Con Law Exam for ACS

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					11744                                   *11744-F.-9-1*                                       11744
Institution Harvard Law School                            Course / Session Forbath - Con Law-14th Amend
Control Code OPEN LAPTOP                                                                     Instructor NA
Extegrity Exam4 >                          11744-F.-9-1                               Section . Page 1 of 9


Institution Harvard Law School
Printed on June 19, 2009

Course Forbath - Con Law-14th Amend

Instructor NA

Control Code OPEN LAPTOP
Grade: A

Exam ID 11744

Word Count(s)

Section 1 815
Section 2 834
Section 3 830
11744                                       *11744-F.-9-2*                                        11744
Institution Harvard Law School                                 Course / Session Forbath - Con Law-14th Amend
Control Code OPEN LAPTOP                                                                          Instructor NA
Extegrity Exam4 >                               11744-F.-9-2                               Section . Page 2 of 9



       Under Lopez, Congress may regulate the channels of interstate commerce, the

instrumentalities of interstate commerce, and activities having a substantial relation to interstate

commerce (i.e., those activities that substantially affect interstate commerce). Since the PHT

does not move in interstate commerce and is not a channel of interstate commerce, the application

of the ESA to the PHT rests on the third category. The first question is whether the regulated

activity is "economic." Under Morrison, Congress's findings of the economic importance of

biodiversity are not sufficient by themselves for the courts to find that an activity is economic. If

it is, effects can be aggregated to get to "substantial." Under Raich, "economic" activities appear

to be those activities that, in some way, affect markets (including those activities involving the
"production, distribution, and consumption of commodities"). Since there is no market for the

toad, the regulated activity (degrading the PHT's habitat) is probably not economic. Another

possibility is that Pequod's development of his land may be economic activity, but the ESA is
concerned with degradations to habitat generally, and does not set up a regulatory scheme for all

developments of land.

       Another route that Raich provides is that the government may regulate "purely intrastate
activity that is not itself 'commercial' ... if it concludes that failure to regulate that class of activity

would undercut the regulation of the interstate market in that commodity," but this probably

doesn't save this application of the ESA. In Raich (marijuana), as in Wickard (wheat), there was

an interstate market for the commodity being regulated. If the regulation was aimed at a clearly

economic activity, rational basis review would apply and the regulation would almost certainly

survive. However, the defendants in the instant suit have conceded that there is no such market
for the PHT. The broader scheme might be "enhancing biodiversity," which Congress has found

to have significant economic consequences, and which might involve "market goods" in the form

of valuable genetic material. However, under Raich the particular activity being regulated must
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Institution Harvard Law School                               Course / Session Forbath - Con Law-14th Amend
Control Code OPEN LAPTOP                                                                        Instructor NA
Extegrity Exam4 >                             11744-F.-9-3                               Section . Page 3 of 9


be "essential" to the broader regulatory scheme, in the sense that not regulating it would undercut

this scheme. Since most species protected by the ESA probably have habitats spanning more than

one state, significant biodiversity can likely be maintained without applying the ESA to species

like the PHT, so this regulation doesn't appear to be "essential" to the broader regulatory scheme.

MFWS could argue that the loss of a single species can have significant economic impact by

spilling over into an ecosystem as a whole, saying that the loss of the PHT would impact

ecosystems outside of Maine, but it has not advanced this argument and under Lopez the

possibility that there is some rational basis for Congress to regulate an activity under the

Commerce Clause is not itself sufficient (but see Hodel). The FWS has argued that studying the

toad might lead to knowledge that would aid the scientific understanding of longevity, but this

appears to be an attenuated chain of reasoning that is disfavored under Morrison. Another
possible rationale for Congressional regulation is that scientists (presumably at least some of

them from out of state) have visited Penobscot County to study the PHT so the FWS might argue

that its regulation is allowed under Katzenbach and Heart of Atlanta. However, unlike these
cases there is no jurisdictional trigger in the ESA, and it the PHT certainly isn't per se involved in

interstate commerce. Five scientists doesn't quite make a tourism industry. I think that this

application of the ESA is not authorized by the Commerce Clause.

       Pequod's second argument: Pequod will also argue that the requirement of the ESA that

state agencies enforce it violates the 10th Amendment. Under New York, the federal government

may not commandeer state government to implement state policies. Unlike New York, there is

not even a choice between two coercive alternatives; there is no choice at all. While the act does

not require state legislatures to enact any measures, under Printz, the commandeering of state
executive branch officials is also prohibited, and there is a flat prohibition of commandeering

state officials. This particular statute also raises the concerns of a loss of accountability raised in

New York--when the state agency is enforcing federal decisions about how to protect certain
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Institution Harvard Law School                                 Course / Session Forbath - Con Law-14th Amend
Control Code OPEN LAPTOP                                                                          Instructor NA
Extegrity Exam4 >                               11744-F.-9-4                               Section . Page 4 of 9


endangered species, the officials of Maine may bear the brunt of public disapproval for favoring

the PHT over development rather than federal officials. Section 3 does not save the act, because

this goes beyond conditional spending--the act would be fine if it offered money to states that

agreed to implement the ESA, but simply providing the money and telling states that they must

enforce the ESA violates the 10th amendment. The regulation is not like that in Garcia because it

isn't a general law applicable to state and private actors alike, but instead tells state officials what

to do.








         The scholar's discussion of the two modes of authority helpfully illuminates an important

tension in constitutional law, although it should recognize greater complexity within the two

modes of interpretation and greater continuity between them. Furthermore, the scholar's

normative vision should recognize that there are some situations in which it is appropriate for the

Court to play the judicial supremacist card.

         First, the judicial supremacy (JS) mode is not as unitary as the scholar describes. It is not
clear from Marshall's pronouncement in Marbury that "it is emphatically the province of the

judiciary to say what the law is" was a full scale assertion of the unique power of the federal

judiciary to interpret the constitution rather than saying that the Courts are players in the
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Institution Harvard Law School                               Course / Session Forbath - Con Law-14th Amend
Control Code OPEN LAPTOP                                                                        Instructor NA
Extegrity Exam4 >                             11744-F.-9-5                               Section . Page 5 of 9


interpretation of the constitution (the province of the judiciary but of others as well). Indeed, the

Court's decision to allow the repeal of the circuit court act in Stuart and its refusal to strike down

any further federal statutes for the duration of Marshall's tenure suggests that JS was not fully

developed as a mode of constitutional though at this time. Rather, JS truly came to life only in

the 20th century (with an earlier, ill fated, glimmer in Dred Scott) with the strong judicial

protection of economic rights through its commerce clause and due process jurisprudence and

later with the expansive equal protection and fundamental rights/interests jurisprudence of the

Warren Court and the Court's aggressive move to try to take intensely politicized issues out of

politics (Bush v. Gore, Casey).

       The dialogical mode (D) better describes most aspects of constitutional history than does

JS. For instance, in Roe the court attempted to provide a judicial resolution of state regulation of
abortion in the JS mode and provoked a profound (and, to the justices, unexpected) backlash.

Rather then settling the issue, it provided campaign fodder for Reagan and every republican

presidential candidate since. The extreme pressure on the Court led it to revisit and rewrite Roe
in Casey, asserting that "liberty knows no refuge in a jurisprudence of doubt" while leaving its

abortion jurisprudence very much in doubt. It seems highly unlikely that Casey provides a final

resolution to the abortion debate, particularly in light of recent decisions like Carhart. The
assertion of JS hasn't worked in the field of abortion, and the court is forced into a dialogic role,

playing with movements and other branches of the government.

       The court has been more successful when it has worked to prod political actors and has

relied on more incremental decisions. This occurred in its early desegregation jurisprudence

(where it pronounced the unconstitutionality of segregation in Brown but waited for Eisenhower

to back it up with the 101st airborne before pronouncing that the states absolutely had to comply
in Cooper and waiting until Congress backed it up with the Civil Rights Act of 1964 and DOJ

involvement in desegregation before it ordered meaningful desegregation in Green (1968) and

Swann (1971). Indeed, it is the assertion of JS in Croson (denying state governments the power
11744                                         *11744-F.-9-6*                                      11744
Institution Harvard Law School                                 Course / Session Forbath - Con Law-14th Amend
Control Code OPEN LAPTOP                                                                          Instructor NA
Extegrity Exam4 >                               11744-F.-9-6                               Section . Page 6 of 9


to enact broad remedial measures in the context of race) and Adarand (severely limiting

Congress's powers to remedy discrimination) and Parents Involved (totally constitutionalizing the

field by proclaiming that once the judiciary says district is unitary, formerly required remedial

measures may immediately become unconstitutional) that have most hampered the fulfillment of

at least half of Harlan's vision in Plessy (caste).

       An important caveat, however, is that assertions of JS may play an important role within D.

So, the Court's assertion in Cooper of JS strengthened Eisenhower's hand in Little Rock and

Congress's move to provide statutes. By asserting JS, the Court supported the development of

minority rights poorly protected in the political process by prodding the political process along.

Precisely as envisioned by Federalist #51, the ambition of the courts may counteract the ambition

of other state and federal actors--it is not necessarily that the court should not assert JS as that it
should understand the political stakes of such assertions.

       Finally, there may be particular situations where assertions of strong judicial supremacy are

appropriate and can further the process of D, particularly in recent gay marriage jurisprudence.
Baker gave the legislature a limited range of options (civil unions or marriage) that provided a

foothold for legal recognition of same-sex intimate relationships. If the Goodridge court had

gone no further than Baker, it is hard to imagine that the political process could have been pushed
toward this recognition of minority rights that appears to be materializing across the country

(indicated by shifting opinion polls, court decisions in Iowa and Connecticut and legislation

throughout New England). Importantly, the Goodridge assertion of JS came in the context of a

state supreme court, enabling the legislatures, courts, and voters of other states to engage with the

assertions of JS in other states, and in this sense is rather unlike federal assertions of JS which

have generally tried to cut off debate altogether.


11744                                         *11744-F.-9-7*                                      11744
Institution Harvard Law School                                 Course / Session Forbath - Con Law-14th Amend
Control Code OPEN LAPTOP                                                                          Instructor NA
Extegrity Exam4 >                               11744-F.-9-7                               Section . Page 7 of 9








       The use of the 14th Amendment to block expression of concerns about caste is pernicious

in that it is faithful only to half of Harlan's vision, but describing it as fully unfaithful to the 14th

Amendment, Brown, and Harlan's Plessy dissent goes to far. Rather, concerns with the racial
classification of individuals have been an important part of the equal protection jurisprudence

since Plessy, and the Court has never clearly resolved how to balance these concerns with the

goal of abolishing caste. The court's decisions in the past thirty years may be wrong, and some,
such as Robert's opinion in Parents Involved may go so far as to be unfaithful, but some of the

court's decisions that condemn the wrongs of racial classification evince a strong desire to work

through a difficult conflict embedded in the 14th amendment that has never been fully resolved.
       While the history of the 14th Amendment leaves the precise intentions of its framers

uncertain, it contains the seeds of both hostility to individual classification (its language

proclaiming broadly that the States shall deny "any person within its jurisdiction the equal

protection of laws"). Further, Harlan's dissent in Plessy does not resolve the issue of whether

concerns of caste are more important than concerns of individual rights, proclaiming both that

"[t]here is no caste here" and that "[o]ur constitution is is colorblind and neither knows nor
tolerates classes among citizens." In the 20th century, it was the combination of the

pronouncement in McCabe that "the essence of the constitutional right [to equal protection of the

laws] is that it is a personal one" in combination with the Court's decisions in Gains and Sweatt
11744                                     *11744-F.-9-8*                                        11744
Institution Harvard Law School                               Course / Session Forbath - Con Law-14th Amend
Control Code OPEN LAPTOP                                                                        Instructor NA
Extegrity Exam4 >                             11744-F.-9-8                               Section . Page 8 of 9


that pushed toward the result in Brown--the very fact that the rights provided by the 14th

amendment are personal is why separate but equal could not possibly stand. And it is not clear

what direction Brown required, whether it provided a right to physical integration or merely to

legal integration. Brown II intimated the latter, but it wasn't until Green that it was clear the Court

was moving this direction, and even Green left undecided the issue of remedial action where there

was past discrimination against a particular group or whether real, substantive integration is

required, and even Swann remained ambiguous. Indeed, it has never been clear from the Court's

jurisprudence how great its commitment to substantive integration is or can be under the 14th


       We must read the Court's recent race jurisprudence in light of this history. On occasion, as

when Roberts declared in Parents Involved that "the way to stop discrimination on the basis of
race is to stop discriminating on the basis of race," the Court has seemed to abandon any

commitment to eliminating caste and providing for meaningful social integration. However,

sometimes the Court's jurisprudence that has relied on concerns about classification to strike
down desegregation programs has attempted to remain faithful to Harlan and to Brown.

       Kennedy, particularly, while willing in many cases to strike down racial classifications that

benefit minorities has attempted to draw some line that permits some government actions to
counteract class while also protecting individuals from being classified on the basis of their race.

Particularly, in his controlling concurrence in Parents Involved, Kennedy acknowledges that "in

the real world" the constitution cannot always be colorblind because of the continuing problem of

caste and segregation. At the same time, he suggests a deep discomfort about the harm done to

individuals when they are classified on the basis of race, calling the Seattle and Louisville plans

"crude measures" that "threaten to reduce children to racial chits valued and traded according to
one school's supply and another's demand." Kennedy is not unconcerned with the problem of

confronting caste--rather, it suggests that he sees measures to respond to the problem of caste as

well as measures to avoid causing dignitary harm to individuals by denying them benefits based
11744                                      *11744-F.-9-9*                                       11744
Institution Harvard Law School                               Course / Session Forbath - Con Law-14th Amend
Control Code OPEN LAPTOP                                                                        Instructor NA
Extegrity Exam4 >                             11744-F.-9-9                               Section . Page 9 of 9


on a feature of their identity that they cannot control, their race. Hence his suggestion that race-

conscious measures that "do not rely on differential treatment based on individual classifications"

would be more likely to pass constitutional scrutiny to allow broadly race conscious measures as

long as they do not affect the rights of individuals on the basis of racial classification, as well as

his intimation in the Ricci oral arguments that he is concerned with the state taking away vested

legal rights from individuals because of a race conscious decision. Ultimately, this may not make

any sense--race-conscious decisions further removed from individuals may end up re-jiggering

the rights of particular individuals just as much as more individualized decisions (e.g., if school

boundaries are drawn sensitive to race, that will affect which school you attend just as much as

the Seattle system), but I do not think it is an insincere or unfaithful attempt on Kennedy's part to

reconcile two competing and often conflicting principles found in Harlan's Plessy dissent and
throuhgout 20th century desegregation jurisprudence.

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