2. Constitutional Law I Tenth Amendment Redux Oct. 6, 2004

3. Fall, 2004Con Law I - Manheim2 SWANCC v. Corps of Engineers (2001) Does “navigable waters” in Clean Water Act include intrastate waters? If yes, is it constitutional (violate 10 th ?) If not, no need to reach constitutional question. Standard rules of statutory construction Defer to agency interpretation of own statutes To avoid constitutional infirmity, if possible To avoid interference with states, unless the unmistakeable intent of congress ( Gregory)

4. Fall, 2004Con Law I - Manheim3 Rules of Statutory Construction 1. Don’t apply regulations to states, unless the clear intent of congress (Gregory) Do state agencies (e.g., SWANCC) have to comply with CWA (obtain Corps of Engineers permit) when dumping at migratory bird site? Although states have primary responsibility, Clear that states must comply with federal environmental laws. Cooperative Federalism

5. Fall, 2004Con Law I - Manheim4 Rules of Statutory Construction 2. Let Agency decide Rule (Chevron v. NRDC): defer to Administr. Agency interpretation of its own enabling statute and powers delegated by congress  Corps interprets “waters of the US” to include non- navigable waters used by interstate migratory birds Exceptions:  Agency interpretation foreclosed by statute  Agency interpretation upsets usual fed-state balance; i.e., invade traditional state power

6. Fall, 2004Con Law I - Manheim5 Rules of Statutory Construction 3. Read statute in such manner as would avoid constitutional infirmity, if possible If statute can be interpreted in two ways  1 of which would render the statute const’l, and  1 of which would render it unconstiutitonal Go for the constitutional intepretation Do Migratory Birds substantially affect IC?

7. Fall, 2004Con Law I - Manheim6

8. Fall, 2004Con Law I - Manheim7 Rules of Statutory Construction Missouri v. Holland (1920): protection of migratory birds is a national and int’l issue

9. Fall, 2004Con Law I - Manheim8 Rules of Statutory Construction 3. Read statute in such manner as would avoid constitutional infirmity, if possible If statute can be interpreted in two ways  1 of which would render the statute const’l, and  1 of which would render it unconstiutitonal Go for the constitutional intepretation Do Migratory Birds substantially affect IC? Does Corps rule regulate states qua states? impinge on traditional state power over land and water use? (10 th, version 2)

10. Fall, 2004Con Law I - Manheim9 Pierce County v. Guillen (2003) State Gov’t (state agencies, state courts)?  If so, congress is regulating the states themselves Regulating “channels” includes appropriate incidents (e.g., state tort policy ?) More or less intrusive than Migratory Bird Rule? Federal grant aid for highways preempts WA Public Discl. Act What is congress regulating? Roads?  well established that Congress has authority to "reg- ulate the use of channels of interstate commerce”

11. Fall, 2004Con Law I - Manheim10 US v. Lopez (1995) Respective spheres of authority Federal: commerce State: education, gun control?  Exclusively state?  Or shared responsibility? What impact do guns in/near schools have on commerce?

12. Fall, 2004Con Law I - Manheim11 Categories of Interstate Commerce Channels of IC transportation systems interstate shipments, accommodations Instrumentalities of IC vehicles, vessels persons or goods in transit Activities w/ substantial relation to IC Intrastate activities w/ substantial effect on IC  "class of activities" (i.e., in aggregate)  difference betw. substantial & insubsubstantial?  who decides?

13. Fall, 2004Con Law I - Manheim12 Gun-Free School Zones Act Regulation of Channels? Regulation of Instrumentalities? Substantial Effects? Does possession of guns on school campuses substantially effect IC?  increases trade in guns, bullets, coffins  helps control drug trade  obstructs educational process  lessens US preparedness in world economy

14. Fall, 2004Con Law I - Manheim13

15. Fall, 2004Con Law I - Manheim14 Proving Substantial Effects Commercial transactions sale of gun, yes mere possession of gun, no Jurisdictional element proof that gun had traveled interstate must be element of prima facie case Legislative findings aids court in determining link  would court defer to congress?  no rubber stamp (obliterate distinction)

16. Fall, 2004Con Law I - Manheim15 Text & Subtext of Opinions Rehnquist (majority) Kennedy (concur) Thomas (concur) Stevens (dissent) Souter (dissent) Breyer (dissent) Reassert judicial supremacy over federalism; rejects RB test judiciary to maintain state/federal balance Commerce restricted to meaning understood by the framers Guns are harmful articles of commerce w/ interstate market Rejects originalism; Majority op is radical judicial activism SoP case: Majority substitutes its economic judgment for congress’

17. Fall, 2004Con Law I - Manheim16 Lopez audio Oral opinion Oral argument

18. Fall, 2004Con Law I - Manheim17 US v. Morrison (2000) Victim of gender violence sued private party and state under Violence Against Women Act Christy Brzonkala Const’l basis for VAWA Commerce Clause 14 th Amd, § 5 “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”  Notice the link to § 1

19. Fall, 2004Con Law I - Manheim18 US v. Morrison (2000) Regulating individuals under Lopez CC test Gender violence as channel/instrumentality of IC? Activities substantially affecting IC?  Sexual assault is non-economic criminal activity  Lack of jurisdictional element  Copious and express congressional findings 4 years of testimony showing effects on commerce General violence costs the economy $4 billion annually Isn’t the Ct. better able to evaluate economic matters than Congress? Souter: majority is protecting state autonomy despite clear links to IC?

20. Fall, 2004Con Law I - Manheim19 US v. Morrison (2000) Congress’ power under Section 5 Private assaults do not violate 14 th Amd, § 1 State’s failure to protect women students also does not violate 14 th Amd, § 1; therefore Regulation of either not appropriate under § 5 Visions of Federalism Nationalist vs. Statist Static vs. Dynamic economy Originalist vs. Dynamic Const’l Interpretation  Souter: “the federalism of some earlier time …”

21. Fall, 2004Con Law I - Manheim20 Practice Questions 1. During the era of dual federalism, could Congress regulate environmental quality? a.Isn't pollution created & felt entirely intrastate? b.Does pollution affect or in the current of commerce? c.Would it matter if congress enacted the law as a health measure, rather than to promote commerce? 2.Could states regulate environmental quality? 3.Could congress enact consumer protection laws? a.Besides the FTC and the SEC, what other federal agencies are unconstitutional? b.Since health & welfare is a quintessential state concern, would federal law violate the 10 th amd?

22. Fall, 2004Con Law I - Manheim21 Practice Questions Is the Drug-Free School Zones Act const'l? After Lopez, are Heart of Atlanta Motel and Katzenbach still good law? Who won the Civil War? more practice questions