Commandeering and preemption

The second (and related) review question I wanted to address in class yesterday was why the federal preemption of state law (by a federal statute) does not constitute a "commandeering" of the states in violation of New York and Printz.

 

Here is why it is potentially a problem. Recall that not all commands that Congress issues to states are unconstitutional. Indeed, the Court in New York and Printz was careful to distinguish Garcia, where the Court upheld the application of the FLSA's maximum-hour and minimum-wage provisions to the states. We spent some time (about six weeks ago) discussing how Garcia was distinguishable. First, the FLSA was "generally applicable": it applied not just to the states (or their subdivisions), but also to private employers. Second, and more fundamentally, at issue in New York and Printz were laws that regulated the states in their capacity to regulate or govern their won citizens, whereas the FLSA regulates the states in a proprietary capacity, as objects of regulation.

 

Notice that these two grounds, though, fail to distinguish preemption. Preemption is not "generally applicable"; rather, it is directed at states alone, as private parties are not capable of enacting laws or regulations. More fundamentally, preemption is directed at states in their capacity of governors of their own citizens. A federal statute that preempts state law is directly commanding the state as to how it is to regulate or govern its own residents. (E.g., "State, you shall not require any automobile manufacturer or seller to equip any particular car model with airbags.")

 

So how are the two doctrines compatible? The key is the difference between an affirmative command (as in New York) and a prohibition (preemption). The anti-commandeering principle forbids Congress from ordering states or their political subdivisions to take affirmative action to govern or regulate in a particular way. But it does not forbid Congress, in its regulation, to forbid states from regulating in a particular way (or perhaps in a particular field at all). Of course, Congress must be acting within its enumerated powers in enacting the relevant statute. But assuming it is, effectively ordering a state not to regulate is not a forbidden "commandeering."

 

This is how these different doctrines--concerning enumerated powers, commandeering, and preemption--all fit together.

Some more Q & A

QUESTION: I am working through Youngstown, thoroughly enjoying Justice Jackson's concurrence, when a pang of uncertainty hit me. If I may ask, how much should I let myself enjoy such lines as

“[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"

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?


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.

Some questions and answers, on judicial review and McCardle

QUESTION: On Lincoln versus Faubus: If the analysis is that there is very little difference between the president's and the governor's power to openly proceed as they wished notwithstanding the holding of the SCOTUS, what then, is the power of the SCOTUS?

 

ANSWER: Good question. Isn't the lesson, to some degree, that it depends on the degree to which other political figures will go along with (and enforce) the Court's decisions? Lincoln had a much broader and more powerful political coalition behind his position. Faubus was representing a vocal but geographically small minority, which was ultimately overwhelmed by the prevailing national view on the morality of racial segregation.

 

QUESTION: If the argument is that because both officials swore in order to come into office that they will uphold the Constitution of the United States, and that oath gave them the power to interpret the constitution, what then prevents, as you pointed out, a clerk of a federal judge, when he or she swore to uphold the Constitution of the United States, from openly defying the SCOTUS's decision when he or she sincerely believe the decision is against the principles of the Constitution?

 

ANSWER: Another good question. First, on a very practical level, that clerk might well be fired if her boss disagrees. Second, there is now a very strong general sense among Americans that it just does not work very well if we do not defer to the Supreme Court in its interpretations of the Constitution. That is, the Nation might well grind to a halt if everyone was always litigating their own understanding of the Constitution. Perhaps the larger point is that it is really norms and customs, rather than the strict dictates of law, that prevents this from happening.

 

QUESTION: While freedom of speech guarantees every individual citizen the right to advocate at the top of their lungs in which her fellows advocate at the top of their lungs in opposition, fundamentally there is a line between advocacy, the right to speech, and rebellion, the acts in defiance. Here, and in other cases, Lincon and Faubus not only advocated the unconstitutionality of SCOTUS's decisions, but that they performed in opposition. Are they, the president and the governor, then, by their actions, demonstrating that they are above the law? Or even worse, that they are the law? Who decides?

 

ANSWER: I think you could make decent arguments that neither were acting "unlawfully" (though Lincoln plainly was when he defied the court in the habeas case, In re Merryman). But there is a difference between the letter and the spirit of the law. And you could say that both acted contrary to its broader spirit -- Lincoln in a noble cause, Faubus in a rather pathetic one.

 

QUESTION: In a system of check and balances, where the Congress, the President, and the Court play a role in this dance of justice for the country, if each branch disagrees with the other on the interpretation of fundamental, constitutional matters, wouldn't we arrive at a system where everyone would be shouting to the rain on their issues, claiming that their perspectives are constitutional and that the perspectives of their opponents are not.

 

ANSWER: Two responses. First, again, the Nation will not tolerate too much of this, and generally has disciplined political leaders that they believed had not shown adequate respect for the rule of law. Second, everyone shouting to the rain about fundamental issues . . . is that really so different from the system we have now?

 

QUESTION: How could resolution arrive from such a system? Wouldn't the natural foreseeable path for such a system be chaos and disorder?

 

ANSWER: Perhaps, and I think that is precisely what has operated as the ultimate check. The People would not tolerate it. And that means that it generally not in political officials' interests to act in this fashion. But if it were -- witness the unhappy Terry Shiavo affair -- things can get a little messy. As I think Justice Breyer explained well in his essay, these things turn more on habits of mind and cultural and political norms of a people and a society. We just don't really tolerate this sort of behavior in our elected officials, and thus they are much less apt to challenge the Court.

 

QUESTION: Obviously, we have not yet reached that state in the US, so the begging question again, is, who has the ultimate power to prevent such an undesirable outcome?

 

ANSWER: There is no clear answer to this. It depends. It is sort of up to each generation to decide. In our system, to some degree, it is up for grabs. Different periods of history have seen different allocations of this authority. I think it is fair to say, though, that over time we have gradually moved closer and closer to a system of judicial supremacy.

QUESTION: At least twice in history, the President has repealed Supreme Court's writ of habeas corpus, and at least once, the President has defied the SCOTUS holding that the president lacks the power to repeal SCOTUS's writ of habeas corpus. Under Article III, section 2, clause 1 of the Constitution, it states "the judicial power shall extend to all cases...arising under the Constitution," and then clause 2 states, "the Supreme Court shall have appellate jurisdiction...under such regulations as the congress shall make."

 

ANSWER: But that is not mandatory. That provision is setting out the full scope of the subject matter jurisdiction that Congress is permitted to invest in the federal courts. Congress has never--ever--given the federal courts the full scope of the jurisdiction spelled out in Art. III, sec. 2, clause 1. 

 

QUESTION: How could these paragraphs reconcile in cases where they contradict? For example, imagine a situation where Congress has taken away SCOTUS's entire power for appellate review, and yet, dispute arising under the Constitution review occurs. Under Article III, section 1, clause 1, SCOTUS would have the power to review it, not just through original jurisdiction but also by appellate jurisdiction, as indicated by the language "all cases." However, under Article III, section 2, clause 2 would clearly state SCOTUS lacks the jurisdiction for review. Again, how does one reconcile situations such as this?

 

ANSWER: I think there are a few different questions here. First, with respect to the lower federal courts, this has always been the case. That is, there have always been cases to which "the judicial power shall extend" under Article III, but for which Congress has not granted the lower federal courts jurisdiction. We will talk about this Wednesday (1/26), but this has always been assumed to be part of the original compromise, to leave the existence and jurisdiction of lower federal courts to the discretion of Congress. As to the Supreme Court, I think it is a harder question. What if Congress completely cut off any way to get to the Supreme Court on a constitutional claim? I think the law is unclear as to whether Congress could do this. McCardle does not answer it. Certainly, Congress can give the Supreme Court discretion as to whether to hear such a claim. Thus, there is no individual "right" to have your federal claim considered on the merits by the Supreme Court. But what if Congress forbid it? I think the answer remains unclear.

 

QUESTION: Who decides?

 

ANSWER: The Court, I think, in interpreting the scope of Article III. And if the People disagree with the Court, then we get back to all the questions raised above.

 

QUESTION: Further, if Congress can take away SCOTUS's fundamental appellate jurisdiction such as the writ of habeas corpus, what is the limit of Congress's power?

 

ANSWER: Again, I think this is unclear. The check may ultimately be more political than legal.

 

QUESTION: How much of SCOTUS's responsibilities can the Congress chip away through legislature such that the framework provided by Article III, section 1--"the judicial power of the United States, shall be vested in one Supreme Court"--would still hold? How much of SCOTUS's responsibility can be disposed of before it cease to have the judicial power of the United States?

 

ANSWER: Very good question. It is not just an Article III question, but one that invokes basic separation of powers principles. Again, I do not think any authoritative sources of law give us a clear answer.

 

QUESTION: Finally, On Ex parte McCardle: I still struggle with the interpretation of the last paragraph. My feeble attempt at deciphering this paragraph is that Chief Justice Chase is trying to articulate, while Congress has the power to regulate the appellate jurisdiction of the Supreme Court, any regulation has only post hoc effect, and any judgment prior to the enactment of the repeal act would still be effective. From the discussion in class, this does not seem to be the significance of that last paragraph, and if I am not mistaken, you suggested that SCOTUS still had jurisdiction on some levels. What is that level? How would you have interpreted the last paragraph?

 

ANSWER: As to the narrower question, yes, litigants like McCardle could have gotten to the Court with their habeas claims through a different route, under the Judiciary Act of 1789 using, in conjunction with the writ of habeas corpus, a writ of certiorari. As to your broader question, about how I would interpret that last paragraph, here is my best stab. Chase is basically saying this: "Look, we are not deciding whether this Repeal Act would be constitutional if it completely removed the Supreme Court's appellate jurisdiction in all cases in which the litigant was seeking a writ of habeas corpus. There is another statute that provides for that jurisdiction, on which prior litigants have relied, and which we have used to review habeas petitions on appeal. Now, we are not saying that the Repeal Act would necessarily be unconstitutional if it had completely cut off all appellate routes to the Court. Rather, we want to make clear that we are not deciding this issue one way or  the other today. We reserve it for another day."

Cohens v. Virginia and the Supreme Court's original jurisdiction

Madhuri asked a great question yesterday concerning Cohens and Article III's allocation of the Supreme Court's original and appellate jurisdiction. In essence her question was this: if Marbury held that Article III defines what must be in the Court's original and appellate jurisdiction, and Virginia was a party in Cohens, and Article III states that the Court shall have original jurisdiction "In all Cases . . . in which a State shall be a Party," what gives? How can these fit together?

 

They can't. So the Court (and Chief Justice Marshall himself, the author of both) effectively overruled this part of Marbury in Cohens. He held (in a portion of the opinion not included in the casebook) that, although Congress cannot expand the original jurisdiction of the Supreme Court beyond those cases specified in Article III (which was the precise problem in Marbury), Congress can permit those same cases to come to the Court on appeal (in Cohens, from a state court).

 

Why? The basic problem is that something had to give. A state is always a party in a criminal prosecution initiated by a state. (At that time, as now, more than 90%, perhaps 99%, of criminal prosecutions were initiated by states, not the federal government.) By necessity, a criminal case initiated by a state against a defendant originates in a state trial court. Thus, such a case simply could never reach the Supreme Court of the United States if the Supreme Court could only exercise original jurisdiction over cases in which a state was a party. In other words, that reading of Article III would render every single criminal prosecution initiated by a state immune from federal judicial review, no matter the federal constitutional or statutory problems it raised.

 

(Perhaps such convictions could be challenged by seeking a writ of habeas corpus in federal court. But that is an indirect challenge to a conviction, not a direct appeal. Moreover, federal habeas review of state criminal convictions did not exist until the 20th century.)

 

Faced with this structural implication, the Court held that Congress could authorize the Court to exercise appellate jurisdiction in cases that Article III specifies as falling within the Court's original jurisdiction.

 

As the Judiciary Act currently reads, there is only one set of cases in which the Supreme Court's jurisdiction is original and exclusive: suits between two states. The others may be brought as an original matter, but need not be. The Court can review them on appeal as well, and it basically always does.

Tiers of scrutiny

QUESTION: What is the scrutiny applied in Eisenstadt v. Baird? We have that it is the minimum rationality standard. But doesn't this case decide that the right to privacy is fundamental, so strict scrutiny should apply?

ANSWER: You are right -- if the Court had decided the case on due process grounds. But that sentence in our casebook was really an aside. If you look at the full opinion, you will see that the Court decided the case based on the Equal Protection Clause. The statute (at least in its application) discriminated on the basis marital status. The Court subjected this discrimination to rational basis review, and held (perhaps disingenuously) that the law failed to rationally further a legitimate state interest. (More candidly, I would call this rational basis "plus," as the Court was certainly more demanding than the test of Lee Optical.)

QUESTION: What level of scrutiny applied in Griswold? We think it's strict scrutiny because our notes say "high level of scrutiny" and again it concerns fundamental right to privacy.

ANSWER: That seems like a logical inference to me. The Court does not use the magic words, but yes, I think it was applying strict scrutiny.

QUESTION: What are the strict scrutiny cases? Griswold, Eisenstadt, and Lochner?

ANSWER: Due process decisions that seem to apply strict scrutiny, or something like strict scrutiny, would include Lochner, Pierce, Meyer, Griswold, Roe, Casey, Loving, Zablocki, arguably Lawrence, and Perry v. Schwarzenegger. 

When are agencies part of the Executive Branch?

QUESTION: I'm a little confused on what agencies are classified as, such as the EPA. In your 2008 model answer it was stated that the commission was placed in the executive branch (I think), and thus the line-item veto and non-delegation doctrine doesn't really apply in regards to the President's authority over what is actually goes into law. I thought the Commission to be a quasi-legislative branch that has both authority to create the law and dictate enforcement (although that was limited as custom agents would which is strictly a part of the executive branch). I would argue that having the President able to essentially veto what he wants from the agency, and the agency is more legislative then not. So the President is overstepping the boundaries set by separation of power as he is essentially deciding what laws gets passed. Is this an incorrect analysis or just a different viewpoint (that would still receive mostly full credit if this was an exam answer)?

ANSWER: I would say, candidly, that your analysis is largely incorrect. Let me try to explain in a few steps. First, where an agency is "placed" is not really the issue. Rather, the issue is whether the agency is involved in the execution or implementation of federal law. Any agency so doing is part of the "executive branch," at least in a sense. Now, some people will say that independent agencies are not part of the Executive Branch because they are independent of the President--independent typically because their heads are not removable by the President at will. I would say that this lessens presidential control, but it does nothing to obviate the underlying reality that the agency is executing federal law. Second, sure, the agency is "quasi legislative" in the sense you describe. But so is every agency. All execution of law involves some discretion, and often it is sensible to announce in advance, in the form of regulations (that look like statutes) how the agency plans to exercise that discretion. But this does not make them an extension of Congress, or part of the legislative branch. Recall that, under cases such as Chadha and Bowsher and Buckley that Congress can play no role in the execution of federal law. So this agency cannot constitutionally be a part of the legislative branch. Third, once we resolve that the agency is part of the bureaucracy that is executing federal law (whatever exact label we place on it), it should become clear that there can be no line-item veto problem. the President is merely adjusting how the law is being executed; he is not altering the statute itself. Finally, the delegation issue is only relevant in evaluating the standard that Congress has given the executive branch as a whole. So long as that states an intelligible principle for enforcement, that doctrine is satisfied.

  

QUESTION: Also, what are agencies like the EPA actually classified under and who is in charge of them? It seems that they are legislative in the fact that they create regulations but also executive as they enforce these regulations (through fines and whatnot). So is the legislative branch or he executive branch in charge of them or are they independent from both?

ANSWER: The EPA has responsibilities of enforcing and executing federal law, thus it is a part of the Executive Branch. The head is the Administrator of the EPA. Again, you are right that much of what it does seems legislative in nature. But the better way to understand this is as the exercise of discretion in the enforcement of federal law. 

Jurisdictional elements

QUESTION: I am a little confused about the idea of jurisdictional element. Is the only way to satisfy jurisdictional element to state specifically in the legislation "X in interstate commerce," or would something that is clearly used only in connection to interstate commerce suffice?

ANSWER: The term "jurisdictional element" refers specifically to additional explicit language in the statute. So, as you have phrased the question, I think yes, by definition, there is no jurisdictional element if that connection to interstate commerce is not specifically stated in the statute. (That is not to say, of course, that every statute needs a jurisdictional element. Indeed, many things, by their nature, are always in interstate commerce, such that it would be superfluous to include such additional language.)

QUESTION: For example, if there were legislation that barred handguns at weigh stations on interstate freeways, would the inclusion of the location "weigh stations" work as a jurisdictional element (assuming the only possible connection weigh stations have to commerce is in interstate commerce) and obviate the need to include " handguns in interstate commerce" in the phrasing of the law?

ANSWER: I would say "weigh stations on interstate freeways" would probably be a considered a jurisdictional element, yes. It is limited the scope of the regulated activity to a subclass with a closer connection to interstate commerce. Notice, too, that this jurisdictional element might actually bring the regulation into a different category under Lopez--namely, it might render the statute a regulation of the use of the channels of interstate commerce.

QUESTION: Congress is seeking to regulate the substantial effect, so it seems valid to transfer the jurisdictional element from "handguns in interstate commerce" to "handguns at place that is used exclusively for intestate commerce." The Lopez court used the phrasing "nexus with interstate commerce" and it seems as if, in this hypo, the weigh station is as good a nexus as any.

ANSWER: I would generally agree. I would just caution, though, that the existence of a "jurisdictional element" in a statute will not necessarily render a statute a valid use of the commerce power. Jurisdictional elements can come in sorts of different shapes and sizes, some creating a close nexus with interstate commerce and some requiring only a very attenuated one. So it all depends on how much work the jurisdictional element actually does.

QUESTION: For reference: in Lopez the court found that the statute stating "'for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.'" 18 U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V)" was not within the commerce clause for lack of a jurisdictional element. However, the inclusion of "firearm that has moved in or that otherwise affects interstate or foreign commerce" solved the jurisdictional element problem. 

ANSWER: Not necessarily. That was Congress's fix, but the Supreme Court has not held that it was sufficient. So this remains a bit unclear at this point.

QUESTION: If the requirement is that Congress add the phrasing adopted in the second statute, the whole exercise seems rather silly. Can't that just be implied (hello, implied pre-emption!), like so many other things?

ANSWER: I agree, at least to some degree. But again, we are not sure that Congress's fix was sufficient. Moreover, Lopez might have been more symbolic than real. And yes, I think it could be inferred in some circumstances (as mentioned above), but obviously the Court was unwilling to make that inference in Lopez. 

Some questions (and answers)

QUESTION: I have a question regarding the case of Raines v. Byrd (page 46 of the casebook), involving a challenge to the Line Item Veto Act by senators. I am not sure if I clearly see why the injury is "abstract and widely dispersed" as Chief Justice Rehnquist decided. If my duty is to pass bills, and someone can render them ineffective (partially), why isn't that a concrete injury? And the only people affected are the Senators and Congressmen, so why is it widely spread? Is this a borderline case where subjective opinion makes all the difference or I am missing something?

ANSWER: I think the decision is more defensible on the ground that the injury was not sufficiently concrete (too abstract) than on the ground it was too dispersed (not sufficiently particularized). The Senators' claim was that their voting strength on bills subject to the LVA was diluted to some degree, as the LVA decreased their leverage over the President vis-a-vis his preferences. It is not hard to see that this lacks much concreteness. You describe the LVA as rendering their votes "partially ineffective," but that is debatable. Consider this: the budget bill at issue in Clinton v. New York contained more than 2,000 pages, and the President line-item vetoed two lines. To what degree did the LVA really affect Senator Byrd's voting power in the Senate? Consider also that the LVA only applied to certain sorts of bills, and certain line items within those bills. I think all of this suggests that the injury being alleged was somewhat conjectural, and somewhat abstract. (Of course, as your last sentence suggests, the vote was 5-4, so it obviously was not clear.)

QUESTION: I had a question concerning your model outline/answer #3 for Section 901 on the 2010 exam. Could you explain a little bit more about this one? While I understand that it's not the same as Clinton v. NY because the law would have already gone through presentment procedures, I'm confused on how Congress can basically allow the President to choose whether or not to enforce the law at all or in part. Is Congress really allowed to basically say to the President/executive "do whatever you think best"? Is that what you meant by the "delegation in subsection (a) might violate the non-delegation doctrine"?

ANSWER: Yes, I think that gets the gist of it. There is certainly nothing unconstitutional per se in Congress delegating discretion in the enforcement of federal law to the Executive Branch. Indeed, such delegations are inherent in any law, as no law is so clear as to preclude any discretion in enforcement. Typically, that discretion is in the form of how to enforce a statute. But there is no reason it does not also extend to whether to enforce a statute, or at least a portion thereof. In fact, it is unclear we could draw a clear distinction between the two. Consider federal criminal laws. If the Attorney General (or someone lower in DOJ) decides not to prosecute a particular individual (even though there might exist sufficient evidence to obtain a conviction), is that an exercise of discretion as to how to enforce the statute? Or is it discretion as to whether to enforce the statute? The larger point is that there is nothing inherently problematic in Congress delegating discretion in enforcement to the Executive Branch. The relevant question in such circumstances is whether the delegation is too broad, meaning that Congress has failed to provide an "intelligible principle" to guide the executive's enforcement or implementation of the law.

Channels and instrumentalities

QUESTION: First, when discussing interstate commerce, is it acceptable to determine whether the legislation has substantial effects on interstate commerce before determining whether the legislation is regulating channels or instrumentalities of interstate commerce? My reasoning is that the vast majority of examples I've come across have been substantial effects examples, so I'd rather start start with the usual suspect.

 

YES, THAT IS FINE. THERE IS NO MANDATED ORDERING. BUT JUST TO BE CLEAR, IT IS THE REGULATED ACTIVITY THAT MUST HAVE A SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE, NOT THE LEGISLATION.

QUESTION: Second, and an alternative reason for wanting to start with Substantial Effects test, is can you clarify or distinguish channels and instrumentalities again? Is it fair to say that the channels are the mode of interstate activity and instrumentalities are the means? For example, highway trucking -- the highways are the mode and the trucks are the means?

 

YES, I THINK THAT IS ESSENTIALLY CORRECT, THOUGH THE COURT HAS NEVER USED THOSE PRECISE TERMS. I THINK OF CHANNELS AS THE "RIVERS" THROUGH WHICH COMMERCE FLOWS -- ROADS, NAVIGABLE WATERWAYS, RAILWAYS, TELECOMMUNICATION NETWORKS -- AND INSTRUMENTALITIES AS THE OBJECTS THAT FACILITATE THE COMMERCE -- RAILROAD CARS, AIRPLANES, ROUTERS, SERVERS, AND THE LIKE. BUT, BECAUSE THE COURT HAS NOT DECIDED A CASE INVOLVING ONE OF THESE CATEGORIES SINCE LOPEZ, WE ARE NECESSARILY GUESSING A LITTLE BIT.

Privleges or immunities

QUESTION: I am emailing you because I am having a hard time wrapping my head around the Privileges and Immunities of the 14th Amendment. My question deals with the analytical framework of the clause. I understand we first must determine whether the right is "fundamental".

 

ACTUALLY, NO, THAT IS NOT RELEVANT UNDER THIS CLAUSE -- AT LEAST AS I UNDERSTAND IT. SAENZ ESSENTIALLY HOLDS THAT THE THIRD COMPONENT OF THE RIGHT TO TRAVEL INTERSTATE -- THE RIGHT TO MIGRATE -- IS ONE OF THE PRIVILEGES OR IMMUNITIES PROTECTED BY THE CLAUSE. THUS, AS I UNDERSTAND THAT DECISION, ANY INFRINGEMENT ON THIS RIGHT, NO MATTER WHAT IT IS WITH RESPECT TO, WILL BE SUBJECTED TO STRICT SCRUTINY. THAT IS, THE "RIGHT" ON WHICH THE STATE DISCRIMINATES AGAINST NEW RESIDENTS NEED NOT BE "FUNDAMENTAL" IN ANY SENSE.

 

QUESTION: I am unclear what test we apply to find out whether the right is "fundamental". Is it the same fundamental test we used for incorporation or something totally different?

 

AGAIN, I DO NOT THINK THERE IS ANY SUCH INQUIRY. THERE IS UNDER ART. IV, BUT THAT IS A DIFFERENT QUESTION.

 

QUESTION: Does the Privileges or Immunities Clause of the 14th Amendment only deal with the 3rd right to travel - the right to migrate?

 

PROBABLY. PERHAPS IT ALSO PROTECTS THE FIRST COMPONENT -- THE RIGHT TO PHYSICAL MOVEMENT ACROSS STATE BORDERS -- BUT THE COURT HAS NOT CLEARLY SO HELD.

QUESTION: For example, let's say I, a California resident, went on vacation in Nevada. Under Art IV, Sec 2's privileges and immunities I would be able to enjoy the same privileges as a resident of Nevada, with some exceptions (i.e. - voting). However, if I established residence in Nevada, then I would be protected not under Art IV, Sec 2, but under the 14th Amendment. Is that correct?

 

YOU GOT IT. AND IN A CASE LIKE PROBLEM 6, IT IS SORT OF UNCLEAR WHICH OF THESE TWO PROTECTIONS APPLIES. BUT WE KNOW THAT IT CANNOT BE BOTH AT THE SAME TIME -- YOU ARE EITHER A NEW RESIDENT OF NEVADA, OR YOU ARE A CALIFORNIA RESIDENT VISITING.

Questions about Lochner and incorporation

QUESTION: I want to make sure I understand the difference between what Lochner said and the way it is now.  From my understanding, Lochner said that the right to contract was fundamental and that a state cannot regulate an individual economic right to contract (like minimum hours). Now, all the state needs is a legitimate interest (almost any public interest it seems) and a loose fit between the law and that interest. In effect, now a state can regulate minimum wage or hours nearly at will, whereas before, it was almost impossible. Is this a correct understanding?

 

ANSWER: Essentially, yes. I think there are a few more subtleties to Lochner that we did not really discuss. For instance, government could regulate the maximum hours of miners, for instance, because the Court saw that as raising "real" public safety concerns (as opposed to the "pretextual" ones asserted by New York in Lochner itself). But yes, your summary is basically correct.

QUESTION: The next question is when we should be considering historical recognition of a right and importance of that right.  We first talked about that in the incorporation context, but it was also mentioned tonight.  Should those considerations be taken into account /applied in any instance involving individual rights (economic or not)?

ANSWER: The question whether a right is "fundamental" as a matter of due process, such that the government's infringement on that right is subject to strict scrutiny, is precisely the same question we ask with respect to incorporation (i.e., whether one of the rights protected by the Bill of Rights applies to the states). Indeed, it is precisely the same issue, the only possible difference being that in the incorporation context, the right happens to be textually spelled out in one of the first eight amendments to the Constitution. But the "implicit in a scheme of ordered liberty"/"deeply rooted in the our nation's history and traditions" question is the same inquiry whenever we are asking whether a right is "fundamental" as a matter of due process. This is the incorporation question, precisely because the Court has held that the rights that are incorporated are those that are "fundamental." But, of course, it has not stopped with those textually spelled out in the Bill of Rights. Thus, it is also the question we ask in Griswold, in Roe, in Casey, and perhaps in Lawrence v. Texas and Perry v. Schwarzenneger.

Appropos of our discussion . . .

. . . the Ninth Circuit just issued an opinion this morning holding that an Arizona law requiring that voters present proof of citizenship when registering to vote was preempted by federal immigration law. You can find the Ninth Circuit's opinion here, and you can find commentary here. The decision was 2-1. Judge Sandra Ikuta wrote the majority, and she was joined by former Justice Sandra Day O'Connor. Judge Alex Kozinski authored a lengthy dissent. (Interestingly, Judge Ikuta clerked for Judge Kozinski, and then for Justice O'Connor, in the 1980s.)

Preemption, commandeering, marijuana, and immigration

During last night's class, we had a terrific discussion that weaved several different constitutional principles together. The two principal questions spurring the discussion were these:

1. How is it that California's Compassionate Use Act (or, more clearly, Prop 19 if it passes) does not "frustrate the purpose" of the federal Controlled Substances Act?

2. How is the California marijuana example (where state law is not preempted) distinguishable from Arizona's S.B. 1070, which essentially creates state offenses that are tied to the violation of federal law, and thus indirectly permits state officers to enforce federal immigration law?

These are complicated issues, and one blog post cannot comprehensively address all of the subtleties. But I think the essential point is this: state laws that permit certain behavior generally can never be preempted. For all they do, at a basic level, is is provide that the state will not regulate the activity in question (or a specific subset of that activity). The easiest way to see why this must be so is that, if a permissive state law were preempted by a federal statute, then the federal statute would effectively be commanding the state instead to regulate that activity. And we know that, under the anti-commandeering principle, Congress cannot require states affirmatively to regulate according to the federal government's instructions. Thus, so long as the state law is merely permitting something to occur (whether that permission is characterized as "action" or "inaction"), it cannot be preempted.

(No doubt, if Prop 19 passes, it will frustrate the purposes of federal law in a colloquial sense. But it will not in a legal sense, due to the implications of such an understanding outlined above.)

In contrast, state laws that forbid certain activity, or penalize or sanction that activity, are clearly subject to preemption. These are the laws that can frustrate the purpose of federal law. For example, the Illinois common law rule concerning unreasonably dangerous consumer products was potentially subject to preemption because it imposes liability on product manufacturers (in certain circumstances).

And the same is true of Arizona's SB 1070. Among other things, it (1) requires that all persons who have been arrested have their immigration status verified prior to release, (2) requires police officers to make a reasonable attempt to determine an individual's immigration status during any lawful stop, (3) makes it a misdemeanor for a person unlawfully present in United States to apply for work, and (4) permits police officers to make warrantless arrests when the officer has probable cause to believe that the suspect has committed an offense that renders the suspect removable. All of these are limitations imposed on activity, or the authorization to impose such limitations. Declaring these provisions preempted would not force Arizona to do anything--other than to stand down its enforcement machinery. (It need not even actually repeal its law; it would just be enjoined from enforcing it.)

So the real difference is between state laws that permit (like California's more permissive marijuana policy) and those that forbid, constrain, or sanction. The latter are subject to preemption, while the former are not.

McCulloch and the Necessary and Proper Clause

QUESTION: I was going over my notes again from our class on McCulloch and had a question. You mentioned that the Necessary and Proper Clause does not grant any power in and of itself, and that Congress is entitled to adopt appropriate means, but only in service to some other enumerated power, such as the commerce power or the power to establish post roads (or something like that). What was the other enumerated power for Congress in this case?

ANSWER: Very good question. Marshall never directly answers this question, but Hamilton did (in his memo to President Washington about the constitutionality of the first Bank of the United States, and on which much of Marshall's opinion in McCulloch was based). The principal ones? The power to raise and support an army and navy; the power to pay the debts of the United States; the power to borrow money; and the power to collect taxes. Those are all enumerated powers elsewhere in Article I, section 8, and establishing a Bank of the United States, in the Court's view, was "appropriate" or "conducive" to those ends.

QUESTION: Does that mean that in the case of McCulloch, Congress had the power under the Necessary and Proper clause to create the bank in service to the Commerce Clause?

ANSWER: I'm unsure about this. Claiming that the creation of the bank was necessary and proper to regulate interstate commerce might have been plausible. But the federal regulation of interstate commerce at the time was quite minimal. So it is possible, but I do not know. Regardless, there were the other enumerated powers (mentioned above) that the creation of the bank was a means to accomplishing. Thus, whether the bank was a proper means to the regulation of interstate commerce ultimately did not matter.

QUESTION: Also, does this mean that when we look at a statute we should first look at whether it was "necessary and proper" and then look to see if there is another enumerated power that it functions in service to?

ANSWER: I think that probably has things backwards--at least in my mind. Here is how I think about it. First, I ask whether it rather directly serves an enumerated power, and then I ask whether, given the additional leeway provided by the Necessary and Proper Clause, it might still be justified by the two clauses together. Put differently, the Necessary and Proper Clause, at least since McCulloch, has meant that Congress has fairly broad leeway in its choice of means. But the means must be in service of an enumerated power. And we cannot really evaluate whether a law is an appropriate means without first asking, "A means to what?" So before you can even think about the Necessary and Proper Clause question, you have to have identified the relevant enumerated power.

More on Youngstown

QUESTION: Regarding Youngstown: it's unclear to me why the part of Art. II that says "the executive power shall be vested in a President" did not allow President Truman to issue the order. We discussed how the Constitution doesn't spell out the presidential powers, and also how it doesn't limit the President's powers to only what is granted. What I'm missing is how we get from there to "can't do it." Is the key that the Article is about "executive" power? And that this power precludes "creating law," which, clearly, the opinion thinks the President is doing?

ANSWER: I don't think there is an easy, obvious answer to this question. But I think there are some concepts that help fill in the gaps. First, the "executive power" is a power to execute something. And that execution is generally the law as enacted by the Congress of the United States. In Youngstown, there was no federal statute to execute (at least according to the majority). If anything, Congress had precluded the President from taking the action at issue. Thus, the seizure of the steel mills could not be justified as a straightforward, typical use of the "executive power"--executing a law enacted by Congress. The question then becomes whether the President nonetheless had the authority to take this action. One argument as to why it should have been constitutional was that, given the powers granted by Article II to the President, Congress lacked the authority to prevent the President from taking this action. This the Court clearly rejects. While there might be some overlap in powers in this context, it certainly is not an area, said the Court, that is reserved exclusively to the President. A final argument--or perhaps one that hangs over all of this--is the one you reference, that the Constitution grants the president the "executive power," and not "all executive powers herein granted." Thus, it perhaps implies that the President possesses executive powers beyond those actually granted to the President in Article II. It is unclear precisely what this adds, other than to arguably establish the idea that the President is not completely limited to (1) executing laws enacted by Congress, and (2) fulfilling responsibilities or exercising powers expressly granted by Article II. Here, at least according to the majority, this does not really matter, as Congress had clearly disapproved of the President's action. As a result, even if the President does possess such additional authority, it would not have helped him here.

The DPPA and "conflicts" between state and federal law

QUESTION: Isn't the relationship between the Compassionate Use Act and the Controlled Substances Act in Raich somewhat analogous to South Carolina law and the DPPA in Reno v. Condon? In Condon, the Supreme Court says that "South Carolina law conflicts with the DPPA's provisions." Is this statement any different from "South Carolina law conflicts with the DPPA?"

ANSWER: I think you are right, and that the word "conflicts" here might be employed a bit too loosely. What is different about Condon, though, is that the DPPA is controlling the state itself. So when South Carolina law stated that the state DMV would disseminate this information, it was really saying that this would happen--not just that, as a matter of South Carolina law, it was permissible. It was an expression of what the state, itself, intended to do. In this sense, there was a conflict, in a way that there was not between the CSA and the Compassionate Use Act, both of which only regulate private persons. Nonetheless, your larger point rings true: When state law permits something and federal law prohibits it, there generally is not a conflict between the two. Rather, the state has simply chosen not to regulate the activity in question, even though the federal government has made the opposite choice.

More on Marbury

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 . . . .

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.

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.

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.

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.

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.