QUESTION 1: FEDERALISM AND SEPARATION OF POWERS
McCulloch v. Maryland (est. Nat’l Bank) – Cong’s implied powers stems from Nec & Prop clause (gives Cong the means to bring about all previously listed ends in Art. I § 8 – regulate commerce, tax/spend, etc.) If Cong’s “means” are rationally related to a Const’l specific objective, then it’s Con. E.g., in McCulloch, Cong can est. Nat’l Bank (means) to tax/spend (ends)
- Scalia, Thomas, Alito interp Nec & Prop clause more strictly than liberals…shld be “necessary” to bring about those ends…not just “easier” or “more efficient”
90% of Congress’s power comes from the CC today. “National problems need national solutions.”
The Court will look to 3 broad categories to determine whether the statute is a const. expression of Cong. CC power.
3 broad categories:
- The use of “channels of interstate commerce” (Ames). (buying and selling within IC)
- Congress may regulate the use of channels of interstate commerce. g., highways, waterways, airways
- Ames – Congress has the power to regulate the interstate transportation via roads of lottery tickets.
- Regulate “instrumentalities of interstate commerce” even though threat is purely intrastate (Shreveport Rate)
- Congress may regulate the instrumentalities of IC or persons or things in IC, even though the threat may come only from intrastate activities
- Close and substantial relationship (instrumentalities)
- Shreveport Rate – Congress can regulate portions of purely intrastate RR track. Why?
- B/c it’s so “closely intertwined” with the reg of interstate RR
3a. Majority view (Liberals) “substantial effect” + rational basis Congress may regulate the activity IF:
- What you’re seeking to reg is in “stream of commerce” AND
- Applies “cradle to grave” raw materials -> manufacturing -> shipment -> consumption
- Activity has a “substantial effect” to interstate commerce via “Wickard Aggregation” (always met) AND
- Congress may regulate those activities having a “substantial effect” on IC (whether direct or indirect effect)
- Laughlin Steel: huge steel corp claims enforcement of Nat’l Labor Relations Act exceeds Cong’s authority, Sup Ct found labor relations in nat’l steel industry has subst’l effect to interstate commerce so Cong can regulate
- Wickard case: S. set nat’l limits on wheat growing to control price, 1 farmer growing for his own consumption might be trivial on its own, but when aggregated together with other farmers = substantial.
- When an individual brings a suit, aggregate everybody that the state is regulating & whether their activity taken together is affecting IC. Any effectà Substantial Effect.
- Congress only needs a “rational basis” for applying regulation (NOT Indep Review by Sup Ct) Deference to legis.
- Doesn’t matter how attenuated the causal connection is! Cong. Just has to create a rational linkage between IC and the activity being regulated (some sort of rationale—court takes them at their word)
- Heart of Atlanta – Race discrim hotel, Sup Ct found rational basis because hotel’s actions effected a large % out-of-state black ppl who were trying to spend $$$
- 4 liberals – rational basis alone enough to satisfy, meaning Cong could regulate anything (education, crime, etc.)
- Kennedy (swing vote) – will join if show rational basis AND doesn’t violate Morrison/Lopez
3b. Minority view (Conservatives) “substantial effect” + economic nexus
- Replace #3 above: Mere rational basis too low…there must be an “economic nexus” to interstate commerce
- NOT econ nexus = Pure crim law or pure civil rts law (so, not Lopez or Morrison)
- Scalia, Thomas, Alito – use 3 broad categories only, a lot less deference to rational basis
- CJ Roberts – will join b/c he loves Leg/Exec Practice
– U.S. v. Lopez: 1st limitation on CC since New Deal! Cong can’t control gun possession on school property. Pure crim law.
– U.S. v. Morrison: No federal civil remedy for victim of gender-motivated violence. Pure civil rts – no econ nexus.
– Even though Lopez/Morrison issues have subst’l effect on ppl, there’s no econ nexus, so Cong can’t regulate under CC.
– Whittington, Propane Regulation: Further, even if regulation itself is found to be Con under CC, some lower courts will nonetheless not apply regulation to purely criminal acts.
– Gonzales v. Raich: Cong CAN prohibit intrastate cultivation/use of weed in compliance with Calif. law. Similar analysis as in Wickard case. Even though by itself it’s of a de minimis character, Wickard aggregation, etc.
– Comstock: Cong can hold sexual predator prisoners past their prison term b/c of continuing threat. Sup Ct saw this as “Nec & Prop” extension of Cong’s power to regulate prisoners/prisons.