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3. C    Under the Necessary and Proper Clause, Congress has the power to make laws regulating the use of federal money disbursed pursuant to the spending power. This may enable Congress to control functions which are traditionally those of the state. (N.F.I.B. v. Sebelius, the health-care insurance case, says that Congress can’t use its spending and Necessary-and-Proper powers to impose conditions on the payment of funds to states where the amount of federal funding that would be lost if the state didn’t honor the conditions is so great that the states would be “coerced” by being left with no practical choice but to agree. However, the facts tell us that the total funds that might have to be returned if Calizona didn’t follow the minimum-wage rule amount to less than 1% of Calizona’s budget, so the federal government would not be found to have “coerced” the state into agreeing to the minimum-wage limits.)

Congress’ general right to set conditions on a state’s use of federal funds means that A and B are, therefore, incorrect, even though traditional state functions are at issue. An intrastate activity may be controlled by Congress under the Commerce Clause if its impact on interstate commerce justifies regulation to protect or promote interstate commerce. D is incorrect, however, because the fact that some of the materials used are traded in interstate commerce is not, alone, sufficient to establish such an impact.

4. A   The Eleventh Amendment bars a private action against a state for money damages in a federal court by a resident or non-resident of the state if a judgment in the action would have to be paid out of the state’s general treasury. The Amendment applies to the facts here unless Congress had power to nullify the Amendment, as Congress purported to do when it authorized a private action against the state. Congress does have power to nullify that Eleventh Amendment immunity, but only if (1) Congress is using its special enforcement powers under the post-Civil-War Amendments (13th, 14th and 15th) to prevent violations of those Amendments, and (2) Congress’ response is “congruent and proportional” to the scope of past state violations of those Amendments, violations of the sort that Congress is now trying to prevent. Boerne v. Flores. (Congress cannot rely on any other power, such as the Commerce power, to nullify Eleventh Amendment immunity — only the 13th, 14th and 15th Amendment enforcement powers qualify. Seminole Tribe of Florida v. Florida.) Here, there is no evidence that Congress was attempting to prevent any state violation of the 13th, 14th or 15th Amendments; therefore, Congress did not have the power to overcome the state’s Eleventh Amendment immunity.

B is incorrect because the suit arises under a federal statute. C is incorrect because this question does not depend on whom the plaintiff’s employer was, since the action by employees of Bilder is for damages resulting from Calizona’s failure to require Bilder to pay the $12.00 wage. Unless the employees were aware of their rights, they could not have waived them. D is incorrect because there is no indication that the employees knowingly waived their rights.

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