That's right -- it's a double-edged sword in
these congressional power cases. Whereas in some cases (e.g.,
Salinas; Raines; the Stevens dissent in Florida
Prepaid) it might benefit the U.S./plaintiff/Congress for the Court to
address, and validate, the statute "as applied," that tactic
runs the risk of the Court in other cases invalidating the
statute as applied, even where it affirms (or does not reach) the facial
constitutionality of the law. This risk is the most likely explanation for
the position of the U.S. in last Term's (withdrawn) ADA case, Hasen,
that the Court should review title II as a whole
under section 5, rather than independently
analyzing whether Congress’s coverage of licensing, in
particular, was proportional and congruent. See pp. 7-9 of
http://www.usdoj.gov/osg/briefs/2002/3mer/2mer/2002-0479.mer.aa.pdf. (Recall that in that case it was the State (California)
that was urging an "as applied" analysis, in hopes that the Court
would be especially likely to invalidate in the particular context.) The
SG wrote that "the congruence and proportionality
test is not a license for judicial micromanagement of every potential
application of a law. . . . [T]his Court has
never insisted that Congress justify its prohibitions
application-by-application."
----- Original Message -----
From: "David Driesen" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Wednesday, July 30, 2003 11:41
AM
Subject: Re: Lopez and "as applied" considerations
of congressional power
>
> 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
