Tuesday, October 26, 2010
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.
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.
Tuesday, October 12, 2010
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.
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.
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.
Wednesday, October 6, 2010
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.
Thursday, September 30, 2010
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 . . . .
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 . . . .
Wednesday, September 29, 2010
2001 exam, essay 2.A
QUESTION: First, although possession of eagle feathers is not in itself a commercial activity, just like possession of guns in Lopez isn't, it seems more "economic" than growing wheat for home consumption. In order to possess an eagle feather, one has to either get it from a dead animal, kill an animal, or get/buy it from someone else, neither of these may be "local" or "intrastate" activities.
ANSWER: I see your point. But does that make the possession of the feather itself, as an activity, economic in nature? To me, the growing of a commodity that is actively traded on huge international markets, even if only used for home consumption, is more economic in nature than the possession of a feather. But I will admit that what qualifies as "economic" is, at least to some degree, in the eye of the beholder.
QUESTION: Further, if more people like Que start using eagle feathers for their personal/religious use, it will impact the interstate commerce via an aggregate effect.
QUESTION: Third, assuming arguendo that the activity is "noneconomic," it is still "necessary and proper" for Congress to regulate the activity as a necessary part of the more general regulation of interstate commerce by protecting endagnered species. (Scalia's argument in Raich).
QUESTION: So, Que's indictment should not be dismissed.
ANSWER: I tend to agree. But I would admit a degree of uncertainty, just because nothing in this business of constitutional law is ever truly clear or definite.
ANSWER: I see your point. But does that make the possession of the feather itself, as an activity, economic in nature? To me, the growing of a commodity that is actively traded on huge international markets, even if only used for home consumption, is more economic in nature than the possession of a feather. But I will admit that what qualifies as "economic" is, at least to some degree, in the eye of the beholder.
QUESTION: Further, if more people like Que start using eagle feathers for their personal/religious use, it will impact the interstate commerce via an aggregate effect.
ANSWER: But that is jumping to the ultimate question -- the effect on interstate commerce. The question here is logically prior: what is the nature of the activity that is being regulated? We must address that first, for it is a critical aspect of the legal inquiry as to whether the activity will be deemed, as a matter of law, to substantially affect interstate commerce.
QUESTION: Second, as decided in Raich, even though Que is claiming that the statute itself is not constitutional, but as it applies to her is unconstitutional, courts will not excise individual components of the statute, especially when the statute is regulating the broad activity of preventing destruction of animals and protecting endangered species.
QUESTION: Second, as decided in Raich, even though Que is claiming that the statute itself is not constitutional, but as it applies to her is unconstitutional, courts will not excise individual components of the statute, especially when the statute is regulating the broad activity of preventing destruction of animals and protecting endangered species.
ANSWER: True. And there is a good argument, based on Raich, that prohibiting non-commercial, intrastate activities is appropriate in the functioning of the broader regulatory scheme, which is more clearly aimed at the regulation of interstate commerce (i.e., the interstate market in eagle parts).
QUESTION: Third, assuming arguendo that the activity is "noneconomic," it is still "necessary and proper" for Congress to regulate the activity as a necessary part of the more general regulation of interstate commerce by protecting endagnered species. (Scalia's argument in Raich).
ANSWER: Or at least Congress is probably rational in so concluding, which is all that Raich seems to require (or Scalia in his concurrence).
QUESTION: So, Que's indictment should not be dismissed.
ANSWER: I tend to agree. But I would admit a degree of uncertainty, just because nothing in this business of constitutional law is ever truly clear or definite.
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