I'd be more sympathetic to the political obstacle point if the choice of a particular power on which to ground the law had some effect on the coverage or substance of the law. So I can understand why it might be possible to say that the statute invalidated in Lopez can't be justified as applied to the District of Columbia under the "exclusive legislation" clause -- even though that clause plainly gives Congress power to adopt a gun-free school zones law for D.C. To me, that's essentially a question of severability: Would Congress have intended for the statute to be upheld only as applied in D.C. (and presumably the territories) if it could not be upheld as applied in the states? Under traditional severability principles, the answer might well be no. We presume Congress wouldn't have wanted the statute to apply in only a small set of cases defined by a principle that is essentially random with respect to the underlying purpose of the statute. But where the choice of a particular power has no substantive effect on any application of the statute, I can't imagine Congress would care. Again, I could be wrong, but I'd like to see an example where the mere choice of power -- absent some kind of substantive effect -- mattered to Congress.
Maybe this is a false distinction: We only care about the choice of power because we think that the statute is more likely to be upheld under one power than another, so opponents of a statute like 666 may have agreed to go along with it as Spending Clause legislation, knowing that it would be invalidated if the government sought to justify it on that ground. The pro-666 people get a symbolic victory; the anti-666 people get a good chance to get the statute wiped off the books. This kind of gamesmanship seems plausible to me (although I don't know whether it's happened) with some kinds of legislation but not others. (So I could see opponents of the Civil Rights Act of 1964 -- or, to bring matters up to date, an "ADA Restoration Act" -- saying they'd go along only if the statute were justified as Section 5 legislation. But it doesn't seem like a plausible scenario for a statute like 666.)
I take Prof. Bezanson's judicial power point. But I think there are two separate questions here: what powers the court can consider when a statute is challenged, and how broadly will the court write its opinion when it considers those powers. So a pro-restraint person shouldn't have had a problem if the Lopez Court had considered every potentially relevant power that might justify the Gun-Free School Zone Act; such a person should have had a problem if the Court had opined broadly on the limits of those powers in ways that were not necessarily relevant to the particular case.
Anyway, it's clear I find this issue entirely more interesting than I probably should, so I should probably leave it here.
At 09:08 AM 10/16/2003 -0500, you wrote:
Actually, I do care about the issue and find the discussion quite interesting. I said there were "Good reasons," but not that they were obviously right or that there weren't good reasons to the contrary. Here, though, are a few additional thoughts:
1. I don't think it should be too quickly assumed that Congress would have passed the law under the Commerce power. It is, as Rick Garnett says, a law with quite a broad potential reach, and if such a law, free-standing from federal money concerns under the Spending Clause, were offered straight up as a sound policy under the Commerce Clause, I think there would likely be serious political obstacles to enactment. Does this mean that Congress just didn't know what it was doing in section 666? Maybe.
2. Sam Bagenstos is not convinced about scope of judicial power implications raised by a rule that a law stated to rest on one constitutional power should, if invalid under that power, be valid as long as a court can find another power to support it. My point wasn't that looking for and resting a decision on another power would necessarily exceed Art III judicial powers, but instead that it would greatly expand a court's ordinary exercise of power in a case or controversy. Under such an exercise of power, for example, might this Court have begun and finished the federalism revolution in just one or two fell swoops, using a case, say like Lopez, to opine on a list of potentially relevant powers and decide, with each, what the limits on those powers are in re: federal legislation that interferes with state sovereignty? Perhaps I'm missing something, but that propspect doesn't strike me as appealing, and it seems out of line with the idea that the powers of the nonelected branch should be limited -- a function performed in part, and surely imperfectly, by Art III concepts of case and controversy, adverseness, and the like.
Randy Bezanson
University of Iowa
At 08:44 PM 10/15/2003, you wrote:
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)Samuel Bagenstos
Assistant Professor of Law
Harvard Law School
Cambridge, MA 02138
(617)495-9299 (voice)
(617)496-4867 (fax)
