

3.     A state law is per se unconstitutional which: 1) directly regulates interstate commerce; 2) directly discriminates against interstate commerce; or 3) favors in-state economic interests over out-of-state interests.

4.     Exception #1: A discriminatory state or local law may be valid if it furthers a legitimate state interest and there are no reasonable nondiscriminatory alternatives available.

5.     Exception #2: A state may prefer its own citizens when acting as a market participant (e.g., when buying or selling, hiring labor, or giving subsidies).

6.     If a nondiscriminatory state law (i.e., local and out-of-state interests are treated alike) burdens interstate commerce, it will be valid unless the burden outweighs the promotion of a legitimate local interest. The court will consider whether less restrictive alternatives are available.

1.     The Commerce Clause is a grant of power to Congress to legislate, not a substantive rule or regulation of commerce in itself. The Clause does not itself prohibit or require specific commercial regulations.

2.     The failure of Congress to exercise its grant of power with respect to commerce means there is no federal law to which a particular state law can be compared.

3.     Neither is the Commerce Clause a grant of power to federal courts. Courts have no power to regulate commerce when Congress has not first spoken.

4.     When the courts regulate commerce in the absence of Congressional action, they are exercising will, not judgment, and are engaging in judicial lawmaking.

5.     Furthermore, federal courts do not have "common law" jurisdiction to decide cases involving violations of the law of nature by state laws.

6.     The exercise of "common law" jurisdiction by federal courts destroys federalism, in that: 1) all questions of right and wrong become "great" issues requiring national unity; 2) state diversity on state issues is lost; and 3) the distinction between state general police powers and federal enumerated powers is lost.

7.     The balancing test used to evaluate state laws affecting commerce when Congress is silent regards the law of federalism as a matter of degree, not a legal requirement.

8.     Under the Court's balancing approach, either local interests or the interests of interstate commerce can prevail, but under the Supremacy Clause, when state and federal laws conflict, the federal law must always control. Hence, the Supremacy Clause cannot be invoked to validate the "Dormant" Commerce Clause doctrine.

9.     There is no such thing as a "dormant" or "negative" Commerce Clause in the U.S. Constitution.

STATE AUTHORITY

A.     Privileges and immunities of state citizenship.

1.     Only fundamental rights are protected. These include important commercial activities (choice of occupation), interstate travel, and property rights.

2.     State citizenship is determined by mere residency for U.S. citizens. However, mere residency does not establish U.S. citizenship for aliens.

3.     The privileges and immunities of state citizenship do not apply to aliens or to corporations.

4.     The privileges and immunities of state citizenship are implicated when a fundamental right is at issue and a discrimination has been made by a state on the basis of state citizenship.

5.     A state may discriminate on the basis of state citizenship if it can show: 1) it is advancing a substantial state interest; 2) nonresidents either cause or are part of the problem it is attempting to solve; and 3) there are no less restrictive means available to solve the problem.

1.     Under the U.S. Const., the question of state power is not one of authority, but of limits on that authority. State authority is derived from state constitutions; the Union admits states, it does not create them.

2.     Express limits on state authority.

a.     Art I, Sec. 10. States cannot enter into any treaty or confederation; coin money or change legal tender; pass any bill of attainder, ex post facto law, or law impairing contracts; or grant any title of nobility.

b.     Art IV, Sec. 1 & 2. Full faith and credit; privileges and immunities clause; extradition of criminals.

3.     Implied limits on state authority are based on fundamental principles of federalism, e.g., states cannot tax people not represented in the state, because of the principle of "no taxation without representation."

4.     Historically, the limits on state authority are absolute, not matters of degree.

1.     If a state law actually conflicts with federal law, the state law will be invalidated.

2.     If a state law prevents achievement of a federal objective, it will be invalidated, even if enacted for some valid purpose and not to frustrate the federal law.

3.     A federal law or regulation may expressly or impliedly "occupy" the entire field, thus precluding any state or local regulation even if the state law is nonconflicting.

4.     Factors considered in determining implied preemption are: 1) comprehensiveness of the federal scheme, and 2) creation of an agency to administer the law.

1.     Federal immunity from taxation.

a.     A state may not directly tax federal gov't., its agencies or instrumentalities without the consent of Congress.

b.     However, nondiscriminatory, indirect state taxes are permissible which do not unreasonably burden federal gov't.

c.     Agencies or instrumentalities do not include federal contractors, who are not: formed or owned by U.S.; controlled or operated by U.S.; or vested with any governmental powers.

2.     Federal immunity from regulation. States may not regulate the federal gov't. or its agents while performing federal functions.

3.     State immunity.

a.     A federal tax or regulation directed to a purely state governmental activity may be limited by the 10th amend.

b.     Congress may subject state and local government activities to regulation or taxation if the law or tax applies to both the public sector and the private sector.

Beta v. 1.0. This is a work in progress - the right to make changes is expressly reserved.