Constitutional
Law Class Notes
This
week is all Sabri all the time!
An aside about deference – a
common thread
To
clarify a point from last time: The scope of the Spending Clause is broader,
according to the Court, than the Commerce Clause. The Court perceives Congress as having more
room to maneuver under the Spending Clause than under the Commerce Clause. For example, Lopez says we can’t have a
nationally mandated primary school curriculum justified by the Commerce Clause
power.
The
Court will not second-guess Congress about whether a certain economic policy will
be effective, as long as the policy
is enacted under one of the enumerated powers.
In Wickard, the regulation of
Filburn’s wheat might not have been necessary
to get us out of the Depression, but the Court gave Congress deference as to
the means Congress chose to stoke interstate commerce.
The
idea of deference is very important
throughout this semester with respect to every subject we’ll study. Every case we’ll see this semester is, in a
sense, about deference. Every case
includes a constitutional challenge to what the government wants to do. In many cases, statutes (legislative power) will
be challenged, while in some other cases, executive power will be
challenged. Whenever the Court is begin
asked to invalidate an exercise of governmental power on the grounds that such
exercise is unconstitutional, the Court, implicitly or explicitly, asks the question:
“How much deference should our part of the government give another governmental
authority to do what it feels is right?”
If Congress
has passed a law, presumably Congress believed itself to be acting constitutionally. Congress isn’t in the business of violating
its own oath. Every time the Supreme
Court overrides an act of Congress, it overrides the judgment of the members of
that body. It is, in a sense, an
indictment of the integrity of another branch of government. So the Court always thinks to itself: “How
much latitude should we give Congress on this issue?”
Deference
cuts through all the topics we’ll cover in this class. It also relates to the “standard of review”
the Court should apply when adjudicating the particular constitutional claim in
front of it. The higher the standard of
review, the more scrutiny the Court gives the relevant government agencies
involved. A rigorous standard of review
is used, for example, in freedom of speech claims. A lower standard of review or scrutiny gives
the government more deference. So in
each topic we study, we’ll ask what standard of review will apply with respect
to each case.
Foley
says that the Court is struggling with the standard of review issue in the area
of federalism. Breyer’s dissent in Lopez says that the “rational basis
test” applies to Commerce Clause analysis.
The “rational basis test” is a very
relaxed standard of scrutiny. That means
Congress gets a big benefit of the doubt.
Breyer thought the Court shouldn’t make a judgment about whether guns
near schools would lead to damage to the interstate economy, but rather the
Court should review whether Congress could rationally
think that guns near schools could
conceivably lead to damage to interstate commerce. Breyer would say as long as such a connection
is conceivable, Congress is entitled
to make it and have it upheld.
Note
that the Court didn’t really respond to Breyer on that point. The majority focused on the fact that Breyer
couldn’t come up with a law that would go over the line if the statute under consideration
was upheld. That leads us to ask whether
the level of review in Commerce Clause cases has been raised. Foley says that Lopez and Morrison have not clearly
set out just what standard of review the Court is applying.
We
saw last week in South Dakota v. Dole references to the “rational
basis test” as part of the inquiry in a Spending Clause case. That was the test for applying the “general
welfare” prong. The majority and dissent
parted ways on the “relatedness” prong.
Justice O’Connor was unwilling to apply such a loose standard of review
as allowed by the majority.
Note
that you could applying different amounts of deference, or, in other words,
different standards of review with regard to different parts of a test. The Court can let the standard of scrutiny “float”
up and down, even within the same case.
So pay attention to what level of scrutiny is being used.
Sabri
was a developer in
So
the statute’s words seem to say that giving anything
of value to any person with the intent
of influencing a state agent or agency will be bribery. The statute seems very broad! Is Congress trying to grab too much
authority?
Congress
has written this statute and yet Congress has limited scope of authority. Congress has the commerce power. Could this statute be justified under that
power? Congress is spending money. Could this statute be justified under the Spending
Clause?
Does
the challenge in this case have to be a facial challenge? Could Sabri have brought an as-applied
challenge instead? How is Sabri using
the term “facial challenge”?
Why
is it that the analysis of South Dakota v. Dole does not apply to this
case? Why does this case raise
altogether new issues?
We’ll
talk about the disagreement of the majority and dissent in regard to the scope
of the Necessary and Proper Clause. As
the dissent reads this statute, the federal government could jail someone for
bribing a meat inspector even though the city might only get money for its
parks. Is this a correct reading of the statute?