Powerpoints for tonight:
We read cases to learn to extract rules and argue about rationales.
Preemption
Supremacy Clause
Issue: Is the Alabama legislation pre-empted by the federal law?
Due Process = Notice + Hearing
Congressional Intent
The problem with intent is it is often controverted or silent (Stillschweigend)
Rule: Preemption may be express or implied
Rule: There is a presumption against preemption when Congress legislates in a field traditionally occupied by the states.
(because the federal power is limited, but supreme)
Implied preemption is either
1) Field preemption or
2) Conflict preemption
Field preemption= Congress intended to preempt the entire field.
Conflict preemption=
compliance with both federal and state law is impossible OR
state law is an obstacle to the accomplishment of the purposes of congress.
Start with text… finish with intent.
How the court reasons: The Alabama law is not like the Pennsylvania law for these reasons (list of reasons)
This is called distinguishing; A is not like B because of C.
Show your work! WHY are A and B distinct?
How to interpret congressional silence?
Rule: Silence alone is not enough to show field preemption
Rule: Silence weighs in favor of finding that congress did not intend to preempt the field!
Statement of the Undersecretary of State
U.S. did not show any actual specific conflicts in fact between the state and federal law.
Rule: Conflict preemption is limited to cases where the exectuive branch’s action was specifically authorized by congress and is intended as a means of achieving national foreign policy goals.
Case cites the dissent… DUMB.
Not every constitutional infringement is per se irreparable harm
from per se rules to rebuttable presumptions – a general legal trend of the last 2 centuries.
Irreparable = money damages inadequate.
Court states U.S. did not submit enough evidence to show WHY there was a conflict, WHY there was preemption.
DORMANT COMMERCE CLAUSE — prohibits states from enacting statutes which impose substantial burdens on interstate commerce.
If the State law discriminates against out of state resident then it is proportionality+proportionality strictu sensu.
If the State law has no textual discrimination against out of state residents then the benefit to the state must merely outweigh the burden to interstate commerce.
WHAT COULD GERMANY DO WHEN ENTERING INTO TREATIES WITH THE U.S.
– Include a self executing clause.
– Make sure the treaty is ratified by the U.S. Senate
– Include remedies
–E.g., binding arbitration clause
— Especially remedies which can be enforced in Germany or at least the EU.
–Get statements from the U.S. Secretary of State &/or the President.
-Include a preemption clause! “This treaty preempts state legislation”.
ALABAMA LAW INTERFERED WITH NON CITIZENS RIGHT TO CONTRACT
U.S. Should have argued
1) The U.S. constitution directly applies to non citizens on U.S. territory due to the territorial principle of sovereignty.
2) The right to contract is a fundamental right guaranteed by the U.S. constitution.
3) Alabama’s act was unconstitutional. Game over!
*What about “the right to work”?
A clever anti-union greedy capitalist would argue the migrant laborers have a constitutional “right to work”.
Basically this statute is a bunch of hicks who are scared of foreigners.
WHAT CAN GERMANY DO WHEN DEALING WITH THE U.S. STATES
e.g. Germany makes a contract with the New York State about mutual tax recognition.
– Include “severability” clause
– Call the State or City actor a “market participant” (acto jure gestionis). When a public law body acts as a private market participant it is treated as if it were a private law actor.
i wanted to suggest we go through the torture memos which were the Bush administrations legal justification for torture and
1. see if they hold up to U.S./international law
2. see if there is any criminal liability for the authors of these memos under U.S/international law.
3. see if a President authorising/ordering the use of these "interrogation methods" is guilty of war crimes under U.S. and/or international law.
4. which court would have juristiction?