In general, as-applied challenges are disfavored in the commerce clause area. The
Court has held that the validity of a challenged provision under the commerce clause
depends upon the aggregate effect of that provision on commerce, and that the
diminimis impact of any particular application does not matter. That principle
remains viable, at least as to provisions regulating non-commercial activity,
post-Lopez. Notice that while we normally think of a preference for as applied
challenges as involving judicial deference to democratic branches, in this area, the
reverse is true. The insistence of cumulative facial analysis aims to protect
Congressional power from too much judicial intrusion.
David M. Driesen
Associate Professor
Syracuse University College of Law
E.I. White Hall
Syracuse, NY 13244-1030
(315) 443-4218
Fax (315) 443-4141
[EMAIL PROTECTED]
>>> [EMAIL PROTECTED] 07/30/03 10:03AM >>>
MessageYes, it works both ways. Just as the Court can single out certain applications
to uphold as within Congress's power (e.g., Salinas, Raines); it can also invalidate
only certain "portions," or applications, of statutes challenged on congressional
power grounds. In addition to Morrison, that also describes, e.g., Garrett, in which
the Court invalidated ADA title I but left ADA title II for another day. Why didn't
the Court instead look at whether the ADA as a whole was "proportional and congruent"?
The ADA title II question is now before the Court (Tennessee v. Lane, No. 02-1667),
and one question in that case may be whether the Court can or will evaluate the
section 5 power to enact title II only as to certain "applications" (in that case,
access to court proceedings), while leaving other applications (sidewalks, drivers'
licenses, etc.) for another day.
----- Original Message -----
From: Conkle, Daniel O.
To: [EMAIL PROTECTED]
Sent: Wednesday, July 30, 2003 9:50 AM
Subject: Re: Lopez and "as applied" considerations of congressional power
Cf. Morrison's invalidation of Congress's attempt to reach private action under the
Violence Against Women Act, without any discussion of whether, as applied to the state
university defendants, the statute might be within Congress's power under Sec. 5 of
the 14th Am.
Dan Conkle
**************************************
Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana 47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
**************************************
-----Original Message-----
From: Marty Lederman [mailto:[EMAIL PROTECTED]
Sent: Tuesday, July 29, 2003 8:35 PM
To: [EMAIL PROTECTED]
Subject: Re: Lopez and "as applied" considerations of congressional power
According to the SG's brief, Lopez was a twelfth-grade student who was apprehended
at school carrying an unloaded .38-caliber revolver and five cartridges. Lopez
purportedly told local and federal agents that he had received the revolver from
another person to hold during the school day for delivery to a third person after
school, for use in a gang war.
I assume Professor Lipkin's implicit question is why the Court did not discuss
whether the Gun Free School Zones Act was constitutional as applied to Lopez himself.
The simple -- perhaps too simple -- answer is that the statute itself was indifferent
to whether the possession was with intent to sell, whether the defendant had an intent
to transfer or to facilitate a gang war, whether the gun had travelled in interstate
commerce, whether the crime affected interstate commerce, etc.: The law permitted
conviction based on evidence (beyond a reasonable doubt) of possession near a school,
without more. And presumably that's what the indictment in Lopez charged, and what
the trial court found. (Lopez waived his right to a jury trial.)
Therefore, there simply was no factual finding, beyond a reasonable doubt or
otherwise, regarding the purpose of Lopez's possession (or from where the gun had
traveled, what it was to be used for, etc.). In that circumstance, it would be
strange for an appellate court, reviewing the conviction, to hold that the statute was
constitutional as applied.
Strange, but not unheard of: That's exactly what the (unanimous) Supreme Court
did in Salinas v. United States, 522 US 52 (1997). In that case the Court avoided
deciding whether the federal bribery statute, 18 U.S.C. 666 -- which does not require
the Government to prove the bribe in question had a demonstrated effect upon federal
funds -- is beyond Congress's Spending Clause power. The Court instead affirmed the
conviction in Salinas "as applied," id. at 60-61: "[T]here is no serious doubt about
the constitutionality of section 666(a)(1)(B) as applied to the facts of this case.
Beltran was without question a prisoner held in a jail managed pursuant to a series of
agreements with the Federal Government. The preferential treatment accorded to him was
a threat to the integrity and proper operation of the federal program. Whatever might
be said about [the law's] application in other cases, the application of [section 666]
to Salinas did not extend federal power beyond it!
s proper bounds." What's really remarkable about Salinas is that there was no
finding of fact in the trial court, nor any instruction to the jury that it had to
find, that "[t]he preferential treatment accorded to [Beltran] was a threat to the
integrity and proper operation of the federal program." That's precisely what section
666 did not require the government to prove -- which was why there was a
constitutional challenge in the first place (or, more precisely, why there was an
argument that the Constitution compelled a narrowing statutory construction that the
Court rejected).
Why didn't the Court in Lopez similarly hold something like the following?:
"[T]here is no serious doubt about the constitutionality of [the GFSZA] as applied to
the facts of this case. Lopez without question possessed the gun with the intent to
distribute it for purposes of a gang war. Whatever might be said about [the law's]
application in other cases, the application of [the Act] to Lopez did not extend
federal power beyond its proper bounds." Perhaps because the Government in Lopez did
not ask the Court for such an "as applied" holding; nor did the Government even ask
the Court to remand the case for retrial on the questions of, e.g., the purposes of
Lopez's possession, whether the gun had crossed state lines, etc.
The short answer, from a practical perspective, is that the Court will analyze the
statute "as applied," and will avoid the "facial" question of Congress's power, if and
when it wants to do so. (There is virtually no discussion in the Court's cases
concerning whether and under what circumstances the Court should consider questions of
congressional authority "as applied.") Compare, e.g., Florida Prepaid, in which the
Court majority in effect ignored Justice Stevens's argument, 527 U.S. at 654, that the
federal patent statute was constitutional as applied to willful (and thus
unconstitutional) state infringements, as alleged in the particular case, with U.S. v.
Raines, 362 U.S. 17, 24-25 (1960) (Civil Rights Act of 1957 was proper Fifteenth
Amendment enforcement legislation as applied to state official, even though statute on
its face did not distinguish between public and private defendants).
----- Original Message -----
From: Robert Justin Lipkin
To: [EMAIL PROTECTED]
Sent: Tuesday, July 29, 2003 7:57 PM
Subject: Lopez's Fateful Day at School
I seem to remember reading recently that respondent Lopez carried the gun
to school that fateful day in order to sell it. Can anyone verify this? If so, why
wasn't this at least mentioned in the majority and dissenting opinions? Off-list
replies are fine.
Bobby Lipkin
Widener University School of Law
Delaware
