Constitutional
Law Class Notes
This
series of assignments all relate to federalism. But we’re going to switch gears on Monday and
Tuesday to looking at the Tenth Amendment as a limit on federal power and
protection of state power.
When
we read the Tenth Amendment cases, we should start by thinking about what the
relationship is between the Commerce Clause and the Tenth Amendment. Chemerinsky discusses this, and we’ll also
discuss this in class. (What powers are given to Congress by the Commerce Clause? What powers are taken away from Congress by the Tenth Amendment?)
Now
that we’ve read a few of these cases, Foley wants to know if we’re starting to
get more comfortable with what’s going on.
“Facial” versus “as-applied”
challenges
There’s
a conflict between “facial” challenges and “as-applied” challenges that comes
up in each case. The normal rule is that
you start with an “as-applied” challenge.
That means that there a particular person in court who says: “This law
is unconstitutional as applied to me.” It could be a civil or criminal defendant.
On
the other hand, in Raich for example,
you can sue in anticipation of having
a law used against you. If you’re the petitioner
or defendant, you may not care about how the law is applied to anybody else
except yourself.
You’re
not normally allowed to go to court and say: “The law can be validly applied to
me, but it can’t be applied validly from someone else who is different than me. Therefore, I want the Court to declare the
law unconstitutional on the whole so I win even though I couldn’t have won on a
claim as applied just to me.” You can’t
piggyback on someone else’s constitutional rights.
This
is a facial challenge in its most
basic form. Normally, these are no good.
“What
about third-party standing?” There’s a
complicated body of law called “standing law”.
It comes up a lot in practice. It
means that in a narrow set of circumstances when your constitutional rights
aren’t at stake you can litigate on behalf of someone else’s constitutional
rights.
For
the sake of example, the First Amendment freedom of speech principle is one
area where facial challenges and third-party standing are allowed. This is allowed because we want a very robust
protection of freedom of speech. In
pornography cases, for example, the court will often say with respect to
non-protected extra gross pornography that the “smut peddler” can bring a
facial challenge based on the notion that the law in question is written so
broadly that it bans materials that shouldn’t be banned.
But
this is the exception rather than the rule.
This distinction really confuses judges, courts, and lawyers. They’re not sure when they have a facial
challenge in front of them. Judges have
a hard time with this! If we’re
confused, that’s okay, because they are too!
Part of the reason is that the idea of “facial versus as-applied
challenges” isn’t in the Constitution.
Foley
thinks the challenge in McCoy was not a debate over facial
challenges and as-applied challenges.
Foley says that McCoy is really asserting an as-applied
challenge and that she is not using third-party standing.
Which
of the cases we’ve gone over so far are the most vulnerable to being overturned
by the Supreme Court?
The
farmer in Wickard was in the
agriculture business. He was a
self-employed farmer. What’s the
difference between Farmer Filburn, who was a commercial farmer who also happened to grow extra wheat for his own
consumption and the hypothetical we talked about with tomatoes? Do we think that Filburn is more “commercial”
as a person because he’s a commercial farmer?
Wheat is fungible. The wheat is a
lot more fungible than McCoy’s picture.
What about the machine guns?
There’s
no “drug clause” of the Constitution!
The government doesn’t have the basic power to say that there are
certain powers they like and don’t like.
The only thing that gives Congress the authority to outlaw drugs is to
tie it to interstate commerce.
The
government will argue that they have to power to keep drugs from crossing state
lines. In turn, if we let
Come
up with as many arguments as you can for each side!
Foley
says: The Ninth Circuit has a poor reputation in the U.S. Supreme Court right
now. It is considered ideological and
aggressive. That’s probably not true of
all three opinions, but the Raich one would probably be considered the
most result-oriented. It appeared that
the judges had an idea of the result they wanted and they used the doctrine of Lopez
and Morrison
as an instrumentality to get to the result they wanted.
These
Ninth Circuit cases are cutting edge!
The only way we’re going to find out what current Commerce Clause law
really is would be if the Supreme Court takes on one of these cases.