1. CONSTITUTIONAL LAW CLASS 12 February 4, 2008 Limits on Federal Legislative Powers: The Tenth Amendment

2. MODERN LAW: 3 THINGS CAN BE REGULATED UNDER THE COMMERCE POWER 1. Channels of interstate commerce (e.g. roads, terms/conditions on which goods can be sold interstate) 2. Instrumentalities of interstate commerce (e.g airlines, railroads, trucking) and persons/things in intersatet commerce 3. any economic activity that has a substantial relationship with interstate commerce or substantially affects interstate commerce (read together with N & P clause)

3. The Tenth Amendment The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.

4. ERA I: 1824-1890s Gibbons v. Ogden (1824) [C p. 113]

5. ERA II: 1890s-1836 Hammer v. Dagenhart (1918) [C p. 125]

6. Hammer v. Dagenhart (1918) (CB Justice Day wrote the majority opinion Powerful dissent by Justice Holmes (pictured left) (joined by McKenna, Brandeis, and Clarke

7. Zone of Activities In Era 2, Court accepts that a zone of activities is reserved to states by Tenth Amendment and this limits commerce power (dual sovereignty) This zone is not consistently defined?

8. ERA 3: 1937-1990s U.S. v. Darby (1941) [C p. 134] Justice Stone delivered opinion of the Court (unanimous) Tenth Amendment “states but a truism that all is retained which has not been surrendered.”

9. Era 3: National League of Cities v. Usery (1976) [C p. 145] 5-4 Majority opinion written by Justice Rehnquist (joined by Burger, Stewart, Blackmun, and Powell) Concurring opinion by Blackmun Dissent by Brennan joined by White and Marshall

10. Era 3: Garcia v. San Antonio Metropolitan Transit Authority (1985) [C p.148] 5-4 overrules Usery Justice Blackmun wrote the majority opinion, joined by Brennan, White, Marshall, and Stevens Powell, Rehnquist, O’Connor, Burger dissent

11. Beginning of Tenth Amendment Era IV (Revival as a limit): Gregory v. Ashcroft (1991) [C p. 176-177] Sandra Day O’Connor wrote for the Court (joined by Rehnquist, Scalia, Souter, Kennedy, and as for the judgment, White and Stevens) Blackmun, joined by Marshall, dissented Statutory construction case “Clear statement” rule

12. New York v. United States (1992) [C p. 177] Justice O’Connor delivered the opinion of the Court (joined by Rehnquist, Kennedy, Souter, Thomas, Scalia) 6-3 decision Dissenters: White, Blackmun, Stevens

13. New York v. United States (1992) [C p. 177] Dissent of Justice White (joined by Blackmun and Stevens) For which professional football team(s) did “Whizzer” White play?

14. Only 3 Current US Low Level Nuclear Waste Disposal Sites

15. Printz v. United States (1997) [C p. 186] 5-4 decision Scalia wrote majority opinion (joined by Rehnquist, O’Connor, Kennedy, Thomas) Dissenters: Stevens, Souter, Ginsburg, Breyer

16. Printz v. United States (1997) [C p. 186] Concurring opinion of Thomas – he questions whether the Second Amendment confers an individual right Supreme Court will consider that issue in a challenge to DC handgun regulation, District of Columbia v. Heller – oral argument to be on 3/18/2008

17. Reno v. Condon (2000) [C p. 195] Chief Justice Rehnquist wrote the opinion of the Court Unanimous decision How is this case different, if at all, from Printz and New York?

18. Reno v. Condon (2000) [C p. 195] DPPA Act enacted after actress Rebecca Schaeffer (star of 1980s sitcom: My Sister Sam) was killed by a crazed fan who had obtained her home address from the CA DMV via an AZ private investigator)