scholarly journals Pub. L. No. 86-272 and the Anti-Commandeering Doctrine: Is This Anachronism Constitutionally Vulnerable After Murphy v. NCAA?

2020 ◽  
pp. 201
Author(s):  
Matthew Melone
Keyword(s):  
South Dakota ◽  
Due Process ◽  
Regulatory Regime ◽  
Business Practices ◽  
Federal Law ◽  
State Action ◽  
Personal Property ◽  
Commerce Clause ◽  
Sports Gambling ◽  
Physical Presence

State taxing authority suffers from little of the structural impediments that the Constitution imposes on the federal government’s taxing power but the states’ power to tax is subject to the restrictions imposed on the exercise of any state action by the Constitution. The most significant obstacles to the states’ assertion of their taxing authority have been the Due Process Clause and the Commerce Clause. The Due Process Clause concerns itself with fairness while the Commerce Clause concerns itself with a functioning national economy. Although the two restrictions have different objectives, for quite some time both restrictions shared one attribute—a taxpayer physical presence test. Business practices evolved in response to technological developments and the ability of enterprises to avail themselves of a forum state’s markets with little or no traditional physical presence in the state resulted in the elimination of the physical presence test for Due Process purposes almost thirty years ago. The subsequent exponential growth of electronic commerce finally led to the demise of the physical presence test for Commerce Clause purposes as a result of the Court’s recent decision in South Dakota v. Wayfair. However, a six decades old statute remains an impediment to the states’ ability to exercise income tax jurisdiction over the income earned by remote sellers of tangible personal property. In a case unrelated to state taxing authority during the same term, the Court in Murphy v. National Collegiate Athletic Association struck down a federal law that prohibited states from authorizing sports gambling. According to the Court, the federal law impermissibly commandeered state legislatures. A critical holding in that case was that a federal law that prohibits state action is subject to the anti-commandeering doctrine similar to federal laws that mandate state action. The federal statute that limits the states’ ability to tax is very similar to the gambling statute that the Court struck down—it prohibits states from enacting otherwise permissible legislation without establishing a corresponding federal regulatory regime. In short, the statute commandeers the states similarly to the gambling statute. As a result, the statute is an impermissible encroachment of state sovereignty. Part I of this Article discusses the Due Process and Commerce Clause limitations on states’ taxing powers and the eventual demise of the physical presence test as a result of Court’s holdings in Quill Corp. v. North Dakota and, more recently, South Dakota v. Wayfair. This part also discusses Pub. L. No. 86-272, the longstanding prohibition imposed on states with regard to the taxation of income derived by remote sellers of tangible personal property. Part II discusses the anti-commandeering doctrine. This doctrine has surfaced as a significant bulwark for federalism over the past three decades and led to the demise of the federal sports gambling legislation as a result of the Court’s recent decision in Murphy. This part concludes with an analysis of the case and its potential application to the tax statute.

Constitutional Law in 1918–1919. II: The Constitutional Decisions of the Supreme Court of the United States in the October Term, 1918

1920 ◽  
Vol 14 (1) ◽  
pp. 53-73
Author(s):  
Thomas Reed Powell
Keyword(s):  
Due Process ◽  
The United States ◽  
Fourteenth Amendment ◽  
The State ◽  
Personal Property ◽  
Commerce Clause ◽  
The Supreme Court ◽  
Constitutional Decisions ◽  
Extra State ◽  
Foreign Corporation

Several of the cases already considered under the commerce clause involved further questions under the Fourteenth Amendment. Georgia's misuse of the mileage ratio in applying the unit rule to the taxation of wandering cars was found so arbitrary as to violate the requirement of due process. The minority insisted that “the case presents no question of taxing a foreign corporation with respect to personal property that never has come within the borders of the state.” This was not specifically denied by the majority who seem to base their decision on excessive valuation of property within the jurisdiction rather than on taxation of property outside the jurisdiction. Yet in substance the case is one of taxing extra-state values though not extra-state tangible objects.Missouri's excessive fee for certificates authorizing the issue of bonds secured by railroad property within the state, which was held an unconstitutional regulation of interstate commerce, was alleged by complainant to be a violation of the Fourteenth Amendment as well. The opinion of the court did not pass on the due-process question, but the cases cited under the commerce clause relied also on the Fourteenth Amendment.

Constitutional Limitations

2018 ◽  
Author(s):  
Scott Burris ◽  
Micah L. Berman ◽  
Matthew Penn, and ◽  
Tara Ramanathan Holiday
Keyword(s):  
Public Health ◽  
Supreme Court ◽  
Due Process ◽  
Reproductive Rights ◽  
Court Cases ◽  
Health It ◽  
State Action ◽  
Substantive Due Process ◽  
State Action Doctrine ◽  
Due Process Rights

This chapter describes “due process,” a Constitutional restriction on governmental actions that impact individuals, in the context of public health. It outlines the doctrines of procedural and substantive due process, including the legal tests that courts apply to decide whether individuals’ due process rights have been violated. It uses examples from Supreme Court cases that have defined due process in the context of public health, including those that struggle to define the scope of reproductive rights. It also examines two cases where public health principles were raised as a justification for governmental action: one about involuntary sterilization and one about Ebola. The chapter concludes with a brief discussion of the “state action doctrine” that defines which public health actors may be challenged on due process grounds.

scholarly journals The Chinese Struggle for Civil Rights in 19th-century America: The Unusual Case of Baldwin v. Franks

1985 ◽  
Vol 3 (2) ◽  
pp. 349-373 ◽  
Author(s):  
Charles J. McClain
Keyword(s):  
United States ◽  
Civil Rights ◽  
Unusual Case ◽  
United States Supreme Court ◽  
The United States ◽  
Federal Law ◽  
State Action ◽  
14Th Amendment ◽  
Federal Statute ◽  
19Th Century America

In its October term 1882, the United States Supreme Court handed down a decision which aborted federal efforts to deal with anti-black violence in the states of the old Confederacy. At issue in the case of United States v. Harris was the constitutionality of a federal statute, Section 5519 of the Revised Statutes of the United States of 1874, which made it a crime for private persons to conspire to deprive other individuals of the equal protection of the laws. A group of white Tennesseeans had been convicted under the statute for assaulting and badly beating a group of black criminal defendants in the custody of local authorities. The court held that there was no foundation in the Constitution for the federal law and voided it, thus overturning the convictions. The 14th Amendment, the purported basis for the statute, was aimed, according to the court, at state action and did not empower Congress to legislate against purely private conduct. It was the same line of reasoning that would lead the court in its following term, in the celebrated Civil Rights Cases, to declare unconstitutional Section 1 of the Civil Rights Act of 1875, which established civil and criminal penalties for racially motivated interference with anyone's full and equal enjoyment of public accommodations and conveyances.

Concept of Global Administrative Law

2011 ◽  
Vol 67 (4) ◽  
pp. 355-372
Author(s):  
Rajeshwar Tripathi
Keyword(s):  
Global Governance ◽  
Due Process ◽  
National Level ◽  
Administrative Law ◽  
Political Life ◽  
Regulatory Regime ◽  
International Treaties ◽  
Administrative Functions ◽  
Labour Standards ◽  
Regulatory Decisions

Globalisation, which has integrated the whole world into a unit by a vast range of regulatory regime, has led to the emergence of a global state through international institutions. These institutions regulate the social, economic and political life of states. Therefore it has led to the emergence of the concept of Global Governance. This concept of Global Governance has led to development of the concept of Global Administrative Law (GAL). This GAL concept is based on the idea of understanding global governance as administration, which can be organised and shaped by principles of an administrative law character. In this way GAL is related to trans-governmental regulation and administration designed to address the consequences of globalised interdependence in such fields as security, trade conditions on development and financial assistance, banking and financial regulations, Intellectual Property Rights, Labour standards and cross-border movements of populations, including refugees. Isolated national regulations cannot govern these different areas and administrative measures and therefore various transnational systems of regulation or regulatory co-operation have been established through international treaties and organisations. To implement these regulations, transnational administrative bodies—including international organisations and informal groups of officials that perform administrative functions, are established. However these institutions are not directly subject to control by national governments or domestic legal systems or, in the case of treaty-based regimes, the states party to the treaty. However their regulatory decisions may be implemented directly against private parties by the global regime or more commonly through implementing measures at the national level. This situation has led to the question of accountability, fairness and transparency and due process in the functioning of these bodies. GAL is developed in response to this question, which attempts to extend the application of domestic administrative law to intergovernmental regulatory decisions that affect a nation.

scholarly journals Secret Searches: The SCA's Standing Conundrum

2019 ◽  
pp. 1697
Author(s):  
Aviv Halpern
Keyword(s):  
Law Enforcement ◽  
Due Process ◽  
Service Providers ◽  
Fourth Amendment ◽  
Process Theory ◽  
Federal Law ◽  
Law Enforcement Agencies ◽  
Legal Proceedings ◽  
Procedural Due Process ◽  
The Individual

The Stored Communications Act (“SCA”) arms federal law enforcement agencies with the ability to use a special type of warrant to access users’ electronically stored communications. In some circumstances, SCA warrants can require service providers to bundle and produce a user’s electronically stored communications without ever disclosing the existence of the warrant to the individual user until charges are brought. Users that are charged will ultimately receive notice of the search after the fact through their legal proceedings. Users that are never charged, however, may never know that their communications were obtained and searched. This practice effectively makes the provisions of the SCA that allow for nondisclosure unreviewable by the judiciary. Users that were searched but not charged have standing to challenge the scope of these warrants, but receive no notice that the search occurred. Service providers receive notice but have no standing on behalf of their users under the Fourth Amendment. This Note argues that the nondisclosure orders, therefore, create a procedural due process violation in addition to a Fourth Amendment violation. Users may have their privacy and property interests infringed without a meaningful opportunity to be heard. Under a due process theory, as opposed to a Fourth Amendment theory, this practice can finally be judicially reviewed.

scholarly journals Arbitration Hearing with Remote Participation: Necessary Innovations that Irreversibly Change Traditions

Lex Russica ◽  
2021 ◽  
pp. 134-148
Author(s):  
M. Yu. Savranskiy ◽  
M. E. Popova
Keyword(s):  
Due Process ◽  
Equal Treatment ◽  
Legal Traditions ◽  
Mode Of Operation ◽  
Physical Presence ◽  
Arbitration Procedure ◽  
Software And Hardware ◽  
The One ◽  
The Right ◽  
Remote Participation

The COVID-19 coronavirus pandemic forced most arbitration centers in countries with a wide variety of legal traditions to switch to mass arbitration hearings in video conferencing mode in the spring of 2020. It turned out that hearings with remote participation of representatives of the parties, and sometimes arbitrators, have a number of advantages compared to regular hearings. A number of new possibilities arises and thus compensates the loss of certain possibilities adherent in physical presence of arbitration participants at hearings. The authors argue that most of the obstacles and shortcomings of the new format as a whole can be overcome with modern regulatory development, law enforcement, software, and hardware tools. The paper examines, among other things, the experience of the Arbitration Center at the Russian Union of Industrialists and Entrepreneurs, whose software and hardware complex and previously modernized arbitration rules made it possible to safely switch to a new mode of operation. New documents of international origin in this area are also being considered, indicating the need to ensure a balance between the effectiveness of arbitration proceedings on the one hand and the right of the parties to due process and fair treatment on the other.The authors conclude that there will not be a complete return to the previous practice with the end of the pandemic. However, a certain part of the meetings, taking into account the circumstances of the disputes, will return offline, the popularity of various mixed (hybrid) options will increase, which will not be difficult to put into practice due to the flexibility of the arbitration procedure. The flexibility of arbitration and the delegation to arbitrators of a number of issues related to the organization and conduct of arbitration proceedings, which require that opinions of the parties should be requested and considered in order to solve the dispute, makes it possible to ensure the optimal “format” of the arbitration procedure given the specific circumstances of the dispute. This procedure provides its participants, among other things, a reasonable and sufficient opportunity to present their positions, ensuring equal treatment of the parties and adversarial while ensuring the real effectiveness of the arbitration procedure, which allows in modern conditions to properly implement the principles on which arbitration is based.

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