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?