Commerce Clause - Lopez/Morrison/Raich Forum

[jetlagz28]

Bernie must be misreading E & E's to prep for 1L

From now on, when 0Ls ask why they shouldn't read E&Es prior to starting law school, I'm just going to link to this thread.

lol +1

[Matthies]

After Lopez congress amended the Gun Free School Zones Act to add a jurisdictional element (specific statement linking regulation to interstate movement). The reason why the court applied the non-deferential RB review was that the law lacked the jurisdictional element. Since the court has not revisited the issue, no on knows what would happen if congress regulated a non-economic activity with a jurisdictional element. This was low hanging fruit on my exam. Prof asked what would happen if the court revisited the issue. Well, there's two quick and easy options.

They can apply the deferential substantial effects test (Wickard, etc.) or the non-deferential substantial effects test (Lopez, Morrison). After that you can get creative.

This is where I would have said the court would use the 3rd amenednt, the 3rd amendment is ALWAYS the right answer when you have no idea what the answer is.

[mikeytwoshoes]

Seriously? You guys don't see the connection between the Commerce Clause and Rehnquist's conditions to limit Congress' authority to tax and spend? It was a blatant response to concern for the political safeguards and institutional structure of federalism. To view Dole completely on its face as uhh, a taxing and uhh spending issue is to completely ignore the fact that the drinking age is a local/state issue, and but for the extralegal factors of that issue, it would not have been within Congress' power to regulate via taxing and spending. They Court had to make shit up beyond Constitutional structure. The power to tax and spend was broadened in Dole beyond the scope of Congress' enumerated powers as restricted under the CC. These conditions now allow Congress to circumvent their CC limitations. But, I'm just a 0L so wtf do I know?

I dare you to use Dole on your Con Law final exam next year in relation to the commerce clause. Not only is the case about the tax and spending power of congress, its from 1987.

Lopez, which came in in 1995, is the foundation case for discussion of modern commerce clause doctrine, Morrison and Raich both built off of Lopez (and Raich also used aggregation from Wickard).

Even when talking about the history of the commerce clause (Lochner, NLRB etc...) it doesn't fit anywhere in an accurate discussion for an exam.

Raich is kinda out there on its own because it specifically regulated economic (possession with intent to sell) and non-economic (pure possession). That's the source of Scalia's more nuanced analysis.

[mikeytwoshoes]

After Lopez congress amended the Gun Free School Zones Act to add a jurisdictional element (specific statement linking regulation to interstate movement). The reason why the court applied the non-deferential RB review was that the law lacked the jurisdictional element. Since the court has not revisited the issue, no on knows what would happen if congress regulated a non-economic activity with a jurisdictional element. This was low hanging fruit on my exam. Prof asked what would happen if the court revisited the issue. Well, there's two quick and easy options.

They can apply the deferential substantial effects test (Wickard, etc.) or the non-deferential substantial effects test (Lopez, Morrison). After that you can get creative.

This is where I would have said the court would use the 3rd amenednt, the 3rd amendment is ALWAYS the right answer when you have no idea what the answer is.

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

[bernie shmegma]

Seriously? You guys don't see the connection between the Commerce Clause and Rehnquist's conditions to limit Congress' authority to tax and spend? It was a blatant response to concern for the political safeguards and institutional structure of federalism. To view Dole completely on its face as uhh, a taxing and uhh spending issue is to completely ignore the fact that the drinking age is a local/state issue, and but for the extralegal factors of that issue, it would not have been within Congress' power to regulate via taxing and spending. They Court had to make shit up beyond Constitutional structure. The power to tax and spend was broadened in Dole beyond the scope of Congress' enumerated powers as restricted under the CC. These conditions now allow Congress to circumvent their CC limitations. But, I'm just a 0L so wtf do I know?

you suggesting to the op to look at Dole does nothing to answer his/her question. you are just complicating things. everyone sees the connection you are making. but, for purposes of understanding Morrison/Wickard/Raich/Lopez it is not necessary. the op's question was directed at understanding the non economic/economic distinction in these cases. Dole doesn't address this issue like the aforementioned cases do, hence your contribution to this thread has only wasted everyone's time. we understand you are itching to impress everyone with your 0L knowledge of con law. we don't care.

Fair enough.

[vanwinkle]

--ImageRemoved--

[Aqualibrium]

After Lopez congress amended the Gun Free School Zones Act to add a jurisdictional element (specific statement linking regulation to interstate movement). The reason why the court applied the non-deferential RB review was that the law lacked the jurisdictional element. Since the court has not revisited the issue, no on knows what would happen if congress regulated a non-economic activity with a jurisdictional element. This was low hanging fruit on my exam. Prof asked what would happen if the court revisited the issue. Well, there's two quick and easy options.

They can apply the deferential substantial effects test (Wickard, etc.) or the non-deferential substantial effects test (Lopez, Morrison). After that you can get creative.

This is where I would have said the court would use the 3rd amenednt, the 3rd amendment is ALWAYS the right answer when you have no idea what the answer is.

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Hmmm I think I can sense a mist or penumbra emanating from that

[bernie shmegma]

Bernie must be misreading E & E's to prep for 1L

From now on, when 0Ls ask why they shouldn't read E&Es prior to starting law school, I'm just going to link to this thread.

What are E&E's?

[vanwinkle]

Bernie must be misreading E & E's to prep for 1L

From now on, when 0Ls ask why they shouldn't read E&Es prior to starting law school, I'm just going to link to this thread.

What are E&E's?

Examples & Explanations, one of the most popular form of hornbooks. Typically when 0Ls start looking for something to read up on the law before they start law school, they'll go for E&Es, if for no other reason than they're a very well-known series.

[bernie shmegma]

Bernie must be misreading E & E's to prep for 1L

From now on, when 0Ls ask why they shouldn't read E&Es prior to starting law school, I'm just going to link to this thread.

What are E&E's?

Examples & Explanations, one of the most popular form of hornbooks. Typically when 0Ls start looking for something to read up on the law before they start law school, they'll go for E&Es, if for no other reason than they're a very well-known series.

Oh. I'm assuming you're not a big proponent of them?

BTW I had no idea this was for current students and was going to get into such a specific convo catered for exams. I was the first poster to respond and thought it was more of a conversation about Congress' Commerce powers than anything else. Wrong time, wrong forum, wrong application. In general though, and fwiw it still stands that Dole had a lot to do with Congress' commerce powers for those other 1L's who think otherwise. Granted, that may be a bit of a normative perspective/personal interpretation, but I just agree with the dissenting opinion in that case.

Anyway, Good luck on exams. And VanWinkle, may Beck be with you.

[mikeytwoshoes]

What are E&E's?

Examples & Explanations, one of the most popular form of hornbooks. Typically when 0Ls start looking for something to read up on the law before they start law school, they'll go for E&Es, if for no other reason than they're a very well-known series.

Oh. I'm assuming you're not a big proponent of them?

BTW I had no idea this was for current students and was going to get into such a specific convo catered for exams. I was the first poster to respond and thought it was more of a conversation about Congress' Commerce powers than anything else. Wrong time, wrong forum, wrong application. In general though, and fwiw it still stands that Dole had a lot to do with Congress' commerce powers for those other 1L's who think otherwise. Granted, that may be a bit of a normative perspective/personal interpretation.

Anyway, Good luck on exams. And VanWinkle, may Beck be with you.

You just got a B- in LRW for that question mark.

[mikeytwoshoes]

--ImageRemoved--

[vanwinkle]

Oh. I'm assuming you're not a big proponent of them?

I'm not a big proponent of 0Ls reading them and then thinking they know the law. This is like a pre-med reading a book on surgery and then thinking he knows how to cut people open.

BTW I had no idea this was for current students

The forum is entitled "Forum for Law School Students".

In general though, and fwiw it still stands that Dole had a lot to do with Congress' commerce powers for those other 1L's who think otherwise. Granted, that may be a bit of a normative perspective/personal interpretation.

Dole is only studied in 1L casebooks for its effects on the Tax and Spend Clause. If you were a current law student you would know this. The Tax and Spend Clause power is discussed entirely independently of the Commerce Clause power, largely because they are separate enumerated powers. Nobody discusses Dole in Commerce Clause terms in Con Law. It only comes up as a Tax and Spend Clause issue.

This is why 0Ls should stay out of this forum.

[bernie shmegma]

.

Oh. I'm assuming you're not a big proponent of them?

BTW I had no idea this was for current students and was going to get into such a specific convo catered for exams. I was the first poster to respond and thought it was more of a conversation about Congress' Commerce powers than anything else. Wrong time, wrong forum, wrong application. In general though, and fwiw it still stands that Dole had a lot to do with Congress' commerce powers for those other 1L's who think otherwise. Granted, that may be a bit of a normative perspective/personal interpretation.

Anyway, Good luck on exams. And VanWinkle, may Beck be with you.[/quote][/quote]
You just got a B- in LRW for that question mark.[/quote]

I just got a B_ from your mother for that corny comment.

[PSLaplace]

Excerpts from my Con Law outline:

Congress may pass three categories of laws under its Commerce Clause power: 1) laws regulating the channels of interstate commerce; 2) laws regulating instrumentalities of interstate commerce, or persons or things traveling in interstate commerce; and 3) laws regulating activities that have a substantial effect on interstate commerce (Lopez).

Under (3), Congress need only have a rational basis for concluding that the regulated activity has a substantial effect on interstate commerce (Raich).

Regulated Activity is Economic: If the regulated activity is economic or commercial, Congress may consider the effects of the activity in the aggregate in finding that it has a substantial effect on interstate commerce (Wickard).

Regulated Activity is Not Economic: If the regulated activity is neither commercial nor economic, Morrison states that the Court has never allowed Congress to aggregate the effects of that activity to find a substantial effect on interstate commerce.

Scalia's Concurrence in Raich (Regulation of Non-Economic Activity): If the law is found to regulate non-economic activity, it might still be within the scope of the commerce power. Scalia in Raich argued that Congress may regulate an intrastate non-economic activity when doing so is essential to regulation of a larger economic activity. He explained that, under the Necessary and Proper Clause, Congress may choose any means, not prohibited by the Constitution, to carry out its express authority (McCulloch). Thus, Congress may reach intrastate, non-economic activity when such regulation is necessary and proper to the successful regulation of a larger interstate economic activity.

Basically, the reasoning in Raich went like this:

The majority in Raich (Stevens) found the regulated activity - cultivation of marijuana - to be "quintessentially economic." Therefore, Congress could aggregate the activity to find a substantial effect on interstate commerce, and we're done.

Scalia in Raich disagreed - he felt that intrastate cultivation of medical marijuana for personal use was not economic, and therefore, Congress could not aggregate the activity to find a substantial effect on interstate commerce. Nevertheless, he found that Congress - under the Necessary and Proper Clause - could reach intrastate, non-economic activity when doing so was necessary to the regulation of a larger economic activity (the larger economic activity itself must be within Congress' commerce power). In this way, Scalia's concurrence in Raich is actually more expansive of the commerce power than the majority's opinion.

[vanwinkle]

Clueless 0Ls aside, I am wishing this thread existed a week ago. If it had, I probably would have done far better on my Con Law final. 30% of my grade was based on a question that the useful answers in this thread could've helped with.

[Matthies]

[Dole is only studied in 1L casebooks for its effects on the Tax and Spend Clause. If you were a current law student you would know this. The Tax and Spend Clause power is discussed entirely independently of the Commerce Clause power, largely because they are separate enumerated powers. Nobody discusses Dole in Commerce Clause terms in Con Law. It only comes up as a Tax and Spend Clause issue.

While I agree with this in form, function is why law students get themselves in trouble for thinking highly edited snippets of cases mean anything other than what the casebook creator wants you to read them for. Let's not forget that one case, outside the neatly edited confines of LS casebooks, can and is cited for many different propositions of law. Only in casebook will the court seem to cover one issue, because, well all those ... mean the editors cut out everything else. Remember Dred Scott was a standing case, no longer the law, and is not included in casebooks for any of its original holdings. All I'm saying is why a case is in a specific section of casebook maters little outside the realm of that class, casebook and professor. You can and should cite any case in practice that includes the proposition your aiming at even if the casebook editors in LS thought a different case explained it better (and hce why they included it in the casebook). Or Person v. Post or hairy hand, no one but law students reads those damn cases as being anything ther than a teaching tool.

[bernie shmegma]

Oh. I'm assuming you're not a big proponent of them?

I'm not a big proponent of 0Ls reading them and then thinking they know the law. This is like a pre-med reading a book on surgery and then thinking he knows how to cut people open.

BTW I had no idea this was for current students

The forum is entitled "Forum for Law School Students".

In general though, and fwiw it still stands that Dole had a lot to do with Congress' commerce powers for those other 1L's who think otherwise. Granted, that may be a bit of a normative perspective/personal interpretation.

Dole is only studied in 1L casebooks for its effects on the Tax and Spend Clause. If you were a current law student you would know this. The Tax and Spend Clause power is discussed entirely independently of the Commerce Clause power, largely because they are separate enumerated powers. Nobody discusses Dole in Commerce Clause terms in Con Law. It only comes up as a Tax and Spend Clause issue.

This is why 0Ls should stay out of this forum.

How about the case itself?

[eth3n]

How about the case itself?

dude, take a hint

[Llewellyn]

--ImageRemoved--

[bernie shmegma]

[Dole is only studied in 1L casebooks for its effects on the Tax and Spend Clause. If you were a current law student you would know this. The Tax and Spend Clause power is discussed entirely independently of the Commerce Clause power, largely because they are separate enumerated powers. Nobody discusses Dole in Commerce Clause terms in Con Law. It only comes up as a Tax and Spend Clause issue.

While I agree with this in form, function is why law students get themselves in trouble for thinking highly edited snippets of cases mean anything other than what the casebook creator wants you to read them for. Let's not forget that one case, outside the neatly edited confines of LS casebooks, can and is cited for many different propositions of law. Only in casebook will the court seem to cover one issue, because, well all those ... mean the editors cut out everything else. Remember Dred Scott was a standing case, no longer the law, and is not included in casebooks for any of its original holdings. All I'm saying is why a case is in a specific section of casebook maters little outside the realm of that class, casebook and professor. You can and should cite any case in practice that includes the proposition your aiming at even if the casebook editors in LS thought a different case explained it better (and hce why they included it in the casebook). Or Person v. Post or hairy hand, no one but law students reads those damn cases as being anything ther than a teaching tool.

Yeah, I'm quite surprised at the level of conformity. Con law is not such a black and white issue. However, they are in the zone and securing the grade is what is on the mind. Still, interesting and slightly disappointing to hear that kind of rhetoric about Con Law class.

[vanwinkle]

While I agree with this in form, function is why law students get themselves in trouble for thinking highly edited snippets of cases mean anything other than what the casebook creator wants you to read them for.

I don't disagree with anything you said, and there is a big difference between reading the parts of cases you cover in class and the cases as a whole in practice. The point I'm making is just that this was asked in a forum for law students in what almost any 1L will recognize as a "I'm having trouble understanding a principle of Con Law" context, and dropping in and saying "I'm just a 0L but see this case that isn't at all used to discuss this problem in Con Law" is not a wise thing to do. In this setting it doesn't make any sense at all, that was my point.

Oh, and I went and looked up the full Dole opinion. The Commerce Clause is only ever named in the O'Connor dissent, the majority opinion doesn't even mention the word "commerce" once. There's no holding that has any bearing on the Commerce Clause at all in that case, and even if there was, the scope of the Commerce Clause has been defined since then by the holdings in the three cases OP asked about. As such it has no real value in understanding the current scope of the Commerce Clause; even looking at the whole case, like Bernie suggests, there's nothing relevant there.

[Llewellyn]

Furthermore, why would you want to even cite to a dissent in a 7-2 decision for authority?

[bernie shmegma]

Furthermore, why would you want to even cite to a dissent in a 7-2 decision for authority?

Because it was right. Also, it shows that the Commerce Clause is not completely irrelevant from Dole or the Taxing and Spending Clause. Now its me, a 0L and Justice O'Connor who know nothing about Con law vs. just me.

[Matthies]

[
Yeah, I'm quite surprised at the level of conformity. Con law is not such a black and white issue. However, they are in the zone and securing the grade is what is on the mind. Still, interesting and slightly disappointing to hear that kind of rhetoric about Con Law class.

Well its as balck and white as your professor thinks it is, but con law is so neblus that really have to edit the cases down to a specfic point, most of them would be well over 100 pages if they did not. And it seems many of them from I rember tend to be about milk and mud flaps on trucks. Also they were, at least to me exeedingly boring. the point of con law is not so much to teach you enough con law to make any kind of decent argument in a court case, but to show you how, and often how strangly, the constituitonal jurisprudance has evolved. All LS classes are like that though, you will read a bunch of cases that are either no longer good law, or just assine in todays terms, but put there to expalin how we got here, how you think like a lawyer, becuase that's what they are trying to teach you without ever actally teaching it to you.