Why did Texas pass a constitutional amendment limiting local use of eminent domain?

1. Office of the Surgeon General, The Surgeon General's Call to Action to Prevent Overweight and Obesity (Washington, DC: Department of Health and Human Services, 2001), xii [Google Scholar]

2. Marbury v. Madison, 5 U.S. 137, 177 (1803)

3. U.S. Constitution, art. 6.

4. U.S. Constitution, amend. 10. (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”)

5. See Kroplin v. Truax, 119 Ohio 610, 621 (1929); Patrick v. Riley, 209 Cal. 350, 354 (1930)

6. See Tegan K. Boehmer, et al., “Patterns of Childhood Obesity Prevention Legislation in the United States,” Preventing Chronic Disease 4, no. 3(2007): 2, Table 1, http://www.cdc.gov/pcd/issues/2007/jul/06_0082.htm (accessed August 5, 2009)

7. U.S. Constitution, art. 1, sec. 8; U.S. Constitution, art. 2, sec. 2.

8. U.S. Constitution, art. 1, sec. 8; Gonzales v. Raich, 545 U.S. 1 (2005)

9. Nutrition Labeling and Education Act of 1990, U.S. Code 21 (2008), sec. 343-1(a)(4); National School Lunch Act, U.S. Code 42 (2008), sec. 1751.

10. U.S. Constitution, amend. 10.

11. E.g., California Constitution, art. 11; Minnesota Constitution, art. 12.

12. U.S. Constitution, art. 1, sec. 8.

13. Gibbons v. Ogden, 22 U.S. 1 (1824)

14. U.S. Constitution, art. 6.

15. Hillsborough County v. Automated Med. Lab., Inc., 471 U.S. 707, 713 (1985)

16. Nutrition Labeling and Education Act of 1990, sec. 343–1; Code of Federal Regulations 21, sec. 101.2–101.18 (2008)

17. Nutrition Labeling and Education Act of 1990, sec. 343–1(a)(4)

18. Health Insurance Portability and Accountability Act (HIPAA), Public Law 104-19142, sec. 264(c)(2) (2008), codified in note at U.S. Code 42 (2008), sec. 1320d-2; and Code of Federal Regulations 45, sec. 160.201–160.205.

19. E.g., Nutrition Labeling and Education Act of 1990, sec. 343–1(a)(4)

20. Hines v. Davidowitz, 312 U.S. 52, 67 (1941)

21. See U.S. Code 42 (2008), sec. 1758(e)

22. Ray v. Atlantic Richfield Co., 435 U.S. 151, 157 (1978)

23. E.g., Altria Group, Inc. v. Good, 129 S.Ct. 528 (2008). Note that this presumption has little effect in areas where the federal government has traditionally regulated extensively, such as national banks, highway safety, and medical devices. Nor does it apply when, as has increasingly been the case, Congress includes broad and explicit preemption provisions in federal legislation. See U.S. House of Representatives, Committee on Government Reform, Minority Staff Special Investigations Division, Congressional Preemption of State Laws and Regulations (June 2006) (finding House and Senate had voted 57 times in previous 5 years to preempt state laws and regulations, with 27 of the bills having been enacted as statutes). http://oversight.house.gov/documents/20060606095331-23055.pdf (accessed August 5, 2009)

24. Cal. Health & Safety Code, sec. 114094 (West 2008)

25. U.S. Constitution, art. 1, sec. 8, cl. 2.

26. See Dean Milk Co. v. Madison, 340 U.S. 349 (1951). A state is free under the Commerce Clause to disadvantage its own producers. A state may require, for example, that all in-state chain restaurants post nutritional information on their menu boards, even though competitors across the state line face no such requirement. The Constitution envisions that these businesses will be able to have their say in the state's political process and will not therefore require further protection.

27. See Cachia v. Islamorada, 542 F. 3d 839 (11th Cir. 2008)

28. See Pike v. Bruce Church, Inc., 397 U.S. 137 (1970)

29. See Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443 (1960)

30. Cf. Healy v. Beer Institute, Inc., 491 U.S. 324 (1984)

31. Reeves v. William Stake, 447 U.S. 429 (1980)

32. Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001)

33. Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980)

34. Lorillard, 533 U.S. 565.

35. See Perry Educational Association v. Perry Local Educators' Association, 460 U.S. 37 (1983)

36. See Samantha K. Graff, “First Amendment Implications of Restricting Food and Beverage Marketing in Schools,” Annals of the American Academy of Political and Social Science 615 (2008): 157–177.

37. See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985); National Electrical Manufacturers Association v. Sorrell, 272 F.3d 104 (2d Cir. 2001)

38. See New York State Restaurant Association v. New York City Board of Health, 556 F.3d 114, (2d Cir. 2009)

39. United States v. O'Brien, 391 U.S. 367 (1968)

40. Lorillard, 533 U.S. 569–570.

41. See Loretto v. Manhattan Teleprompter CATV Corp., 458 U.S. 419 (1982)

42. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)

43. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)

44. Penn Central Transportation Company Co. v. City of New York, 438 U.S. 104, 123, 127 (1978)

45. E.g., Syracuse Aggregate Corp. v. Weise, 72 A.D. 2d 254 (N.Y. App. Div. 4th Dep't 1980), aff'd, 414 N.E. 2d 651 (N.Y. 1980)

46. See Nollan v. California Coastal Commission, 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994)

47. E.g., Texas Constitution, art. 1, sec. 17; Arizona Constitution, art. 2, sec. 17; Colorado Constitution, art. 2, sec. 14; Missouri Constitution, art. 1, sec. 28; Washington Constitution, art. 1, sec. 16.

48. E.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (access to birth control); Roe v. Wade, 410 U.S. 113 (1973) (access to abortion); Lawrence v. Texas, 539 U.S. 558 (2003) (consensual sexual activity)

49. The implicit federal constitutional right to privacy is grounded in several provisions of the Constitution (e.g., the Third, Fourth, and Ninth Amendments), but most firmly in the Due Process clauses of the Fifth and Fourteenth amendments. See Lawrence v Texas, 539 U.S. 558. Although the federal Constitution does not mention privacy per se, several state constitutions do (see Alaska Constitution, art. 1, sec. 22; California Constitution, art. 1, sec. 1; Florida Constitution, art. 1, sec. 23; Hawaii Constitution, art. 1, sec. 6; Montana Constitution, art. 2, sec. 10), and many other states expressly protect privacy by statute.

50. Although only the Fourteenth Amendment states this explicitly, the Fifth Amendment has been held to contain an implicit equal protection component as well. See Bolling v. Sharpe, 347 U.S. 497 (1954)

51. E.g., New Orleans v. Dukes, 427 U.S. 297 (1976)

52. See, e.g., Centers for Disease Control and Prevention, Chronic Diseases: The Leading Causes of Death (Atlanta, GA: CDC, 2005), http://www.cdc.gov/nccdphp/publications/factsheets/ChronicDisease/california.htm (accessed March 18, 2009)

53. The Constitution contains no such limitation on the federal government. See Michael W. McConnell, “Contract Rights and Property Rights: A Case Study in the Relationship between Individual Liberties and Constitutional Structure,” California Law Review 76(1988): 267–295.

54. Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 412 (1983)

55. Home Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934)