Constitutional Law Class 11: 2/1/2008

Prof. FischerThe 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]