Graduate Student

Topics: U.S. state, United States Constitution, Commerce Clause Pages: 5 (1846 words) Published: May 7, 2013
Justice Alito’s Presumed Stance on McBurney v. Young

I think the case would eventually wind up as Justice Alito, known as conservative, voting against McBurney. As far as the voting, 6-3 or 7-2 would, in my speculation, be the most likely result with majority ruling against the state government and its FOIA, prompting optimization of the law.

The case, McBurney v. Young, will be profound not only for the legal parties involved, but also for the other states with the similar provisions in their state open-records laws, including Arkansas, New Hampshire and Tennessee. In terms of handling freedom of information, which is the crux of the issue argued by the case plaintiffs, two non-Virginia residents and respondent represented by Virginia Solicitor General E.Duncan Getchell, the case is bound to be the benchmark for ensuing litigation. There are several angles to approach this case. The Privileges and Immunities Clause (Article IV, Section 2, Clause 1) is one of the decisive issue upon which the case is going to be decided as to whether the fundamental rights of the information requesters are violated. That said, the Privileges and Immunities Clause (PAI) is the law that prevents a state from treating citizens of other states in a discriminatory manner. The text of the clause reads: the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. In this case, the information requesters, from other states with different needs, were denied access to the information only made available to the in-state residents. Deepak Gupta arguing for the petitioners asserted that the Virginia Freedom of Information Act substantially kept the information regarding public information from the requesters, which is an act that unconstitutionally discriminates against those out of state. From there, the case would be boiled downed to whether the petitioners’ fundamental rights that are supposed to be protected by PAI was violated. The second debate would revolve around the Dormant Commerce Clause that prohibits states passing legislation that improperly burdens or discriminate against interstate commerce. It would position the case into a different realm encompassing business related regulation and the key point of contention arose as to whether the petitioner Hurlbert’s right of requesting for the information claimed to be used for his business activities in other states was burdened. All in all, the Dormant Commerce Clause that is at issue would enable us to determine whether VFOIA infringes on non-state residents’ business interests as the entire issue would go beyond the political sphere. PAI Criteria

The VFOIA and its access only to Virginian is a political initiative; and its only intention is to have this law enforced for its political purpose. Moreover, the law’s purpose is to provide Virginia people with political transparency in a way that they could collectively monitor the government. And it is “not a regulation of commerce” as Getchell said. People have rights to be able to get access to public record within their own states; and maintaining the data and information does involve a cost. And I do believe that by granting public record to its own citizen, meanwhile, denying outlanders’ access, the state or local government has a substantial interest, which further justifies the provision. “The petitioners’ argument would expand exponentially the reach of the privileges and immunities clause and threaten a host of state laws with residency requirements. Recognition of such a ‘privilege’ would cast a cloud of uncertainty over the constitutionality of all state and local government services that are tied to state or local residency status,” the brief said. Therefore, upholding and preserving the integrity of state residency is important in dealing with issues in relation to in-state and out-of-state status. Simply speaking, under the constitution, the differences between...
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