Transcript Slides for Class 11

Constitutional Law Class 11:
2/1/2008
Prof. Fischer
The Commerce Clause III
1995-present
United States v. Lopez (1995)
• Majority opinion of
Rehnquist [C p. 153]
(5-4: joined by Scalia,
Thomas, Kennedy,
O’Connor)
• New federalist
approach to
Commerce Clause
United States v. Lopez (1995)
• Concurrence of
Justice Thomas [C p.
159]
• Suggests a new
standard
• What about stare
decisis?
United States v. Lopez (1995)
• Concurrence of
Justice Kennedy,
joined by O’Connor [C
p. 157]
• Concerns about
Constitutional
structure and stare
decisis
United States v. Lopez (1995)
• Dissent of Justice
Breyer [C p. 162]
(joined by Souter,
Stevens, Ginsburg)
• “significant effects”
test
• Deferential rational
basis scrutiny
• 3 problems with
majority holding
United States v. Morrison
• Case brought by Christy
Brzonkala, a Va Tech
student who sued 2
football players and Va
Tech under s. 13981 of
the Violence Against
Women Act of 1994: “[a]ll
persons within the United
Stats shall have the right
to be free from crimes of
violence motivated by
gender.”
United States v. Morrison (2000)
• Majority opinion of
Rehnquist (joined by
Thomas, Scalia,
Kennedy, O’Connor)
[C p. 165]
United States v. Morrison (2000)
• Concurring opinion of
Justice Thomas [C p.
168]
United States v. Morrison (2000)
• Dissenting opinion of
Justice Souter (joined
by Stevens, Ginsburg,
Breyer) [C p. 168]
Open Questions after Morrison
• What questions remain open after Lopez
and Morrison?
Case Law after Lopez and Morrison:
Narrow interpretation of statutes raising
constitutional questions
• United States v.
Jones (2000) [C p
170]: narrow
construction of federal
arson statute to avoid
constitutional
question
• Unanimous opinion
by Ginsburg
Case Law after Lopez and
Morrison
• Solid Waste Agency of Northern Cook
County v. U.S. Army Corps of Engineers:
majority narrowly interprets § 404(a) of the
Clean Water Act to not apply to intrastate
waters that were a habitat for migratory
birds
Case Law After Lopez and
Morrison
• In two cases, the Supreme Court has upheld
federal laws under the Commerce power
• Consider Souter’s statement in Morrison that he
is conviced that “today’s ebb of the commerce
power rests on error, and at the same time leads
me to doubt that the majority’s view will prove to
be enduring law.”
• Is it ENDURING LAW?
Pierce County, Washington v.
Guillen (2003) [C p. 175]
• Authority to regulate
“channels of interstate
commerce.”
Gonzalez v. Raich (2005) [Supp. p.
29]
• Majority opinion by
Stevens
Gonzalez v. Raich (2005) [Supp. p.
29]
• Majority opinion by
Stevens
Gonzalez v. Raich (2005) [Supp. p.
29]
• Challenge to federal
Controlled
Substances Act
brought by Angel
Raich and Diane
Monson, users of
medical marijuana
pursuant to CA
Compassionate Use
Act of 1996
Gonzalez v. Raich (2005) [Supp. p.
29]
• Majority opinion by
Stevens (joined by
Kennedy, Souter,
Ginsburg, Breyer)
Gonzalez v. Raich (2005) [Supp. p.
29]
• Concurring opinion by
Scalia
Gonzalez v. Raich (2005) [Supp. p.
29]
• Dissent by O’Connor
[joined by Rehnquist
and Thomas as to all
but Part III]
Gonzalez v. Raich (2005) [Supp. p.
29]
• Dissent by Thomas
Two other cases after Raich decided on
statutory interpretation grounds
• Gonzalez v. Oregon (2006) [Supp. p. 42]
• Rapanos v. United States (2006) [Supp. p.
42]