Scalia in Printz and Lane
CJohnson at law.utexas.edu
Sun Sep 25 11:36:21 PDT 2005
The man was desparate. The federal government commandeers as to war by nationalizing the militia, captures the whole state judicial system by making federal claims justiciable in state court, captures the whole tax system because requisitions were said to continue, by both Anti-Federalists and Federalists (notwithstanding the Supreme Court's bad research). When you include war, law and tax, the federal government was not doing anything else in 1787 so the itemized list covered all. Printz is an embarassment, made up fantasy novel and not history, that gives originalism a bad name. Johnson, Homage to Clio, Constitutional Commentary 2004.
You do have to forgive a Supreme Court judge when he is trying to do the impossible.
From: conlawprof-bounces at lists.ucla.edu on behalf of RJLipkin at aol.com
Sent: Sun 9/25/2005 12:11 PM
To: CONLAWPROF at lists.ucla.edu
Subject: Scalia in Printz and Lane
Does anyone share my difficulty in understanding Justice Scalia's views on the difference between enforcement and policy in Printz and his views about enforcement and redefining 14th Amendments rights in Lane? In Printz he writes [from my edited version]:
"The Government's distinction between "making" law and merely "enforcing" it, between "policymaking" and mere "implementation," is an interesting one. Executive action that has utterly no policymaking component is rare, particularly at an executive level as high as a jurisdiction's chief law enforcement officer. Is it really true that there is no policymaking involved in deciding, for example, what "reasonable efforts" shall be expended to conduct a background check?"
While in Lane, Justice Scalia insists that enforceability is clearly distinguishable from redefining or adding to the rights in Section 1. I do not say that there's a logical contradiction involved here. Nevertheless, he seems to insist on (at least) the difficulty in distinguishing between "making law" and "enforcing" law in Printz, while he Lane he seems to invoke a sharp distinction between the two. Any explanation will be helpful. Thanks.
Robert Justin Lipkin
Professor of Law
Widener University School of Law
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