Constitutional Law I Outline - Professor Wallace - Campbell Law - Part 5

The modern comm clause (hand in hand with nec and proper):

• Expands the definition of commerce
• Expands the definition of interstate (reaching intrastate)
• Gives congress a virtual police power within the states (ie Darby, Heart of Atlanta)

US v Morrison

• Applied the Lopez factors and found that the Violence Against Women Act was unconst as violative of Com Cl power; even though Congress had made findings that gender-motivated crimes do impact int comm, that was insufficient
• Significance of the two cases is that they say:
  • If Congress is going to regulate intrastate, non economic activity, it must be part of a broader economic scheme that regulates interstate commerce
  • There has to be a close causal connection/relation between the activity and the interstate commerce (ie the link)
  • Allowing congress to regulate this it cannot obliterate the distinction between what is national and what is state

Gonzales v. Raich: Congress may regulate the use and production of home-grown marijuana as this activity, taken in the aggregate, could rationally be seen as having a substantial economic effect on interstate commerce

1. Congress can regulate purely intrastate (local) noncommercial activity (i.e., not produced for sale) if essential to larger scheme of regulating interstate market in that commodity
   • Adopts broad definition of what is economic and looks at category as whole (noneconomic activity can be regulated so long as other economic activity is regulated along with it)
2. Congress can regulate individual instances of activity if “total incidence” (i.e., aggregate effect) of activity affects national market
   • Compares Wickard
3. Rational basis review: Is there a rational basis for Congress to conclude that these activities—taken in the aggregate—substantially affect IC?

Scalia’s concurrence: N&P Clause is true rationale here—Congress may prohibit intrastate production and use as necessary to extinguishing national market for marijuana

Has to be a relationship between the means and the end

• End being the regulation of marijuana

Disentangling the Commerce and Necessary & Proper clauses:

1. COMPLEMENTARY: Commerce Clause authorizes regulation of IC, but all in-state commerce is actually regulated by the N&P Clause (Scalia’s view)
2. CUMULATIVE: Commerce Clause authorizes regulation of all commerce that affects IC, and the N&P Clause adds even more power on top of that (what is left?)
   • With this view, Congress would have virtual police power
3. CONFLICTING: Commerce Clause authorizes regulation of all commerce that affects IC, but the N&P Clause actually cuts back on that power (inconsistent with McCulloch, right?)
4. REDUNDANT: Two clauses can’t be disentangled, because the Commerce Clause already contains incidental-powers authority, which is redundantly confirmed by N&P Clause (essentially Madison’s view)

*1 and 4 most plausible views

Limiting principles? (Scalia):

1. Lopez and Morrison: Attenuation—can’t “pile inference upon inference” to establish that noneconomic activity has substantial effect on interstate commerce (but WEAKENS this rule)
2. Congress may regulate noneconomic intrastate activities only when (1) regulation is necessary part of more general regulation of interstate commerce (economic activity) and (2) failure to regulate would undercut its regulation of interstate commerce
3. Means must be “appropriate” and “plainly adapted” to legitimate end (= majority’s rational basis test??)
4. Not “proper” when violates principle of state sovereignty

The Necessary & Proper Clause US v Comstock:

• Rule: Under the Necessary and Proper Clause, Congress has the authority to enact a law that allows civil commitment of mentally ill, sexually dangerous federal inmates beyond the end of the prisoners' criminal sentences
• Challenge to civil commitment statute
• TEST: Does law constitute a means that is rationally related to implementation of constitutionally enumerated power? (i.e., are the means chosen reasonably adapted to the attainment of a legitimate end?)
  • What is the enumerated power “end” here?
  • Links between statute (means) and enumerated power (end) must not be too attenuated?
  • Statute (means) must “properly” account for state interests
• Limiting principle: Does not confer general “police power” on Congress—but isn’t creating crimes a “great substantive and independent power”? (see McCulloch)

The Necessary and Proper Clause and State Sovereignty:

• Summary:
• Congress’ Power to Regulate the States State Sovereignty:
• Any limits on Congress’ power to regulate states as such? (internal (Enumerated Powers, Necessary and Proper Clause, Commerce Clause) v. external limits (Bill of Rights and 14th Amendment, etc.)
• Garcia v. San Antonio Metropolitan Transit Authority: there are NO limits
  • Suggests no judicially-enforceable limits on Congress’ powers at all—left to “political safeguards of federalism”)
• Does the Constitution presume that states retain a core of sovereignty upon which federal power cannot intrude?

New York v. United States:

• Two approaches to determining limits on congressional power
• Tenth Amendment a truism?

§ Operates as sign post that points us to this extra textual principle of state sovereignty (barring Congress of regulating state and local governments)

§ Congress cannot not invade that core of state sovereignty

• Congress cannot invade an “incident of state sovereignty”
• ANTI-COMMANDEERING RULE (applied to state legislatures)
• Although they can incentivize local and state governments
• However, if they make them an “offer they cannot refuse,” then that DOES violate rule

Printz v. United States: Anti-commandeering rule applied to state executives

Testa v. Katt (n.2, p. 596): State courts are exception to anti-commandeering rule

Other exceptions to anti-commandeering rule:

1. State militias when called into federal service
2. State election machinery
3. Federal court jurisdiction over states as parties
4. Full Faith and Credit Clause

Application: Anti-commandeering rule to Trump policy on sanctuary cities?