Sheridan: Con-Law

TOBACCO & RED-HERRINGS

Prof. Robert Sheridan
Conlaw, SFLS
DECEMBER, 2003

THIS IS AN OLD EXAM QUESTION, FOR STUDENTS WHO THINK THAT LAST YEAR'S QUESTIONS MIGHT BEAR SOME RESEMBLANCE TO THIS YEARS, WHICH I HAVE NOT AS YET INVENTED. 

SO FAR, AT LEAST, I'VE SHOWN AN AMAZING ABILITY TO CHANGE THE EXAMS AROUND FROM SEMESTER TO SEMESTER AND YEAR TO YEAR TO "IMPROVE" THEM ON ONE COUNT OR ANOTHER.

THIS YEAR I'M THINKING OF HAVING ONE ESSAY QUESTION DESIGNED TO HAVE THE STUDENT SHOW FAMILIARITY WITH THE WORK I'VE DONE TO EXPLAIN AND MAKE CONSTITUTIONAL LAW AVAILABLE ON THIS BLOG.

Essay Question #1

TOBACCO

The proponents of clean air, better health, and lower medical costs, costs that are often ultimately borne by the state, have organized a political action group called Better Health Through Less Tobacco (BHTLT or BH for short). BH has been successful in attracting large donations from supporters, enough to lobby the California state legislature strongly enough not only to compete with the tobacco lobby but in some cases to outweigh it.

As a result the California Legislature has passed a law that becomes effective the following January 1st, forbidding the growing, importation, sale, possession for sale, or possession in California of all tobacco and products made of tobacco, i.e. cigarettes, cigars, loose tobacco for rolling-your-own, pipe tobacco, chewing tobacco, snuff, etc. in any appreciable amount, i.e., capable of being weighed, measured, or used.

Violation of this new California Anti-Tobacco statute is declared to be a misdemeanor for possessing, etc., up to certain adequately defined quantity limits, and a felony for greater amounts.  The penalty for violations may include jail and prison time as well as substantial fines.

As a result, legal tobacco sales in California will end.  Tobacco dealers ranging from the large grocery chains to the local mom-and-pop corner stores are protesting the substantial loss of profits they will suffer by forming the Tobacco Dealers Association (TDA or TD for short). 

TD has brought a suit in federal court seeking to enjoin California’s Anti-Tobacco Statute to prevent it from taking effect next year on the ground that it is unconstitutional under the U.S. Constitution because it deprives tobacco sellers of their substantive due process right to make a living and of their customers’ liberty to enjoy the pleasure of smoking.

Plaintiffs are Safeway, Albertsons and Von’s Supermarkets, and other large chains, along with several mom-and-pop tobacco dealers.  In addition to their own interests, the tobacco dealers have argued that their customers have been deprived of their rights to buy and use tobacco products.

While the case was pending, the chief lobbyist for the Better Health group, the Speaker of the California Assembly and six legislators who voted in favor of the bill, were all accused criminally together and convicted of giving and accepting bribes, respectively, to ensure passage of this closely decided Anti-Tobacco bill.  In fact the bill would not have passed but for the votes of the corrupted legislators, and this fact has been widely publicized during the scandal that followed.

The TD lawsuit has now reached the U.S. Supreme Court, which first must examine the question whether the plaintiffs have standing to bring the action, and if so, then to decide the case on the merits.

Question #1

Discuss whether or not there is standing to maintain this lawsuit.  State your reasoning and conclusion.

Question #2

Regardless whether or not you thought there was standing to sue in answer to Question #1, for the purpose of discussing the merits assume that the Court has jurisdiction to entertain the lawsuit, and then:

Discuss whether or not the U.S. Supreme Court should declare the California statute unconstitutional and state the reasoning.

 

ANSWERS SHOULD RECOGNIZE, DISCUSS, AND ELABORATE ON THE FOLLOWING THEMES, RELATING TO CASES, IF NOT BY NAME, THEN BY FACTS, SUCH THAT A PRINCIPLE OF LAW IS DESCRIBED AS APPLYING.  ARGUE WHICH WAY THE CASE SHOULD BE DECIDED: STANDING FOUND? YES OR NO,   MERITS: CONSTITUTIONAL OR UN-CONSTITUTIONAL.

STANDING

The dealers clearly have standing to sue because of the concrete injury they suffer by this legislation by being put out of the tobacco business, just as the butchers of New Orleans did in the Slaughterhouse cases.

Do the dealers have the right to assert the right to buy of their customers?  Yes under Craig v. Boren as the analogy is to the bar-owners’ right to sue on behalf of customers.  Jus Tertii, 3rd party standing.

MERITS
On the merits, the issue is whether the court should take over from a corrupt legislature and declare legislation unconstitutional either because it was corruptly passed or as a violation of economic substantive due process.

The answer is no, it should not.  Legislative corruption is a red-herring.  See Fletcher v. Peck, Marshall, C.J., and the Yazoo land scandal, Georgia.

This is ordinary economic and social legislation a la Lochner.  The Court is out of the business of Lochnerizing.  Williamson v. Lee Optical and progeny.  It is up to the voters to resort to the political process to undo bad legislation or remove legislators by voting them out or sending them to prison as the result of criminal prosecution. 

Tobacco dealers are not likely to be viewed as a ‘discrete and insular minority’ under Fn. 4, Carolene.  Nor are textual or 'access to political process' rights involved, also Fn. 4.  Thus no heightened scrutiny.

Commerce clause issue?  Not really.  A state can prohibit drugs and weapons without violating commerce power, so ought to be able to prohibit possession and use, although not transit, say in a bonded sealed container.

[Note to Prof. from Prof. :

Subject:  Demise of the Lochner Era; refusal of the Court to use Due Process grounds to declare unconstitutional ordinary economic or social legislation; refusal to act as super-legislature, override wisdom and policy judgments of legislatures; allowing corrections to be made by the political process, not the court acting as superlegislature using power of judicial review.

Problem:  Construct a fact situation presenting facts and circumstances involving legislation on a subject of ordinary social and economic legislation, but with an obvious unfairness such that it is appealing to want the Court to overturn the legislation, i.e., to return to the age of Lochner, perhaps with some legislative chicanery involved undermining the legitimacy of the law.]

SMOKESTACKS

Prof. Sheridan
Conlaw, SFLS
December, 2003
Essay Question #2

ANTI-POLLUTION LAWS

The smoke stacks of coal-burning power plants located in several states in the Midwest emit ozone, mercury, particulate matter, and other harmful chemicals which enter the atmosphere drift northeastward, pollute the rain, hence the streams, and kill fish.  These power plants provide electric power to homes, stores, factories, cities and states through a power grid of wires criss-crossing the entire country.

Although the federal Clean Air Act prescribes the acceptable limits of such emissions, the federal government under the current administration has granted waivers from these limits, allowing the harmful activity to continue.

Scientific and medical researchers have reliably attributed a  number of harmful effects to this specific power-plant chemical pollution of the atmosphere, including:

• One in four children in high population density areas of New York City have been found to suffer from asthma, a life-threatening lung ailment.

• Many of the lakes in several Northeastern states have become sterile of fish as the result of the “acid rain”produced when ozone and other chemicals interact with moisture in the air.  Acid rain falling in the watersheds pollutes the streams that feed the lakes, killing vital elements in the food chain and ultimately the fish. Mercury traced to these power plants is found in fish eaten by humans.  Mercury in humans is very harmful, especially to fetuses and children.

• Mountain lakes in the Appalachian Mountain chain extending from Georgia northeastwards to the Adirondack Mountain chain in New York State and into Canada have become sterile of fish as the result of acid rain coming from power plants in the Midwest.

• These sterile lakes used to attract thousands of visitors from home and abroad who supported the local economy by spending substantial sums fishing, camping, and enjoying nature.  Hard-working parents used these occasions to relax and their families used the visits to foster their relationships by interacting enjoyably together in a natural setting. Tourism centering on enjoyment of the lakes has dropped off significantly since they became sterile, hurting the local economy as well as the ecology.

The legislature of the State of New York, taking note of the above, has enacted Anti-Pollution legislation making it a crime to emit dangerous pollution into the atmosphere which enters the state and causes acid rain, harm to wildlife, or harmful health-effects to children or adults. 

New York State’s aggressive attorney-general, who aspires to higher political office,  has announced publicly that he intends to accuse criminally by indictment not only several named corporations operating polluting power plants in the Midwest but their officers and directors as well. 

The New York Anti-Pollution Act also provides that any convicted polluter may no longer contribute or distribute power into New York State without paying a substantial “pollution cleanup fee” based on the quantity of power distributed by any plant into the state. These fees will be put into a fund and used to provide health care and to clean up and re-stock the lakes with fish. 

Power plants in New York, both state owned and privately owned, burn fuel oil, not coal, in plants that protect against any harmful emissions escaping.  If out-of-state coal-burning plants must pay New York State’s pollution cleanup fee the result will be to make their electricity much more costly than locally produced power.  Local New York power producers have enthusiastically supported this legislation.

Several other Northeastern states, following New York’s lead, have enacted copycat legislation to the same effect, posing a similar threat.

Seeking to block the threatened indictments on constitutional grounds, the Association of Midwestern Powerplants (“AMP”) has brought suit in federal court on behalf of its member power plant corporations asking the court to enjoin enforcement of the New York Anti-Pollution Statute, claiming that its enactment by New York State has violated the Commerce Clause.  The case has now reached the U.S. Supreme Court which is considering the matter on the merits. 

Assume that the case was properly pled and brought, and that standing to sue has already been found and need not be discussed by you.

Question: State whether the Court should declare unconstitutional

(a) the penal aspect and

(b) the “pollution cleanup fee” provision of the New York State Anti-Pollution Statute.

State your reasoning and arguments based on applicable constitutional law.

***

ANSWERS SHOULD RECOGNIZE, DISCUSS, AND ELABORATE ON THE FOLLOWING THEMES, RELATING TO CASES, IF NOT BY NAME, THEN BY FACTS, SUCH THAT A PRINCIPLE OF CONSTITUTIONAL LAW IS DESCRIBED AS APPLYING.  ARGUE WHICH WAY THE CASE SHOULD BE DECIDED BASED ON THOSE STATED PRINCIPLES OF CONSTITUTIONAL LAW:

MERITS: CONSTITUTIONAL OR UN-CONSTITUTIONAL?

This question pits the reserved “police power” of the states, whereby states may enact legislation to protect the health, safety, morals and welfare of its residents, under the Tenth Amendment against the Commerce Power delegated to Congress and the federal government by the states in Art. I, Sec. 8, Cl. 3.

Clearly the states have power to legislate under the reserved police power.

However, this legislation has an impact on interstate commerce since the polluting conduct originates outside of the state but crosses state lines atmospherically to enter and harm lakes, children, and the economy.  The power generating and polluting activity are interstate in nature and national in extent, over the national power grid and across state lines.

Congress has enacted a Clean Air Act which may pre-empt the field under the Supremacy Clause, depending on whether Congress has fully occupied the field or expressed its intent to pre-empt.

However, by granting waivers, the Administration has undercut the protection of the federal statute and forced the states to protect themselves. 

The question is whether the states are constitutionally empowered to protect themselves, i.e. their residents, considering that if each state is allowed to so protect itself the nation may resemble a patchwork quilt of conflicting legislation.  In the case of highways this has been allowed, but as to railroads it has not.

The  Court should recognize the power of the states to protect themselves from legitimate harm to residents and the ecology.  The court will have difficulty determining whether the potential for checkerboarding is sufficient to constitute an undue burden on interstate commerce.  If the Court were to permit the states to so legislate, it would force Congress and the Administration further to act such as by repealing the waivers or enacting further requirements to limit or prevent pollution.

The state legislation appears to be a legitimate response to an actual harmful situation.  There are facts suggesting that the state is favoring its own by imposing a pollution cleanup fee that favors local producers over out-of-staters economically.  This provision may fall as a per se favoritism violation acting as an undue burden on interstate commerce.  Or, it may be reasonably related to the cost of cleanup caused by the harmful activity.

Perhaps a split court, with the conservatives holding in favor of preemption and finding unlawful discrimination against outsiders, while the liberals opt for upholding both legs of the legislation as reasonably related to legitimate state interests and the cost of cleanup.