2009 issue spotting - Magarian 4/24/15 10:54 AM

QUESTION 1

FEDERAL PREEMPTION: Implied o New Columbias law

Conflict preemption NCs law impedes federal goal set forth. NC is setting a lower

standard and is therefore circumventing federal law. Congress has decided that the measure of safety is four lights with 4000ft visibility and NC attempts to set the bar lower.

o Lincland Conflict preemption

Since its not impossible to comply with both Linclands statute and FATSA, there is also conflict preemption in this case. By setting a higher standard, Lincland is impeding a federal goal because it is likely that airplanes operating in the state [of Lincland] do not comply with Linclands standards yet never plan to land in Lincland.

Since airplane travel necessarily crosses state boundaries without stopping, any aircraft that flew over Lincland has to have more lights and greater visibility, creating a preemption problem. If it were in regard to an industry that wasnt necessarily interstate, then this may be ok.

o Might also be a case where the federal interest should be held as dominant since most air travel is necessarily interstate. Therefore, all states having different standards would be ridiculous because it ends up requiring airplane companies to comply with the state that has the highest standard, because.

If no preemption, then there is technically no federal statute on point and therefore we can

move to a dormant commerce clause analysis.

DORMANT COMMERCE CLAUSE o NCA

Publicly traded company means theyre not just sort of on their own. Magarian mentions this because

o New Columbia

No DCC because there bar is lower than the national standard, which every plane operating in the nation must abide by (I wouldnt even say this on the exam)

o Lincland There is a DCC problem with Linclands statute because almost all carriers

based in Lincland meet Linclands statutes standard and only 20% of all US passenger planes meet the standard (including those based in Lincland).

Therefore, it can be argued that Lincland is imposing costs on out of staters that in-staters dont have because theyre already complying with the law

The argument against Lincland is that although it is not facially discriminatory, the effect is discriminatory to out-of-staters

Linclands argument is that they are protecting the health and safety of its citizens. Police Power

Problems with this line of reasoning 1. Many (maybe even most) people subject to this statute will

not be Lincland citizens. Passengers and pilots and airplane companies that have to comply are going to be mostly non-Lincland citizens especially if Lincland is a state that is flown over a lot, like Nebraska, or Missouri.

2. Cant use police power to create a barrier to ISC (Baldwin) Case Id use: Baldwin

Not a perfectly similar case, but theres a similarity because Lincland is promoting their own in-state operators by passing a law they know theyre already mostly in compliance with. Therefore, court invalidates, saying the police power is a smoke screen. I think the court should do the same here because a state may not create a barrier on interstate commerce in using their police power.

For example, if a company was charging cheaper prices that wasnt based in Lincland, Lincland citizens could not buy a plane ticket from that company if they want to depart from Lincland

Essentially, Lincland is jailing its own citizens and the only way to obtain a key, in most cases, is to pay an in-state airplane carrier who is in compliance with the Lincland law.

P+I

o Argument that travel is a fundamental right. We ruled that travel on interstate highway was a fundamental right (in Heart of Atlanta I believe) why cant it be that way for Air travel, especially in todays day in age.

o Weak argument really because most P+I deals with discrimination against citizens and it isnt likely an individual citizen will bring this suit. Probably an out of state airplane carrier. Plus our client is a corporation

Last paragraph

o If Lincland has a waiver inside their statute, maybe their true intention the entire time was to gather money used from dangling a waiver in front of those who want to expand into Lincland. The waiver allows Lincland to let those who pay an additional fee come aboard, which is another example of discriminating against out-of-staters

o Lincland could respond that they also offer the waiver to in-staters who dont comply presently or that it is in relation to the police power by protecting health on account of the air pollution. I think this argument is fruitless because the fact pattern gives no standard as to the requirements for a waiver. It seems incredibly arbitrary to me.

QUESTION 2

SoP: Removal Power o President must get Senate consent to remove executive officers?? o I think appointing is ok, but not removal

Term limits requirement does not further the goal of the statute itself

o US Term limits v Thornton

Spending power issue with the term limits requirement o Not a nexus between the condition and the government interest the arena theyre

spending in

What about the fact that FNC gets to decide which large scale newspaper to subsidize? Conflict of interest? Subsidizing only those in favor of the FNC/Prez/Executive branch

o

Separation of Powers issue with FNC determining which newspapers get funding. Shouldnt this be up to Congress?

o Non-delegation?

Commerce Clause? Is this purely state activity? I dont think so o Most likely not an issue as to larger newspapers as a result of the internet o Might be small issue with completely local newspapers, but this can even be

described as interstate because you have people that leave the area into another state that still want to read their old local newspaper and even small local newspapers have those who purchase online subscriptions from out of state.

Last paragraph

o Political question Judiciary would be making a political move by granting Hancock the position,

which is reserved for the president to appoint Slight SOP

Factors present in this fact pattern that lend to political question Lack of judicially discoverable and manageable standards for

resolving issue Impossible to decide without making a policy determination Potential of embarrassment for differing pronouncements of the issue

by different branches of government o Lack of Standing

Not redressable? REVIEW WITH Phil, Shamari, David, JP, Phil Problem 1

Paragraph 1: NC Statute

o Commerce Clause Gotta pass Morrison and Lopez

Substantial effects test Passes the test

Good nuance to talk about interstate nature of airplanes

o NC Law: Dormant Commerce Clause

Minnesota Clover Leaf, Iowa trucking case Pike balancing test

Could suggest a real pike balancing Police Power Very little actual recourse because planes flying over

o NC Law: Preemption

Field Preemption: Classic field preemption Florida Avocado Case Gade

Explain why its not conflict preemption o Standing

Has standing because any change to the configuration would entail substantial expense

o Taking Not actually a taking because its regulating injurious use and it applies

broadly Some economic benefit still retained (South Carolina coastal case) Market expectation argument for NCA

Paragraph 2: Linclands Statute

o DCC Across the board ban Facially discriminatory can get us to

Last paragraph: Conditional Taking

o Uneven fee scheme Since its discretionary, theres not enough here for it to be dispositive

HP Hood for discretionary PROBLEM 2

Section 3 o Removal Power: Appointments Clause + Impeachment

Bowsher = Putting a condition on it

Morrison v Olson = Traditional test. Use it. o Argument that it doesnt violate

We have to argue that the newspaper board is

o Legislative Veto If the president wants to remove and the legislature denies, this is effectively

a legislative veto No bicameralism This is even worse than traditional legislative veto because it breaks all the

rules. (we need less than 2/3 super majority to overtake the President) It also is worse than Free Enterprise

Two layers of removal, which the court struck down o Commerce Clause is good. Mention it.

Section 7a

o Spending Power South Dakota v Dole

Conditional grants and subsidies NOT related to the purpose of the statute

Sebelius

Term Limits v Thornton Maybe congressional consent adds something Probably not, balance of federal power disrupted without amendment

Section 7b o Non-delegation? That problem will almost always fail o The problem is that there could be executive abuse of this power o Unless youre Scalia and Thomas, youre not bringing this o Might be worth a sentence

Section 12

o 1st Amendment o 14th + 11th Amendment abrogation o Ex Parte Young: You can sue a state official for injunctive relief but not damages o Standing

o Lujan procedural injury

Last paragraph o Nixon v Fitzgerald o

4/24/15 10:54 AM

4/24/15 10:54 AM