QUESTION: It seems like the imminent injury analysis under standing is the same as the ripeness analysis? Is that right?
ANSWER: I think that is right. If an injury-in-fact is not sufficiently imminent, then in essence we are saying that the controversy is unripe.
QUESTION: Does the Privileges and Immunities Clause apply also to gov't regulation or only regulation by the States? If, for instance, somehow the national gov't could restrict certain people (either from that CA or from other states) from taking the bar in CA, would that violate the P and I clause?
ANSWER: Article VI itself only limits the power of state governments.
QUESTION: To what extent can the national gov't limit access to medical procedures whose legality are guaranteed by the right to privacy using eminent domain/preemption?
ANSWER: Any government action that infringes on a fundamental right would be subject to strict scrutiny. So if the medical procedure is a medical procedure is guaranteed (in the sense it is a fundamental right), then that would be the analysis.
QUESTION: Based on your sample answer to the 2009 exam, for instance, Ha is not constitutionally guaranteed the right to that immunization. While the national gov't could not proscribe receiving the vaccine, it can use its taking power to hoard all the vaccines and prohibit the States and private hospitals from purchasing any additional doses. If the States and private hospitals have no alternative method of providing the vaccine, is this different in effect from making it illegal for the States to vaccinate?
ANSWER: I may not fully understand the question. Why couldn't the federal government proscribe receiving the vaccine? Suppose the FDA determines that it is not safe and effective (as it does often for various drugs). As a general matter, I do not think that raises any serious constitutional questions. I agree, though, that the government's forcing others to sell all that they have to the government, and then refusing to sell it to someone, would be largely indistinguishable from proscribing that individual from receiving it. I think I might just disagree with the premise of the question.
QUESTION: I have a question about your exam from 2001. Specifically the question about the bald eagle. Does the analysis now change because of Raich? Before Raich, intrastate possession could not be considered an economic activity and thus not aggregated. However, I feel that after Raich, intrastate possession can be considered an economic activity if that commodity is sold in interstate commerce (even illegally as is marijuana and maybe bald eagles), thus it can be aggregated and fall under the Commerce Clause. Is this correct? Or is there a distinction between the bald eagle question and Raich in that she was growing pot and in the question the eagle is only being held in possession?
ANSWER:I think you are right that the analysis changes, though I would phrase how it does so differently. After Raich, the question is not so much whether the statute as applied to her is unconstitutional in isolation (or whether her activity, in isolation, is economic or commercial). Rather, the question is probably (1) does the statutory scheme as a whole regulate an activity that substantially affects interstate commerce, and (2) if so, then is Congress obligated to create an exception for applications of the statutory scheme that sweep up purely intrastate, noncommercial instances of that activity? Here, there is a good argument that the broader regulatory scheme is regulating a commercial or economic activity (the interstate trade in the parts of endangered species). Moreover, Congress would likely have a reasonable basis for concluding that exempting non-commercial possession would undermine the broader regulatory scheme (given the fungible nature of eagle feathers). So I think Raich affect the analysis, no doubt, but not on whether the precise activity that she was engaged in should now be considered economic or commercial in nature.
QUESTION: I have a question about your exam from 2001. Specifically the question about the bald eagle. Does the analysis now change because of Raich? Before Raich, intrastate possession could not be considered an economic activity and thus not aggregated. However, I feel that after Raich, intrastate possession can be considered an economic activity if that commodity is sold in interstate commerce (even illegally as is marijuana and maybe bald eagles), thus it can be aggregated and fall under the Commerce Clause. Is this correct? Or is there a distinction between the bald eagle question and Raich in that she was growing pot and in the question the eagle is only being held in possession?
ANSWER:I think you are right that the analysis changes, though I would phrase how it does so differently. After Raich, the question is not so much whether the statute as applied to her is unconstitutional in isolation (or whether her activity, in isolation, is economic or commercial). Rather, the question is probably (1) does the statutory scheme as a whole regulate an activity that substantially affects interstate commerce, and (2) if so, then is Congress obligated to create an exception for applications of the statutory scheme that sweep up purely intrastate, noncommercial instances of that activity? Here, there is a good argument that the broader regulatory scheme is regulating a commercial or economic activity (the interstate trade in the parts of endangered species). Moreover, Congress would likely have a reasonable basis for concluding that exempting non-commercial possession would undermine the broader regulatory scheme (given the fungible nature of eagle feathers). So I think Raich affect the analysis, no doubt, but not on whether the precise activity that she was engaged in should now be considered economic or commercial in nature.