Re: Lopez and as applied considerations of congressional power
Title: Message
Yes, it works both ways. Just as the Court
can single out certain applications to upholdas 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 PMTo: [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 schoolcarrying an
unloaded .38-caliber revolver andfive 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
wasno 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 exactlywhat the (unanimous) Supreme Court did in
Salinas v. United States, 522 US 52 (1997). In that case the
Courtavoided deciding whether the federal bribery statute, 18 U.S.C.
666 -- whichdoes 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 jailmanaged 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 its proper bounds." What's really remarkable about
Salinas is that there was nofinding of fact in the trial
court, nor any instruction to the jury that it had tofind, 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 didnotrequire the
Re: Lopez and as applied considerations of congressional power
But that is circular. The only reason why cumulative facial analysis protects congressional power from too much judicial intrusion is because few statutes are held facially unconstitutional, and few statutes are held facially unconstitutional because their effects are aggregated. If more statutes were held unconstitutional under the commerce clause on their face, then there would be much more pressure to conduct as-applied challenges instead of facial challenges. Consider what would happen if the commerce clause rule was used in first amendment jurisprudence. The court could aggregate all of the valid applications of a statute to justify the facial validity of a statute, then ignore particular invalid applications as de minimis. That is a bad rule because it tolerates the unconstitutional applications of statutes, but is equally bad for the commerce clause and the first amendment. At 11:41 AM 7/30/2003 -0400, you wrote: 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]
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 schoolcarrying an unloaded .38-caliber revolver andfive 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 wasno 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 exactlywhat the (unanimous) Supreme Court did in Salinas v. United States, 522 US 52 (1997). In that case the Courtavoided deciding whether the federal bribery statute, 18 U.S.C. 666 -- whichdoes 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 jailmanaged 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 its proper bounds." What's really remarkable about Salinas is that there was nofinding of fact in the trial court, nor any instruction to the jury that it had tofind, 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 didnotrequire the government to prove -- which waswhy there was a constitutional challenge in the firstplace (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 Courtfor such an "as applied" holding; nor did the Government even ask the Courtto 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, withU.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
