Conlaw P&I Question

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Should I Transfer??
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Conlaw P&I Question

Postby Should I Transfer?? » Thu Apr 26, 2012 7:07 pm

If Congress passes a law requiring a state to discriminate against out of state residents, is the law subject to P&I (14th amendment or Art IV) challenge?

For example, Congress passes a law stating: "People from North Dakota cannot seek employment in South Dakota, if they have not lived in South Dakota for six months."

Bulls
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Re: Conlaw P&I Question

Postby Bulls » Thu Apr 26, 2012 7:21 pm

its my understanding that it would be a 14th amend PI challenge for the person in SD who hasn't been there for six months, but Art. IV for the ND resident

jjlaw
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Re: Conlaw P&I Question

Postby jjlaw » Thu Apr 26, 2012 7:57 pm

This is a right to travel case, no?

Should I Transfer??
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Re: Conlaw P&I Question

Postby Should I Transfer?? » Thu Apr 26, 2012 9:08 pm

Bulls, I agree with you completely.
jjlaw, I also agree completely with you.

Let me rephrase my question. Both 14th & Art. IV usually apply where a State is discriminating against those who have only been there a more limited duration or discriminating against those out of state, respectively.

Can these same challenges be brought if Congress enacted the statute? Or are they only available where the state is the actor?

Thanks!

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bk1
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Re: Conlaw P&I Question

Postby bk1 » Thu Apr 26, 2012 9:49 pm

I could be wrong, but my thinking is:

It's not subject to 14A PIC because that just applies to the states. But 14A PIC protects the rights that people have as US citizens so Congress generally can't abridge them either (even though Congress isn't specifically stopped by 14A PIC). I think the Comity Clause doesn't apply to Congress either.

If Congress did abridge the right to travel in a law, the law would probably be subject to 5A DPC analysis where the court would say it's a fundamental right and subject the law to strict scrutiny. The law you mentioned would also likely be subject to 14A EPC analysis as it applies to the fed gov by 5A DPC as well. See Shapiro v. Thompson.

Should I Transfer??
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Re: Conlaw P&I Question

Postby Should I Transfer?? » Thu Apr 26, 2012 11:58 pm

That seems to make sense. Thank you for your response.

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Re: Conlaw P&I Question

Postby apl6783 » Fri Apr 27, 2012 8:37 am

bk1 is right in one way, I think.

The 14th Amendment Privileges or Immunities and the Article IV Privileges and Immunities clause DO NOT apply to Congress. The point of the privileges and immunities clause was to stop the States from engaging in protectionism to the detriment of other States, and the point of the privileges or immunities clause was to stop them from discriminating, I guess? The P or I clause has not been reverse incorporated into the 5th amendment like the Equal Protection Clause has.

But, the right to travel is currently not a fundamental right for DPC purposes, and "out of staters" is not a protected class for EPC purposes. If passed by Congress that law would get rational basis review and surprise! It would pass. Though it's certainly possible that SCOTUS would determine that it was a fundamental right for DPC purposes, especially given the fact that the movement of former slaves to some States was restricted after the Civil War (Right? I'm not a history major).

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bk1
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Re: Conlaw P&I Question

Postby bk1 » Fri Apr 27, 2012 12:30 pm

apl6783 wrote:But, the right to travel is currently not a fundamental right for DPC purposes, and "out of staters" is not a protected class for EPC purposes. If passed by Congress that law would get rational basis review and surprise! It would pass. Though it's certainly possible that SCOTUS would determine that it was a fundamental right for DPC purposes, especially given the fact that the movement of former slaves to some States was restricted after the Civil War (Right? I'm not a history major).


I don't think the Court hasn't really looked at it from a DPC perspective. Shapiro says that the right to travel is a fundamental right and then applies strict scrutiny under EPC (though they also say the law would fail rational basis). Shapiro invalidated both a state law (that was approved by Congress) and a federal law (for DC) both through EPC. My point was that if it came to the Court they would look at it from a DPC perspective and likely find the right to travel is fundamental. I agree that they likely won't find a suspect class for EPC.

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bazinga!
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Re: Conlaw P&I Question

Postby bazinga! » Sun Apr 29, 2012 4:01 am

I would think this would be a equal protection concern, no? through reverse incorporation logic of boiling v sharpe which applies equal protection to congress. but reverse incorporation of equal protection is shaky ground for me.

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bk1
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Re: Conlaw P&I Question

Postby bk1 » Sun Apr 29, 2012 12:07 pm

bazinga! wrote:I would think this would be a equal protection concern, no? through reverse incorporation logic of boiling v sharpe which applies equal protection to congress. but reverse incorporation of equal protection is shaky ground for me.


The EPC firmly applies to Congress (though it is illogical). So unless you meant shaky logically I am not sure why you would consider it shaky ground.

The issue with an EPC challenge to this law is that neither out of staters nor people from ND are protected classes. But I think you're on to something, it may fail rational basis though I'm skeptical of that since it is a lot more rationally based than the law struck down in Romer.

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bazinga!
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Re: Conlaw P&I Question

Postby bazinga! » Sun Apr 29, 2012 6:17 pm

bk1 wrote:
bazinga! wrote:I would think this would be a equal protection concern, no? through reverse incorporation logic of boiling v sharpe which applies equal protection to congress. but reverse incorporation of equal protection is shaky ground for me.


The EPC firmly applies to Congress (though it is illogical). So unless you meant shaky logically I am not sure why you would consider it shaky ground.

The issue with an EPC challenge to this law is that neither out of staters nor people from ND are protected classes. But I think you're on to something, it may fail rational basis though I'm skeptical of that since it is a lot more rationally based than the law struck down in Romer.


Shaky ground because i don't know the theory that well, haven't looked it it closely enough. But as far as Congress making this law, this would be classification based on state citizenship which i'm not sure if it would qualify for any heightened scrutiny. It could also be struck down based on a 10th Amendment claim that this abridges a state's right to hire who it wants to hire...but it would be hard to make that argument without relying on Lochner-esque "liberty of contract". Also you could make a P&I claim based on the list given in Corfield (specifically: right to pass through and/or reside in a state) or Paul v. VA--where the object of P&I is to place citizens of each state on the same footing with citizens of other states. Pre-Slaughterhouse gutting but based on my understand on con lawl very little is off limits.

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bk1
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Re: Conlaw P&I Question

Postby bk1 » Sun Apr 29, 2012 7:08 pm

bazinga! wrote:Shaky ground because i don't know the theory that well, haven't looked it it closely enough. But as far as Congress making this law, this would be classification based on state citizenship which i'm not sure if it would qualify for any heightened scrutiny. It could also be struck down based on a 10th Amendment claim that this abridges a state's right to hire who it wants to hire...but it would be hard to make that argument without relying on Lochner-esque "liberty of contract". Also you could make a P&I claim based on the list given in Corfield (specifically: right to pass through and/or reside in a state) or Paul v. VA--where the object of P&I is to place citizens of each state on the same footing with citizens of other states. Pre-Slaughterhouse gutting but based on my understand on con lawl very little is off limits.


5A DPC --> EPC is just that it wouldn't make sense to allow Congress to violate EP while barring states from violating EP. It functions exactly the same for states as it does for fed since any precedents used to interpret one can be used for the other.

The problem (which I noted in my first response) is that 14A PIC doesn't apply to Congress (which makes Slaughter-House gutting largely irrelevant for this hypo). I don't think the Comity Clause applies to Congress but I could be wrong on that (so Paul v. VA isn't necessarily applicable). I do think it would get heightened scrutiny through 5A DPC for infringing the right to travel (as you mentioned does stem somewhat for Corfield v. Coryell).

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Hodgy
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Re: Conlaw P&I Question

Postby Hodgy » Wed May 09, 2012 6:59 pm

1) If Congress is requiring a state to discriminate, would that not be in violation of the 10th Amendment with the federal government commandeering whichever state it is forcing to discriminate. Congress would have to attach some sort of strings to do this, no?
2) Would this maybe fit into economic liberties under substantive due process? Even if EP Clause was somehow used, both appear to only require rational basis
3) Could this not get lumped into Commerce Clause?




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