Monday, November 20, 2006
Wickard v. Filburn: The Bane Of My Existence
Current mood: drained
Category: Jobs, Work, Careers
I had to do this assignment on the Interstate Commerce Clause for my Constitutional Law class. This is what I posted. The stuff in italics is from the assignment page, included for your convenience.
A federal court inclined to uphold a statute based on the commerce power would resort to the standard set forth in WICKARD v. FILBURN, as did the court in RAICH v. GONZALES, which easily justifies even the most whimsical and Kafkaesque of Congressional intrusions into any citizen’s daily reality. Under the WICKARD standard, I couldn’t make a peanut-butter and jelly sandwich that was beyond the reach of Congress. If Congress passed a statute mandating that all persons engaged in the manufacture of peanut-butter and jelly sandwiches shall henceforth spread peanut-butter of both slices of bread before applying the jelly between the two, a court inclined to uphold this statute would simply note that while the manufacture of a single one-sided peanut-butter and jelly sandwich may not itself have a great economic effect, the manufacture of all such sandwiches in the aggregate would minimize the demand for peanut-butter interstate, and thereby greatly affect interstate commerce in peanut-butter. BINGO. Q.E.D.
UNITED STATES v. LOPEZ limited the commerce power to reach only (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce, and (3) those activities that substantially affect interstate commerce. Under LOPEZ, entering within 1000 feet of a school while carrying a concealed jar of peanut-butter would NOT be an activity that substantially affects interstate commerce for the purpose of the Commerce Clause. The making of a PB&J sandwich, however, would still be fair game.
UNITED STATES v. MORRISON introduced factors for determining which activities ‘substantially affect’ interstate commerce. These factors are (1) the economic or commercial nature of the activity, (2) whether Congress included a jurisdictional element in the statute, (3) whether Congress included any findings regarding the activity’s effect on interstate commerce, and (4) the nexus between the regulated activity and the substantial effect on commerce. Here, the constitutionality of the peanut-butter sandwich statute is no longer impervious to argument, but such arguments would likely fail, especially if sandwiches generally were regulated in some sort of vast monolithic scheme, itself likely based on the commerce clause and impervious to argument by virtue of its ubiquity.
How would a federal court inclined to uphold each of these statutes explain its conclusion that the act is a valid exercise of Congressional power, and different from the laws struck down in Lopez and Morrison (and if appropriate, like the law upheld in Raich v. Gonzales)?
The federal carjacking statute prohibits the taking of “a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce . . . by force and violence or by intimidation” and while in possession of a gun. The carjacking statute contains a jurisdictional element requiring proof that the car was “transported, shipped, or received in interstate . . . commerce.” Congress made express findings of the effects of carjacking on interstate commerce, and that carjacking is itself a systematic criminal activity that substantially affects the interstate and foreign commerce of automobiles and the interstate commerce of automobile insurance. Carjacking may also deter interstate travel.
A court inclined to uphold the statute in Example 1 would argue that the statute contains a clear jurisdiction-limiting element and express findings of the substantial effects on interstate commerce. The activity also has a relatively close nexus to a substantial economic or commercial effect because the car itself is a commercial good that (a) must be replaced and (b) may be re-sold.
The Child Support Recovery Act of 1992 punishes parents who “willfully fail  to pay a past due support obligation with respect to a child who resides in another State.” The statute thus enforces an obligation to transfer funds from one state to another, and regulates only debts that cross state lines. Previously and subsequent to the CSRA, Congress has regulated child support collection extensively and made findings about the difficulty states have in collecting child support and the large economic consequences of inadequate child support collections. Unlike the CSRA, most other (extensive) federal regulation in the area of child support has involved Congress’ unquestioned power under the Spending Clause. In the past, Congress simply has adopted a variety of conditions related to child support collection that states must satisfy in order to receive federal contributions to state welfare programs (i.e. federal funding via the federal Temporary Assistance to Needy Families Act).
A court inclined to uphold the statute in Example 2 would argue that the activity involved is essentially economic, that the jurisdiction is limited to interstate transfers, that Congress has made findings about the large economic consequences of inadequate child support collections, and that child support collection is a part of a comprehensive regulatory scheme.
The Freedom of Access to Clinic Entrances Act of 1994 imposes civil and criminal penalties on any person who “by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with . . . any person . . . in order to intimidate such person or any other person . . . from[ ] obtaining or providing reproductive health services.” The Access Act rests on extensive legislative findings. These findings include evidence that “[v]iolence surrounding the clinics has caused a large number of clinics to close, has reduced the amount of services and/or raised the price of services provided by other clinics, and has disrupted consumers’ access to services the consumers’ desire to purchase”; [t]he increasing violence surrounding clinics is nationwide in focus” and that “existing [state] laws are inadequate to redress these problems.” Congress found that “[s]ome jurisdictions have refused to respond at all to clinic violence and blockades,” while others “have found it difficult if not impossible to reach across state lines to prosecute the individuals or groups responsible for planning the actions.” You should assume that there is general agreement that a) the clinics and personnel who provide reproductive health services are engaged in economic or commercial activity (health care is the largest industry in the United States) and 2) the clinics and personnel who provide reproductive health services participate in interstate commerce in a wide variety of ways, including by purchasing goods and services from out of state; hiring employees on a national rather than a local basis; and providing a significant volume of services to consumers from other states.
A court inclined to uphold the statute in Example 3 would argue that Congress has made findings regarding the substantial effect on interstate commerce, and that there is a relatively close nexus between the prohibited activity and its commercial consequences because the activity would immediately prevent a commercial transaction.
Based on the Lopez/Morrison/Raich framework, what arguments could a challenger of these statutes make against their constitutionality?
A challenger to the statute in Example 1 would argue that the taking of an automobile is not a commercial activity and that the activity has a relatively tenuous relationship to a substantial interstate commercial effect because the action is local and does not directly cause the purchase or sale of any motor vehicle.
A challenger to the statute in Example 2 would argue that a one-way transfer of funds, while arguably an “economic” activity, is not a “commercial” activity for the purposes of the Commerce Clause.
A challenger to the statute in Example 3 would argue that the statute contains no jurisdiction-limiting elements, that the activity is not commercial in nature and has a relatively tenuous relationship to any substantial interstate commercial effect because the effect of such actions would be immediately local.
Finally, rank the three statutes in terms of the likelihood that a challenger would succeed, and explain your prediction.
I’ll say at the outset that I doubt that any of these challenges would succeed.
The challenger would be least likely to succeed against the statute in example 2. The regulatory scheme would be near impossible to break, and the economic and juristictional elements are well defined.
By virtue of the aggregation argument employed in RAICH, I find the “tenuous relationship” arguments to be unpersuasive in both of the remaining examples. The economic effects of these activities are better defined than those of the activities in LOPEZ (carrying a gun near a school) and MORRISON (beating women). Although I find the “tenuous relationship” argument in Example 3 to be less unpersuasive, the statute in Example 3 lacks a jurisdiction-limiting element.
On the other hand, the jurisdiction-limiting element in Example 1 seems rather contrived and largely unrelated to the proscribed activity.
At length, I’d have to say that, due to the lack of a jurisdiction-limiting element, a challenger would have the best shot against Example 3.
However, if I were allowed to include some outside suspicions and speculation, I’d change this answer and say that the challenger would have the best shot against Example 2 because Example 3 has the aura of a Domestic Terrorism statute….
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