preemption cases excluded from Ringhand study?

[jfnbl at earthlink.com]

I do not see how a ruling that depends upon discerning Congress' 
"clear intent" can be characterized as judicial activism. The 
enforcement of federal law is not judicial activism. Acceding to 
Congress' judgment regarding the scope of its preemptive authority is 
not judicial activism.

The invalidation of any law is a rough measure of judicial activism, 
but as between Congress and State legislatures, the latter places a 
distant second in terms of the deference to which it is entitled in 
resolving federal questions presented by federal law. In dormant 
Commerce Clause cases, the Court substitutes its judgment for 
Congress' judgment as to the requirement of uniform federal 
regulation or no regulation by express preemption. In 11th Amendment 
cases, the Court substitutes its judgment for Congress' as to the 
need for federal legislation to enforce the 14th Amendment.

The Court can be accused of judicial activism when it invalidates 
State laws on constitutional grounds; but if Congress used its 
Commerce Clause authority, or 14th Amendment enforcement authority, 
to preempt state regulation of the sale of contraceptives, or libel 
actions against public figures regarding matters of public concern, 
the enforcement of the federal preemptions, while rejecting claims 
that they exceed Congress' Commerce Clause authority, would indicate 
judicial restraint, not judicial activism.

John Noble

At 3:23 PM -0700 9/18/06, MARK STEIN wrote:
>As Larry says, if you are going to exclude cases in which some OTHER 
>legislature could re-validate the Court-invalidated statute, you 
>would have to exclude not only preemption cases, but also dormant 
>Commerce Clause cases, 11th Amendment cases, and (I assume) dormant 
>foreign policy-power cases (all of which are included in Lori's 
>study).
>
>In his Legal Theory blog, Larry has suggested that all these cases 
>SHOULD be excluded.  I think they  should all be included.  The fact 
>that some other legislature can re-validate an invalidated statute 
>may make the Court's decision less undemocratic, but I think that is 
>a separate issue. 
>
>If we are going to exclude some cases because another legislature 
>can re-validate the statute, why not exclude all cases because the 
>Constitution can be amended to re-validate the statute?  The most 
>objective and useful measure would be all invalidated statutes, in 
>my opinion.
>
>Anyway, Lori's exclusion of preemption cases certainly does show 
>that her study was not motivated by liberal bias (in case anyone was 
>under that misapprehension).
>
>Mark
>
>
>
>Lawrence Solum <lsolum at gmail.com> wrote:
>
>Just a minor note: In Dormant Commerce Clause cases, Congress has the
>final word. And in 11th Amendment cases, state legislators have the
>final word. In Congressional power cases, the Court has the final
>word in the sense that state legislatures cannot override the Court's
>decision except through constitutional amendment.
>
>On 9/18/06, Ringhand, Lori wrote:
>>  I excluded the preemption cases for the reason Ilya Somin and John Noble
>>  mention. Unlike in other invalidation cases, the Court in preemption
>>  cases is not claiming the final word on the issue. Because Congress can
>>  "overturn" these decisions by legislatively changing the relevant
>>  statute, they don't get at the same type of institutionally aggressive
>>  use of judicial power that other invalidations do.
>>
>>  That said, I certainly agree that preemption cases form part of the
>>  larger picture of how the Court views its relationship with Congress,
>>  and I teach them as such in my con law class (along with clear statement
>>  rules).
>>
>>  Lori Ringhand
>>  Assocate Professor of Law
>>  University of Kentucky College of Law
>>
>
>
>
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