Deck 8: National Lawmaking Powers and the Regulation of Us Trade

Question 1

It is clear that Congress has the authority to require that any trade agreement negotiated by the president take into account environmental and labor issues. At least since 1974, U.S. trade laws have instructed the president to consider foreign worker rights and workplace conditions in negotiating trade agreements. One U.S. statute, which fosters U.S. trade with developing countries, contains provisions for labor standards. The 1994 North American Free Trade Agreement contained specific provisions for protecting worker rights and the environment. More recently, the Trade Act of 2002 called for countries entering trade agreements with the United States to abide by the "core labor standards" of the International Labour Organization, including the freedom of association, the right to form unions and to bargain collectively, minimum age requirements and limitations on child labor, maintenance of safe working conditions, and a ban on forced labor.
Some U.S. trade agreements also reflect environmental concerns. They do not set environmental standards, but they call for each nation to enforce its own standards and to ensure that environmental protections are not weakened in order to promote foreign trade.
Do you think that the United States should require foreign countries to address worker rights, worker safety, and environmental harm in return for trade privileges with the United States? Find out how U.S. trade agreements incorporate concerns over the environment and worker's rights. What has been the policy of presidential administrations in this regard? What are the competing economic and political issues in domestic politics? Should trade be used to accomplish these political and social objectives? How much focus should be placed on human rights? Why or why not?

Answer 1

The International Emergency Economic Powers Act (IEEPA):
In certain situations the president is endowed with the authority to impose sanctions against another nation, to impose restrictions during times of national emergencies.
The President may impose sanctions, take assets and cancel contracts.
Constitutional provisions against IEEPA:
The government should not enact the law as in this case, the exercise of IEEPA causes harm to an individual or a firm and results in economic loss and the loss of employees.
Provisions included in NAFTA:
The introduction of NAFTA addresses issues such as Employee welfare, safety and welfare standards to be maintained by all the member nations.
NAFTA also addresses the need for respective governments to maintain environmental standards.
Facts:
The country U's Constitution offers special powers to the President under the provisions of IEEPA.
Under the provisions the President can negotiate with other nation's conditions such as environmental safety norms, employment safety norms and other employment terms along with trade agreements.
The Congress has to negotiate regarding the maintenance of environmental safety, employment safety and maintenance of better employment conditions etc in return for trading with the country U.
This makes plenty of sense for the President of the country U to negotiate such issues because of the dominant position the country U is in.
The country U's government can enforce the condition to improve environmental safety standards and employee benefits and working conditions in its member nations by maintaining bi lateral trade relations with the member countries.
The large size of the country U's market, good buying capacity of its citizens lures the member nations in maintaining such standards.
The Policy of the Present Administration is to enforce its views regarding protection of environment and employee welfare.
The Competing political and economic issues for the present government is the opposition party's concern over the imports, they are loud against the imports and argue that it is hindering the local industry.
The present government is using trade as a shield to better environmental concerns and employee welfare and it is doing it for a good cause, thus its actions are justified.
The Government's concern for improving the standards of living in the other member trading nations is a remarkable action and it should continue in the future.

Question 2

Your firm, Day-O Shoes, Inc., manufactures deck shoes in the Caribbean island country of Haiti, the poorest nation in the Western Hemisphere. Your plant there employs more than 400 workers and has always considered itself a good citizen of both Haiti and the United States. Most of the shoes are imported for sale into the United States, where you maintain a 30 percent share of a competitive market. In 1991, the freely elected President of Haiti is removed from office by military officers who install a dictator of their choice. In response, the President of the United States exercises authority under the International Economic Emergency Powers Act and issues an executive order imposing a complete embargo on trade with Haiti. The Treasury Department's Office of Foreign Assets Control is charged with enforcing the embargo. Facing the impending embargo, your firm shut down its production operations there one week prior to the date set for the embargo. Feeling some obligation to the unemployed workers, your company's chief executive ships over ten tons of food and clothing to the people who have lost their jobs.
Believing that the United States is serious about the embargo and that it will remain in effect until the rightful president is returned to Haiti, your firm ships its U.S.-made raw materials, such as rubber soles and leather uppers, from Haiti to your other factory in Costa Rica. However, you soon discover, much to your surprise, that your competitors are continuing to produce and stockpile their shoes in Haiti in the belief that the embargo will soon be lifted. Three months after you cease operations, the U.S. government decides to lift the embargo because it has resulted in the loss of 50,000 Haitian jobs. With no inventory of finished shoes and your raw materials en route to Costa Rica, your firm is unable to fill existing orders. Your competitors are ready to ship their shoes from Haiti immediately.
Evaluate the course of action taken by Day-O Shoes. How did Day-O Shoes balance its responsibility under U.S. law to comply with the embargo with its need to remain competitive in the industry? What could it have done differently? Evaluate the ethics of Day-O's actions.

Answer 2

The International Emergency Economic Powers Act (IEEPA):
In certain situation the president has the authority to impose sanctions against other nations and to impose restrictions during times of national emergencies.
The President may impose sanctions, take assets and cancel contracts.
Constitutional provisions against IEEPA:
The government should not enact the law as in this case, the exercise of IEEPA causes harm to an individual or a firm and results in economic loss and the loss of employees.
Facts:
The company D manufactures shoes from assembled components in the Island of Haiti; it sells the shoes in U.S and holds a respectable 30 percent share in the U.S.
The U.S President declared embargo on Haiti using his discretionary powers based on the international emergency powers act.
As a result the company was unable to continue its manufacturing operations in Haiti; it shifted its operations to another plant in Costa Rica.
The company learnt that the other competitors are using Haiti for production services and the company has lost quite a bit of money by losing its orders.
Course of Action:
In this condition the best course of action for the company D is to approach the court to stop the embargo action because it is resulting in financial loss to the company and is also resulting in loss of hundreds of jobs.
The company can cite the previous judgments given by the court to stop such actions by the government.
The company should have kept the supply of shoes from two different locations so that even if production in one of the locations came to a halt, it can still supply the shoes from the other location.
The action taken by the company D is very much ethical because it complied with the government's orders.

Question 3

In 2013, President Obama's Trade Policy Agenda reported that the United States was in its third year ofnegotiating a new trade agreement, the Trans-Pacific Partnership Trade Agreement, between 11 pacificcountries. Included are Australia, Brunei Darussalam, Canada, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam, and the United States. Thepresident maintained that in terms of both trade policyand foreign policy, the United States would refocus itselfon "engaging" Asia in the coming years. At the sametime, the president announced that he would negotiate anew Transatlantic Trade and Investment Partnership with the European Union intended to reduce nontariffbarriers to trade in technology products. Becausethe president's trade promotion authority to negotiatetrade agreements expired in 2007, these face realscrutiny from Congress. What is the status of thesenegotiations? What are their objectives and whatindustry sectors are they primarily intended to benefit?What are their chances of passing either as a treaty or acongressional-executive agreement

Answer 3

The Trans Atlantic Trade and Investment Partnership:
The transatlantic trade and investment partnership is an agreement between the members of the European Union and the U.S.
The Partnership is undergoing the negotiations stage at present and is expected to cut down the trade barriers between the member countries.
Both the trans-pacific trade and investment partnership agreement and the Trans - Atlantic trade and investment partnership are in the negotiations stage.
The objective of the Trans - Pacific trade and investment partnership is aimed to reduce the space between U.S and the member countries from Asia.
The Partnership will be used by U.S to refocus its investments towards Asia and the objective of the Trans Atlantic Trade and Investment Partnership is to reduce the barriers between the European Union and the U.S.
The industry segments which will get benefited from the Trans-Atlantic Agreement are Textile industry, Chemicals, Pharmaceuticals, Cars, Electronics and telecommunications engineering.
The industry segments which will get benefited from the Trans - Pacific Agreement are Pharmaceutical industry, Textile industry, Electronics and Tele Communication etc.
Both the agreements will be passed as treaties because they offer a great advantage to U.S also.

Question 4

Your firm, Day-O Shoes, Inc., manufactures deck shoes in the Caribbean island country of Haiti, the poorest nation in the Western Hemisphere. Your plant there employs more than 400 workers and has always considered itself a good citizen of both Haiti and the United States. Most of the shoes are imported for sale into the United States, where you maintain a 30 percent share of a competitive market. In 1991, the freely elected President of Haiti is removed from office by military officers who install a dictator of their choice. In response, the President of the United States exercises authority under the International Economic Emergency Powers Act and issues an executive order imposing a complete embargo on trade with Haiti. The Treasury Department's Office of Foreign Assets Control is charged with enforcing the embargo. Facing the impending embargo, your firm shut down its production operations there one week prior to the date set for the embargo. Feeling some obligation to the unemployed workers, your company's chief executive ships over ten tons of food and clothing to the people who have lost their jobs.
Believing that the United States is serious about the embargo and that it will remain in effect until the rightful president is returned to Haiti, your firm ships its U.S.-made raw materials, such as rubber soles and leather uppers, from Haiti to your other factory in Costa Rica. However, you soon discover, much to your surprise, that your competitors are continuing to produce and stockpile their shoes in Haiti in the belief that the embargo will soon be lifted. Three months after you cease operations, the U.S. government decides to lift the embargo because it has resulted in the loss of 50,000 Haitian jobs. With no inventory of finished shoes and your raw materials en route to Costa Rica, your firm is unable to fill existing orders. Your competitors are ready to ship their shoes from Haiti immediately.
Was Day-O Shoes required to stop producing in Haiti? Were its competitors violating U.S. law by continuing to produce and stockpile their inventories? Were they violating any moral code or even the "spirit of the law" by continuing to produce there? Evaluate the risks taken by the competitors in continuing their operations in Haiti during the embargo.

Question 5

Together, North Carolina, South Carolina, and Georgia produce a large amount of cotton each year. In an effort to protect their farmers from overseas competition, the governors of these three states met and agreed on a uniform "inspection fee" to be imposed on all foreign cotton coming into their states through their ports. They vowed to do their best to get their state legislatures to adopt this fee as law. Would any legal problem arise with such a fee?

Question 6

Your firm, Day-O Shoes, Inc., manufactures deck shoes in the Caribbean island country of Haiti, the poorest nation in the Western Hemisphere. Your plant there employs more than 400 workers and has always considered itself a good citizen of both Haiti and the United States. Most of the shoes are imported for sale into the United States, where you maintain a 30 percent share of a competitive market. In 1991, the freely elected President of Haiti is removed from office by military officers who install a dictator of their choice. In response, the President of the United States exercises authority under the International Economic Emergency Powers Act and issues an executive order imposing a complete embargo on trade with Haiti. The Treasury Department's Office of Foreign Assets Control is charged with enforcing the embargo. Facing the impending embargo, your firm shut down its production operations there one week prior to the date set for the embargo. Feeling some obligation to the unemployed workers, your company's chief executive ships over ten tons of food and clothing to the people who have lost their jobs.
Believing that the United States is serious about the embargo and that it will remain in effect until the rightful president is returned to Haiti, your firm ships its U.S.-made raw materials, such as rubber soles and leather uppers, from Haiti to your other factory in Costa Rica. However, you soon discover, much to your surprise, that your competitors are continuing to produce and stockpile their shoes in Haiti in the belief that the embargo will soon be lifted. Three months after you cease operations, the U.S. government decides to lift the embargo because it has resulted in the loss of 50,000 Haitian jobs. With no inventory of finished shoes and your raw materials en route to Costa Rica, your firm is unable to fill existing orders. Your competitors are ready to ship their shoes from Haiti immediately.
The embargo was intended to put economic pressure on Haiti to encourage political reform. Is the U.S. government saying that the embargo worked too well? Do you think that the embargo was lifted because of its impact on the Haitian workers or on U.S. firms doing business there? Critics argue that the U.S. government's attempts to use trade policy as a means of conducting foreign policy lead to confusion and uncertainty and are counterproductive. Evaluate this argument.

Question 7

Due to threats by the president to set import quotas, the U.S. State Department negotiated directly with European and Japanese steel producers to limit their companies' exports to the United States. No foreign government was party to the agreement. Although the president has express authority to limit imports by an act of Congress, this act required that he either hold public hearings through the Tariff Commission about setting import quotas or deal directly with foreign governments about limiting imports. The Consumers Union of U.S., Inc., felt that when Congress gave the president this express power, it preempted any other action by the president. They brought an action against the secretary of state to have the president's agreement with private steel producers in Europe and Japan declared illegal. What should be the result of such an action? See Consumers Union of U.S., Inc. v. Kissinger , 506 F.2d 136 (D.C. Cir. 1974).

Question 8

The Trade Expansion Act of 1962 as amended by the Trade Act of 1974 states that if the secretary of the treasury finds that an "article is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security," the president is authorized to "take such action … as he deems necessary to adjust the imports of the article … so that [it] will not threaten to impair the national security." Does this grant of power by Congress allow the president to establish quotas? If importation of foreign oil is deemed "a threat to national security," can the president implement a $3-$4-per-barrel license fee? See Federal Energy Administration v. Algonquin SNG, Inc., 426 U.S. 548 (1976).

Question 9

Future U.S. trade negotiations will focus both on the U.S. trade relationships with the world through the World Trade Organization and on special trade relationships with countries in Latin America. Some leaders of Congress want to use trade negotiations to push Latin American countries to protect worker's rights, conserve tropical forests, and protect the environment. Such issues may dominate U.S. trade relations for most of this decade. As of today, what is the status of the president's fast-track authority? What has Congress required of the president in leading current or future U.S. trade negotiations? To what extent has Congress included side issues such as labor rights or the environment? Research the topic and discuss the pros and cons of linking trade relations to these and other social and political side issues.

Question 10

During the 1940s, the U.S. government instituted a price support system for domestic potatoes. To protect the potato market from imported Canadian potatoes, the U.S. secretary of state entered into an executive agreement with the Canadian ambassador in which they agreed that Canada would permit the export of potatoes to the United States for use only for seed and not for food. The agreement was not submitted to or approved by Congress. The Agricultural Act of 1948 permitted the president to restrict potato imports by requesting an investigation by the Tariff Commission and considering its recommendations. Guy W. Capps, Inc., the importer, assured the Canadian exporter that the potatoes were destined for planting, but while they were in transit, they were sold to the A P grocery store chain for resale. The United States brought suit against Guy Capps for damages. The court entered judgment for Guy Capps and the government appealed. Was the U.S.-Canadian agreement valid under the U.S. Constitution? Was the president acting under his inherent constitutional authority, under power delegated from Congress, or neither? What did Congress say the president could do to restrict agricultural imports? See United States v. Guy W. Capps, Inc. , 204 F.2d 655 (4th Cir. 1953).

Question 11

Xerox manufactured parts for copy machines in the United States that were shipped to Mexico for assembly. The copiers were designed for sale exclusively in Latin America. All printing on the machines was in Spanish or Portuguese. The copiers operated on a 50-cycle electric current unavailable in the United States. The copiers had been transported by a customs bonded warehouse in Houston, Texas, where they were stored pending their sale to Xerox affiliates in Latin America. The copiers had previously been stored in Panama. Under federal law, goods stored in a customs bonded warehouse are under the supervision of the U.S. Customs Service. Goods may be brought into a warehouse without the payment of import duties and stored for up to five years. At any time they may be re-exported duty-free or withdrawn for domestic sale upon the payment of the duty. Harris County and the city of Houston assessed a non-discriminatory ad valorem personal property tax on the copiers. Xerox claimed that the local tax is preempted by the federal legislation. What did the Court decide? Would it have made any difference whether the goods were needed for domestic use or intended for re-export? See Xerox Corporation v. County of Harris, Texas , 459 U.S. 145 (1982).

Question 12

The state of Tennessee passed legislation requiring that any person selling or offering for sale in the state of Tennessee any meats that are the products of any foreign country must so identify any such product by labeling it "This meat is of foreign origin." The state law did not require a higher standard of purity and sanitation than that required by the U.S. Department of Agriculture. A New York corporation selling imported meats to customers in Tennessee challenged this state statute in U.S. District Court. The corporation's sales of imported meat to customers in Tennessee were one-half of its volume prior to enactment of the statute. What do you think was the legal basis for this challenge to the Tennessee law? What do you think was Tennessee's argument for passing the law? What do you think the court decided? See Tupman Thurlow Co. v. Moss , 252 F. Supp. 641 (M.D. Tenn. 1966).

Question 13

BACKGROUND AND FACTS
During a time of political controversy in the United States over immigration policy and enforcement, the State of Arizona enacted a statute to deal with the large number of unlawful aliens in the state. Section 3 made it a misdemeanor under Arizona law for any person to violate federal alien-registration laws. Section 5(c) made it a misdemeanor for an unauthorized alien to seek or engage in work in the state. Section 6 authorized state and local officers to arrest without a warrant any person they believed could lawfully be removed from the United States. Section 2(B) required state and local officials to contact federal officials for the purpose of verifying the immigration status of any person who had been lawfully stopped or detained. The United States brought this action against Arizona challenging the constitutionality of the statute. A federal district court enjoined enforcement of the statute, and Arizona appealed. The Supreme Court granted certiorari.
JUSTICE KENNEDY DELIVERED THE OPINION OF THE COURT
The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. See Toll v. Moreno, 458 U.S. 1, 10, 102 S.Ct. 2977 (1982) [citations omitted]. This authority rests, in part, on the National Government's constitutional power to "establish an uniform Rule of Naturalization," U.S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations.
The federal power to determine immigration policy is well settled. Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.
It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States. This Court has reaffirmed that "[o]ne of the most important and delicate of all international relationships... has to do with the protection of the just rights of a country's own nationals when those nationals are in another country." Hines v. Davidowitz , 312 U.S. 52, 64, 61 S.Ct. 399 (1941).
Federal governance of immigration and alien status is extensive and complex. Congress has specified categories of aliens who may not be admitted to the United States. Unlawful entry and unlawful reentry into the country are federal offenses. Once here, aliens are required to register with the Federal Government and to carry proof of status on their person. Failure to do so is a federal misdemeanor. Federal law also authorizes States to deny noncitizens a range of public benefits, and it imposes sanctions on employers who hire unauthorized workers.
Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If remo-val proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal.
Discretion in the enforcement of immigration law embraces immediate human concerns. * * * Some discretionary decisions involve policy choices that bear on this Nation's international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation's foreign policy with respect to these and other realities. * * *
Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect. From the existence of two sovereigns follows the possibility that laws can be in conflict or at cross-purposes. The Supremacy Clause provides a clear rule that federal law "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Art. VI, cl. 2. Under this principle, Congress has the power to preempt state law. See Crosby v. National Foreign Trade Council , 530 U.S. 363, 372, 120 S.Ct. 2288 (2000); Gibbons v. Ogden , 9 Wheat. 1, 210-211 (1824).
State law must also give way to federal law in at least two other circumstances. First, the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance. * * * Second, state laws are preempted when they conflict with federal law. * * *
The four challenged provisions of the state law each must be examined under these preemption principles.
Section 3 of the Arizona Statute Section 3 creates a new state misdemeanor. It forbids the "willful failure to complete or carry an alien registration document... in violation of [federal law]. * * *
Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation's borders. If §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, "diminish[ing] the [Federal Government]'s control over enforcement" and "detract[ing] from the 'integrated scheme of regulation' created by Congress." Wisconsin Dept. of Industry v. Gould Inc. , 475 U.S. 282, 288-289, 106 S.Ct. 1057 (1986). Even if a State may make violation of federal law a crime in some instances, it cannot do so in a field (like the field of alien registration) that has been occupied by federal law. * * *
Section 5(C) Unlike §3, which replicates federal statutory requirements, §5(c) enacts a state criminal prohibition where no federal counterpart exists. The provision makes it a state misdemeanor for "an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor" in Arizona. The United States contends that the provision upsets the balance struck by the Immigration Reform and Control Act of 1986 (IRCA) and must be preempted as an obstacle to the federal plan of regulation and control. * * * Congress enacted IRCA as a comprehensive framework for "combating the employment of illegal aliens." Hoffman Plastic Compounds, Inc. v. NLRB , 535 U.S. 137, 147, 122 S.Ct. 1275 (2002). The law makes it illegal for employers to knowingly hire, recruit, refer, or continue to employ unauthorized workers. It also requires every employer to verify the employment authorization status of prospective employees. These requirements are enforced through criminal penalties and an escalating series of civil penalties tied to the number of times an employer has violated the provisions. * * *
The legislative background of IRCA underscores the fact that Congressmade a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment. * * * In the end, IRCA's framework reflects a considered judgment that making criminals out of aliens engaged in unauthorized work-aliens who already face the possibility of employer exploitation because of their removable status-would be inconsistent with federal policy and objectives. * * * Although §5(c)attempts to achieve one of the same goals as federal law-the deterrence of unlawful employment-it involves a conflict in the method of enforcement. * * *
Section 6 [Section 6 allows a state officer to arrest without a warrant anyone that they believe is removable from the United States for a violation of the law.] The United States argues that arrests authorized by this statute would be an obstacle to the removal system Congress created.
As a general rule, it is not a crime for a removable alien to remain present in the United States. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479 (1984). If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent. When an alien is suspected of being removable, a federal official issues an administrative document called a Notice to Appear. The form does not authorize an arrest. Instead, it gives the alien information about the proceedings, including the time and date of the removal hearing. If an alien fails to appear, an in absentia order may direct removal. * * *
Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers. * * * This would allow the State to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed. * * *
By authorizing state officers to decide whether an alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government. * * *
Section 2(B) [Section 2(B) requires state officers contact the federal government to determine the immigration status of any person they detain or arrest on some other legitimate grounds if they have a "reasonable suspicion that the person is an alien unlawfully present in the United States.] Congress has done nothing to suggest it is inappropriate to communicate with [federal officials] in these situations, however. Indeed, it has encouraged the sharing of information about possible immigration violations. See 8 U.S.C. §1357(g)(10)(A). A federal statute regulating the public benefits provided to qualified aliens in fact instructs that "no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from [federal officials] information regarding the immigration status, lawful or unlawful, of an alien in the United States." §1644. The federal scheme thus leaves room for a policy requiring state officials to contact [federal officials] as a routine matter.
The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation's meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law. * * *
Decision. Affirmed in part and reversed in part. Those sections of the Arizona statute [Sections 3, 5(c), and 6] are preempted by federal law and invalid. Section 2(B) which encourages consultation between state and federal officials does not conflict with federal immigration law and is valid.
Where does the federal government derive its authority to regulate immigration?

Question 14

BACKGROUND AND FACTS
During a time of political controversy in the United States over immigration policy and enforcement, the State of Arizona enacted a statute to deal with the large number of unlawful aliens in the state. Section 3 made it a misdemeanor under Arizona law for any person to violate federal alien-registration laws. Section 5(c) made it a misdemeanor for an unauthorized alien to seek or engage in work in the state. Section 6 authorized state and local officers to arrest without a warrant any person they believed could lawfully be removed from the United States. Section 2(B) required state and local officials to contact federal officials for the purpose of verifying the immigration status of any person who had been lawfully stopped or detained. The United States brought this action against Arizona challenging the constitutionality of the statute. A federal district court enjoined enforcement of the statute, and Arizona appealed. The Supreme Court granted certiorari.
JUSTICE KENNEDY DELIVERED THE OPINION OF THE COURT
The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. See Toll v. Moreno, 458 U.S. 1, 10, 102 S.Ct. 2977 (1982) [citations omitted]. This authority rests, in part, on the National Government's constitutional power to "establish an uniform Rule of Naturalization," U.S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations.
The federal power to determine immigration policy is well settled. Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.
It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States. This Court has reaffirmed that "[o]ne of the most important and delicate of all international relationships... has to do with the protection of the just rights of a country's own nationals when those nationals are in another country." Hines v. Davidowitz , 312 U.S. 52, 64, 61 S.Ct. 399 (1941).
Federal governance of immigration and alien status is extensive and complex. Congress has specified categories of aliens who may not be admitted to the United States. Unlawful entry and unlawful reentry into the country are federal offenses. Once here, aliens are required to register with the Federal Government and to carry proof of status on their person. Failure to do so is a federal misdemeanor. Federal law also authorizes States to deny noncitizens a range of public benefits, and it imposes sanctions on employers who hire unauthorized workers.
Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If remo-val proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal.
Discretion in the enforcement of immigration law embraces immediate human concerns. * * * Some discretionary decisions involve policy choices that bear on this Nation's international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation's foreign policy with respect to these and other realities. * * *
Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect. From the existence of two sovereigns follows the possibility that laws can be in conflict or at cross-purposes. The Supremacy Clause provides a clear rule that federal law "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Art. VI, cl. 2. Under this principle, Congress has the power to preempt state law. See Crosby v. National Foreign Trade Council , 530 U.S. 363, 372, 120 S.Ct. 2288 (2000); Gibbons v. Ogden , 9 Wheat. 1, 210-211 (1824).
State law must also give way to federal law in at least two other circumstances. First, the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance. * * * Second, state laws are preempted when they conflict with federal law. * * *
The four challenged provisions of the state law each must be examined under these preemption principles.
Section 3 of the Arizona Statute Section 3 creates a new state misdemeanor. It forbids the "willful failure to complete or carry an alien registration document... in violation of [federal law]. * * *
Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation's borders. If §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, "diminish[ing] the [Federal Government]'s control over enforcement" and "detract[ing] from the 'integrated scheme of regulation' created by Congress." Wisconsin Dept. of Industry v. Gould Inc. , 475 U.S. 282, 288-289, 106 S.Ct. 1057 (1986). Even if a State may make violation of federal law a crime in some instances, it cannot do so in a field (like the field of alien registration) that has been occupied by federal law. * * *
Section 5(C) Unlike §3, which replicates federal statutory requirements, §5(c) enacts a state criminal prohibition where no federal counterpart exists. The provision makes it a state misdemeanor for "an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor" in Arizona. The United States contends that the provision upsets the balance struck by the Immigration Reform and Control Act of 1986 (IRCA) and must be preempted as an obstacle to the federal plan of regulation and control. * * * Congress enacted IRCA as a comprehensive framework for "combating the employment of illegal aliens." Hoffman Plastic Compounds, Inc. v. NLRB , 535 U.S. 137, 147, 122 S.Ct. 1275 (2002). The law makes it illegal for employers to knowingly hire, recruit, refer, or continue to employ unauthorized workers. It also requires every employer to verify the employment authorization status of prospective employees. These requirements are enforced through criminal penalties and an escalating series of civil penalties tied to the number of times an employer has violated the provisions. * * *
The legislative background of IRCA underscores the fact that Congressmade a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment. * * * In the end, IRCA's framework reflects a considered judgment that making criminals out of aliens engaged in unauthorized work-aliens who already face the possibility of employer exploitation because of their removable status-would be inconsistent with federal policy and objectives. * * * Although §5(c)attempts to achieve one of the same goals as federal law-the deterrence of unlawful employment-it involves a conflict in the method of enforcement. * * *
Section 6 [Section 6 allows a state officer to arrest without a warrant anyone that they believe is removable from the United States for a violation of the law.] The United States argues that arrests authorized by this statute would be an obstacle to the removal system Congress created.
As a general rule, it is not a crime for a removable alien to remain present in the United States. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479 (1984). If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent. When an alien is suspected of being removable, a federal official issues an administrative document called a Notice to Appear. The form does not authorize an arrest. Instead, it gives the alien information about the proceedings, including the time and date of the removal hearing. If an alien fails to appear, an in absentia order may direct removal. * * *
Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers. * * * This would allow the State to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed. * * *
By authorizing state officers to decide whether an alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government. * * *
Section 2(B) [Section 2(B) requires state officers contact the federal government to determine the immigration status of any person they detain or arrest on some other legitimate grounds if they have a "reasonable suspicion that the person is an alien unlawfully present in the United States.] Congress has done nothing to suggest it is inappropriate to communicate with [federal officials] in these situations, however. Indeed, it has encouraged the sharing of information about possible immigration violations. See 8 U.S.C. §1357(g)(10)(A). A federal statute regulating the public benefits provided to qualified aliens in fact instructs that "no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from [federal officials] information regarding the immigration status, lawful or unlawful, of an alien in the United States." §1644. The federal scheme thus leaves room for a policy requiring state officials to contact [federal officials] as a routine matter.
The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation's meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law. * * *
Decision. Affirmed in part and reversed in part. Those sections of the Arizona statute [Sections 3, 5(c), and 6] are preempted by federal law and invalid. Section 2(B) which encourages consultation between state and federal officials does not conflict with federal immigration law and is valid.
What policy arguments does the court give for the federal government's regulation of immigration?

Question 15

BACKGROUND AND FACTS
During a time of political controversy in the United States over immigration policy and enforcement, the State of Arizona enacted a statute to deal with the large number of unlawful aliens in the state. Section 3 made it a misdemeanor under Arizona law for any person to violate federal alien-registration laws. Section 5(c) made it a misdemeanor for an unauthorized alien to seek or engage in work in the state. Section 6 authorized state and local officers to arrest without a warrant any person they believed could lawfully be removed from the United States. Section 2(B) required state and local officials to contact federal officials for the purpose of verifying the immigration status of any person who had been lawfully stopped or detained. The United States brought this action against Arizona challenging the constitutionality of the statute. A federal district court enjoined enforcement of the statute, and Arizona appealed. The Supreme Court granted certiorari.
JUSTICE KENNEDY DELIVERED THE OPINION OF THE COURT
The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. See Toll v. Moreno, 458 U.S. 1, 10, 102 S.Ct. 2977 (1982) [citations omitted]. This authority rests, in part, on the National Government's constitutional power to "establish an uniform Rule of Naturalization," U.S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations.
The federal power to determine immigration policy is well settled. Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.
It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States. This Court has reaffirmed that "[o]ne of the most important and delicate of all international relationships... has to do with the protection of the just rights of a country's own nationals when those nationals are in another country." Hines v. Davidowitz , 312 U.S. 52, 64, 61 S.Ct. 399 (1941).
Federal governance of immigration and alien status is extensive and complex. Congress has specified categories of aliens who may not be admitted to the United States. Unlawful entry and unlawful reentry into the country are federal offenses. Once here, aliens are required to register with the Federal Government and to carry proof of status on their person. Failure to do so is a federal misdemeanor. Federal law also authorizes States to deny noncitizens a range of public benefits, and it imposes sanctions on employers who hire unauthorized workers.
Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If remo-val proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal.
Discretion in the enforcement of immigration law embraces immediate human concerns. * * * Some discretionary decisions involve policy choices that bear on this Nation's international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation's foreign policy with respect to these and other realities. * * *
Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect. From the existence of two sovereigns follows the possibility that laws can be in conflict or at cross-purposes. The Supremacy Clause provides a clear rule that federal law "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Art. VI, cl. 2. Under this principle, Congress has the power to preempt state law. See Crosby v. National Foreign Trade Council , 530 U.S. 363, 372, 120 S.Ct. 2288 (2000); Gibbons v. Ogden , 9 Wheat. 1, 210-211 (1824).
State law must also give way to federal law in at least two other circumstances. First, the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance. * * * Second, state laws are preempted when they conflict with federal law. * * *
The four challenged provisions of the state law each must be examined under these preemption principles.
Section 3 of the Arizona Statute Section 3 creates a new state misdemeanor. It forbids the "willful failure to complete or carry an alien registration document... in violation of [federal law]. * * *
Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation's borders. If §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, "diminish[ing] the [Federal Government]'s control over enforcement" and "detract[ing] from the 'integrated scheme of regulation' created by Congress." Wisconsin Dept. of Industry v. Gould Inc. , 475 U.S. 282, 288-289, 106 S.Ct. 1057 (1986). Even if a State may make violation of federal law a crime in some instances, it cannot do so in a field (like the field of alien registration) that has been occupied by federal law. * * *
Section 5(C) Unlike §3, which replicates federal statutory requirements, §5(c) enacts a state criminal prohibition where no federal counterpart exists. The provision makes it a state misdemeanor for "an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor" in Arizona. The United States contends that the provision upsets the balance struck by the Immigration Reform and Control Act of 1986 (IRCA) and must be preempted as an obstacle to the federal plan of regulation and control. * * * Congress enacted IRCA as a comprehensive framework for "combating the employment of illegal aliens." Hoffman Plastic Compounds, Inc. v. NLRB , 535 U.S. 137, 147, 122 S.Ct. 1275 (2002). The law makes it illegal for employers to knowingly hire, recruit, refer, or continue to employ unauthorized workers. It also requires every employer to verify the employment authorization status of prospective employees. These requirements are enforced through criminal penalties and an escalating series of civil penalties tied to the number of times an employer has violated the provisions. * * *
The legislative background of IRCA underscores the fact that Congressmade a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment. * * * In the end, IRCA's framework reflects a considered judgment that making criminals out of aliens engaged in unauthorized work-aliens who already face the possibility of employer exploitation because of their removable status-would be inconsistent with federal policy and objectives. * * * Although §5(c)attempts to achieve one of the same goals as federal law-the deterrence of unlawful employment-it involves a conflict in the method of enforcement. * * *
Section 6 [Section 6 allows a state officer to arrest without a warrant anyone that they believe is removable from the United States for a violation of the law.] The United States argues that arrests authorized by this statute would be an obstacle to the removal system Congress created.
As a general rule, it is not a crime for a removable alien to remain present in the United States. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479 (1984). If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent. When an alien is suspected of being removable, a federal official issues an administrative document called a Notice to Appear. The form does not authorize an arrest. Instead, it gives the alien information about the proceedings, including the time and date of the removal hearing. If an alien fails to appear, an in absentia order may direct removal. * * *
Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers. * * * This would allow the State to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed. * * *
By authorizing state officers to decide whether an alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government. * * *
Section 2(B) [Section 2(B) requires state officers contact the federal government to determine the immigration status of any person they detain or arrest on some other legitimate grounds if they have a "reasonable suspicion that the person is an alien unlawfully present in the United States.] Congress has done nothing to suggest it is inappropriate to communicate with [federal officials] in these situations, however. Indeed, it has encouraged the sharing of information about possible immigration violations. See 8 U.S.C. §1357(g)(10)(A). A federal statute regulating the public benefits provided to qualified aliens in fact instructs that "no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from [federal officials] information regarding the immigration status, lawful or unlawful, of an alien in the United States." §1644. The federal scheme thus leaves room for a policy requiring state officials to contact [federal officials] as a routine matter.
The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation's meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law. * * *
Decision. Affirmed in part and reversed in part. Those sections of the Arizona statute [Sections 3, 5(c), and 6] are preempted by federal law and invalid. Section 2(B) which encourages consultation between state and federal officials does not conflict with federal immigration law and is valid.
On what grounds did the Court strike down three parts of the Arizona statute?

Question 16

BACKGROUND AND FACTS
During a time of political controversy in the United States over immigration policy and enforcement, the State of Arizona enacted a statute to deal with the large number of unlawful aliens in the state. Section 3 made it a misdemeanor under Arizona law for any person to violate federal alien-registration laws. Section 5(c) made it a misdemeanor for an unauthorized alien to seek or engage in work in the state. Section 6 authorized state and local officers to arrest without a warrant any person they believed could lawfully be removed from the United States. Section 2(B) required state and local officials to contact federal officials for the purpose of verifying the immigration status of any person who had been lawfully stopped or detained. The United States brought this action against Arizona challenging the constitutionality of the statute. A federal district court enjoined enforcement of the statute, and Arizona appealed. The Supreme Court granted certiorari.
JUSTICE KENNEDY DELIVERED THE OPINION OF THE COURT
The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. See Toll v. Moreno, 458 U.S. 1, 10, 102 S.Ct. 2977 (1982) [citations omitted]. This authority rests, in part, on the National Government's constitutional power to "establish an uniform Rule of Naturalization," U.S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations.
The federal power to determine immigration policy is well settled. Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.
It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States. This Court has reaffirmed that "[o]ne of the most important and delicate of all international relationships... has to do with the protection of the just rights of a country's own nationals when those nationals are in another country." Hines v. Davidowitz , 312 U.S. 52, 64, 61 S.Ct. 399 (1941).
Federal governance of immigration and alien status is extensive and complex. Congress has specified categories of aliens who may not be admitted to the United States. Unlawful entry and unlawful reentry into the country are federal offenses. Once here, aliens are required to register with the Federal Government and to carry proof of status on their person. Failure to do so is a federal misdemeanor. Federal law also authorizes States to deny noncitizens a range of public benefits, and it imposes sanctions on employers who hire unauthorized workers.
Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If remo-val proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal.
Discretion in the enforcement of immigration law embraces immediate human concerns. * * * Some discretionary decisions involve policy choices that bear on this Nation's international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation's foreign policy with respect to these and other realities. * * *
Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect. From the existence of two sovereigns follows the possibility that laws can be in conflict or at cross-purposes. The Supremacy Clause provides a clear rule that federal law "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Art. VI, cl. 2. Under this principle, Congress has the power to preempt state law. See Crosby v. National Foreign Trade Council , 530 U.S. 363, 372, 120 S.Ct. 2288 (2000); Gibbons v. Ogden , 9 Wheat. 1, 210-211 (1824).
State law must also give way to federal law in at least two other circumstances. First, the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance. * * * Second, state laws are preempted when they conflict with federal law. * * *
The four challenged provisions of the state law each must be examined under these preemption principles.
Section 3 of the Arizona Statute Section 3 creates a new state misdemeanor. It forbids the "willful failure to complete or carry an alien registration document... in violation of [federal law]. * * *
Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation's borders. If §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, "diminish[ing] the [Federal Government]'s control over enforcement" and "detract[ing] from the 'integrated scheme of regulation' created by Congress." Wisconsin Dept. of Industry v. Gould Inc. , 475 U.S. 282, 288-289, 106 S.Ct. 1057 (1986). Even if a State may make violation of federal law a crime in some instances, it cannot do so in a field (like the field of alien registration) that has been occupied by federal law. * * *
Section 5(C) Unlike §3, which replicates federal statutory requirements, §5(c) enacts a state criminal prohibition where no federal counterpart exists. The provision makes it a state misdemeanor for "an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor" in Arizona. The United States contends that the provision upsets the balance struck by the Immigration Reform and Control Act of 1986 (IRCA) and must be preempted as an obstacle to the federal plan of regulation and control. * * * Congress enacted IRCA as a comprehensive framework for "combating the employment of illegal aliens." Hoffman Plastic Compounds, Inc. v. NLRB , 535 U.S. 137, 147, 122 S.Ct. 1275 (2002). The law makes it illegal for employers to knowingly hire, recruit, refer, or continue to employ unauthorized workers. It also requires every employer to verify the employment authorization status of prospective employees. These requirements are enforced through criminal penalties and an escalating series of civil penalties tied to the number of times an employer has violated the provisions. * * *
The legislative background of IRCA underscores the fact that Congressmade a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment. * * * In the end, IRCA's framework reflects a considered judgment that making criminals out of aliens engaged in unauthorized work-aliens who already face the possibility of employer exploitation because of their removable status-would be inconsistent with federal policy and objectives. * * * Although §5(c)attempts to achieve one of the same goals as federal law-the deterrence of unlawful employment-it involves a conflict in the method of enforcement. * * *
Section 6 [Section 6 allows a state officer to arrest without a warrant anyone that they believe is removable from the United States for a violation of the law.] The United States argues that arrests authorized by this statute would be an obstacle to the removal system Congress created.
As a general rule, it is not a crime for a removable alien to remain present in the United States. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479 (1984). If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent. When an alien is suspected of being removable, a federal official issues an administrative document called a Notice to Appear. The form does not authorize an arrest. Instead, it gives the alien information about the proceedings, including the time and date of the removal hearing. If an alien fails to appear, an in absentia order may direct removal. * * *
Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers. * * * This would allow the State to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed. * * *
By authorizing state officers to decide whether an alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government. * * *
Section 2(B) [Section 2(B) requires state officers contact the federal government to determine the immigration status of any person they detain or arrest on some other legitimate grounds if they have a "reasonable suspicion that the person is an alien unlawfully present in the United States.] Congress has done nothing to suggest it is inappropriate to communicate with [federal officials] in these situations, however. Indeed, it has encouraged the sharing of information about possible immigration violations. See 8 U.S.C. §1357(g)(10)(A). A federal statute regulating the public benefits provided to qualified aliens in fact instructs that "no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from [federal officials] information regarding the immigration status, lawful or unlawful, of an alien in the United States." §1644. The federal scheme thus leaves room for a policy requiring state officials to contact [federal officials] as a routine matter.
The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation's meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law. * * *
Decision. Affirmed in part and reversed in part. Those sections of the Arizona statute [Sections 3, 5(c), and 6] are preempted by federal law and invalid. Section 2(B) which encourages consultation between state and federal officials does not conflict with federal immigration law and is valid.
Why did the court uphold the fourth part of the Arizona statute (2B)?

Question 17

BACKGROUND AND FACTS
This action was brought by a U.S. senator against the president to enjoin him from returning the Hungarian coronation regalia to the People's Republic of Hungary. The Holy Crown of St. Stephen had been held by the Hungarian people as a treasured symbol of their statehood and nationality for nearly 1,000 years. At the close of World War II, it was entrusted to the United States for safekeeping by Hungarian soldiers. In 1977, the governments of the United States and Hungary entered into an agreement returning the crown to Hungary. Many Hungarians living in the United States were opposed to the return of the crown. The plaintiff filed this action seeking an injunction against delivery of the crown to Hungary on the ground that such action was tantamount to a treaty undertaken by the president without the prior advice and consent of the Senate.
DISTRICT JUDGE O'CONNOR
We turn now to the plaintiff's argument that the agreement to return the coronation regalia to Hungary in and of itself constitutes a treaty which must be ratified by the Senate. It is well established, and even plaintiff admits, that the United States frequently enters into international agreements other than treaties. Indeed, as of January 1, 1972, the United States was a party to 5,306 international agreements, only 947 of which were treaties and 4,359 of which were international agreements other than treaties. These "other agreements" appear to fall into three categories: (1) socalled congressional-executive agreements, executed by the President upon specific authorizing legislation from the Congress; (2) executive agreements pursuant to treaty, executed by the President in accord with specific instructions found in a prior, formal treaty; and (3) executive agreements executed pursuant to the President's own constitutional authority (hereinafter referred to as "executive agreements"). Defendant contends that his agreement to return the coronation regalia to Hungary falls into the latter category, and the court agrees. * * *
The United States enters into approximately 200 executive agreements each year, and it has been observed that the constitutional system "could not last a month" if the President sought Senate or congressional consent for every one of them. L. Henkin, Foreign Affairs and the Constitution... Congress itself recognized this fact in passing P.L 92-403, 1 U.S.C. §112b, requiring the secretary of state to transmit for merely informational purposes the text of all international agreements other than treaties to which the United States becomes a party. The House Committee on Foreign Affairs stated in recommending passage of that statute that while it wished to be apprised of "all agreements of any significance," "[c]learly the Congress does not want to be inundated with trivia." 1972 U.S. Code Cong, and Admin. News, p. 3069. While the President's understanding to return the Hungarian coronation regalia is hardly a "trivial" matter to either the United States or the people of Hungary, the court is yet convinced that the President's agreement in this regard lacks the magnitude of agreements customarily concluded in treaty form. The President's agreement here involves no substantial ongoing commitment on the part of the United States, exposes the United States to no appreciable discernible risks, and contemplates American action of an extremely limited duration in time. The plaintiff presented no evidence that agreements of the kind in question here are traditionally concluded only by treaty, either as a matter of American custom or as a matter of international law. Indeed, while the court has not exhaustively examined all possibly pertinent treaties, the court can hardly imagine that any such examination would lend support to the plaintiff's position. Finally, the agreement here encompasses no substantial reciprocal commitments by the Hungarian government. As a matter of law, the court is therefore persuaded that the President's agreement to return the Hungarian coronation regalia is not a commitment requiring the advice and consent of the Senate under Article II, Section 2, of the Constitution.
Decision. The plaintiff's motion for a preliminary injunction was denied. The agreement to return the coronation regalia was found to be not a treaty requiring ratification by the Senate, but a valid executive agreement based on the president's inherent power.
Why did the president use a sole executive agreement resolving this issue with Hungary instead of relying on the treaty power?

Question 18

BACKGROUND AND FACTS
This action was brought by a U.S. senator against the president to enjoin him from returning the Hungarian coronation regalia to the People's Republic of Hungary. The Holy Crown of St. Stephen had been held by the Hungarian people as a treasured symbol of their statehood and nationality for nearly 1,000 years. At the close of World War II, it was entrusted to the United States for safekeeping by Hungarian soldiers. In 1977, the governments of the United States and Hungary entered into an agreement returning the crown to Hungary. Many Hungarians living in the United States were opposed to the return of the crown. The plaintiff filed this action seeking an injunction against delivery of the crown to Hungary on the ground that such action was tantamount to a treaty undertaken by the president without the prior advice and consent of the Senate.
DISTRICT JUDGE O'CONNOR
We turn now to the plaintiff's argument that the agreement to return the coronation regalia to Hungary in and of itself constitutes a treaty which must be ratified by the Senate. It is well established, and even plaintiff admits, that the United States frequently enters into international agreements other than treaties. Indeed, as of January 1, 1972, the United States was a party to 5,306 international agreements, only 947 of which were treaties and 4,359 of which were international agreements other than treaties. These "other agreements" appear to fall into three categories: (1) socalled congressional-executive agreements, executed by the President upon specific authorizing legislation from the Congress; (2) executive agreements pursuant to treaty, executed by the President in accord with specific instructions found in a prior, formal treaty; and (3) executive agreements executed pursuant to the President's own constitutional authority (hereinafter referred to as "executive agreements"). Defendant contends that his agreement to return the coronation regalia to Hungary falls into the latter category, and the court agrees. * * *
The United States enters into approximately 200 executive agreements each year, and it has been observed that the constitutional system "could not last a month" if the President sought Senate or congressional consent for every one of them. L. Henkin, Foreign Affairs and the Constitution... Congress itself recognized this fact in passing P.L 92-403, 1 U.S.C. §112b, requiring the secretary of state to transmit for merely informational purposes the text of all international agreements other than treaties to which the United States becomes a party. The House Committee on Foreign Affairs stated in recommending passage of that statute that while it wished to be apprised of "all agreements of any significance," "[c]learly the Congress does not want to be inundated with trivia." 1972 U.S. Code Cong, and Admin. News, p. 3069. While the President's understanding to return the Hungarian coronation regalia is hardly a "trivial" matter to either the United States or the people of Hungary, the court is yet convinced that the President's agreement in this regard lacks the magnitude of agreements customarily concluded in treaty form. The President's agreement here involves no substantial ongoing commitment on the part of the United States, exposes the United States to no appreciable discernible risks, and contemplates American action of an extremely limited duration in time. The plaintiff presented no evidence that agreements of the kind in question here are traditionally concluded only by treaty, either as a matter of American custom or as a matter of international law. Indeed, while the court has not exhaustively examined all possibly pertinent treaties, the court can hardly imagine that any such examination would lend support to the plaintiff's position. Finally, the agreement here encompasses no substantial reciprocal commitments by the Hungarian government. As a matter of law, the court is therefore persuaded that the President's agreement to return the Hungarian coronation regalia is not a commitment requiring the advice and consent of the Senate under Article II, Section 2, of the Constitution.
Decision. The plaintiff's motion for a preliminary injunction was denied. The agreement to return the coronation regalia was found to be not a treaty requiring ratification by the Senate, but a valid executive agreement based on the president's inherent power.
Was the president's action required to be authorized by the Congress?

Question 19

BACKGROUND AND FACTS
This action was brought by a U.S. senator against the president to enjoin him from returning the Hungarian coronation regalia to the People's Republic of Hungary. The Holy Crown of St. Stephen had been held by the Hungarian people as a treasured symbol of their statehood and nationality for nearly 1,000 years. At the close of World War II, it was entrusted to the United States for safekeeping by Hungarian soldiers. In 1977, the governments of the United States and Hungary entered into an agreement returning the crown to Hungary. Many Hungarians living in the United States were opposed to the return of the crown. The plaintiff filed this action seeking an injunction against delivery of the crown to Hungary on the ground that such action was tantamount to a treaty undertaken by the president without the prior advice and consent of the Senate.
DISTRICT JUDGE O'CONNOR
We turn now to the plaintiff's argument that the agreement to return the coronation regalia to Hungary in and of itself constitutes a treaty which must be ratified by the Senate. It is well established, and even plaintiff admits, that the United States frequently enters into international agreements other than treaties. Indeed, as of January 1, 1972, the United States was a party to 5,306 international agreements, only 947 of which were treaties and 4,359 of which were international agreements other than treaties. These "other agreements" appear to fall into three categories: (1) socalled congressional-executive agreements, executed by the President upon specific authorizing legislation from the Congress; (2) executive agreements pursuant to treaty, executed by the President in accord with specific instructions found in a prior, formal treaty; and (3) executive agreements executed pursuant to the President's own constitutional authority (hereinafter referred to as "executive agreements"). Defendant contends that his agreement to return the coronation regalia to Hungary falls into the latter category, and the court agrees. * * *
The United States enters into approximately 200 executive agreements each year, and it has been observed that the constitutional system "could not last a month" if the President sought Senate or congressional consent for every one of them. L. Henkin, Foreign Affairs and the Constitution... Congress itself recognized this fact in passing P.L 92-403, 1 U.S.C. §112b, requiring the secretary of state to transmit for merely informational purposes the text of all international agreements other than treaties to which the United States becomes a party. The House Committee on Foreign Affairs stated in recommending passage of that statute that while it wished to be apprised of "all agreements of any significance," "[c]learly the Congress does not want to be inundated with trivia." 1972 U.S. Code Cong, and Admin. News, p. 3069. While the President's understanding to return the Hungarian coronation regalia is hardly a "trivial" matter to either the United States or the people of Hungary, the court is yet convinced that the President's agreement in this regard lacks the magnitude of agreements customarily concluded in treaty form. The President's agreement here involves no substantial ongoing commitment on the part of the United States, exposes the United States to no appreciable discernible risks, and contemplates American action of an extremely limited duration in time. The plaintiff presented no evidence that agreements of the kind in question here are traditionally concluded only by treaty, either as a matter of American custom or as a matter of international law. Indeed, while the court has not exhaustively examined all possibly pertinent treaties, the court can hardly imagine that any such examination would lend support to the plaintiff's position. Finally, the agreement here encompasses no substantial reciprocal commitments by the Hungarian government. As a matter of law, the court is therefore persuaded that the President's agreement to return the Hungarian coronation regalia is not a commitment requiring the advice and consent of the Senate under Article II, Section 2, of the Constitution.
Decision. The plaintiff's motion for a preliminary injunction was denied. The agreement to return the coronation regalia was found to be not a treaty requiring ratification by the Senate, but a valid executive agreement based on the president's inherent power.
What kinds of agreements are usually reserved for treaties, and what kinds are handled through executive agreements?

Question 20

BACKGROUND AND FACTS
The state of California imposed an ad valorem property tax on cargo containers owned by Japanese companies and temporarily located in California ports. The containers were used exclusively for transporting goods in international commerce. They were based, registered, and subjected to property taxes in Japan. The containers spent, on average, only three weeks a year in California. Japan Lines contended that the tax was invalid because it subjected the containers to multiple taxation in Japan and the United States. The California Supreme Court upheld the statute and the ship owners appealed.
JUSTICE BLACKMUN
This case presents the question whether a state, consistently with the Commerce Clause of the Constitution, may impose a nondiscriminatory ad valorem property tax on foreign-owned instrumentalities (cargo containers) of international commerce...
In order to prevent multiple taxation of commerce, this Court has required that taxes be apportioned among taxing jurisdictions, so that no instrumentality of commerce is subjected to more than one tax on its full value. The corollary of the apportionment principle, of course, is that no jurisdictionmay tax the instrumentality in full. "The rule which permits taxation by two or more states on an apportionment basis precludes taxation of all of the property by the state of the domicile... Otherwise there would be multiple taxation of interstate operations." The basis for this Court's approval of apportioned property taxation, in other words, has been its ability to enforce full apportionment by all potential taxing bodies.
Yet neither this Court nor this Nation can ensure full apportionment when one of the taxing entities is a foreign sovereign. If an instrumentality of commerce is domiciled abroad, the country of domicile may have the right, consistently with the custom of nations, to impose a tax on its full value. If a state should seek to tax the same instrumentality on an apportioned basis, multiple taxation inevitably results. Hence, whereas the fact of apportionment in interstate commerce means that "multiple burdens" logically cannot occur, the same conclusion, as to foreign commerce, logically cannot be drawn. Due to the absence of an authoritative tribunal capable of ensuring that the aggregation of taxes is computed on no more than one full value, a state tax, even though "fairly apportioned" to reflect an instrumentality's presence within the state, may subject foreign commerce "to the risk of a double tax burden to which [domestic] commerce is not exposed, and which the commerce clause forbids."
Second, a state tax on the instrumentalities of foreign commerce may impair federal uniformity in an area where federal uniformity is essential. Foreign commerce is preeminently a matter of national concern. "In international relations and with respect to foreign intercourse and trade the people of the United States act through a single government with unified and adequate national power." Board of Trustees v. United States , 289 U.S. 48 (1933). Although the Constitution, Art. I, §8, cl. 3, grants Congress power to regulate commerce "with foreign Nations" and "among the several States" in parallel phrases, there is evidence that the Founders intended the scope of the foreign commerce power to be the greater. Cases of this Court, stressing the need for uniformity in treating with other nations, echo this distinction. * * *
A state tax on instrumentalities of foreign commerce may frustrate the achievement of federal uniformity in several ways. If the State imposes an apportioned tax, international disputes over reconciling apportionment formulae may arise. If a novel state tax creates an asymmetry in the international tax structure, foreign nations disadvantaged by the levy may retaliate against American-owned instrumentalities present in their jurisdictions. Such retaliation of necessity would be directed at American transportation equipment in general, not just that of the taxing state, so that the Nation as a whole would suffer...
It is stipulated that American-owned containers are not taxed in Japan. California's tax thus creates an asymmetry in international maritime taxation operating to Japan's disadvantage. The risk of retaliation by Japan, under these circumstances, is acute, and such retaliation of necessity would be felt by the Nation as a whole...
We hold the tax, as applied, unconstitutional under the Commerce Clause.
Decision. The Supreme Court reversed, holding that the tax was unconstitutional. The Court ruled that an ad valorem property tax applied to cargo containers used exclusively in foreign commerce violates the Commerce Clause because it resulted in multiple taxation of instrumentalities of foreign commerce.
What rule does the Court espouse for the state taxation of cargo containers and other instrumentalities of foreign commerce?

Question 21

BACKGROUND AND FACTS
The state of California imposed an ad valorem property tax on cargo containers owned by Japanese companies and temporarily located in California ports. The containers were used exclusively for transporting goods in international commerce. They were based, registered, and subjected to property taxes in Japan. The containers spent, on average, only three weeks a year in California. Japan Lines contended that the tax was invalid because it subjected the containers to multiple taxation in Japan and the United States. The California Supreme Court upheld the statute and the ship owners appealed.
JUSTICE BLACKMUN
This case presents the question whether a state, consistently with the Commerce Clause of the Constitution, may impose a nondiscriminatory ad valorem property tax on foreign-owned instrumentalities (cargo containers) of international commerce...
In order to prevent multiple taxation of commerce, this Court has required that taxes be apportioned among taxing jurisdictions, so that no instrumentality of commerce is subjected to more than one tax on its full value. The corollary of the apportionment principle, of course, is that no jurisdictionmay tax the instrumentality in full. "The rule which permits taxation by two or more states on an apportionment basis precludes taxation of all of the property by the state of the domicile... Otherwise there would be multiple taxation of interstate operations." The basis for this Court's approval of apportioned property taxation, in other words, has been its ability to enforce full apportionment by all potential taxing bodies.
Yet neither this Court nor this Nation can ensure full apportionment when one of the taxing entities is a foreign sovereign. If an instrumentality of commerce is domiciled abroad, the country of domicile may have the right, consistently with the custom of nations, to impose a tax on its full value. If a state should seek to tax the same instrumentality on an apportioned basis, multiple taxation inevitably results. Hence, whereas the fact of apportionment in interstate commerce means that "multiple burdens" logically cannot occur, the same conclusion, as to foreign commerce, logically cannot be drawn. Due to the absence of an authoritative tribunal capable of ensuring that the aggregation of taxes is computed on no more than one full value, a state tax, even though "fairly apportioned" to reflect an instrumentality's presence within the state, may subject foreign commerce "to the risk of a double tax burden to which [domestic] commerce is not exposed, and which the commerce clause forbids."
Second, a state tax on the instrumentalities of foreign commerce may impair federal uniformity in an area where federal uniformity is essential. Foreign commerce is preeminently a matter of national concern. "In international relations and with respect to foreign intercourse and trade the people of the United States act through a single government with unified and adequate national power." Board of Trustees v. United States , 289 U.S. 48 (1933). Although the Constitution, Art. I, §8, cl. 3, grants Congress power to regulate commerce "with foreign Nations" and "among the several States" in parallel phrases, there is evidence that the Founders intended the scope of the foreign commerce power to be the greater. Cases of this Court, stressing the need for uniformity in treating with other nations, echo this distinction. * * *
A state tax on instrumentalities of foreign commerce may frustrate the achievement of federal uniformity in several ways. If the State imposes an apportioned tax, international disputes over reconciling apportionment formulae may arise. If a novel state tax creates an asymmetry in the international tax structure, foreign nations disadvantaged by the levy may retaliate against American-owned instrumentalities present in their jurisdictions. Such retaliation of necessity would be directed at American transportation equipment in general, not just that of the taxing state, so that the Nation as a whole would suffer...
It is stipulated that American-owned containers are not taxed in Japan. California's tax thus creates an asymmetry in international maritime taxation operating to Japan's disadvantage. The risk of retaliation by Japan, under these circumstances, is acute, and such retaliation of necessity would be felt by the Nation as a whole...
We hold the tax, as applied, unconstitutional under the Commerce Clause.
Decision. The Supreme Court reversed, holding that the tax was unconstitutional. The Court ruled that an ad valorem property tax applied to cargo containers used exclusively in foreign commerce violates the Commerce Clause because it resulted in multiple taxation of instrumentalities of foreign commerce.
How does this case affect taxation by foreign countries?

Question 22

BACKGROUND AND FACTS
The state of California imposed an ad valorem property tax on cargo containers owned by Japanese companies and temporarily located in California ports. The containers were used exclusively for transporting goods in international commerce. They were based, registered, and subjected to property taxes in Japan. The containers spent, on average, only three weeks a year in California. Japan Lines contended that the tax was invalid because it subjected the containers to multiple taxation in Japan and the United States. The California Supreme Court upheld the statute and the ship owners appealed.
JUSTICE BLACKMUN
This case presents the question whether a state, consistently with the Commerce Clause of the Constitution, may impose a nondiscriminatory ad valorem property tax on foreign-owned instrumentalities (cargo containers) of international commerce...
In order to prevent multiple taxation of commerce, this Court has required that taxes be apportioned among taxing jurisdictions, so that no instrumentality of commerce is subjected to more than one tax on its full value. The corollary of the apportionment principle, of course, is that no jurisdictionmay tax the instrumentality in full. "The rule which permits taxation by two or more states on an apportionment basis precludes taxation of all of the property by the state of the domicile... Otherwise there would be multiple taxation of interstate operations." The basis for this Court's approval of apportioned property taxation, in other words, has been its ability to enforce full apportionment by all potential taxing bodies.
Yet neither this Court nor this Nation can ensure full apportionment when one of the taxing entities is a foreign sovereign. If an instrumentality of commerce is domiciled abroad, the country of domicile may have the right, consistently with the custom of nations, to impose a tax on its full value. If a state should seek to tax the same instrumentality on an apportioned basis, multiple taxation inevitably results. Hence, whereas the fact of apportionment in interstate commerce means that "multiple burdens" logically cannot occur, the same conclusion, as to foreign commerce, logically cannot be drawn. Due to the absence of an authoritative tribunal capable of ensuring that the aggregation of taxes is computed on no more than one full value, a state tax, even though "fairly apportioned" to reflect an instrumentality's presence within the state, may subject foreign commerce "to the risk of a double tax burden to which [domestic] commerce is not exposed, and which the commerce clause forbids."
Second, a state tax on the instrumentalities of foreign commerce may impair federal uniformity in an area where federal uniformity is essential. Foreign commerce is preeminently a matter of national concern. "In international relations and with respect to foreign intercourse and trade the people of the United States act through a single government with unified and adequate national power." Board of Trustees v. United States , 289 U.S. 48 (1933). Although the Constitution, Art. I, §8, cl. 3, grants Congress power to regulate commerce "with foreign Nations" and "among the several States" in parallel phrases, there is evidence that the Founders intended the scope of the foreign commerce power to be the greater. Cases of this Court, stressing the need for uniformity in treating with other nations, echo this distinction. * * *
A state tax on instrumentalities of foreign commerce may frustrate the achievement of federal uniformity in several ways. If the State imposes an apportioned tax, international disputes over reconciling apportionment formulae may arise. If a novel state tax creates an asymmetry in the international tax structure, foreign nations disadvantaged by the levy may retaliate against American-owned instrumentalities present in their jurisdictions. Such retaliation of necessity would be directed at American transportation equipment in general, not just that of the taxing state, so that the Nation as a whole would suffer...
It is stipulated that American-owned containers are not taxed in Japan. California's tax thus creates an asymmetry in international maritime taxation operating to Japan's disadvantage. The risk of retaliation by Japan, under these circumstances, is acute, and such retaliation of necessity would be felt by the Nation as a whole...
We hold the tax, as applied, unconstitutional under the Commerce Clause.
Decision. The Supreme Court reversed, holding that the tax was unconstitutional. The Court ruled that an ad valorem property tax applied to cargo containers used exclusively in foreign commerce violates the Commerce Clause because it resulted in multiple taxation of instrumentalities of foreign commerce.
What effect would multiple taxation have on international commerce?

Question 23

BACKGROUND AND FACTS
Star-Kist Foods, a U.S. producer of canned tuna, instituted a lawsuit to protest the assessment of duties made by the collector of customs on imported canned tuna. Duty was assessed on the canned tuna at the rate of 12.5 percent pursuant to a trade agreement with Iceland. Prior to the agreement, the tariff rate had been set by Congress in the Tariff Act of 1930 at 25 percent ad valorem. The trade agreement with Iceland, which resulted in lowering the rate of duty, was executed pursuant to the Reciprocal Trade Agreements Act of 1934. That act authorized the president to enter into foreign trade agreements for the purpose of expanding foreign markets for the products of the United States by affording corresponding market opportunities for foreign products in the United States. To implement an agreement, the president was then authorized to raise or lower any duty previously set by Congress, but not by more than 50 percent. Star-Kist brought this action, contending that the delegation of authority under the 1934 act, and the agreement with Iceland, were unconstitutional.
JUDGE MARTIN
A constitutional delegation of powers requires that Congress enunciate a policy or objective or give reasons for seeking the aid of the President. In addition the act must specify when the powers conferred may be utilized by establishing a standard or "intelligible principle" which is sufficient to make it clear when action is proper. And because Congress cannot abdicate its legislative function and confer carte blanche authority on the President, it must circumscribe that power in some manner. This means that Congress must tell the President what he can do by prescribing a standard which confines his discretion and which will guarantee that any authorized action he takes will tend to promote rather than flout the legislative purpose. It is not necessary that the guides be precise or mathematical formulae to be satisfactory in a constitutional sense.
In the act before us the congressional policy is pronounced very clearly. The stated objectives are to expand foreign markets for the products of the United States "by regulating the admission of foreign goods into the United States in accordance with the characteristics and needs of various branches of American production so that foreign markets will be made available to those branches of American production which require and are capable of developing such outlets by affording corresponding market opportunities for foreign products in the United States...."
Pursuant to the 1934 act the presidential power can be invoked "whenever he [the President] finds as a fact that any existing duties or other import restrictions of the United States or any foreign country are unduly burdening or restricting the foreign trade of the United States and that the [purpose of the act] will be promoted."...
Under the provisions of the 1934 act the President by proclamation can modify existing duties and other import restrictions but not by more than 50 percent of the specified duties nor can he place articles upon or take them off the free list. Furthermore, he must accomplish the purposes of the act through the medium of foreign trade agreements with other countries. However, he can suspend the operation of such agreements if he discovers discriminatory treatment of American commerce, and he can terminate, in whole or in part, any proclamation at any time...
In view of the Supreme Court's recognition of the necessity of flexibility in the laws affecting foreign relations... we are of the opinion that the 1934 act does not grant an unconstitutional delegation of authority to the President.
Decision. The court held for the United States. The congressional delegation of authority under the 1934 statute was constitutional because Congress had provided the president with a sufficiently discernible standard to guide any decisions in carrying out the purposes of the act.
What was the constitutional authority for the agreement with Iceland?

Question 24

BACKGROUND AND FACTS
Star-Kist Foods, a U.S. producer of canned tuna, instituted a lawsuit to protest the assessment of duties made by the collector of customs on imported canned tuna. Duty was assessed on the canned tuna at the rate of 12.5 percent pursuant to a trade agreement with Iceland. Prior to the agreement, the tariff rate had been set by Congress in the Tariff Act of 1930 at 25 percent ad valorem. The trade agreement with Iceland, which resulted in lowering the rate of duty, was executed pursuant to the Reciprocal Trade Agreements Act of 1934. That act authorized the president to enter into foreign trade agreements for the purpose of expanding foreign markets for the products of the United States by affording corresponding market opportunities for foreign products in the United States. To implement an agreement, the president was then authorized to raise or lower any duty previously set by Congress, but not by more than 50 percent. Star-Kist brought this action, contending that the delegation of authority under the 1934 act, and the agreement with Iceland, were unconstitutional.
JUDGE MARTIN
A constitutional delegation of powers requires that Congress enunciate a policy or objective or give reasons for seeking the aid of the President. In addition the act must specify when the powers conferred may be utilized by establishing a standard or "intelligible principle" which is sufficient to make it clear when action is proper. And because Congress cannot abdicate its legislative function and confer carte blanche authority on the President, it must circumscribe that power in some manner. This means that Congress must tell the President what he can do by prescribing a standard which confines his discretion and which will guarantee that any authorized action he takes will tend to promote rather than flout the legislative purpose. It is not necessary that the guides be precise or mathematical formulae to be satisfactory in a constitutional sense.
In the act before us the congressional policy is pronounced very clearly. The stated objectives are to expand foreign markets for the products of the United States "by regulating the admission of foreign goods into the United States in accordance with the characteristics and needs of various branches of American production so that foreign markets will be made available to those branches of American production which require and are capable of developing such outlets by affording corresponding market opportunities for foreign products in the United States...."
Pursuant to the 1934 act the presidential power can be invoked "whenever he [the President] finds as a fact that any existing duties or other import restrictions of the United States or any foreign country are unduly burdening or restricting the foreign trade of the United States and that the [purpose of the act] will be promoted."...
Under the provisions of the 1934 act the President by proclamation can modify existing duties and other import restrictions but not by more than 50 percent of the specified duties nor can he place articles upon or take them off the free list. Furthermore, he must accomplish the purposes of the act through the medium of foreign trade agreements with other countries. However, he can suspend the operation of such agreements if he discovers discriminatory treatment of American commerce, and he can terminate, in whole or in part, any proclamation at any time...
In view of the Supreme Court's recognition of the necessity of flexibility in the laws affecting foreign relations... we are of the opinion that the 1934 act does not grant an unconstitutional delegation of authority to the President.
Decision. The court held for the United States. The congressional delegation of authority under the 1934 statute was constitutional because Congress had provided the president with a sufficiently discernible standard to guide any decisions in carrying out the purposes of the act.
What was the policy objective of Congress in enacting the Reciprocal Trade Agreements Act noted by the court? How was the president to implement this policy?

Question 25

BACKGROUND AND FACTS
Star-Kist Foods, a U.S. producer of canned tuna, instituted a lawsuit to protest the assessment of duties made by the collector of customs on imported canned tuna. Duty was assessed on the canned tuna at the rate of 12.5 percent pursuant to a trade agreement with Iceland. Prior to the agreement, the tariff rate had been set by Congress in the Tariff Act of 1930 at 25 percent ad valorem. The trade agreement with Iceland, which resulted in lowering the rate of duty, was executed pursuant to the Reciprocal Trade Agreements Act of 1934. That act authorized the president to enter into foreign trade agreements for the purpose of expanding foreign markets for the products of the United States by affording corresponding market opportunities for foreign products in the United States. To implement an agreement, the president was then authorized to raise or lower any duty previously set by Congress, but not by more than 50 percent. Star-Kist brought this action, contending that the delegation of authority under the 1934 act, and the agreement with Iceland, were unconstitutional.
JUDGE MARTIN
A constitutional delegation of powers requires that Congress enunciate a policy or objective or give reasons for seeking the aid of the President. In addition the act must specify when the powers conferred may be utilized by establishing a standard or "intelligible principle" which is sufficient to make it clear when action is proper. And because Congress cannot abdicate its legislative function and confer carte blanche authority on the President, it must circumscribe that power in some manner. This means that Congress must tell the President what he can do by prescribing a standard which confines his discretion and which will guarantee that any authorized action he takes will tend to promote rather than flout the legislative purpose. It is not necessary that the guides be precise or mathematical formulae to be satisfactory in a constitutional sense.
In the act before us the congressional policy is pronounced very clearly. The stated objectives are to expand foreign markets for the products of the United States "by regulating the admission of foreign goods into the United States in accordance with the characteristics and needs of various branches of American production so that foreign markets will be made available to those branches of American production which require and are capable of developing such outlets by affording corresponding market opportunities for foreign products in the United States...."
Pursuant to the 1934 act the presidential power can be invoked "whenever he [the President] finds as a fact that any existing duties or other import restrictions of the United States or any foreign country are unduly burdening or restricting the foreign trade of the United States and that the [purpose of the act] will be promoted."...
Under the provisions of the 1934 act the President by proclamation can modify existing duties and other import restrictions but not by more than 50 percent of the specified duties nor can he place articles upon or take them off the free list. Furthermore, he must accomplish the purposes of the act through the medium of foreign trade agreements with other countries. However, he can suspend the operation of such agreements if he discovers discriminatory treatment of American commerce, and he can terminate, in whole or in part, any proclamation at any time...
In view of the Supreme Court's recognition of the necessity of flexibility in the laws affecting foreign relations... we are of the opinion that the 1934 act does not grant an unconstitutional delegation of authority to the President.
Decision. The court held for the United States. The congressional delegation of authority under the 1934 statute was constitutional because Congress had provided the president with a sufficiently discernible standard to guide any decisions in carrying out the purposes of the act.
Why was the congressional delegation of authority constitutional?

Question 26

BACKGROUND AND FACTS
In the early 1950s, the United States was at war in Korea as part of a United Nations "police action." American steelworkers were threatening to strike over wages and collective bargaining disagreements with steel companies. The president made every attempt to intervene and to help the parties negotiate an agreement. A strike would have disrupted the supply of steel, leading to a possible shortage of steel during the war effort and an increase in prices in all products made of steel. Despite all efforts, the parties were unable to reach agreement. Just before the steelworkers were to go on strike, President Truman ordered Secretary of Commerce Charles Sawyer to seize the steel mills and keep them in operation. The president based his authority for doing so on Article II of the Constitution and on his power as commander in chief of the armed forces. A district court granted the request of the steel companies for a temporary injunction against the president's order, the Court of Appeals agreed, and the secretary of commerce appealed to the Supreme Court.
DECISION MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT
* * *
The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. Indeed, we do not understand the Government to rely on statutory authorization for this seizure
Moreover, the use of the seizure technique to solve labor disputes in order to prevent work stoppages was not only unauthorized by any congressional enactment; prior to this controversy, Congress had refused to adopt that method of settling labor disputes. When the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency. Apparently it was thought that the technique of seizure, like that of compulsory arbitration, would interfere with the process of collective bargaining. * * *
The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States. * * * The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can make laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution did not subject this law-making power of Congress to presidential or military supervision or control. * * *
The judgment of the District Court is affirmed.
MR. JUSTICE JACKSON, CONCURRING IN THE JUDGMENT AND OPINION OF THE COURT
* * *
When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth), to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. * * *
In view of the ease, expedition and safely with which Congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument that we should affirm possession of them without statute. Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction.
Decision. The lower court's injunction against the President's action was upheld. The President was not acting pursuant to an act of Congress, nor could the seizure of private property during wartime be justified on the basis of his inherent power as President or as Commander in Chief.
Comment. The concurring opinion by Justice Jackson is one of the most frequently cited opinions in American constitutional history regarding presidential powers. Justice Robert Jackson was America's chief prosecutor of Nazi war criminals at the Nuremberg Trials. Where, as in this case, the President's action is in contradiction to acts of Congress, the President's power is at its "lowest ebb."
On what grounds did Justice Black reject President Truman's seizure order?

Question 27

BACKGROUND AND FACTS
In the early 1950s, the United States was at war in Korea as part of a United Nations "police action." American steelworkers were threatening to strike over wages and collective bargaining disagreements with steel companies. The president made every attempt to intervene and to help the parties negotiate an agreement. A strike would have disrupted the supply of steel, leading to a possible shortage of steel during the war effort and an increase in prices in all products made of steel. Despite all efforts, the parties were unable to reach agreement. Just before the steelworkers were to go on strike, President Truman ordered Secretary of Commerce Charles Sawyer to seize the steel mills and keep them in operation. The president based his authority for doing so on Article II of the Constitution and on his power as commander in chief of the armed forces. A district court granted the request of the steel companies for a temporary injunction against the president's order, the Court of Appeals agreed, and the secretary of commerce appealed to the Supreme Court.
DECISION MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT
* * *
The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. Indeed, we do not understand the Government to rely on statutory authorization for this seizure
Moreover, the use of the seizure technique to solve labor disputes in order to prevent work stoppages was not only unauthorized by any congressional enactment; prior to this controversy, Congress had refused to adopt that method of settling labor disputes. When the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency. Apparently it was thought that the technique of seizure, like that of compulsory arbitration, would interfere with the process of collective bargaining. * * *
The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States. * * * The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can make laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution did not subject this law-making power of Congress to presidential or military supervision or control. * * *
The judgment of the District Court is affirmed.
MR. JUSTICE JACKSON, CONCURRING IN THE JUDGMENT AND OPINION OF THE COURT
* * *
When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth), to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. * * *
In view of the ease, expedition and safely with which Congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument that we should affirm possession of them without statute. Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction.
Decision. The lower court's injunction against the President's action was upheld. The President was not acting pursuant to an act of Congress, nor could the seizure of private property during wartime be justified on the basis of his inherent power as President or as Commander in Chief.
Comment. The concurring opinion by Justice Jackson is one of the most frequently cited opinions in American constitutional history regarding presidential powers. Justice Robert Jackson was America's chief prosecutor of Nazi war criminals at the Nuremberg Trials. Where, as in this case, the President's action is in contradiction to acts of Congress, the President's power is at its "lowest ebb."
Explain Justice Jackson's tripartite classification of presidential power. How did he classify President Truman's action in seizing the steel mills, and why?

Question 28

BACKGROUND AND FACTS
In the early 1950s, the United States was at war in Korea as part of a United Nations "police action." American steelworkers were threatening to strike over wages and collective bargaining disagreements with steel companies. The president made every attempt to intervene and to help the parties negotiate an agreement. A strike would have disrupted the supply of steel, leading to a possible shortage of steel during the war effort and an increase in prices in all products made of steel. Despite all efforts, the parties were unable to reach agreement. Just before the steelworkers were to go on strike, President Truman ordered Secretary of Commerce Charles Sawyer to seize the steel mills and keep them in operation. The president based his authority for doing so on Article II of the Constitution and on his power as commander in chief of the armed forces. A district court granted the request of the steel companies for a temporary injunction against the president's order, the Court of Appeals agreed, and the secretary of commerce appealed to the Supreme Court.
DECISION MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT
* * *
The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. Indeed, we do not understand the Government to rely on statutory authorization for this seizure
Moreover, the use of the seizure technique to solve labor disputes in order to prevent work stoppages was not only unauthorized by any congressional enactment; prior to this controversy, Congress had refused to adopt that method of settling labor disputes. When the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency. Apparently it was thought that the technique of seizure, like that of compulsory arbitration, would interfere with the process of collective bargaining. * * *
The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States. * * * The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can make laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution did not subject this law-making power of Congress to presidential or military supervision or control. * * *
The judgment of the District Court is affirmed.
MR. JUSTICE JACKSON, CONCURRING IN THE JUDGMENT AND OPINION OF THE COURT
* * *
When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth), to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. * * *
In view of the ease, expedition and safely with which Congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument that we should affirm possession of them without statute. Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction.
Decision. The lower court's injunction against the President's action was upheld. The President was not acting pursuant to an act of Congress, nor could the seizure of private property during wartime be justified on the basis of his inherent power as President or as Commander in Chief.
Comment. The concurring opinion by Justice Jackson is one of the most frequently cited opinions in American constitutional history regarding presidential powers. Justice Robert Jackson was America's chief prosecutor of Nazi war criminals at the Nuremberg Trials. Where, as in this case, the President's action is in contradiction to acts of Congress, the President's power is at its "lowest ebb."
Considering that the United States was engaged in a brutal war in Korea, and that steel was needed for the war effort, do you agree with this decision (three justices dissented)? If the Court had permitted the seizure of a private business in this case, could that have led to a "slippery slope" and ultimately future seizures on somewhat lesser grounds?