Thursday, July 12, 2012

The Death of Lopez?

The Lopez variant of the states CP emerged shortly after the landmark ruling of U.S. v Lopez in 1995. The case was a test of the federal Gun-Free Zones Act and ruled the law was an improper expansion of the USFG power under the guise of the Commerce Clause of the Constitution. The decision was widely viewed as the Court limiting the power of the USFG and protection of state's rights.  In effect the ruling endured and strengthened federalism. (Note: Federalism is NOT the power of the federal government - make sure you get this! Federalism is the sharing of power between the central government (USFG) and the sovereign governments of the states. When federalism is upheld, one supports the sharing of power which limits the authority of the central government to control the states. By increasing federalism, the potential abuse of one over the other is held in check - theoretically.)

The Lopez variant States CP incorporated the Lopez decision and uses it to create states counterplans which effectively nullify the Affirmative plan by having SCOTUS outlaw the plan based on the precedent established by the Lopez decision.  So, very simply, if the Affirmative plan requires the USFG to increase high-speed rail, the counterplan would say the states should create the rail system and then have SCOTUS make it illegal for the USFG to enact the plan citing the Lopez decision.  In its day, this counterplan was very difficult to deal with for Affirmative teams as it outlawed their plan text and so was competitive in conventional permutation scenarios.  I mean, its pretty tough to argue, Perm: do both; when the plan is illegal.

Does Lopez Apply to This Resolution?
The simple answer to this question is, it depends on the plan text and how well the Affirmative can handle their case.  First of all, the resolution calls for a substantial increase in investment by the USFG and while financial investment is generally assumed, there are other kinds of investments such as time, training, federal lands and other physical resources besides money.  But even if topicality limits the discussion to financial investment, in and of itself it does not imply the USFG will exert additional power over the states other than what already exists in the status quo nor any power for that matter.  Nevertheless, there are plenty of examples how the USFG does exert power over the states in the SQ by limiting access to funds until the desires of the USFG are met.  For example, the USFG collects excise taxes and decides how it is distributed and used because they have the power to regulate the federal highway system under the provisions of the Commerce Clause of the Constitution.  The USFG is not Constitutionally granted any power to determine the legal drinking age.  It does however, dictate to the states that funds for highways will be withheld unless the state passes a law limiting the drinking age to 21.  Because the states do not want to lose federal money, they comply.  This kind of power exercise has never been successfully challenged in the Courts and so the USFG dictates things like, seat-belt laws and standardized tests for schools.

So does Lopez apply to this resolution?  Again, it depends on the case and its defense by the Affirmative team. Let's dig deeper.    

Lopez is Dead When it is Necessary and Proper
SCOTUS decisions never die but they can be overturned.  The Lopez decision caused quite a stir in the legal community at the time because after a long period of expansion of federal power under the Commerce Clause.  The decision sparked reams of paper in law journals about the implications, especially after Lopez was affirmed and strengthened by the U.S. v Morrison decision striking down the federal Violence Against Women Act which was enacted under the Commerce Clause.  But, it is important to understand that those decisions were made when William Rehnquist was Chief Justice and many were thinking the Rehnquist court was moving to limit federal power.  But the speculations turned out to be largely unfounded.  In the 2005 cases of Gonzalez v Raich the Court upheld that under the Controlled Substances Act the USFG could outlaw medical marijuana in the states as a "necessary and proper" regulation under the Commerce Clause to prevent the drug from crossing state lines and not only interstate but intrastate as well.  So in effect, the ruling of the Rehnquist Court upheld the expansion of federal power even within the borders of a single state.

The Raich case takes the teeth out of the states CP.  Recent decisions, show a reluctance of the court (and even more so under John Roberts) to challenge laws which clearly regulate interstate transport of people or goods, and limit the challenges that can arise in cases affecting intrastate (within the state) commerce so long as it is deemed necessary and proper to manage potential interstate (between the states) transport.  But the major caveat and clear distinction which rests in the decision is, the law or activity being regulated by the USFG must link to an economic activity which affects interstate commerce. In citing the major opinion in Raich, Justice Stevens states:

"At issue in Lopez, 514 U. S. 549, was the validity of the Gun-Free School Zones Act of 1990, which was a brief, single-subject statute making it a crime for an individual to possess a gun in a school zone. 104 Stat. 4844-4845, 18 U. S. C. § 922(q)(1)(A). The Act did not regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity. Distinguishing our earlier cases holding that comprehensive regulatory statutes may be validly applied to local conduct that does not, when viewed in isolation, have a significant impact on interstate commerce, we held the statute invalid."
"Nor does this Court's holding in Morrison, 529 U. S. 598. The Violence Against Women Act of 1994, 108 Stat. 1902, created a federal civil remedy for the victims of gender-motivated crimes of violence. 42 U. S. C. § 13981. The remedy was enforceable in both state and federal courts, and generally depended on proof of the violation of a state law. Despite congressional findings that such crimes had an adverse impact on interstate commerce, we held the statute unconstitutional because, like the statute in Lopez, it did not regulate economic activity. We concluded that "the non-economic, criminal nature of the conduct at issue was central to our decision" in Lopez, and that our prior cases had identified a clear pattern of analysis: "`Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.'"[35] Morrison, 529 U. S., at 610.

Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. "Economics" refers to "the production, distribution, and consumption of commodities." Webster's Third New International 26*26 Dictionary 720 (1966)."
Channels and Instrumentalities
Whereas, the Raich decision allowed the Court to uphold federal power with respect to economic activities under the Commerce Clause, I found an interesting paper that provides evidence that apart from Raich, the fed retained control of the "channels of interstate commerce and instrumentalities of interstate commerce".  The aim of the paper was to expose a glaring loophole in the Lopez decision and thus serves as good source of Affirmative evidence.  I therefore, cut the following card:

The Lopez decision did not affect the channels and instrumentalities of interstate commerce.
McGimsey, Diane (2002) "The Commerce Clause and Federalism after Lopez and Morrison: The Case for Closing the Jurisdictional-Element Loophole", California Law Review
(McGimsey was the Law Clerk to Hon. J. Harvie Wilkinson III, Chief Justice, U.S. Court of Appeals, Fourth District. J.D., School of Law, University of California, Berkeley 2002.)
A primary reason why Lopez and Morrsion did not spur a revolution is that they limited congressional power with respect to only one of the three categories of activity that courts have allowed Congress to regulate under the Commerce Clause. While Lopez and Morrison constricted the broadest of these three categories, which covers activities "that substantially affect interstate commerce," the decisions did not limit the other two areas that Congress can regulate under its Commerce Clause power: the channels of interstate commerce and the instrumentalities of interstate commerce.
Since Lopez and Morrison, commentators have noted the Court's failure to address these other two area of Commerce Clause regulation and have suggested ways in which the Court might reform its interpretation of the Commerce Clause to protect the federalism principle articulated in Lopez and Morrison. However, few commentators have focused on the role of the jurisdictional element as a means by which Congress can continue to carry on its activities as if Lopez and Morrison had never been decided. A jurisdictional-element requirement in a statute purportedly ensures a nexus between the regulated activity and interstate commerce. The jurisdictional element usually requires that some person or good that is subject to the regulation is either "in or affecting interstate commerce." Sometimes the jurisdictional element explicitly requires the transportation of a person or good across state lines in connection with the regulated activity. Often, however, the jurisdictional element has been interpreted to require only that the person or good regulated to the regulated person or good, has crossed a state line at some point. In sum, the jurisdictional element, which is supposed to connect the regulated person, good, or activity to interstate commerce, can be easily satisfied by a simple state-line crossing, however remote in time or purpose.

Again, Does Lopez Apply?
My sense is, the foregoing information casts serious doubt on the ability of the Negative to "fiat" a Supreme Court decision outlawing any Affirmative plan which avoids some specific limitations.  An Affirmative plan which specifically addresses the channels and instrumentalities of interstate commerce are probably immune from SCOTUS interference and I contend that transportation infrastructure is the essence of channels and instrumentalities which enable interstate commerce.  More broadly speaking, based on the commentary of the Raich decision, an Affirmative could potentially expand its plan into the state's jurisdiction provided it deals with an economic activity which has an affect on interstate commerce.

A Final Blow to SCOTUS Enforced Federalism
While researching this essay, I came upon another very interesting article which is crying out to be cut and used in the coming debate year.  The entire conclusion of the paper is gold, but I will give you an excerpt below.  The entire article is easily found online.

The Court is the enemy, not the protector of federalism
Graglia, Lino A, (2008) "Lopez, Morrison, and Raich: Federalism in the Rehnquist Court", Harvard Journal of Law & Public Policy
(A. Dalton Cross Professor of Law, University of Texas School of Law.)

Perhaps a similar justification exists for judicial enforcement of federalism to protect a degree of state autonomy. A group seeking federal involvement in some cause, for example, prohibiting guns around schools or violence against women, is usually able to defeat the federalist argument that such matters are best left to the States. Because it is difficult to defeat specific, concrete interests with a general principle, the federalism interest almost always loses in the political process. The result may be less federalism—and therefore less local autonomy—than the public favors. Thus, for the Court to step in to invalidate national legislation in the interest of federalism could, unlike most of the Court's rulings of unconstitutionality, actually advance democracy. It does not seem, however, that the public wants a high degree of federalism or limited national legislative authority. The public seems to prefer to invest national elected officials with the legislative authority to do whatever they feel needs to be done. In any event, it does not appear, for the several reasons stated—most basically that divided sovereignty is an oxymoron—that it is appropriate or feasible for the Court to attempt to limit Congress's legislative authority.
The conclusive reason that the Court should not protect federalism is that a Court with the power to disallow policy choices by the national government on federalism grounds will necessarily have power to disallow them on other grounds, as well as to disallow policy choices by the States. The Court itself is the greatest enemy of federalism. The principal assault on state sovereignty since the middle of the twentieth century has come not from Congress, but from the Court. It is the Court that has taken from the States the right to make policy on abortion, capital punishment, criminal procedure, pornography, prayer in the schools, vagrancy control, street demonstrations, term limits, sexual morality, distinctions on the basis of sex, illegitimacy, alienage, and so on almost without end. The power of the Court to disallow in the name of the Constitution an) policy choice it disagrees with has reduced the States to supplicants before the Court, pleading to be allowed to continue to make policy choices in some areas.
The power to limit the authority of the national legislature is the most impressive example of the Court's power. Allowing the Justices to do that makes it easy for them to believe they can do anything. It then becomes futile to complain that they have arrogated to themselves the final word on all controversial policy issues. The power to control Congress means that the Court is, by definition, the most powerful institution of American government. In light of that reality, it is no surprise that the Court has become the source of all major innovations in domestic social policy. We cannot plead with the Justices to protect us from our elected representatives in Congress in some cases and then object that they consider themselves authorized to "protect" us from our elected state representatives in others. If we wish to preserve any element of federalism, as w^ell as of democracy, our greatest need is not protection from Congress by the Court, but protection from the Court by Congress.

No comments:

Post a Comment

Feel free to leave comments relevant to the topics and activity of competitive high school debate. However, this is not a sounding board for your personal ideologies, abusive or racist commentary or excessive inappropriate language. Everyday Debate blog reserves the right to delete any comments it deems inappropriate.