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.

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.

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

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)

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 nonLincland 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

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.

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

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??

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?

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

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

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

NC Law: Dormant Commerce Clause

Minnesota Clover Leaf, Iowa trucking case

Pike balancing test

Police Power

Very little actual recourse because planes flying over

NC Law: Preemption

Could suggest a real pike balancing

Field Preemption: Classic field preemption

Florida Avocado Case

Gade

Explain why its not conflict preemption

Standing

Has standing because any change to the configuration would entail

substantial expense

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.

Argument that it doesnt violate

We have to argue that the newspaper board is

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

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

The problem is that there could be executive abuse of this power

Unless youre Scalia and Thomas, youre not bringing this

Might be worth a sentence

Section 12
st

1 Amendment

14 + 11 Amendment abrogation

Ex Parte Young: You can sue a state official for injunctive relief but not damages

Standing

th

th

Lujan procedural injury

Last paragraph
o
o

Nixon v Fitzgerald

4/24/15 10:54 AM

4/24/15 10:54 AM