Con Law Notes - ProfessorDeGirolami PDF

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3/18: -United States v. Lopez: ● “The enumeration presupposes something not enumerated.” Gibbons v. Ogden ○ So 3/25: -Necessary and Proper Clause: Tests before NFIB v. Sebelius (2012): ● McCulloch: Means/Ends rational basis test. ● Gonzalez v. Raich (Scalia): When Congress regulates issues that are not themselves interstate commerce, but noneconomic intrastate commerce which is necessary to execute a larger regulatory scheme, that regulation is within the reach of the N&P Clause. ○ Scalia’s approach to the necessary and proper clause is incredibly similar to that of McCulloch, however, Scalia’s approach can be read as requiring a closer connection between the contested law and the enumerated power it was passed in support of. (connections to interstate commerce that are too attenuated are not sufficiently “necessary”). ● United States v. Comstock (2010): Majority sets out a 5-factor approach: ○ Breadth of N&P powers; ■ Grants Congress broad authority to enact legislation that is rationally related to an enumerated power and not prohibited by the Constitution. ○ Long history of federal involvement in a regulatory area; ○ “Sound reasons” for regulation in safeguarding the public; ○ “Accommodation” of state interests; ■ Not clear as to what exactly constitutes a “reasonable” accommodation. ■ Also not clear as to which state interests are sufficiently important to warrant accommodation. ○ Scope of the statute. ■ Not too attenuated of a link between the legislation being scrutinized and the enumerated power to which it is connected. ● Justice Thomas’s dissent in Comstock: one-step approach ○ Does the legislation passed by Congress “carry into execution” one of Congress’s enumerated powers? Only one step away from the enumerated power will be permitted. Federalism: Tenth Amendment Limits on Congressional Power: ● To what extent does the Tenth Amendment provide substantive limits on congressional power? What is the best interpretation?

○ Simply a structural reminder about the powers of Congress (Reading #1, which prevailed in Gibbons…); or ○ Provides independent limits on congressional power in order to protect a sphere of power that belongs to the states and the states alone. (Reading #2) ● The Revival of Reading #2: The “Anti-Commandeering” Principle ○ After National League of Cities v. Usery (1976) and its tradition-based test is overruled by Garcia v. San Antonio Met. Transit Authority (1985), it looked like Reading #2 was dead...until… ■ Garcia: ● A return to the structural reading of the 10th Amendment. ● States’ interests are better protected by the procedural safeguards built into the structures of the federal government than by judicially created rules that curtail federal power. ○ New York v. United States (1992): Congress may not compel states either to “take title” of radioactive waste or regulate it according to Congress’s wishes. ■ Either option would impermissibly commandeer state legislatures in violation of the 10th Amendment....