Scalia in Printz and Lane
David M. Wagner
daviwag at regent.edu
Tue Sep 27 12:43:44 PDT 2005
But his view in Printz that "[e]xecutive action that has utterly no
policymaking component is rare" is at least of a piece with his refusal (so
far) to find the nondelegation doctrine to be judicially enforceable: all
executive action involves policy choices, and there's no principled way to
draw a line between everyday executive policymaking and an unconstitutional
Regent University School of Law
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Calvin Johnson
Sent: Sunday, September 25, 2005 2:36 PM
To: RJLipkin at aol.com
Cc: CONLAWPROF at lists.ucla.edu
Subject: RE: Scalia in Printz and Lane
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
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.
Robert Justin Lipkin
Professor of Law
Widener University School of Law
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