QUESTION: Although Marshall ultimately ruled that the Court lacked jurisdiction, he first investigated whether Marbury had a right to the commission, if laws could afford him remedy, and then if the court can issue the remedy. Shouldn't the first question for the court be whether it has jurisdiction?
ANSWER: Nice point. Yes, he should have, at least if we are applying the rule of Steel Co. that the Court cannot say anything about the merits before it resolves that it has jurisdiction. Perhaps these rules were not quite as well established in 1803. Or perhaps Marshall just could not resist the opportunity to tell the Jefferson administration that it was acting illegally.
QUESTION: Further, Marshall's 2-step analysis of jurisdictional question (statutory and jurisdictional as you illustrated) is confusing. He first thought that the Court had jurisdiction and then held that it didn't. How can he take the case based on the presumption that the judiciary act gave him jurisdiction and later rule the same act as unconstitutional?
ANSWER: With due respect, I don't think that accurately captures what happened. He never thought that the Court had jurisdiction, nor did the Court "take" the case. The case came to the Court, and it really had no choice but to resolve it. For the Court to have jurisdiction, it must have been granted jurisdiction by Congress. So the first question to ask is statutory -- did the Judiciary Act confer jurisdiction on the Court in a case such as this. It makes sense to address the statutory question first, for if the statute does not confer jurisdiction, the case is over, and the Court need not address the constitutional question. Unlike other choices Marshall made, this choice of addressing the statute first is actually the judicially modest one.
QUESTION: Although the Court needs to have jurisdiction at all times, it seems rather odd that the same Act that initially gave the jurisdiction, took it away later.
ANSWER: Again, I would disagree with this characterization. According to Marshall's reading, the statute did confer jurisdiction (or at least purported to). The Act never took away jurisdiction. Rather, the Court held that the provision attempting to confer jurisdiction violated Article III, and thus was null and void (at least as applied here). Jurisdiction was lacking not because of the Act, but because the Act was inconsistent with Article III.
QUESTION: On that note, when does a law become unconstitutional? The day of the verdict? As I understand, the verdict does not have any retroactive effect, correct?
ANSWER: Essentially, yes, the moment of the verdict, though it can be applied to any decision currently pending -- that is, any case in which the federal courts have yet to render a final judgment on which the time for an appeal has run. Moreover, there are some decisions that are, indeed, applied retroactively, in the sense that persons can challenge their prior adjudications (such as prisoners applying a new rule concerning their sentencing). But this is a very complex question, with lots of twists and turns.
QUESTION: Finally, could Marbury have filed the case in a lower court as the Supreme Court didn't have jurisdiction? It probably wouldn't buy him anything given the political situation, but technically he could, right?
ANSWER: Yes, he could have. But recall that Marbury and Marshall were on the same side in the larger political fight with the Jeffersonian Republicans, and eliminating the jurisdictional problem would have eliminated the Court's opportunity to talk about judicial review . . . .
Thursday, September 30, 2010
Wednesday, September 29, 2010
2001 exam, essay 2.A
QUESTION: First, although possession of eagle feathers is not in itself a commercial activity, just like possession of guns in Lopez isn't, it seems more "economic" than growing wheat for home consumption. In order to possess an eagle feather, one has to either get it from a dead animal, kill an animal, or get/buy it from someone else, neither of these may be "local" or "intrastate" activities.
ANSWER: I see your point. But does that make the possession of the feather itself, as an activity, economic in nature? To me, the growing of a commodity that is actively traded on huge international markets, even if only used for home consumption, is more economic in nature than the possession of a feather. But I will admit that what qualifies as "economic" is, at least to some degree, in the eye of the beholder.
QUESTION: Further, if more people like Que start using eagle feathers for their personal/religious use, it will impact the interstate commerce via an aggregate effect.
QUESTION: Third, assuming arguendo that the activity is "noneconomic," it is still "necessary and proper" for Congress to regulate the activity as a necessary part of the more general regulation of interstate commerce by protecting endagnered species. (Scalia's argument in Raich).
QUESTION: So, Que's indictment should not be dismissed.
ANSWER: I tend to agree. But I would admit a degree of uncertainty, just because nothing in this business of constitutional law is ever truly clear or definite.
ANSWER: I see your point. But does that make the possession of the feather itself, as an activity, economic in nature? To me, the growing of a commodity that is actively traded on huge international markets, even if only used for home consumption, is more economic in nature than the possession of a feather. But I will admit that what qualifies as "economic" is, at least to some degree, in the eye of the beholder.
QUESTION: Further, if more people like Que start using eagle feathers for their personal/religious use, it will impact the interstate commerce via an aggregate effect.
ANSWER: But that is jumping to the ultimate question -- the effect on interstate commerce. The question here is logically prior: what is the nature of the activity that is being regulated? We must address that first, for it is a critical aspect of the legal inquiry as to whether the activity will be deemed, as a matter of law, to substantially affect interstate commerce.
QUESTION: Second, as decided in Raich, even though Que is claiming that the statute itself is not constitutional, but as it applies to her is unconstitutional, courts will not excise individual components of the statute, especially when the statute is regulating the broad activity of preventing destruction of animals and protecting endangered species.
QUESTION: Second, as decided in Raich, even though Que is claiming that the statute itself is not constitutional, but as it applies to her is unconstitutional, courts will not excise individual components of the statute, especially when the statute is regulating the broad activity of preventing destruction of animals and protecting endangered species.
ANSWER: True. And there is a good argument, based on Raich, that prohibiting non-commercial, intrastate activities is appropriate in the functioning of the broader regulatory scheme, which is more clearly aimed at the regulation of interstate commerce (i.e., the interstate market in eagle parts).
QUESTION: Third, assuming arguendo that the activity is "noneconomic," it is still "necessary and proper" for Congress to regulate the activity as a necessary part of the more general regulation of interstate commerce by protecting endagnered species. (Scalia's argument in Raich).
ANSWER: Or at least Congress is probably rational in so concluding, which is all that Raich seems to require (or Scalia in his concurrence).
QUESTION: So, Que's indictment should not be dismissed.
ANSWER: I tend to agree. But I would admit a degree of uncertainty, just because nothing in this business of constitutional law is ever truly clear or definite.
Revisiting Marbury
QUESTION: I just wanted to make sure that I've boiled this down correctly. Officially, Marshall established jurisdiction for the Supreme Court over Marbury v. Madison by interpreting section 13 of the the Judiciary Act in a manner that made the act unconstitutional -- that way the court could see the case in order to interpret a potentially unconstitutional law.
ANSWER: I might phrase it a bit differently. He read the Judiciary Act as purporting to confer jurisdiction on the Supreme Court in any case in which mandamus is the proper remedy. Because mandamus was the proper remedy in Marbury's situation, then the Act attempted to grant the Court jurisdiction. But this was not a case that fell within the original jurisdiction of the Supreme Court as defined in Article III. Hence, there was a constitutional problem.
QUESTION: Unofficially, Marshall interpreted the Act in an overbroad manner. The Act appears to be giving the Supreme Court jurisdiction in cases of appeal, whereas he interprets it to say that the court always has original jurisdiction over writs of mandamus.
ANSWER: That is a fair criticism. Marshall's interpretation of the Judiciary Act is not the most intuitive (though it has its defenders). To me, the relevant language appears either (a) to refer to what the Court can do when exercising its appellate jurisdiction, or (b) more generally, define the remedies that the Court is authorized to issue, provided the Court already has jurisdiction over the case. Had Marshall adopted either of these readings, of course, he would have been forced to conclude that the Court lacked subject matter jurisdiction before reaching the constitutional question. As a result, the Court could not have discussed at length the power of judicial review. So we are left to think that, yes, perhaps Marshall's reading of the Act was a bit disingenuous. But we do not know that for sure. He never admitted to deliberately subverting the language of the statute to reach the questions he wanted to answer.
QUESTION: Okay, I'm glad I asked, because your phrasing is where I'm confused. It seems as if you are saying that there are two subtle phases here: (1) he actually took the case because the judiciary act (as he interprets it) allows him to; and (2) once he has taken the case, the Judiciary Act (as he interprets it) presents a constitutional issue -- which allows him an opportunity to flex his judicial review muscles and review a federal law. Is that right? I think that I'm confused about what the official reason was that Marshall gave for the court to have jurisdiction. It seems like there are two things going on here.
ANSWER: There are three points that might help clarify things:
1. The Supreme Court actually had no discretion as to whether to "take" the case of Marbury v. Madison. At the very least, the Court had to determine whether it had jurisdiction. So there was no choice in at least reaching that question.
ANSWER: I might phrase it a bit differently. He read the Judiciary Act as purporting to confer jurisdiction on the Supreme Court in any case in which mandamus is the proper remedy. Because mandamus was the proper remedy in Marbury's situation, then the Act attempted to grant the Court jurisdiction. But this was not a case that fell within the original jurisdiction of the Supreme Court as defined in Article III. Hence, there was a constitutional problem.
QUESTION: Unofficially, Marshall interpreted the Act in an overbroad manner. The Act appears to be giving the Supreme Court jurisdiction in cases of appeal, whereas he interprets it to say that the court always has original jurisdiction over writs of mandamus.
ANSWER: That is a fair criticism. Marshall's interpretation of the Judiciary Act is not the most intuitive (though it has its defenders). To me, the relevant language appears either (a) to refer to what the Court can do when exercising its appellate jurisdiction, or (b) more generally, define the remedies that the Court is authorized to issue, provided the Court already has jurisdiction over the case. Had Marshall adopted either of these readings, of course, he would have been forced to conclude that the Court lacked subject matter jurisdiction before reaching the constitutional question. As a result, the Court could not have discussed at length the power of judicial review. So we are left to think that, yes, perhaps Marshall's reading of the Act was a bit disingenuous. But we do not know that for sure. He never admitted to deliberately subverting the language of the statute to reach the questions he wanted to answer.
QUESTION: Okay, I'm glad I asked, because your phrasing is where I'm confused. It seems as if you are saying that there are two subtle phases here: (1) he actually took the case because the judiciary act (as he interprets it) allows him to; and (2) once he has taken the case, the Judiciary Act (as he interprets it) presents a constitutional issue -- which allows him an opportunity to flex his judicial review muscles and review a federal law. Is that right? I think that I'm confused about what the official reason was that Marshall gave for the court to have jurisdiction. It seems like there are two things going on here.
ANSWER: There are three points that might help clarify things:
1. The Supreme Court actually had no discretion as to whether to "take" the case of Marbury v. Madison. At the very least, the Court had to determine whether it had jurisdiction. So there was no choice in at least reaching that question.
2. I think it is correct to suspect that Marshall construed the Judiciary Act as he did to enable him to reach the constitutional question. But it is important to understand that the only question the Court ever addresses in Marbury is jurisdictional. (There is some other stuff, but it is technically dicta.) The jurisdictional question, properly understood, had two parts. First, there was the statutory question: had Congress granted the Supreme Court jurisdiction in cases such as this. Marshall read the Judiciary Act as doing so (though I think that is an unsound reading). Once he resolved the statutory issue this way, he then addressed the constitutional question: was such a statutory conferral of jurisdiction consistent with Article III? Here, Marshall said no (and in the process defended the Court's power to declare such acts inconsistent with the Constitution). So both questions -- the statutory and the constitutional -- were jurisdictional, in the sense that they concern whether the Supreme Court had jurisdiction to decide Marbury's case. By getting to the constitutional question, though, Marshall was permitted to discuss judicial review.
3. Don't forget that the ultimate holding in Marbury is that the Supreme Court LACKED jurisdiction. Why? Because section 13 of the Judiciary Act, purporting to grant the Court jurisdiction, was unconstitutional. It attempted to grant the Court original jurisdiction in a case in which Article III does not permit. Thus, at the end of the day, the Court actually dismisses the case for want of jurisdiction.
Thursday, September 23, 2010
More on Raich
QUESTION: I think the Raich decision merely reiterates Wickard (both its holding and its rationale), and it is consistent with Lopez and Morrison. The rationale being that the regulated activity, although local and intrastate, is "economic" as in Wickard, and therefore within commerce power. In contrast, the activity in Lopez and Morrison is "not economic," hence not within commerce power. Both activities are clearly not "commercial."
ANSWER: I think that is a plausible reading of one holding in Raich. That is, one could understand the Court as holding that cultivating marijuana is "economic" in nature, just as Lopez considered the growing of wheat in Wickard to be economic in nature -- even if done for purely personal consumption. As such, we can aggregate its effects, and we have a substantial effect on interstate commerce, such that Congress can regulate that acitivity.
But I would disagree that this is all that Raich holds. The alternative rationale -- and the more significant one -- is that Congress can regulate the activity even if we consider it neither commercial or economic. Why? Because what Congress is regulating in the relevant statute (the CSA) is the interstate market in narcotics, clearly commercial activity. And when Congress is regulating clearly commercial activity through a broad regulatory scheme, and that scheme happens to ensnare purely non-commercial, intrastate manifestations of that activity, it is still within the commerce power so long as Congress has a rational basis for concluding that exempting those manifestations from regulation would undercut the effectiveness of that regulatory scheme.
QUESTION: In view of the above, it wasn't clear to me what the answer to your question "what Raich adds" was (before yesterday's class). Raich's complaint was different in terms of not attacking the statute itself, but rather its application to an individual. However, the Raich holding used the same rationale as in the above-mentioned cases. In other words, even if the CSA was specifically directed to marijuana only, and not to a larger scheme of five classes of controlled substances, the decision wouldn't be any different. The court doesn't seem to make any distinction between marijuana and wheat and relies on the same supply/demand argument as in Wickard.
ANSWER: Again, in part you are absolutely correct. But I think there is more to the holding than that, as I have outlined above. Moreover, you could say that a CSA directed exclusively at the interstate marijuana market would still be a broad regulatory scheme for purposes of Raich's logic. Such a statute would still be far broader -- and much more clearly directed at commercial activity -- than a statute that did no more than regulate the possession of marijuana in a school zone.
ANSWER: I think that is a plausible reading of one holding in Raich. That is, one could understand the Court as holding that cultivating marijuana is "economic" in nature, just as Lopez considered the growing of wheat in Wickard to be economic in nature -- even if done for purely personal consumption. As such, we can aggregate its effects, and we have a substantial effect on interstate commerce, such that Congress can regulate that acitivity.
But I would disagree that this is all that Raich holds. The alternative rationale -- and the more significant one -- is that Congress can regulate the activity even if we consider it neither commercial or economic. Why? Because what Congress is regulating in the relevant statute (the CSA) is the interstate market in narcotics, clearly commercial activity. And when Congress is regulating clearly commercial activity through a broad regulatory scheme, and that scheme happens to ensnare purely non-commercial, intrastate manifestations of that activity, it is still within the commerce power so long as Congress has a rational basis for concluding that exempting those manifestations from regulation would undercut the effectiveness of that regulatory scheme.
QUESTION: In view of the above, it wasn't clear to me what the answer to your question "what Raich adds" was (before yesterday's class). Raich's complaint was different in terms of not attacking the statute itself, but rather its application to an individual. However, the Raich holding used the same rationale as in the above-mentioned cases. In other words, even if the CSA was specifically directed to marijuana only, and not to a larger scheme of five classes of controlled substances, the decision wouldn't be any different. The court doesn't seem to make any distinction between marijuana and wheat and relies on the same supply/demand argument as in Wickard.
ANSWER: Again, in part you are absolutely correct. But I think there is more to the holding than that, as I have outlined above. Moreover, you could say that a CSA directed exclusively at the interstate marijuana market would still be a broad regulatory scheme for purposes of Raich's logic. Such a statute would still be far broader -- and much more clearly directed at commercial activity -- than a statute that did no more than regulate the possession of marijuana in a school zone.
Interstate commerce and "attenuation"
QUESTION: I have a question regarding Morrison. The dissent by Souter and three other justices states that 42 U.S.C. 13981 would have passed muster between 1942 and 1995. Their reasoning is that gender-based violence is similar to racial discrimination in Heart of Atlanta and McClung in reducing mobility of employees and the production/cosumption of goods in interstate commerce. Applying Lopez test, Heart of Atlanta/McClung had activities affecting commerce as being involved in renting rooms in a motel or selling food, whereas in Morrison the connection between the regulated activity (gender-based violence) and the effect (mobility/consumption) is more attenuated. The court in Morrison ruled that the activity is "noneconomic." Does the "attenuation" factor makes the regulated activity in Morrison "noneconomic," or do you think that the time frame really impacted the holding here?
ANSWER: There are a few different ways of looking at this. First, let's take the purely doctrinal. From that perspective, there is a critical difference between the Civil Rights Act of 1964 (which regulates commercial activity directly--the operation of a hotel or restaurant) and sec. 13981 of VAWA (which regulates a form of assault). The former is a commercial activity, the latter is not. The majority sees this distinction as dispositive. You could also package this as "attenuation," as the connection of the regulated activity in Morrison to an effect on interstate commerce is at least once removed when compared to that in Heart of Atlanta or McClung. The Civil Rights Act directly and immediately shapes commercial behavior (who businesses must serve). The effect on commerce in Morrison is more attenuated. But, as I indicated last night, this seems like simply a different way of expressing the idea that the activity actually regulated by 13981 was not itself economic or commercial.
ANSWER: There are a few different ways of looking at this. First, let's take the purely doctrinal. From that perspective, there is a critical difference between the Civil Rights Act of 1964 (which regulates commercial activity directly--the operation of a hotel or restaurant) and sec. 13981 of VAWA (which regulates a form of assault). The former is a commercial activity, the latter is not. The majority sees this distinction as dispositive. You could also package this as "attenuation," as the connection of the regulated activity in Morrison to an effect on interstate commerce is at least once removed when compared to that in Heart of Atlanta or McClung. The Civil Rights Act directly and immediately shapes commercial behavior (who businesses must serve). The effect on commerce in Morrison is more attenuated. But, as I indicated last night, this seems like simply a different way of expressing the idea that the activity actually regulated by 13981 was not itself economic or commercial.
Second, as to timing: Yes, political time clearly is also an explanation. In 2000, there were 5 justices on the Court willing to curtail Congress's commerce power. In 1965, had 13981 come to the Court, I feel confident that the Court would have upheld the Act. As lawyers, we can distinguish the two cases (as I have tried to do above), but as Court observers we have to admit that the personnel on the Court at any given moment does a lot to explain how that doctrine is understood or construed -- at least at the margin.
Some questions (and answers)
QUESTION: Does the power of judicial review always require a federal issue in the case? Is it enough that the Supreme Court believes that the state law or state court opinion violates the Constitution (and that in turn creates a federal issue?)
ANSWER: The jurisdiction of the federal courts is constrained by Article III, section 2 of the Constitution. These are all the "cases" or "controversies" that Congress can grant the federal courts the power to decide. The most common "case" is one arising under federal law--a question that concerns a federal law or the federal constitution. So, in a rough sense, yes, cases must generally present a federal question (e.g., this law (state or federal or local or whatever) violates the federal constitution). But some cases that can reach the federal courts do not, the best example being those that come via diversity jurisdiction.
One more point: you have asked specifically about "judicial review." That practice specifically refers to the practice of courts determining whether a law or executive action is constitutional. By definition, if a federal court is reviewing a law's constitutionality, it is addressing a federal question, as it is determining whether the law or executive action is consistent with the federal constitution.
QUESTION: As to Problem 3, I'm confused about the argument made by [the state attorneys general] that the decision NOT to buy insurance is not commercial. I understand the logic behind it, but I don't understand how it applies. If the law states that all persons must buy health insurance, then the decision not to purchase insurance isn't an issue. In fact, it doesn't exist at all. Without an option to not buy insurance, how is the fact that someone who doesn't buy insurance isn't commercial relevant?
ANSWER: I think the issue is logically prior. That is, Congress has enacted a law stating that all Americans must either (a) purchase health insurance by January 1, 2014, or (b) pay a fine. The relevant constitutional question is whether Congress has the authority to regulate behavior in this way. We need to answer this question, regardless of which choice any individual makes. Why is the commerciality of this decision relevant? Because whether the activity being regulated is economic or commercial is the crucial question under the third category according to Lopez and Morrison. So you are right that what a person actually decides is not important to answering the constitutional question. But the nature of the activity being regulated by Congress is critical.
ANSWER: The jurisdiction of the federal courts is constrained by Article III, section 2 of the Constitution. These are all the "cases" or "controversies" that Congress can grant the federal courts the power to decide. The most common "case" is one arising under federal law--a question that concerns a federal law or the federal constitution. So, in a rough sense, yes, cases must generally present a federal question (e.g., this law (state or federal or local or whatever) violates the federal constitution). But some cases that can reach the federal courts do not, the best example being those that come via diversity jurisdiction.
One more point: you have asked specifically about "judicial review." That practice specifically refers to the practice of courts determining whether a law or executive action is constitutional. By definition, if a federal court is reviewing a law's constitutionality, it is addressing a federal question, as it is determining whether the law or executive action is consistent with the federal constitution.
QUESTION: As to Problem 3, I'm confused about the argument made by [the state attorneys general] that the decision NOT to buy insurance is not commercial. I understand the logic behind it, but I don't understand how it applies. If the law states that all persons must buy health insurance, then the decision not to purchase insurance isn't an issue. In fact, it doesn't exist at all. Without an option to not buy insurance, how is the fact that someone who doesn't buy insurance isn't commercial relevant?
ANSWER: I think the issue is logically prior. That is, Congress has enacted a law stating that all Americans must either (a) purchase health insurance by January 1, 2014, or (b) pay a fine. The relevant constitutional question is whether Congress has the authority to regulate behavior in this way. We need to answer this question, regardless of which choice any individual makes. Why is the commerciality of this decision relevant? Because whether the activity being regulated is economic or commercial is the crucial question under the third category according to Lopez and Morrison. So you are right that what a person actually decides is not important to answering the constitutional question. But the nature of the activity being regulated by Congress is critical.
Tuesday, September 14, 2010
Jurisdictional elements
QUESTION: I was wondering if the "jurisdictional element" relates to the rules of personal jurisdiction, or if it is much broader and refers to any attempt to define or limit the particular legislation with respect to interstate commerce?
ANSWER: It is wholly unrelated to the idea of personal jurisdiction. Rather, as I think your second clause indicates, it concerns Congress's legislative jurisdiction. A jurisdictional element, as meant in Lopez, is nothing more than additional language that ensures that the particular instance of the activity being regulated has some sort of a connection to interstate commerce. For example:
* law without a jurisdictional element: "It is unlawful to possess a gun in a school zone."
* law with a jurisdictional element: "It is unlawful to possess a gun that has traveled in interstate commerce in a school zone."
The emphasized clause is a jurisdictional element. And it is so called because its purpose is to bring the statute within Congress's commerce power -- that is, its legislative jurisdiction.
ANSWER: It is wholly unrelated to the idea of personal jurisdiction. Rather, as I think your second clause indicates, it concerns Congress's legislative jurisdiction. A jurisdictional element, as meant in Lopez, is nothing more than additional language that ensures that the particular instance of the activity being regulated has some sort of a connection to interstate commerce. For example:
* law without a jurisdictional element: "It is unlawful to possess a gun in a school zone."
* law with a jurisdictional element: "It is unlawful to possess a gun that has traveled in interstate commerce in a school zone."
The emphasized clause is a jurisdictional element. And it is so called because its purpose is to bring the statute within Congress's commerce power -- that is, its legislative jurisdiction.
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