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?