Gowder - Constitutional Law I
February 15, 2016
Outline Assignment 1
Case Briefs:
U.S. Term Limits, Inc. v. Thornton (U.S. 1995)
. Facts
a.
Arkansas amended its constitution; prohibited candidates from running for reelection if they had already served
i.
House: 3 terms
ii.
Senate: 2 terms
. Procedural History
. The Arkansas Supreme Court held that the amendment violated the Constitution.
. Holding
a.
In the absence of a properly passed constitutional amendment providing
otherwise, individual states may not create their own qualifications for Congress.
. Main Arguments
a.
Majority
. Allowing states to adopt their own qualifications would be inconsistent
with the Framers’ vision of a uniform National Legislature
i.
The Tenth Amendment protects original powers (i.e., powers states had
under the Articles of Confederation) that the Framers reserved to the
states. It could not reserve powers that did not exist before the creation of
the Constitution such as the power to define requirements for
congressional candidates.
b. Concurring (Kennedy)
. Render unto the federal government what is the federal government’s and
unto the state governments what is the state’s.
c.
Dissent (Thomas, Rehnquist, O’Connor, Scalia)
. Default rule: where the Constitution is silent, it raises no bar to action by
the States or the people.
i.
A proper interpretation of the Tenth Amendment is this: “…all powers as
to which the Constitution does not speak (whether expressly or by
necessary implication) are ‘reserved’ to the state level.”
United States v. Comstock (U.S. 2010)
I.
Facts
a.
Congress enacted a statute allowing federal district courts to order the civil
commitment of mentally ill, sexually dangerous federal prisoners beyond the dates
they would otherwise be released (18 U.S.C. § 4248).
b. Comstock must have challenged the constitutionality of it (the edited opinion
doesn’t really say).
I.
Procedural History
. N/A in the edited opinion.
II.
Holding
a.
The Constitution grants Congress legislative power sufficient to enact § 4248.
III.
Main Arguments
a.
Majority
.
Under the Necessary and Proper Clause, the statute constitutes a means
that is rationally related to the implementation of a constitutionally
enumerated power (though the court did not ID which).
I.
It just said that in order to carry into execution its enumerated
powers, Congress has the power to criminalize conduct, imprison
individuals who engage in criminal conduct, and enact laws
governing prisons and prisoners.
II.
In other words, the statute is rationally related to implied powers
that are connected to enumerated powers.
i.
The statute is merely a modest addition to a set of federal prison-related
mental-health statutes that have existed since 1855.
ii.
The people affected by the law are already in custody and “the Federal
Government is custodian of its prisoners and has the constitutional power
to act in order to protect nearby (and other) communities from the danger
federal prisoners may pose.
iii.
The statute properly accounts for state interests by requiring the assistance
a little iffy to say it accounts for state
interests by commandeering state
of state personnel.
employees... if it accounts for state
iv.
The links to an enumerated power discussed above aren’t too attenuated;
interests that can't be why
this isn’t Congress exercising a general policing power.
Actually, what Breyer says is that
it
b. Concurring (Kennedy and Alito)
accounts for state interests because the
. A rational basis test that requires a tangible link to an enumerated power
feds offer the states a chance to take
should be applied.
custody and encourage them to do so,
that is, give states a chance to choose
c.
Concurring (Just Alito)
to exercise their power.
Why? Because it protects people from a danger
. This statute was necessary and proper.
caused by Congress's other exercises of its power.
d. Dissent
. The Government did not identify a specific enumerated power(s) as a
constitutional predicate for the statute and non are readily discernable, so
Congress should not have enacted this statute.
Class Overview:
Opening: Announcement that Justice Scalia is dead.
- “Things might get very interesting.”
- Until Obama or whoever succeeds him nominates a replacement and the Senate confirms
it, SCOTUS will not likely decide very controversial cases.
Kagan is recused, so there may still be a
o Possible exception: latest of Fisher v. Texas cases because
4-3 majority
- If Obama does manage to get anyone through, it’ll probably someone politically
moderate.
o Whoever Obama appoints will probably be the median vote, which will take us
away from “Kennedy-land.”
- The Roberts Court has made some significant changes; a new justice might be effective at
rolling things back.
o Case in point: NFIB v. Sebilius
- “I have no good predictions.” Gowder’s Strategy Ideas:
o Obama will appoint a moderate, someone slightly to the left of Kennedy.
o Obama will try to make the Senate look really bad.
o Gowder’s “slightly more wicked strategy”: use a very controversial recess
appointment – someone very far left – to force the Senate’s hand to appoint a
permanent, more acceptable appointment.
§ Might create some unfortunate electoral results for the Democrats, though.
Administrative Notes (Announcements):
- Revised reading schedule. It’s on the webpage.
o Slowed down the casebook reading. Eliminated a bonus week.
o Added NFIB v. Sebilius in its entirety.
§ Worth tackling an epic SCOTUS case. Careful reading of the entire thing
not expected.
§ Roadmap of the slip opinion on the website.
- Wednesday’s class is cancelled this week. Replacement will be on Thursday, February
25. Look for email to come.
- Canvas Site to be used more. Upload outlines to the “Assignment” dropbox.
Quick & Dirty Introduction to NFIB v. Sebilius (Lecture) – “Keep this in mind as we finish up
this week and start next week’s cases.”
- Affordable Care Act (ACA)
o “I want you to think about the ACA as we explore federalism.”
o What the statute provides (three key prongs):
§ “Radical” expansion of coverage
• Community rating – in a locality, everybody should be offered the
same rates for insurance.
• Guaranteed issue – everyone should be offered insurance; people
shouldn’t be turned down for anything.
§ Individual mandate
§ Subsidies
• Medicaid expansion
• Subsidized exchanges
o Problems Foreseen and Addressed by the ACA:
§ Expansion of coverage could lead to insurance companies losing money or
prices going up for everybody.
• Subsidies designed to help here.
§ Adverse selection problem:
• Captain America: “I’m healthy, I don’t need to pay a lot for health
insurance.” Drops out.
• Rates go up.
• Captain Canada: “Well, I’m not quite as healthy, but I don’t want
to pay higher rates.” Drops out.
• Rates continue to go up. “Death spiral” continues.
• Individual mandate designed to help here.
o No one can drop out.
o Helps prevent the death spiral.
Case Coverage (Whole Class):
U.S. Term Limits, Inc. v. Thornton
- Why isn’t term limits a political question?
o Student: “Not left up to gov. discretion.”
o Gowder: “Isn’t it, though? Article I § 5?”
- Not a ruling on the substantive issue. Ct. fundamentally protecting the system of
enumerated powers (representation reinforcement).
- States don’t get to add qualifications for Members of Congress. If anyone does, though
it’s doubtful they do, it is Congress.
- Generally: When separation of powers/federalism at issue, not usually a political question
issue.
That is, the Court might not be willing to resolve the substantive issue of what the decision should
be, but often will resolve the issue of which branch/level of government other than the Court gets to
decide---is this something for Congress ir the president? Congress or the states?
U.S. v. Comstock
- Issue: Congress passed a law allowing the federal government to civilly commit mentally
ill, sexually dangerous federal prisoners beyond the dates they would otherwise be
released.
- Gowder: “Why federal power here?”
- Holding: Fed. Gov. has the authority to enact this law.
o Congress has broad authority under the N & P Clause to do anything
convenient/useful to carry out the implied power to criminalize actions that
violate laws Congress passed pursuant to their enumerated powers.
o Essentially: Congress can use a justification upon a justification.
- Justice Alito: Here’s why it’s necessary and proper: Congress has created a danger to the
public; it created federal sex crimes. Difficult for the state to civilly commit sex
^federal
offenders, so Congress gets to create its own system to do it.
- Justice Breyer’s five-factor “N & P Clause Test” is not actually a test. Rather, he
enumerated five things the courts should consider when interpreting the N & P Clause.
Small Group Discussion:
- Does Congress have the power to create federal crimes of sexual violence?
- We discussed which enumerated power Congress would have acted under. Had trouble
finding one. One of us talked about maybe hooking the power to regulating the armed
forces to sex crimes (e.g., U.S. v. Kebodeaux in supplement). Another talked about how
states had policing power generally and that the federal government should not.
Back to Class Discussion:
- One student: equal protection of the law? If one state’s legislature doesn’t properly take
care of its sex offenders, the federal government should have the authority to help out.
o General idea: uniform laws might justify
- Another: connecting the N & P Clause with the Commerce Clause? (e.g., criminalizing
child pornography transportation)
Mann
o A lot of the federal sex crime laws are commercial in nature (e.g., “Old Man Act”
– prohibited a man from carrying a woman across state lines for immoral
purposes.)
End of our Introduction to Federalism. Starting tomorrow, we’ll move on to the Commerce
Clause (a big federalism issue).
Normative Idea Lecture:
- Why federalism?
o The Framers thought that federalism would be a protection of individual liberty.
They felt that way about separation of powers, too.
§ Part of the theory: put the two levels of government in competition with
each other and it would give “double security” to the rights of the people
(Federalist 55).
o Laboratories of Democracy argument – states are better enabled to experiment
with novel policies.
§ Tricky to avoid citizens of one state carrying items (e.g., marijuana) from
states where it’s legal to states where its illegal.
o Policies can be tailored to local constituencies
Not quite *that* broad...
Outline(for(February(15,(2016(
(
Case:&U.S.&Term&Limits&Inc.&v.&Thorton&(1995)&p.(90(
(
Facts/PH:(Arkansas(passes(a(bill(attempting(to(curtail(long@term(incumbencies(in(
Congress(by(limiting(the(amount(of(terms(a(congressperson(may(hold.(
(
Arkansas(Law(prohibits(a(candidate(from(appearing(on(gen.(ballot(if(they(are(a…(
1. U.S.(Senator(who(has(already(served(TWO(terms(
2. U.S.(Representative(who(has(already(served(THREE(terms(
3. …Either(consecutively(or(otherwise(
(
Arkansas(Supreme(Court(previously(ruled(the(Ark.(Statute(was(
UNCONSTITUTIONAL(
(
Holding:((Individual(states(DO(NOT(have(the(power(to(alter(U.S.(Congress(term(limits(
(
Rationale:(
1. Power&to&add&qualifications&is&not&within&“original&powers”&of&the&States:(
a. Power(not(included(in(10th(Am.((see(below)(
b. EVEN(IF(States(possessed(some(“original”(power(to(alter(
qualifications,(INTENT(of(FRAMERS(indicates(Constitutions(is(
EXCLUSIVE(source(of(these(qualifications(
2. 10th&Amendment&only&reserves&powers&held&before&passage&of&Const.(
a. Power(to(alter(U.S.(term(limits(was(not(originally(held(under(Articles(
of(Confederation!(thus(not(reserved(by(States(when(Const.(passed.(
i. Deeper(rationale:(Story,(J.:(“states(can(exercise(no(powers,(
whatsoever,(which(exclusively(spring(out(of(the(existence(of(
the(national(government,(which(the(constitution(does(not(
delegate(to(them.”(
ii. Framers(envisioned(a(uniform(system(of(gov.!(can’t(be(altered(
by(States(
iii. (Political(Theory):(Congress(is(NOT(made(of(delegates(of(
individual(States,(but(of(representatives(of(the(U.S.(citizenry(as(
a(whole.((Thus,(States(have(authority(to(alter(rights(of(other(
citizens.(
(
Class&Discussion:&&
1. Who(has(the(power(to(alter(term(limits?((
a. Arguably(no(branch(of(government(does,(although(there(is(an(
argument(to(be(made((as(is(made(by(J.(Stevens)(that(CONGRESS(via(Art(
1,(§5(of(Constitution(holds(this(power.(
2. This(seems(like(a(political(question;(why(was(it(heard(by(SCOTUS?(
a. Gowder:(typically,(the(court(will(resolve(political(questions(between(
the(branches(and(questions(of(their(powers.(
&
Case:&U.S.&v.&Comstock&(2010)&&
(
Facts/PH:2Fed.(Statute(§4248(allows(Fed(government(to(extend(civil(charges(to(
convicts(that(are(either(mentally(ill(or(“sexually(dangerous”(beyond(their(original(
federal(sentence.(((
(
Holding:(Congress(DOES(have(the(power(to(enact(§4248(
(
Rationale:(
1. Necessary(and(Proper(Clause(“grants(broad(authority(to(enact(federal(
legislation([that(is](‘convenient,(or(useful’(or(‘conducive’(to(the(authority’s(
beneficially(exercise”(
2. WHAT(enumerated(power(is(the(N&P(clause(expounding?(
a. Isn’t(really(one…(just(an(implied(power(to(imprison,(enact(laws(
But the imprisonment itself presumably was in pursuance of some
governing(prisoners.(
enumerated power (probably a commerce clause thing, honestly)
3. The(power(above(is(“rationally(related”(to(the(quasi@enumerated((non@
enumerated)(power.(
4. 5(Factor(Test(is(garbage:(mainly(general(suggestions(for(thought…don’t(put(
this(to(use(on(the(exam(
(
Class&discussion:(
(
• This(is(a(very(broad(interpretation(of(N&P.((Strange(for(its(place(in(history.(
• Gowder(Question:(“The(predicate(question(to(Comstock(is:(Does(Congress(
have(the(power(to(create(federal(sex(crimes?”(
o !(Small(group(discussion(
o Possible(Reasons(why(Congress(should(have(the(power(
" Uniformity(of(criminal(law(
• Most(of(these(federal(type(crimes(fall(under(COMMERCE(CLAUSE(rationale(
• The(Kebodeaux(case((Should(member(of(military(have(to(register(for(Federal(
sex(offender(list,(despite(the(statute’s(enactment(after(his(offense?)(
o Definite(Fed(power(to(regulate(this(matter(
" Why?(
• This(case(is(about(Military(Justice:(clearly(N&P(to(
Congress’(clearly(enumerated(power(to(provide(for(
clearly enumerated power to regulate the
defense.( And
armed forces
• Some&notes&about&Federalism,&as&we&leave&the&topic:&
o Federalism(was,(at(one(time,(supposed(to(be(a(major(protection(
against(infringements(upon(individual(liberties((Fed(#51)&
o Rationale(for(States(rights:&
" States(are(the(“laboratories”(for(political(experimentation(
(Brandeis)&
" State(power(allows(for(a(closer(“tailoring”(of(law(to(the(needs(of(
the(local(citizenry&
o Rationale(for(strong(central(government:&
"
"
Uniformity(of(law&
Protects(against(pure(and(unbridled(local(selfishness:(
(example:(states(that(discriminate(against(other(state’s(
commerce,(excessively(tax(their(goods(etc.)&
&
Gowder’s&quick&intro&to&NFIB&v.&Sebelius&
&
&
&
1)&(Radical)&Expansion&of&Coverage&
3(Main(Prongs(
(
a)(Community(Rating(
of(Affordable(Care(Act(
(
b)(guaranteed(issue(
(
(
(
^^Companies(can(no(longer(deny(coverage(
(
on(basis(of(prior(conditions((in(most(
(
cases),(also(sets(min/max(rates(so(people(
(
at(high(risk(don’t(get(screwed(by(massive(
(
rates.(
(
(
(
2)&Individual&Mandate&
(
(
(
(
(
(
(
3)&Subsidies,&subsidized&exchanges&and&
(
Medicaid&expansion&
(
(
a)(Subsidies(to(combat(the(blow(
(
private(industry(will(take(after(having(to(
(
insure(more((medically)(costly(clients(
(
(
(
(
(
Policy&Idea&behind&ACA:(Expand(coverage(to(more(people,(namely(the(poor.(
(
Issues:((“Adverse(selection(death(spiral”:(People(that(don’t(necessarily(“need”(
insurance(because(they(are(very(healthy(will(drop(out(of(coverage.((As(a(result,(the(
rates(for(those(that(remained(insured(will(increase…(
Ways&ACA&combats&this:(1)(Mandatory(participation((healthy(people(cant(drop(out)(
and(2)(fixed(min(and(max(rates.(
Con Law I Notes
Day 7: 2/15/16
Cases:
US Term Limits v Thornton:
Facts: The constitution has certain qualifications for senators, including age, citizenship, etc. The
Arkansas state legislature proposed an amendment to the state constitution prohibiting an
otherwise eligible candidate from running based on term limits. For the house, it was no more
than 3 terms, and for the senate it was only two. Plaintiff (Thornton) brought suit.
Procedural History: The Supreme Court of Arkansas held that the amendment was
unconstitutional, case was appealed.
Holding/Reasoning: No: “Such a restriction is contrary to the fundamental principle of our
representative democracy embodied in the Constitution.” Supreme Court held that the power to
allow states to change qualifications of the congressional candidates was not within the “original
powers” of the states. This right/power didn’t exist prior to the Constitution and isn’t given via
the 10th amendment. The constitution is the sole source of qualifications for members of
congress. Arkansas argues that the Article I provision “times, place, and manner” allows for the
state amendment, however, SCOTUS says that this provision only allows states to create
procedural regulations and not change the qualifications. Finally, this violates the fundamental,
democratic principle that the right to choose representatives lies with the people, not the state.
Justice Kennedy concurring: Amendment would interfere with “the people of the nation and their
national government”
Dissent: Nothing in this amendment is depriving the people of their right to choose their
representative, the representative just has to meet this qualification (term limit) like they would
have to meet any other qualification. The constitution is silent on this matter. The states should
be able to exercise all powers that the constitution doesn’t withhold from them. This power is not
withheld in the constitution.
US v Comstock:
Facts: A group of convicted sex offenders sought to dismiss petitions that attempted to
indefinitely commit them to the Child Protection and Safety Act. Petition was dismissed because
it exceeded the scope of the congressional authority by enacting law that “imprisons” people
based solely on “sexual dangerousness”; doesn’t even need to be a violation of law.
Issue: Does the act violate the necessary and proper clause of the constitution?
Holding/Reasoning: No. The necessary and proper clause is broad in its scope: “conducive” or
“convenient and useful”. Is the statute rationally related to the constitutionally enumerated
powers? SCOTUS says yes. Although the power to criminalize conduct or imprisons individuals
is not explicitly mentioned in the constitutions, the broad authority of the necessary and proper
clause allows for this statute. Means/ends rationality: Are the means calculated to rationally
achieve desired end? Yes, congress has the power to act in order to protect communities from
sexually dangerous threats. The act does account for states interests- cannot and does not invade
state sovereignty.
Concurring: “rational basis test should be at least as exacting as it has been in the Commerce
Clause cases”-in other words, there must be more than just a rational relation, need “tangible
link”. Also, make sure the power is not one that is reserved for the states. Protecting the
community/the states is necessary & proper
Dissent: Protecting the community is not necessary and proper in relation to the commerce
clause (no economic activity involved whatsoever.) Necessary and proper clause is NOT a basis
for federal policing.
US v Kebedeaux:
Facts: D was a registered sex offender and member of the Air Force- Congress enacted the Sex
Offender Registration and Notification Act (SORNA), requiring sex offenders to register their
information in every state they live in. D moved to El Paso, failed to update his information in
the required 3 days, charged and arrested under SORNA. He appealed, arguing that the law was
unconstitutional because regulation sex offender’s interstate travel exceeded congressional
powers. Also, his sentence had been completed by the time SORNA was enacted.
Procedural History: Trail court for D. COA agreed with trial court holding that the government
can’t have unending criminal authority over D. Appealed again.
Issue: Does congress have the authority under Article I to provide criminal penalties for violators
of SORNA? Is SORNA unconstitutional ONLY in this scenario because his sentence was
complete before SORNA was enacted?
Holding/Reasoning: SCOTUS held that the necessary and proper clause grants congress the
power to enact and apply SORNA to this case, it is not unconstitutional. Although the defendant
has completed his sentence by the time SORNA was enacted, he is still subject to any and all
federal requirements of release. Necessary and Proper clause is broad enough to grant Congress
the power to create federal crimes, confine prisoners, ensure public safety, supervise prisoner
release, etc. Also, Congress has explicit power to regulate land and naval forces, defendant was a
member of the Air Force.
Concurring: Public safety benefits do not fall under necessary and proper. This case is ruled by
the power to regulate land and naval forces provision. Be careful not to read this opinion and
believe that the majority is creating a federal police power, because they aren’t.
Dissent: The government has failed to identify any enumerated power that SORNA “carries into
execution” in this case.
Class Notes:
First, RIP Justice ScaliaThings to think about: Now with 8 justices, hard for SCOTUS to take cases- likely to just let the
lower court decision stand. Politics and chaos, is SCOTUS going to swing left of right with new
justice appointment? Interesting times are ahead for constitutional law: Depends on who next
President is and if Obama can get a new justice in before his administration is over.
Intro to NFIB v. Sebelius: think about if the Affordable Care Act would be constitutional under
the cases that we are reading. Keep all of this in mind! (Obamacare summarized in 10 minutes)
Three Key Prongs to Affordable Care Act:
1. Expansion of Coverage:
a. Community rating and guaranteed issue. Essentially these forbid insurance
companies from denying people coverage for preexisting conditions and behavior
and habits (aside from smoking). Everyone has to be offered insurance,
companies can’t turn people away
2. Individual Mandate
3. Subsidies (medicade expansion and subsidized exchanges)
Policy theory here: goal is to expand coverage for lower cost (specifically to the poor),
Problems:
1. If the sicker people can’t be denied (or get price discrimination) Insurance companies are
going to lose money and will have to increase prices for everyone: Policy solution –
subsidies, insurance companies can increase prices for everyone, poor people will get
subsidized to make it more affordable
2. Individual mandate as meant to solve adverse selection problem: one price for everyone,
customers lose money paying this price (healthy people) - why should they pay a lot of
money for health insurance. Rationally, you shouldn’t buy insurance, you drop out. BUT
your money is subsidizing the poorer people. You drop out, prices go up, now more and
more people drop out, etc. (this is adverse selection “death spiral”). Only way to solve
this is to forbid people from dropping out-require the healthy to participate in order to
subsidize the unhealthy. Overall health costs should be reduced, overall health care
coverage should increase and expand
Notes on US Terms v Thornton- think about the following: Why isn’t terms limits considered a
political question?
-
Article I section 5: power of congress to judge constitute textual commitment to another
branch? Zivotofsky case: Court said we aren’t going to rule on this political questions,
but we can rule on whether or not the other branches infringed on executive right to make
that determination
-
Similarly here, the court didn’t rule on substantive issue, BUT protecting the enumerated
powers of Congress. We know that the states don’t have this power, court makes the
determination if Congress has this power. Divisions of powers between two branches
tend NOT to be political questions, the court can make a determination on this division
Notes on Comstock: Does congress have the power to pass this legislation? Shocking regime
over those considered to be “sexually dangerous”- Do studies support that they are usually
dangerous, likely to commit crimes again? Strict control/restrictions over their lives, is this
necessary and proper? Why is this a federal power?
-
Court holds that federal government does have this power to enact legislation
o General public safety? Shouldn’t this be controlled by the state?
o Opinion says this is “convenient and useful” for the ability to carry out the power
of enacting federal crimes and upholding federal law. Sex crimes are a federal
crime, the court reasons, Congress has the authority to deal with the consequences
that they have criminalized sex crimes
o Seems inconsistent with the necessary and proper clause?
o Justice Alito: Congress created the danger to the public (because of imprisonment
regime, creating federal sex crimes) Taken these people out of the state system,
into federal system, congress is now entitled to protect the states from the
consequences
o Have they messed up state systems by doing this? Can congress step in to fix the
mess that they made? Is this actually the justification here?
o DON’T treat this opinion as a “test”- not the “five factor” test. Is this just the
rational basis test?
Small Group: Does Congress have the power to create federal crimes of sexual violence (given
that there are state crimes for sexual violence?
Our group says the court does not have the power to create this federal crime- Court says it is
necessary and proper, but regarding what enumerated power? Court argues that it is about
ensuring public safety, but isn’t that a state power? Not a federal power granted by the
Constitution. Other arguments:
-
Equal Protection? Create laws necessary to bring into execution the state obligation to
treat people with equal protection? Professor Gowder says this won’t stand.
We need uniform rules and laws: Congressional power to enforce uniform laws
Involve specifically commercial sex trafficking, distribution of pornography, etc. This is
commercial and/or interstate in character? Does qualify under necessary and proper?
Notes on Kebedeaux: Is this case easier or harder than Comstock?
-
Easier: Congress doesn’t even need to rely on commerce clause in this case, Congress
already has the authority to regulate military sex crimes- “regulate land and naval forces”
Has the authority over all military
Normative Ideas: Why federalism?
-
-
-
-
Key Idea: Framers thought the federalism and separation of powers were protections of
individual liberty.
o Great, big political innovation
o Putting federal and state governments in competition (controlling each other’s
powers) individual liberty will be protected: “double security to the rights of the
peoples
Comparative advantage: Local is better able than federal government to “tinker” with
policy adjustments- a state trying something outrageous is better than whole country
trying it
o Tailoring policies to local interests
Justify large federal government? States can make inappropriate laws that need to be
regulated by the federal
o Uniform federal system keeps states from polluting other states with their
different laws. (example: marijuana states issues)
Simple worry about federalism: Local selfishness, what happens when states start taxing
goods from other states, start discriminating against other state commerce, etc?
OutlineforFebruary16,2016
CommerceClausemostofthecasestodayinvolvethecommerceclause(9outof10)
History:
- expansiveinterpretationofthecommerceclause
- endof19thcenturyandbeginningof20thcentury
o moreindustrializedandmorenationaleconomy
o needregulation
- NewDeal
o Pushbackandrestrictedinterpretationiscommerceclausepower
o Morepushbackonallpowersofcongress
o Politicalpressuresattheendofnewdeal
§ Supremecourtreverseddecisions
§ Beganinterpretingcommerceclauseinamoreexpansiveway
§ Lasted60years(WickardàU.S.v.Lopez)
- U.S.v.Lopez
o Firsttimeacommerceclausecasewasstuckdownindecades
- Now
o Rollbackofpowersofcongress
o NFIBv.Sebelius–landmarkcase
o EmptyseatonSCOTUSàeverythingisupintheair
Case:Gibbonsv.Ogden
Issue:is“commerce”justbuyingandselling,oreconomicactivitygenerally?
federalstatutegoverninginterstatetransportationofvessels
- NYallowedmonopolyforOgden
- Isthefederallawvalid?Becauseifitisvalidittrumpsanystatelaw
(Supremacy)
- InterpretationofthewordCommerce?(Textualproblem)
“Toregulatecommercewithforeignnationsandamongtheseveralstatesandwith
theIndiantribes”
- Thelawmustberegulating“commerce”andbe“interstate”tobewithinthe
power
HYPO:manufacturer,materialsarecheaperinIllinoissobuythemtheretransport
toIowawherelaborischeaper.Congressmakeslawcannottransportmaterials
acrossstateslinestoavoidaminimumwage.Manufacturerchallengesthelawin
court?
- UnderGibbonsruleàthislawiscoveredbythecommerceclausebecause
commerceistrafficandtransportationofthematerialsistraffic
- ItcouldbearguedthatGibbonsisbuyingandselling,takingfaresfrom
peopleandthentransportingthem,buyingandsellingservicesacrossstates
lines
- Itcouldbearguedthatthishypoinvolvingamanufacturingprocessisnot
buyingandsellingbecauseitisanintegratedsystem(failingargument)
-
JusticeMarshallveryexpansiveviewofcommerce=anyeconomicactivity
acrossstatelines
o Possibleactivitieswhatwouldbeexemptunderthisview-
§ Interstatecharitydonation
• Maybebecausemoneyisstillmoving–partofeconomy
• PossiblethattheConst.gaveCongresspowerto
regulatetheeconomyingeneral
§ Interstatecharityservices
• Crossstatelinestoprovidecleanupservicesaftera
tornado
• Couldstillsaycommercebecauselikelythatwhile
participatinginthecleanupareeatingfoodacrossstate
lines,usingtheirequipment,andthereforeparticipating
incommerce
§ Ifyoutryyoucanmakeanythingintocommerce
§ Veryhardtodrawalinebetweeneconomicandnon-economic
activity
• Everythingpeopledoiscommercialordependsona
commercialactivity
E.C.Knight
- antitrustcase
- ismanufacturecommerce?
o Itismakingthestuffyoubuyandsellandtrade–sonotreally
commerce
o Coase–
§ Theoryofthefirm–whatisreallygoingoninacommercial
operationisthesameaswhatisgoingonwithtrade
§ Nodistinctionbetweendoingthingsin-houseandcontracting
themout.
§ Verticalintegrationisessentiallythesameashorizontal
integration
§ Manufacturingisjustaformofcommerce
• Justmovingaroundthingswithinthecompanyinstead
ofbetweencompanies
- Distinguishingbetweenmanufacturingandcommercedidnotlastverylong
Distinguishbetweenintrastateandinterstate?
- Hammerv.Dagenhart
o Congressmadelawthatsaid–banshipmentsthatcrossstatelines
thatreflectharmfulpractices(childlabor)
§ Weforbidsellingthingsthataremadebychildlaboracross
statelines
o Holding:cannotregulatechildlaborbycreatingthelaw
§ Congressdoesn’tgettoregulatethemeans
DistinguishbetweenCongresssayingitsregulating“goodsin
interstatecommerce”butreallyis“regulatingchildlabor”
whichexceedsitspowerundercommerceclause
• Can’tcontrolhowthingsareproducedorthereisnota
limittothepower
• Slipperyslopeargumentàdemandforalimiting
principle
o Lopez–oralargumentintheSupremeCourt
goesonandonbeggingsolicitorgeneraltofinda
limitationinthefederalgovernmentspower
o Ifgovernmenthasthispoweritstillhasalimited
power(repeatedargument)
PossiblyweshouldmovepasthavingaCongresswithlimitedand
enumeratedpowersbecausetheeconomyhasbecomemuchmorecomplex
thanwasanticipatedintheConstitution
o Havingageneralpolicepowermaybemoreefficient
o IsituptotheSupremeCourttochangetheinterpretationofthe
commerceclause?Or…
o Isituptothepeopletoamendtheconstitutiontojustsay“toregulate
commerce”?
o Originalistsornot–canweupdateourinterpretationtomatch
updatedcircumstances
§
-
Gowder
Constitutional Law I
16 February 2016
Outline #1
Lecture
Evolution of the interpretation of the Commerce Clause
Before the New Deal
• With cases like Gibbons, it looked like there could have been an expansion of
Commerce Clause power
o Cases like E.C. Knight and Hammer, however, took a narrower view of the
Commerce Clause power
New Deal Era
• The attempts to regulate under the Commerce Clause increased with New Deal
legislation
o The Court’s interpretation of the Commerce Clause narrowed
After the New Deal
• From Wickard on, there was an expansion of Commerce Clause power
o There was very little Congress was unable to do under the Commerce
Clause for a long time
• Recently, however, we’ve seen another restriction
o The Court’s opinion in NFIT v. Sebelius took a narrower view of the
power under the Commerce Clause
• Especially given Justice Scalia’s death, what should we expect going forward?
Will the court continue in the trend of NFIT or will it return to a broader
interpretation of the Commerce Clause?
Demand for a limiting principle
Frequent pattern of argument in constitutional cases
• Asks, “If Congress has this power, what prevents them from having an even
greater power?”
• Sounds like a classic slippery slope argument, but isn’t
• The real purpose is to make the side being asked this question articulate a
principle that will prevent the slippery slope
Cases
Gibbons v. Ogden
Facts
The New York legislature granted Livingston and Fulton the exclusive right to
operate steamboats in the state’s waters. Livingston and Fulton licensed Ogden to
operate a ferry between New York and New Jersey. Gibbons began operating ferries
on the same route under a federal statute.
Procedural History
Ogden obtained an injunction from the New York courts ordering Gibbons to stop
operating his ferries. The United States Supreme Court reversed.
Holding
The Court held that “commerce” as used in Art. I § 8 of the Constitution extends to
navigation between states and the federal law fell within the Commerce Clause. Since
the federal law was constitutional, it preempted the state law under the Supremacy
Clause.
Arguments
“Commerce” is more than traffic, buying, and selling. It is a system of intercourse
between nations and parts thereof that necessarily includes navigation. If navigation
was not part of commerce, Congress would not be able to regulate what constitutes an
American vessel, but no one has ever challenged this “uniformly understood” power.
Of course, Congress would have no power over the completely internal commerce of
a state. Congress has power here, however, because the navigation was between
states.
United States v. E.C. Knight (We didn’t read the whole case, just a section in the notes on
page 112 of the casebook)
Facts
American Sugar Refining Company acquired several companies which had produced
about a third of the sugar refined in the United States, giving American control of
about 98% sugar refining capacity.
Procedural History
The Government brought a civil action under the Sherman Act. The Supreme Court
affirmed lower court’s dismissal of the case.
Holding
The Sherman Act did not extend to the sugar company because Congress could not
constitutionally regulate manufacture under the commerce clause.
Arguments
In the Court’s opinion, Chief Justice Fuller wrote that manufacture is not commerce,
simply what leads to commerce. Manufactured articles do not become articles of
commerce until they are bought, sold, transported, etc. If manufacture could be
regulated by Congress, so could mining, agriculture, and all other productive
industries, which would leave little to state control.
Justice Harlan dissented, arguing that interstate commerce is directly affected by the
ability of manufacturers to combine and control prices of goods being manufactured
for export to other states.
Hammer v. Dagenhart
Facts
Congress passed a law prohibiting the transportation in interstate commerce of goods
produced by child labor.
Procedural History
A father of two children working in a factory obtained an injunction barring the
enforcement of the law. The Court held the law unconstitutional under the Commerce
Clause.
Holding
The Court held that the law was unconstitutional because it regulated the means by
which goods were produced, not the goods themselves, and therefore was outside
Congress’s power under the Commerce Clause.
Arguments
Justice Day, in the Court’s opinion, reasoned that Congress only has the power to
regulate the nature of articles of commerce, not the means by which they are
produced. The law in question had no effect on the quality or condition of the actual
article being produced but only resulted in the regulation of labor and production
practices, which are matters for local control and which do not fall under the
Commerce Clause.
In the dissent,, Justice Holmes argued that because the law specifically restricted itself
to the interstate transport of certain goods, it was within Congress’s power. States
were allowed to have whatever labor practices they liked, they just couldn’t transport
the fruits of those practices across state lines.
Day8Outline
Case:Gibbonsv.Ogden
Facts:TheStateofNewYorkhadasteamboatmonopoly,whichgaveLivingston
andFultontheexclusiverighttooperatesteamboatsinNewYorkwaters.They
licensed Ogden to operate ferries between New York and New Jersey. Gibbons,
Ogden’s former partner, violated Ogden’s monopoly by operating a competing
steamboatwhichheclaimedwaslicensedunderfederalstatuteforvehiclesto
beemployedinthecoastingtrade.
Procedural History: Ogden got an injunction that ordered Gibbons to stop
operatinginNewYorkwatersfromNewYorkcourts.Thecourtthenauthorized
Gibbons to operate his ferries under the federal statute because of the
supremacyclauseofArticleVI.
Issue: The scope of the commerce power underlying the federal statute à
Meaningof“commerceamongseveralstates”
Reasoning: Commerce is traffic and all commercial intercourse. This includes
navigation. ‘Among’ in this context means generally affecting more than one
state.Itdoesn’tregulateinteriortrafficofastate.Ifthecommercedoesn’taffect
other states it is unnecessary for congress to interfere as internal commerce is
reservedforthestate.However,werelyonthediscretionofcongress.
Case:Hammerv.Dagenhart[TheChildLaborcase]
Facts:Congressenactedalawthatbannedtheinterstatetransportationofgoods
produced in factories with bad child labor practices. A father who had two
children working in a cotton mill contested the enforcement of this law as
unconstitutional.
ProceduralHistory:FatherobtainedaninjunctioninNorthCarolina.
Issue: Does the commerce clause give congress the authority to make such a
law?
Holding: This is beyond congress’ reach and authority over congress. It is a
“purelylocalmattertowhichfederalauthoritydoesn’textend.
Reasoning: Congress’s power to regulate includes the authority to prohibit the
movement of ordinary commodities. However, the act in itself does not aim to
regulate actual movement of these goods across state line but to standardize
childlaborpracticeswithinthestates.Thecommerceclausewasnotintendedto
give congress an authority to equalize manufacturing conditions. This was not
thegoalofthecommerceclause.
Dissent: Congresses power is not less constitutional because of its indirect
effects.Theactdoesn’t“meddlewithanythingbelongingtothestate.”Thecourt
doesn’tgettodecidewhenprohibitionisnecessarytoregulationandwhenitis
not.
ClassDiscussion:TheCommerceClause(Article1:Section8)
• History:
o Fromendof19thcenturyandbegof20ththegovernmentwanted
toregulatecommerce.However,therewasapushbackandavery
restricted interpretation of the commerce clause and other
provisionstoregulatecongresspowers.Thereseemedtobeabig
setofrestrictionsonthecongresspowers
Day8Outline
•
•
o Expansiveconceptionofthecommerceclauseinthe60yearsfrom
Wicker till US v. Lopez (strike laws down as an expansion of the
congressespowers)
o Nowthereisalottoquestionastowhatthecourtswilldowiththe
commerceclause.
Case:Gibbonsv.Ogden
Issue:
o There was a federal statute governing interstate transport of
vessels.Theissuehereiswhetherthefederallawwasvalid?
o Atextualproblemexistshereastowhatthecommerceclause
permits.Howtodefinecommerce:isitjustbuyingandselling
orjusteconomicactivitygenerally?Answeringthequestionsof
isitwithinthecongressescommerceclausepowertoregulate
interstatetransport.
JusticeMarshall’sargument
o Interstatetransportationbysaleiscommerce
o Expansive conception of commerce: any interstate (crosses
statelines)economicactivity.
o Gibbonsisaboutbuyingandsellingservicesalongstatelines.
Note: if we try hard enough, we can make any activity fall under
JusticeMarshalls’conceptionofthecommerceclause.Itisreallyhard
todrawalinebetween
o Economic and non economic activities (a lot we do is
dependentoncommercialactivities)
o Commerceinonestateandinterstatecommerce.
Thekeyproblemofthecommerceclause
This was addressed in E.C Knight Co. The issue here was is
manufacturecommerce?
o There is no real economic distinction between manufacturing
things in house and contracting out manufacturing. In
Manufacturing, one is simply moving around goods and
serviceswithinacompanyforeconomicends
o Manufacturingasaformofcommerce:Thedistinctionbetween
manufacturingandcommercedidn’tlastverylong.
Case:Hammerv.Dagenhart[TheChildLaborCase]
Issue: Can congress engage in the regulation of child labor in
factories? Congress banned shipment in interstate commerce for
factoriesthatusedbadchildlaborpractices.
Arguments:
o Federal Police Powers: Congress is not really doing what it
says it is doing. The Supreme Court looks underneath that to
seethatitisregulatingtheprocedureofmanufacturing,which
isbeyondthepowerofcongress.
o The demand for a limiting principle: Congress has limited
enumeratedpowersbutiftheygetthispowerthenwhatisleft
of limited enumerated powers? In other words, if we let
congress do this then they can do anything. How do we
determinewhatpowersareleftthatcongresscannotexercise.
o Theargumentisincoherent.
I.
TUESDAY2/16OUTLINE
a. Cases
i. Gibbonsv.Ogden
1. Posture:Plaintiffsueddefendanttoinjuncthimfromoperatingsteam
shipsonNewYorkwaters.Thetrialcourtgrantedplaintiff’sinjunction
anddefendantappealedassertinghisshipswerelicensedunderanAct
ofCongress.Theappellatecourtsaffirmedtheinjunctionandthe
SupremeCourtgrantedcertiorari.
2. Facts:Plaintiffwasassignedtheexclusiverighttooperatesteamships
onNewYorkwaters.Defendantwasfederallylicensedunder“anactfor
enrollingandlicensingshipsandvesselstobeemployedinthecoasting
tradeandfisheries,andforregulatingthesame,”butplaintiffclaimed
thatdefendant’soperationofsteamshipsonNYwaterwayswas
neverthelessviolatinghisexclusiverights.Thetrialandappellatecourts
allruledinfavorofplaintiffandinjuncteddefendantfromfurther
violations.
3. Issue:Doesastatehavethepowertograntanexclusiverighttouseof
waterwaysevenwheninconsistentwithfederallaw?
4. Holding:No.TheactsofCongressundertheConstitutionaresupreme
andstatelawsmustyieldtothem.Congress’powerovervesselsonNY
waterwaysarisesundertheCommerceClause.
5. Classdiscussion:Gavemeaningtothephrase“amongtheseveral
states”intheCommerceClause.
ii. Hammerv.Dagenhart
1. Posture:Plaintiffbroughtsuitagainstthefederalgovernmentseeking
aninjunctionagainsttheenforcementoftheChildLaborActonthe
groundsthatitwasunconstitutional.Thedistrictcourtfoundinfavorof
thegovernment,theplaintiffappealedandtheSupremeCourtgranted
certiorari.
2. Facts:Plaintiffwasafatheroftwochildren,ages14and16,whowere
employedbyatextilemill.ThepassageoftheChildLaborActbarred
transportationininterstatecommerceofgoodsproducedinfactories
employingchildrenundertheageoffourteenoremployingthose
betweentheagesoffourteenandsixteenformorethaneighthoursa
dayorsixdaysaweekoratnight.Plaintifftookexceptiontothisrule
prohibitinghisminorchildrenfromprovidingincomeandsuedthe
federalgovernmentchallengingtheconstitutionalityoftheCLA.
3. Issue:WasCongress’passageoftheChildLaborActwithintheirpower
toregulatecommerce?
4. Holding:No.ThepowerofCongresstoregulatecommercedoesnot
includethepowertoregulatetheproductionofgoodsintendedfor
Congress.TheCLAviolatedtheTenthAmendmentbygrantingpowerto
CongresswhichwasnotenumeratedintheConstitution.
b. Commerce
i. Congressshallhavethepowertoregulatecommercewithforeignnations,and
amongtheseveralstates,andwiththeIndiantribes
ii. Whatiscommerce?
1. Ifwetryhardenough,almostanythingcanbeconsideredcommerce
2. Difficulttodrawbrightlinedistinctionbetweenwhatisandisn’t
iii. Interstatevs.intrastate
1. Canadistinctionbemaintainedinourcomplexmoderneconomy?