Today in Supreme Court History: November 8, 1994

11/8/1994: U.S. v. Lopez argued.

Edison High School, San Antonio

Comments

[Dan Schiavetta]

Greene v. Fisher, 565 U.S. 34 (decided November 8, 2011): “clearly established federal law” required for habeas does not include law established by Court in decision announced after state appeals on facts are exhausted

United States v. Olson, 546 U.S. 43 (decided November 8, 2005): Federal Tort Claims Act allows only for torts for which state law holds private parties (not governmental entities) liable, and court must determine if state law provides private law analogies for the duties of governmental entities (here, mine inspectors)

U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (decided November 8, 1994): federal courts don’t automatically vacate judgments simply because a settlement has been reached; appeal dismissed as moot, so judgment stands (one imagines that the paying party didn’t want to have a Satisfaction of Judgment filed because it might be seen as admitting liability)

[John F. Carr]

The settlement case reminds me of something that's been on my mind the last couple days. Donald Trump is likely to pardon the January 6 crowd. Those who have not yet been sentenced go as free as Sheriff Joe. Those whose appeals have run out are set free with a conviction still on their record. Those whose sentences are still on appeal are no longer fighting to stay out of prison. It's almost a moot case. The judgment itself is probably enough to make the case not moot. If they visit the Capitol in 2029 it will be a second offense. Trump will order the Justice Department not to fight the appeal, or even to confess error. Concession does not guarantee a win by the appellant. The judgment of the trial court is still in place until vacated. What will the panel do?

And for bonus points, how many career Justice Department officials will resign?

[Bob from Ohio]

"conviction still on their record."

An unconditional pardon means a complete restoration of rights. Its like no conviction occurred.

[John F. Carr]

It is my understanding that a pardoned conviction counts as a prior conviction if they get in trouble again. If there's such a crime as Second Offense Aggravated Touristing, they can get hit with it in 2029. Or more plausibly, the sentencing guidelines would consider them to have a criminal history if they are convicted of another federal crime. Prior convictions should be disregarded if they were expunged, "reversed or vacated because of errors of law or because of subsequently discovered evidence exonerating the defendant", or "have been ruled constitutionally invalid."

[Bob from Ohio]

"pardoned conviction counts as a prior conviction if they get in trouble again"

I don't see how that can be.

Ex parte Garland, 71 U.S. 4 Wall. 333 333 (1866)"

"A pardon reaches both the punishment prescribed for the offence and the guilt of the offender, and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that, in the eye of the law, the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity."

[John F. Carr]

See

https://ccresourcecenter.org/state-restoration-profiles/federalrestoration-of-rights-pardon-expungement-sealing/#II_Pardon_policy_practice

for more modern cases with a less rosy outlook for the pardoned criminal.

[Dan Schiavetta]

"And for bonus points, how many career Justice Department officials will resign?"

The dilemma will be the same as it was during the first Trump Administration: either resign, or wait to be fired the minute you do something in your professional expertise which Trump considers disloyal.

[John F. Carr]

Were there many losses among career prosecutors?

I would hesitate to take a political appointment in a Trump administration because I would likely be asked to do him a legally questionable favor.

[Dan Schiavetta]

Indeed.

As someone put it, Trump won't get any takers among the A, B or C teams, so he has to reach further down.

[JoeFromtheBronx]

I'm warily supportive of the result of U.S. v. Lopez, but largely because its reach is so narrow.

I don't think the economic/non-economic line alone will get you there. Commerce and regulations necessary and proper to enforce it is not so simply devised. Also, I agree with much of the dissents. The courts should have a limited role in line drawing here. Constitutional lines are protected in many ways.

A "federal hook" will reasonably be present for probably most gun crimes near schools. I realize many supporters of the ruling will disagree with me on the details. The Affordable Care Act Cases, to be clear, is surely not this case.

I also think there is a Second Amendment interest here. The 2A respects the power of states to regulate their militia & gun laws. Granting at some point federal interests will be at stake that can be regulated, gun policies outside of local schools do have a 2A/federalism aspect. The case is therefore complicated.

[Dan Schiavetta]

"The 2A respects the power of states to regulate their militia & gun laws."

Actually it is based on the accepted fact that militias are entirely within the control of the states. At least that's how it was when 2A was adopted. Militias, in that sense, no longer exist.

[Aubrey LaVentana]

Militias are, but individual arms ownership isn't.

[Bob from Ohio]

"Militias, in that sense, no longer exist."

Not true, several states {NY and Florida for instance" have "State Guards" totally under state control and not part of the National Guard.

"The New York Guard (NYG) is the State Defense Force (SDF) of New York State, and is one of the four branches of the New York Military Forces (NYMF). Originally called the New York State Militia, it can trace its lineage back to the American Revolution and the War of 1812.[2]"

"Organized under New York State Military Law, the New York Guard cannot be federalized at any time and cannot be deployed outside New York State without the consent of the governor. "
wikipedia

[JoeFromtheBronx]

The federal government has power over the militia as well, including the president being commander-in-chief when it is called for federal service. Such led to concerns & the 2A.

[Krayt]

A “federal hook” will reasonably be present for probably most gun crimes near schools. I realize many supporters of the ruling will disagree with me on the details

Policy is different from constitutional propriety, and putting the cart before the horse.

It's also a symptom of the power hungry training you to look to the federal government first, which benefits their power growth.

[JoeFromtheBronx]

Policy is different from constitutional propriety

A "federal hook" is an authorized federal use of power. It factors in constitutional propriety.

It’s also a symptom of the power hungry training you to look to the federal government first, which benefits their power growth.

The presence of a federal hook does not necessarily mean it is a good policy. It is not shown that I "look to the federal government first." It is a question of what is potentially possible.

[Brett Bellmore]

Lopez was a magic words case; Congress had neglected to include a Congressional "finding" of impact on interstate commerce, and the Court refused to infer one for them.

The law was reenacted with that finding. It has not subsequently been reviewed by the Court because federal prosecutors have been VERY careful not to generate any test cases, especially since Heller. I suppose you'd need a federal prosecutor cooperating with the challenge to get that test case.

Prior to Rahimi I'd have been very confident how that challenge would turn out...

[Noscitur a sociis]

Lopez was a magic words case; Congress had neglected to include a Congressional “finding” of impact on interstate commerce, and the Court refused to infer one for them.

As has been repeatedly pointed out to you, the key part of the amended statute wasn’t the congressional findings: it was the change that only applied the restriction to a gun “that has moved in or that otherwise affects interstate or foreign commerce”

It has not subsequently been reviewed by the Court because federal prosecutors have been VERY careful not to generate any test cases, especially since Heller.

And as you’ve also been informed repeatedly, this is just false. There have been lots of prosecutions since Lopez, which have generated lots of appellate decisions, all of which have held that the revised statute is constitutional. At this point, it’s hard to conclude that you’re not simply lying.

[ReaderY]

I continue to think Gonzalez v. Raich was wrongly decided, and the United States cannot regulate
simple possession of an object with no intention to sell or distribute it, whether or not that object may have once passed through interstate commerce.

Farmer Filmore ran a commercial farm and sold most of his grain out of state. Angel Raich did no such thing, and had no connection to interstate commerce whatsover.

[Noscitur a sociis]

and the United States cannot regulate simple possession of an object with no intention to sell or distribute it, whether or not that object may have once passed through interstate commerce.

I’m sure you do think that, but it’s at best orthogonal to the issue in Raich.

[Noscitur a sociis]

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