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建立人际资源圈美国essay代写：What federalism is
2017-05-15 来源: 51due教员组 类别: Essay范文
本篇美国essay代写讲了1890年，国会制定了“谢尔曼反垄断法”，该法旨在通过分裂垄断来恢复竞争和自由企业。 1906年通过了法律，确保食品和药品被正确贴上标签，并在出售前检查肉类。 1913年，政府建立了一个新的联邦银行体系，即美联储，以规范国家的货币供应，并对银行业务进行一些控制。本篇美国essay代写由51due论文代写机构整理，供大家参考阅读。
1. Know what federalism is.
Federalism – The legal relationship between the states and the federal government.
2. Be acquainted with what the Enumerated Powers for Congress (Article 1, Section 8 of the Constitution) are in the U.S. Constitution.
The enumerated powers are a list of items found in Article I, Section 8 of the U.S. Constitution that set forth the authority of Congress.In summary, Congress may exercise the powers that the Constitution grants it, subject to the individual rights listed in the Bill of Rights.
1. Collect Taxes
2. Borrow Money
3. Regulate Commerce Between states
4. Bankruptcy & Naturalization
5. Coin Money
6. Punish Counterfeiting
7. Establish Post Office
8. Promote Progress of Science and Arts
9. Establish lower courts
10. Punish Pirates on seas
11. Declare war
12.-16. Raise and Support Army and Navy
17. Establish District of Columbia
18. Make Law to Carry Out above
3. Know what the Commerce Clause states (third clause of Section 8), particularly the segment dealing with commerce among the states.
The provision of the U.S. Constitution that gives Congress exclusive power over trade activities among the states and with foreign countries and Indian tribes.
So what is covered by “commerce among the states?” Through Supreme Court cases we can identify four general areas in which the Commerce Clause gives Congress exclusive authority.
First, Congress may regulate the channels of interstate commerce.
Second, Congress may regulate the instrumentalities of interstate commerce.
Third, Congress may regulate things which move across state lines.
Finally, Congress may regulate activities which have a substantial effect on interstate commerce.
4. Know the general facts of Gibbons v. Ogden and how it empowered Congress to regulate interstate commerce.
Gibbons v. Ogden, 22 U.S. 1 (1824),[1] was a landmark decision in which the Supreme Court of the United States held that the power to regulate interstate commerce, granted to Congress by the Commerce Clause of the United States Constitution, encompassed the power to regulate navigation. The case was argued by some of America's most admired and capable attorneys at the time. the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.
5. Be acquainted with the limitations on Congress’ ability to regulate business that Gibbons created in its interstate vs. intrastate doctrine.
Created the interstate vs. intrastate doctrine.
The interstate v. intrastate doctrine: no immediate influence on the U.S.Influence began to change in the 1880s: Economy was evolving from an agrarian society to an industrial society.
Still, Courts and Congress greatly influenced until 1937.
6. Be acquainted with the historical and economic conditions of the late 19th Century that set the stage for regulatory intervention by Congress.
In 1890, Congress enacted the Sherman Antitrust Act, a law designed to restore competition and free enterprise by breaking up monopolies. In 1906, it passed laws to ensure that food and drugs were correctly labeled and that meat was inspected before being sold. In 1913, the government established a new federal banking system, the Federal Reserve, to regulate the nation's money supply and to place some controls on banking activities.
United States antitrust law is a collection of federal and state government laws, which regulates the conduct and organization of business corporations, generally to promote fair competition for the benefit of consumers. The main statutes are the Sherman Act 1890, the Clayton Act 1914 and the Federal Trade Commission Act 1914.
7. Be acquainted with the Affectation Theory created in NLRB v. Jones and Laughlin Steel Co. of 1937 and how the theory was later interpreted in 1942 in Wichard v. Filburn.
SCOTUS: In NLRB v. Jones and Laughlin (J & L) Steel Company (1937) heard a case involving strikes at a major steel producer in Pittsburgh
J & L’s argument: Its steelmaking activities were not in interstate commerce since did not involve movement.
SCOTUS: Congress can regulate anything that affects interstate commerce.
Became known as the "Affectation Theory."
8. Be acquainted with the Heart of Atlanta Motel v. U.S. and how the Commerce Clause is used to justify the regulation of social as well as economic problems.
Wichard v. Filburn: Further defined the boundaries of the new AffectationTheory.
Facts: Roscoe Filburn was a small Ohio farmer who produced wheat on 5 acres of land. He violated the AAA (Agri. Adjustment Act).
All the wheat he grew was only consumed by his family and farm animals.
SCOTUS: Even though Filburn’s activities might not directly affect interstate commerce, in the aggregate, it may have a substantial effect on interstate commerce.
Signaled SCOTUS’ willingness to broadly apply the Affectation Theory.
9. Know in general how a Commerce Clause analysis is designed to do.
Exclusively Federal Subject Matter Possible Dual Regulation Between Federal and State (Dormant Commerce Clause) Exclusively Local Subject Matter (State or Local Government Laws)
State Regulatory Law in Direct Conflict with Federal Law.
These laws would be preempted by Supremacy Clause I. Federal law does not preempt state regulatory law, but state regulatory law is unconstitutional IF:
(a) State law is in irreconcilable conflict with federal law.
OR:
(b) State law constitutes an undue burden (substantially effects ) interstate commerce:
(1) Is the purpose of the state regulator law a legitimate local purpose? i.e. does it fall within the a state’s Police Powers?
(2) Does the state’s regulatory law impact interstate commerce?
(3) If so, balance the burdens vs. the benefits, i.e. Determine the burdens on interstate commerce vs. the benefits to the health, safety and welfare of the law to its citizens. (See Raich)
OR:
(c) State law discriminates against interstate commerce in favor of intrastate commerce. No duel regulation-state or local law governs.
10. Know what exclusively federal subjects are and why they are preempted.
When a state law conflicts with a federal law or impedes the objective of federal law, the state law is impliedly preempted. This also applies when Congress clearly evidences their intent to preempt state law in the area but does not include explicit language to that effect in the legislation.
11. Know what dual regulation is and how a state or local law can be preempted if it is in irreconcilable conflict with a federal law. Know how a law can also be reconciled with a similar federal law.
What happens when state law conflicts with federal law? The answer relies on the doctrine known as federal preemption. Congress has preempted state regulation in many areas. In some cases, such as medical devices, Congress preempted all state regulation. In others, such as labels on prescription drugs, Congress allowed federal regulatory agencies to set national minimum standards, but did not preempt state regulations imposing more stringent standards than those imposed by federal regulators. Where rules or regulations do not clearly state whether or not preemption should apply, the Supreme Court tries to follow lawmakers’ intent, and prefers interpretations that avoid preempting state laws.
For instance, Reconciling Federal and State Laws on Marijuana Use Conflicting messages about state and federal marijuana laws have left employers wondering whether they may regulate medical marijuana use during working and non-working hours as well as the ability of employers to drug test employees and applicants. Employers need to be aware of the state of the law on the federal and state level as well as proposed legislation and how this can impact their workplace policies and procedures as well as how to implement a drug-free workplace policy and discipline employees for marijuana use.
12. Know how the courts determine whether a state law creates an undue burden on interstate commerce and how to apply it to a factual scenario.
The court held that the statutes that classified students who apply for admission to the state university into in-state and out-of-state students did not violate the Commerce Clause because the classification was reasonable. A state statute affecting interstate commerce is not upheld merely because it applies equally to, and does not discriminate between, residents and nonresidents of the state, as it can otherwise unduly burden interstate commerce.
.The U.S. Supreme Court held that the authority of Congress to promote interstate commerce encompasses the power to regulate local activities of interstate commerce, in both the state of origin and the state of destination, when those activities would otherwise have a substantial and harmful effect upon the interstate commerce. The Court concluded that in this case, the federal prohibition of racial discrimination by motels serving travelers was valid, as interstate travel by blacks was unduly burdened by the established discriminatory conduct.
13. Know the Commerce Clause implications of a state law that favors itself over out-of-state competition.
In order to determine whether a law violates a so-called "dormant" aspect of the Commerce Clause, the court first asks whether it discriminates on its face against interstate commerce. In this context, "discrimination" simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter. Thus, in a dormant Commerce Clause case, a court is initially concerned with whether the law facially discriminates against out-of-state actors or has the effect of favoring in-state economic interests over out-of-state interests.
14. Know the doctrine of “state action” and how it pertains to the Bill of Rights.
State action (by a local, state or federal government): Required before the Bill of Rights apply.
Does not apply to a private business.
Application: only to a statute, regulation or court order that impinges on a right existing in the Bill of Rights.
15. Know the doctrine of “selective incorporation” and it functions to protect citizens from the actions of state and local governments.
From the 1920s onward, the Supreme Court broadened its stance on the doctrine of selective incorporation and has gradually extended the protection granted in the Bill of Rights to many aspects of state government. In the 50's and 60's selective incorporation accelerated. The result of these and other Supreme Court rulings over time has limited the right of states to make laws that limit the rights and privileges granted to citizens in the Constitution.
16. Know what the First Amendment protects.
Political speech by corporations: Protected by the First Amendment.
Citizens United v. Federal Election Commission (2010) SCOTUS: Corporations can spend freely to support or oppose candidates for President and Congress
Is a form of free speech and expression.
17. Know what the four exceptions to the First Amendment freedom of speech and expression are.
The First Amendment rights to free speech and expression: strong rights with exceptions.
Four exceptions to the First Amendment:
1. Lewd & Obscene;
2. Profane
3. Libel and Slander;
4. Insulting, fighting and dangerous words (Example “Yelling fire in a crowded theater”).
18. Be acquainted with the extent to which political speech is protected relative to commercial speech.
In the past, commercial speech was not protected by the First Amendment. However, in the 1970s the Supreme Court began to recognize that free commercial speech was essential to the public’s right to know.
19. Know how to apply the test for determining whether a law regulating commercial speech is constitutional.
To survive a constitutional challenge on commercial speech, a government must prove the following 3 elements:
government must show that there's a "substantial governmental interest."
Its regulation directly advances the interest.
Its manner of regulation is not more extensive than necessary to serve the interest.
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