Rearding Ernest Young's comment that "when it acts pursuant to Section Five, Congress
is supposed to be interpreting what the Constitution means and not just making policy;
therefore we want some assurance that Congress has actually done that interpretive
job, especially if we're going to defer to some extent (how much is debatable) to
Congress's interpretation,"
requiring that Congress clearly state when it is relying on its Section 5 power, in
light of the Court's admonition in Boerne that it, not Congress, is the ultimate
interpreter of 14th Amendment meaning, may be as much to ensure the Congress has NOT
"interpreted," or made, law. This Court seems particulary disinclined to defer to
Congressional interpretation (eg., substantial commercial effect).
-----Original Message-----
From: Ernest [mailto:[EMAIL PROTECTED]
Sent: Wed 10/15/2003 10:29 PM
To: [EMAIL PROTECTED]
Cc:
Subject: Re: FW from Eric Muller: RE: Puzzling cert grant
There's at least one example in which the Court is not willing to uphold
statutes under any possible enacting power: In Pennhurst and Gregory v. Ashcroft the
Court says that Congress must speak clearly to invoke its power to enforce the
Fourteenth Amendment; otherwise, it will be assumed to have acted under some other
power. The reason appears to be that Section Five is thought to be uniquely intrusive
on state autonomy, so that we expect some extra measure of deliberation before
Congress uses it. One might add that when it acts pursuant to Section Five, Congress
is supposed to be interpreting what the Constitution means and not just making policy;
therefore we want some assurance that Congress has actually done that interpretive
job, especially if we're going to defer to some extent (how much is debatable) to
Congress's interpretation. So I think the clear statement required to invoke Section
Five makes sense.
It's not at all clear that any of the same reasons apply to the choice between
the spending power and the commerce power. If I were going to argue that they should
(which I haven't thought much about), I'd start by pointing out that we haven't done a
very good job of coming up with other, substantive limits on the spending power, so
imposing a procedural hurdle in the form of a clear invocation requirement would cut
back on the extent to which that power can undercut limits on the other powers, like
commerce. And I would think that people in favor of broad constructions of Congress's
power would prefer that minimal hurdle to a more ambitious attempt to cabin the
spending power with hard substantive limits.
Ernie Young
-----Original Message-----
From: Samuel Bagenstos <[EMAIL PROTECTED]>
To: [EMAIL PROTECTED]
Date: Wed, 15 Oct 2003 21:44:40 -0400
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)
