For Thursday

Monday audio. Panel # 3 Reaction Papers, if any, are due to Donna Yff (yffd@fiu.edu) by noon on Tuesday, September 8.

We continue with Spending Clause (still Panel # 4). Why was relatedness satisfied in Dole--what was the government purpose and how did the condition further that purpose. Why was the Medicaid expansion in the ACA not valid and how can that be reconciled with Dole? What is the current scope of Congress' spending power after NFIB?

Consider two arguments from Justice Ginsburg's NFIB dissent: 1) Congress could have repealed all of Medicaid, then reenacted it as expanded and 2) Congress could have used the Spending power to create "single payer" universal health care, with a program akin to Social Security or Medicare, without needing complexities such as the individual mandate. Could it have done this, as a practical and political matter--why or why not? Should the practicalities matter to the constitutional analysis--if the best solution to a problem (Medicare-for-All) is not politically feasible, should Congress have more leeway to use the second-best solution if the alternative is leaving the problem unaddressed? How should that have affected the analysis of the ACA?

We then turn to the Foreign Affairs (still Panel #4). What can Congress do through the treaty power? How do other powers limit the scope of Congress power to act through treaties? What is the connection between a treaty and legislation?

We then turn to Regulation of State Governments (Panel # 5). Are the laws at issue in these cases valid? What is the distinction between Commerce Clause validity and the limit on application to the states? What is the source and scope of the anti-commandeering principle and does that principle make sense?

Finally, at the end of class, I hope to begin Balance of Legislative and Executive Power: General and Domestic Matters (Panel # 6). For Thursday, focus on the Farber reading on the basic structure and powers of the President and relations with Congress. Note the discussion of legislative/executive relations and the changes wrought by the development of political parties. What is the difference between a presidential and parliamentary system of democratic government?

Commerce Clause dicta in NFIB?

One open question following NFIB was whether the discussion of Commerce and Necessary & Proper in the Chief Justice's opinion was dicta. If he declared the law valid under the Taxing Clause, was it essential to the judgment that it was not valid under other constitutional powers?

In a part of the opinion not reproduced in the book, the Chief argued that the Commerce analysis was necessary and not dicta. The Chief wrote the following:

The statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction. 

A "saving construction" is a judicial interpretation that "saves" the law from its constitutional defects. But a court should adopt a saving construction only if the law is constitutionally defective--which can only be determined by first analyzing the law in its natural reading under the natural provision. Constitutional invalidity comes before the saving construction which comes before the Taxing Clause analysis--therefore the Commerce analysis, to determine invalidity, was necessary.

But compare this with Heart of Atlanta. One could argue that the public-accommodations law in the Civil Rights Act reads "more naturally as a command" to accord equal protection to all persons under the Fourteenth Amendment. Yet the Court did not start by analyzing Title II under the Fourteenth Amendment, find it invalid because of the state-action requirement, and then use the Commerce Clause as a last resort. It proceeded directly to the Commerce Clause, recognizing that the fact that Congress was trying to stop a moral and social wrong did not Congress could also act against that wrong when it obstructed interstate commerce.

If Roberts is correct, then the Heart of Atlanta Court arguably was obligated to say something like this (this is a riff off the NFIB language, quoted above):

The statute reads more naturally as [a way to ensure the Equal Protection of Laws] than as a [regulation of commerce among the several states] and I would uphold it as a way to ensure Equal Protection if the Constitutional allowed it. It is only because [§ 5 of the Fourteenth Amendment] does not authorize such a [law] that it is necessary to reach the [Commerce] power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that [Title II] can be interpreted as a regulation of [commerce]. Without deciding the [§ 5] question, I would find no basis to adopt such a saving construction.

Consider these two distinct approaches to how Congress can enact a law under multiple powers and how courts should review those laws.

Shay's Rebellion

During the first class session, I mentioned Shay's Rebellion, a 1786 tax rebellion in western Massachusetts, as an event that exposed the weakness of the federal government under the Articles and prompted calls for a Constitutional Convention. Saturday was the anniversary of the start of that revolt; the National Constitution Center Blog offers a nice summary of the event and its consequences.

Discrimination and Commerce

Cris's comments (and the Radiolab podcast) raise some issues worth thinking about with respect to using the Commerce power to get at discrimination.

On one hand, Cris is correct that there is a certain cynicism behind using business and commerce to establish equality--a play for the dollar rather than a commitment to equality. But that cuts both ways. Some critics have argued that anti-discrimination laws are unnecessary because the market will take care of it--discrimination is economically inefficient, so rational businesses will not engage in it.

On the other hand, the dominant source of inequality that cannot be reached through the 14th Amendment is that which occurs in business and economic areas. Isn't Congress regulating commerce when it sets rules to control who interstate businesses hire or employ or do business with? If Congress can dictate a business' hours as a regulation of commerce, shouldn't it also be able to dictate that business' employment practices or sale practices? If Congress can require businesses to work with unions, shouldn't it also be able to require that they hire qualified women and not harass them on the job. Or if Congress can prohibit a business from using child labor, can't it also prohibit a business from refusing to use labor of certain races, religions, etc? Either all are regulations of commerce or none are. (It is worth noting that following Hammer, a constitutional amendment was introduced but never passed in Congress empowering Congress to regulate the labor of persons under 18).

Alternatively, think of it this way. Discrimination is problematic in two spheres: Government-run institutions (schools, legally required segregation, discrimination by government officers) and private society. The 14th Amendment, with its express prohibition on state deprivation of equal protection, gets at the first (not fully successfully, but that is the goal). Much (not all) of the second is economic--it is contracts and property and employment and doing business to be able to make, buy, and sell things on equal footing. The 19th-century conception of civil rights centered on equal participation in the social economy. It is no accident that the first thing Congress did during Reconstruction in the Civil Rights Act of 1866 (which produced the provisions at issue in Jones) was to protect the rights to contract and the rights to buy and sell property--these were seen as the ways to bring freedmen into society. So using the Commerce power to make that economy function the way Congress wants makes some sense.

We also can think of  discrimination as a collective action problem--the kind of thing states cannot regulate individually and where competition among states has interstate effects. If some states can discriminate and others cannot, you get the sort of competition and movement (described a bit in Katzenbach) that affects many states and the country. If the point of the Constitution is for Congress to regulate those matters that affect the nation as a whole or affect multiple states, discriminatory practices by businesses in one state seem to qualify, given the likely results of discrimination within that state.

Radiolab Podcast on Wickard and Katzenbach

From the podcast Radiolab:More Perfect from early 2018, it discusses Wickard and Katzenbach, including interviews with the sons of Roscoe Filburn and Ollie McClung. It considers the question that Cris raised this evening--should we really be resolving moral questions as a matter of money and commerce?

For Monday

Thursday video. Reaction Papers for Necessary & Proper and Commerce (through After 1936) due before 7 p.m. to Donna Yff in the Registrar (yffd@fiu.edu). Please include a cover sheet with your Blind ID #.

By the way, here is the Hate Crimes Act, 18 U.S.C. § 249, that I showed in class on Thursday. (a)(1) is the provision grounded in § 2 of the 13th Amendment, while (a)(2) is the provision grounded in the Commerce Clause, including the jurisdictional element.

A note on preparation for class. What should be clear at this point is that the discussion is organized around concepts rather than individual cases. I am not going to have one person present one case, then move to the next case; we are jumping around between cases according to ideas and issues. That still requires you to do a close reading of the cases, with careful notes, highlighting, and (if that is your thing) briefing. You need to know the cases well. But you also need to spend time synthesizing the cases and materials, connecting them and identifying the themes and issues that tie them together. Farber is helpful for this. The questions posted to the blog are designed to identify those themes and things I want you to think about. But it begins with a deep reading of the cases.

OK, on to next week: Read through the end of Executive Power; Panels 4, 5, 6, and 7 should be ready to go.

For Monday, we will continue our discussion of Commerce: 21st Century, with Raich and NFIB.We start with the final theme in Morrison: federalism and the need to limit federal power to protect the traditional sphere of state power. At p. 65, Justice Souter says "politics, not judicial review, should mediate between state and national interests as to federal power," a position often described as the "structural safeguards of federalism" or the "political safeguards of federalism." What does this mean? How do politics protect state interests?

Then, consider: Why does Raich come out differently than Morrison and Lopez? What was the law at issue in NFIB, how did it operate, and what was the dispute about the connection to commerce? How can marijuana be legal in California if it is illegal under federal law--what about the Supremacy Clause? How does collective action explain the different positions in NFIB? How does collective action justify the results in Lopez and Raich?

We then turn to Taxing and Spending (note: the Farber reading should be up to p. 182). What can Congress do through taxation or through its spending and what are the limits on its power? Why was the ACA "individual mandate" valid under the Taxing Clause? Given his view of the tax issue, was it necessary for Chief Justice Roberts to to discuss the validity of the mandate under the Commerce Clause? How can taxes "regulate" behavior? How can spending regulate behavior? How do and should limits on the Commerce power limit the Taxing or Spending powers? Why was the individual mandate valid at the end of the day? Why was the Medicaid expansion in the ACA not valid and how can that be reconciled with Dole? What is the current scope of Congress' spending power?

Finally, consider the following, for discussion in class (this came from a classmate): Congress is worried about a shortage of wheat, so it seeks to pass a law establishing minimum production quotas by all commercial farmers. Valid under the Commerce power? What if Congress purchases the excess?

Administrative Stuff

Some administrative matters:

1) At the bottom right of the blog, I included a link to the Interactive Constitution from the National Constitution Center. In addition to the text, it includes commentary on various provisions, co-authored by two scholars of different viewpoints. Also, here is the link to its weekly podcast, which features discussions and debates on new constitutional issues.

2) Regarding submission of Reaction Papers: They must be submitted via email to Donna Yff in the Registrar's Office (yffd@fiu.edu). Please write it in Word format, with a separate cover page; use your new Blind ID # (which is now available) and indicate the topic you are writing about.

3) Another reminder of Bad Legal Takes, in which people occasionally get constitutional law very wrong. A good, fun source for potential topics for Reaction Papers--explaining why that take is bad, in light of what you are learning in actual law school.

For Thursday

Monday video. Reaction Papers for Necessary & Proper (Panel I) and Commerce Before 1936 (Panel II) due before class next Monday.

On Thursday, we continue with Commerce: Civil Rights and Commerce: 21st Century (both Panel III). Consider:

    • What three options did Congress have as a power source for the public-accommodations provision of the Civil Rights Act of 1964? Why did it settle on the Commerce Power? Could it have made a different choice enacting the law today? What are the "badges or incidents of slavery" against which Congress can regulate under § 2 of the 13th Amendment?

     • Why is the public-accommodations provision a valid exercise of the Commerce power? Should Ollie's Barbecue have been treated differently from the Heart of Atlanta Motel?

    • In what ways has the Commerce Clause been narrowed through Lopez, Morrison, Raich, and NFIB? Do those limitations make sense?

    • What can Congress do via its commerce power as of 2020? Why and why not? Are we back to 1936?

We then turn to Taxing and Spending (Panel IV).

    • What can Congress do via its Spending power? How broad is it? How might limits on the Commerce power limit the scope of the Spending power?

    • Where is the line for impermissible coercion after NFIB? How limited is Congress' spending power after NFIB, if at all?

Panel Assignments (Updated)

 

After the jump are the panel assignments for the semester. Everyone is assigned to four (4) topics. You will write Reaction Papers on any two (2) of them. (See Reaction Paper Information, at right).

Panels will begin with the Necessary and Proper Clause, which we may begin on Thursday, August 20 (second day of class), so be ready. I also expect to get to Commerce Clause: Introduction and Commerce Clause: Before 1936 on Thursday.

As per the Syllabus, I will call on panelists at the beginning of the discussion to put them on the front of the Zoom screen. They will be the primary drivers of the discussion, although I will accept comments and questions from the Raise Hand and Chat features.

For Monday

Thursday audio. I will rework the list of panels; please check that this weekend and notify me if you are not included on four panels.

If you want to get ahead for the week, read through Taxing & Spending.

On Monday, we will have a few final words on Necessary & Proper (Panel I)--how long can the chain be from the great power to whatever Congress wants to do under the N&P power? How does this split the majority and dissent in Comstock? How does Justice Breyer explain the validity of a law prohibiting robbing the mail? Is there a difference between doing something necessary & proper to execute other powers and necessary & proper to enforce other laws? What's the collective-action argument in favor of this law?

We then move to Commerce Clause, which will cover Panel II (Intro, Before 1936, After 1936) and Panel III (Protecting Civil Rights). On Protecting Civil Rights, in addition to the pages listed on the syllabus, please add Choper, pp. 869-73 and Farber, pp. 427-34; this will provide some background on congressional power under the 13th and 14th Amendments. Consider

    • What are the three key words in the Interstate Commerce Clause and what does each mean? Why does the line between inter-state and intra-state matter?

    • What was the historical context in which Congress tried to legislate through its Commerce power, unsuccessfully (pre-1936) and successfully (after 1936). What were the legal and logical arguments in favor of Congress' attempts to regulate a range of conduct, often "moral" wrongs, through the commerce power?

    • In what way does Wickard represent the outer limits of the commerce power? How much evidence must Congress have for its policy judgments on these questions?

    • What three options did Congress have as a power source for the public-accommodations provision of the Civil Rights Act of 1964? Why did it settle on the Commerce Power? Could it have made a different choice enacting the law today?

    • Why is the public-accommodations provision a valid exercise of the Commerce power? Should Ollie's Barbecue have been treated differently from the Heart of Atlanta Motel?

For Thursday

 Monday video link (with transcription). My apologies for ending class a bit abruptly; I hit the wrong button. Usually, I will stop the recording and stick around the Zoom to answer questions.

We continue with the materials on the Political Question Doctrine. Consider:

   • What is the policy behind the political question doctrine? What are the factor(s) that courts consider? How and why has the Court applied (or not applied) it in different situations, considering Powell, Zivotovsky, Nixon, and Rucho.

    • Is there a problem with the Court surrendering the power to review certain issues? What alternatives are available if the court will not exercise judicial review on some issues? Why, according to Kagan's dissent, are those ineffectual on the issues involved in Rucho?

    • We will spend a bit of time on impeachment, given its relevance in 2020. Review the provisions on impeachment (Art. I § 2 cl.5; Art. I § 3 cl.6; and Art. II § 4). Why is impeachment not a proper subject for judicial review? Why is impeachment and the Senate trial of a President such a momentous issue? Does impeachment serve any purpose if President is not removed (as has been the case in the three presidential impeachments in US history).

 We then move to Legislative Power: Overview; Legislative Power: Necessary & Proper; and Legislative Power: Commerce Clause: Introduction and Pre-1936. So that means two separate panels should be ready to go on Thursday. On Necessary & Proper, read to to p. 106 in Farber & Siegal. Consider:

    • Is there a common theme to the powers granted to Congress in § 8? Why do those powers make sense for the national government and what is the goal of granting those powers?

    • What does "necessary and proper" mean? Necessary and proper to do what? Why is that power uniquely important to Congress? What is the standard for determining whether something is necessary and proper? Why did Congress have the power under this Clause to create the Bank of the United States?

    • How did Comstock expand the Necessary & Proper power?

    • What did the Court mean in saying "it is a Constitution we are expounding"? What does that mean? Expounding a Constitution compared with what? 

    • Why did the Framers give Congress power to regulate commerce among the states? What is the point of a central regulatory authority?

    • Why did the Court take a narrow view of the Clause during the 1930s? How did the Court understand commerce during this period? How did changes in U.S. society change the Court's approach to commerce and the Commerce Clause?
 

Preamble

 

 Many of you are too young to remember this. But this is how several generations learned the Preamble:

Course Materials and First Day Assignments

Please download and read the Syllabus (or from right) for complete details about the course, assignments, pedagogical approach, grading methods, and course rules. Review it prior to the first class. Review information about Reaction Papers.

Required Class Materials

1) Jesse H. Choper, Michael C. Dorf, Richard H. Fallon, Jr., & Frederick Schaur, Leading Cases in Constitutional Law (West Academic Publishing 2019 ed.) ("Choper")

2) Daniel Farber & Neil S. Siegel, United States Constitutional Law (Foundation Press 2019) ("Farber")

3) Additional cases and other materials can be downloaded from this blog at right, under "Course Materials."

Assignments for First Day of Class: After the jump. For the second class, we will continue with this, then move on to Legislative Power: Necessary and Proper Clause and Commerce Clause: Introduction and Commerce: Before 1936.

Welcome to Constitutional Law

Welcome to the FIU Con Law Blog. There are two posts that you must read and follow prior to our first class meeting at 7 p.m. on Monday, August 17.

To read the blog, go to www.fiuconlaw.blogger.com; posts can be read going down from most recent to least recent. To post to the blog, go to www.blogger.com; you can log-in with a username and password. For complete information on the purposes and uses of the blog, read the Syllabus.

To be able to post, you must register as an author and a reader. To register as an author, please send an e-mail to me (howard.wasserman@fiu.edu). In the subject line, type “Con Law Blog Registration;” in the body of the e-mail, please type your name and your e-mail address. You then will receive an e-mail “Invitation” inviting you to join as an author on the blog. You must follow the steps outlined in the invitation e-mail to register (under your full name, no handles or usernames) as an author. Please register under your full (first and last) name. Please do this at the beginning of the semester, as soon as you receive the invitation.

Once you have registered, take a few minutes to explore how to write a post. Note that you can put up photographs and video. You also can put web links in the text by highlighting the text you want to use for the hyperlink and clicking the "Link" button.