Questions
COMMERCE CLAUSE QUESTIONS
1. What is "commerce"? Is it just the buying and selling of goods, or should it be interpreted to include, as Chief Justice Marshall says in Gibbons, all the branches of commercial intercourse, including the manufacture and transportation of goods?
Commerce is the act of trading goods, whether that is the actual selling of goods or the processes that brings the products about.
2. The Constitution gives Congress the power to regulate commerce "among" the several states. Does that mean "between" the states, or could it also mean "among the people"--that is, even within a state?
Based on my personal opinion, it should mean only the commerce that extends across states themselves. However, Congress has made several decisions based on commerce being contained within a single state. So, in conclusion, the phrase could simply mean both.
3. What would have been the economic future of the United States if Gibbons had gone the other way?
The economy would more or less become privatized with privatized policies and little to no government regulation.
4. Which of the two basic approaches to Commerce Clause analysis is better, the "empirical test" (e.g., "substantial effects") or the categorical approach that seeks to label effects as "direct" or "indirect" or activities as "local" or "national." What are the advantages and disadvantages of each approach?
It seems that the empirical test can be influenced by partisan beliefs and manipulated; therefore I think the categorical approach is a more effective way to determine the reach of the commerce clause. The empirical test is advantages because it lends to the big picture even though it can be manipulated. The categorical approach can become very specific and specialized however it may turn into too narrow of a focus in order to judge accurately whether or not Congress has the power to intervene.
5. Does the power to "regulate" commerce include the power to ban outright certain articles of commerce--such as lottery tickets, firecrackers, hand grenades, or marijuana? 12. Is taking a woman across state lines for immoral purposes "commerce"? (The Court thought so in a decision upholding the constitutionality of the Mann Act.)
Yes, regulation by definition means to control or supervise a process through rules and regulations. Yes, taking a woman across state lines for immoral purposes is human trafficking for the exchange of money for services, the root of commerce albeit bad commerce.
6. Should the Court examine the motive of Congress in enacting legislation under its commerce power, or just analyze the connection of the regulation to interstate effects? In Hammer vs Dagenhart, the Court was influenced by its conclusion that Congress really legislated because it disapproved of child labor, rather than out of any genuine concern for how child labor was affecting the national economy or the dangers posed by articles produced by child labor. Should the motive of Congress been a factor?
Yes, the purpose of the court is to do what is right morally and constitutionally.
7. N.L.R.B. vs Jones, along with U. S. vs Lopez years later, is generally considered one of the two key turning points in Commerce Clause jurisprudence. What makes it so?
The upheld regulating activities that were seen as local and indirect impacts on interstate trade.
8. Does the "cumulative effects" approach of Wickard represent a major expansion of the "substantial effects" test as employed previously?
Yes.
9. After McClung and Heart of Atlanta Motel, could you imagine any eating establishment or motel that would be outside the reach of Congress's power under the Commerce Clause to enact civil rights laws prohibiting discrimination against patrons or guests?
Obviously out of country restaurants and motels, but otherwise no.
10. Lopez and Morrison raise serious questions about the ability of Congress to enact laws providing federal punishment or federal remedies for conduct traditionally regulated under state criminal codes. Which of the following are likely to be upheld?: (1) a law making "carjacking" a federal crime? (2) a law making "drive-by shootings" a federal crime? (3) a law making it a federal crime to carry out any action designed to terrorize? (4) a law making child molestation a federal crime? (5) a law making child pornography a federal crime?
A law making child pornography a federal crime would be upheld because it can be distributed and sold in interstate commerce.
11. How does Congress distinguish, as Morrison requires it to do, between "what is truly national and what is truly local."?
It distinguishes this through the abandonment of the substantial effects test and Congress must look at what the state has traditionally held power in.
12. National Federation of Independent Business draws a line between commercial activity, which Congress can regulate, and inactivity, which it cannot. Many economists argue that any example of inactivity can be re-described as another sort of activity, but Justice Roberts says the Framers were practical men, not students of metaphysics, and would have appreciated the difference. Do you think he is right?
Yes.
13. The dissenters suggest that the inactivity/activity line is just a return to the discredited categorical approaches of the past, and that the Court should have focused on the impact that people without health insurance were having on the overall market. Will this categorical distinction last, and how much of a limitation will it prove to be on attempts by Congress to enact social welfare legislation?
It will limit much if the categories remain the same because by economic inactivity it means that congress cannot regulate therefore it cannot propose welfare. This categorical approach will not last much longer.
TAXING & SPENDING POWERS-- QUESTIONS
1. Does Congress have the power to tax for a purely regulatory, non-revenue raising, goal? Could Congress require all prostitutes to register and pay a tax if it could not make prostitution a federal crime directly?
No, Congress must attain taxes in order to gain revenue or to pay for programs that support the improvement of the lives of the people.
2. Do the Court's recent Commerce Clause decisions give reason to think the Court will also tighten up the Congress's use of its taxing and spending powers?
In some ways, yes it gives reason to think the court will also tighten up the congress’s use of its taxing and spending powers. With more regulation over an area that is easily taxable and deals primarily with spending, government can be expected to be regulated more so in these areas.
3. In South Dakota vs Dole, is it clear that South Dakota's lower drinking age jeopardized federal interests in the national highway program? If so, how substantially?
It seems to be pretty clear that it jeopardized interests in the national highway program since it allowed a larger amount of potential accidents that could occur and involve state regulated roads as well as commerce and tax money in order to fix any damages.
4. Could Congress condition the receiving of federal dollars to fight crime on a state's having enacted the death penalty? How--if at all--would such a condition differ from the condition upheld in South Dakota vs Dole?
No, because spending power cannot be used to coerce a state into falling into regulations that the national government wants installed.
5. What result in South Dakota vs Dole if South Dakota stood to lose all federal highway money if it didn't raise its drinking age? What if it stood to lose 30%?
That would be coercion by the national government and therefore unlawful. This would result in Congress losing the court case.
6. Does the Court's decision in National Federation of Independent Business v Sebelius suggest that Congress will increasingly rely on its taxing power to accomplish goals it may not be able to accomplish under its commerce power?
Yes, because as Congress wins a battle with its taxing power it will become more and more relevant to their arsenal in getting what they want.
7. Do you think that the description of a mechanism in an act as a "penalty" not a "tax" should control, or was the Court correct to use a functional analysis to conclude that the individual mandate penalty/tax operated as a tax--no criminal punishment, for example, for not purchasing health insurance so long as you make the payment to the IRS (and the amount paid will generally be less than the cost of insurance)?
I think they were generally correct to assert that it was functioning as a tax and calling it what it was above everything else because you shouldn’t be punished for not wanting the government to control what healthcare, if any, you wanted.
8. Does the Court's ruling in the Affordable Care Act case suggest the Court will be closely scrutinizing large federal grant programs in the future? Note that SEVEN justices agreed that withholding federal funds from states that failed to expand their Medicaid coverage was outside of Congress's Spending Clause power.
It would make sense for the Court to review these Acts for constitutionality regardless of the ruling on one case or another. So yes, it seems like the court will scrutinize large federal grant programs.
THE PROPERTY CLAUSE-- QUESTIONS
Whatever the states follow according to rulings, territories do to since they are cumulatively owned by the national government.
COMMERCE CLAUSE QUESTIONS
1. What is "commerce"? Is it just the buying and selling of goods, or should it be interpreted to include, as Chief Justice Marshall says in Gibbons, all the branches of commercial intercourse, including the manufacture and transportation of goods?
Commerce is the act of trading goods, whether that is the actual selling of goods or the processes that brings the products about.
2. The Constitution gives Congress the power to regulate commerce "among" the several states. Does that mean "between" the states, or could it also mean "among the people"--that is, even within a state?
Based on my personal opinion, it should mean only the commerce that extends across states themselves. However, Congress has made several decisions based on commerce being contained within a single state. So, in conclusion, the phrase could simply mean both.
3. What would have been the economic future of the United States if Gibbons had gone the other way?
The economy would more or less become privatized with privatized policies and little to no government regulation.
4. Which of the two basic approaches to Commerce Clause analysis is better, the "empirical test" (e.g., "substantial effects") or the categorical approach that seeks to label effects as "direct" or "indirect" or activities as "local" or "national." What are the advantages and disadvantages of each approach?
It seems that the empirical test can be influenced by partisan beliefs and manipulated; therefore I think the categorical approach is a more effective way to determine the reach of the commerce clause. The empirical test is advantages because it lends to the big picture even though it can be manipulated. The categorical approach can become very specific and specialized however it may turn into too narrow of a focus in order to judge accurately whether or not Congress has the power to intervene.
5. Does the power to "regulate" commerce include the power to ban outright certain articles of commerce--such as lottery tickets, firecrackers, hand grenades, or marijuana? 12. Is taking a woman across state lines for immoral purposes "commerce"? (The Court thought so in a decision upholding the constitutionality of the Mann Act.)
Yes, regulation by definition means to control or supervise a process through rules and regulations. Yes, taking a woman across state lines for immoral purposes is human trafficking for the exchange of money for services, the root of commerce albeit bad commerce.
6. Should the Court examine the motive of Congress in enacting legislation under its commerce power, or just analyze the connection of the regulation to interstate effects? In Hammer vs Dagenhart, the Court was influenced by its conclusion that Congress really legislated because it disapproved of child labor, rather than out of any genuine concern for how child labor was affecting the national economy or the dangers posed by articles produced by child labor. Should the motive of Congress been a factor?
Yes, the purpose of the court is to do what is right morally and constitutionally.
7. N.L.R.B. vs Jones, along with U. S. vs Lopez years later, is generally considered one of the two key turning points in Commerce Clause jurisprudence. What makes it so?
The upheld regulating activities that were seen as local and indirect impacts on interstate trade.
8. Does the "cumulative effects" approach of Wickard represent a major expansion of the "substantial effects" test as employed previously?
Yes.
9. After McClung and Heart of Atlanta Motel, could you imagine any eating establishment or motel that would be outside the reach of Congress's power under the Commerce Clause to enact civil rights laws prohibiting discrimination against patrons or guests?
Obviously out of country restaurants and motels, but otherwise no.
10. Lopez and Morrison raise serious questions about the ability of Congress to enact laws providing federal punishment or federal remedies for conduct traditionally regulated under state criminal codes. Which of the following are likely to be upheld?: (1) a law making "carjacking" a federal crime? (2) a law making "drive-by shootings" a federal crime? (3) a law making it a federal crime to carry out any action designed to terrorize? (4) a law making child molestation a federal crime? (5) a law making child pornography a federal crime?
A law making child pornography a federal crime would be upheld because it can be distributed and sold in interstate commerce.
11. How does Congress distinguish, as Morrison requires it to do, between "what is truly national and what is truly local."?
It distinguishes this through the abandonment of the substantial effects test and Congress must look at what the state has traditionally held power in.
12. National Federation of Independent Business draws a line between commercial activity, which Congress can regulate, and inactivity, which it cannot. Many economists argue that any example of inactivity can be re-described as another sort of activity, but Justice Roberts says the Framers were practical men, not students of metaphysics, and would have appreciated the difference. Do you think he is right?
Yes.
13. The dissenters suggest that the inactivity/activity line is just a return to the discredited categorical approaches of the past, and that the Court should have focused on the impact that people without health insurance were having on the overall market. Will this categorical distinction last, and how much of a limitation will it prove to be on attempts by Congress to enact social welfare legislation?
It will limit much if the categories remain the same because by economic inactivity it means that congress cannot regulate therefore it cannot propose welfare. This categorical approach will not last much longer.
TAXING & SPENDING POWERS-- QUESTIONS
1. Does Congress have the power to tax for a purely regulatory, non-revenue raising, goal? Could Congress require all prostitutes to register and pay a tax if it could not make prostitution a federal crime directly?
No, Congress must attain taxes in order to gain revenue or to pay for programs that support the improvement of the lives of the people.
2. Do the Court's recent Commerce Clause decisions give reason to think the Court will also tighten up the Congress's use of its taxing and spending powers?
In some ways, yes it gives reason to think the court will also tighten up the congress’s use of its taxing and spending powers. With more regulation over an area that is easily taxable and deals primarily with spending, government can be expected to be regulated more so in these areas.
3. In South Dakota vs Dole, is it clear that South Dakota's lower drinking age jeopardized federal interests in the national highway program? If so, how substantially?
It seems to be pretty clear that it jeopardized interests in the national highway program since it allowed a larger amount of potential accidents that could occur and involve state regulated roads as well as commerce and tax money in order to fix any damages.
4. Could Congress condition the receiving of federal dollars to fight crime on a state's having enacted the death penalty? How--if at all--would such a condition differ from the condition upheld in South Dakota vs Dole?
No, because spending power cannot be used to coerce a state into falling into regulations that the national government wants installed.
5. What result in South Dakota vs Dole if South Dakota stood to lose all federal highway money if it didn't raise its drinking age? What if it stood to lose 30%?
That would be coercion by the national government and therefore unlawful. This would result in Congress losing the court case.
6. Does the Court's decision in National Federation of Independent Business v Sebelius suggest that Congress will increasingly rely on its taxing power to accomplish goals it may not be able to accomplish under its commerce power?
Yes, because as Congress wins a battle with its taxing power it will become more and more relevant to their arsenal in getting what they want.
7. Do you think that the description of a mechanism in an act as a "penalty" not a "tax" should control, or was the Court correct to use a functional analysis to conclude that the individual mandate penalty/tax operated as a tax--no criminal punishment, for example, for not purchasing health insurance so long as you make the payment to the IRS (and the amount paid will generally be less than the cost of insurance)?
I think they were generally correct to assert that it was functioning as a tax and calling it what it was above everything else because you shouldn’t be punished for not wanting the government to control what healthcare, if any, you wanted.
8. Does the Court's ruling in the Affordable Care Act case suggest the Court will be closely scrutinizing large federal grant programs in the future? Note that SEVEN justices agreed that withholding federal funds from states that failed to expand their Medicaid coverage was outside of Congress's Spending Clause power.
It would make sense for the Court to review these Acts for constitutionality regardless of the ruling on one case or another. So yes, it seems like the court will scrutinize large federal grant programs.
THE PROPERTY CLAUSE-- QUESTIONS
- Does the Property Clause give the Congress the power to protect
wildlife on private land that spends most of its time on federal land
(on national park, national wildlife refuge, national forest, or BLM
land)? Does the Property Clause empower the Congress to protect a grizzly
bear or wolf wanders from federal land onto the private land of a rancher?--or
is the rancher free to fire away, state law permitting?
If they chose to enact laws that protected this kind of wildlife, yes. The Court has not defined what the line is on private property and federal property minglings.
- Does the Property Clause empower Congress to regulate private
activities on private land that adversely effect public lands, such as air
pollution from a nearby plant, bright lights from neon advertising, or noise
from a racetrack?
Yes.
Whatever the states follow according to rulings, territories do to since they are cumulatively owned by the national government.