Constitutional
Law Class Notes
Foley
hires a research assistant or assistants each summer. We can send applications if we’re interested. The application is a copy of our resume, a
cover letter if we’d like, and first semester grades. We can do this by e-mail or we can put
something in his mailbox or stick something under his door.
If
you remember anything this semester, Foley would rather we remember “The Rachel
Story” than anything about the Commerce Clause.
More on McCoy – the jurisdictional
hook
Why
isn’t the existence of a jurisdictional hook in the statute in question dispositive
here?
The
argument might be made (according to Foley) that the presence of the jurisdictional
element makes the discussion in Lopez and Morrison irrelevant. What Congress wants here is to regulate the
camera and film in interstate commerce. Congress
wants to regulate the camera and film such that they’re not used to make child
pornography. It’s clear that Congress
can regulate the camera and film in a lot of other ways if these items are going
to move in interstate commerce. So why
can’t the government also say that we don’t want these items doing something
obnoxious? Couldn’t the government say
that you can take whatever pictures you want, but just not with something that’s
moved in interstate commerce?
The
U.S. Supreme Court hasn’t taken this case, but what might they do if they
did? What’s the strongest argument for
McCoy in claiming that there is no Commerce Clause power to forbid her conduct?
(Side
question: how long does it take from the time an appeals court decision is
handed down to know that the Supreme Court is going to review it?)
Isn’t
the production of the picture tied to interstate commerce in a way that the
conduct in Lopez and Morrison was not?
Think
of O’Connor’s question to Seth Waxman: “Show me a statute that flunks the Commerce
Clause if this one is okay.” In order to
uphold this law as applied to these facts, would I, as a Supreme Court Justice,
have to say that the Commerce Clause power is completely unlimited?
Foley
says we genuinely have no idea how the U.S. Supreme Court would decide this case,
and if we think we do, that’s probably a danger sign. All we have right now is the guidance of Lopez
and Morrison.
What
Foley thinks will motivate O’Connor or Kennedy would be something along the
following lines: How important is it that we allow Congress to have this
power? Is this something we should let Congress do? On the other hand, how important is it that
we deny Congress this power in order
to preserve some state autonomy in our “dual system”. What cuts in
favor of having Congress and the federal government win power in this case
is that the Supreme Court has already noted a stopping point. The very existence of Lopez and Morrison show that there is
a limit, and therefore the Supreme Court can allow Congress to deal with a
national problem without worrying about their power going too far.
One
of the reasons that this case is important is that the picture is not fungible
with other pictures the way wheat is fungible.
But Foley claims this is a commodity
case instead of an activity
case. So the Supreme Court might find
that Congress can have authority to regulate this commodity.
Another
argument that could be made on behalf of McCoy is the “traditional state domain”
argument. The Court talks about
education, family law, and family relations as areas that we traditionally look
to state law to decide. When Congress
writes a new law in that area, we have the danger of having Congress usurping
that authority. We let Congress rule
when they’re in their domain, but we should not expand Congress’s power into
areas that especially intrude on state sovereignty.
Because
McCoy
involves a parent-child relationship, it helps to make the argument that the issue
belongs to state law. If McCoy has been
a bad parent, maybe
The
key idea is that the argument is a functional
argument. We could try to measure “substantial
effects”, but ultimately, the justices are in the driver’s seat. What will move them is not a formalistic and
technical argument, but an argument about function
and purpose. The justices, according to Foley, want to
hear a reason why we should give
Congress the power we give them.
Tomorrow,
compare machine guns, marijuana, and wheat.