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.

Interstate commerce and "attenuation"

QUESTION: I have a question regarding Morrison. The dissent by Souter and three other justices states that 42 U.S.C. 13981 would have passed muster between 1942 and 1995. Their reasoning is that gender-based violence is similar to racial discrimination in Heart of Atlanta and McClung in reducing mobility of employees and the production/cosumption of goods in interstate commerce. Applying Lopez test, Heart of Atlanta/McClung had activities affecting commerce as being involved in renting rooms in a motel or selling food, whereas in Morrison the connection between the regulated activity (gender-based violence) and the effect (mobility/consumption) is more attenuated. The court in Morrison ruled that the activity is "noneconomic." Does the "attenuation" factor makes the regulated activity in Morrison "noneconomic," or do you think that the time frame really impacted the holding here?

ANSWER: There are a few different ways of looking at this. First, let's take the purely doctrinal. From that perspective, there is a critical difference between the Civil Rights Act of 1964 (which regulates commercial activity directly--the operation of a hotel or restaurant) and sec. 13981 of VAWA (which regulates a form of assault). The former is a commercial activity, the latter is not. The majority sees this distinction as dispositive. You could also package this as "attenuation," as the connection of the regulated activity in Morrison to an effect on interstate commerce is at least once removed when compared to that in Heart of Atlanta or McClung. The Civil Rights Act directly and immediately shapes commercial behavior (who businesses must serve). The effect on commerce in Morrison is more attenuated. But, as I indicated last night, this seems like simply a different way of expressing the idea that the activity actually regulated by 13981 was not itself economic or commercial.

 

Second, as to timing: Yes, political time clearly is also an explanation. In 2000, there were 5 justices on the Court willing to curtail Congress's commerce power. In 1965, had 13981 come to the Court, I feel confident that the Court would have upheld the Act. As lawyers, we can distinguish the two cases (as I have tried to do above), but as Court observers we have to admit that the personnel on the Court at any given moment does a lot to explain how that doctrine is understood or construed -- at least at the margin.

Some questions (and answers)

QUESTION: Does the power of judicial review always require a federal issue in the case?  Is it enough that the Supreme Court believes that the state law or state court opinion violates the Constitution (and that in turn creates a federal issue?) 

ANSWER: The jurisdiction of the federal courts is constrained by Article III, section 2 of the Constitution. These are all the "cases" or "controversies" that Congress can grant the federal courts the power to decide. The most common "case" is one arising under federal law--a question that concerns a federal law or the federal constitution. So, in a rough sense, yes, cases must generally present a federal question (e.g., this law (state or federal or local or whatever) violates the federal constitution). But some cases that can reach the federal courts do not, the best example being those that come via diversity jurisdiction.

One more point: you have asked specifically about "judicial review." That practice specifically refers to the practice of courts determining whether a law or executive action is constitutional. By definition, if a federal court is reviewing a law's constitutionality, it is addressing a federal question, as it is determining whether the law or executive action is consistent with the federal constitution.

QUESTION: As to Problem 3, I'm confused about the argument made by [the state attorneys general] that the decision NOT to buy insurance is not commercial. I understand the logic behind it, but I don't understand how it applies. If the law states that all persons must buy health insurance, then the decision not to purchase insurance isn't an issue.  In fact, it doesn't exist at all.  Without an option to not buy insurance, how is the fact that someone who doesn't buy insurance isn't commercial relevant?

ANSWER: I think the issue is logically prior. That is, Congress has enacted a law stating that all Americans must either (a) purchase health insurance by January 1, 2014, or (b) pay a fine. The relevant constitutional question is whether Congress has the authority to regulate behavior in this way. We need to answer this question, regardless of which choice any individual makes. Why is the commerciality of this decision relevant? Because whether the activity being regulated is economic or commercial is the crucial question under the third category according to Lopez and Morrison. So you are right that what a person actually decides is not important to answering the constitutional question. But the nature of the activity being regulated by Congress is critical.

Jurisdictional elements

QUESTION: I was wondering if the "jurisdictional element" relates to the rules of personal jurisdiction, or if it is much broader and refers to any attempt to define or limit the particular legislation with respect to interstate commerce?

ANSWER: It is wholly unrelated to the idea of personal jurisdiction. Rather, as I think your second clause indicates, it concerns Congress's legislative jurisdiction. A jurisdictional element, as meant in Lopez, is nothing more than additional language that ensures that the particular instance of the activity being regulated has some sort of a connection to interstate commerce. For example:

* law without a jurisdictional element: "It is unlawful to possess a gun in a school zone."

* law with a jurisdictional element: "It is unlawful to possess a gun that has traveled in interstate commerce in a school zone."

The emphasized clause is a jurisdictional element. And it is so called because its purpose is to bring the statute within Congress's commerce power -- that is, its legislative jurisdiction.

Studying for this class

QUESTION: So my question, probably not much different than my classmates, is how do I study for your class?  I've been outlining both class and textbook notes, which forces me to re-read and review in the process. A few of us meet before class to review and study. When problems have been assigned, we've worked through those and debated them as a group, which has been really helpful. In other classes, we tend to sit and discuss all the notes and questions after cases, but I'm EXTREMELY overwhelmed by the volume of notes at the end of each case. Basically, the book covers a lot of details we couldn't possibly go over in class, so do you suggest spending time reviewing those details, or is that time better spent reviewing the cases/notes discussed and referred to during lecture?

ANSWER: A number of different things to address here, and I'm not sure my answer will be helpful. But let me offer the following thoughts in response:

1. Studying -- and effective retention of information and concepts -- is a little different for everyone. So I'm wary of prescribing anything as a one-size-fits-all solution. Most of you by now have some sense of what works for you. If so, don't try to deviate too much from that just because the material is different.

2. Try not to let yourself be "overwhelmed" by anything, the notes after the cases or otherwise. The sense of being overwhelmed is a psychological condition, and it is necessarily framed or created by a preexisting expectation. That is, you think a task should only take X minutes to gain Y mastery, and that is simply not possible. Hence, it is overwhelming. Perhaps a more constructive way to think about the task at hand is this: I have X amount of time to study con law between now and the next class. What is the most constructive way to use that time? Allocate your time accordingly. If that process leads to not learning the intricacies of every note after the case, then so be it. You have done your best with the time available, and that is all we can ask of ourselves.

3. Which naturally leads to the question, What is the most important material to study? I think you are right that the assigned cases and our discussions in class are the most important. The notes after and in between cases are generally there to help you understand the cases themselves. Sometimes they provide additional primary material, and in a way that is important. Typically, we touch on such material in class, if only briefly.

4. More generally, I think devoting your time to interactive studying (rather than merely passive reading) is very important to retention and understanding. Not only does it require you to embed the concepts more firmly in your mind, but the process uncovers which ideas are still a little fuzzy. Studying that requires you to speak and explain to others, or to commit concepts to writing (not notetaking, but actually writing out explanations and the like) is extremely useful.

5. I should also note that I think it is fair, in general terms (but not as a conclusive presumption) , to assume that what we discuss in class reflects what I think is most important about the material. (This is just a general guide, and should not create any strong reliance interests.)

6. Lastly, if you really want a good idea of what concepts you will be expected to have mastered by the end of the semester, and how I expect you to be able to use and apply them, the best indication is my past exams. We are probably still just a little too early in the semester for most of the questions to make much sense. But by the time we finish the section on congressional authority, you will be ready to try your hand at answering them.

I hope this is responsive to your question.

More on standing and Steel Co.

QUESTION: I am a little confused about the phrase "standing must be jurisdictional," especially in view of Steel Co. v. Citizens for a Better Environment. In that case, the Supreme Court held that because none of the relief sought would likely remedy respondent's alleged injury in fact, respondent lacked standing to maintain this suit, and the courts lack jurisdiction to entertain it. My interpretation of this holding is that because the resdressability element of standing is not met, the court lacks jurisdiction, but that doesn't seem right. Could you please elaborate on the Steel Co. decision?

 

ANSWER: I think your interpretation of the holding in Steel Co. is correct: the plaintiffs lacked standing because they failed to establish that any of the forms of relief they sought would redress their alleged injury in fact. This is, in fact, exactly what the Court holds. Redressability is a part of the standing requirement, recall, because if the court's decision will not give the plaintiff any meaningful relief from its harm, then the opinion is essentially advisory. And the basic animating principle in this area is that Article III prohibits federal courts from issuing advisory opinions.

The first point you raise -- that standing is jurisdictional -- is distinct from the question why Citizens for a Better Environment lacked standing. It means that (1) the court must address standing first, and resolve that the parties have standing, before going on to address the merits, and (2) that the court must address the issue even if the parties have not raised it, for subject matter jurisdiction cannot be waived -- it is doctrine, rooted in the separation of powers, that constrains the federal courts.

 

 QUESTION: So, in addition to the three elements for standing: injury-in-fact, causation, and redressability, there always needs to be a jurisdiction without which the courts can't speak. Is that right? 

 

ANSWER: Yes, there always must be jurisdiction. Jurisdiction -- in its Latin roots -- means the power to speak. So, no jurisdiction, no speaking (by the court). Standing is one aspect of jurisdiction, but it is not the whole of it. The dispute also has to present a question fitting within the subject matter jurisdiction of Art. III, sec. 2 (e.g., a question of federal law), and it cannot present a political question.

 

QUESTION: For some reason, Steel Co. seemed relevant for the redressability issue than for jurisdiction.

 

ANSWER: The two ideas are nested. Redressability is part of the standing inquiry (but not all of it), and standing is a part of what we consider jurisdictional (but not all of it).

More on Problem 2 and standing

QUESTION: To show "injury in fact" for the future, even though the past events may not in itself be sufficient, I would think they can be useful in building the case.  Specifically, Angela Patterson's activities, although from the past, have been halted in the present directly due to the mercury discharge in the river.  For the same reason, will be halted in the future too, causing the injury. This case is more assertive than Lujan where the intent for visiting those countries is very uncertain.  In contrast, Angela's repeated visits in the past to the area and her staying within 2 miles from the facility seem more concrete to support an "imminent injury" to her future plans. Now, such an injury would have been even more imminent had she made a down payment on the house she wanted to buy near the river. But, that seems like an overdue burden on the plaintiff to prove "injury in fact" for the future. Quanitatively, on a scale of 0-100, the injury may not be 100, but seems definitely more than 60. Would like to hear your comments.


ANSWER: I basically agree with everything you say. There is no doubt that past activities enhance the credibility of future plans. That Ms. Patterson used to use the river, and has stopped doing so because of the pollution, is a strong indication that, once the pollution is remedied, she will use the river again. So yes, it is helpful, relevant, important. I would just emphasize, though, that to have standing to seek an injunction, she must be claiming that she would use the river in the future. If all her past activities were identical, but she had since moved to Sri Lanka and had no plans to come back to South Carolina, she would lack standing to seek forward-looking relief.