Constitutional Law Class Notes 1/21/04


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 California law should tell us what should be done with her.  Maybe we don’t want Congress to set up a nationwide standard for what it means to be a good parent.  We don’t want the states deprived of their ability to administer family law differently in each state.  We like having each state go its own way on cultural issues and social values and mores.  This is how Foley would set out the argument in order to make it attractive to O’Connor or Kennedy.


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.


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