Constitutional Law
Perry
Fall 2011
· Commerce Clause: Article I, Section 3
· Regulate commerce among the states, foreign nations and Indian tribes
o Tests
· Direct v. indirect effect
· Sufficient effect v. insufficient effect
· Substantial effect
· Rational basis
· Gonzales v. Oregon
· Gonzales v. Raich 2005: marijuana cultivation allowed by CA law can be regulated under commerce clause
o Lopez & Morrison were seen as major changes in federalism before Raich
· Practical effect: gun ban reenacted just w/ jdx nexus requirement
· Lopez & Morrison appear to limit aggregation principle to economic & commercial activity
o “Congress can regulate purely intrastate activity that is not itself commercial (produced for sale) if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity”
· Rational basis that leaving home consumed weed outside reg. scheme would substantially influence price & market conditions
o Controlled substances act as comprehensive scheme to regulate supply & demand of substances
· Regulation w/in commerce power bc production for home consumption substantially affects market conditions (like home consumption in Wickard)
o Reliant on Wickard aggregation principle in contrast to rejection in Lopez & Morrison
· Cultivating for home consumption a commodity for which there is an interstate market
· Both laws designed to control supply & demand of commodity
· Leaving home consumed product outside of regulatory scheme would have substantial affect on price & market conditions in national market for commodity
· Rational basis for Congress to conclude that regulation of intrastate cultivation would leave gaping hole in CSA
· Fungible commodity is important factor
o DIFFERENCE FROM LOPEZ & MORISSON
· No dispute that CSA is w/in Congresses power, whereas the acts in Lopez & Morrison were found unconstitutional
§ No argument that a provision is unconstitutional exercise of Congressional power
§ Want an exemption for themselves, saying that prohibition of manufacture & possession of marijuana should not apply to intrastate manufacture & possession in compliance w/ CA medicinal law
· Part of comprehensive framework to regulate an interstate market. Not a single subject statute that doesn’t' regulate any economic activity
· CSA regulates “quintessentially economic activity
· P's ask to excise individual application of admittedly valid regulatory scheme
o SCALIA CONCURRENCE: necessary and proper clause gives Congress authority to regulate intrastate activities that do not themselves substantially affect interstate commerce. Not simply from commerce clause. He may have even upheld it even if it was not part of a general scheme bc of necessity to regulation of interstate commerce
· Activities that affect commerce are not themselves part of commerce so power to regulate them cannot come from commerce clause alone
§ Authority to enact laws necessary & proper to regulation of commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce
§ If law is necessary to make regulation of interstate commerce effective, Congress may regulate intrastate activity that does not substantially affect IC
§ Question is just if means are “reasonably adapted to attainment of a legitimate end”
§ Drafting guide criticism unjustified, bc may only be exercised in conjuction with Congressional regulation of a legitimate interstate market
o CONCURRENCE:
o DISSENT: placement w/I comprehensive regulatory scheme not enough to make regulating possession (not economic) constitutional under the commerce clause. The amounts in question are much smaller than in Wickard. Sees no evidence that medical users are large enough of a class to have a substantial effect on interstate commerce
· Outer limits of Commerce Clause are enforced to protect historic spheres of state sovereignty from federal encroachment and maintain distribution of power fundamental to federal system
· States can serve as laboratory. State police powers have always included authority to define crime and protect health, safety & welfare of citizens
· Court extinguished CA judgment w/o proof that there is an effect on interstate commerce
· Lopez turned on 4 factors that are identical in this case
§ Substantial effects test have generally upheld federal regulation of economic activity that have an effect on IC
§ Statute has no jurisdictional requirement establishing connection to commerce
§ Absence of legislative findings
§ Govt argument of effect too attenuated
· So does it mean Congress should just create broad, all-encompassing statutes to avoid commerce challenge?
· Definition of economic activity seems to be all encompassing
§ Substitutive properties can be found anywhere
§ Affect on market demands line is to draw no line at all
· Lopez makes clear that possession is not commercial
· DISTINGUISH FROM WICKARD: Wickard had an exemption for small producers that did not affect the market by their actions
§ No evidence that homegrown marijuana is a large enough class to aggregate
o DISSENT: If Congress can regulate this, it can regulate anything and the government is no longer one of enumerated powers
· Congress may not use incidental authority to subvert basic principles of federalism and dual sovereignty
o IMPLICATIONS
· Does CC analysis turn on generality of regulation as assessed by the court?
· Does the single subject distinction imply that regulation merely needs to be included in a broad general scheme to be Constitutional under the CC?
· What are the implications of the Raich attempt at legalizing a federal crime, whereas Lopez and Morrison duplicate state statutes
· Are there some economic markets that some cannot opt out of?
§ Do individuals who choose not to engage still not place themselves outside the reach of the Commerce Clause
· Seems to claim that CC can reach any economic decision, and that producing a good that a market exists for is an economic activity and therefore in the reach of the CC even if not commercial “intercourse”
· The Raich case was limited to commodities with an established market, but what are it's implications for less economic activities, but still part of broad regulatory schemes
· US v. Morrison 2000: civil damages provision of Violence Against Women Act is unconstitutional
o Substantial effect test: Court has only “upheld commerce clause regulation of intrastate activity only where economic in nature”
o Gender motivated crimes are not economic
o Upheld the Lopez 3 part test
· Congressio
ute only affecting guns that travelled in IC, but why force this on prosecutors?
· Broadness of the Commerce Clause
§ If interpreted too broadly, it renders the Section 8 meaningless
· Constitutional interpretations
§ Judicial review cuts against majority, but it protects against passing whims with permanence of Constitution
§ Is Constitution supposed to be originally understood?
· A looser interpretation may subject to judge made law
· Intertextualism assumes that language of Constitution is internally coherent
· Originalism must coexist with stare decisis
· National League of Cities v. Usury
o Accepts that commerce power would allow Congress to prescribe wages for cities
o Tries to carve out an exception for federalism, 10th Amendment as a limit on commerce power
· Prevent utter destruction of state sovereignty
· Defines “core functions” of a state (without them, state does not exist)
· Perez v. US 1971: prohibition on “extortionate credit transaction” if accompanied by threat of violence is Constitutional
o Congressional findings show that loan sharking provided organized crime with second most lucrative source of revenue and siphons from legit business
o Adequate to believe that loan sharking affects IC
o Outer limits of “affecting commerce” rationale for crime
· Even if purely interstate, nevertheless directly affect interstate & foreign commerce
§ Loan sharking in national setting is method of organized crime holds gun to heads of poor
· Katzenbach v. McClung 1961 (Ollie's BBQ): application of Title II of Civil Rights Act to private restaurant Constitutional
o IC burdened by discrimination in restaurants (less spending by blacks attributed to segregation)
o Discrimination discourages travel bc they won't be able to eat
o Facts provide rational basis for finding discrimination affects IC
o CONCURRENCE: there is conceivably a remote location that buys and sells ONLY locally that could be exempt from the statute
· Heart of Atlanta Motel v. US 1964: holds Title II of the CRA banning discrimination in public accommodations constitutional
o Harder for blacks to travel bc of difficulty finding lodging
o Just because statute addresses a moral wrong does not restrict Congress from acting, what matters is relation to IC
o CC grants power to regulate decisions not to engage in transactions w/ whom plaintiff did not wish to deal
· Wickard v. Filburn 1942: application of AAA to wheat grown for home consumption constitutional
o MAIN POINTS: aggregation, political protection
o Local and noncommercial activity can be regulated if it “exerts a substantial economic effect on interstate commerce”