Sabri and 18 USC 666 -- Commerce Clause Legislation?

[Marty Lederman]

A bit of doctrinal ballast for Sam's points 2 through 4:   1.  "The question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise."  Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948).  Indeed, in Lopez itself, Congress had not invoked the Commerce Clause as the source of its power to pass the Gun Free School Zones Act.  Similarly, the United States has successfully invoked the Commerce power to defend the constitutionality of the anti-bootlegging prohibition of 18 U.S.C. 2319A, even though Congress's express source of authority was the Copyright Clause.  See U.S. v. Moghadam, 175 F.3d 1269, 1275 n.10 (CTA11 1999), cert. denied, 529 U.S. 1036 (2000).   2.  The plurality opinion in Fullilove (for whatever that's worth) reasoned that to the extent Congress could have acted pursuant to its Commerce Power, then a fortiori an exercise of its Spending power is permissible.   The plurality explained that the Public Works Employment Act of 1977 "by its very nature, is primarily an exercise of the Spending Power."  448 U.S. at 473.  The plurality found it unnecessary to "explore the outermost limitations on the objectives attainable through such an application of the Spending Power," because it was of the view that "[t]he reach of the Spending Power, within its sphere, is at least as broad as the regulatory powers of Congress," and therefore if pursuant to its Commerce power "Congress could have achieved the objectives of the MBE program, then it may do so under the Spending Power."  Id. at 475.  The plurality then went on to explain that "[h]ad Congress chosen to do so, it could have drawn on the Commerce Clause to regulate the practices of prime contractors on federally funded public works projects."  Because "[i]nsofar as the MBE program pertains to the actions of private prime contractors, the Congress could have achieved its objectives under the Commerce Clause," the plurality concluded "that in this respect the objectives of the MBE provision are within the scope of the Spending Power."  Id. at 476.   3.  [This in response to Professor Young's post:]  Even in the context of Congress's section 5 power, the Court has not disclaimed the force of the Woods v. Miller principle.  Thus, for example, in the Hibbs case last Term, the Petitioners argued that the Family Medical Leave Act was in truth Commerce Clause legislation and that Congress had not suffiiciently invoked section 5.  The Court rejected that argument in footnote 1 of its opinion.  But even if Congress had nowhere cited section 5 (or the Equal Protection Clause), the United States also offered the following argument in the alternative:   "Petitioners' argument (Br. 21-27) that Congress did not invoke Section 5 with sufficient clarity erroneously presupposes some obligation on the part of Congress to identify the source of authority for its legislation. Nothing in the text of the Constitution or this Court's decisions requires that. See Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948) ('The question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.').  To the contrary, this Court has squarely held that Congress need not 'anywhere recite the words "section 5" or "Fourteenth Amendment" or "equal protection."'  EEOC v. Wyoming, 460 U.S. 226, 243 n.18 (1983). Rather, 'congressional legislation [may be] defended on the basis of Congress' powers under §§ 5 of the Fourteenth Amendment' if the Court is 'able to discern some legislative purpose or factual predicate that supports the exercise of that power.' Ibid." (emphasis added)   4.  I can't speak to judicial stamina, but even back in the days before the Web and Westlaw, the Court stated that where a party "questions the power of congress to pass the law under which the indictment was found . . . [i]t is . . . necessary to search the constitution to ascertain whether or not the power is conferred."  U.S. v. Harris, 106 U.S. 629, 636 (1883).     ----- Original Message ----- From: Samuel Bagenstos To: [EMAIL PROTECTED] Sent: Wednesday, October 15, 2003 9:44 PM Subject: Re: FW from Eric Muller: RE: Puzzling cert grant I don't know whether anyone particularly cares about this issue, but I have to say I find these arguments underwhelming. 1.  The first point (Congress might not have been able to enact the statute under another power) rests on a dubious empirical premise that Members of Congress pay any attention to which of several possible powers they're enacting a statute under.  Lots of the time, statutes don't specify the power(s) that justified their enactment, and I know of no doctrine that says Congress has to so specify.  (Sometimes statutes do so specify -- e.g., the ADA, which says Congress intended to invoke "the sweep" of its authority, "including" the Section 5 and Commerce powers -- but it's certainly not required.)  I can't remember a time (though my memory obviously doesn't cover everything in the world) when a bill was held up in Congress because, say, one set of interests wanted to justify the bill under the patent power but another wanted to justify it under the commerce power.  Certainly, sometimes Members of Congress will object to bills that impose unfunded mandates on states; in those cases, provisions guaranteeing additional federal funding might be necessary to get the bills passed.  But that's different from saying it was politically possible for Congress to enact sec. 666 -- which contains no federal funding stream of its own -- so long as Congress understood the statute as Spending Clause legislation, but that Congress would not have passed the same law, with precisely the same coverage, if the statute were thought of as Commerce Clause legislation.  Based on what I know about Congress, the latter scenario seems implausible.  (Though I could be wrong, and I'd be very interested to hear examples of cases where that kind of distinction has mattered politically.) 2.  I don't know why it would be outside the scope of the judicial power or akin to an advisory opinion for a court to consider any argument the government makes in litigation to defend the constitutionality of an Act of Congress that has been challenged as exceeding Congress's power.  If the defendant says a statute like 666 exceeds congressional authority under the Spending Clause, and DOJ says Congress had power to enact the statute under the Commerce Clause, where's the advisory opinion when a court adjudicates DOJ's claim on the merits?  It's not like anyone's asking a reviewing court to hunt through every congressional power in the Constitution (Is sec. 666 a proper exercise of Congress's power to enforce the 23d Amendment?  No.  Is it a proper exercise of the postal power?  Congress's power under the Militia Clauses?  etc.) even if it hasn't been asserted in litigation.  The argument is that reviewing courts must consider all possible powers that are tendered to them in support of congressional enactments that have been challenged -- even if Congress did not itself recite those powers. 3.  It seems to me the antithesis of "deference to the political branches" for a reviewing court to invalidate a federal statute in a case where Congress clearly had power to enact the statute but just didn't recite that power when it enacted it.  I would think that a court best defers to Congress by looking for ways not to invalidate Congress's work product.  (Which is not to say that I think deference to the political branches is in general a good or a bad approach for a constitutional court in our system -- just that I think the deference argument cuts the other way here.) 4.  I have a lot of faith in the stamina of our judges -- I don't think they'll get too tired. At 04:35 PM 10/15/2003 -0500, you wrote:         Well, one would be that Congress might not have been able, politically, to enact the statute on one or more other available powers, and therefore shouldn't be able to rely upon them.  Second, a reviewing court should not have to undertake a roving examination of all possible constitutional provisions, and judge constitutionality under each, for to do so would be outside the ordinary scope of the judicial power (perhaps even akin to an advisory opinion), it would foreclose the judicial power being exercised narrowly and with deference to the political branches, and it would be downright tiring.   Randy Bezanson At 04:18 PM 10/15/2003, you wrote:         As to Congress being able to enact the same statute under the Commerce Clause, the answer is likely:  perhaps so, but it doesn't matter, for Congress picked the Spending Power quite specifically, and having done so Congress is stuck with the enumerated power it selected.  It's not hard to think of good reasons why this should be so. Just wondering, what are those good reasons? Samuel Bagenstos Assistant Professor of Law Harvard Law School Cambridge, MA  02138 (617)495-9299 (voice) (617)496-4867 (fax)