2. Constitutional Law I Spring 2004Con Law I Federal Power IV “Dual Federalism” - Revived Feb. 24, 2004

3. 2 US v. Lopez (1995) Respective spheres of authority Federal: commerce State: education, gun control?  Exclusively state?  Or shared responsibility? What impact do guns in/near schools have on commerce?

4. 3 Categories of Interstate Commerce Channels of IC transportation systems interstate shipments, accommodations Instrumentalities of IC vehicles, vessels persons or goods in transit Activities w/ substantial relation to IC Intrastate activities w/ substantial effect on IC  "class of activities" (i.e., in aggregate)  difference betw. substantial & insubsubstantial?  who decides?

5. 4 Gun-Free School Zones Act Regulation of Channels? Regulation of Instrumentalities? Substantial Effects? Does possession of guns on school campuses substantially effect IC?  increases trade in guns, bullets, coffins  helps control drug trade  obstructs educational process  lessens US preparedness in world economy

7. 6 Proving Substantial Effects Commercial transactions sale of gun, yes mere possession of gun, no Jurisdictional element proof that gun had traveled interstate must be element of prima facie case Legislative findings aids court in determining link  would court defer to congress?  no rubber stamp (obliterate distinction)

8. 7 Text & Subtext of Opinions Rehnquist (majority) Kennedy (concur) Thomas (concur) Stevens (dissent) Souter (dissent) Breyer (dissent) Reassert judicial supremacy over federalism; rejects RB test judiciary to maintain state/federal balance Commerce restricted to meaning understood by the framers Guns are harmful articles of commerce w/ interstate market Rejects originalism; Majority op is radical judicial activism SoP case: Majority substitutes its economic judgment for congress’

9. 8 Lopez audio Oral opinion Oral argument

10. 9 Pierce County v. Guillen (2003) State Gov’t (state agencies, courts)?  If so, congress is regulating the states themselves. Regulating “channels” includes appropriate incidents (e.g., state tort policy) Federal grant aid for highways preempts WA Public Discl. Act What is congress regulating? Roads?  well established that Congress has authority to "reg- ulate the use of channels of interstate commerce”

11. 10 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

12. 11 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?

13. 12 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 …”

14. 13 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?