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					          Today‟s Lecture:




 Federalism Under The Reagan-Era
           Conservatives




Session                      Topic(s)


 24
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Lecture Organization

 Last Time             This Time
                  The Big Picture


 A Parliamentary System for Federal Power?
-- To some extent, one can make an argument that we no
longer have a section 8 to Article 1 if the Constitution
-- To some extent, you can say that it is been sort of washed
away, and that we really have a kind of parliamentary system
Article I – Powers of Congress

       Section 8             “Do-All Clause”

• power to Regulate Commerce
• power to Spend for General Welfare

• power to Punish Piracy on the High Seas
• power to Regulate the Armed Forces
• Coin and Borrow Money
• Etc., etc,
• Etc., etc,
  Congress has the power to …
                                                  “society”
                                  the General Welfare
  “Congress shall have the Power to regulate Commerce with
  foreign Nations, and among the several States, and with the
  Indian Tribes”




11/11/2010             Copyright, Sean Wilson. 2007             6
               Rehnquist Era Decisions


Introduction

   -- We’ve looked at how political regimes have played
   football with the commerce clause
   -- But something interesting is happening now. Ever since
   Roosevelt, the game of football seems to be over.
   -- To test this theory, let’s see what the ascendancy of
   Nixon and Reagan does to this issue
         United States v. Lopez


Facts:




                                  Question:
                           What are the facts of
                               this case?
   Facts

    -- Congress wants to make gun-free school zones
    -- high school senior was found to be carrying a .38 caliber
    handgun and five bullets at school.
The statute --

“Congress made it a federal offense for any individual
knowingly to possess a firearm at a place the individual
knows, or has reasonable cause to believe, is a school zone.”
(1,000 feet from a school)
                                                   Pro/Con




   Facts

    -- Congress wants to make gun-free school zones
    -- high school senior was found to be carrying a .38 caliber
    handgun and five bullets at school.
The statute --

“Congress made it a federal offense for any individual
knowingly to possess a firearm at a place the individual
                                             a school
knows, or has reasonable cause to believe, isQuestion:zone.”
(1,000 feet from a school)
                                       What does the rule of
                                             law say?
Everyone
 Votes!




           1.   The federal government
                should win. The feds can    19
                make sure there are no guns
                in school.
           2.   The feds should NOT win.     8
                They are not allowed to
                outlaw guns in school
               Rehnquist Era Decisions


Holding:
    -- Held, this does NOT substantially affect commerce
 New Rule of Law:
    -- you can only use aggregation logic for economic
    transactions
       (growing wheat was an economic behavior)
       (selling food at restaurants is an economic behavior)
   Loophole in the case:
    -- Congress didn’t make any findings that the statute would
    “affect commerce” [explain this ritual!]
         United States v. Morrison


Facts:




                                 Question:
                            What are the facts of
                                this case?
U.S. v. Morrison

 Facts
    Violence Against Women’s Act
    allows women to sue their attackers in federal court
   (you can already sue in state court)
    Congressional findings: discrimination against women hurt
   their travel (travel logic)
                                          Question:
                                     What does the Court
                                           hold?
U.S. v. Morrison

  Holding
   -- This is not an economic activity
   -- You cannot aggregate it
   -- Congressional findings are not enough!
 U.S. v. Morrison

   Holding
Not an economic activity --
    -- This is not an economic activity
“Gender-Motivatedaggregate it
     -- You cannot crimes of violence are not, in any sense of
the phrase, economic activity.” …
     -- Congressional findings are not enough!
“While we need not adopt a categorical rule against
aggregating the effects of any non-economic activity in order
to decide these cases, thus far in our Nation‟s history our
cases have upheld Commerce Clause regulation of intrastate
activity only where that activity is economic in nature.”
                             Arlen Specter

U.S. v. Morrison             1. Questioning John Roberts
                                about this
  Holding
   -- This is not an economic activity
The statute --
   -- You cannot aggregate it
Simply because Congress may conclude that a particular
   -- Congressional affects interstate commerce does not
activity substantiallyfindings are not enough!
necessarily make it so. … Congress‟ findings are
substantially weakened by the fact that they rely so heavily
on a method of reasoning that we have already rejected as
unworkable if we are to maintain the Constitution‟s
enumeration of powers.”
U.S. v. Morrison

  Breyer‟s dissent
   -- Breyer’s dissent in the case is somewhat revealing.
   -- He argues that the Court is making a major political
   mistake …
U.S. v. Morrison
Breyer -- dissent
 Breyer‟s
    -- Breyer’s dissent in the case is somewhat revealing.
“Since adherence to formalistically-contrived confines of the
    -- He argues that the Court is making a major the judicial
commerce power in large measure provoked political
crisis of 1937, one might reasonably
crisis of 1937, one might reasonably have doubted that
    mistake …
                                       again toy
members of the is court would ever again toy with a return to
the days before NLRB, which brought the earlier and nearly
disastrous experiment an end. And yet today‟s
disastrous experiment toto anend. And yet today‟s decision
can only be seen as a step toward recapturing the prior
mistakes.”
mistakes.”
    Question:                          Question:

What is he talking        Is his characterization correct? Do
    about?                 you think this is something that is
                          dangerous for the Court to do, and
   U.S. v. Morrison                    if so, why?

   Breyer -- dissent
    Breyer‟s
       -- Breyer’s dissent in the case is somewhat revealing.
   “Since adherence to formalistically-contrived confines of the
       -- He argues that the Court is making a major the judicial
   commerce power in large measure provoked political
   crisis of 1937, one might reasonably
   crisis of 1937, one might reasonably have doubted that
       mistake …
                                          again toy
   members of the is court would ever again toy with a return to
   the days before NLRB, which brought the earlier and nearly
   disastrous experiment an end. And yet today‟s
   disastrous experiment toto anend. And yet today‟s decision
   can only be seen as a step toward recapturing the prior
   mistakes.”
   mistakes.”
               Rehnquist Era Decisions

Breyer (continues) --
 U.S. v. Morrison
“We live in a nation knit together by two centuries of scientific,
   Breyer‟s dissent
technological, commercial and environmental change. Those
     -- Breyer’s dissent in the case that virtually every kind of
changes, taken together, mean is somewhat revealing.
activity, no matter how local, genuinely can affect commerce or
     -- He argues that the Court is making a major political
its conditions ... – at least when considered in the aggregate.
     mistake …
And that fact makes it close to impossible for courts to develop
meaningful subject ... categories that would exclude some
                                      commerce clause. ... Since
kinds of local activities from [the] commerce clause. ... Since
judges cannot change the world, Congress, not the courts,
judges cannot change the world, Congress,              the courts,
must remain primarily responsible for striking the
must remain primarily responsible for striking the appropriate
appropriate state/federal balance.”
state/federal balance.”
           Question:
                                              Question:
    What is he saying here?
               Rehnquist
     Can you relate this to Era Decisions Is he right?
    Hamilton in some way?
Breyer (continues) --
 U.S. v. Morrison
“We live in a nation knit together by two centuries of scientific,
   Breyer‟s dissent
technological, commercial and environmental change. Those
     -- Breyer’s dissent in the case that virtually every kind of
changes, taken together, mean is somewhat revealing.
activity, no matter how local, genuinely can affect commerce or
     -- He argues that the Court is making a major political
its conditions ... – at least when considered in the aggregate.
     mistake …
And that fact makes it close to impossible for courts to develop
meaningful subject ... categories that would exclude some
                                      commerce clause. ... Since
kinds of local activities from [the] commerce clause. ... Since
judges cannot change the world, Congress, not the courts,
judges cannot change the world, Congress,              the courts,
must remain primarily responsible for striking the
must remain primarily responsible for striking the appropriate
appropriate state/federal balance.”
state/federal balance.”
Everyone
 Votes!




           1.   The conservatives were
                right. The Court should have 10
                struck down the Violence
                Against Women Act.
           2.   The conservatives were       18
                wrong. The Court should
                have upheld the Violence
                Against Women Act
         Gonzalez v. Raich


Facts:




                             Question:
                       What are the facts of
                           this case?
Gonzalez v. Raich

 Facts
   -- California passed a law that allowed patients to obtain
   medical marijuana
    -- Raich and Monson were prescribed marijuana to relieve
   some of their symptoms
   -- Tiny problem :Federal law prohibits drug distribution
   -- The plants were confiscated by the feds
   -- The pot heads sued to recover them
                                                  Pro/Con

                                     Question:

Gonzalez v. Raich              What does the rule of
                                    law say?
 Facts
   -- California passed a law that allowed patients to obtain
   medical marijuana
    -- Raich and Monson were prescribed marijuana to relieve
   some of their symptoms
   -- Tiny problem :Federal law prohibits drug distribution
   -- The plants were confiscated by the feds
   -- The pot heads sued to recover them
Gonzalez v. Raich

 Arguments
   -- “the use of this stuff in my own house is local”
   -- “everything that is used to manufacture the pot comes
   exclusively from California”



       Question:
  What does the Court
 hold? What is the new
      rule of rule?
                                 (explain scrutiny to them)



Gonzalez v. Raich

  Major Holding
   -- “Rational Basis Test” (extreme deference)

New Test?

“In assessing the scope of Congress‟ authority under the
Commerce Clause, we stress that the task before us is a
modest one. We need not determine whether respondents‟
activities, taken in the aggregate, substantially affect
interstate commerce in fact, but only whether a „rational
basis‟ exists for so concluding.” [explain rational basis test]
Gonzalez v. Raich

 Other points of interest:
   -- This case is just like Wickard v. Filburn
   -- This statute is more comprehensive than the others
      (drug laws regulate prescription medicines, “schedule II”
      substances, etc. etc.)
      (so if you make a comprehensive firearm statute, that
      will be ok?)
   (This is economic activity, the gun statute was not??)
       Gonzalez v. Raich

        Ultimate Point
          -- We are back (once again) to Congress being able to do
          whatever it wants so long as it has a “Rational Basis” for
          saying that something affects commerce
          -- Rational basis = extreme deference
          -- aggregation logic (and omission logic) can be used for
          these types of statutes


Time
            Question:
Why is the Rehnquist Court doing
  this? Why did it back away?

Gonzalez v. Raich
          Question:
 Is the Court even capable of
  Ultimate Point
 putting toothpaste back in a
   -- We are back (once again) to Congress being able to do
             tube?
   whatever it wants so long as it has a “Rational Basis” for
   saying that something affects commerce
           Question:
   -- Rational basis = extreme deference
 What does this case say about
    relationship of constitutional
the-- aggregation logic (and omission logic) can be used for
    to both politics and society?
lawthese types of statutes
Everyone
 Votes!




           1.   Raich was correctly decided.
                Get the Court out of the     14
                business of nit-picking over
                what Section 8 says.
           2.   Raich was wrong. Congress 13
                isn‟t allowed to outlaw
                marijuana. Section-8 needs
                to be literally read.

				
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