Constitutional Law I

29 September

• Back with Lopez
  So school gun control is ruled to be too remote to qualify as interstate commerce. Prior to 1937, this would have been a routine decision, but since then, it has been hard to get the court to say the statutes are unconstitutional.

  So, then, should the supreme court seek to impose limits on the legislature?

  In favor of finding things constitutional (i.e., in favor of the dissent):

  • Uniformity of law: we get one law for everyone, instead of having to figure it out state by state.
  • It's efficient: cuts down on redundant work.
  • We need a federal power for some stuff (wars, etc.)
  • This isn't the only protection against tyranny; we don't lose our liberty just because a regulation is federal.
  • Federal legislatures are better funded and staffed: their output will be of higher quality.
  • The federal government will do a better job protecting against petty discrimination.
  • Note that lots of these arguments never get mentioned explicitly...
  • Maybe untrammeled laissez faire markets are a mistake, and we need some regulation (and if we need regulation, federal regulation is a good kind). It conduces to equality, which is a cornerstone of US ideology. The economy may be more active and more stable, if we have federal control over private activities in the economy.
  • The courts aren't competent to judge this: if congress thinks this is related to interstate commerce, then that should be enough. The court has neither the theoretical nor the pragmatic power to make this decision (pragmatically, remember court-packing). There are already political constraints on congress exercising too much power-- there's no need for the courts to impose more.
  • In the end, the court always loses (either by nibbles or by wholesale demolition), so it should acquiesce. See, for example, Kohl's bill after this case, quoting Breyer's dissent to supply a reason that guns in school affect interstate commerce. If the court complains that there's no reason why this is ICC, well, we will give them a reason. All these guns are made from parts that cross state lines, for example. We want to regulate guns in school, and we darn well will. So in your face, SCOTUS: if you want to strike this down go ahead, because you will not win in the long run.
  • It's a race to the bottom: no state wants to have the worst environmental policy, or the most generous welfare, etc. The states wil compete in a negative way, and we need the federal government to smooth this out.
  • Inertia: we should have federal power because we have grown accustomed to it. Large organizations have learned how to work in this atmosphere. To shake things up is upsetting.
  • And after all, who is deciding whether the federal government has the authority to create national policy? SCOTUS. Guess who will win? This is a federal court deciding on whether there are significant limits on federal power.
  And in favor of finding things unconstitutional (i.e., in favor of the majority):
  • Federalism: this is a major innovation in US government. Divided power is diminished power. We don't want all decisions made by one body. We want to split things up geographically to ensure that nobody gets too strong. That's the major point of the constitution. See, e.g., Gregory v. Ashcroft. Federalism means that congress doesn't define its own power.
  • Elections are imperfect and inaccurate: they're not a sufficient curb on power. We have a body with 9% approval rating that gets re-elected at a 98% rate. That's not comforting.
  • Fear of the Iron Triangle:
    • The legislative branch, which controls elections so well that it's routinely re-elected. They are essentially insulated from accountability, have a staff of 10K, and that staff wields tremendous power drafting laws while the actual representatives are home at fundraisers
    • The agencies: they often control the drafting process
    • The lobbyists: they have enormous influence
    So we don't have really the protection of elections: all this stuff is without real accountability. Fanny Mae, for example, and Freddie Mac spent about $17M/y lobbying congress. If we don't have at least some federalism, there's a risk of serious tyranny
  • It is irritating how feds get better health insurance than the rest of the nation, and congresscritters get such high salaries. The head of Fannie Mae made $90M. That outrages people whose salary is less. The average pension in congress is $2M. That's above average. 75% of the countries richest suburbs are suburbs of DC: there's no productivity there, just the feds. There are 14 restaurants and nice gyms supported by the public.
  • Federal regulation is not more efficient. There are dis-economies of scale. Consider, e.g., the efficiency of Soviet planning. We get absurd and bizarre regulations: regulation of snow plows in HI, e.g. Phenomenal amounts of red tape. We'd be better off if the federal government didn't have the authority to burden everyone this way.
  • And local government has an appeal: less accumulation of power, for one. More immediate government: local involvement, participation of the people, not impenetrable remote organizations that you have to be a skilled lobbyist to penetrate. And people will be happier governing themselves, and more likely to get along. And people know what they want-- they'll make laws that are substantively and rationally better. And we want the benefit of multiple models and experimentation.
  • Economic argument: regulation is bad as a rule. We it chills everything to have to get official approval for everything. The free market is brutal, but not ineffecient. The federal government is pretty much the model of inefficiency.
  • All the pro-judicial-review arguments from Marbury apply, of course, but also the court may have a particular reason for puncturing congressional posturing. We don't want laws that are designed just to curry votes. We need someone with the power to curb this tendency. Of course we'd never say out loud that this is what we were doing, because we don't want to insult congress, but we might like to keep their attention on issues that are important at the federal level, and stop showboating.
  • It's possible that the US will overdo the whole federal power thing and go the way of the USSR: sinking under its own weight. Or Canada: rolling back federal power to something analogous to the articles of confederation, ushering in deadlock.
• When Lopez came down, there was much excitement, because it seemed like a change in course. We got a low of law review articles about how federalism lives. But in reality, not much has happened restricting federal power.
• Morrison (2000), was an exception. Not in the materials. Basically it's like Lopez: a 5-4 split (same folks) over criminal law involving educational institutions. This was a law (irresistable to congress): those who commit sexual assault may be sued in federal court by the victims (in tort). Female student is brutally assaulted by a member of the football team (VA Tech?). The perpetrator was suspended, but then got re-admitted in the fall (perhaps because he was on the football team). The defendant says: but this isn't a federal issue. Every state already condemns sexual assault, of course. 14A says congress has the authority to pass legilsation like in Morrison, though, right? SCOTUS says no: that covers only state action. The defendants are not state actors. So Congress can't enact this legislation. Now don't get his Morrison case confused with the other one that is in the materials.
• And another big case was in Chicago, regarding setting up a dump. Years of NIMBY-ism, of course. Then an attempt to block it under migratory bird laws. It is navigable water for a few weeks per year. And then, in a similar action, Rapanos. There's always a stream that gets whatever runoff we have, and everyone agrees that the streams can be regulated. But what about runoff areas? Here, the court begins to back off of Lopez and Morrison. Kennedy was in the middle here. He agrees that the feds lose this, but he also says that the court can't define "navigable," so it will have to be litigated in every case, to determine whether a given thing can be regulated.

1 October

• Last ICC case for us: Raich
  CA is not happy with federal drug policy, and passes a state statute decriminalizing marijuana trade for medical purposes. Perhaps this is actually general-purpose decriminilization in disguise.

  The feds say "whatever, CA, but our laws still apply."

  This is pretty much just like Lopez, right? Well, no: here, the court says this is constitutional. Drug trade in general is an ICC problem. If the feds can't regulate the pieces of this more general problem, then the whole thing falls apart. So Lopez is distinguished: guns in schools isn't a part of some larger grander scheme.

  So the Lopez majority is now down to 3 from 5. The court isn't rushing to restrict federal power under the ICC. And this diminishes the impact of Lopez overall.

• Other federal powers. ICC isn't the only focus of debate; it's sort of happenstance that this is the thing onto which the debate attached-- we could just as easily have been arguing about a different clause. It's not the clause, after all; it's the policy. And it's worth noting that there are debates about other specific powers.
• The taxing power this and the spending power are in Art I, § 8. Under the articles of confederation, the federal government couldn't levy taxes. The states could, and in their generosity they could fund the feds. Of course, a government that can't fund itself can't really be very powerful.

  Originally, the government could only tax in proportion to the census (i.e., could not tax a person). And originally the government didn't need much money-- excise taxes were plenty enough. The civil war was the occaision of the first controversial tax: a modest income tax. This would have been contested, but the war ended before the challenge got to SCOTUS. But the government, and its appetite, expanded, and in the late 1800s, it began to tax incomes just to pay for its own operations: only 2% of the population paid only 2% of their income.

  People challenged and resisted, on the grounds that this was not based on the census, and was therefore unconsitutional. And SCOTUS, in 1895, in Pollack holds that indeed this is unconstitutional. This was the second (after Dredd Scott) time that SCOTUS truly exercised the power of judicial review.

  And so, swiftly, the constitution was amended to allow income taxing. Unanimous in the senate, and nearly so in the house. And in 1913, we got 16A. That same year, we get the amendment changing how senators are elected.

  Both of these amendments have a significant impact, but 16A is bigger. Congress is now free to levy income and other taxes. Nowadays, the fed collects about $3T. This isn't legally controversial, but it has some big implications.

  The federal taxing ability increases the momentum of the growth of federal power over the states. The states are in competition with one another (nobody wants to be the taxiest). The feds are only competing with offshore competition, but Americans are a more captive audience-- it's one thing to go to IL from WI, but it's another thing to emigrate.

  The feds allow the states to issue tax-free municipal bonds. If the feds started taxing this, it would have a profound impact on the price at which states could borrow money.

  Also, the power to tax is the power not only to destroy, but also to regulate. So the tax system is used for purposes beyond just raising revenue. Oliver Wendell Holmes left his entire estate to the federal government, but not many people feel that way. Tax avoidance: if the government taxes something, then don't do it. That's different from tax evasion (illegally not paying taxes).

  Note that the Carter Coal decision represents the court challenging the motives of the federal government. This is a point of debate-- do we want the court deciding questioning the reasons behind federal actions? Of course that decision is before court-packing (holding that regulation by taxation was a sham, and couldn't be used as a tactic for enforcing behavior that couldn't constitutionally be mandated).

  But consider the machine-gun tax. The cost of enforcing it actually exceeded the revenue it brought in. But the policy was to find out who owned and traded in machine guns. Prior to court-packing, this would have been perceived as a regulation in disguise. Nowadays, though, that's A-OK. The tax code, as a result, has a lot of stuff to induce desirable behavior and to retard undesirable behavior.

  Consider landlord-tenant laws: there are changes galore, but the quality of housing stays about the same. So we give $20B to HUD, and that makes some differences. But if we adjust the rate of accelerated depreciation for housing (giving a rapid depreciation write-off), just a little bit, we can induce massive changes of investment. So the taxing code is a large source of federal power, beyond just getting money.

  This is a controversial aspect of tax. It's settled law, but the magnitude and the complexity are problematic: lots of ordinary people wouldn't think of filing their own tax returns. The amount of money spent completing the tax forms (not paying the taxes, mind you) is between $40B/year and $200B/year, depending on the year and what you measure. As a result, there's pressure to revert to a tax code that just raises revenue, in order to cut that drag.

  That is opposed both by CPAs and lawyers, who are very effective lobbyists.

  The third impact of the taxing power is the power to shift money. The federal government can spend that money: either directly, or in a way that induces behavior changes (i.e., a carrot for people who want to receive the money).

  The government is empowered to spend "for the general welfare" of the US. Note that spending is not just a function of the taxing power, but also of the borrowing power. How much can the federal government borrow? We don't yet know. Note that the actual federal debt is beyond just legal promissory notes: there's social security and FDIC insurance. We're about to increase that promise by an additional $150K/account. This will be probably an $8T increase in obligations if there are widespread bank failures. These "debts" are not on the books. Accountants doing this would go to jail.

  Anyway, are there limits ("the general welfare") on how the government can spend its money? Before court-packing, yes. The military was general. The last decision (by Roberts in 1936) seriously limiting government spending was to strike down a cash incentive for people who signed on to new deal agricultural policies. That seemed not to be in the general welfare. But then in 1937, Roberts overturns that prior decision, and the supreme court upholds several big spending cases (workman's comp, social security, etc.). With only very minor exceptions, the court has not looked back.

  Grove City College is cited in the FAIR case. Grove City was a college that wanted to be totally independent from the government. Their whole reason for being is to be apart from government. Well, then there's gender equality legislation: every institution that receives federal money has to promise not to discriminate and file some forms. Grove City says they don't discriminate, but never mind: they do not play this federal game. So is it possible to be independent under the spending clause in the US? No, says SCOTUS: even if you don't take US federal money, your students take federal loans. That means you are getting the money. At least the financial aid office... maybe not the athletic department. Powell's dissent is interesting: even though the federal government has won this fight over forms, NO difference has been made with respect to gender discrimination.

2 October

• So the ICC is the principal source of federal power, but taxing and spending are also important.
• Rumsfeld v. FAIR
  UW Law School was a party to this, but kept it quiet, actually. Most con law professors would not have had trouble predicting the outcome here-- it's sort of a no-brainer.

  Why would law schools deny access to JAG recruiters? Because they object to "don't ask-don't tell." (requiring people to remain secret if they wanted to serve). Clinton had promised to be responsive to the needs of the gay community, and the first thing he did was to say there would be no discrimination against gays in the military. But tactical error: he forgot to consult the military (who already suspected him of dodging the draft and being about to cut their budget). So there was protest, and the military has a lot of congressional clout. Much debate, etc. Note that the "don't-ask-don't-tell" policy that resulted is a Federal statute, not a military policy.

  Anyway, law schools tried to prevent military recruiters from coming, and Solomon (rep from NY) got an act passed saying that federal funding would be cut. Not student loans, but all kinds of other stuff. Across the board. In a good year, that would be $500M for the UW. The law schools challenged this.

  The court rejects the freedom of speech/freedom of association and equal protection arguments (see Con Law II). The court says that congress may do this. Support throughout the constitution: raise and support armies, etc. Almost half of Art I, § 3 covers military stuff (there is no more federal institution than the army).

  Since congress has the power to do this elsewhere, what difference does it make that they hinged it on the spending clause? It could just as well have been interstate commerce: does law school affect interstate commerce? Sure! It's easy!

  As to the 1A concerns, the law schools aren't obliged to speak. All they have to do is let the recruiters come along. This also isn't like the organizers of parades (who can't be forced to have floats they don't agree with): the law school can send whatever messages it pleases. It just has to let the recruiters come. The law school is not associating with the military, and is not forced to support the military: it just has to allow the militart equal access. So 1A not so much here, and congress lots here, so congress wins.

  "I support this because it is reasonable:" a circular argument. Does the spending clause power completely override 1A? The constitution contains potential for conflict, apparently. There must be limits to the power granted to any one clause: if we grant one clause supremacy over the others, we can just throw the whole thing out.

  The spending clause is subtle: at $90K/second (rate of federal spending), the federal government can induce anyone to do anything. This only looks benign: we are "induced" to do something, not "coerced." But there's coercion right behind that inducement.

  The law school's 1A argument is a tricky one: law schools are using 1A to justify kicking out people they don't agree with. :)

  Part of the debate here is federalism. The feds (including SCOTUS) don't want local restrictions on national/military policy.

  Another argument: this is the government's money. If they want law schools to accept recruiters, they can use it in this way. Schools are free not to take the money.

  And judicial review is present here, too: this is an issue that has made it through the military, the congress, and the executive branch: who is the court to say they're all wrong at this point?

  And also, on the merits, it's just short-sighted to kick the recruiters out. We actually need lawyers in the military: why would law schools want fewer lawyers in the military? We also benefit from a volunteer army. If we make it too hard for them to recruit, we'll be sorry. The army protects us, after all. Holmes went right off to fight in the civil war, which was quite a dangerous war by modern standards.

  Against the outcome of the court:

  • The spending clause is pernicious, and there must be some limits on it. One idea of the constitution is to protect from a federal government that can do whatever it wants. We need to enforce the idea that there are some limits: are there restrictions on federal power in the constition, or not? If we allow the spending clause to prevail, everything will be regulated through it.
  • If ever there was a place for federalism and self-rule, it was in higher education.
  • And 3A (almost never get to cite that!): nobody shall be obliged to quarter federal troops without their consent. We have a suspicion of permanent military power.
  • "Don't ask don't tell" is just a bad policy: why should the court support it?
• So the war power (see Korematsu) is another very big power. Perhaps it crushes everything.
• Another nice spending clause example. A few years before Rumsfeld v. FAIR, the students and faculty all wanted to oust military from campus. So they took these proposals to Donna Shalala, who was sympathetic to non-discrimination. But she said it needs more study, in spite of her support for the policy, because she couldn't write off the combined salary of all faculty.
• So the spending clause remains another mighty weapon for the federal government. South Dakota v. Dole (that's Elizabeth Dole, the sec of transport). The feds decided you had to be 21 to have alcohol, and withheld 5% of highway funds from states that had other policies. This is a lot of money. The court says: it's their money, 5% isn't exorbitant, there's a legitimate federal interest in drunks on interstate highways (if different states have different limits, kids near the state line will cross to get drunk and then drive home). The dissent says this is just a spending clause without limits. The fact that there even was a dissent, in 1987, was significant: the first murmur about limiting federal power since about 1937.
• Another interesting case: (Rust (?)) federal funding for pregnancy clinics. But it won't be granted if anyone in the clinics mentions abortion. But abortion is explicitly constitutional, and so is freedom of speech. 5-4 decision: it's the government's money, even though this is a bit of an awkward set of topics. No problem here.
• 1998: NEA v. Finley This is the suit about support Serrano's "Piss Christ" photography. That was offensive to about 85% of the population. 7 justices said that rules restricting art funding to non-offensive topics were not free speech problems. Which is obviously nuts. Scalia dissents: of course this restricts speech, and there's no reason why it can't, because the spending clause trumps 1A. If congress pays for something, they can say what they get. Souter also dissents: Scalia is right-- this is censorship, and 1A should trump the spending clause, and the government can not attach strings to its spending this way. And anyway what is "the government's money?" Didn't they get it by confiscating it from us?
• See also the Georgetown University disputes about support for gay student organizations. There was a local orndinance saying this discrimination was illegal. Congress passed a law saying that if DC doesn't allow Catholic institutions to refuse funding for gay student groups, funding for DC will be cut off. Zowie. So we're in court. This is cast as a free speech issue (the DC city council is not allowed to speak, effectively). Bizarre-- there are all kinds of laws restricting what laws city councils can pass.
• Also, look at the part-time evening students in UW Law School: the program is basically created under spending clause powers.
• Or cutting off LEAA funds to any state in which a person is convicted of serious rape/homicide, and gets out, and commits another crime in another state. So the feds are setting criminal penalties for violations of state laws. So, an obvious end-run around Lopez: instead of making a federal law, use the spending power to force states to make their own law.