con law 1

  • Types of Constitutional Arguments:

    • Constitutional Text: Focuses on the literal wording of the Constitution.

    • Historical Argument: Examines the historical context and events surrounding the Constitution's creation and adoption.

    • Structural Argument: Relies on the overall structure of the government and the relationships between its branches as intended by the framers.

    • Intent of the Framers/Originalism:

    • Description: Seeks to interpret the Constitution based on the original understanding of those who wrote and ratified it. Identifying the framers' intent is a complex task with often unclear or conflicting evidence.

    • Challenges:

      • Unclear Intent: Framers' intent is often ambiguous or not explicitly documented.

      • Relevance: Debates arise about why contemporary society should be bound by the intentions of individuals from centuries ago.

      • Evolution: Society and circumstances change, necessitating adaptation beyond original intentions.

    • Ongoing History and Tradition: Considers how constitutional provisions have been interpreted and applied throughout history, reflecting evolving societal norms and values.

    • Judicial Doctrine: Examines established legal principles and precedents set by court decisions.

    • Value Arguments: Based on fundamental principles such as justice, fairness, and equality.

  • Valid Interpreter of the Constitution:

    • Judicial Supremacy (Marbury v. Madison):

    • Courts' Exclusive Power: Courts possess the exclusive authority to interpret the Constitution.

    • Marbury v. Madison Holding: When a statute conflicts with the Constitution, courts are obligated to enforce the Constitution as the supreme law, overriding the inconsistent statute.

    • Implications: The preeminence of the Constitution and the concept of judicial review were not explicitly stated in the Constitution but were established through interpretation.

    • Interpretation Debate: Marbury can be interpreted as either granting the judiciary the power of judicial review or establishing its ultimate authority to interpret the Constitution.

    • The Constitution as Law:

    • Legal Interpretation: The Constitution is viewed as a law and should be interpreted by those skilled in legal interpretation, namely the judiciary.

    • Critique: Treating the Constitution as ordinary law may overlook its unique and foundational nature.

    • Judicial Review as a Check:

    • Protection Against Tyranny: Judicial review acts as a check on the legislature, preventing the majority from oppressing the minority.

    • Collective Action Problems: It safeguards against collective action problems where transient public sentiment drives policy.

    • Expertise, Finality, and Independence:

    • Judicial Supremacist View: Expertise, finality, and independence support the notion of judicial supremacy in constitutional interpretation.

    • Question of Neutrality: Concerns arise about the court's neutrality, particularly in federalism cases (McCulloch v. Maryland), where it may favor a federal agenda.

    • Deference to the Legislature:

    • Governmental Structure: The court may defer to the legislature on questions of governmental structure, provided fundamental liberties aren't compromised (McCulloch v. Maryland).

    • Balance and Process:

    • Multiple Interpretations: Not all issues reach the courts immediately; alternative interpretations are initially explored, fostering balance.

    • Federal Judge Authority:

    • National Representation: Federal judges should possess greater authority than state judges due to their representation of the entire nation (Martin v. Hunter’s Lessee; Cohen v. Virginia).

    • Accountability vs. Independence:

    • Balancing Act: Judicial review requires balancing accountability and independence (Kramer).

  • States as Constitutional Interpreters:

    • Maryland's Argument (McCulloch v. Maryland):

    • State Origin: Maryland argued that if the Constitution originated from the states, their interpretation should be binding.

    • Marshall's Refutation:

    • Popular Ratification: Marshall countered that the people, not the states, ratified the Constitution.

    • Potential Conflicts of Interest: States are considered potentially biased interpreters due to possible conflicts of interest.

  • The People as Constitutional Interpreters:

    • Supreme Court's Limits (Giles v. Harris):

    • Citizenry's Firm Course: If the citizenry is resolute on a particular path, the Supreme Court may be unable to alter it (Giles v. Harris).

    • Appearance of Capitulation: This may create the impression that the Supreme Court is yielding.

    • Communication with Other Branches:

    • Supreme Court Influence: Even without explicit rulings, the Supreme Court can influence other branches through communication.

    • Discerning Constitutional Views:

    • Constitutional vs. Desired Outcomes: It's challenging to differentiate between the people discussing the Constitution and expressing desired outcomes.

    • Popular Desires: Raises the question of whether the people's desires can ever be deemed unconstitutional.

    • Justification of Decisions:

    • Supreme Court Accountability: The Supreme Court must provide reasoned justifications for its decisions, unlike the public, which isn't obliged to justify preferences (e.g., in presidential elections).

  • Administrative and Regulatory Agencies:

    • Delegated Power: Agencies interpret the Constitution through delegated authority.

    • New Deal Era: This issue gained prominence during the New Deal Era.

    • Judicial Review Analogy (Jones & Laughlin): In Jones & Laughlin, the Supreme Court approved of language indicating that the agency would assess interstate-ness on a case-by-case basis, akin to judicial review.

  • Different Tools of Constitutional Interpretation:

    • Differing Roles: Different tools imply different roles for the Constitution and its interpreters.

    • Textual Analysis:

    • Focus: Emphasizes lawyers and judges skilled in analyzing texts.

    • Purposive Analysis:

    • Question: Does purposive analysis diminish the court's supremacy?

    • Intent of the Framers:

    • Unforeseen Situations: Should efforts be made to understand the Framers' intent, even when dealing with unforeseen circumstances?

    • Morality/Politics:

    • Judicial Involvement: Should courts engage in these domains?

  • Presidential Power in Emergencies:

    • Prioritization Debate: Should the president prioritize the country's needs over the Constitution during emergencies?

    • Examples:

    • Lincoln: Used the Emancipation Proclamation during the Civil War.

    • Truman: Acted in Youngstown (as influenced by Jackson's concurrence).

  • Congressional Sources of Power:

    • Commerce Clause: Grants Congress the power to regulate interstate commerce.

    • 14th Amendment: Addresses citizenship rights and equal protection under the law.

    • Spending Power:

    • General Welfare: Gives Congress broad power to tax and spend for the general welfare.

    • United States v. Butler: Taxing must be genuine revenue-raising, not regulation disguised as taxation.

    • Treaty Power:

    • Example: Chinese Exclusion Cases.

  • How Should the Constitution Be Interpreted?

    • Limiting Congress:

    • Goals vs. Means: Should constitutional interpretation limit the goals Congress can pursue or the means it uses to achieve those goals?

    • Consistency:

    • Interpreter Variance: Is constitutional interpretation consistent, regardless of who is interpreting?

    • Customary Law:

    • Evolution: The Constitution is customary law refracted through text over time (Kramer).

    • People's Influence: It reflects what people have made of it, not just the original text.

  • Legitimacy of Reconstruction Amendments:

    • Imposition on the South: The Reconstruction Amendments were enforced by overpowering the South.

    • Changing Re-entry Rules: The North repeatedly altered the requirements for Southern states' re-entry into the Union, conflicting with the notion that secession was unconstitutional.

    • Current Validity:

    • Behavioral Structuring: Even if initially illegitimate, these amendments should be included in interpretation due to their influence on people's behavior.

    • Judicial Avoidance:

    • Initial Legitimacy: The Supreme Court largely avoided addressing the initial legitimacy of these amendments.

    • Narrowing of 14th Amendment:

    • Federal Enforcement Power: The Supreme Court eventually narrowed the 14th Amendment's power, limiting its federal enforcement authority (Slaughterhouse Cases).

  • Leeway in Constitutional Interpretation During Crisis?

    • Lincoln's Actions: During the Civil War, Lincoln acted beyond executive power, with Congress later ratifying his actions.

    • Enforcement Acts: Federal prosecutors targeted private crimes during Reconstruction, straining the Constitution to its limits but were eventually overturned.

  • Colorblindness vs. Anti-Subordination:

    • Reconstruction Era Laws Ways of understanding laws during Reconstruction.

    • Colorblindness:

    • Reciprocal Application: Would the case outcome remain the same if races were reversed?

    • Stake in the Outcome: Applying the law to both majority and minority groups gives everyone a stake in the outcome.

    • Redistributive Limits: Redistributive amendments might exceed Congress's limits.

    • Anti-Subordination:

    • Targeted Application: Laws apply solely to subordinated groups.

    • Inferiority Badge: Applying discriminatory laws to whites would not carry the same implication of inferiority.

  • Adapting to Changing Circumstances:

    • Moving Beyond Framers' Vision: There must be flexibility to evolve beyond the Framers' original vision.

    • Rejection of Originalism: Evident in the rejection of originalism in Home Building & Loan Association v. Blaisdell.

  • Means-Ends Analysis:

    • Alignment of Reasons: Can reveal whether Congress's stated reason aligns with its true reason.

    • Example: Railroad Retirement Board v. Alton.

  • Preserving Statute's Constitutionality:

    • Judicial Duty: The court should endeavor to preserve a statute's constitutionality whenever feasible.

    • Example: NLRB v. Jones & Laughlin Steel Corp.

  • Federalism and Federal Power Generally:

    • Concept of Federalism:

    • Dual Governance: A federalist system involves the co-existence of national and state governments.

    • Enumerated Powers: The federal government possesses limited, enumerated powers.

    • No General Police Power: There is no federal, general police power; however, under Article I, §\S 8, Congress has the power to tax and spend for the general welfare.

    • State Police Powers: States retain police powers.

    • Necessary and Proper Clause:

    • Broad Delegation: Delegates broad power to Congress (McCulloch v. Maryland).

    • Conditions for Use: If Congress pursues an objective within its enumerated powers, its chosen means must be:

      • Rationally related to the objective.

      • Not explicitly forbidden by the Constitution.

      • Specific language: Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution are constitutional.

    • Two-Prong Test:

    • Congressional Action: To pass constitutional muster, a congressional action must:

      • Fall within a specific grant of power.

      • Not violate any specific constitutional provision.

  • Slavery and its Legacy (The Status of African-Americans in the U.S.):

    • Constitutional Protection for Slavery:

    • Three Main Provisions: Protection for slavery was embedded in three primary areas of the Constitution:

      • Clause precluding Congress from regulating the international slave trade until 1808.

      • Fehrenbacher's Perspective: Fehrenbacher viewed this as a beacon of hope.

      • Alternative Interpretation: It could also be interpreted as pro-slavery if slaveholders anticipated continued unregulated trade even beyond 1808. Slaveholders knew they could still import slaves from Virginia, possibly making this concession easier.

      • 1807 Legislation: Legislation was passed in 1807 to prohibit the international slave trade, meeting little resistance from the South, possibly due to net population gains among slaves.

      • 3/5 compromise for representation

      • Taxation Argument in the South: The South argued that slaves were not as productive as free white workers and should count as less→\rightarrow 3/5

      • Representation Desires in the South: The South wanted slaves to count as full persons, but the north thought this would give the South overrepresentation in Congress→\rightarrow 3/5

      • Fugitive slave provision

    • Minor Provisions: Guarantees were also found in more minor places:

      • Guaranteed protection against insurrection (i.e., slave rebellion).

      • Republican form of government

      • Structure of Senate and Electoral College

    • Anti-Slavery Sentiments:

    • Limited Equality: Even those against slavery didn't advocate for full equality for African-Americans. Fears persisted about the potential consequences of suddenly freeing the subjugated population.

    • Fugitive Slave Clause: Served as a means for the North to control the number of African-Americans in their region.

    • Property Protection:

    • Legislative Discretion: The North sought protection for their property, leaving it to the legislature to define what constituted property (i.e., slaves).

    • The Antelope Case: Raised both liberty and property concerns, but at the time, there was no hierarchical preference for liberty over property.

    • National Environment: Created a national context where all forms of property were protected.

    • Emancipation Proclamation:

    • Property Rights: The Emancipation Proclamation freed slaves, who were considered property, raising questions about why land couldn't also be seized.

    • Reconstruction Era Debates:

    • Protecting Freed Slaves' Rights: Debates ensued over how to protect the rights of freed slaves.

    • Freedmen’s Bureau: Designed to affirmatively protect freed slaves' interests in novel ways.

    • Johnson's Veto: Johnson vetoed the Freedmen’s Bureau, and the failure to override his veto indicated a reluctance to fully protect black rights.

    • Rejection of Affirmative Protection: The general approach to handling freed slaves rejected affirmative protection of rights.

    • Symbolic Victories:

    • Impact on the Ground: Do symbolic victories matter when the practical situation remains unchanged?

    • Attacks on Facial Exclusions: The distinction between actual remedies and symbolic interventions against facial exclusions is often contested.

    • Jury Exclusion: The right to not have people of your race excluded from a jury based on race did not prohibit other exclusionary tactics like literacy tests or poll taxes (Strauder v. West Virginia).

    • Even-Handed Boundaries: When these boundaries are applied uniformly, they also exclude poor whites.

    • De Jure vs. De Facto Racism: The court was willing to challenge de jure racism but not de facto racism.

    • Colorblind Constitution:

    • Supreme Court Statements: The Supreme Court's assertions of a colorblind Constitution in cases like Strauder v. West Virginia and Plessy v. Ferguson disregarded the fact that exclusions of blacks symbolized inferiority.

    • Jim Crow Era:

    • Not Inevitable: Jim Crow laws were not inevitable; during the Redemption period, white elites initially felt it unnecessary to heap humiliation upon blacks.

    • Political Motivations: They sought black votes and attempted to persuade blacks that their former masters had their best interests at heart.

    • Integration in Schools:

    • Early Concerns: Integration in schools was not a primary goal for blacks initially due to concerns about linguistic and psychological abuse.

    • Post-Brown Issues: This remained a challenge after Brown v. Board of Education, with black teachers opposing swift desegregation due to potential job losses and exposure of black students to constant reminders of supposed inferiority.

    • Public Transportation Desegregation:

    • Dignity Implications: Public transportation desegregation had significant implications for human dignity, particularly for affluent blacks.

    • Class Stratification: Class stratification was not as pronounced among blacks as it was among whites.

    • Economic Arguments:

    • Anti-Segregation Pragmatism: There were pragmatic arguments against segregation, such as railroads finding segregation more expensive (Plessy v. Ferguson).

    • Segregationist Arguments:

    • Minimizing Racial Hatred: Some proponents of segregation, though not necessarily hateful towards blacks, believed it would reduce racial hatred and violence (though incorrect).

    • Increased Vulnerability: Segregation made blacks easier targets for violence.

    • Civil Rights Cases:

    • Lynching Motivation: Motivated by lynching in the South, not by exclusion from public places.

    • State Action vs. Private Action: Highlighted the issue of state action versus private action, as lynchings occurred with state complicity but technically constituted private actions.

    • End of Special Favor: The courts declared it was time for African-Americans to cease being special favorites of the laws.

    • Raising the Status of Whites:

    • Widening the Gap: Measures that elevate the status of whites without similarly raising minorities exacerbate the divide between them.

  • Status of Other Minorities

    • Chinese

    • Criticized by Harlan in his dissent in Plessy v. Ferguson as being even more alien than blacks but still allowed to ride in the railcars with whites.

    • There were legitimate, non-racist reasons for saying that the Chinese were different from other immigrant groups→\rightarrow unlike other immigrants, the immigrants from China were almost exclusively male and did not participate in the “typical” American life centering around the nuclear family.

    • Japanese

    • In Korematsu v. United States, the exclusion orders are defined in terms of what Congress can do under the war powers, not as racial issues.

    • Mexicans

    • In Mexico, there was no distinction of rights between Mestizo and pure Spanish citizens. When the United States got territory from Mexico in the Treaty of Guadalupe Hidalgo in 1848, affected states imposed racial distinctions on their new citizens.

    • Native Americans

    • Under Elk v. Wilkins in 1884, a single Native American could not repudiate his tribal affiliation and become a citizen of the United States.

    • Later, all Native Americans were made U.S. citizens.

    • Was Indian-ness a racial classification or a sovereign classification?

    • Women

    • Under Minor v. Happasett in 1874, the 14th Amendment could not be used as the basis from granting women’s suffrage.

    • Some suffragettes took a racist attitude, questioning how black men could be given the vote but not white women.

    • Mormons

    • Key case: Reynolds v. United States

    • The same rhetoric used about slaves was used in regard to Mormon wives.

    • The Supreme Court wanted to identify polygamy as Asiatic and African so they could call it barbaric and immoral.

    • Filipinos and Puerto Ricans

    • In Insular, Harlan said these people could not be expected to assimilate. Had to weasel around Dred Scott to do this by saying that natural rights are for everyone, but artificial rights can be withheld.

  • Overall Point: To be an empire, we must be able to annex territory but resist incorporating those people into the U.S.

  • The New Deal tended to favor whites over minorities and males over females. Eleanor Roosevelt worked on minority issues, and sometimes she could convince FDR of her position and sometimes not. In the case of women, the epitome of the deserving poor was a retired, male worker, not a female.

  • Commerce Clause

    • Exam Tips:

    • If there is a question in which Congress is doing something, ask yourself, “Can what Congress is doing be justified as an exercise of the commerce power?” Most of the time, the answer is yes.

    • The Court takes a fairly deferential view of whether a particular action falls under the Commerce Power. So long as the regulated activity substantially affects interstate commerce, the regulation will be found to fall within the Commerce Power.

    • Even if a particular commercial activity being regulated seems to take place solely intrastate, the Court will usually find that when all similar activities are considered as a class, they have a cumulative effect on interstate commerce. Wickard.

    • Remember that Congress may ban/regulate interstate transport as a way of dealing with local problems.

    • However, look out for congressional regulation of activities that are not really commercial. Here, there is a much better chance that the Court will find the activity does not substantially affect interstate commerce. Cite to US v. Lopez in this situation.

    • Examples of situations where the regulation would probably be invalid as not substantially affecting interstate commerce.

    • Congress prescribes the curriculum public schools use.

    • Congress makes it a federal crime to commit a gender-based violent crime against a woman. Morrison.

    • Congress bans marriage under the age of 18.

    • →\rightarrow But if there is a jurisdictional hook, the regulation is probably okay.

    • Be alert for fact patterns where Congress is regulating the states. Such regulation raises a Tenth Amendment issue.

    • So long as Congress has merely passed a generally applicable law, this law can apply to the states just as it does to private individuals and there is no 10th Amendment violation.

    • But Congress may not directly compel the states to enact or enforce a federal regulatory program. Printz. When Congress does this, it violates the 10th Amendment.

    • Substance:

    • Comes from Article I, §\S 8.

    • Test for commerce power: A particular Congressional act comes within Congress’s commerce power if both of the following are true:

      • The activity being regulated substantially affects commerce, and

      • The means chosen by Congress is “reasonably related” to Congress’s objective in regulating.

    • Four broad categories in which Congress can use the Commerce Power:

    • Channels: Congress can regulate the use of the channels of interstate commerce, even if the activity in question is completely intrastate.

    • Instrumentalities: Congress can regulate instrumentalities of interstate commerce, even though the particular activities being regulated are completely intrastate.

    • Articles moving in interstate commerce: Congress can regulate articles moving in interstate commerce.

      • Champion v. Ames →\rightarrow lottery tickets. This looked like an attempt to regulate public morals papered over with commerce regulation. The means (regulating interstate commerce) were acceptable, but the ends (public morals) were questionable.

    • “Substantially affecting” commerce: Congress may regulate those activities having a substantial effect on interstate commerce. Jones & Laughlin Steel; U.S. v. Lopez

      • The current of commerce rationale, which affected the analysis in Schechter Poultry, was abandoned in Jones & Laughlin Steel. After Jones & Laughlin Steel, it was irrelevant whether the activity being regulated occurred before, during or after the interstate movement so long as the regulated activity had a substantial economic effect on interstate commerce.

      • Activity is commercial. If the activity is commercial, it doesn’t seem to matter whether the particular instance of the activity directly affects interstate commerce, as long as the instance is part of a general class of activities that collectively substantially affect interstate commerce. Wickard.

      • Wickard established the cumulative effects theory. That theory provides that Congress may regulate not only acts which taken alone would have a substantial economic effect on interstate commerce, but also an entire class of acts, if the class has a substantial economic effect (even though one act within it might have virtually no interstate impact at all).

      • Hammer →\rightarrow Child labor held not to affect interstate commerce.

      • Overruled by Darby. Congress is completely free to impose whatever conditions it wishes upon the privilege of engaging in an activity that substantially affects interstate commerce, so long as the conditions themselves violate no independent constitutional prohibition.

      • Activity is not commercial. If the activity itself is not commercial, then there will have to be a pretty obvious connection between the activity and interstate commerce.

      • U.S. v. Lopez →\rightarrow Guns in school not sufficiently connected.

      • U.S. v. Morrison →\rightarrow Violence against women not sufficiently connected.

      • After Lopez, the Court gives less deference than it used to to the fact that Congress believed the activity had the requisite substantial effect on interstate commerce. It will no longer be enough if Congress has a rational basis →\rightarrow the effect must in fact exist.

      • If what is being regulated is an activity the regulation of which has traditionally been the domain of the states, and as to which the states have expertise, the Court is less likely to find that Congress is acting within its Commerce power. Examples where the Court is especially likely to be wary of congressional interference:

      • Education

      • Family law

      • Criminal law

  • Commerce clause serves 2 distinct functions:

    • It acts as a source of Congressional authority.

    • It acts, implicitly, as a limitation on state legislative power.

  • Two industries are almost always considered local:

    • Agriculture

    • Cf. Schechter Poultry Corp. v. US

    • Cf. Wickard v. Filburn

    • Manufacture

  • The clause precluding Congress from regulating the slave trade until 1808 was a limitation on the enumerated power of the Commerce Clause.

  • Gave the federal government the power to deal with the Indians, although most Native American questions don’t come up as Constitutional matters.

  • In the antebellum period, most Commerce Clause cases came up in a posture of dormant Commerce Clause/dormant Congress with respect to the Commerce Clause. Then you had to ask if Congress’s power to legislate precluded the states from legislating in certain areas, even when Congress had taken no action. Gibbons v. Ogden

    • Marshall hinted in Gibbons v. Ogden that Congress’s power to legislate would preclude the states from legislating even where Congress took no action. Looks like there might be a means/ends test going on here.

    • In Gibbons v. Ogden, Marshall articulated a broad vision of the Commerce Clause:

    • Commerce extended beyond navigation to include commercial intercourse.

    • Regulate involved the power to prescribe the rule by which commerce could be governed.

    • Among the states did not include that commerce which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Implicitly, it did include commerce which affected another state even though it did not involve crossing a state line.

    • Much of this discussion was in dicta.

    • In Mayor of the City of New York v. Miln, the court held that if the state is legitimately legislating for an end within its purview, it can use whatever means it wants, even if those means affect interstate commerce.

    • Vis-à-vis the dormant Commerce Clause, the court focused in Cooley on whether the subject matter being regulated was local or national. Cooley held that states could not regulate matters needing a uniform national approach but could regulate local matters.

  • Commerce Clause + Slavery →\rightarrow Groves v. Slaughter

    • States’ rights were an anti-slavery tool used to create barriers to slavery within a state.

    • If commerce in slaves is viewed as interstate commerce, then it is within the province of the federal government. If states can’t use their police power to regulate it, then states that want to take a stand against slavery won’t be able to.

  • Modern Doctrine: State of the law after Lopez and the cases decided under it:

    • Effect must be significant: The activity being regulated must be one that significantly affects commerce. An incidental effect on commerce is not enough.

    • Commercial transactions: When the transaction being regulated is itself a clearly commercial or economic one, the Court will probably allow Congress to regulate that transaction, even if it is completely intrastate, as long as it is part of a class that, in the aggregate, substantially affects interstate commerce. Wickard.

    • Noncommercial transactions: Where the activity being regulated is essentially non-commercial, the Court apparently will not regard the aggregate impact of that activity on interstate commerce as being sufficient, unless either:

    • The causal link is extremely short and direct OR

    • The item being regulated, although noncommercial, crosses state lines or enters the stream of interstate commerce.

    • Thus Morrison was too indirect.

    • Findings: The fact that Congress has made particular findings that an activity substantially affects interstate commerce might make some difference, but is unlikely to be dispositive very often. At most, legislative findings will tip a close case into the category that can be regulated.

    • Jurisdictional Hooks: Where Congress drafts the statute in a way that requires a jurisdictional hook between the particular activity and commerce, the act is more likely to be found within the Commerce Power.

    • In Lopez, the Court notes with disfavor the lack of a jurisdictional hook but annoyingly does not say what the outcome would be if the statute had one. Best not to presume too much about the helpfulness of a jurisdictional hook.

  • Summary of modern view: There are four broad categories of activities in which Congress can constitutionally regulate.

    • Channels: Congress can regulate the use of channels of interstate commerce. Thus, Congress can regulate in a way that is reasonably related to highways, waterways, and air traffic. Presumably, Congress can do so even where the activity is quite intrastate.

    • Instrumentalities: Congress can regulate the instrumentalities of interstate commerce even though the threat may come only from intrastate activities →\rightarrow Lopez. This category refers to people, machines, and other “things” used in carrying out commerce.

    • Articles moving in interstate commerce: Congress can regulate articles moving in interstate commerce.

    • Substantially affecting commerce: The biggest category that Congress may regulate is those activities having a substantial effect on interstate commerce →\rightarrow Lopez. The following rules seem to apply:

    • Real bite: the requirement of substantial effect has real bite.

    • Activity is commercial: If the activity itself is arguably commercial, then it doesn’t seem to matter whether the particular instance of the activity directly affects interstate commerce, as long as the instance is part of a general class of activities that, collectively, substantially affect interstate commerce. Wickard.

    • Activity is not commercial: But if the activity itself is not commercial, then there will apparently have to be a pretty obvious connection between the activity and interstate commerce.

      • It will have to be more obvious that guns-in-schools-and-commerce from Lopez or gender-violence-and-commerce from Morrison.

      • This is probably the lasting legacy of Lopez and Morrison.

    • Little deference to Congress: The Court won’t give much deference (as it used to) to the fact that Congress believed that the activity has the requisite substantial effect on interstate commerce. The Court will basically decide this issue for itself, from scratch. It will certainly no longer be enough that Congress had a rational basis for believing that the requisite effect existed. The effect must in fact exist to the Court’s own independent satisfaction.

    • Traditional domain of states: If what’s being regulated is an activity the regulation of which has traditionally been the domain of the states, and as to which the states have expertise, the Court is less likely to find that Congress is acting within its Commerce power. Thus, education, family law and general criminal law are areas where the Court is likely to be especially suspicious of congressional “interference.”

      • The fact that the activity has traditionally fallen within the states’ domain can be outweighed by a showing that a national solution is needed. This would be so, for instance, where one state’s choice heavily affects other states. Example: Environmental regulation.

  • Civil Rights Legislation: Key use of the Commerce Power has been in civil rights legislation.

    • Court decisions: The Court upheld the use of the Commerce Power in two significant cases involving what might have aptly been termed local enterprises.

    • Heart of Atlanta: Π\Pi was a motel in downtown Atlanta which refused to rent rooms to African-Americans.

      • Had contacts with interstate travel.

      • Holding: Hotel could constitutionally be reached by the Civil Rights Act under the Commerce Clause.

      • Police powers motive acceptable: Nor was the Court troubled by the fact that Congress’s motive for this legislation was primarily moral and social, not economic.

    • Ollie’s Barbecue (Katzenbach v. McClung): Overwhelmingly local.

      • Facts: Barbecue restaurant located pretty far from any interstate highway, train or bus station. There was no evidence that an appreciable part of its business came from out-of-towners. However, 46% of the food purchased by the restaurant during the previous year had been bought from a supplier who had bought it from out of state. (Recall: The Civil Rights Act applies to any restaurant a substantial portion of whose food has moved in interstate commerce.)

      • Application of Act upheld: Returned to a Wickard rationale →\rightarrow the restaurant’s discriminatory conduct was representative of a great deal of similar conduct throughout the country.

      • Deference to Congress’s findings: The fact that the bill contained no congressional findings didn’t render the Act unconstitutional.

    • Effect of Lopez and Morrison: It is unclear whether these 2 cases would change the results in Heart of Atlanta or Ollie’s Barbecue. Ollie’s Barbecue is definitely the more suspect of the two, but it has a more obvious commercial nature than guns in schools or gender-based violence.

  • The Tenth Amendment as a Limited on Congress’s Power

    • Between Carter Coal (1936) and National League of Cities (1976) (40 years), the Court did not invalidate a single federal statute on the grounds that it violated state or local government sovereignty.

    • Between 1976 and 1985, the 10th Amendment enjoyed a brief renaissance as an important limit on federal power under the Commerce Clause. The 10th Amendment was held to bar the federal government from doing anything that would impair the states’ ability to perform their “traditional functions.”

    • National League of Cities v. Usery →\rightarrow Court unexpectedly ruled that the 10th Amendment barred Congress from making federal minimum-wage and overtime rules applicable to state and municipal employees. Vote: 5-4.

      • Rationale: Though wage/hour regulations could unquestionably be constitutionally applied to private employers under the Commerce Power, when applied to state employees, they violated an independent 10th Amendment requirement that: “Congress may not exercise its power in a fashion that impairs the States’ integrity or their ability to function effectively in the federal system.” The wage/hour rules violated this requirement in 2 ways:

      • Cost: Compliance would have cost the states and their municipal subdivisions substantial sums.

      • Removal of discretion: Stripped the states of their discretion to decide how they wished to allocate a fixed pool of funds available for salaries.

      • Summary: If the wage/hour rules were allowed to stand, Congress would have the right to make fundamental employment decisions regarding state employees and there would be little left of the states’ separate and independent existence.

      • National League of Cities was on thin ice from the beginning. The fifth vote was from Blackmun, whose concurrence expressed wavering agreement.

    • In 1985, this line of cases was flatly overruled in a stunning reversal of doctrine.

    • Garcia v. SAMTA

      • Blackmun joined with the four dissenters (Brennan, White, Marshall and Stevens) from National League of Cities to declare that case overruled

      • Difficulty of line drawing: It was difficult, if not impossible, to identify an organizing principle that would distinguish between those functions that are traditional governmental functions and those that are not.

      • Problem of subjectivity: Any rule of state immunity that looks to the traditional, integral, or necessary nature of government functions inevitably invites an unelected federal judiciary to make decisions about which state policies it favors and which it dislikes.

      • Procedural safeguards: The rejection of National League of Cities did not mean that there are no limitations on the federal government’s right to use its delegated powers to impair state sovereignty. State sovereign interests are protected by procedural safeguards inherent in the structure of the federal system, not by judicially created limitations on federal power. Examples:

      • Each state is required to have 2 senators.

      • States are given general control over electoral qualifications for federal elections.

      • States have a special role in presidential elections through the Electoral College.

      • Dissent: The majority opinion makes federal political officials invoking the Commerce Clause the sole judges of the limits of their own power.

      • Significance: Garcia appears to mean that once Congress, acting pursuant to its Commerce Power, regulates the states, the fact that it is a state being regulated has virtually no practical significance –