Constitutional Law Outline ?WORK IN PROGRESS


Table of Contents


Federalism.. 2

The Second Amendment 2

The Commerce Clause. 3

The aggregation principle. 9

The “rational basis?idea. 10

“Facial?versus “as-applied?challenges. 23

The Tenth Amendment 25

Dormant Commerce Clause. 53

Separation of powers. 67

The political question doctrine. 75

The Equal Protection Clause. 78

Levels of scrutiny. 79

Under-inclusiveness versus over-inclusiveness. 80

Gender discrimination. 85

Affirmative action. 91

Substantive due process. 96

The state action doctrine. 111




The Second Amendment


Does Congress have the power to ban machine guns??It depends on how you interpret the Second Amendment.?Some say it applies to individuals, while others say it only applies to militias.?Just who takes these opposing points of view??There are interest groups with strongly held political views and they don’t all agree.


Foley thinks there would be a way to read Miller in a way that’s not so sweeping as the way Chemerinsky wants to read it.? The gun in Miller was a sawed-off shotgun, not just any gun.?The Court said that you have no right to own a gun that no real military could own.?That’s actually a partial acceptance of the view that the meaning of the Second Amendment is controlled by its militia function, but Foley says it’s not as sweeping as Chemerinsky claims.?Maybe another kind of weapon that does have a military function could be the basis of an individual rights claim.?You could claim that you have an individual right to own a weapon that has a militia function.


One Circuit said that there’s no individual right to own a machine gun, but Foley sees this as an extension of the Miller precedent, not necessarily as following that precedent.


As lawyers trying to find out the answer to the question of whether the government has the power to ban machine guns, we look to judicial precedent.?Miller is the most important precedent because it’s the most recent case to come out of the United States Supreme Court.


Assume for the basis of argument that the Miller precedent does not exist.?The Miller case is old, and there has been an effort both inside and outside the judicial system to overturn Miller.   In fact, the current Department of Justice has informed the United States Supreme Court that the current government believes that Miller is wrong.?The Supreme Court has neither accepted nor rejected this argument, but there is the sense that the Supreme Court might someday revisit this issue as a case of “first impression?as if Miller didn’t exist at all.?That would be a rejection of stare decisis.?Let’s suppose this happens.


The United States government in all its agencies is represented in litigation by the Solicitor General, who works within the Department of Justice.?There is a long history of the relationship between the Supreme Court as the representative of the judicial branch and the Solicitor General as the representative of the executive branch.?By tradition, the Supreme Court has seen the Solicitor General as a member of the Supreme Court bar and thus having a close relationship with the United States Supreme Court.


What’s the relationship of law to politics??This is a big question we’ll need to consider.?Is figuring out what the law is exclusively a political judgment, or is it independent of political judgments??Even if you think the judges are purely or partly political, you can’t behave in court as if you think so.?You might have to tell your client that, but you can’t say it in court.


“Being a good lawyer means being able to operate on different levels or planes with respect to the same issue and take entirely different perspectives on the same issue.?span style='mso-spacerun:yes'>?There is both an “internal?perspective and an “external?perspective.?When we adopt the “internal?perspective, we play the game.?We get into mode.?We use the language of the law and cite precedent.?We do legal reasoning that’s independent of political judgment.?You kind of “put on your lawyer hat?


The “external?perspective is more of a critical appraisal of the situation.?You look at the legal system from the outside and ask whether the judges are doing law or whether they’re just doing politics.?This is the perspective where you get cynical and ask “what’s really going on?


The machine gun case


If I have a strong subjective view of an issue, I can kind of bend words around to make them mean what I want them to mean.?Everyone is going to have a subjective political view of these issues.?But if I’m a Supreme Court Justice and I can read the Second Amendment to support any subjective view I want, is that how I ought to carry on business as a Justice?


Begin with the stark contrast between originalism and nonoriginalism.?Do these categories correlate with objectivity/subjectivity or modern values/traditional values??Not necessarily.?Even judges who reject original intent as a guiding light would say that they’re not entitled to impose their own personal and subjective values on their interpretation.?Whatever the judges find, they must be objective, if only in a different way (looking at the will of the people or the Constitution as a whole, for example).


The President, when deciding to sign or veto a law, can legitimately say that because he was elected by the people he has been empowered to exercise his own independent judgment of what is right or wrong.?If the people don’t like the President’s judgments, they can vote him out of office.


A matter of interpretation


How do we figure out the meaning of the Constitution, then??We have these two completely different ways of going about doing it, and it’s up to me to make the choice of how to interpret it (original intent versus contemporary values).


We have an unclear document.? It would be a lot easier to deal with if we had clear directions for dealing with it.?But we don’t have a clear method or rule to follow in dealing with the document.? This is a radical lack of clarity!


The Commerce Clause


United States v. Lopez ?Lopez is a revolutionary decision in American jurisprudence!

Congress passed a statute (the “Gun-Free School Zones Act of 1990? providing for federal criminal sanctions against people who went into a “school zone?with a gun.?The defendant was caught with a gun on school premises and was charged under the federal law.?The defendant challenged the statute as unconstitutional.?In particular, he argued that banning guns from schools wasn’t one of the powers enumerated to the federal legislature in Article I of the Constitution.?The district court didn’t buy the argument, saying that the power of the statute was allowed under the Commerce Clause. The defendant ultimately was convicted.?He appealed his conviction to the Fifth Circuit, which overturned the conviction, saying that the statute went beyond the bounds of the Commerce Clause.?The United States appealed to the Supreme Court.


Is Congress given the power by the Constitution to regulate guns in schools under the Commerce Clause??The Constitution has been interpreted by the Supreme Court such that Congress has three broad areas of power under the Commerce Clause: (1) to “regulate the use of channels of interstate commerce? (2) “to regulate and protect the instrumentalities? or “persons or things?in interstate commerce even if they only relate to “intrastate activities? and (3) to regulate activities ?i style='mso-bidi-font-style: normal'>having a substantial relation to interstate commerce?


The majority finds that if the Gun-Free School Zone statute has a constitutional basis, it must be in the third area of power.?So the question is whether the statute regulates activities that are related to interstate commerce.?The Court sets down new precedent in declaring that such activities must ?i style='mso-bidi-font-style:normal'>substantially affect?interstate commerce and not just “affect?it.


The Court finds that the statute has nothing to do with commerce.?There is also no requirement in the statute that the offense punished has some relationship to commerce.?Even if there was that requirement, it would have to be proven in each case beyond a reasonable doubt that there was sufficient connection between the offense and the regulation of interstate commerce.


The Court rejects the government’s argument that firearms in schools are actually substantially related to interstate commerce.?The Court reasons that if guns in schools are related, then pretty much anything can be related, including stuff like marriage, divorce, child custody, and “direct regulation of education??The Court figures that the Framers couldn’t have possibly meant for the Commerce Clause power to be this broad.


Lopez was convicted of violating the Gun-Free School Zone Act.?You can’t carry a gun within 1000 feet of a school zone.?This statute was enacted by the U.S. Congress.?Why is it significant that Congress passed this law versus, say, the Texas legislature??Well, what we’re concerned about is congressional power as opposed to the power of state legislatures.


How did the court get the Supreme Court??The Fifth Circuit vacated the conviction.?There was no dispute about whether he had a gun.?He was caught red-handed and there is no question whether he violated the law.? The appeal was thus not on the basis of any reasonable doubt of fact or anything like that.


How do you know if you’re in a school zone under this law??A school zone is within 1,000 feet of a school.?Why is this important??Someone’s violating the law.?As a person living in the state of Texas, would they know whether they were in violation of this law??Do people go around carrying tape measures all the time??But there was no factual dispute.?Lopez doesn’t claim he was 1,003 feet from the school.


What’s the basis for the appeal if there’s no factual dispute??The only claim Lopez has on appeal is that the law is unconstitutional because it’s beyond the scope of the enumerated powers of Congress.?Lopez wins in the Fifth Circuit and the Supreme Court agrees to review the case.


What does the Supreme Court say after granting cert??The Supreme Court decides that the law was unconstitutional.?The Supreme Court says: “No, Congress, you lack this power.?/p>


But why??What does the phrase “piling inference on inference?explain the holding of the case?? Possessing a gun in itself is not directly related to interstate commerce. ?/span>But you could argue that having a gun could cause violent crime which could cause increased insurance rates and so on.?The argument is in the nature of A leads to B leads to C leads to D and D is related to interstate commerce.


Let’s look at Article I, ?8 which is the big list of powers of Congress.?It’s a big list, but it’s a finite list.?Don’t forget the last power, which is a biggie: making laws that are “necessary and proper?to execute the listed powers.?Keep the “Necessary and Proper Clause?in mind here.


Whenever there’s a challenge to a federal statute, the government only has to show there’s one power to support the law.?In order for Lopez to prevail, he must show that Congress doesn’t have the power to pass this law under any of the enumerated powers.?That’s a tough standard!


This is important not only for questions of congressional power, but also for any questions about who has what powers and who has the burden of proof to show that something is within the power of a part of the government.


Why doesn’t Lopez try to win this appeal on Second Amendment grounds instead of Commerce Clause grounds?? The Supreme Court hadn’t invalidated a statute on the basis of the Commerce Clause in a heck of a long time.? There also hadn’t been a Second Amendment case in the Supreme Court for a heck of a long time.?Was this a tactical move??Was the Court more willing to move on the Commerce Clause than on the Second Amendment?


Lopez has been around for almost a decade and people are pretty comfortable with it.?But when Foley took this class 20 years ago, Foley learned from his professor that any attempt to argue that something was out of the scope of the Commerce Clause was a sure loser under the Court’s jurisprudence.?In other words, Congress could pretty much do whatever it wanted and find some link to the Commerce Clause.?Foley’s professor turned out to be completely wrong!?So keep in mind that the law can change!?Congress can’t just do whatever it wants anymore.?If that was the accepted wisdom, why the heck would Lopez’s lawyer have tried this appeal on Commerce Clause grounds?


If you don’t make the Second Amendment argument in trial court you lose it on appeal.?But that just means that the attorneys should have brought up both defenses.


By 1992, when Lopez gets caught red-handed, he’s got bad precedent under the Second Amendment (Miller from 1939) because he’s not a member of a militia and he gets caught with a gun near a school.?But moreover, most people in 1992 would say he didn’t have a very good Commerce Clause argument either.


Presumably Congress passed this law because they were concerned about guns in schools.? Congress thus thought this issue was of national importance and couldn’t be left to the states.?The Supreme Court says that Congress lacks the authority to address this issue of national concern, no matter how important it is!?This is a big deal!


Did some of the justices have a bone to pick??Was there an ideological deal here??Foley says that’s not what’s going on here.?The United States government lost this case in the Court of Appeals, which found that the statute was unconstitutional under the Commerce Clause.?The Court of Appeals did this in the face of the widespread belief otherwise.?The Solicitor General of the United States wanted this reviewed, and the Supreme Court couldn’t leave the last word in the lower court since an act of Congress was being struck down.


Two types of constitutional questions


Whenever you’re dealing with an act of Congress, or really any action by the federal government in general, you have to think about two different types of constitutional questions that could arise.


The “power?question


Does Congress have the authority to enact this law??Is it within the scope of authority granted to Congress by the Constitution?? Congress cannot act unless it has been given authority (or power) by the Constitution to act.?You must find a place for Congress to act.?You only have to find one, but you do have to find that one basis for authority.?This is sometimes called the doctrine of enumerated powers.?If some things are enumerated, it means that some things are not enumerated.?Congress doesn’t have unlimited powers.?The list includes the “Necessary and Proper Clause?

The list of Congress’s enumerated powers started out with exactly the powers listed in Article I, ?8.?But now there are additional powers granted to Congress added by amendments.?Check out ?5 of the Fourteenth Amendment: Congress can now enforce the provisions of the amendment.?It’s a new power that gets added to the list!?There are lots of other little provisions like this that add on.?But you need to find the power you want among those listed.

The “rights?question


Even if something is within the scope of the enumerated powers, it may violate a rights provision of the Constitution, like one of the provisions of the Bill of Rights.?Something can be inside the scope of a power provision, but Congress could still be prohibited from doing that thing if it would abridge a right out of the Bill of Rights.? Say Congress passed a law that said it would be unlawful for pornography to be trafficked in interstate commerce.? Those are things in interstate commerce.? This is within the scope of the Commerce Clause power.?However, it may violate the First Amendment free speech right.


State versus federal powers


With respect to the Federal Constitution, the distinction between “power?questions and “rights?question only applies to acts of the Federal Government.?The Federal Constitution doesn’t purport to define the limits of state power.?States are assumed to have general police powers.?States can do whatever they want, unless it conflicts with a specific right granted by the Constitution.?With respect to state laws, we will deal only with ?i style='mso-bidi-font-style:normal'>rights?i style='mso-bidi-font-style: normal'> questions.?Analytically, the “power?question always comes first.?It’s a threshold question.?The Constitution affirmatively says what Congress can do, specifically says what Congress can’t do, and finally says what states can’t do.


Consequences of Lopez


If this law is no good, what other laws are no good??What about the Endangered Species Act??What gives Congress the power to pass such a law??We’ll find that people revert to the Commerce Clause when they want to assert that Congress has the authority to do something.?What do endangered species have to do with commerce, and isn’t that a similar question to “what do guns near schools have to do with commerce?? How does this case relate to the Commerce Clause at all?


How could Congress possibly think that this law that they’ve enacted saying you can’t possess a gun within 1,000 feet of a school is related to interstate or international commerce or commerce with Indian tribes? ?/span>Congress might not have anticipated any problems.? They may have assumed they wouldn’t have to “jump through this hoop? anymore.?Historically, the doctrine of enumerated powers had kind of fallen by the wayside.?Congress saw the commerce power as so large that more or less anything goes.?How could Congress have gotten to think that way in the first place??


There has been a lot of case law that has spoken about the scope of the Commerce Clause.?The Court itself gives us a history lesson in the opinion.?Chemerinsky will give us a slightly different interpretation.


Some things are pretty uncontroversial.?A key truth to the history of the Commerce Clause is that the Court had said that the scope of Congress’s power isn’t just things moving across state lines, but also anything located within a single state that might affect commerce that moves across state lines.?In other words, there may be things that are purely intrastate, and thus are not themselves part of interstate commerce, but nonetheless may “affect?(or ?i style='mso-bidi-font-style: normal'>substantially affect? interstate commerce, and thus be within the scope of the commerce power.?We’re going to let Congress regulate interstate commerce itself, and we’re also going to let Congress regulate things confined to a single state that substantially affect interstate commerce.


Breyer, in his dissent, says he will use three principles of Commerce Clause interpretation to answer the question before the Court.?(1) Congress may regulate local (intrastate) activities so long as they “significantly affect?interstate commerce.?(2) When determining whether an activity has a “significant effect? a court should consider the “cumulative effect of all similar instances?of the activity.?(3) Courts must judge the connection between an activity and interstate commerce “at one remove??In other words, courts should uphold actions of Congress for which there is a “rational basis?under the Commerce Clause.


Breyer says the question boils down to Congress could have had a rational basis for finding a substantial connection between gun related school violence and interstate commerce.


Breyer’s approach is to document lots and lots of independent studies and congressional findings that indicate that (1) the problem of guns in schools is serious and widespread, (2) guns in schools have a “negative effect on classroom learning? and (3) education has a substantial impact on interstate commerce.


Breyer claims that holding this statute constitutional would not expand the powers of Congress under the Commerce Clause, but instead would apply existing law to changing circumstances.


Breyer claims that the majority’s approach has three legal problems:?(1) The Court has upheld statutes that have less of a relationship to interstate commerce than the one under consideration.?(2) The Court makes an improper distinction between commercial and non-commercial activities that doesn’t adequately distinguish previous cases where the Court has upheld statutes.?In particular, the Court has upheld civil rights statutes in cases where Breyer claims the conduct involved was even less “commercial?than the conduct here.?(3) The Court will create upheaval in an area of law that was previously well-settled: it will call into question the extent of the power of Congress to enact all of the federal criminal statutes on the books.?Breyer suggests that the majority’s opinion offends stare decisis.


Breyer does not see the “parade of horribles? of the majority coming to pass.


Three justices join Breyer in his dissent.?Breyer was just one vote shy of the majority.?This was a 5-4 decision.?This was one of those razor-thin majorities.


How did Breyer analyze the Commerce Clause issue in this case??He seems to argue for and use the rational basis test.?Why is this different from the majority’s understanding of the case??What’s the scope of the disagreement between the dissent and the majority??Do they apply the same principles but get to different results, or do they actually disagree on basic principles?


So Breyer makes a “rational basis?inquiry.?The majority does something different.[1]


Is Breyer almost proposing a procedural test rather than a substantive test of the limits of the Commerce Clause?


Part of what Breyer seems to be saying is that we should consider the issue in a practical way instead of a technical way.?How much of a connection is there between guns in schools and economic problems?


But this isn’t the rational basis distinction: Breyer says we’re not reviewing whether or not X is true, but rather whether or not Congress had a rational basis for thinking that X is true.?The X in this case is “guns in schools substantially affect interstate commerce?


How close a connection does there have to be in order for there to be a “substantial effect??(1) Is there a substantial effect on interstate commerce??Both the majority and dissent believe this question must be asked.?Just what is it that’s supposed to have a substantial effect on interstate commerce??Breyer wants to aggregate the effects of all acts of guns in schools.?(2) Does this class of activity have a significant effect on interstate commerce??This is what Breyer wants to know, but the majority doesn’t take it this way.


Wickard v. Filburn ?Wickard is very important!?This is the case of an Ohio farmer growing his own wheat for his own use.? He was allegedly in violation of a statute limiting the amount of wheat he could grow on his farm.?He grew too much!?He claimed that he wasn’t selling the wheat in his state or any other state.? So he argued that the federal government must not be regulating his “commerce?when all he is doing is growing wheat at home and using it at home.?The Court, in that case, said that if you take the one farmer together with other similar farmers there will be a substantial effect on interstate commerce.


The Court says that Wickard is as far as the Court has ever gone before, and they more or less say that they’re not going to let congressional Commerce Clause power to go much farther.?


How does consuming home-grown wheat affect interstate wheat??The idea of the statute was to decrease the supply to increase the price and help the farmers.?If you grow your own wheat, you don’t have to buy it on the open market, and thus you’ve reduced the demand for wheat and in turn the price will go down.


So under Wickard, the government has the power to prohibit people from home-growing tomatoes or whatever other crop they’d like.


But notice what the statute in question in Wickard does: it doesn’t regulate any activity that we could properly call interstate.?Instead, it regulates a purely intrastate activity.


The majority says that we’ve gone that far and won’t go farther.?Breyer says that we’ve already gone that far, and the “guns in schools?statute doesn’t go that far.


The aggregation principle


The majority acknowledges that Wickard adopted the aggregation principle.?But does the majority believe that this applies to guns near schools?? Do they apply this principle and get a “no?answer??Or do they claim that the aggregation principle only applies to cases like Wickard but not to Lopez?


The majority opinion says “we accept the aggregation principle with respect to local activity that is economic in nature.?span style='mso-spacerun:yes'>?If the local activity has an economic character to it, you can aggregate that to see if all similar local activity has an impact on interstate commerce.?If the local activity is not itself economic, the Court isn’t sure if they’ll extend the aggregation principle.


How is growing tomatoes at home, for example, an inherently economic activity??Is raising kids at home an inherently commercial or economic activity??Where do we draw the line between (local) economic and non-economic activity??The majority opinion labels “growing wheat at home?as an economic activity.?That allows for aggregation.?However, possessing a gun near a school is not economic in nature.


Breyer asks: “How can we tell that having a gun near a school is non-economic in nature??span style='mso-spacerun:yes'>?Lopez didn’t make the gun.?He either had to buy it, steal it or get it as a gift.?If he bought it, that’s economic.?If he stole it, that’s kind of economic.?If it was given as a gift, someone else bought it, and that’s arguably economic.?How do we draw the distinction??What makes something economic?


What about child-rearing?? If growing wheat at home is economic, isn’t child-rearing economic too??It means the child care provider is out of the labor force and also isn’t hiring a nanny or someone else to take care of the kids.


Breyer says it doesn’t matter whether a gun is economic in itself.?It doesn’t matter if wheat is economic in itself.?The issue is whether those guns near schools have an economic effect.?Breyer believes that they do: guns near schools leads to violence near schools.? That leads to bad schools and bad educational quality, which in turn drains our economy.


Breyer believes that you always aggregate.?The majority believes you only aggregate when you’re dealing with “something economic?


The majority cares about whether or not the local activity that Congress is attempting to regulate is itself economic in nature or not.?The majority doesn’t explicitly repudiate the aggregation principle with respect to non-economic activity, but you can argue that they do this implicitly.


There’s a lot going on here!? Even though we had relatively few pages to read, they are very difficult conceptually.?But it’s our job to understand it!?Don’t worry if you’re confused today.?Realize that there’s a lot going on here.?It’s not transparent and we have to really work to figure out what’s really going on here.


The “rational basis?idea


We looked at two questions that define the substantive test as to how you know whether or not you have congressional power under the Commerce Clause.?The “substantial effect?test is usually where the action is.? In order to know whether there’s a “substantial effect? you have to ask whether the local activity in question is “economic?in nature.


But there’s a third question: Breyer says that all the past precedents show that when the case comes to court, the issue isn’t simply ?i style='mso-bidi-font-style:normal'>is there an effect???That’s the question for Congress to answer.?Breyer wants to claim that the court’s own view on the substantial effect question doesn’t matter.?The court is only supposed to make sure that Congress was rational or reasonable, that is, that Congress had a rational basis for finding a substantial effect.?Breyer thus claims that the court should be making a somewhat different inquiry than the majority wants to make.


Yesterday was great!? Foley likes when people come up after class to ask questions!?There’s a lot going on here, and we can’t get it all in within an hour.


There was a formative period under Chief Justice Marshall, who issued the McCulloch v. Maryland decision.?That’s a landmark decision that created a framework for talking about congressional power as a whole.?Also, Marshall’s reasoning interpreted the Constitution in general, rather than any particular phrase or section.? He didn’t look at the word “necessary?or the word “proper?and determine what those words mean.? Instead, he looked at the Constitution in general.?Why do we have a Constitution??What function does the Constitution have??These questions gave him the guidelines for his understanding of, in particular, the Necessary and Proper Clause.


He had a choice: he could have interpreted the Necessary and Proper Clause much more narrowly and restrictively and found that the creation of the Bank of the United States was outside of Congress’s power.?He didn’t choose the narrow path, he chose the broad path.?This case is important today because we must be aware that the concept of general reasoning is available to the Court, if it so chooses, as a methodology to think about constitutional problems when they arise for the first time.


The Court doesn’t always take this approach, though.?The Court will sometimes take a more “word-specific?approach.


Marshall also issued the first opinion that interpreted the Commerce Clause: Gibbons v. Ogden.


Here are four key decisions that set the stage prior to Lopez.


Schecter Poultry ?This case was decided in 1935.?It’s the “sick chicken?case.?This case occurred at the time of the New Deal.?The country is in the midst of the Depression.?The unemployment rate is 25%.?Congress and President Roosevelt are trying to deal with what they see as an unprecedented economic calamity.?Congress passes a lot of New Deal legislation.


One key piece of legislation was the National Industrial Recovery Act, which regulated the wages and hours of workers in many different industries.


The Supreme Court unanimously held that regulating the wages and hours of workers in a factory in Brooklyn is beyond Congress’s commerce power.?The new law was invalidated.?The Supreme Court ruled that even though the chickens moved in the stream of commerce, the workers only worked in Brooklyn and thus their wages and hours were a matter solely for the state of New York to deal with.?Note that this law applied to every slaughterhouse everywhere.


Why did the people in Philadelphia in 1787 scrap the Articles of Confederation and give the U.S. Congress more power with this Commerce Clause??Compare this to NAFTA or the current Summit of the Americas.? Prior to the adoption of the Commerce Clause, the states of the United States were engaged in protectionist measures against each other.?The Commerce Clause, at least in one view, was originally a free trade measure among the states.?It was meant to fight “economic Balkanization??In contemporary terms, we can compare this to the European Union.


The framers of the Constitution wanted to create a free-trade agreement between the original thirteen states.?That’s all the Commerce Clause was originally designed to do.


Now fast forward to 1935.? If you were to ask James Madison, who came up with the Commerce Clause, about a shop in Brooklyn, he would say “that’s not what we meant!?span style='mso-spacerun:yes'>?He would say that they were only concerned with free trade between New York and, say, New Jersey.


In addition, the Commerce Clause allows Congress to regulate foreign trade.


The point is that nothing that we talk about today would make any sense to the framers of the Constitution.? “Congress has the power to regulate WHAT??!!?span style='mso-spacerun:yes'>?They wouldn’t even be able to understand our conversation.


What’s going to be difficult to think about is when we get to the point where we can start having a conversation like we did yesterday.


James Madison did not believe that Congress had the power to create a national bank.?He had a much narrower understanding of the Commerce Clause than we do.?In fact, he had a narrower understanding than Marshall did in McCulloch.


Our sense of the Constitution is radically different from the conception of the people who originally wrote the document.


Carter Coal ?This case is one year later.?We’re still in the Depression.?Congress and Roosevelt adopt a new law that regulates the coal industry in particular.?They believe that coal is particularly important to the national economy.?It’s important for running the railroads and making steel.? Congress says: “We won’t do poultry, but let’s do coal.?/p>


They plan to regulate the wages and hours of coal workers because that affects the price of coal.?But by a 5-4 decision, the Supreme Court says that Congress can’t do that!?They reason that a coal mine is not interstate in nature because each mine is located in only one state.?Therefore, the wages that a mine worker gets for working in that particular mine is a local issue of the state where the mine is located.?Each state controls the conditions within the mines within that state.?The Court believes that it matters neither that the coal will enter the stream of interstate commerce, nor that Carter Coal does business in many different states.?The subsequent entry of the coal into interstate commerce doesn’t matter.? But notice that now we’re starting to get a split.


Jones & Laughlin ? This case comes up in 1937.?This case involves the National Labor Relations Board.? Congress comes up with a new law to govern working conditions: hours, wages, and so on in many different industries.? The statute looks a lot like the NIRA above, but the case looks more like Carter Coal.


The issue is: Can Congress regulate the rules of the employees of this company when they work in the mines or in particular factories??If you considered Schecter Poultry and Carter Coal as precedent, you might think the conclusion is obvious and the law can’t stand.


But in a reversal, the Supreme Court by a 5-4 margin allows the law to stand as applied.?The Supreme Court argued that steel is essential to the health of the national economy, and thus steel worker strikes would cripple interstate commerce.?This is exactly the reverse of the reasoning in Carter Coal, that is, it’s the reasoning of the dissenter.?The same argument from the dissent in the previous case becomes the prevailing argument in this case.


Why does the transformation happen here??Roosevelt was going to pack the court.?But note that there are no changes in appointments to the court between 1935 and 1937.?The exact same nine individuals who decided Schecter Poultry unanimously and then decided Carter Coal decided Jones & Laughlin entirely differently.


Roosevelt and Congress are losing cases.?He won’t accept what the Supreme Court says.?Also note that 1936 is an election year.?Roosevelt runs a campaign essentially against the “old farts?on the Supreme Court.?He claims they’re totally out of touch with reality and that it’s really their fault that the Depression hasn’t abated.?It was a pure political power move (I think).


Roosevelt announced after a landslide victory that he’s going to pack the Court (that’s not what he called it, of course).?He was going to destroy the Supreme Court as an institutional of American government as it had heretofore existed because it was getting in the way.?The President was going to more or less sweep the Supreme Court into the “dustbin of history? because they were getting in the way!


The Supreme Court justices read the newspaper and they pay attention to what’s going on.?They realize that they can’t win this fight!? They act to save their institution!? Ain’t this exciting?


Justice Roberts switched sides!?It seems like what he did was switched his vote to save the institution.?That worked!?That was enough to shut Roosevelt up.?The Senate stopped holding hearings on the court-packing plan.? “This is power politics!?This is reality!?/p>


This was a huge transformation in the understanding of the Commerce Clause.?It didn’t happen by way of a constitutional amendment.?Roosevelt considered this but rejected it.? Roosevelt felt that the only way you could trust the Court was by packing the court.?Thus, a whole new way of understanding the Commerce Clause emerged.


Wickard v. Filburn ? We have some more appointments, but we have more or less the consolidation of Roosevelt’s power.?The ethos is: Congress can do pretty much whatever it wants in the name of protecting the economy.?It is instructive to compare Schecter Poultry and Wickard.?The tomatoes or wheat being grown at home are agricultural and local in the way that chickens are also agricultural and local.?Seven years after Schecter Poultry, they go from saying “no you can’t regulate it?to “yes you can?


These cases are not consistent doctrinally.?They represent two radically different ways of understanding the Commerce Clause.


Now fast-forward to right before Lopez: between Wickard in 1942 and Lopez in 1995, the prevailing ethos is that Congress can do whatever it wanted in an era of believing in Big Government and the power of the federal government.


President Johnson talked about the Great Society.?One of the critical aspects of the Great Society was the Civil Rights Act and the idea that Congress would have the authority to protect civil rights.?The Act was justified under the Commerce Clause.? Think of Ollie’s Barbeque, a really local restaurant in Alabama.? Congress says there can’t be any discrimination there because restaurants are a form of commercial activity that receives its products through the stream of interstate commerce!? By the 1960’s, Congress can do that because there’s a whole change in the understanding of the Commerce Clause.? We will give Congress broad latitude to do what they think is in the national interest.


This changes dramatically when we get to Lopez.


Next week, we have three classes, and each class we’ll be reading a different Court of Appeals case out of the Ninth Circuit that grapple with Lopez and Morrison.?We’ll see the same question of the scope of the Commerce Clause not from the perspective from the U.S. Supreme Court that’s making the decisions and creating the relevant law, but from the position of subsidiary judges in the legal system who themselves are trying to figure out what Lopez and Morrison mean.


We may see the doctrine of avoidance in this class and in Legislation.?Courts like to avoid constitutional questions when they can.?They will tend to interpret statutes narrowly to make them constitutional instead of declaring them unconstitutional altogether.? Consider, for example, United States v. Jones in which the federal arson act was interpreted not to apply to a residence.


When you’re an attorney, you should ask yourself: Can I win this case on statutory grounds instead of constitutional grounds??These issues won’t be as neatly divided as they are in the first-year law school curriculum.


Imagine yourself in the position of a judge having to decide new kinds of cases as they come along.?There are lots of federal laws that have been on the books for a while that may now be in question.


Then imagine yourself being a lawyer.?Why imagine this second??To be a good lawyer both as an advocate and as an advisor to your client, you must be able to imagine what the case looks like from the bench.?What’s going on in the judge’s head??What’s on the judge’s mind??What questions will the judge ask?


So each day next week will seem similar.?We will study three cases with three different factual patterns, but they all involve the same problem.


United States v. Morrison ?Brzonkala was allegedly raped by the defendants.?She sued the defendants in federal court under 42 U.S.C. ?13981.? The defendants responded by claiming that the statute was unconstitutional.?The district court agreed and dismissed the complaint.?Brzonkala appealed.? The Fourth Circuit affirmed en banc, and Brzonkala appealed to the U.S. Supreme Court.


Did Congress have constitutional authority to enact ?13981 under the Commerce Clause??Congress has the power to regulate economic activities that are substantially related to interstate commerce.


The Court says that Lopez supplies the proper framework to analyze whether the statute in question is within the proper reach of Congress’s Commerce Clause power.


First, the Court claims that the non-economic nature of the conduct in question in Lopez was important to the decision to find the statute unconstitutional.?Next, the Court says that a statute is more likely to pass muster if the conduct prohibited is explicitly limited to that which “substantially affects interstate commerce??The Court notes that the statute in Lopez lacked specific congressional findings supporting the connection between the statute and interstate commerce.?Finally, the Court notes the “attenuated?nature of the connection between gun possession and interstate commerce.


Applying this rubric to the Violence Against Women Act, the Court finds that if this act can stand, Congress would pretty much be allowed to regulate anything.?It doesn’t apparently help that the legislative record includes extensive findings relating violence against women and interstate commerce.


Breyer says the economic/non-economic distinction is too difficult to make and doesn’t get applied consistently anyway.?Breyer also thinks the economic/non-economic question should focus on the “effects?and not the “causes?


The dissent says that the mountain of facts gathered by Congress in support of the connection between violence against women and interstate commerce distinguishes this case from Lopez.


What are the facts??A woman had been raped.?She sued the perpetrators under the federal Violence Against Women Act.


How does the case get to the Supreme Court??Would this case look any different to the U.S. Supreme Court if the plaintiff had decided not to name the university as a defendant??No, but why not??It’s not necessary for there to be multiple defendants for the constitutional question to exist.?The university is irrelevant, in a sense, to the federal litigation.


It seems like the Court is trying to show some sympathy to the plaintiff even as they dismissed her complaint.?“We’re not awful ogres, we’re just doing our job interpreting the Constitution.?/p>


VAWA purports to create a federal tort remedy, but Morrison argues that Congress has no authority to create such a remedy.?The United States steps in, saying: “Hey!?That’s my statute!?Don’t touch my statute!?span style='mso-spacerun:yes'>?There were actually two different cases in the U.S. Supreme Court that get consolidated: United States v. Morrison and Brzonkala v. Morrison.?Both petitions are granted and considered together for the purposes of oral argument and disposition.


There’s a lot of talk about criminal law in the opinion, but this is not a criminal case.?Part of the debate is whether the Court will allow federal tort law to exist beside or on top of state tort law.


The constitutional question of Morrison


Does Congress have the power under the Commerce Clause to make gender-motivated violence that occurs within a single state both a federal crime and a federal tort subject to a civil damage remedy?


Chemerinsky thinks Morrison is even more revolutionary and a bigger deal than Lopez.?That’s what Souter thinks too.? Basically, this is the deal: in the VAWA, Congress actually thought long and hard about the Commerce Clause question itself and wrote lots of findings.?Congress explained in great detail what it saw as the link between gender-motivated violence and its effect on interstate commerce.?For example, when women get hurt, they can’t go to work and absenteeism has an effect on productivity.?They document the economic dimension of gender-motivated violence.


This is different than the Gun-Free School Zones Act.?That statute was written in a pretty sloppy fashion!?Congress was complacent with the broad powers that had been granted to them by the Supreme Court under the Commerce Clause since 1937.


Some observers thought Lopez would be a narrow decision that would simply require the procedural requirement of findings supporting a connection between commerce and whatever Congress is legislating about.?Morrison shows that findings aren’t enough.


Foley’s take


The majority in both Lopez and Morrison are asking and answering a different question than Breyer asks and wants to answer in the dissents.?Breyer says in both these cases you can’t dispute the fact that the activity in front of the Court, if taken in the aggregate, has an effect on the economy.? But the majority doesn’t disagree!? They don’t say Breyer is wrong to say that you can make that connection as a factual matter.?They just say that even though you can make that connection factually, it won’t be a legally dispositive connection.


It’s the same thing in Morrison.?The majority doesn’t dispute the findings of fact provided by Congress: domestic violence could have a huge impact on our national economy as well as being a social and moral problem.?But that’s not going to be dispositive as far as the constitutional question of Congress’s power under the Commerce Clause.


Foley thinks that from the framework of the majority, once it decides Lopez and once it gets over the hurdle that the existence of findings or their absence isn’t a big deal, then Morrison follows quickly from the Lopez precedent.


The majority says in Lopez that no matter how bad it is to have guns near schools, it’s a local problem that state law must regulate.? But if “guns near schools?isn’t a power Congress can address, then rape isn’t going to be a power of Congress either.? It will have to be an issue of state criminal or tort law.?It’s non-economic.?The framers of the Constitution saw these as state issues.


How do we know the scope of what the Court is deciding?


A lot of people wrote amicus briefs for this case and a lot of people thought Justice O’Connor would be sympathetic to gender violence concerns and would be willing to uphold this law even though she wasn’t willing to uphold the gun law.?It didn’t work because in her understanding this was just the same issue as the gun issue.?She wasn’t going to expand federal jurisdiction in either situation.


Both Lopez and Morrison say: if we allow federal law to enter these domains, then we destroy the notion of a dual system of government.? If we allow the federal government to do this, then we can allow the federal government to do anything.?This is the same motivation behind the majority opinion in both cases.


When we left off, we were talking about how in Morrison, many folks were organized in a concerted way to try to win O’Connor’s “swing vote?on the theory that since the issue involved gender violence she would be more personally involved than she might have been in terms of gun violence in schools.?There were tons of amicus briefs, including the states themselves, arguing that Congress should have the power to regulate violence against women.


One more point: for O’Connor as well as the other justices in the majority, it boiled down to the fact that the counsel for the U.S. government could not answer a particular question.?This was a great oral arguer, Seth Waxman.?The question was: “If we uphold this statute, this Violence Against Women Act, is there any limitations on Congress’s commerce power??span style='mso-spacerun:yes'>?In other words, if we uphold this statute, can we imagine some other statute that would be beyond Congress’s Commerce Clause power, or would upholding this statute grant unlimited power??O’Connor tried to get Waxman to come up with a statute that would be unconstitutional, but he couldn’t!


There’s a debate in both cases between Rehnquist in the majority and Breyer in the minority on this exact issue.?Rehnquist says there must be a statute that falls outside of Congress’s power.?If we can’t find a theoretical example that goes farther than the statute at hand, then this statute must go too far.


Foley finds the transcripts of oral argument before the U.S. Supreme Court very enlightening.?If you’re confused about what’s really going on in a case, read the transcripts of oral argument.?That’s where “the rubber meets the road??The critical questions that the justices are thinking about come to the fore.?If you want to know what the justices are thinking about and what’s going to be on their minds, read the oral argument in similar cases.?That’s a great way to prepare for your own case before the Supreme Court (keep your fingers crossed).


Foley will try to raise questions in class that are like the ones that the Justices would raise at oral argument.


United States v. McCoy ?McCoy was charged with violation of a federal child pornography law and pleaded guilty conditional upon her right to appeal on constitutional grounds.?McCoy appealed to the Ninth Circuit Court of Appeals, arguing that the statute under which she was charged exceeded the constitutional authority of Congress under the Commerce Clause.


Is the section of the statute that forbids possession of child pornography “made with materials transported in interstate commerce? constitutional under the Commerce Clause?? To determine whether a statute is constitutional under the Commerce Clause, the four-part test of Morrison must be applied: (1) Is the prohibited activity of a commercial or economic nature??(2) Is the connection between the prohibited activity and interstate commerce too attenuated to allow the exercise of the Commerce Clause power?? (3) Does the statute contain an “express jurisdictional element? intended to satisfy Commerce Clause requirements??(4) Do congressional findings exist to support a connection between the prohibited conduct and interstate commerce?


The majority notes that its decision does not affect the ability of the state of California to punish McCoy under state law.


The majority starts by finding that Morrison controls in the current case and sets out a four-part test to find out whether the Commerce Clause power was exceeded.


Following the first factor, the majority finds the fact that McCoy’s behavior was non-commercial and non-economic to be especially important to their conclusion.?The court distinguishes this case from Wickard, saying basically that since McCoy was not a customer in the interstate child pornography business, the photograph she was responsible for would not affect that business in any way.


The court finds that there is not a highly attenuated relationship between McCoy’s behavior and interstate commerce, but rather no relationship whatsoever.


The court notes that the statute in question does contain an express jurisdictional element, but the court says that this is not dispositive.?This goes against what some other Circuits have claimed in decisions pre-dating Morrison.


Finally, the court finds that the legislative history does not support the constitutional application of the statute to non-commercial activities.?The court notes that the congressional findings mention “multimillion dollar [child pornography] industries? suggesting that the statute is mostly intended to combat child pornography in terms of commercial activity.?The court also finds that the legislative history contains previously expressed concerns over the constitutionality of the statute.


The dissent argues against the technique of narrowly construing the statute to make a particular section unconstitutional while apparently leaving the remainder unaffected.? Instead, the dissent says that the court needs to either find the statute constitutional on its face or unconstitutional on its face.?Moreover, the dissent would give more deference to Congress in their implicit finding that purely non-commercial, intrastate possession of child pornography substantially affects interstate commerce.?The dissent says this a political question and not a legal question.


The statute that is being challenged is 18 U.S.C. ?2252 (a)(4)(B).?Why does Ms. McCoy get prosecuted under this statute??There is a picture of the mother and daughter partially nude, though not engaged in any sexually explicit conduct.


The photograph wasn’t moved in interstate commerce.?The photo never left the state of California.?What was it that moved in interstate commerce??It was the camera and the film that was used to take the picture came from either New York or abroad.?The statute requires that the material either move in interstate commerce (which didn’t occur) or else was produced using materials from interstate commerce.


McCoy possessed one “other matter?as described in the statute.?She’s indicted under the statute.?What happens to her??She conditionally pleads guilty.?That might have been a mistake on her lawyer’s part.?Her husband doesn’t plead guilty, and a jury acquits.


But McCoy pleads guilty but reserves the right to appeal the dismissal of her motion to dismiss the indictment.?What does it mean that her guilty plea is conditional??Does she dispute that she was in this picture and possessed the picture?? Does she dispute that the photograph was made using materials from out of state??No.?She doesn’t dispute the facts, she disputes the law.?She’s raising a constitutional objection to the statute.


She says that she’s guilty, but she’s preserving an issue for appeal.?She says that she did violate the law, but that the law is unconstitutional.? She doesn’t dispute the statute under the First Amendment or based on some kind of parental rights.?She disputes the statute based on the Commerce Clause.


It’s very unlikely in the normal course of events for the Supreme Court to raise issues sua sponte.?You can usually assume that they won’t bring up issues unless the parties bring it up in their briefs.


One of the things Foley cares about is precision.?Focus precisely on what language is most important to use what we’re trying to talk about.


How would we define the Commerce Clause question in this case??First off, we’re probably in the realm of the “substantial effects?test.?But note that this case is different from Lopez and Morrison.?This statute has a “jurisdictional hook? and we might speculate whether we can use that to get into the ?i style='mso-bidi-font-style:normal'>channels of interstate commerce?prong.


What’s the constitutional question about Congress’s power??What’s the new issue??Does Congress have the power under the Commerce Clause to criminalize possession of a picture that (1) is sexually explicit, (2) was made using a camera and film that moved in interstate commerce, (3) is of a parent and child and (4) has never been shown outside the home??Whoa!?That’s specific!


The dissent and the majority dispute the use of the aggregation theory of Wickard.?They don’t even really agree on what question they’re answering!?They have different conceptions of the facts and the statute and the relationship between the two.


What’s the difference between the question the majority thinks they’re addressing and the question the dissent thinks they’re addressing??The dissent is saying: “We’re going to ask whether Congress has the power to criminalize possession of child pornography whatever the particular circumstances are.?span style='mso-spacerun:yes'>?For example, it may be a person who has one picture or 20,000.?It could be someone who intends to sell the pictures across state lines or not.?But the dissent doesn’t want to subdivide this up.?The dissent wants to ask whether Congress has the power to regulate the whole category as one big category.


The majority says, on the other hand, that you must ask whether Congress has power over certain subcategories of these pictures, and not the whole category.?How does the majority define the relevant subcategory??How narrow do they get?


Notice that this Ninth Circuit opinion discusses an opinion out of the Fifth Circuit called Kallestad.?The facts of that case were very different.?The defendant advertised in a local newspaper for women to come to his house to be models.?He photographed underage women who he wasn’t related to.?The allegation was that he treated the product of those photography sessions as the functional equivalent of pornographic pictures that he might have purchased in interstate commerce.?It just so happens that he produced them himself.?You can clearly compare this argument to Wickard.


The majority thinks that any possession of a picture for home use that’s not going to be sold in the channels of interstate commerce is the issue.?Foley thinks you could narrow it to the family context, where a parent is taking a picture of a child.?If you want to subdivide the category the way the majority wants to, you can do so in different ways.?The way you subdivide it will be relevant for how you define the constitutional question.


Why is this getting prosecuted??The dissent doesn’t think it’s so terribly serious that he would have prosecuted her if it was up to him.?But that’s not the judge’s job.


What are the essential elements of the majority’s reasoning for their conclusion that this is beyond Congress’s power??We have a four-part test under Morrison.


Is it commercial??The court says no.?On the other hand, McCoy had to go to the film lab, and she had to buy the camera through interstate commerce.?Isn’t child pornography commercial in nature, or at least a lot of it?? Filburn didn’t intend to sell his wheat.?Why is that commercial but this photo isn’t?


Is the connection to interstate commerce attenuated??The court finds that it’s clear that she’s not in the business of producing child pornography.?But the wheat in Wickard wasn’t going to be moved into the stream of interstate commerce either.? Why is that wheat commercial and connected to interstate commerce?


For the majority opinion, the critical distinction is that wheat is a fungible good while child pornography is not.?The point is that the mother doesn’t possess the picture as a substitute for other child pornography.?This possession at home of this picture does not relate to the interstate child pornography market at all.?This is the critical distinction.


We’ll spend a little time tomorrow on the “jurisdictional hook?question.?Why can’t the government win based on the fact that the camera and film moved in interstate commerce??Then we’ll go on to Stewart.


Foley hires a research assistant or assistants each summer.?We can send applications if we’re interested.?The application is a copy of our resume, a cover letter if we’d like, and first semester grades.?We can do this by e-mail or we can put something in his mailbox or stick something under his door.


If you remember anything this semester, Foley would rather we remember “The Rachel Story?than anything about the Commerce Clause.


The jurisdictional hook


Why isn’t the existence of a jurisdictional hook in the statute in question dispositive here?


The argument might be made (according to Foley) that the presence of the jurisdictional element makes the discussion in Lopez and Morrison irrelevant.?What Congress wants here is to regulate the camera and film in interstate commerce.?Congress wants to regulate the camera and film such that they’re not used to make child pornography.?It’s clear that Congress can regulate the camera and film in a lot of other ways if these items are going to move in interstate commerce.?So why can’t the government also say that we don’t want these items doing something obnoxious??Couldn’t the government say that you can take whatever pictures you want, but just not with something that’s moved in interstate commerce?


The U.S. Supreme Court hasn’t taken this case, but what might they do if they did??What’s the strongest argument for McCoy in claiming that there is no Commerce Clause power to forbid her conduct?


(Side question: how long does it take from the time an appeals court decision is handed down to know that the Supreme Court is going to review it?)


Isn’t the production of the picture tied to interstate commerce in a way that the conduct in Lopez and Morrison was not?


Think of O’Connor’s question to Seth Waxman: “Show me a statute that flunks the Commerce Clause if this one is okay.?span style='mso-spacerun:yes'>?In order to uphold this law as applied to these facts, would I, as a Supreme Court Justice, have to say that the Commerce Clause power is completely unlimited?


Foley says we genuinely have no idea how the U.S. Supreme Court would decide this case, and if we think we do, that’s probably a danger sign.?All we have right now is the guidance of Lopez and Morrison.


What Foley thinks will motivate O’Connor or Kennedy would be something along the following lines: How important is it that we allow Congress to have this power? ?/span>Is this something we should let Congress do??On the other hand, how important is it that we deny Congress this power in order to preserve some state autonomy in our “dual system??What cuts in favor of having Congress and the federal government win power in this case is that the Supreme Court has already noted a stopping point.?The very existence of Lopez and Morrison show that there is a limit, and therefore the Supreme Court can allow Congress to deal with a national problem without worrying about their power going too far.


One of the reasons that this case is important is that the picture is not fungible with other pictures the way wheat is fungible.?But Foley claims this is a commodity case instead of an activity case.?So the Supreme Court might find that Congress can have authority to regulate this commodity.


Another argument that could be made on behalf of McCoy is the “traditional state domain?argument.? The Court talks about education, family law, and family relations as areas that we traditionally look to state law to decide.?When Congress writes a new law in that area, we have the danger of having Congress usurping that authority.?We let Congress rule when they’re in their domain, but we should not expand Congress’s power into areas that especially intrude on state sovereignty.


Because McCoy involves a parent-child relationship, it helps to make the argument that the issue belongs to state law.?If McCoy has been a bad parent, maybe California law should tell us what should be done with her.?Maybe we don’t want Congress to set up a nationwide standard for what it means to be a good parent.?We don’t want the states deprived of their ability to administer family law differently in each state.?We like having each state go its own way on cultural issues and social values and mores.? This is how Foley would set out the argument in order to make it attractive to O’Connor or Kennedy.


The key idea is that the argument is a functional argument.?We could try to measure “substantial effects? but ultimately, the justices are in the driver’s seat.?What will move them is not a formalistic and technical argument, but an argument about function and purpose.?The justices, according to Foley, want to hear a reason why we should give Congress the power we give them.


This series of assignments all relate to federalism.?But we’re going to switch gears on Monday and Tuesday to looking at the Tenth Amendment as a limit on federal power and protection of state power.


When we read the Tenth Amendment cases, we should start by thinking about what the relationship is between the Commerce Clause and the Tenth Amendment.?Chemerinsky discusses this, and we’ll also discuss this in class.? (What powers are given to Congress by the Commerce Clause??What powers are taken away from Congress by the Tenth Amendment?)


Now that we’ve read a few of these cases, Foley wants to know if we’re starting to get more comfortable with what’s going on.


“Facial?versus “as-applied?challenges


There’s a conflict between “facial?challenges and “as-applied?challenges that comes up in each case.?The normal rule is that you start with an “as-applied?challenge.?That means that there a particular person in court who says: “This law is unconstitutional as applied to me.?span style='mso-spacerun:yes'>?It could be a civil or criminal defendant.


On the other hand, in Raich for example, you can sue in anticipation of having a law used against you.?If you’re the petitioner or defendant, you may not care about how the law is applied to anybody else except yourself.


You’re not normally allowed to go to court and say: “The law can be validly applied to me, but it can’t be applied validly from someone else who is different than me.?Therefore, I want the Court to declare the law unconstitutional on the whole so I win even though I couldn’t have won on a claim as applied just to me.?span style='mso-spacerun:yes'>?You can’t piggyback on someone else’s constitutional rights.


This is a facial challenge in its most basic form.? Normally, these are no good.


“What about third-party standing??span style='mso-spacerun:yes'>?There’s a complicated body of law called “standing law??It comes up a lot in practice.?It means that in a narrow set of circumstances when your constitutional rights aren’t at stake you can litigate on behalf of someone else’s constitutional rights.


For the sake of example, the First Amendment freedom of speech principle is one area where facial challenges and third-party standing are allowed.?This is allowed because we want a very robust protection of freedom of speech.?In pornography cases, for example, the court will often say with respect to non-protected extra gross pornography that the “smut peddler?can bring a facial challenge based on the notion that the law in question is written so broadly that it bans materials that shouldn’t be banned.


But this is the exception rather than the rule.?This distinction really confuses judges, courts, and lawyers.?They’re not sure when they have a facial challenge in front of them.?Judges have a hard time with this!?If we’re confused, that’s okay, because they are too!?Part of the reason is that the idea of “facial versus as-applied challenges?isn’t in the Constitution.


Foley thinks the challenge in McCoy was not a debate over facial challenges and as-applied challenges.?Foley says that McCoy is really asserting an as-applied challenge and that she is not using third-party standing.


Which of the cases we’ve gone over so far are the most vulnerable to being overturned by the Supreme Court?


The farmer in Wickard was in the agriculture business.?He was a self-employed farmer.?What’s the difference between Farmer Filburn, who was a commercial farmer who also happened to grow extra wheat for his own consumption and the hypothetical we talked about with tomatoes??Do we think that Filburn is more “commercial?as a person because he’s a commercial farmer??Wheat is fungible.?The wheat is a lot more fungible than McCoy’s picture.?What about the machine guns?


Raich v. Ashcroft ?Raich uses marijuana for medicinal purposes.? The marijuana she uses is homegrown.? This is permitted under California law, but not under the federal Controlled Substances Act.?Raich sued for injunctive and declaratory relief, claiming that the CSA was unconstitutional as applied to her conduct.?The district court denied Raich’s motion for a preliminary injunction, and Raich appealed.


Is the CSA a constitutional use of Congress’s Commerce Clause power when applied to Raich’s conduct?


The court finds that the activity regulated is not commercial or economic in nature.?There is no jurisdictional hook that connects the CSA to the Commerce Clause.?There are congressional findings that set out the connection between controlled substances and interstate commerce, but the court says these are not dispositive and not pertinent to the particular situation at issue here.


The dissent claims that it is impossible to distinguish the cultivation and use of marijuana in this case from the cultivation and use of wheat in Wickard.


There’s no “drug clause?of the Constitution!?The government doesn’t have the basic power to say that there are certain powers they like and don’t like.?The only thing that gives Congress the authority to outlaw drugs is to tie it to interstate commerce.


The government will argue that they have to power to keep drugs from crossing state lines.?In turn, if we let California have marijuana in their own state, we can’t keep it within that state as a practical matter.?The same argument is made for guns: if guns are made in North Carolina, they will find their way to the streets of New York.


Come up with as many arguments as you can for each side!


Foley says: The Ninth Circuit has a poor reputation in the U.S. Supreme Court right now.?It is considered ideological and aggressive.?That’s probably not true of all three opinions, but the Raich one would probably be considered the most result-oriented.?It appeared that the judges had an idea of the result they wanted and they used the doctrine of Lopez and Morrison as an instrumentality to get to the result they wanted.


These Ninth Circuit cases are cutting edge!?The only way we’re going to find out what current Commerce Clause law really is would be if the Supreme Court takes on one of these cases.


The Tenth Amendment


Reno v. Condon ?Congress passed the Driver’s Privacy Protection Act of 1994 to keep state DMVs from selling drivers?personal information without their consent.?The practices of the South Carolina DMV went against the Act.?South Carolina Attorney General Condon filed suit against the government, claiming the law was unconstitutional under the Tenth and Eleventh Amendments.?The District Court agreed with the state and granted it summary judgment, enjoining the federal government from applying the law.?The Court of Appeals upheld the District Court’s decision.?The federal government appealed to the U.S. Supreme Court.


Does the Tenth Amendment forbid the federal government from regulating the activities of state Departments of Motor Vehicles??The Tenth Amendment says that the federal government cannot force the states to enact policies or regulations that would impact the state’s citizens.?Congress can, however, regulate the activities of the states themselves.


The Court first assumes that the statute is constitutional unless proven otherwise.?Then the Court accepts the federal government’s argument that the DPPA is a constitutional exercise of Congress’s Commerce Clause power.


The Court then finds that the statute does not violate the Tenth Amendment.?The Court accepts that following the rules of the DPPA will require time and effort, but finds that this is not dispositive.?There are many other federal regulations that require time and effort for compliance which are constitutional under the Tenth Amendment


In this case, the Court started off its analysis with Commerce Clause, finding that there was no Commerce Clause problem.?Why was this law a valid exercise of the Commerce Clause power??What federal law is being challenged??It’s the DPPA.?What does the law do??It restricts the state’s ability to sell personal information about drivers to businesses and other individuals.?The DMVs of each state collect personal information from all drivers.?They used to turn around and sell that information to telemarketers and other unsavory people.


But how is this connected to interstate commerce??For example, Ohio might sell its driver license information to a telemarketer in Wyoming.?Or they could sell their list to a company in Ohio that also does business in another state.? So the driver license information, though it starts out locally, it becomes a thing in interstate commerce once it gets sold, and thus it is subject to regulation by Congress.


We spent a lot of time on the “substantial effects?test and Wickard and Lopez and Morrison.?Why didn’t they go through an elaborate test like the ones we saw earlier??The Court’s impression is that this isn’t intrastate stuff.?The information is a good that can and does travel between states.?So there’s no need to get to the “substantial effects?inquiry.


In the Commerce Clause cases, the Court talked about three different things Congress can regulate: “channels?and “instrumentalities?of interstate commerce and things that are intrastate but have a “substantial effect? on interstate commerce.?So how does the information being sold in this case fit into that rubric??The Court thinks of this as a direct regulation on interstate commerce.


Did this statute have a Commerce Clause hook??Not exactly.? It also seems like the federal government doesn’t discriminate between information that never leaves the state and the information that goes into interstate commerce.


Recall the “Child Labor Case??The law in question was challenged on the basis of the Tenth Amendment, and the Supreme Court invalidated the law at the time.?Later, this decision was overruled.?Now we believe that Congress can regulate goods that crossed state lines, even if the reason they are being regulated is purely intrastate.


Foley thinks that the Court didn’t intend to make a big deal about the Commerce Clause in Condon, but it gives us a clue about what the Court will uphold on Commerce Clause grounds.?So don’t miss the Commerce Clause significance of this case!?Don’t take received wisdom!?(Emanuel put Reno v. Condon in the Commerce Clause section, actually.)


The Court more or less decided: “Hey!?We want to give Congress this power, and we think it’s of the kind that Congress should address!?We think they should do so because it’s truly an interstate problem, unlike guns and rape.?span style='mso-spacerun:yes'>? The Court sends a message from all nine justices: This is a power we’ll give to Congress.?But why did Justice Thomas agree??Hmmm…maybe it had something to do with the fact that privacy rights are at stake.


Would it be permissible for Congress to say: “States must destroy DMV records after ten years?? Congress mustn’t provide overly detailed regulation of state agencies.?States are supposed to be autonomous entities.


One thing that helped this law be constitutional was the fact that it applied both to states and private individuals (though in actuality, these bits were in different parts of the statute).?If the law was directly exclusively at state governments, it might be more likely to violate the Tenth Amendment.


Congress must not force state governments to adopt particular laws or regulations.?Congress can’t order states around with respect to their sovereign capacity.? Lawmaking is one such sovereign capacity.


But what’s the connection between Commerce Clause analysis and Tenth Amendment analysis?


What if Congress required Ohio to move its capital to Cincinnati??Could we argue that this is permissible under the Commerce Clause?? What about under the Tenth Amendment?


If you moved the capital to Cincinnati, you might get more interstate commerce between Ohio, Indiana and Kentucky.?You could argue that the placement of a state’s capital has an effect on potential or actual interstate commerce.?So we may well conclude that this would be within Congress’s Commerce Clause power.


But such an action would violate a core attribute of state sovereignty.?That’s how the justices think about the Tenth Amendment.?They say that 13 free and independent states fought the revolution separately, and then agreed to an alliance such that they gave up some of their sovereignty, but not all.


The thing to think about the Tenth Amendment is that it’s a question about protecting rights.?The Tenth Amendment does not confer power.?The Commerce Clause confers power.?The Commerce Clause giveth, and the Tenth Amendment taketh away.?The Tenth Amendment guarantees states?rights just like many of the other amendments protect individual rights.


Reno v. Condon says it makes a difference whether Congress tells states they must do something, as opposed to telling the states that they can’t do something.?Step back and think about this from a common-sense standpoint: This Supreme Court would never allow the federal government to interfere with a state’s choice of where to place its capital within its borders.?The value of preserving the “dignity?of the state of Ohio as a sovereign state would be intruded upon too far no matter how it’s done.


In Con Law, doctrine works in service of fundamental values, not the other way around.?The Court is motivated by the underlying reasons that we have these constitutional principles.?If the Court sees that it has created a doctrinal rule that says there is a big difference between affirmative mandates and negative prohibitions, and they find that this isn’t compatible with some basic idea like state sovereignty, then they’ll change the doctrine to get to where they want to be.


A number of people are trying to articulate the rule or principle that results from the Tenth Amendment cases.?What’s the test??In Lopez, we had a test.?Here, the test isn’t jumping out at us.?One of the difficulties is whether we can even articulate the test the Court is using to evaluate Tenth Amendment questions.?We should try to come up with a couple of candidates for what the current test is for Tenth Amendment questions.


Active reading in law is important!?Think as you read!?Ask questions as you read!?It’s different than other kinds of reading.?Computer-screen reading may not be as active as reading and note-taking on a page.? Foley says to read more than once!


Tenth Amendment flip-flops


This is one of the reasons that the Tenth Amendment is so difficult.?The Court has been really inconsistent over time, even in recent years.? The current view of the Tenth Amendment is that it’s an entirely separate question, analytically distinct from the “power?question.?But that hasn’t always been the Court’s view.? The Court has flipped and flopped, back and forth again.?We’ll focus on the era from 1968 (Wirtz) to the present.?There were several cases involving the Fair Labor Standards Act, which was passed pursuant to the Commerce Clause.?After the New Deal, the Court said that Congress could regulate wages and hours and all that kind of stuff in all sorts of industries.? Congress was given general authority to do things like set the minimum wage for people who work at McDonald’s.


Congress passed a minimum wage law that is generally applicable to all sorts of kinds of workers.? They extended the same law to people who work for state and local agencies.?There are a few exceptions, but most people who work for state or local governments must earn a certain minimum wage.?Congress says that these workers?wages and salaries affect the interstate labor market.


In Maryland v. Wirtz, Maryland said that Congress may have Commerce Clause power over workers in the state, but that Congress can’t regulate state workers.?The Court disagreed, saying that there is no separate question.?If Congress has the Commerce Clause power, then the Tenth Amendment is satisfied.?The Court basically said it was two ways to ask the same question.?The Tenth Amendment was declared to be redundant to the Commerce Clause.


But then, in National League of Cities in 1976, they said exactly the opposite thing and overruled Maryland v. Wirtz.?It was exactly the same question!?The issue was the wages and salaries of state employees, but the Court came to the opposite conclusion.


But then, in Garcia v. San Antonio MTA in 1985, the Court reversed again!?The Court said that the federal government could regulate the salaries of private bus drivers, like Greyhound drivers, and that the federal government could also set minimum wages for public bus drivers.


But then, in New York v. United States, Garcia was not explicitly overruled.?There’s no doubt that the decisions were inconsistent.?The New York case related to the transport of radioactive waste.?As a practical matter, this case overruled Garcia.?The Court was embarrassed to admit it.?Also, the New York case covered an environmental law, not a labor law.?So Garcia is out the window, and we’re in a new era of the separate inquiry.


But we don’t yet know the “contours?of this separate inquiry.?The Court didn’t say that we were going to resurrect the analysis of National League of Cities.?Instead, they set up the “anti-commandeering principle.?span style='mso-spacerun:yes'>? They said that what was problematic about the laws in New York or Printz was that Congress has inappropriately “commandeered?state governments.?In New York, Congress was said to unlawfully commandeer state legislatures and tell them what to do.?In Printz, state and local law enforcement officials were forced to perform regulatory tasks by the federal government.


So the issue in the labor law cases was whether the federal government can force states and state agencies to pay their workers a certain minimum wage.?Twice the Court said yes, and once the Court said no.?But this isn’t about “commandeering?


When Garcia was decided in 1985 and Rehnquist is on the losing side, he writes a dissent basically saying “We’ll be back!?You haven’t heard the last of us!?span style='mso-spacerun:yes'>?Foley says that this suggests that the “anti-commandeering?principle is not the end of the road.?Foley thinks they’re keen to get another fact pattern just like Garcia so that they can explicitly overrule it.? Then we won’t be quite as sure what the Tenth Amendment means.?But this hasn’t happened yet, so we’re in a state of flux.


So there are a few different possible Tenth Amendment principles (the following quotes from a Foley handout):


  1. Congress can regulate the states in the same way that it regulates private entities, but it cannot regulate states in any way that is being distinctive to a state (except by requiring state judges to follow federal law).
  2. Congress cannot “commandeer?state officials as agents of the federal government.
  3. Congress may regulate the states directly, in ways that are unique to being a state, but cannot do so in a way that forces a state to regulate its own citizens differently that the state itself would choose.
  4. Congress may prohibit the states from doing things, but not require them to do things.
  5. Congress cannot force states to undertake specific actions vis-?vis their own citizens that are inconsistent with a state’s status as a sovereign.
  6. Congress may not regulate state governments in ways that are inconsistent with a state’s status or dignity as a sovereign government, including regulations that force states to undertake specific actions concerning their own citizens that a state does not wish to undertake.


Whatever a majority of the Supreme Court justices say in an opinion is given very heavy weight in the entire legal system.


The Court can rely on its dicta, ignore its dicta, or repudiate its dicta.?It can even overrule itself.?So relying on the dicta of a Supreme Court opinion when you’re going to argue before that Court is shakier than if you rely on Supreme Court dicta in lower court.


If the Court makes two statements, and the first statement by itself is enough to get to the final conclusion, then the second statement is dicta and only the first statement is the holding.?On the other hand, if the Court only used one statement to support its conclusion, but you could think of a narrower statement that would have been enough to get to the conclusion, then it’s more contested whether the statement they made was the holding or dicta.


Printz v. United States ?A provision of the Brady Act required chief law enforcement officers of state and local governments to perform handgun buyer background checks on an interim basis until the national background check system was developed.? Two sheriffs sue to stop the provision from being enforced in separate district courts.?The two district courts both found that the provision in question was unconstitutional but could be severed from the rest of the Act.?The Ninth Circuit reversed, saying that none of the Act’s provisions were unconstitutional.?The sheriffs appealed.


Are the interim provision of the Brady Act unconstitutional on Tenth Amendment or other grounds?? Congress cannot constitutionally compel state executive branch officials to administer a federal regulatory program.


Scalia says that the Court’s past decisions show that though Congress can command state judges, it cannot command the states?executive authorities.?Scalia based his decision at least in part on New York and suggests the provisions are unconstitutional based on the Tenth Amendment.?However, Scalia never mentions the Tenth Amendment explicitly except when responding to the dissent.


O’Connor brings up the Tenth Amendment explicitly.?O’Connor points out that it is possible to for localities to voluntarily continue participating in the interim background check plan if they choose to do so.


Stevens distinguishes New York.?He asks what the practical effects might be in an emergency if Congress could not conscript local officials into service.?Stevens also looks at legislative history.


Stevens takes a different view of the Tenth Amendment.?Stevens says that the federal government can impose duties on ordinary citizens, so, he reasons, why can’t say impose even greater duties on state officers?? Stevens reaffirms the view that both the Constitution and federal statutes are the Supreme Law of the Land.


Breyer takes a comparative approach, saying that the way we do things isn’t the only possible way for things to work.


This is a particularly dense case.?No matter who you think is right in this case, there seem to be plausible arguments on both sides.?It’s not a very deferential opinion to Congress.


What are these three cases telling us??They’re not necessarily the same formulations of the rule.


It looks like we have four categories:



Generally applicable

Specifically directed


OK (at least in Condon)


Affirmative duties


NO (at least in Printz)


For tomorrow, think about the example in Printz of having to report missing children.?Reno v. Condon also involves information (driver privacy).?Can we distinguish cases where Congress orders states to do or not do certain things with respect to information??O’Connor’s concurrence suggests that the ruling in Printz is not limited to regulations on information.? We’ll also focus on the issue of terrorism tomorrow.


Foley has been talking about the hypothetical of a large-scale terrorist attack.?Say Congress, in an effort to put in to place some advance planning in the event of a terrorist attack, says that there will be a combined rapid-response team consisting largely of local law enforcement officers who will be under the direction of the Department of Homeland Security.?In order to implement a decent rapid response team, we need to rely on local EMS and police.


So let’s say Congress passes a law saying that in the time of an emergency, Tom Ridge or whoever can require local officers to do certain things.?Is that permissible under the Tenth Amendment as interpreted in Printz??Say it’s a real big emergency.?We would need a rapid response at the direction of the federal government.?We don’t have federal personnel on the ground at all times, and we don’t want them, either.? We don’t want a federal standing army on U.S. soil.?We send American troops abroad as necessary, but the idea of a standing U.S. army on U.S. soil is somewhat anathema to us.?We rely on state and local governments to keep the peace.?Part of the idea of the federal system of government is keeping some power out of the hands of the central government and leaving it in the hands of local governments to promote freedom.


Would it be consistent with the goal of promoting freedom if the only way to protect against terrorism would be to have a federal force that replicates local government functions?? Is that what this decision says?? The Court says that we are not using a balancing test in this area of constitutional law.?We are creating a categorical prohibition of enlisting state officers to perform federal functions.?There is no exception to the principle for emergencies!?Do we still take the Court at its word, given that the opinion was written before 9/11?


Most of constitutional law has balancing aspects.?Even free speech rights are balanced against compelling governmental interests.


It seems unlikely, however, that a state would object to participating in a new program the federal government would adopt to deal with terrorism.?The states pretty much all agree.?On the other hand, there may not be complete agreement as to the details.? For example, not everyone is so hot on all part of the PATRIOT Act.?What if a particular state wants to go against a particular detail of Congress’s implementation of the plan?


Congress might try to induce the states through the Spending Clause.?Congress can’t mandate the kind of background checks in Printz, but maybe they can dangle some money in front of the states to induce them to stick to the program.


What if Congress says the only way we can trace terrorist suspects would be if local law enforcement officers submit monthly reports to the Department of Homeland Security??Would it be different if local police departments were forced to gather information??The only difference between this and Printz is the “emergency?aspect.


So do we believe the Court when they say that there is no emergency exception to the rule??Would the Court cut the federal government more slack today after 9/11 than they did in 1997??Foley suggests we need to do a reality check.?But don’t always trust Foley as a predictor of Supreme Court outcomes!


What about Congress’s war powers??Could Congress declare martial law??If they did, would the Tenth Amendment get suspended?


Here is the key dispute between the majority and the dissent in Printz: We’ll always need cooperation and coordination between federal, state, and local governments.?If there is some dispute about how best to do this, who gets the final say??Is it Congress as the elected representatives of the American people (subject to the presidential veto)??Or is it the Supreme Court acting on behalf of state and local governments?


The states are well-represented before Congress.?It’s not like the Congress turns a deaf ear to the concerns of the states qua states.?The dissent says that there are ways to make accommodations politically.? If Congress passes a law that intrudes on the sovereignty of a state, presumably it has done so for what it believes is a good reason.?So shall the Supreme Court allow Congress to make that judgment, or will the Supreme Court instead say that the ultimate authority lies with the governors of the states?


Are the members of the Supreme Court going to render a decision that would destroy the country?? Say the government had a credible argument that under the Constitution, as written, we can’t adequately handle terrorist threats.?Would the Supreme Court say that the Constitution doesn’t allow us to defend ourselves??Would the answer be different if the stakes are higher?


The Constitution doesn’t have a provision that allows the President or Congress to suspend the Constitution.?We always operate under the Constitution and the rule of law.?In other countries, people can suspend the operation of the Constitution for a while when they say there is an emergency.


In exercising its authority, the Court will always have a dose of realism when it interprets the Constitution.?We live under the Constitution, the Court will interpret the Constitution, but Foley says it will do so with a dose of realism.


This year, the Court has already granted cert in some terrorism cases.?These cases don’t raise federalism issues.


The Supreme Court doesn’t have any power to enforce its own judgments.?It relies on the executive branch to carry them out.?The Court is quite sensitive to this point.?Printz isn’t a national security case.


Foley says that because we’re in flux, the best principle might be this: “Congress may not regulate state governments in ways that are inconsistent with a state’s status or dignity as a sovereign government, including regulations that force states to undertake specific actions concerning their own citizens that a state does not wish to undertake.?span style='mso-spacerun:yes'>?Congress can’t be the big bully and push the states around.?This “animating idea?is bigger, according to Foley, than any of the detailed rules the Court has set out to this point.?The reason why Condon was unanimous was that the Court didn’t see an affront to the dignity of South Carolina that they couldn’t sell driver’s license information.?In Printz, we’re talking about what police chiefs are going to do in their jobs.?Police power is the most basic sovereign power.?Forcing local cops around seems to the Court like an affront to the dignity of the states as sovereigns.?The Court says that we’re not doing balancing, but they might try to “smuggle in?some balancing notions.?There may be some “hidden?balancing even if there isn’t any up-front balancing.


Apply this to the terrorism example: The sovereignty of each state may be dependent upon the existence of the union.?If the federal government is ordering states around to protect the union, that may not be as bad as ordering them around for some domestic policy interests.


The object of the Fourteenth Amendment was to constrain state power in certain ways.?States can’t suddenly assert the Tenth Amendment as an objection to an equal protection claim.?The states have no right to take away equal protection.


New York and Printz are not compelled by the text of the Tenth Amendment.?The majorities in these cases are really being motivated by an idea about federalism and the two-level structure of our government.?That idea is always going to be on the minds of the justices that care about the idea.? In any constitutional case, you must be sensitive to this idea.?Federalism is always on (some of) the justices?minds!?On the other hand, some of the justices, like Breyer and Stevens, don’t like federalism!


Next week, we’ll get to Sabri.?In fact, we’ll basically spend all next week on it.?We’ll start with the lower court opinion.?Foley wants us to know that Section II of the Court of Appeals decision is on statutory construction while Section III is on constitutional analysis.? So just skim Section II.?On Monday, we’ll only talk about the constitutional issues.


South Dakota v. Dole ?Congress tried to use their spending power to get state governments to raise the drinking age to 21.?Congress passed a law that withheld a certain percentage of federal funds to any state with a drinking age lower than 21.?South Dakota had a drinking age of 19 for “low beer?? South Dakota sues to force the federal government to pay the full amount of federal highway funds.?The district court and appellate court both found for the federal government.?South Dakota appeals.


Does Congress have the power under Article I and the Twenty-First Amendment to “encourage?South Dakota to raise their drinking age??(1) Congress’s use of the spending power must be in pursuit of the “general welfare?? (2) If Congress conditions the States?receipt of federal funds, it must do so unambiguously.?(3) Congress can’t place conditions on funding if those conditions are not related to “particular national projects or programs??(4) Congress cannot use its spending power to induce states to perform actions that are unconstitutional.


The Court says that South Dakota doesn’t challenge the statute in question under any of the first three limitations above.?South Dakota only challenges the condition of federal funds on the basis that it’s an unconstitutional regulation of liquor sales under the Twenty-First Amendment.?The Court basically says that the standard for determining whether the Constitution places limits on conditional funding are not as strict as the standards for determining what Congress can do directly.?The Court finds it dispositive that South Dakota has the power to keep their law the same, even though it’s at some cost.


O’Connor disagrees that the condition is closely related to the purpose for which the funds are expended.? O’Connor says that underage drinking is not sufficiently closely related to interstate highway construction.


O’Connor also thinks that the law is an exercise of regulatory power rather than spending power.? O’Connor thinks that the Twenty-First Amendment gives this power solely to the states.


The judgment of the Court of Appeals is affirmed and the action of Congress is found to be constitutional.


What’s it about?? Congress let the Secretary of Transportation knock off 5% of federal highway funds to states with drinking ages less than 21.


An aside: One of Foley’s primary goals in using the Socratic Method in class is practicing talking about the law.?One thing we’re doing as we practice is focusing in on the most important things in each case.?That’s something you’ll need to do in your future lawyerly life.


So what are the key details about the federal law??It will withhold money from the states unless they raise their drinking ages.


Suppose Congress hadn’t done this through spending, but instead simply made a law that said “Nobody can purchase an alcoholic beverage if they’re under the age of 21.?span style='mso-spacerun:yes'>?Would that be within the Commerce Clause?? Sure, probably.?But it would violate the Twenty-First Amendment.?If we only had the Commerce Clause, then there would be no problem.?We’re talking about the sale of alcoholic beverages, and this activity is sufficiently commercial that even intrastate alcohol sales can be regulated.?But the Twenty-First Amendment removes some things from Commerce Clause authority that would otherwise be within Commerce Clause authority.?The Supreme Court assumes that Congress could not enact a direct regulation of the national drinking age under the Commerce Clause.?If it was within the Commerce Clause authority, then there wouldn’t have to be any separate Spending Clause analysis.?You only need to list your law under one of the enumerated powers.?If there was Commerce Clause power, you might plausibly have a Tenth Amendment problem.


But because we assume it couldn’t be done under the Commerce Clause, we need to try it out under the Spending Clause.?That’s what the Court does.


Note that Congress can spend with respect to matters that are beyond any other power.?For example, with education in Lopez, education is said to be something that especially belongs to the states.? But the spending power is different!? The federal government can dole out money for education to the states and condition it upon the teaching of a particular curriculum, even if they can’t directly mandate such a curriculum.? The Spending Clause has a broader scope than the Commerce Clause, but it’s not necessary more powerful than the Commerce Clause.


Also, the Tenth Amendment doesn’t give Congress any powers.?In fact, a minority of the Justices think this Amendment is irrelevant.? The majority believes that it is a states?rights provision that doesn’t give Congress any powers, but only takes away powers.?The Tenth Amendment is analytically different from either the Spending Clause or the Commerce Clause.?The latter are “power?provisions; the former is a “rights?provision.


The Supreme Court says that if South Dakota doesn’t want to lower the drinking age, they can “Just Say No!?and give up the 5% of the highway budget they get from the federal government.?Thus, it is claimed, there is no intrusion on state sovereignty.


So let’s focus on the Spending Clause.?The Court announces a four-point test for Spending Clause cases: (1) The conditions must be in pursuit of the general welfare.?Congress will get a lot of latitude in making this judgment.?Some cases suggest that the Court will give Congress a pass on this question every time.? (2) The conditions Congress places on grants must be related to the purpose of the money itself.?If the money comes with “strings attached? there might be a connection between the money and the “strings??(3) The conditional nature of the grants must be unambiguous.?The statute must clearly spell out to the states what their choice is.?What are the strings being attached to the money?? It can’t be a “gotcha?where the money comes first and the conditions come afterwards.?(4) Congress can’t induce the states to perform any action that would itself be unconstitutional.?The Twenty-First Amendment would be an independent bar to direct regulation, but it’s not an independent bar with respect to the spending power.?That’s because the states have a choice!?The Twenty-First Amendment says that the states have a choice of how to regulate alcohol.?Why isn’t the quid pro quo that’s being offered (money for drinking age) outside the scope of the Twenty-First Amendment??The Court basically says that in the domain of just spending money and offering choices rather than making decrees, the Court will act like the Twenty-First Amendment is not a bar as far as the Spending Clause goes.?This is kind of by fiat and could have gone the other way.?The court says that the federal government can’t give money to the states if the states agree to give up something that the states are not entitled to give up.


If you read between the lines, the Court suggests that South Dakota didn’t do a good job presenting their case.?At oral argument, South Dakota conceded that they weren’t making the Spending Clause argument.?Justice O’Connor thinks the argument that they didn’t make was a good argument and doesn’t want to give it up!


Foley says that states?governments have historically been poorly represented in the Supreme Court.? That’s changing for the better (says Former Solicitor General Foley).


The relatedness prong


What’s the difference between what the majority and the dissent say about this prong??This is a tricky one!?Why did O’Connor have a different view of relatedness than the majority?


The money was related to highway construction and repair.?The strings were related to drinking age.?The perception of young adults is that they are more likely to engage in drunk driving than other people.?The majority thinks that the strings and money are legitimately connected.


O’Connor’s dissent


Justice O’Connor wanted to look at relatedness in a little more depth.?What does O’Connor mean when she says that the money must be spent on highway safety itself??O’Connor says there will be drunk drivers causing accidents in other age groups, plus young drivers who will drive safely.?O’Connor says the law is thus both over- and under-inclusive.? This concept becomes very important when we get to Equal Protection law.


But when a condition is related to the spending versus unrelated to the spending??O’Connor says that conditions are acceptable, and regulations are not.?Why is the age limit a regulation and not a condition of the spending??O’Connor’s key concept is that relatedness means: “Here’s the money, you can spend it for X, Y, and Z, but not A, B, and C.?span style='mso-spacerun:yes'>?It’s conditions on how the money is spent.?As opposed to: “Here is some money, and in exchange for the money you must agree to obey the following rules.?span style='mso-spacerun:yes'>?She would only allow the money to be conditional based on how it’s spent.


O’Connor says a condition is regulatory when the restraint goes beyond that wad of money itself.?In order to get such money, you must agree to spend any money you get in a certain way.? O’Connor believes this is outside of the Spending Clause.?This crosses her line of permissibility because it’s a constraint not on the money itself, but actually on the behavior of the recipient of the money.? “Constraint on money yes, constraint on people no.?/p>


This case is from 1987 and the composition of the Court has changed considerable.?Does O’Connor now have more allies than she did in 1987?? She was all alone then.?But maybe she could get Thomas and Kennedy.?She didn’t get Scalia or Rehnquist’s votes, but that might just be because South Dakota argued the case poorly.


Sometimes you can differentiate one case from another by saying “I’m presenting a different argument than in the case you decided before.?span style='mso-spacerun:yes'>? Really good lawyers will read the briefs and the transcripts.?If they see an argument missing from the earlier case, then they can come to court and say the case needs another look because there’s a whole new argument.


An aside about deference ?a common thread


To clarify a point from last time: The scope of the Spending Clause is broader, according to the Court, than the Commerce Clause.?The Court perceives Congress as having more room to maneuver under the Spending Clause than under the Commerce Clause.?For example, Lopez says we can’t have a nationally mandated primary school curriculum justified by the Commerce Clause power.


The Court will not second-guess Congress about whether a certain economic policy will be effective, as long as the policy is enacted under one of the enumerated powers.?In Wickard, the regulation of Filburn’s wheat might not have been necessary to get us out of the Depression, but the Court gave Congress deference as to the means Congress chose to stoke interstate commerce.


The idea of deference is very important throughout this semester with respect to every subject we’ll study.?Every case we’ll see this semester is, in a sense, about deference.? Every case includes a constitutional challenge to what the government wants to do.?In many cases, statutes (legislative power) will be challenged, while in some other cases, executive power will be challenged.?Whenever the Court is begin asked to invalidate an exercise of governmental power on the grounds that such exercise is unconstitutional, the Court, implicitly or explicitly, asks the question: “How much deference should our part of the government give another governmental authority to do what it feels is right??/p>


If Congress has passed a law, presumably Congress believed itself to be acting constitutionally.? Congress isn’t in the business of violating its own oath.?Every time the Supreme Court overrides an act of Congress, it overrides the judgment of the members of that body.?It is, in a sense, an indictment of the integrity of another branch of government.? So the Court always thinks to itself: “How much latitude should we give Congress on this issue??/p>


Deference cuts through all the topics we’ll cover in this class.?It also relates to the “standard of review?the Court should apply when adjudicating the particular constitutional claim in front of it.?The higher the standard of review, the more scrutiny the Court gives the relevant government agencies involved.?A rigorous standard of review is used, for example, in freedom of speech claims.?A lower standard of review or scrutiny gives the government more deference.?So in each topic we study, we’ll ask what standard of review will apply with respect to each case.


Foley says that the Court is struggling with the standard of review issue in the area of federalism.?Breyer’s dissent in Lopez says that the “rational basis test?applies to Commerce Clause analysis.?The “rational basis test?is a very relaxed standard of scrutiny.?That means Congress gets a big benefit of the doubt.?Breyer thought the Court shouldn’t make a judgment about whether guns near schools would lead to damage to the interstate economy, but rather the Court should review whether Congress could rationally think that guns near schools could conceivably lead to damage to interstate commerce.?Breyer would say as long as such a connection is conceivable, Congress is entitled to make it and have it upheld.


Note that the Court didn’t really respond to Breyer on that point.?The majority focused on the fact that Breyer couldn’t come up with a law that would go over the line if the statute under consideration was upheld.? That leads us to ask whether the level of review in Commerce Clause cases has been raised.?Foley says that Lopez and Morrison have not clearly set out just what standard of review the Court is applying.


We saw last week in South Dakota v. Dole references to the “rational basis test?as part of the inquiry in a Spending Clause case.?That was the test for applying the “general welfare?prong.?The majority and dissent parted ways on the “relatedness?prong.?Justice O’Connor was unwilling to apply such a loose standard of review as allowed by the majority.


Note that you could applying different amounts of deference, or, in other words, different standards of review with regard to different parts of a test.?The Court can let the standard of scrutiny “float?up and down, even within the same case.?So pay attention to what level of scrutiny is being used.


United States v. Sabri ?Sabri was charged under 18 U.S.C. ?666 for bribing an agency that receives federal funds.?Sabri moved to dismiss the indictment, claiming that ?666 was facially unconstitutional because it lacked a “jurisdictional hook?between the federal funds and the conduct.?The district court accepted the argument and dismissed the indictment.?The federal government appealed to the Eighth Circuit.


Did Congress have the power to enact ?666 under the Spending Clause or some other enumerated power?? All statutes passed by Congress must fall within one of its enumerated powers in order to be constitutional.


The majority starts by saying that ?666 is not a condition on the receipt of federal funds and cannot be sustained on that basis.? The court notes that ?666 does not address itself to the conduct of the recipient of federal funds, but rather to the conduct of third parties.


However, the court does find that ?666 is constitutional under a combination of the Necessary and Proper Clause and the Spending Clause.?The statute doesn’t seem to hold up under the Spending Clause alone, so the court looks elsewhere in the Constitution.?The court cites authority for the proposition that the Necessary and Proper Clause, among other things, allows Congress to pass laws that help it disburse federal funds.?The court sees the Necessary and Proper Clause as an affirmation that Congress can use a wide range of means to achieve constitutionally enumerated ends.


The court says that the issue therefore boils down to whether ?666 is an appropriate means to achieve a constitutional end under the Spending Clause.?There are two questions to be answered: (1) Can Congress enact criminal legislation under the Necessary and Proper Clause??(2) Is the enactment of ?666 rationally related to the desired end?


The majority has no problem finding support for their conclusion that the federal government has the power to pass federal criminal laws to help enforce its constitutional powers.? The majority further claims that ?666 is rationally related to its goal of protecting the integrity of federal funds and not so broad as to regulate purely state or local criminal conduct.?


Judge Bye, dissenting, says the law may be applied to offenders whose conduct has no connection to federal interests, and thus the law oversteps the bounds of federal constitutional authority.?Bye says that “necessary?and “proper?are separate requirements.?Bye finds that some of the authority that would be given to Congress if ?666 was upheld is not “proper??Bye makes a big deal out of the fact that at oral argument the government disavowed the Necessary and Proper Clause as a basis for upholding ?666.




Is the statute facially unconstitutional??The most important issue according to the government is stare decisis.?They say that the Supreme Court has already considered the basis of the defendant’s motion to dismiss and has already rejected it.? The district court’s order is purported to conflict with the holding of United States v. Salinas.


In that case, the Supreme Court rejected the argument that ? 666 was not allowed under the Spending Clause without the requirement that government show an effect on federal funds.? The government claims that the only way to distinguish the petitioner’s argument in Salinas and the defendant’s argument here is that while the petitioner in Salinas was asking for the statute to be declared unconstitutional as applied to him in particular, Sabri wants the district court to declare the statute unconstitutional as applied to everyone, including, the government points out, Salinas.? But, the government says, the Supreme Court has already found that the statute is constitution as applied to Salinas.?The government claims that the Supreme Court’s ruling in Salinas committed that Court as well as lower courts to applying ?666 on an as-applied basis.


The government cites some sources for the belief that ?666 is constitutional under the Spending Clause.


One of the judges asks why ?666 cannot be justified under the Necessary and Proper Clause.?The United States attorney says that the fear is that the Necessary and Proper Clause would “prove too much?and potentially run afoul of the Tenth Amendment.?“You’re rejecting a lifeline.?span style='mso-spacerun:yes'>?“No, your honor!?/p>


A judge asks whether forcing Sabri to make an as-applied challenge at the close of the evidence would shift the burden of proving a federal “nexus?or connection from the government to the defendant (who would have to show a lack of a connection).?


Another judge points out that even if the district court is affirmed, the defendant doesn’t get to walk, but rather will have to face the music in Minnesota state court.?The United States attorney says that part of the motivation of Congress in enacting ?666 was that local official might not be trusted if they were involved in the bribery.


“I’d like to save the remainder of my time, if I could.?span style='mso-spacerun:yes'>?“You have no time remaining.?span style='mso-spacerun:yes'>?“I’ll save it anyway.?/p>




The appellee claims that ?666 is the only statute they can find that is purportedly allowed under Congress’s Spending Clause power.?He claims that Congress doesn’t have the power to pass federal criminal statutes under that Clause.?One of the judges says that even though the Constitution doesn’t explicitly authorize statutes like this, there is a strong federal interest in protecting federally funded programs.


The appellee says that the purported authorization of ?666 and other potential federal criminal statutes under the Spending Clause plus the Necessary and Proper Clause would result in a general police power and therefore no limit on what criminal conduct the federal government could regulate, so long as it could claim it was protecting the “general welfare?


The appellee disputes that the section of Salinas cited by the government is really the holding of that case.?The appellee says that the constitutional question was not part of the petition for certiorari and that the issue was not briefed by the parties.


The judge asks about the so-called “cross-cutting conditions?on federal grants like anti-discrimination provisions.?Could ?666 be considered an “anti-corruption?condition??The appellee kind of dodges the issue.


Sabri was a developer in Minnesota.?He was indicted for allegedly bribing a city council member.?Who indicted him??He was indicted by a federal prosecutor.?What federal law is Sabri alleged to have violated 18 U.S.C. ?666.? Are there some funky words in the statute??What does it mean to “corruptly?give something??It can be ?i style='mso-bidi-font-style:normal'>anything of value??It can be given to ?i style='mso-bidi-font-style: normal'>any person??The statute applies not only to state and local government but also Indian tribes.?The statute doesn’t specifically target state officials.?The statute actually also includes non-governmental organizations that receive federal funds.?The statute seems pretty broad!?The size of the bribe could be much lower than the threshold value.?The threshold seems to deal with not the size of the bribe, but the size of the business or transaction that the wrongdoer is seeking to influence.


So the statute’s words seem to say that giving anything of value to any person with the intent of influencing a state agent or agency will be bribery.?The statute seems very broad!?Is Congress trying to grab too much authority?


Congress has written this statute and yet Congress has limited scope of authority.?Congress has the commerce power.?Could this statute be justified under that power??Congress is spending money. ?/span>Could this statute be justified under the Spending Clause?


Does the challenge in this case have to be a facial challenge??Could Sabri have brought an as-applied challenge instead?? How is Sabri using the term “facial challenge?


Why is it that the analysis of South Dakota v. Dole does not apply to this case??Why does this case raise altogether new issues?


We’ll talk about the disagreement of the majority and dissent in regard to the scope of the Necessary and Proper Clause.?As the dissent reads this statute, the federal government could jail someone for bribing a meat inspector even though the city might only get money for its parks.? Is this a correct reading of the statute?


We talked at length about the statute, 18 U.S.C. ?666 yesterday.?Now, let’s focus on the constitutional argument that Sabri is making as to why the statute is unconstitutional.? What part of the Constitution does Sabri cite in support of his point?


Sabri claims that the statute is facially unconstitutional.?How come?? Is it a matter of relatedness between the bribe and federal spending?? Is there an inadequate “jurisdictional hook?in the statute?


What was the “jurisdictional hook?issue in Lopez?? It’s not the “substantial effect?test.?The question is whether the statute addresses, for example, “interstate commerce?and only allows prosecution if the conduct is related to that power of Congress.


?666 does not have a jurisdictional hook of that type.?There is a requirement that the bribe be received by a government or organization that receives a minimum of $10,000 in federal funds.? Why isn’t the $10,000 part of the statute a jurisdictional hook??It’s not a Commerce Clause hook, but that’s not the constitutional peg on which we’re trying to hang this statute.?Could it be that we have a jurisdictional hook but that the hook is insufficient?


We could say that Congress attempted a jurisdictional hook here.?Congress didn’t say that we’re going to punish all acts of bribery against state and local officials.?They limited the statute to agencies that receive a minimum amount of federal funds.?But there may be an insufficient connection between the bribe and the federal interest that’s being protected.


The existence of a jurisdictional hook is a type of connection or nexus.?This case insists that an element of the crime is the fact that an agency received $10,000 in federal funds.?That creates a connection between the conduct to be criminalized and the Spending Clause.? But this connection might not be good enough.


A jurisdictional hook is an element of the statute that is explicitly tied to the source of federal authority.?The presence or absence of a jurisdictional hook is important to the courts?reasoning, but it’s only one factor to be analyzed.


What is the Court going to do??Foley thinks the federal government has four safe votes.?But if cert was granted, it means there are at least four justices interested in reviewing the case.




Why does Sabri insist he’s bringing a “facial?challenge??Sabri wants to challenge the statute “on its face? that is, as written.?He claims that the statute, as written, is improper.?This concept is in contrast to an “as-applied?challenge.?In such a challenge, you claim that the statute isn’t faulty on its face, but it is defective as applied to a certain situation (i.e. my situation).


Sabri doesn’t go with an as-applied challenge because it would be a sure loser for him.?How come??Well, the facts don’t look good for Sabri.


Also, note that this case is coming up on a motion to dismiss an indictment rather than to overturn a conviction.?The district court granted the motion to dismiss the indictment, which is why Sabri never got to trial.?The whole question of “facial? versus “as-applied?challenges has nothing to do with Sabri’s guilt or innocence as it would be proved to a jury.?The bribe is merely “alleged? but for the purposes of this challenge we could accept the facts as given.


But why would an “as-applied?challenge fail??The Court will ask similar questions in the cases of both “facial?and “as-applied?challenges.?For example: Is this statute always constitutional, in each and every instance that it could apply??That’s one extreme.?On the other hand, is there a single instance in which the government could constitutionally bring charges?? There’s the other extreme, and the two extremes define a range in the middle.


Sabri was said to benefit from the federal funds in connection to the bribe that he was giving.?Sabri was trying to get a community development grant, and the grants came from the federal government!?Sabri was trying to get $800,000 in federal funds!? He was going to kick back $80,000 to a councilmember in order to get help getting that cash!


Sabri wants his development project to receive a portion of the federal funds, and his bribe is an effort to try to obtain those funds.?The statute doesn’t require that kind of connection, but given that connection it seems like the prosecution is okay in this case.?Sabri can’t get the indictment dismissed in its entirety if he brings an as-applied challenge.?Sabri’s fact pattern has the kind of nexus that he argues the statute must have in order to be constitutional.?That’s why an as-applied challenge would fail.


Sabri doesn’t claim that his conduct can’t constitutionally be punished by Congress.?Sabri instead claims that the statute Congress wrote to get after him was a badly written statute.


Salinas is referenced in the briefs and the opinion.? That case involved money which the federal government had been giving out to state and local agencies under a prison program.?The court said that the statute applied to that fact pattern and that it was constitutional to apply it in that context.


It seems clear that it is legitimate for Congress to try to stop people from bribing state and local officials to try to get at federal funds.


So it turns out that at least some applications of this statute are valid and permissible.?This statute is not 100% unconstitutional.? It is not necessarily 100% constitutional, but it could also be somewhere in between.


There is a doctrine that says if the statute would be valid as applied to you, then you don’t have standing to sue to protect third party rights.?Sabri tries to get around this by saying that even though he could be punished under a better written statute, there are some people who can’t get punished at all because of the way the statute is written.


Sabri is asking the court to say that just because the statute is written defectively, that makes the statute itself invalid in all its applications, because every time the government punishes under that statute, it punishes in a situation where it doesn’t have to ask about the “nexus??Sabri thus argues that every prosecution under this statute is tainted and invalid.


Donuts and challenges


Say you’re looking at a donut.?Say the whole donut is the scope of what Congress indisputably could punish