Übertragung einer Vollmacht des Gesetzgebers der Ausführungskraft gegenüber.
*What we have seen so far is how world wide trade and instant global
communications have resulted in the expansion of federal powers
-due to the commerce clause.
-due to the plenary power of the federal government to tax (not spend!)
1
*Today we are looking at the expansion of federal power
-through the treaty power
AND
-challenges to the federal foreign policy power by the states.
Missouri v. Holland
Facts:
Migratory Birds
U.S. enters a treaty to govern migratory birds
Wildlife are state resources!
Side-note:
-there is no express federal environmental regulation power.
-first environmental code is in revolutionary france. after the u.s. revolution.<
-environmental law doesn’t really get going till the 1880s
-federal
environmental regulation is justified by the commerce clause in
connection with (i.V.m.) the necessary and proper clause
Issue: May federal government expand its powers by way of the treaty power?
Rules:
Implied
federal powers which are necessary and proper *means* to attain
enumerated *ends* (Zweck-Mittel Verhältnis) (Article I – Legislative
powers; Section 8: “necessary and proper” clause)
Powers not expressly granted to the federal government are reserved to the several states or the people. (10th Amendment)
No state shall enter into any treaty (Article I Section 10)
Article III Section 2 Judicial power extends to treaties. (Court can adjudicate treaties)
Supremacy doctrine: federal law hierarchically superior to state law
Presumption of no conflict between laws
Compare to NLRB
Race to the bottom
Expansion of Federal power
Constitutional Interpretation: “Living constitution”
Massachusetts-Burma
Issue:
whether the Burma law of the Commonwealth of Massachusetts, restricting
the authority of its agencies to purchase goods or services from
companies doing business with Burma, is invalid under the Supremacy
Clause of the National Constitution owing to its threat of frustrating
federal statutory objectives.
*Notice Massachusetts
isn’t saying anything about *private* action, it is *only* a boycott of
Burma by Massachusetts government institutions.
Arguments:
infringed on the federal foreign affairs power,
violated the Foreign Commerce Clause,
preempted by the federal Act.
Vocabulary: Enjoin, injunction
Rules
Preemption: Concurrent powers are no longer concurrent if there is preemption by the federal government.
Preemption
-May be express
-Or implied!
Preemption occurs in these cases:
1) Congress intended to “occupy the field”
2) State law conflicts with the federal law
3) “impossible for a private party to comply with both state and federal law,”
4)
“the challenged state law] stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress.”
APPLICATION:
“the state law undermines the intended purpose and “natural effect” of at least three provisions of the federal Act”
A)
“Congress clearly intended the federal act to provide the President
with flexible and effective authority over economic sanctions”
B) “Congress manifestly intended to limit economic pressure against the Burmese Government to a specific range.”
C) “the state Act is at odds with the President‘s intended authority to speak for the United States”
“It
is not merely that the differences between the state and federal Acts
in scope and type of sanctions threaten to complicate discussions; they
compromise the very capacity of the President to speak for the Nation
with one voice in dealing with other governments.”
“the
“nuances” of “the foreign policy of the United States… are much more
the province of the Executive Branch and Congress than of this Court,””
*What are the pros and cons?
*Lessons for the EU?
-About legal harmonisation?
-About coordinating foreign polices of the Member States?