Facial Versus As-Applied

John Noble jnoble at DGSYS.COM
Fri Apr 20 20:19:02 PDT 2001

At 11:51 AM -0700 4/20/01, Bill Funk wrote:
>Under Lopez/Morrison (and traditional Commerce Clause) analysis, there are
>three separate bases for legislative action under the Commerce Clause.
>The third basis, the basis for reaching wholly intrastate action because
>of its effect on interstate commerce, was the claimed basis in Lopez and
>Morrison.  However, as the Court noted in Morrison, the criminal provision
>of VAWA relies not on the "substantial effects" test, but on the first
>basis -- regulation of the channels of interstate commerce, and it noted
>without criticism the fact that "Courts of Appeal have uniformly upheld
>this criminal sanction."  See 120 S.Ct. 1752, n.5.  Since Morrision, other
>courts have likewise upheld the criminal provision.  By its terms the
>criminal provision requires the gender motivated violence to occur in the
>course of or as a result of interstate travel.  The civil provision
>involved in Morrision, of course, does not, and the facts in Morrision
>would not have met this test.  But what if they had, or if today a civil suit
>for damages was brought with facts where the gender motivated violence
>occurred >in the course of or as a result of interstate travel, why
>wouldn't that action >be constitutional?  The general rule is that
>Congress need not identify the >power it is exercising when it legislates.
>The legislation is constitutional >if there is any power under which
>Congress may have acted.

Right. I puzzled over n.5 and the Court's emphasis on the lack of an
"express jurisdictional element" that would establish "an explicit
connection with or effect on interstate commerce." It is fairly clear that
a narrower civil remedy, limited to cases involving interstate commerce,
would be upheld, like the criminal provision of VAWA (or the Mann Act). So
why not allow the civil remedy if the violence occurred in the course of or
as a result of interstate travel.

Maybe the question is where does "as applied" leave off and "as amended"
pick up. If Congress creates a statutory cause of action, can the Court
"save" it by adding an un-express jurisdictional element, or does that put
it in the business of generating federal common law. The Mann Act, as well
as the criminal provision of VAWA, requires proof of travel across state
lines with unlawful intent. While that is clearly within the reach of the
Commerce Clause, it doesn't necessarily measure the reach of the Commerce
Clause. You end up with a statutory cause of action, with an unstated
element of uncertain scope -- does it require interstate travel, interstate
wire or mail communications, or how about intrastate travel on an
interstate highway. What does Brzonkla have to prove to make her claim a
permissible regulation of the channels of interstate commerce. You indicate
that she couldn't have satisfied the criminal provision's test -- "in the
course of or as a result of" interstate travel, but maybe she could. Could
the law be constitutionally applied if her assailants were out-of-state
students who came to Virginia from New Jersey, or had just returned to
campus from an away-game against Maryland, or they met in an AOL chatroom?
An as-applied analysis would require a case-by-case assessment of the
sufficiency of the complaint in light of the permissible scope of Congress'
authority to regulate the channels of interstate commerce -- without
Congress ever having actually voted to regulate any channels of interstate
commerce. Also, I think you have to ask whether the putative regulation of
the channels of interstate commerce is real, or is really a regulation of
something else. The Mann Act is bad enough, but you can end up with no
limit at all on Commerce Clause authority -- a federal law prohibiting the
possession of a gun, which is constitutionally applied as long as the
defendant was within shooting range of a telephone pole.

John Noble

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