Wednesday, May 20, 2009
Diane Wood in D.C.
According to this report from Jan Crawford Greenburg, Judge Diane P. Wood of the United States Court of Appeals for the Seventh Circuit made an unexpected trip today to Washington, D.C. Under the circumstances, it is not hard to come up with some plausible reasons for the visit. Most observers seem to think the President is likely to announce the nomination next week.
Thursday, May 14, 2009
Chadha
QUESTION: I think I understand that Congress can delegate its legislative power to executive and administrative agencies, but cannot subsequently retract it (Such a “legislative veto” is unconstitutional. INS v. Chadha). We also talked about the exceptional conditions in which just one house can act alone (impeachments, presidential elections, treaty ratification, etc.). What I’m not sure of is what exactly Congress as a whole CAN veto?
ANSWER: What matters is not whether Congress's action might be characterized as a "veto" -- a rejection of administration policy. What matters is whether Congress, when it acts to affect the rights and responsibilities of persons outside the legislative branch, has followed all of the requirements of the lawmaking process set out in Article I. That was the real (and only) problem in Chadha.
ANSWER: What matters is not whether Congress's action might be characterized as a "veto" -- a rejection of administration policy. What matters is whether Congress, when it acts to affect the rights and responsibilities of persons outside the legislative branch, has followed all of the requirements of the lawmaking process set out in Article I. That was the real (and only) problem in Chadha.
Wednesday, May 13, 2009
Substantive due process
QUESTION: I am having trouble separating the controversy surrounding the incorporation of the Bill of Rights from the doctrine of substantive due process. Is it correct to say that substantive due process arose from a belief that there are rights "implicit in a scheme of ordered liberty" and "basic in our system of jurisprudence" that were not included in the Bill of Rights, and therefore couldn't be incorporated?
ANSWER: Not quite. First, the first substantive right to be adjudged by the Supreme Court to be protected by the Due Process Clause was the right to "just compensation" protected by the Fifth Amendment. Thus, at its outset, substantive due process arose because of incorporation. Second, I would agree that the Court came to believe that certain rights that are "implicit in a scheme of ordered liberty" and "basic in our system of jurisprudence" are not set out in the first eight amendments to the Constitution. And if that is case -- and the Court had already set these as the standard for what due process means -- that leads to the protection of some unenumerated rights. That explains why the Court has come to protect certain rights are "fundamental" and constitutionally protected even though they do not appear in the Constitution. But unenumerated and substantive are different ideas. It is true that many (perhaps all) of these unenumerated rights are substantive. But that need not have been the case.
QUESTION: I am also trying to figure out how West Coast Hotel/Lee Optical overrule Lochner - it seems that they are recognizing that state governments are not free to intermeddle with individual's economic activities at their whim, but hold that rational basis scrutiny rather than strict scrutiny is appropriate for determining if the interference with economic activity is valid. Is this close? Any clarification would be greatly appreciated.
ANSWER: Well yes, that is true. Those decisions move the level of review from something approaching strict scrutiny to something approaching nonexistent (rational basis) review for ordinary economic legislation under the Due Process Clause. To me, that is a 180-degree turn. The difference between the aggressive form of judicial review in Lochner, and the all-you-need-is-some-hypotetically-plausibly-rational-basis review of Lee Optical is that between night and day. And that is why I think it is fair to say that the later decisions effectively overruled Lochner (though they did not do so explicitly).
ANSWER: Not quite. First, the first substantive right to be adjudged by the Supreme Court to be protected by the Due Process Clause was the right to "just compensation" protected by the Fifth Amendment. Thus, at its outset, substantive due process arose because of incorporation. Second, I would agree that the Court came to believe that certain rights that are "implicit in a scheme of ordered liberty" and "basic in our system of jurisprudence" are not set out in the first eight amendments to the Constitution. And if that is case -- and the Court had already set these as the standard for what due process means -- that leads to the protection of some unenumerated rights. That explains why the Court has come to protect certain rights are "fundamental" and constitutionally protected even though they do not appear in the Constitution. But unenumerated and substantive are different ideas. It is true that many (perhaps all) of these unenumerated rights are substantive. But that need not have been the case.
QUESTION: I am also trying to figure out how West Coast Hotel/Lee Optical overrule Lochner - it seems that they are recognizing that state governments are not free to intermeddle with individual's economic activities at their whim, but hold that rational basis scrutiny rather than strict scrutiny is appropriate for determining if the interference with economic activity is valid. Is this close? Any clarification would be greatly appreciated.
ANSWER: Well yes, that is true. Those decisions move the level of review from something approaching strict scrutiny to something approaching nonexistent (rational basis) review for ordinary economic legislation under the Due Process Clause. To me, that is a 180-degree turn. The difference between the aggressive form of judicial review in Lochner, and the all-you-need-is-some-hypotetically-plausibly-rational-basis review of Lee Optical is that between night and day. And that is why I think it is fair to say that the later decisions effectively overruled Lochner (though they did not do so explicitly).
Groupwise seems to be down
I cannot get into my Groupwise account, either via the regular client or through the web portal. I apologize if you have a question waiting in my in-box. I will keep trying throughout the evening. Once I can access my e-mail, I will post my answers here.
Preemption
QUESTION: I noticed on your 2001 practice exam in the question about a federal voting regulation where Congress was imposing a nationwide standard, that preemption wasn't an issue. I'm having trouble seeing where it is or isn't an issue. Does preemption only come into play in terms of commercial regulation rather than something like voting?
ANSWER: No. Preemption has nothing to do with the particular subject matter at issue. It is relevant when a party invokes state law, and the defendant claims that the state law is invalid or inapplicable because it is preempted (it conflicts with a validly enacted federal law). I'm not remembering exactly the facts of the hypo you reference, but my guess is that no one was invoking a state law, thus preemption was beside the point.
ANSWER: No. Preemption has nothing to do with the particular subject matter at issue. It is relevant when a party invokes state law, and the defendant claims that the state law is invalid or inapplicable because it is preempted (it conflicts with a validly enacted federal law). I'm not remembering exactly the facts of the hypo you reference, but my guess is that no one was invoking a state law, thus preemption was beside the point.
Lopez and aggregate effects
QUESTION: Under the substantial affects prong of Lopez, if the activity examined is neither economic or commercial, can we still examine it in the aggregate or must be examine it as an individual instance?
ANSWER: The Court says, in Lopez or Morrison (I forget which) (and I'm paraphrasing): "We have never upheld the regulation of an intrastate, noncommercial activity based on its aggregate effects on interstate commerce." That is obliquely worded. It is not saying conclusively that such effects can never be aggregated. But it is also the most logical inference, perhaps with a small escape hatch.
ANSWER: The Court says, in Lopez or Morrison (I forget which) (and I'm paraphrasing): "We have never upheld the regulation of an intrastate, noncommercial activity based on its aggregate effects on interstate commerce." That is obliquely worded. It is not saying conclusively that such effects can never be aggregated. But it is also the most logical inference, perhaps with a small escape hatch.
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