Chapter 5 Business and the Constitution Its Legal, Ethical, and Global Environment Marianne M. Jennings Business 11th Ed. ©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use. 0 5-1 The U.S. Constitution Article I: Legislative Branch Congress House of Representatives Senate Article II: Executive Branch President Vice President Article III: Judicial Branch Creates U.S. Supreme Court Authorizes Congress to create other courts ©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use. 1 5-2 The U.S. Constitution Creates a System of Checks and Balances Each branch has some power check over the others to keep any one from becoming too powerful Examples Nixon v. Administrator of General Services Clinton v. Jones Obama v. Alito ©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use. 2 5-3 The U.S. Constitution Other Articles in the Constitution Article IV: State Interrelationships Article V: Procedures for Amendments Article VI: Supremacy Clause Article VII: State Ratification of the Constitution ©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use. 3 5-4 The U.S. Constitution Bill of Rights First: Freedom of speech Fourth: Privacy Fifth: Due process and self-incrimination Sixth: Jury trial Other Amendments Fourteenth Amendment: Due Process and Equal Protection ©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use. 4 5-5 Role of Judicial Review Determines the Rights Afforded by the U.S. Constitution Determines the Scope of Rights Plays Unique Role in Checks and Balances Determines the appropriateness of the actions of other branches ©2017 Cengage Learning®. May no.

1. Chapter 5
Business and the Constitution
Its Legal, Ethical, and
Global Environment
Marianne M. Jennings
Business
11th Ed.
©2017 Cengage Learning®. May not be scanned, copied or
duplicated or posted to a publicly accessible website, in whole
or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
protected website or school-approved learning management
system for classroom use.
0
5-1
The U.S. Constitution
Article I: Legislative Branch
Congress
House of Representatives
Senate
Article II: Executive Branch
President
Vice President
Article III: Judicial Branch
Creates U.S. Supreme Court
Authorizes Congress to create other courts

2. ©2017 Cengage Learning®. May not be scanned, copied or
duplicated or posted to a publicly accessible website, in whole
or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
protected website or school-approved learning management
system for classroom use.
1
5-2
The U.S. Constitution
Creates a System of Checks and Balances
Each branch has some power check over the others to keep any
one from becoming too powerful
Examples
Nixon v. Administrator of General Services
Clinton v. Jones
Obama v. Alito
©2017 Cengage Learning®. May not be scanned, copied or
duplicated or posted to a publicly accessible website, in whole
or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
protected website or school-approved learning management
system for classroom use.
2
5-3
The U.S. Constitution
Other Articles in the Constitution
Article IV: State Interrelationships

3. Article V: Procedures for Amendments
Article VI: Supremacy Clause
Article VII: State Ratification of the Constitution
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duplicated or posted to a publicly accessible website, in whole
or in part, except for use as permitted in a license distributed
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system for classroom use.
3
5-4
The U.S. Constitution
Bill of Rights
First: Freedom of speech
Fourth: Privacy
Fifth: Due process and self-incrimination
Sixth: Jury trial
Other Amendments
Fourteenth Amendment: Due Process and Equal Protection
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or in part, except for use as permitted in a license distributed
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system for classroom use.
4

4. 5-5
Role of Judicial Review
Determines the Rights Afforded by the U.S. Constitution
Determines the Scope of Rights
Plays Unique Role in Checks and Balances
Determines the appropriateness of the actions of other branches
©2017 Cengage Learning®. May not be scanned, copied or
duplicated or posted to a publicly accessible website, in whole
or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
protected website or school-approved learning management
system for classroom use.
5
5-6
Limits of Economic Regulation
The Commerce Clause: Article I, Section 8
Standards for Federal Regulation of Interstate Commerce
Historical application
Initially, Court gave a narrow interpretation
Court held New Deal Legislation unconstitutional
Roosevelt proposed Court-Packing Plan
After these political battles, the court responded in NLRB v.
Laughlin Steel with the affectation doctrine
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duplicated or posted to a publicly accessible website, in whole
or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
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system for classroom use.

5. 6
5-7
Limits of Economic Regulation
Economic Activity is an Economic Setting
e.g., Price Fixing by Multinationals
Economic Activity in a Non-Economic Setting
e.g., Loan Sharking on the Street Corner
Non-Economic Activity in an Economic Setting
e.g., Race Discrimination by a Hotel
Non-Economic Activity in a Non-Economic Setting
e.g., VAWA and Morrison?
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5-8
Table One – Part A
COMPARISON OF CONGRESSIONAL JURISDICTION
FACTORS
CHILD LABOR
WOMEN AND VIOLENCE
AWFUL; HORRIBLE 1. AWFUL;
HORRIBLE
PERVASIVE 2.
PERVASIVE
INSUFFICIENT 3.
INSUFFICIENT

6. STATE ACTION
STATE ACTION
BUSINESSES 4.
MEN ARE DOING IT
WERE DOING IT
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5-9
Table One – Part B
CIVIL RIGHTS (LACK THEREOF)
CHILD LABOR GUNS IN SCHOOLS
1. DISPARATE 1. VIOLENCE IS
AWFUL
2. UNSAFE–VIOLENCE 2. UNSAFE–VIOLENCE
3. INSUFFICIENT 3. INSUFFICIENT
STATE ACTION STATE ACTION
4. BUSINESSES 4. HIGH SCHOOL
WERE DOING IT STUDENTS DOING
IT
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7. 5-10
Table Two
The Factors of Wickard v. Filburn
Local Farmers
Individuals, But Still in Business
Local Commerce Affects Prices in National Market
National Economic Interest in Farm Products/Pricing
Combining Wickard with the decisions in Lopez and Morrison,
we are able to develop a clear matrix on the Commerce Clause
as depicted by Response to Razook Figure One and the specific
examples listed in Razook Figure Two.
In the Lopez case, the court held that the act of having a gun on
school property had no economic/commerce base and that
federal laws could not regulate local school.
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5-11
Response to Razook Figure One
Congress May Regulated conduct Regulated
conduct
Regulate is economic
is performed by an
(commercial (commercial
character)

8. character to actor)
Congress May Regulated conduct Regulated
conduct
Not Regulate is non-economic
is not performed by
an economic entity
(non-commercial
character)
Jennings Figure R-1
Examples of Congressional Authority/Non-Authority After
Morrison and Lopez
Congress may regulate
Congress may not regulate
Congress may regulate
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9. or in part, except for use as permitted in a license distributed
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5-12
Table Three
Application of the Economic/Non-Economic Actor/ Activity
Test to Specific Regulations
Gun Possession
Gun possessor (actor) – non-commercial, Congress may not
regulate
Act of gun possession – non-commercial, Congress may not
regulate
Violence Against Women
Abuser (actor) – non-commercial, Congress may not regulate
Act of abusing – non-commercial, Congress may not regulate
Farm Regulation (Wickard v. Filburn)
Farmer (actor) – commercial (livelihood), Congress may
regulate
Act of selling – commercial, Congress may regulate
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5-13
Table Three (cont’d)

10. Title VII Civil Rights Discrimination
Hotel/Restaurant Owner (actor) – commercial, Congress may
regulate
Act of discrimination – non-commercial, Congress may
regulate
Labor/Unions/OSHA
Actors are business – commercial, Congress may regulate
Or Unions Engaged in Business – commercial, Congress may
regulate
Act of Work/Employment – commercial, Congress may regulate
Lending (loan sharking)
Actors are loan sharks – commercial, Congress may regulate
(Facilities are not great, but they are a source of loans)
Act of lending – commercial, Congress may regulate
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5-14
Limits of Economic Regulation
Case 5.1 National Federation of Independent Business v.
Sebelius (2012)
The court found that the individual mandate violated the
Commerce Clause
Court upheld the law on other grounds
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11. or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
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14
5-15
Limits of Economic Regulation
The Commerce Clause: Article I, Section 8
Standards for state regulation of commerce
If Congress has regulated, there is an overriding concern about
the Supremacy Clause
If Congress has not acted, there is a benefit/burden analysis
Balance police power (state’s interest in regulation) with the
burden on commerce
State law cannot give in-state businesses an advantage
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15
5-16
Limits of Economic Regulation
Case 5.2 Rowe v. New Hampshire Motor Transport Association
(2008)
Maine passed a law that prohibited anyone other than a Maine-

12. licensed retailer from accepting an order of tobacco
The law required a special receipt, signed by someone over the
age of 18 that showed a Maine-licensed dealer had received the
tobacco
Out-of-state shippers and tobacco sellers challenged the Maine
law as favoring Maine sellers
Court grapples with the purpose of the law and the burden on
commerce
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16
5-17
Limits of Economic Regulation
Congressional Regulation of Foreign Commerce
The power of Congress to regulate foreign commerce applies
regardless of where it begins and ends
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17

13. 5-18
Taxation of Business
Congress’ Power to Tax – Article I, Section 8: The Ability of
Congress to Tax Has Been Consistently Upheld
State and Local Taxation of Interstate Commerce
Interstate business is not exempt from state and local taxes just
because they are interstate businesses
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18
5-19
Taxation of Business
Requirements for Valid State Tax
Tax cannot discriminate against interstate commerce
Tax cannot be an undue burden on interstate commerce
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19

14. 5-20
Requirements for Valid State Tax
Must be a “sufficient nexus” between the state and the business
being taxed
Examples: Does business there, holds property titles there,
manufactures there, inventory stored there
Must be apportioned fairly
Example: A corporation doing business in fifty states cannot
have all income taxed in all fifty states – must be apportioned
according to its revenues in the states
Taxation of Business
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20
5-21
Case 5.3 New Mexico Taxation & Revenue Department v.
BarnesandNoble.com LLC (2012)
Explain Barnes and Noble’s operations
Is there a physical presence sufficient for taxation?
Taxation of Business
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or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-

15. protected website or school-approved learning management
system for classroom use.
21
The “Jock Tax”
Discuss the allocation of athletes’ income tax among cities and
states and the formulas used.
What constitutional issues do you see?
5-22
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5-23
State vs. Federal Regulation
The Supremacy Clause and Preemption
Article VI exists to determine which laws control in the event
both state and federal governments regulate the same thing
If state law directly conflicts with federal law, state law is
invalid
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16. 23
5-24
The Supremacy Clause and Preemption
Whether there is preemption is controlled by answering several
questions:
What does legislative history provide?
What is the level of detail in the federal regulation?
What benefit flows from the federal regulation?
What is the nature of conflict − can the two laws survive?
State vs. Federal Regulation
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24
5-25
Case 5.4 Mutual Pharmaceutical Co., Inc. v. Bartlett (2013)
Federal law regulates labels for prescription drugs
State law provides product liability rights of recovery for
failure to warn
Federal law does not allow generic producers to change label by
manufacturer, so they cannot include additional disclosures
State law was pre-empted by federal regulation – no product
liability
State vs. Federal Regulation

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25
5-26
First Amendment
Provides some protection for commercial speech
Commercial speech is speech used to further the economic
interests of the speaker
Advertising and commercial speech protection
Can regulate advertising
Substantial government interest must be furthered
Is the regulation the least restrictive means of accomplishing
the interest
Bill of Rights
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26
5-27

18. First Amendment Full Protection
First Amendment Protections
and Business Speech
Business Political Speech
Governmental Regulation of Commercial Speech
Business Advertising
Bill of Rights
Speech
on Social Issues and Business: Nike, Professions
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27
5-28
Bill of Rights
First Amendment
Commercial Speech Protections
Government regulation of commercial speech is permitted
Three-prong test:
Is there a substantial government interest in restricting speech?
Does the restriction accomplish the government goal?
Is there any other way to accomplish the government’s
objectives?
Evolving area: Company political speech – Nike example
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19. or in part, except for use as permitted in a license distributed
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28
5-29
Bill of Rights
First Amendment
Corporate political speech
Corporate participation in campaigns is given full First
Amendment protection
Nike case was never fully litigated to determine whether
advertising regulation could be applied to, for example, letters
to the editor or columns by corporate executives about
controversial issues that affect the company, such as Nike’s
labor practices in other countries
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29
5-30
Bill of Rights
Case 5.5 Citizens United v. Federal Election Commission
(2010)
Case returns to holding in Belotti case that First Amendment

20. rights are not contingent on how much money or power the
speaker holds
Some limits on campaign contributions are appropriate
Controls on time, place, and manner of speech in the lead-up to
elections have too chilling an effect on speech and
dissemination of information
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30
5-31
Eminent Domain
Eminent domain is the right of government to take private
property for public purpose for just compensation
Public use examples: Highways, schools, urban redevelopment,
limits on mining, historical preservation, economic development
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31

21. 5-32
Requirements
Taking or regulating
Examples: Prohibitions on use, elimination of use
In Loretto v. Teleprompter Manhattan CATV Corp. et al. (1982)
In Nollan v. California Coastal Commission (1987)
In Lucas v. South Carolina Coastal Council (1992)
Eminent Domain
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32
5-33
Eminent Domain
Just Compensation
Public Purpose
New issue is question of taking property for economic
development or revitalization or just new projects
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22. 5-34
Eminent Domain
Case 5.6 Kelo v. City of New London (2005)
Issue of taking for economic development
Who owned the land?
Who would get the land under the city’s plan?
What question in eminent domain was a problem for the court?
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5-35
Requirement: Procedural Due Process
Applies to criminal, civil, and administrative proceedings
Example: Summons and complaint provide notice to
defendants
Right to notice of hearings
Right to be heard
The Raisin Farmers case: Horne v. U.S. Dept. of Agriculture
Procedural Due Process
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35

23. 5-36
Requirement: Substantive Due Process
State laws cannot substantively eliminate rights without some
benefit
Law must be logically related to legitimate governmental
purpose
Example: Sunday blue laws − stores are closed by law − states
must be able to show economic, health, social benefits of such
closure
Substantive Due Process
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36
5-37
Equal Protection
Elements of Protection for Regulation
Regulation must apply to all businesses
Example: Courts have struck laws that allow small stores to
stay open on Sunday while large stores could not
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24. protected website or school-approved learning management
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37
5-38
Vague statutes and regulation violate substantive due process
standards
FCC v. Fox Television Stations
Needed clearer standards for obscenity
The Cookie Monster case and substantive due process and free
speech
Substantive Due Process
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38
5-39
International Law and Constitutions
General Types of Constitutions Found in the United States and
England
Code Law Countries Found in Mexico and Many European
Countries
Islamic Law: Based on Religion, Governs All Aspect of
Personal and Business Life Law

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39
Chapter 5:
Transcultural Perspectives
in Childbearing
Copyright © 2016 Wolters Kluwer Health | Lippincott Williams
& Wilkins
Copyright © 2016 Wolters Kluwer • All Rights Reserved
1
Cultural Belief Systems and Practices #1
Converging cultures call for reorientation of skills and
behaviors toward childbearing women.
Culturally congruent care should be maintained throughout
pregnancy, birth, and postpartum periods.
Many women and families are attempting to preserve their own
valued patterns of experiencing childbirth.

26. Copyright © 2016 Wolters Kluwer • All Rights Reserved
Cultural Belief Systems and Practices #2
Advanced medical technology has become common in
childbirth; not necessarily leading to healthier newborns and
mothers.
Women in the United States have a higher risk of dying from
pregnancy-related complications than those in 40 other
countries.
Health disparities in the United States play a role in increased:
Maternal morbidity
Maternal mortality
Copyright © 2016 Wolters Kluwer • All Rights Reserved
3
Question #1
Is the following statement true or false?
In contemporary Western society, an increase in the number of
women in the work force, advances in reproductive technology,
self-care, alternative therapies, the explosion of health
information available on the Internet, and the influx of
immigrants and refugees have dramatically affected pregnancy
and birth practices.
Copyright © 2016 Wolters Kluwer • All Rights Reserved
4

27. Answer to Question #1
True
Rationale: Pregnancy and childbirth practices in contemporary
Western society have seen dramatic changes over the past three
decades. An increase in the number of women in the work force,
advances in reproductive technology, self-care, alternative
therapies, the explosion of health information available to
consumers on the Internet, and the influx of immigrants and
refugees are but a few of the trends that require nurses to
examine and rethink how they can better care for their clients.
Copyright © 2016 Wolters Kluwer • All Rights Reserved
5
Fertility Control and Culture #1
Fertility depends on:
Likelihood of sterility
Probability of conceiving
Intrauterine mortality
Duration of a postpartum period
Copyright © 2016 Wolters Kluwer • All Rights Reserved

28. 6
Fertility Control and Culture #2
Cultural and social variables influencing fertility :
Reproductive health
Residence patterns
Diet
Religion
History of abortion
History of venereal disease
Regulation of birth intervals
Copyright © 2016 Wolters Kluwer • All Rights Reserved
7
Fertility Control and Culture #3
Societal factors influencing reproductive rights and population
control:
Contraceptive methods: fertility controls versus natural
methods
Refugees and reproductive health: barriers to reproductive
health
Religion and fertility control: beliefs
Cultural influences on fertility control: misconceptions
Copyright © 2016 Wolters Kluwer • All Rights Reserved

29. 8
Pregnancy and Culture #1
Pregnancy is a special transition period often influenced by
customs and beliefs that dictate:
Activity
Behavior
Prescriptive beliefs, phrased positively, describe what should
be done to have a healthy baby.
Restrictive beliefs, phrased negatively, limit choices and
behaviors; practices/behaviors that the mother should not do in
order to have a healthy baby.
Copyright © 2016 Wolters Kluwer • All Rights Reserved
9
Pregnancy and Culture #2
Customs and beliefs:
Nursing care during pregnancy
Biologic variations: knowledge of certain biologic variations
resulting from genetic and environmental backgrounds
Example: genetic disorders, diabetes
Cultural variations
Copyright © 2016 Wolters Kluwer • All Rights Reserved

30. 10
Pregnancy and Culture #3
Cultural variations
Alternative lifestyle choices: pursuing careers, same- sex
parenting
Nontraditional support systems: perception of the need for care
Cultural beliefs related to:
Parental activity
Food taboos/cravings during pregnancy
Examples: same-sex couples, supernatural consequences, pica
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Pregnancy and Culture #4
Cultural variations (cont.)
Cultural issues impacting prenatal care
Cultural interpretation of obstetric testing
Cultural preparation for childbirth
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31. Question #2
Is the following statement true or false?
Prescriptive or restrictive cultural beliefs practiced during
pregnancy may lead to a mother’s guilt about the baby’s
outcome.
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Answer to Question #2
True
Rationale: Although cultural beliefs might not be the cause of a
poor neonatal outcome, they may cause harm if there is a poor
neonatal outcome and the mother blames herself.
For example, the mother whose fetus has died as a result of a
cord accident might believe that hanging laundry caused the
cord to encircle the baby’s neck or body and might, therefore,
experience severe guilt.
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Birth and Culture
Birth beliefs and culture influence:
Cultural attitudes
Methods of dealing with the pain of labor
Recommended positions during delivery
Preferred location for the birth

32. Role of the father and the family
Expectations of the health care practitioner
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Culture and the Postpartum Period #1
Cultures have developed postpartum practices that mobilize and
strengthen the mother and the infant during this perceived time
of vulnerability:
Dietary customs
Activity levels
Taboos
Rituals
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Culture and the Postpartum Period #2
Postpartum depression
All new mothers should be assessed for postpartum depression.
Some cultures do not recognize this as a medical disorder.
Mothers may still exhibit signs/symptoms (anxiety, crying,

33. mood swings).
Pharmaceutical and/or culturally appropriate care and support
may be necessary.
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Culture and the Postpartum Period #3
Breast-feeding/weaning practices
Affected by a variety of values and beliefs:
Societal trends
Religious beliefs
Mother’s work activities
Ethnic cultural beliefs
Social support
Access to information
Past experiences
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Cultural Issues Related to Domestic Violence During Pregnancy
Domestic violence is one of the most significant health care
threats for women and their unborn children.
Outcomes of abuse include:
Stress (physical and emotional)
Poor lifestyle health practices
Delayed prenatal care
Lack of support

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Question #3
A nurse demonstrates an understanding of the sociologically
focused safety risks for a pregnant woman when:
Conducting a suicide assessment
Identifying her cultural health belief system
Evaluating her postpartum support system
Assessing the level of violence in her neighborhood
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Answer to Question #3
A. Conducting a suicide assessment
Rationale: A study identified homicide as a leading cause of
pregnancy-associated death and suicide. Health care providers
must screen for both partner violence and suicidal ideation as
essential components of comprehensive health and nursing care
for women during and after pregnancy.
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35. 21
Culturally Competent Care
Nurses caring for pregnant women of all cultures (including
Hispanic, African American, and American Indian) should:
Employ good assessment skills
Form trusting relationships
Perform patient education
Show concern, interest, and respect for backgrounds
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Question #4
It is suspected that a pregnant Hispanic woman is being
physically abused. Which intervention will be most helpful
initially?
Arranging for a Spanish speaking nurse to assess and provide
the client’s care
Providing the client with written and oral information on
women’s abuse shelters
Explaining to the client that any information she gives will be
held in strict confidence
Offering to call a female member of the woman’s family to help
arrive at a solution
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36. Answer to Question #4
A. Arranging for a Spanish speaking nurse to assess and provide
the client’s care
Rationale:It is initially helpful that the nurse have strong
interpersonal skills and a genuine interest in Hispanic culture.
In this situation, a Spanish-speaking health care provider might
be able to form a trusting relationship more quickly, enabling
the woman to share information about domestic violence. The
Hispanic culture is a male dominated one, leaving the females
with little power to help in this situation. The remaining options
will be of little value if implemented as an initial action.
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