1. Constitutional Law I Federal Power V (“New Federalism”) Feb. 17, 2006

2. Fall, 2004Con Law I - Manheim2 US v. Morrison (2000) Victim of gender violence sued private party and state under Violence Against Women Act Christy Brzonkala Const’l basis for VAWA Commerce Clause 14 th Amd, § 5 “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”  Notice the link to § 1

3. Fall, 2004Con Law I - Manheim3 US v. Morrison (2000) Regulating individuals under Lopez CC test Gender violence as channel/instrumentality of IC? Activities substantially affecting IC?  Sexual assault is non-economic criminal activity  Lack of jurisdictional element  Copious and express congressional findings 4 years of testimony showing effects on commerce General violence costs the economy $4 billion annually Isn’t the Ct. better able to evaluate economic matters than Congress? Souter: majority is protecting state autonomy despite clear links to IC?

4. Fall, 2004Con Law I - Manheim4 US v. Morrison (2000) Congress’ power under Section 5 Private assaults do not violate 14 th Amd, § 1 State’s failure to protect women students also does not violate 14 th Amd, § 1; therefore Regulation of either not appropriate under § 5 Visions of Federalism Nationalist vs. Statist Static vs. Dynamic economy Originalist vs. Dynamic Const’l Interpretation  Souter: “the federalism of some earlier time …”

5. Fall, 2004Con Law I - Manheim5 Gonzales v. Raich (2005) Issue: Is the Controlled Substances Act  Constitutional on-its-face? Not challenged  Constitutional as-applied to intrastate growing & use of marijuana for non-commercial medicinal purposes? Apply Lopez A channel of interstate commerce? An instrumentality of interstate commerce  or persons or things in interstate commerce [Local] activities that “substantially affect” IC

6. Fall, 2004Con Law I - Manheim6 Gonzales v. Raich (2005) Substantially affecting IC: Jurisdictional element?  Interstate movement not required Congressional findings?  FN20: Most traffic & use involves IC  (5) Intrastate substances “cannot be distinguished from [those] manufactured and distributed interstate”  (6) “Federal control of the intrastate incidents of the traffic in controlled substances is essential to effective control of the interstate incidents of such traffic."  Are these findings binding on the Court?

7. Fall, 2004Con Law I - Manheim7 Gonzales v. Raich (2005) Substantially affecting IC: Economic transactions  Aggregate “class of activities” What is the relevant class? Nationwide market in legal/illegal marijuana Growing own pot for medicinal purposes in Cal?  How distinguish Wickard? Home grown consumption displaced market transaction Here, no market transactions because they are illegal Congress’ power to regulate includes power to “prohibit” Lottery Case Can’t isolate a separate class to avoid aggregation

8. Fall, 2004Con Law I - Manheim8 Is it irrational to assume that an interstate market exists for medical marijuana?

9. Fall, 2004Con Law I - Manheim9 Gonzales v. Raich (2005) How “rational” must Congress be? About the effect on IC? That marijuana has no acceptable medical uses. What if Congress is wrong on the science? Compare Partial-Birth Abortion Ban Act of 2003 Finding that intact dilation/extraction “is never medi- cally indicated to preserve the health of the mother” disputed by medical community found “unreasonable” by District Ct. & 8th Circuit Gonzales v. Carhart (2/21/06)

10. Fall, 2004Con Law I - Manheim10 Gonzales v. Raich (2005) Scalia (concurrence) Congress may regulate local non-economic activities if  Necessarily incident to regulation of interstate market  But not absent market regulation, simply on the theory that every action is economic consequences Thomas (dissent) Note his interpretivist methodology  Originalism (citing “founding-era dictionaries”) Commerce does not include all economic activity  New Deal cases (& Gibbons?) wrongly decided

11. Fall, 2004Con Law I - Manheim11 Practice Questions 1. During the era of dual federalism, could Congress regulate environmental quality? a.Isn't pollution created & felt entirely intrastate? b.Does pollution affect or in the current of commerce? c.Would it matter if congress enacted the law as a health measure, rather than to promote commerce? 2.Could states regulate environmental quality? 3.Could congress enact consumer protection laws? a.Besides the FTC and the SEC, what other federal agencies are unconstitutional? b.Since health & welfare is a quintessential state concern, would federal law violate the 10 th amd?