Constitutional Law I
Tenth Amendment Redux
Oct. 6, 2004
SWANCC v. Corps of Engineers
(2001)
Does “navigable waters” in Clean
Water Act include intrastate waters?
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If yes, is it constitutional (violate 10th?)
If not, no need to reach constitutional
question.
Standard rules of statutory construction
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Defer to agency interpretation of own statutes
To avoid constitutional infirmity, if possible
To avoid interference with states, unless the
unmistakeable intent of congress (Gregory)
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Rules of Statutory Construction
1. Don’t apply regulations to states, unless
the clear intent of congress (Gregory)
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Do state agencies (e.g., SWANCC) have to
comply with CWA (obtain Corps of Engineers
permit) when dumping at migratory bird site?
Although states have
primary responsibility,
Clear that states must
comply with federal
environmental laws.
Cooperative Federalism
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Rules of Statutory Construction
2. Let Agency decide
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Rule (Chevron v. NRDC): defer to Administr.
Agency interpretation of its own enabling
statute and powers delegated by congress
 Corps interprets “waters of the US” to include non-
navigable waters used by interstate migratory birds
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Exceptions:
 Agency interpretation
foreclosed by statute
 Agency interpretation
upsets usual fed-state
balance; i.e., invade
traditional state power
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Rules of Statutory Construction
3. Read statute in such manner as would
avoid constitutional infirmity, if possible
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If statute can be interpreted in two ways
 1 of which would render the statute const’l, and
 1 of which would render it unconstiutitonal
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Go for the constitutional intepretation
Do Migratory Birds substantially affect IC?
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Rules of Statutory Construction
Missouri v. Holland (1920): protection of
migratory birds is a national and int’l issue
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Rules of Statutory Construction
3. Read statute in such manner as would
avoid constitutional infirmity, if possible
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If statute can be interpreted in two ways
 1 of which would render the statute const’l, and
 1 of which would render it unconstiutitonal
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Go for the constitutional intepretation
Do Migratory Birds substantially affect IC?
Does Corps rule regulate states qua states?
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impinge on traditional state power over land
and water use? (10th, version 2)
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Pierce County v. Guillen
(2003)
Federal grant aid for highways
preempts WA Public Discl. Act
What is congress regulating?
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Roads?
 well established that Congress has authority to "reg-
ulate the use of channels of interstate commerce”
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State Gov’t (state agencies, state courts)?
 If so, congress is regulating the states themselves
Regulating “channels” includes appropriate
incidents (e.g., state tort policy ?)
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More or less intrusive than Migratory Bird Rule?
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US v. Lopez
(1995)
Respective spheres of authority
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Federal: commerce
State: education, gun control?
 Exclusively state?
 Or shared responsibility?
What impact do guns in/near
schools have on commerce?
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Categories of Interstate Commerce
Channels of IC
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transportation systems
interstate shipments, accommodations
Instrumentalities of IC
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vehicles, vessels
persons or goods in transit
Activities w/ substantial relation to IC
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Intrastate activities w/ substantial effect on IC
 "class of activities" (i.e., in aggregate)
 difference betw. substantial & insubsubstantial?
 who decides?
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Gun-Free School Zones Act
Regulation of Channels?
Regulation of Instrumentalities?
Substantial Effects?
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Does possession of guns on school
campuses substantially effect IC?
 increases trade in guns, bullets,
coffins
 helps control drug trade
 obstructs educational process
 lessens US preparedness in world
economy
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Proving Substantial Effects
Commercial transactions
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sale of gun, yes
mere possession of gun, no
Jurisdictional element
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proof that gun had traveled interstate
must be element of prima facie case
Legislative findings
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aids court in determining link
 would court defer to congress?
 no rubber stamp (obliterate distinction)
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Text & Subtext of Opinions
Rehnquist (majority)
Kennedy (concur)
Thomas (concur)
Stevens (dissent)
Souter (dissent)
Breyer (dissent)
Fall, 2004
Reassert judicial supremacy over
federalism; rejects RB test
judiciary to maintain state/federal
balance
Commerce restricted to meaning
understood by the framers
Guns are harmful articles of
commerce w/ interstate market
Rejects originalism; Majority op
is radical judicial activism
SoP case: Majority substitutes its
economic judgment for congress’
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Lopez audio
Oral opinion
Oral argument
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US v. Morrison
(2000)
Victim of gender violence sued
private party and state under
Violence Against Women Act
Const’l basis for VAWA
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Commerce Clause
14th Amd, § 5
“The Congress shall have power to
enforce, by appropriate legislation,
the provisions of this article.”
 Notice the link to § 1
Christy Brzonkala
Fall, 2004
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US v. Morrison
(2000)
Regulating individuals under Lopez CC test
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Gender violence as channel/instrumentality of IC?
Activities substantially affecting IC?
 Sexual assault is non-economic criminal activity
 Lack of jurisdictional element
 Copious and express congressional findings
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4 years of testimony showing effects on commerce
General violence costs the economy $4 billion annually
Isn’t the Ct. better able to evaluate
economic matters than Congress?
Souter: majority is protecting state
autonomy despite
clear links to IC?
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US v. Morrison
(2000)
Congress’ power under Section 5
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Private assaults do not violate 14th Amd, § 1
State’s failure to protect women students also
does not violate 14th Amd, § 1; therefore
Regulation of either not appropriate under § 5
Visions of Federalism
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Nationalist vs. Statist
Static vs. Dynamic economy
Originalist vs. Dynamic Const’l Interpretation
 Souter: “the federalism of some earlier time …”
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Practice Questions
1. During the era of dual federalism, could
Congress regulate environmental quality?
a. Isn't pollution created & felt entirely intrastate?
b. Does pollution affect or in the current of commerce?
c. Would it matter if congress enacted the law as a
health measure, rather than to promote commerce?
2. Could states regulate environmental quality?
3. Could congress enact consumer protection laws?
a. Besides the FTC and the SEC, what other federal
agencies are unconstitutional?
b. Since health & welfare is a quintessential state
concern, would federal law violate the 10th amd?
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Practice Questions
Is the Drug-Free School Zones Act
const'l?
After Lopez, are Heart of Atlanta Motel
and Katzenbach still good law?
Who won the Civil War?
Fall, 2004
more practice questions
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