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Ham Manifesto > Expanding Commerce as Police > Flashcards

Expanding Commerce as Police Flashcards

1
Q

CC doctrine is unstable because ___

A

invites litigation to define the limits

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2
Q

Ham thinks CC means that ___

A

fed govt no longer one of enumerated powers

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3
Q

Lopez gave ___ can regulate under CC

A

three activities

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4
Q

Three activities from Lopez

A

(1) use of channels of interstate (2) instrumentalities of commerce + people/things in it even if threat only from intrastate (3) substantial relation to interstate

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5
Q

Cases about channels of interstate

A

Darby, Heart of Atlanta

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6
Q

Examples of channels of interstate

A

highways, shipping lanes, canals

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7
Q

examples of instrumentalities of commerce

A

cars, bus, railroads

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8
Q

Shreveport facts

A

railroads discrim against activities to and from Shreveport (threat only from intrastate)

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9
Q

Cong can regulate instrumentalities of commerce when necessary to ___

A

execute interstate commerce

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10
Q

Raich facts

A

marijuana grown for personal use

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11
Q

Raich ___ Lopez

A

loosens

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12
Q

Raich holding

A

production of commodity for home use has substantial effect on supply/demand of national market since could illicitly enter it

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13
Q

Substantial relation means that if ____

A

rational basis to conclude this activity on aggregate would affect interstate substantially

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14
Q

Raich uses McCulloch to justify saying ___

A

if Cong thinks necessary should presume so if logical nexus

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15
Q

Ham problem with Raich

A

Court’s job to decide if NP (not Cong.) and now Q of economics which judges hate to decide

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16
Q

Comstock principle

A

Cong just needs rational basis somehow connected to enumerated power

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17
Q

Comstock holding

A

allow civil commitment (longer sentence) of federally incarcerated if mental illness makes them sexually dangerous to others

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18
Q

Comstock Thomas dissent

A

no enumerated power covering civil commitment

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19
Q

Comstock reasoning

A

(1) Cong. allowed to create fed prisons (2) links not too attenuated, no need to pile inference upon inference like in Lopez (3) analysis not about number of links in the chain but strength of chain

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20
Q

Ham critique of Comstock

A

essentially giving Cong general police power

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21
Q

Lopez principle

A

interstate not unlimited category

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22
Q

Lopez facts

A

claim guns in school zones affect interstate

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23
Q

Ham critique of Lopez

A

doesn’t describe limits well, just makes Cong say the magic words

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24
Q

Lopez reasoning

A

nothing to do with commerce no matter how broadly defined, cost of crime reasoning too attenuated (hard to imagine limit especially in crim/ed law where states more sov

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25
Q

Wickard principle

A

can aggregate intrastate action to see if substantial effect on interstate (NP under CC)

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26
Q

Wickard says that Cong has power to __

A

regulate prices and practices affecting such prices

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27
Q

Ham critique of Wickard

A

what can’t Cong regulate

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28
Q

Heart of Atlanta principle

A

can regulate local incidents that have substantial effect on interstate

29
Q

Heart of Atlanta holding

A

discrimination by hotels impedes interstate travel

30
Q

Ham take on Heart of Atlanta

A

important for civil rights, not CC (business definitely instrumentality of commerce)

31
Q

Dormant CC theory comes from ___

A

Gibbons dicta

32
Q

Dormant CC in Gibbons

A

regulating commerce granted exclusively to Cong so even if COng makes choice not to regulate states not allowed to

33
Q

Ham take on dormant CC

A

states have power to regulate until Cong passes legislation (Wilson)

34
Q

Ham thinks overexpansive CC implicates ___

A

freedoms and social welfare

35
Q

Ham reasons why CC doctrine threatens social welfare

A

(1) keep local sense of responsibility and incentive to participate (2) need competing sovs as check on fed govt (3) geographic state diversity prevents homogenization (4) primary protection for speech absence of fed power (5) when define rights in econ terms courts will defer to leg

36
Q

Ham thinks rights should be defined ___

A

doctrinally

37
Q

If expansive CC –> no more protection via ___

A

absence of federal power

38
Q

How does Raich escape limits of Lopez?

A

not just if substantial effects but if rational basis for concluding substantial effects

39
Q

Raich says activity may be economic even if ___

A

non-commercial

40
Q

Raich sayus even if noncommercial we must accept ___

A

class of activity defined by Cong

41
Q

Raich, O’Connor dissent

A

creates limitless CC encompassing any reg as long as drafted to suggest rational basis

42
Q

O’Connor problems with Raich

A

eliminates ability of states to be policy labs, to draw line at private activity affecting goods means everything is economic

43
Q

Raich Thomas dissent

A

encroaches on State police powers to define crim law and protect citizen health

44
Q

Raich Scalia concurrence

A

intrastate may be essential to comprehensive reg of interstate even if intrastate activity itself does not substantially effect (N&P)

45
Q

Scalia thinks prohibiting home growing achieves ___

A

legit end of eliminating Schedule 1 from interstate

46
Q

Comstock logic train

A

Confinement NP for carrying out fed statutues which are NP for enumerated powers

47
Q

In Comstock, Thomas dissents that there is no ___

A

enumerated power specified for its basis

48
Q

In theory, ___ is the limit to the CC

A

state sov

49
Q

Garcia Powell dissent

A

Fed officials under CC sole judges of own power

50
Q

Garcia says that states should protect themselves ___

A

through political process

51
Q

Ham take on Garcia

A

abandoning judicial duty + police powers pave way for admin state

52
Q

Three problems with commandeering

A

(1) reduce states to cogs of fed govt (2) accountability problem (who to blame) (3) destroy states as policy labs

53
Q

Modern doctrine says that anti-commandeering is ___ not a ___

A

construction of dual sovereignty, Consti provision

54
Q

According to Printz, commandeering would __

A

augment exec powers too much

55
Q

Sebelius says anti-commandeering applies to ___

A

conditions for spending

56
Q

Garcia holding

A

overtime/wage restrictions don’t violate state sov

57
Q

Garcia reasoning

A

(1) traditional functions test hard to apply (2) Framers designed system where structure protects states not discrete limits on Fed authority (3) states retain power only to extend not divested to Consti

58
Q

Powell dissent says the tradition function test is workable because ___

A

strength of govt interest + impact of exempting states

59
Q

Garcia O’Connor dissent

A

wash hands of all efforts to protect states + not in spirit of 10A

60
Q

Ham issues with Garcia

A

(1) not as true after 17A (2) avoiding judicial duty (3) no replacement for traditional functions test (4) federalism Qs are political Qs so no justiciable?

61
Q

NY v. US principle

A

can’t direct states in leg matters

62
Q

NY v. US holding

A

Fed can’t compel state to enact/admin fed regulatory program

63
Q

Printz principle

A

can’t direct states in leg matters

64
Q

Printz holding

A

can’t give policy directive to state or circumvent by enlisting state officer

65
Q

Printz three reasons

A

(1) absence of exec commandeering in early Cong and Const (2) violates dual sov (usurpation not NP) (3) NY v. US precedent

66
Q

Printz Stevens dissent

A

implies Pres couldn’t direct execs of states in times of emergencies

67
Q

Stevens says 10A gives not support for ___

A

immunizing public officials from obligations that may be imposed on ordinary citizens

68
Q

Ways to avoid anti-commandering

A

Preemption (NP and CC) + taxing and spending power (conditions and penalties)

Ham Manifesto (13 decks)

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