QUESTION: To me the line between a market regulator and market participant seems very blurry. How does a court determine when a State is acting as a market participant versus a market regulator?
ANSWER: The essential question is whether the government is entering a market in its proprietary capacity, as either a buyer or seller of goods or services, or instead is using its coercive power to dictate the ways in which the governed conduct their business or other activities. The former is market participation, the latter regulation.
QUESTION: In Hunt, for instance, it seems to me that the the State was participating in the sale of apples. So why then did the Court determine they were a state regulator as opposed to a market participant?
ANSWER: I don't think so. The State of North Carolina was not selling or buying apples. Nor did its regulation dictate the terms on which the state was going to do so in the future. Rather, the state law at issue was dictating the terms on which private persons were to sell apples within the state: namely, with only the USDA grade on the outside of the crate. This is regulation. It is a coercive mandate on the conduct of others. It is not simply stating the terms on which the state itself would act as a buyer or seller of apples.
Tuesday, March 30, 2010
Monday, March 29, 2010
Privileges and immunities
QUESTION: A "State" cannot abridge the rights of individuals from out of state to obtain things at the same price of their residents. But can a private business do so?
ANSWER: Sure, as a matter of constitutional law. There is no constitutional constraint on what private persons do (other than the Thirteenth Amendment).
ANSWER: Again, no constitutional problem. There may be statutory obligations imposed on private actors that make this sort of think illegal. But it would not be a constitutional problem.
QUESTION: It seems to me these run in the face of the clause, except that these are not state actors. Is there a difference?
ANSWER: Sure, as a matter of constitutional law. There is no constitutional constraint on what private persons do (other than the Thirteenth Amendment).
QUESTION: I suppose my concrete example would be not allowing out-of-state licenses to serve for purposes of alcoholic or drug related purchases. Is that permissible?
ANSWER: If this is simply the policy of a private actor, sure, no constitutional problem there.
QUESTION: What about not allowing passports to serve as identification?
ANSWER: Again, no constitutional problem. There may be statutory obligations imposed on private actors that make this sort of think illegal. But it would not be a constitutional problem.
QUESTION: It seems to me these run in the face of the clause, except that these are not state actors. Is there a difference?
ANSWER: Yes, a big one. Constitutional law constrains the government (only).
Questions on Pike balancing
QUESTION: The basis for deciding the existence and extent of any burden on interstate commerce is worryingly vague, and Justice Stewart's opinion makes it sound as though such decisions should be made on a case by case basis since they are purely relational in nature to local interests.
ANSWER: I think that is probably right, if we take the test seriously. But I don't. I think something else is going on.
QUESTION: Such decision-making seems to grant too much judicial power, to the point that it encroaches on the nation's legislative powers and even the states' executive powers.
ANSWER: Perhaps. But Congress has been aware of this judicial practice form many years and chosen not to enact any legislation to shut it down. It could do so tomorrow if it wanted.
QUESTION: My views are that business laws and regulations that effectuate "clearly excessive" burdens on interstate commerce should be remedied through further/amended laws passed by the legislature, and not by the courts.
ANSWER: That is a perfectly defensible position. But I will raise the same point as above: at what point can we say that Congress has effectively blessed this doctrine by not intervening?
QUESTION: The burden that was to be imposed on Bruce Church may have been unfair, but unfairness does not seem to me to be actionable.
ANSWER: But couldn't you say that administrative order in that case discriminated against interstate commerce? What purpose did Arizona have for requiring Bruce Church to pack the cantaloupes in Arizona? And isn't "unfairness" "actionable" when it constitutes discrimination against interstate commerce?
QUESTION: The question of whether it was unjust, however, should have been answered by legislation. Is the Court able to overcome this apparent overstepping of boundaries simply through the omnipotence of the Commerce Clause?
ANSWER: I guess it is the Court's understanding of the Commerce Clause. As well as Congress's longstanding acquiescence.
QUESTION: Or is it due to lack of legislation that addresses the issue?
ANSWER: Well, yes, that too. There is never a dormant Commerce Clause issue if Congress has spoken to the question.
QUESTION: Or is a Court judgment simply a more expedient way of arriving at a solution than the legislative process?
ANSWER: I would not say "simply more expedient," though you could certainly make the case that having the courts monitor such laws makes more sense than leaving it to Congress. The judicial system is much better equipped to combat such frequent instances of protectionism and "undue burdens." But it is not "simply" that. It is also the long history of the Commerce Clause's purposes, combined with Congress's apparent blessing of what the Court has been doing for more than 150 years.
ANSWER: I would not say "simply more expedient," though you could certainly make the case that having the courts monitor such laws makes more sense than leaving it to Congress. The judicial system is much better equipped to combat such frequent instances of protectionism and "undue burdens." But it is not "simply" that. It is also the long history of the Commerce Clause's purposes, combined with Congress's apparent blessing of what the Court has been doing for more than 150 years.
Revisiting the Necessary and Proper Clause
QUESTION: My notes from M'Culloch say that as long as the end is legitimate (enumerated in the Constitution) and consistent with the Constitution, Congress may enact any law. Is that right?
ANSWER: I think that is a fair summary.
QUESTION: In looking at his concurrence in Raich, Scalia seems to be saying that: (1) the "substantial effects" test is not enough in and of itself to bring the case under the Commerce Clause; (2) the Act therefore only regulates intrastate commerce, which in turn is actually a component of a broader interstate commerce regulatory scheme; (3) Congress therefore actually derives its ability to pass the Act through the necessary and proper clause because....; (4) The reason the Act is Constitutional under the Necessary and Proper is that Congress can point to a "legitimate end", intrastate commerce which in turn is a component of a broader regulation of interstate commerce... Is that right?
ANSWER: I think that is generally correct. I think the basic point is that the CSA plainly regulates an interstate commercial activity, and that its sweeping up purely intrastate, non-commercial instances of that activity is necessary and proper because of the difficulty in distinguishing them from the interstate or commercial instances.
QUESTION: My concern is whether or not Congress can come up with some outlandish law that did not fit under any specific enumerated power and simply say its covered under the "necessary and proper clause."
ANSWER: The answer would be no, at least in theory. The N&P Clause can only be used in conjunction with another enumerated power.
QUESTION: In reading Scalia's opinion, it seems that the Necessary and Proper Clause acts as more of a gap filler where the end is enumerated but the specific means may not be.
ANSWER: Right, at least generally. Means generally are not articulated elsewhere, only ends. So the N&P Clause makes clear that all appropriate means to accomplish the enumerated ends are constitutional.
QUESTION: If I am thinking about this correctly.......going to M'Culloch - it seems unclear which enumerated power Congress was acting on. The only options would have been (1) the Commerce Clause since it was a "national bank" or (2) "General Welfare"?
ANSWER: I think those are two prominent ones. I think raising and supporting an army and navy would work, especially at that time. So would coining money, borrowing, and paying the debts of the national government. You are right, though, that Marshall was not clear on this. There was sort of a grab bag. Everyone seemed to accept that, if one accepted the broad meaning of the N&P Clause (as Marshall did), the Bank was an appropriate means to some set of (somewhat undefined) enumerated ends.
ANSWER: I think that is a fair summary.
QUESTION: In looking at his concurrence in Raich, Scalia seems to be saying that: (1) the "substantial effects" test is not enough in and of itself to bring the case under the Commerce Clause; (2) the Act therefore only regulates intrastate commerce, which in turn is actually a component of a broader interstate commerce regulatory scheme; (3) Congress therefore actually derives its ability to pass the Act through the necessary and proper clause because....; (4) The reason the Act is Constitutional under the Necessary and Proper is that Congress can point to a "legitimate end", intrastate commerce which in turn is a component of a broader regulation of interstate commerce... Is that right?
ANSWER: I think that is generally correct. I think the basic point is that the CSA plainly regulates an interstate commercial activity, and that its sweeping up purely intrastate, non-commercial instances of that activity is necessary and proper because of the difficulty in distinguishing them from the interstate or commercial instances.
QUESTION: My concern is whether or not Congress can come up with some outlandish law that did not fit under any specific enumerated power and simply say its covered under the "necessary and proper clause."
ANSWER: The answer would be no, at least in theory. The N&P Clause can only be used in conjunction with another enumerated power.
QUESTION: In reading Scalia's opinion, it seems that the Necessary and Proper Clause acts as more of a gap filler where the end is enumerated but the specific means may not be.
ANSWER: Right, at least generally. Means generally are not articulated elsewhere, only ends. So the N&P Clause makes clear that all appropriate means to accomplish the enumerated ends are constitutional.
QUESTION: If I am thinking about this correctly.......going to M'Culloch - it seems unclear which enumerated power Congress was acting on. The only options would have been (1) the Commerce Clause since it was a "national bank" or (2) "General Welfare"?
ANSWER: I think those are two prominent ones. I think raising and supporting an army and navy would work, especially at that time. So would coining money, borrowing, and paying the debts of the national government. You are right, though, that Marshall was not clear on this. There was sort of a grab bag. Everyone seemed to accept that, if one accepted the broad meaning of the N&P Clause (as Marshall did), the Bank was an appropriate means to some set of (somewhat undefined) enumerated ends.
Thursday, February 25, 2010
Mootness issue in Problem 4
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.
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.
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.
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