QUESTION: I was a bit confused about what exactly makes the spending clause moot.
ANSWER: Just to make sure we are clear about the relevant question, let me make two points. First, I do not think the subsequent spending legislation rendered the original lawsuit about the DPPA moot. Second, the Spending Clause itself cannot be moot; the question is whether the appropriations legislation rendered the first lawsuit, challenging the coercive DPPA, moot.
QUESTION: Is it because the enumerated powers under the commerce clause make the regulation constitutional, so then the other question about other constitutional problems becomes moot?
ANSWER: No, that is a different question -- whether the government's success in the first lawsuit would render a challenge to the appropriations legislation moot. And the answer to that question (which we did not address in class) would have to be yes. If the states must comply with the DPPA regardless, then conditioning their highway dollars on compliance with that law (which they must comply with no matter what) is no longer an issue. In class, though, we were discussing a different question -- namely, did the enactment of the appropriations legislation render the lawsuit challenging the DPPA moot. And the answer is no. South Carolina might well have decided to decline the 25% of its highway funding at stake under the appropriations legislation. And if it did so, it would need to know whether it must comply with the DPPA regardless. In all events, South Carolina needed to know whether the coercive DPPA was constitutional to make an informed choice as to whether to accept the highway dollars under the appropriations legislation. Thus, there remained a live controversy. South Carolina was still "injured" to the extent it was being forced (or imminently forced) by federal law to do something that it wished not to do.
Thursday, February 25, 2010
Tuesday, February 23, 2010
Problem 3
QUESTION: In the case presented in Problem 3, could not a case be made under the "protection of people involved in IC" since the subjects of the depictions are children, and therefore need special protection? More generally, can the Commerce Clause be satisfied in prohibiting any economic activity where children are exploited?
ANSWER: Perhaps. But consider these responses:
1. The children themselves are not actually "in" commerce here. Only images of them are. Thus, it is unclear that the category fits comfortably enough. Perhaps the images are "things" in commerce. But that only is necessarily true of images that satisfy the first jurisdictional element. And it seems Congress could already regulate this activity under the "use of the channels" rationale.
2. As to the more general question you raise, if it is an "economic" activity (whatever that exactly means), then we do not need to worry about whether children are being exploited to justify the Act under the Commerce Clause. Remember, if the regulated activity is economic or commercial in nature, Congress can reach it under the substantial effects category.
QUESTION: In class it was stated that not only might the Court find that the statue was applicable under the "substantial factor" prong, but also could be applied to the "use of channels" prong, since Congress is criminalizing the use of a computer.
ANSWER: Not quite. I think, using the first of the two jurisdictional elements, the statute might successfully be characterized as a regulating the shipping or transport of items in interstate commerce, which might be described as a regulation of the use of the channels of interstate commerce.
QUESTION: I thought when Congress decides to criminalize something that is used in the channels this is more under prong two, as the "use and instrumentalities of items used in interstate commerce" as oppossed to controlling the actual channel it seems Congress is controlling the instrumentaility used in the channel (the computer).
ANSWER: I think many laws could fit under both prongs simultaneously. A law criminalizing the use of the mails or the Internet to sell or transport certain images could be characterized both as (1) a regulation of the channels of interstate commerce, and (2) a regulation of a thing in interstate commerce. If Congress were attempting to regulate the computer itself (which I do not think the Act in Problem 3 does), then yes, it might be considered the regulation of an instrumentality (if a computer would so qualify). But again, I do not think this statute actually regulates the computer itself.
ANSWER: Perhaps. But consider these responses:
1. The children themselves are not actually "in" commerce here. Only images of them are. Thus, it is unclear that the category fits comfortably enough. Perhaps the images are "things" in commerce. But that only is necessarily true of images that satisfy the first jurisdictional element. And it seems Congress could already regulate this activity under the "use of the channels" rationale.
2. As to the more general question you raise, if it is an "economic" activity (whatever that exactly means), then we do not need to worry about whether children are being exploited to justify the Act under the Commerce Clause. Remember, if the regulated activity is economic or commercial in nature, Congress can reach it under the substantial effects category.
QUESTION: In class it was stated that not only might the Court find that the statue was applicable under the "substantial factor" prong, but also could be applied to the "use of channels" prong, since Congress is criminalizing the use of a computer.
ANSWER: Not quite. I think, using the first of the two jurisdictional elements, the statute might successfully be characterized as a regulating the shipping or transport of items in interstate commerce, which might be described as a regulation of the use of the channels of interstate commerce.
QUESTION: I thought when Congress decides to criminalize something that is used in the channels this is more under prong two, as the "use and instrumentalities of items used in interstate commerce" as oppossed to controlling the actual channel it seems Congress is controlling the instrumentaility used in the channel (the computer).
ANSWER: I think many laws could fit under both prongs simultaneously. A law criminalizing the use of the mails or the Internet to sell or transport certain images could be characterized both as (1) a regulation of the channels of interstate commerce, and (2) a regulation of a thing in interstate commerce. If Congress were attempting to regulate the computer itself (which I do not think the Act in Problem 3 does), then yes, it might be considered the regulation of an instrumentality (if a computer would so qualify). But again, I do not think this statute actually regulates the computer itself.
Revisiting Raich
QUESTION: I was wondering if the Court had some pragmatic concernsunderlying there rationale in Raich. I think that they may have been concerned with the effectiveness of CA regulatory scheme for policing the parameters of the compassionate use act. In reality, individuals with club cards can grow a certain amount in their home. They then take this and sell it back to the clubs for a nice profit. The club then turns this home grown product around and sells it to other individuals with their club card. The key to the kingdom, if you will, is obtaining a club card, which anyone, practically, can obtain for $200 and a trip to a local physician with the excuse of back pain or insomnia. These individuals can take the "home grown" intrastate activity and transport this whereever they like, including an easy trip up I-5 to Washington and Oregon, east to Nevada and southeast to Arizona or New Mexico. I was wondering if CA (Raich) could have evinced stronger evidence ofeffective regulatory mechanisms to control the potential distribution of this home grown product if that evidence would have affected the Court's analysis or at least their ability to rationalize the application of the statute as they did?
ANSWER: There are several different angles to your question. Let me try to take them up in turn:
* My guess is that the justices had very little idea of how things were working here in California on the ground. Not only are they a little clueless about everyday life, but there probably was little in the way of credible sources for this information presented in the briefs. So I doubt that it made much difference.
* Further, and perhaps more importantly, the six justices in the majority appear to believe that, as an analytic matter, the breadth of Congress's enumerated powers does not -- indeed cannot -- depend on what a particular state happens to be doing as a matter of state law. Either Congress has the power or not. How the states choose to use their residuary powers simply does not affect the object of inquiry.
* Supposing the justices did know of these facts on the ground, would it have affected their decision? Perhaps. It is nearly impossible to tell, as they rarely advert to such considerations in their opinions. Nor do they even mention these things in their internal memoranda, such that we likely won't even know once their papers become public. So, in a sense, your question is almost unanswerable, even though it is a real good one.
QUESTION: So when the Court is processing whether the particular statute is within the breadth of Congress's powers, it is taking a broader view analytically of its function and corresponding effect with little consideration to the particular operation of the state mechanism that is the source of the lawsuit.
ANSWERS: So the justices assert in their opinion in Raich. and I tend to believe them.
QUESTION: So in the Raich case, if she would have introduced evidence showing that the regulatory mechanisms in CA were iron clad so that the marijuana grown intrastate would not possibly have reached channels of interstate commerce, then this would have had no effect on the justices' rationale or corresponding decision.
ANSWER: Again, yes. This is what the opinion says. The breadth of federal power cannot logically turn on how states exercise their residuary powers. And I believe this is how the justices sincerley thought about the problem. (And, for what it is worth, I think they are correct to take such an approach.)
QUESTION: I was wondering though if during your time with Justice O'Connor you observed any of these types of discussions entering the discourse amongst the justices, or at least as a point of individual interest or thought?
ANSWER: Sure, every now and again. You hear comments. But again, it is hard to know what is causing what. It is really almost a question of neuroscience. There is a lot of research showing that apparent logical, analytical reasoning is actually driven by deeper, more emotional responses to stimuli. We experience it in our brain as logic, but that is not the part of the brain that lights up in the brain scan. So it is just too difficult to tease out what is driving what. No doubt, these sorts of considerations can matter. Thus, as an advocate, you are well advised to getting as much as possible in front of a judge. You just do not really know what is going to actually affect any decision. And you do not want to insult a judge by suggesting that she might make her decision based on something other than the law.
ANSWER: There are several different angles to your question. Let me try to take them up in turn:
* My guess is that the justices had very little idea of how things were working here in California on the ground. Not only are they a little clueless about everyday life, but there probably was little in the way of credible sources for this information presented in the briefs. So I doubt that it made much difference.
* Further, and perhaps more importantly, the six justices in the majority appear to believe that, as an analytic matter, the breadth of Congress's enumerated powers does not -- indeed cannot -- depend on what a particular state happens to be doing as a matter of state law. Either Congress has the power or not. How the states choose to use their residuary powers simply does not affect the object of inquiry.
* Supposing the justices did know of these facts on the ground, would it have affected their decision? Perhaps. It is nearly impossible to tell, as they rarely advert to such considerations in their opinions. Nor do they even mention these things in their internal memoranda, such that we likely won't even know once their papers become public. So, in a sense, your question is almost unanswerable, even though it is a real good one.
QUESTION: So when the Court is processing whether the particular statute is within the breadth of Congress's powers, it is taking a broader view analytically of its function and corresponding effect with little consideration to the particular operation of the state mechanism that is the source of the lawsuit.
ANSWERS: So the justices assert in their opinion in Raich. and I tend to believe them.
QUESTION: So in the Raich case, if she would have introduced evidence showing that the regulatory mechanisms in CA were iron clad so that the marijuana grown intrastate would not possibly have reached channels of interstate commerce, then this would have had no effect on the justices' rationale or corresponding decision.
ANSWER: Again, yes. This is what the opinion says. The breadth of federal power cannot logically turn on how states exercise their residuary powers. And I believe this is how the justices sincerley thought about the problem. (And, for what it is worth, I think they are correct to take such an approach.)
QUESTION: I was wondering though if during your time with Justice O'Connor you observed any of these types of discussions entering the discourse amongst the justices, or at least as a point of individual interest or thought?
ANSWER: Sure, every now and again. You hear comments. But again, it is hard to know what is causing what. It is really almost a question of neuroscience. There is a lot of research showing that apparent logical, analytical reasoning is actually driven by deeper, more emotional responses to stimuli. We experience it in our brain as logic, but that is not the part of the brain that lights up in the brain scan. So it is just too difficult to tease out what is driving what. No doubt, these sorts of considerations can matter. Thus, as an advocate, you are well advised to getting as much as possible in front of a judge. You just do not really know what is going to actually affect any decision. And you do not want to insult a judge by suggesting that she might make her decision based on something other than the law.
More on commandeering
QUESTION: Can Congress never target state officials directly and soley?
ANSWER: I think that is overstating it a bit. Suppose, for instance, Congress enacts a law (e.g., the FLSA) that applies only to private employers. And then, in another law, it extends the same general requirements to states. Is the second law unconstitutional simply because it applies exclusively to the states? Or consider the DPPA (at issue in Problem 4). Is that unconstitutional because states happen to be the only entities in the United States that originally collect DMV information? I think the "applies exclusively to the states" idea is really a proxy for something more substantive: the regulation of a state's governmental (or regulatory) powers. A federal law that regulates the states' regulatory powers -- that forces the states to regulate their citizens in a particular way -- will always apply exclusively to the states, for the simple reason that private persons (or entities) lack the power to govern or regulate. But it is this underlying, substantive idea that matters (in my view) rather than the purely formal question of who the statute covers.
QUESTION: If Congress did want to regulate handguns under the Commerce Clause then what would have been a way it could have done that without offending the Tenth Amendment?
ANSWER: There are several options. Here are some possibilities, which are by no means exhaustive:
* Offer states money on the condition that they enact a state-level GFSZA
* Comprehensively regulate the interstate market in handguns (a CSA for guns, if you will)
* Pass a law stating that, if states do not regulate handguns in a particular way, the federal government will itself through such comprehensive legislation (conditional preemption)
* Rather than regulate guns comprehensively, tack on a jurisdictional element that ensures that, in each instance, the activity in question has a sufficient connection to interstate commerce (which Congress actually did after Lopez)
* Some combination of some of these
QUESTION: That makes a lot of sense now. I just have trouble with the fact that it seems like such a fine line.
ANSWER: To me -- and I'm sure it is just because I've been thinking about it for about 10 years -- it really is not fine at all. Fine lines, I think, exist when there is not a qualitative difference, but just a quantitative one. The question is how much is too much. Here, I think, there is a principled, qualitative difference between regulating a state's governing capacity (commandeering) and regulating its other behavior (such as its employment practices).
QUESTION: The conditional preemptive seems pretty coercive to me and not much different than Congress actually regulating or directly commandering, but that is just my thought.
ANSWER: It is not coercive in the relevant sense. The state, as a state, is not coerced at all. It can simply stand out of the way and let the matter be the federal government's problem.
ANSWER: I think that is overstating it a bit. Suppose, for instance, Congress enacts a law (e.g., the FLSA) that applies only to private employers. And then, in another law, it extends the same general requirements to states. Is the second law unconstitutional simply because it applies exclusively to the states? Or consider the DPPA (at issue in Problem 4). Is that unconstitutional because states happen to be the only entities in the United States that originally collect DMV information? I think the "applies exclusively to the states" idea is really a proxy for something more substantive: the regulation of a state's governmental (or regulatory) powers. A federal law that regulates the states' regulatory powers -- that forces the states to regulate their citizens in a particular way -- will always apply exclusively to the states, for the simple reason that private persons (or entities) lack the power to govern or regulate. But it is this underlying, substantive idea that matters (in my view) rather than the purely formal question of who the statute covers.
QUESTION: If Congress did want to regulate handguns under the Commerce Clause then what would have been a way it could have done that without offending the Tenth Amendment?
ANSWER: There are several options. Here are some possibilities, which are by no means exhaustive:
* Offer states money on the condition that they enact a state-level GFSZA
* Comprehensively regulate the interstate market in handguns (a CSA for guns, if you will)
* Pass a law stating that, if states do not regulate handguns in a particular way, the federal government will itself through such comprehensive legislation (conditional preemption)
* Rather than regulate guns comprehensively, tack on a jurisdictional element that ensures that, in each instance, the activity in question has a sufficient connection to interstate commerce (which Congress actually did after Lopez)
* Some combination of some of these
QUESTION: That makes a lot of sense now. I just have trouble with the fact that it seems like such a fine line.
ANSWER: To me -- and I'm sure it is just because I've been thinking about it for about 10 years -- it really is not fine at all. Fine lines, I think, exist when there is not a qualitative difference, but just a quantitative one. The question is how much is too much. Here, I think, there is a principled, qualitative difference between regulating a state's governing capacity (commandeering) and regulating its other behavior (such as its employment practices).
QUESTION: The conditional preemptive seems pretty coercive to me and not much different than Congress actually regulating or directly commandering, but that is just my thought.
ANSWER: It is not coercive in the relevant sense. The state, as a state, is not coerced at all. It can simply stand out of the way and let the matter be the federal government's problem.
More questions
QUESTION: If Congress has multiple routes to achieve an objective, why shouldn't they be advised on the Constitutionality before going through all the waste to enact a law that SCOTUS shoots down?
ANSWER: Actually, they are. They receive testimony, and they employ a lot of lawyers. So they are advised. They just cannot be advised by judges without running afoul of the limits of Article III.
QUESTION: And why should many of Congress's objectives only be achieved through the Spending Power, which means, by default, that they are spending money in the first place?
ANSWER: To give the response of the Court, because all of those programs give states -- independent sovereigns in our federal republic -- a choice. They cannot be required to do the federal government's bidding. They can only be encouraged, mildly or otherwise.
QUESTION: And in response all the states have to spend money and resources to enact the laws that the central government wants to enact in the first place? It seems enormously ineffecient.
ANSWER: They do not have to. They choose to. It may be a difficult choice, especially given tight state budgets. But states have no constitutional entitlement to federal largesse in the first place. If states feel like they need more revenue, and do not want to depend on the federal government, they can raise their own taxes.
QUESTION: And in a down economy like our current one, do we not run the risk that the feds, who have the authority, apparently, to borrow untold sums from Europe and China, can all the more impose their will by giving the states, who are broke, "incentives" to do things?
ANSWER: Yes, that is certainly a policy risk. At the end of the day, our whole system depends on the voters keeping the government in check, to prevent the government from doing things that harms the country. If we are unable to select legislators who make decent choices, then the whole thing falls apart, regardless of what the Constitution says.
ANSWER: Actually, they are. They receive testimony, and they employ a lot of lawyers. So they are advised. They just cannot be advised by judges without running afoul of the limits of Article III.
QUESTION: And why should many of Congress's objectives only be achieved through the Spending Power, which means, by default, that they are spending money in the first place?
ANSWER: To give the response of the Court, because all of those programs give states -- independent sovereigns in our federal republic -- a choice. They cannot be required to do the federal government's bidding. They can only be encouraged, mildly or otherwise.
QUESTION: And in response all the states have to spend money and resources to enact the laws that the central government wants to enact in the first place? It seems enormously ineffecient.
ANSWER: They do not have to. They choose to. It may be a difficult choice, especially given tight state budgets. But states have no constitutional entitlement to federal largesse in the first place. If states feel like they need more revenue, and do not want to depend on the federal government, they can raise their own taxes.
QUESTION: And in a down economy like our current one, do we not run the risk that the feds, who have the authority, apparently, to borrow untold sums from Europe and China, can all the more impose their will by giving the states, who are broke, "incentives" to do things?
ANSWER: Yes, that is certainly a policy risk. At the end of the day, our whole system depends on the voters keeping the government in check, to prevent the government from doing things that harms the country. If we are unable to select legislators who make decent choices, then the whole thing falls apart, regardless of what the Constitution says.
Catching up on some questions
I have been answering questions for the past two weeks by e-mail, but without posting those questions and answers here. So, over the next week, I am going to try to get them all up -- a sort of potpourri of congressional powers inquiries. Here is the first installment.
QUESTION: I am having difficulty reconciling Printz and New York. The way I understood the 10th Amendment and its effect on limiting congressional powers is that Congress can regulate certain activity under the commerce clause, and create a law like it did in Raich or in Garcia, regulating said activity (wage and hours and illciit drug use). However, as New York stated, it can't "commander" a state to regulate activity. So like in Raich, Congress could not make a law that made California reject its Compassion Use Act and enforce it to regulate personal drug use, but the federal government was not stopped from regulating personal drug use.
ANSWER: Exactly.
QUESTION: In addition, the law has to be generally applicable and can't just fall on the states.
ANSWER: Well, I would not quite say it that way. New York distinguished Garcia on that ground, so we know that a generally applicable law is not a commandeering. But that does not mean (as a matter of formal logic, or I think through a thorough understanding of the doctrine) that any law that is not generally applicable is necessarily a commandeering.
QUESTION: There the federal govenment can regulate states and private individals alike, but it can't leave that regulation up soley to the states.
ANSWER: More precisely, Congress cannot force the states to do the regulation. Congress can leave the regulation up to the states, in the sense that it can leave the area unregulated by the national government.
QUESTION: I think I understand all that, but then Printz comes along and says that the Brady Handgun Act is a violation of the 10th Amendment. But to me it does not seem any different than Garcia. Garcia allowed Congress to set a minimum hour and wage and if that was not followed by the states or individuals, Congress could punish them. To me, Printz is not "commandering," but merely setting a standard action that needs to be done by all.
ANSWER: I think you are misunderstanding the facts of Printz. The provision that was challenged required state executive officers to run background checks. Only government officials were covered by the provision (though obviously it affected private persons).
QUESTION: To me, Printz can be likened to Garcia moreso then to New York because it is merely prohibting conduct and setting a standard for compliance (background checks must be done, like a minimum wage must be set) as oppossed to commanding states to act a certain way. Can you help clarify this for me ?
ANSWER: Again, the law in Printz was a coercive directive aimed at the governmental authority of the state executive branch (the CLEOs). No private persons were required to conduct background checks. (Nor would any private persons have had the authority to conduct such checks.)
QUESTION: I am having difficulty reconciling Printz and New York. The way I understood the 10th Amendment and its effect on limiting congressional powers is that Congress can regulate certain activity under the commerce clause, and create a law like it did in Raich or in Garcia, regulating said activity (wage and hours and illciit drug use). However, as New York stated, it can't "commander" a state to regulate activity. So like in Raich, Congress could not make a law that made California reject its Compassion Use Act and enforce it to regulate personal drug use, but the federal government was not stopped from regulating personal drug use.
ANSWER: Exactly.
QUESTION: In addition, the law has to be generally applicable and can't just fall on the states.
ANSWER: Well, I would not quite say it that way. New York distinguished Garcia on that ground, so we know that a generally applicable law is not a commandeering. But that does not mean (as a matter of formal logic, or I think through a thorough understanding of the doctrine) that any law that is not generally applicable is necessarily a commandeering.
QUESTION: There the federal govenment can regulate states and private individals alike, but it can't leave that regulation up soley to the states.
ANSWER: More precisely, Congress cannot force the states to do the regulation. Congress can leave the regulation up to the states, in the sense that it can leave the area unregulated by the national government.
QUESTION: I think I understand all that, but then Printz comes along and says that the Brady Handgun Act is a violation of the 10th Amendment. But to me it does not seem any different than Garcia. Garcia allowed Congress to set a minimum hour and wage and if that was not followed by the states or individuals, Congress could punish them. To me, Printz is not "commandering," but merely setting a standard action that needs to be done by all.
ANSWER: I think you are misunderstanding the facts of Printz. The provision that was challenged required state executive officers to run background checks. Only government officials were covered by the provision (though obviously it affected private persons).
QUESTION: To me, Printz can be likened to Garcia moreso then to New York because it is merely prohibting conduct and setting a standard for compliance (background checks must be done, like a minimum wage must be set) as oppossed to commanding states to act a certain way. Can you help clarify this for me ?
ANSWER: Again, the law in Printz was a coercive directive aimed at the governmental authority of the state executive branch (the CLEOs). No private persons were required to conduct background checks. (Nor would any private persons have had the authority to conduct such checks.)
Reconciling New York and Garcia
Since the end of yesterday’s class, a number of students have asked about how we can reconcile the holdings of Garcia and New York? What exactly makes them different in a way that explains the different outcomes?
The essential difference is that in Garcia the statute at issue—the Fair Labor Standards Act—regulated an activity (employing persons) that was not distinctively governmental. It merely regulated the state government’s own conduct as an employer. In contrast, the statute in New York—the Low-Level Radioactive Waste Policy Amendments of 1985—regulated the governmental or regulatory powers of the states. It literally required states to pass and enforce legislation according to particular federal directives. Congress, instead of merely regulating the states as it would any other person or entity, was regulating the states’ regulation of their own citizens. It was forcing (no choice, in theory or in fact) states to do the federal government’s bidding.
Thus, the difference is not that the legislation in New York was coercive. It was indeed coercive, but so was the FLSA: it required all covered employers to pay a certain wage (among other things). Nor is it necessarily that the legislation in Garcia was “generally applicable,” although this gets closer to the mark. General applicability is very formalistic, so it seems not to hold any weight on its own.
But “general applicability” is a good proxy for what really matters. And the reason is that only state or local governments can engage in governmental or regulatory activity. A regulation of these capacities simply cannot apply to private persons, for the simple reason that private persons lack the power to govern or regulate. But I cannot believe that general applicability itself is the real touchstone.
To state it differently, if a federal statute is generally applicable, it cannot be a commandeering, for any commandeering could only target states. But I do not think every statute (or portion of a statute) that happens to apply exclusively to the states is a commandeering.
We will talk more about this at the beginning of class Wednesday.
Tuesday, February 2, 2010
Two more perspectives on "political questions"
Before the subject gets too far behind us, I wanted to emphasize two important points about political questions that may help us understand its place in constitutional law more generally:
1. As we discussed briefly in class yesterday, the political questions doctrine is one of several means of avoidance available to the Supreme Court when it would rather not get involved in a controversy (usually to preserve its institutional prestige). The political questions doctrine is the most severe form of such avoidance, because to declare a case to present a political question is essentially to hold that that issue is never reviewable by a federal court. Thus, the Court resorts to it only rarely, where it believes the issue is one that the Court will never want to get into. The less extreme forms include: (a) denying review (as most of the Court's docket is now discretionary); (b) construing the relevant statute so as not to present the constitutional question; or (c) finding some sort of jurisdictional problem with the case (e.g., a lack of standing). You might remember that the Court took this last tack in the famous pledge of allegiance case a few years ago, holding that Michael Newdow (not being the primary custodian of his daughter) lacked standing to assert her daughter's offense to stating the pledge.
2. Another way of thinking about the political questions doctrine is as a point on the spectrum of judicial scrutiny. As we discussed on the first day of class, every constitutional case (at least to some degree) is about the role of the Court: to what degree should the Court second-guess the judgment of another governmental institution or actor on the meaning of the constitution? In some instances, we think the Court should be very aggressive in its review. This is often called "strict scrutiny," and it applies when the government's action (such as when it explicitly uses race, or when it limits speech based on its content) is presumptively unconstitutional. A much more deferential form of review is so-called "rational basis" review: the law is constitutional so long as it is rationally related to a legitimate government interest. Here, the law is presumptively constitutional and will only be invalidated if there is no rational basis supporting it. We can think of the political questions doctrine as being just one step more deferential than rational basis review. The review is so deferential that there is no review at all. However the political branches resolve the question, that is the binding answer. Judicial review is nonexistent.
This second point will make more sense, I hope, after we have studied next week's material. For a crucial question in the history of the Commerce Clause has been how aggressive or deferential the Court should be in evaluating whether a given federal statute is within Congress's commerce power.
1. As we discussed briefly in class yesterday, the political questions doctrine is one of several means of avoidance available to the Supreme Court when it would rather not get involved in a controversy (usually to preserve its institutional prestige). The political questions doctrine is the most severe form of such avoidance, because to declare a case to present a political question is essentially to hold that that issue is never reviewable by a federal court. Thus, the Court resorts to it only rarely, where it believes the issue is one that the Court will never want to get into. The less extreme forms include: (a) denying review (as most of the Court's docket is now discretionary); (b) construing the relevant statute so as not to present the constitutional question; or (c) finding some sort of jurisdictional problem with the case (e.g., a lack of standing). You might remember that the Court took this last tack in the famous pledge of allegiance case a few years ago, holding that Michael Newdow (not being the primary custodian of his daughter) lacked standing to assert her daughter's offense to stating the pledge.
2. Another way of thinking about the political questions doctrine is as a point on the spectrum of judicial scrutiny. As we discussed on the first day of class, every constitutional case (at least to some degree) is about the role of the Court: to what degree should the Court second-guess the judgment of another governmental institution or actor on the meaning of the constitution? In some instances, we think the Court should be very aggressive in its review. This is often called "strict scrutiny," and it applies when the government's action (such as when it explicitly uses race, or when it limits speech based on its content) is presumptively unconstitutional. A much more deferential form of review is so-called "rational basis" review: the law is constitutional so long as it is rationally related to a legitimate government interest. Here, the law is presumptively constitutional and will only be invalidated if there is no rational basis supporting it. We can think of the political questions doctrine as being just one step more deferential than rational basis review. The review is so deferential that there is no review at all. However the political branches resolve the question, that is the binding answer. Judicial review is nonexistent.
This second point will make more sense, I hope, after we have studied next week's material. For a crucial question in the history of the Commerce Clause has been how aggressive or deferential the Court should be in evaluating whether a given federal statute is within Congress's commerce power.
More questions on Michigan v. Long
QUESTION: I thought in Cohens v. Virgina the Supreme Court determined that it has the power to review state laws and decisions, and then it reaffirmed its power of judicial review over States idea in Cooper v. Aaron. It seems Michigan v. Long goes agaisnt this idea. Is the diffence that the Long case was based on the state constitution as opposed to just state law?
ANSWER: Not quite. The difference is that the claim in Cohens concerned federal law, not state law. (The distinction between state constitutional law and state statutory law is immaterial for purposes of federal constitutional law.) The Supreme Court of the United States does, indeed, have the authority to review state court decisions (as you point out, and as the Court held in Cohens v. Virgina). But it only can review state court decisions raising the sorts of "cases" and "controversies" listed in Article III, section 2, clause 1. In Michigan v. Long, the only way the case fit within the federal courts' subject matter jurisdiction was if it was a case "arising under this [meaning the federal] Constitution." Thus, if the Michigan Supreme Court's decision rested on adequate and independent state law grounds -- a state constitutional or state statutory provision -- the Supreme Court would have lacked jurisdiction over the case. The crucial point is that the Supreme Court of the United States generally has no power to review the decisions of state courts on questions of state law. On these matters, state courts are the final arbiters.
QUESTION: The Supreme Court can only evaluate state court decisions and state laws that deal with the federal constitution. Is that correct?
ANSWER: Not quite. Look carefully at Article III, section 2, clause 1. That sets out all the cases that Congress can invest in the federal courts -- the ceiling on the federal courts' subject matter jurisdiction. You will notice that it is not just questions concerning federal constitutional law that the Supreme Court can review on appeal from a state court. It can also review cases, most prominently, involving federal statutes or treaties (as well as a number of other types of cases, though Congress has generally only given the Supreme Court appellate jurisdiction from state courts for cases involving federal legal questions).
QUESTION: So if the question is one based on federal law, then that is when the Supreme Court jumps in and can review.
ANSWER: Yes. Or at least it has the power to do so. It only grants certiorari in roughly 0.5 percent of the cases appealed to it.
QUESTION: The Supreme Court cannot challenge state laws, or decisions based on State law?
ANSWER: Those are actually two different questions. The Supreme Court of the United States can review state laws on a claim that the state laws conflict with federal law. But the Court cannot review a claim that a state court's decision is inconsistent with state law. To give an example, the most recent California Supreme Court decision on Prop 8 held that Prop 8 was consistent with the California constitution. That decision was not reviewable by the Supreme Court of the United States. The current case, however, claims that Prop 8 violates the federal constitution. The Supreme Court of the United States would have jurisdiction over the present case even if it were being litigated in state court (which, of course, it is not).
QUESTION: What if a citizen of Michigan wanted to challenge a part of Michigan's constitution as unconstitutional under the federal constitution, or wanted to challenge a Michigan legislative act. Is that appropriate for the Supreme Court to review?
ANSWER: Yes, so long as the claim "arises" under federal law -- that is, the claim is that federal law dictates a different answer. That is "federal question" jurisdiction, and, as discussed above, Article III, section 2, clause 1 expressly provides for this. This was precisely what Martin v. Hunter's Lessee and Cohens v. Virginia allowed.
ANSWER: Not quite. The difference is that the claim in Cohens concerned federal law, not state law. (The distinction between state constitutional law and state statutory law is immaterial for purposes of federal constitutional law.) The Supreme Court of the United States does, indeed, have the authority to review state court decisions (as you point out, and as the Court held in Cohens v. Virgina). But it only can review state court decisions raising the sorts of "cases" and "controversies" listed in Article III, section 2, clause 1. In Michigan v. Long, the only way the case fit within the federal courts' subject matter jurisdiction was if it was a case "arising under this [meaning the federal] Constitution." Thus, if the Michigan Supreme Court's decision rested on adequate and independent state law grounds -- a state constitutional or state statutory provision -- the Supreme Court would have lacked jurisdiction over the case. The crucial point is that the Supreme Court of the United States generally has no power to review the decisions of state courts on questions of state law. On these matters, state courts are the final arbiters.
QUESTION: The Supreme Court can only evaluate state court decisions and state laws that deal with the federal constitution. Is that correct?
ANSWER: Not quite. Look carefully at Article III, section 2, clause 1. That sets out all the cases that Congress can invest in the federal courts -- the ceiling on the federal courts' subject matter jurisdiction. You will notice that it is not just questions concerning federal constitutional law that the Supreme Court can review on appeal from a state court. It can also review cases, most prominently, involving federal statutes or treaties (as well as a number of other types of cases, though Congress has generally only given the Supreme Court appellate jurisdiction from state courts for cases involving federal legal questions).
QUESTION: So if the question is one based on federal law, then that is when the Supreme Court jumps in and can review.
ANSWER: Yes. Or at least it has the power to do so. It only grants certiorari in roughly 0.5 percent of the cases appealed to it.
QUESTION: The Supreme Court cannot challenge state laws, or decisions based on State law?
ANSWER: Those are actually two different questions. The Supreme Court of the United States can review state laws on a claim that the state laws conflict with federal law. But the Court cannot review a claim that a state court's decision is inconsistent with state law. To give an example, the most recent California Supreme Court decision on Prop 8 held that Prop 8 was consistent with the California constitution. That decision was not reviewable by the Supreme Court of the United States. The current case, however, claims that Prop 8 violates the federal constitution. The Supreme Court of the United States would have jurisdiction over the present case even if it were being litigated in state court (which, of course, it is not).
QUESTION: What if a citizen of Michigan wanted to challenge a part of Michigan's constitution as unconstitutional under the federal constitution, or wanted to challenge a Michigan legislative act. Is that appropriate for the Supreme Court to review?
ANSWER: Yes, so long as the claim "arises" under federal law -- that is, the claim is that federal law dictates a different answer. That is "federal question" jurisdiction, and, as discussed above, Article III, section 2, clause 1 expressly provides for this. This was precisely what Martin v. Hunter's Lessee and Cohens v. Virginia allowed.
Monday, February 1, 2010
Questions concerning Michigan v. Long
QUESTION: The Supreme Court's finding that there was an absence of a "plain statement" that federal cases are only used by state courts for the purpose of guidance seems a little problematic. What if state cases do, in fact, include such a plain statement but rely too much on federal cases despite the statement? It seems that there would then be a need for the Supreme Court to review the sincerity/justifiability of the plain statements themselves, which seems like it would only create an additional problem that would waste time and resources. Furthermore, such reviews may open the door to the review of state cases that made an appropriately supported plain statement, which was nevertheless challenged by the state prosecution.
ANSWER: I think that, so long as the state court's plain statement concerning its reliance on state law is facially plausible, the Supreme Court will accept it as genuine. Going beyond that would tangle the Court in a morass, and it seems unlikely the Court (even as a theoretical matter) could ever discern the "true" grounds for another court's decisions. Keep in mind that a state court could rely on many federal decisions to help it understand its own state law.
QUESTION: Has this plain statement idea been useful in practical terms, or has it created more opportunities for he-said-she-said arguments that only weaken the judicial system overall and create more friction between federal and state courts?
ANSWER: This is an interesting empirical question, and I do not know the answer. My sense, though, is that most state courts have, in recent decades, interpreted their constitutions as providing no more protection than the federal constitution, and thus the issue has not arisen. (The increasing visibility of state judicial elections, I think, has contributed to state court judges being a little less defendant-friendly in criminal procedure cases.) You might recall that Proposition 8 -- the first Proposition 8, adopted in the 1980s -- forbids the California Supreme Court from interpreting the California Constitution in a manner that gives criminal defendants greater rights than they enjoy under the federal constitution.
QUESTION: Were Long's arguments unsuccessful alternative pleas? (I am not sure if I used the correct terms there.) Basically, I am wondering why Long was unsuccessful in first arguing that the Fourth Amendment interpretation according to Terry was misapplied and then also arguing that the state constitution would be a better standard than the U.S. Constitution. The Supreme Court's finding seems to be that Long's argument concerning the misapplication of Terry was too much of a reliance on federal law. Why does that part of the finding trump the other argument that Michigan's constitution would be better applied? Is it simply due to Long's failure to cite any state cases that would support his argument for applying the state constitution's standards?
ANSWER: Long was unsuccessful in two respects: (1) preventing the Supreme Court of the United States from reviewing the case on the ground that the Court lacked subject matter jurisdiction, and (2) defending the decision below on the ground that it correctly interpreted the Fourth Amendment. The Michigan Supreme Court's reliance on Terry was only relevant to the first question. Its interpretation and understanding of Terry was relevant to the second question. In hindsight, Long would have been better off urging the Michigan Supreme Court to make abundently clear that its holding rested on state law. But hindsight, as they say, is 20/20. He did not really know this was important until after the Supreme Court's later ruling.
ANSWER: I think that, so long as the state court's plain statement concerning its reliance on state law is facially plausible, the Supreme Court will accept it as genuine. Going beyond that would tangle the Court in a morass, and it seems unlikely the Court (even as a theoretical matter) could ever discern the "true" grounds for another court's decisions. Keep in mind that a state court could rely on many federal decisions to help it understand its own state law.
QUESTION: Has this plain statement idea been useful in practical terms, or has it created more opportunities for he-said-she-said arguments that only weaken the judicial system overall and create more friction between federal and state courts?
ANSWER: This is an interesting empirical question, and I do not know the answer. My sense, though, is that most state courts have, in recent decades, interpreted their constitutions as providing no more protection than the federal constitution, and thus the issue has not arisen. (The increasing visibility of state judicial elections, I think, has contributed to state court judges being a little less defendant-friendly in criminal procedure cases.) You might recall that Proposition 8 -- the first Proposition 8, adopted in the 1980s -- forbids the California Supreme Court from interpreting the California Constitution in a manner that gives criminal defendants greater rights than they enjoy under the federal constitution.
QUESTION: Were Long's arguments unsuccessful alternative pleas? (I am not sure if I used the correct terms there.) Basically, I am wondering why Long was unsuccessful in first arguing that the Fourth Amendment interpretation according to Terry was misapplied and then also arguing that the state constitution would be a better standard than the U.S. Constitution. The Supreme Court's finding seems to be that Long's argument concerning the misapplication of Terry was too much of a reliance on federal law. Why does that part of the finding trump the other argument that Michigan's constitution would be better applied? Is it simply due to Long's failure to cite any state cases that would support his argument for applying the state constitution's standards?
ANSWER: Long was unsuccessful in two respects: (1) preventing the Supreme Court of the United States from reviewing the case on the ground that the Court lacked subject matter jurisdiction, and (2) defending the decision below on the ground that it correctly interpreted the Fourth Amendment. The Michigan Supreme Court's reliance on Terry was only relevant to the first question. Its interpretation and understanding of Terry was relevant to the second question. In hindsight, Long would have been better off urging the Michigan Supreme Court to make abundently clear that its holding rested on state law. But hindsight, as they say, is 20/20. He did not really know this was important until after the Supreme Court's later ruling.
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