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Constitutional Law I
University of Kansas School of Law
Levy, Richard E.

Constitutional Law
Professor Levy
University of Kansas – Spring 2011
I.                   McCulloch Test: for implied powers (where ends-means scrutiny derives)
a.      End
                                                              i.      Ends have to be legitimate (w/in the scope of enumerated powers)
b.     Means
                                                              i.      Have to be appropriate (plainly adapted to the ends)
                                                           ii.      Means cannot be inconsistent with the letter and spirit of the Const
c.      Consistent with the spirit of the Constitution
d.     Application
                                                              i.      1st Step: Whether the power is within the federal scope?
                                                           ii.      2nd Step: If there is a conflict with federal and state law, if determined that the federal law is within the federal powers, then the state law is preempted
                                                         iii.      In McCulloch, the federal law preempts the state tax, because the Bank is N & P to taxing and spending ends
II.               Political Process Reasoning (originated in McCulloch)
a.     if the state taxes a federal institution, the burden of that tax falls on other states
                                                             i.      the state is burdening people that have no say in the political process
b.     by contrast, if the nat’l gov’t taxes a federal institution, then all states are affected, nat’l gov’t is politically accountable
c.      this burden export by the state is a political process failure
                                                              i.      judicial intervention is justified to stop this misguided situation
                               I.            Rational Basis Test to decide whether law within scope of congressional power (matador review)
a.      Components—law invalid only if
                                                                                      i.      Ends (no rationale for congressional finding that the regulated effects interstate commerce) OR
                                                                                   ii.      Means (there is no reasonable connection b/w the regulatory means and the asserted ends)
                                                                               iii.      Almost impossible to strike down a law, hard to prove there is no reasonable basis for a particular means
b.     Broad federal power
                                                                                     i.      Civil rights cases—upheld civil rights acts—prohibited racial discrimination in interstate commerce (included hotels and restaurants) (Heart of Atlanta)
1.     State action doctrine—limited Congress to prescribing only rules to states, wouldn’t allow Congress to prohibit private acts of discrimination
2.     Court was more willing to uphold law under Commerce power than EP clause
                                                                                  ii.      US v. Perez (cumulative effects)
1.     Maybe individual loan sharking doesn’t effect IC, but combined, it might
                                                                               iii.      Restaurant case: Congress can regulate activity if the food could potentially be moved to other states
1.     Jurisdictional nexus provisions (unrelated to effect)
                           II.            New Federalism—series of decisions in 1990s that struck down federal law (restricting commerce power)
                        III.            The Lopez/Morrison FW – Lopez is more significant of the two cases; court willing to limit CP
a.     Significance of Lopez (possession of gun in school zone)
                                                                                     i.      Restatement of Doctrine – no more application of RB test, go to…Categorical approach
b.     Confirmed in Morrison – created new framework
                                                                                     i.      Categories of Permissible Regulation
                                                                                  ii.      Substantial Effects Test
c.      Implications of Raich
                                                                                     i.      Court uses the first prong of the substantial effects test to affirm regulation of growth and consumption of pot as an economic activity
                                                                                  ii.      Substantial factor test is not applied, uses the Wickard standard and not Lopez, because it deems pot as an economic activity
                                                                               iii.      May be a sign that New Federalism is running out of steam, giving power back to Congress
                         IV.            Categories of Federal Regulation – 3 categories of regulation w/in scope of commerce power
a.     Regulate Use of the Channels – roads, rivers, internet
b.     Regulate and

                     ii.      Findings must be relevant to the inquiry 
                                                                                 iii.      Lack of findings in Lopez
1.     court says findings are not required
2.     But aid the court in its “independent evaluation”
                                                                                 iv.      Findings in Morrison “Unhelpful”
1.     findings showed aggregate effects but irrelevant b/c noneconomic activity
2.     Would have to find that every act of gender-motivated violence has effect on interstate commerce
d.     (4)  is it a traditional State Power (the argument proves too much—give too much power to the federal gov’t)
                                                                                      i.      Problem – if those findings were sufficient, then it would lead to congress having authority to regulate everything traditionally held as state power
                                                                                   ii.      i.e. we’ve reasoned to a contradiction through enumerated powers; congress able to regulate anything – even police powers held for states
                                                                                 iii.      National Productivity Proves Too Much:
1.     Lopez: Would “convert congressional authority under the Commerce Clause to a general police power of the sort retained by the states.”
2.     Morrison: Suppression of violent crime “has always been the prime object of the States’ police power. . . . ” Reasoning might allow “Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority . . . .”
General point re: commerce power
·        What can’t congress regulate
o   Small body of activity—non-economic activity in a traditional area of state authority without a jurisdictional nexus to interstate commerce unless each instance of that activity has a substantial effect on interstate commerce
Even if something is beyond the commerce power, congress might be able to reach it with other powers