while working through the material? Naturally, the reasoning is interesting. But it is not the reasoning of the majority. Also, I have the impression the case book's chief editors, both from Stanford, would not be so inconsistent as to leave out the names of any Justices joining Jackson here when Kennedy's concurrence in Lopez included O'Connor as joining. Left with the firm yet somewhat disappointed belief that Jackson's vivid concurrence is his opinion alone, would space in my notes be better spent recording the analysis of several Justices dissenting after Jackson?“[no] doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture"
ANSWER: Your confusion is entirely understandable, but no. Jackson's concurrence has grown to be the most important--indeed, the most precedential--of all the opinions in Youngstown. No doubt, as a technical legal matter, it is not controlling. But as we have discussed already, several times, constitutional law is more than technical legalities. Jackson's opinion has gained in stature, eclipsing all the others, such that it is the one now most frequently cited by the Court itself. It is the one quoted by Senators at confirmation hearings. It is the one most law students remember after they have long left constitutional law as a subject. So, no, it is time well spent. Really, reading any Jackson opinion is usually time well spent. He was a great justice.
QUESTION: Toward the end of your 110216 lecture, you argued that the reason why VAWA exceeds the congressional power afforded by XIV amend § 5 is because VAWA provides remedy for a civil suit. Civil suits, where individuals are claiming damages against other individuals, do not fall within congressional power under XIV amend § 5, because XIV amend § 1 only applies to state activities.
ANSWER: Very close, but not quite. The critical distinction was not that the action was civil, but that it was against a private individual, not someone acting on behalf of the government.
QUESTION: How can Congress, if it so wishes, regulate a civil activity through the power of XIV amend § 5?
ANSWER: Under Morrison, I don't think it can--if by "civil" you mean private or non-governmental.
QUESTION: Specifically I am asking the following four questions:
1) Could, Congress use XIV amend § 5 to legislate any civil disputes where one citizen is suing another citizen for damages?
ANSWER: Yes, if it is a civil action against a government or a government official.
2) Assuming Congress cannot regulate any civil dispute directly, can Congress somehow regulate state through XIV amend § 5 so that a medium for civil dispute under federal law is possible? (i.e. is indirect regulation of individuals through its power to regulate states possible?)
ANSWER: I'm not sure I fully understand this distinction. Congress can regulate state action to enforce the terms of Section 1 of the Fourteenth Amendment. Because private individuals, by definition, cannot violate Section 1 of the Fourteenth Amendment, Congress cannot aim to regulate their behavior with Section 5--directly or indirectly.
3) How can Congress, in enacting any legislation that regulates state activity not violate the dual sovereignty doctrine?
ANSWER: Congress can regulate the conduct of states. See Garcia. What it cannot do is commandeer them. Only commandeering violates the structural principles of dual sovereignty. (Moreover, it is unclear whether the anti-commandeering doctrine would apply to valid Section 5 legislation. Both New York and Printz involved statutes that were enacted using the commerce power.)
4) Is it possible to rephrase or reframe VAWA in a way so that VAWA falls within the breadth of congressional power afforded by XIV amend § 5 while at the same time, achieving the ultimate goal of VAWA (the goal being, providing a federal medium where damages from gender based violence can be sought by victims from perpetrators)?
ANSWER: I don't think so, at least unless we change the fact that it is regulating the conduct of private individuals.
QUESTION: As an aside, because I cannot think of federal civil legislation off the top my head, through my research of federal civil laws, I came across 42 U.S.C. § 1983 where it states:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law...”
As a superficial analysis, it seems that this piece of legislation, which deals in civil actions (person against citizens) grounds itself on XIV § 5 through XIV § 1.
ANSWER: Exactly, the crucial difference being that it only regulates the conduct of those who act under color of state law. In other words, it regulates the actions of governmental officials.
QUESTION: If my assumptions are correct, could VAWA be framed in a similar way, such that the rights and privileges protected under VAWA is through the “equal protection” clause of XIV § 1?
ANSWER: Again, no, so long as the regulated activity is that of a private individual. The civil-criminal distinction is irrelevant. What matters is that governments (and persons acting with governmental authority) can violate the Equal Protection Clause. Private persons cannot. Thus, only the regulation of the former (under Morrison) can be justified under Section 5 as "enforcing" Section 1.
QUESTION: I am slightly confused about the difference and interaction between the first and third incentives in New York v. United States. My understanding after reading the case and a few supplements is that Congress may entice a state to voluntarily adopt a federal regulatory scheme (meaning enforce what the federal government desires) through monetary incentives, but if that state decides not to adopt the federal regulatory scheme, if given authority by the Commerce Clause (or some other provision of the Constitution) Congress can pass a national regulation that would preempt any state regulation that wasn't in compliance. If the latter happens, the federal government will be responsible for enforcing that regulation; this being said, the Court said Congress cannot force a state to enforce a federal regulatory scheme. Is this a correct interpretation?
ANSWER: Essentially, yes. The critical question, as you say, is whether the state has a choice. Or, to put it differently, Congress can never force a state to affirmatively regulate or govern its citizens according to the federal government's instructions. It can offer the states some money in exchange for them doing so (such as in Dole). It can preempt state law (i.e., tell states to get out of the way). And it can offer states a choice to govern in a particular way, but it they do not, tell them that they will be preempted. All are of those are okay. What it cannot do is force the states to govern their residents in a particular fashion.