Constitutional
Law Class Notes
Next
week, we’ll get to Sabri. In fact, we’ll basically spend all next week
on it. We’ll start with the lower court
opinion. Foley wants us to know that
Section II of the Court of Appeals decision is on statutory construction while
Section III is on constitutional analysis.
So just skim Section II. On
Monday, we’ll only talk about the constitutional issues.
What’s
it about? Congress let the Secretary of
Transportation knock off 5% of federal highway funds to states with drinking
ages less than 21.
An aside: One of Foley’s primary
goals in using the Socratic Method in class is practicing talking about the
law. One thing we’re doing as we
practice is focusing in on the most important things in each case. That’s something you’ll need to do in your
future lawyerly life.
So
what are the key details about the federal law?
It will withhold money from the states unless they raise
their drinking ages.
Suppose
Congress hadn’t done this through spending, but instead simply made a law that
said “Nobody can purchase an alcoholic beverage if they’re under the age of 21.” Would that be within the Commerce Clause? Sure, probably. But it would violate the Twenty-First
Amendment. If we only had the Commerce
Clause, then there would be no problem.
We’re talking about the sale of alcoholic beverages, and this activity
is sufficiently commercial that even intrastate alcohol sales can be
regulated. But the Twenty-First
Amendment removes some things from Commerce Clause authority that would
otherwise be within Commerce Clause
authority. The Supreme Court assumes
that Congress could not enact a direct
regulation of the national drinking age under the Commerce Clause. If it was
within the Commerce Clause authority, then there wouldn’t have to be any
separate Spending Clause analysis. You
only need to list your law under one
of the enumerated powers. If there was Commerce
Clause power, you might plausibly have a Tenth Amendment problem.
But
because we assume it couldn’t be done under the Commerce Clause, we need to try
it out under the Spending Clause. That’s
what the Court does.
Note
that Congress can spend with respect
to matters that are beyond any other power.
For example, with education in Lopez, education is said to be something
that especially belongs to the states.
But the spending power is different!
The federal government can dole out money for education to the states
and condition it upon the teaching of a particular curriculum, even if they can’t
directly mandate such a curriculum. The Spending
Clause has a broader scope than the Commerce
Clause, but it’s not necessary more powerful
than the Commerce Clause.
Also,
the Tenth Amendment doesn’t give Congress any powers. In fact, a minority of the Justices think
this Amendment is irrelevant. The majority
believes that it is a states’ rights provision that doesn’t give Congress any powers, but only takes away powers. The Tenth Amendment is analytically different
from either the Spending Clause or the Commerce Clause. The latter are “power” provisions; the former
is a “rights” provision.
The
Supreme Court says that if
So
let’s focus on the Spending Clause. The Court
announces a four-point test for Spending Clause cases:
1. The conditions must be in
pursuit of the general welfare. Congress
will get a lot of latitude in making this judgment. Some cases suggest that the Court will give Congress
a pass on this question every time.
2. The conditions Congress
places on grants must be related to the purpose of the money itself. If the money comes with “strings attached”,
there might be a connection between the money and the “strings”.
3. The conditional nature of
the grants must be unambiguous. The statute
must clearly spell out to the states what their choice is. What are the strings being attached to the
money? It can’t be a “gotcha” where the
money comes first and the conditions come afterwards.
4. Congress can’t induce the
states to perform any action that would itself be unconstitutional. The Twenty-First Amendment would be an
independent bar to direct regulation,
but it’s not an independent bar with
respect to the spending power. That’s
because the states have a choice! The Twenty-First
Amendment says that the states have a choice of how to regulate alcohol. Why isn’t the quid pro quo that’s being
offered (money for drinking age) outside the scope of the Twenty-First
Amendment? The Court basically says that
in the domain of just spending money and offering choices rather than making
decrees, the Court will act like the Twenty-First Amendment is not a bar as far
as the Spending Clause goes. This is
kind of by fiat and could have gone the other way. The court says that the federal government
can’t give money to the states if the states agree to give up something that
the states are not entitled to give up.
If
you read between the lines, the Court suggests that
Foley
says that states’ governments have historically been poorly represented in the Supreme
Court. That’s changing for the better (says
Former Solicitor General Foley).
The relatedness prong
What’s
the difference between what the majority and the dissent say about this
prong? This is a tricky one! Why did O’Connor have a different view of
relatedness than the majority?
The
money was related to highway construction and repair. The strings were related to drinking
age. The perception of young adults is
that they are more likely to engage in drunk driving than other people. The majority thinks that the strings and money
are legitimately connected.
O’Connor’s dissent
Justice
O’Connor wanted to look at relatedness in a little more depth. What does O’Connor mean when she says that
the money must be spent on highway safety itself? O’Connor says there will be drunk drivers
causing accidents in other age groups, plus young drivers who will drive
safely. O’Connor says the law is thus
both over- and under-inclusive. This
concept becomes very important when we get to Equal Protection law.
But
when a condition is related to the spending versus unrelated to the spending? O’Connor says that conditions are acceptable,
and regulations are not. Why is the age
limit a regulation and not a condition of the spending? O’Connor’s key concept is that relatedness means: “Here’s the money, you can
spend it for X, Y, and Z, but not A, B, and C.”
It’s conditions on how the money is spent. As
opposed to: “Here is some money, and in exchange for the money you must agree
to obey the following rules.” She would
only allow the money to be conditional based on how it’s spent.
O’Connor
says a condition is regulatory when the restraint goes beyond that wad of money
itself. In order to get such money, you
must agree to spend any money you get
in a certain way. O’Connor believes this
is outside of the Spending Clause. This
crosses her line of permissibility because it’s a constraint not on the money
itself, but actually on the behavior of the recipient of the money. “Constraint on money yes, constraint on
people no.”
This
case is from 1987 and the composition of the Court has changed
considerable. Does O’Connor now have
more allies than she did in 1987? She
was all alone then. But maybe she could
get Thomas and Kennedy. She didn’t get Scalia
or Rehnquist’s votes, but that might just be because
Sometimes
you can differentiate one case from another by saying “I’m presenting a
different argument than in the case
you decided before.” Really good lawyers
will read the briefs and the transcripts.
If they see an argument missing
from the earlier case, then they can come to court and say the case needs
another look because there’s a whole new argument.