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Chapter 4
Constitutional Law for Business and E-Commerce
VI. Answers to Critical Legal Thinking Cases
4.1 Supremacy Clause
Yes. The U.S. Supreme Court held that the Massachusetts’ anti-Myanmar law conflicted with federal law
and was therefore preempted by the Supremacy Clause of the U.S. Constitution. The Supreme Court
stated, “Within the sphere defined by Congress, then, the federal statute has placed the president in a
position with as much discretion to exercise economic leverage against Burma, with an eye toward
national security, as our law will admit. It is simply implausible that Congress would have gone to such
lengths to empower the president if it had been willing to compromise his effectiveness by deference to
4.2 Establishment Clause
Yes, the display of the Ten Commandments in the courthouses violates the Establishment Clause. The
First Amendment’s Establishment Clause mandates governmental neutrality regarding religion, that is, a
government cannot promote religion. However, the U.S. Supreme Court has held that in some instances
the display of a religious item may have obtained a secular purpose and therefore does not violate the
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4.3 Supremacy Clause
Yes, South Coast’s fleet emission standards are preempted by federal environmental protection law. The
Supremacy Clause of the U.S. Constitution stipulates that federal law is the supreme law of the United
States, and that any conflicting state or local law is preempted by the relevant federal law. Congress
the enforcement of emission standards. But if one state or political subdivision may enact such rules, then
so may any other, and the end result would undo Congress’s carefully calibrated regulatory scheme. What
is the use of imposing such a limitation if the states are entirely free to impose their own fleet purchase
standards with entirely different specifications?” The U.S. Supreme Court held that the federal Clean Air
(Supreme Court of the United States, 2004)
4.4 Due Process
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communications law. Therefore, the FCC’s 2004 standards as applied to the broadcasts in 2002 and 2003 were
vague. The Supreme Court held that the defendants’ Fifth Amendment’s due process rights had been violated
because the FCC had failed to give fair notice to Fox and ABC prior to the broadcasts in question that fleeting
4.5 Commerce Clause
Yes, the federal Driver’s Privacy Protection Act (DPPA) was properly enacted by the U.S. Congress
pursuant to the Commerce Clause power granted to the federal government by the U.S. Constitution. The
DPPA is a proper exercise of Congress’s authority to regulate interstate commerce under the Commerce
Because automobile owners’ and drivers’ information is an article of commerce, its sale or release into
the interstate stream of business is sufficient to support federal regulation. The U.S. Supreme Court held
that Congress had the authority under the Commerce Clause of the U.S. Constitution to enact the federal
Driver’s Privacy Protection Act. Therefore, a state cannot sell or otherwise distribute the personal
VII. Answers to Ethics Cases
4.6 Ethics Case
Yes, under the Supremacy Clause of the U.S. Constitution, preemption provision in the federal NCVIA
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manufacturer Wyeth LLC for state law product liability is preempted by the NCVIA. The public policy
for the Supremacy Clause is obvious: without the Clause, states could enact laws that overrode federal
law, and federal laws could always be ignored and preempted by state law. This would cause havoc to
the concept of federalism for our form of government. Is it ethical for the defendant to rely on the
1085 (Supreme Court of the United States, 2011)
4.7 Ethics Case
Yes, unsolicited telemarketing calls is commercial speech that is subject to government regulation and the
do-not-call registry restrictions do not violate the free speech rights of the plaintiff telemarketers.
invasive.” One of the major complaints of consumers, and the impetus for the passage of the do-not-call
registry, was that telemarketers were calling people at their homes at dinner-time and other inconvenient
times. In addition, many telemarketers were overly aggressive, and others used computer generated
calling systems. It may have been legal to have used these tactics prior to the enactment of the law, but it
Circuit, 2004)
