Today in Supreme Court History: November 8, 1994

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

Edison High School, San Antonio

Comments

[Old Smokin' Egg]

It was going so well. In Lopez, the Supreme Court started taking steps to put some limits around Commerce Clause power; and later, in Morrison, they furthered the process. But then came Raich, and Scalia let his visceral dislike for recreational drugs overcome his committment to federalism, and conclude that Wickard v. Filburn must've been OK after all.

Will we see something like this again in the 2020s? During Biden's term, SCOTUS looked like they were starting to take seriously the non-delegation and major-questions doctrines. But will they continue to do so now that it's Trump rather than a Democrat wielding the executive power; and, if they decide that Presidential rule by ukase is OK, will Prof. Blackman explain that it's exactly what the Founders had in mind?

[JoeFromtheBronx]

U.S. v. Lopez had a symbolic flavor.

It is rather easy to manage to have a "jurisdictional hook" connected to interstate commerce (or some other enumerated power) that meets the terms of this case.

The dissents also made a strong case. It does not require a game of Kevin Bacon or "inference on inference" to determine that threats to educational institutions threatens interstate commerce.

The Commerce Clause + the Necessary and Proper Clause provides the authorization for the legislation. We can debate if it is good policy. The constitutional structure sets up a process that sets up institutions to determine that. The current shutdown underlines they do not provide trivial restraints.

The Constitution sets forth a range of other limits on congressional enumerated powers from Art. I, sec. 9 to the Bill of Rights and beyond. Some might argue this law somehow violated the Second Amendment, for instance, including state discretion over the militia. A law that requires people to have certain medical procedures (as compared to an insurance regime) comparably can raise constitutional privacy/liberty concerns.

Supporters of the opinion will appeal to limits on federal power. The core problem is that the opinion provides a false hope on that front. It did begin a modern federalist jurisprudence involving various aspects that provided some limits. But, again, long term, it is quite unclear how much it really did in this case.

Each case should be examined on its own merits. For instance, U.S. v. Morrison concerned a civil litigation provision that could be defended on multiple grounds. It was not merely a direct federal regulation of sexual violence, which might be more problematic.

Also, overall, I think it is time to dispose of the Civil Rights Cases. Justice John Marshall Harlan, as he often was, had it right.

==

The peyote case was recently addressed. I checked it once more, including looking at both state and SCOTUS opinions. It came to the Supreme Court twice. It was sent back the first time.

The state court then decided that religious usage of peyote by Native Americans was part of religious liberty. It largely rested on congressional findings on the matter.

SCOTUS was concerned about other matters. The dissent did not address the state court's argument on the point. I find this unfortunate. The 14th Amendment expressly added congressional enforcement power. Congress should have more respect in this area. It just goes to show that judicial restraint is rarely consistent.