PRPA letter

[Bryan Wildenthal]

Marty's point about Congressional motive is interesting and should give us
all pause.  I actually think there is a hint of concern about Congress's
motive in the Lopez decision itself.  I certainly do not favor a return to
the days of Hammer v Dagenhart, so if Marty or Greg Sisk or anyone could
convince me that there is no way to strike down PRPA without generally
opening up Congressional motives in this area for judicial second-guessing,
or reviving Hammer v Dagenhart, I would agree that PRPA would be valid.  But
I am not yet so convinced.

I think there are several obvious and fairly easy distinctions between (1)
Congress simply closing the channels of interstate commerce to certain goods
defined by their content or origin (eg, made with child labor), and (2)
Congress making a policy choice about how a certain good (which it allows to
travel through interstate commerce and which complies with all of Congress's
reasonably commerce-related regulations) may be used in regard to an issue
so intrinsically local and non-commercial in nature.

As I'm sure Marty agrees, Congressional regulation of child labor easily
passes even the Lopez-narrowed "affecting commerce" theory, because
employment of children (or anyone), esp. in manufacturing goods for sale in
interstate commerce, is a commercial or economic-type activity, whose
effects may properly be "aggregated" under Lopez (unlike intrinsically
non-commercial/economic activity, such as possession of guns or, I would
argue, assisted suicide).  Thus, even if striking down PRPA might involve
some broadening of the Lopez test, I don't see how it would endanger
Congressional regulation of child labor or similar matters.

Likewise, the 1960s civil rights/commerce cases--however much some of us
might wish the Court had upheld them under a broader theory of 14th
amendment powers--seem easily supportable since they involved denying people
access to commercially offered services, employment, etc.  I am a bit
puzzled that Marty suggests the Court did not even "invoke [the] fiction" of
a commercial impact in Heart of Atlanta/McClung.  Leaving aside whether it's
a "fiction" (I actually think it's not, that there was a genuine and
well-demonstrated impact on commerce in those cases), Congress and the Court
certainly did "invoke" such a rationale.  It's a somewhat morally
unsatisfactory rationale, since of course we all know Congress's overriding
purpose was to combat racism and promote human dignity.  But racism in
economic transactions is not only morally evil, it also does in fact burden
commerce in a very direct and obvious way.  So that could be a case of
"concurrent motives," even if one embarked on second-guessing motives
(which, again, I do not favor).

Finally, thanks to Marty for pointing out Congress's attempt to revive RFRA
with a commerce link.  That seems a rather naked attempt to get around
Boerne, and it will be interesting to see if the Court stands for it, esp.
in light of Lopez. I haven't thought carefully about the commerce clause
issues there; for all I know, persuasive arguments might support a
commerce-linked RFRA, but I suspect the Lopez majority will approach it
rather suspiciously.  Personally, I think Congress had ample power to enact
RFRA under the 14th amendment, so, even if it is inappropriate to revive
RFRA under the commerce clause (and possibly might be shown to violate Lopez
or some proper extension of Lopez), I can't seem to get myself too worked up
about it.

Bryan Wildenthal, Thomas Jefferson School of Law

> -----Original Message-----
> From: Lederman, Marty [mailto:Marty.Lederman at USDOJ.GOV]
> Sent: Friday, September 22, 2000 3:23 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: PRPA letter
>
>
> There is at least a hint in Prof. Wildenthal's post that what
> is constitutionally illegitimate about PRPA is that
> Congress's aim, or object, in fact is not the flow of
> controlled substances, or the practice of medicine, but is
> instead simply to influence the occurrence of
> physician-assisted suicide.  He suggests that if Congress's
> objective relates to suicide or murder, rather than commerce
> as such, the legislation is an abuse of the Commerce power.
>
> In essence, this was the view the Court adopted in Hammer v.
> Dagenhart.  Of course, the Court rejected that view in Darby,
> in which the Court held that "[t]he motive and purpose of a
> regulation of interstate commerce are matters for the
> legislative judgment upon the exercise of which the
> Constitution places no restriction and over which the courts
> are given no control." 312 U.S. at 155.  Congress has long
> used its commerce power to address moral and social wrongs
> where it concludes that the States' handling of the problem
> is insufficient.  See Heart of Atlanta Motel, 379 U.S. at
> 257, and cases cited therein.  For instance, the Commerce
> Clause predicate that permitted application of Title II to
> Ollie's Barbeque was that Ollie's obtained much of its
> foodstuffs from out-of-state.  Of course, title II was not
> enacted because of any concern whatever about the "commerce"
> in food supplies to establishments like Ollie's.  Nor did the
> Court invoke such a fiction in Katzenbach v. McClung.
>
> As I've previously noted, there are numerous federal statutes
> that criminalize certain conduct that affects interstate
> commerce, or that is performed using items that have traveled
> in interstate commerce.  Very few of these statutes could be
> said to be "aimed" at the harm to commerce.  The effect on
> commerce is, quite plainly, a hook that Congress uses to
> regulate human conduct that Congress considers harmful, and
> that might otherwise be subject only to local regulation.
>
> I don't think there is more than one vote on the current
> Court for reviving a requirement that Congress's "object" be
> commerce-based.  As radical and unjustified as Lopez and
> Morrison are, I can't believe they augur such a fundamental
> retrenchment of Commerce Clause doctrine.
>
> (BTW, speaking of statutes that use the Commerce power to
> regulate moral and social behavior, the President today
> signed the Religious Land Use and Institutionalized Persons
> Act of 2000, which, inter alia, prohibits State and local
> governments from using zoning decisions to substantially
> burden religious exercise, absent a compelling interest,
> where the burden affects (or its alleviation would affect)
> interstate commerce.)
>
> Marty Lederman (in my personal capacity)