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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
Wickard principle
can aggregate intrastate action to see if substantial effect on interstate (NP under CC)
26
Wickard says that Cong has power to __
regulate prices and practices affecting such prices
27
Ham critique of Wickard
what can't Cong regulate
28
Heart of Atlanta principle
can regulate local incidents that have substantial effect on interstate
29
Heart of Atlanta holding
discrimination by hotels impedes interstate travel
30
Ham take on Heart of Atlanta
important for civil rights, not CC (business definitely instrumentality of commerce)
31
Dormant CC theory comes from ___
Gibbons dicta
32
Dormant CC in Gibbons
regulating commerce granted exclusively to Cong so even if COng makes choice not to regulate states not allowed to
33
Ham take on dormant CC
states have power to regulate until Cong passes legislation (Wilson)
34
Ham thinks overexpansive CC implicates ___
freedoms and social welfare
35
Ham reasons why CC doctrine threatens social welfare
(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
Ham thinks rights should be defined ___
doctrinally
37
If expansive CC --> no more protection via ___
absence of federal power
38
How does Raich escape limits of Lopez?
not just if substantial effects but if rational basis for concluding substantial effects
39
Raich says activity may be economic even if ___
non-commercial
40
Raich sayus even if noncommercial we must accept ___
class of activity defined by Cong
41
Raich, O'Connor dissent
creates limitless CC encompassing any reg as long as drafted to suggest rational basis
42
O'Connor problems with Raich
eliminates ability of states to be policy labs, to draw line at private activity affecting goods means everything is economic
43
Raich Thomas dissent
encroaches on State police powers to define crim law and protect citizen health
44
Raich Scalia concurrence
intrastate may be essential to comprehensive reg of interstate even if intrastate activity itself does not substantially effect (N&P)
45
Scalia thinks prohibiting home growing achieves ___
legit end of eliminating Schedule 1 from interstate
46
Comstock logic train
Confinement NP for carrying out fed statutues which are NP for enumerated powers
47
In Comstock, Thomas dissents that there is no ___
enumerated power specified for its basis
48
In theory, ___ is the limit to the CC
state sov
49
Garcia Powell dissent
Fed officials under CC sole judges of own power
50
Garcia says that states should protect themselves ___
through political process
51
Ham take on Garcia
abandoning judicial duty + police powers pave way for admin state
52
Three problems with commandeering
(1) reduce states to cogs of fed govt (2) accountability problem (who to blame) (3) destroy states as policy labs
53
Modern doctrine says that anti-commandeering is ___ not a ___
construction of dual sovereignty, Consti provision
54
According to Printz, commandeering would __
augment exec powers too much
55
Sebelius says anti-commandeering applies to ___
conditions for spending
56
Garcia holding
overtime/wage restrictions don't violate state sov
57
Garcia reasoning
(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
Powell dissent says the tradition function test is workable because ___
strength of govt interest + impact of exempting states
59
Garcia O'Connor dissent
wash hands of all efforts to protect states + not in spirit of 10A
60
Ham issues with Garcia
(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
NY v. US principle
can't direct states in leg matters
62
NY v. US holding
Fed can't compel state to enact/admin fed regulatory program
63
Printz principle
can't direct states in leg matters
64
Printz holding
can't give policy directive to state or circumvent by enlisting state officer
65
Printz three reasons
(1) absence of exec commandeering in early Cong and Const (2) violates dual sov (usurpation not NP) (3) NY v. US precedent
66
Printz Stevens dissent
implies Pres couldn't direct execs of states in times of emergencies
67
Stevens says 10A gives not support for ___
immunizing public officials from obligations that may be imposed on ordinary citizens
68
Ways to avoid anti-commandering
Preemption (NP and CC) + taxing and spending power (conditions and penalties)

Ham Manifesto (13 decks)

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