Stenberg Effectively Overruled

Wed Apr 18 09:59:44 PDT 2007

I believe federal legislation of this type raises very serious enumerated
power questions.  One problem with making a commerce clause challenge to
this specific statute, however, is that it contains a jurisdictional
element.  Specifically, it only applies to procedures that are conducted "in
or affecting interstate or foreign commerce."  This would likely prevent the
facial invalidation of the statute.  As best, under existing precedent (e.g.
Jones interpreting the jurisdictional element in the federal arson statute),
the Court would adopt a narrow construction of the jurisdictional element in
an as-applied challenge.

JHA

------ 
Jonathan H. Adler 
Professor of Law 
Director, Center for Business Law & Regulation 
Case Western Reserve University School of Law 
11075 East Boulevard 
Cleveland, OH 44106 
ph) 216-368-2535 
fax) 216-368-2086 
cell) 202-255-3012 
 <mailto:jha5 at case.edu> jha5 at case.edu 
http://www.jhadler.net
SSRN: http://ssrn.com/author=183995

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From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Conkle, Daniel O.
Sent: Wednesday, April 18, 2007 12:33 PM
To: Marty Lederman; ConLaw Prof; lawcourts-l at usc.edu
Subject: RE: Stenberg Effectively Overruled

It's not entirely clear to me why it was wise for the respondents not to
make a Commerce Clause challenge if, as Marty suggests, that might have led
to an invalidation of the law (on mixed grounds), turning Kennedy's opinion
into a dissent.  I assume Marty means "wise" in the sense of
"constitutionally sound" (as Marty reads the Constitution), not "wise" in
the sense of good litigation strategy.

Dan Conkle 
******************************************* 
Daniel O. Conkle 
Robert H. McKinney Professor of Law 
Indiana University School of Law 
Bloomington, Indiana  47405 
(812) 855-4331 
fax (812) 855-0555 
e-mail conkle at indiana.edu 
******************************************* 

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From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Wednesday, April 18, 2007 12:31 PM
To: Marty Lederman; ConLaw Prof; lawcourts-l at usc.edu
Subject: Re: Stenberg Effectively Overruled

By the way: Justice Thomas in his concurrence suggests that he might have
voted to invalidate the statute if a Commerce Clause challenge had been
raised. In other words, if the Respondents had raised a Commerce Clause
challenge, as well -- something they were wise not to do, not of least of
which because statutes governing medical facilities plainly are valid
Commerce legislation -- the Court might well have invalidated the statute,
even though there would have been no majority of the Court for any
particular ground of invalidation (a form of "Tidewater Transfer"
disposition). That's not really very important, however, because the
practical significance of today's case is not so much the fate of the
federal statute itself as the evisceration of the Casey/Carhart undue burden
test for facial challenges.

----- Original Message ----- 

From: Marty <mailto:marty.lederman at comcast.net>  Lederman 

To: ConLaw <mailto:CONLAWPROF at lists.ucla.edu>  Prof 

Sent: Wednesday, April 18, 2007 10:49 AM

Subject: Stenberg Effectively Overruled

http://balkin.blogspot.com/2007/04/profound-effects-of-justice-oconnors.html

The Profound Effects of Justice O'Connor's Retirement 

Marty Lederman 

Back in July 2005, I posted to SCOTUSblog a list of precedents that were the
most vulnerable in the wake of Justice O'Connor's retirement. The list is
republished below. At the time, I wrote that the most important and most
vulnerable of those precedents were in the areas of the Establishment Clause
(especially the direct funding cases such as Mitchell v. Helms), affirmative
action (and just watch what happens to Grutter later this Term), and
abortion, where Stenberg v. Carhart was hanging by a thread. Today, the
thread snapped, as a
<http://www.scotusblog.com/movabletype/archives/05-380_All.pdf>
five-Justice majority upheld the federal "partial-birth abortion"
prohibition.

In its decision today, the Court effectively overruled Stenberg's "undue
burden" test for facial challenges to abortion-restriction statues (see
pages 36-37 of the opinion). 

My post from July 2005:

These are among the cases in which Justice O'Connor's has been the decisive
vote or opinion, and in which a more conservative Justice might well vote to
overrule the governing precedent. 

Note: Because most Justices consider stare decisis a more serious obstacle
in cases of statutory construction, those cases (e.g., the Davis and Jackson
Title IX decisions) might be more secure, even if Justice O'Connor's
replacement would not have agreed with her as a matter of first impression.

McCreary County v. ACLU (2005) -- Ten Commandments displays

Jackson v. Birmingham Board of Educ. (2005) -- Title IX Liability for
Retaliation

Rompilla v. Beard (2005) -- standard of reasonable competence that Sixth
Amendment requires on the part of defense counsel

Johanns v. Livestock Marketing (2005) -- assessments for government speech

Smith v. Massachusetts (2005) -- double jeopardy

Small v. United States (2005) - felon firearm possession ban doesn't cover
foreign convictions

Tennessee v. Lane (2004) -- Congress's Section 5 power

Hibbs v. Winn (2004) -- Tax Injunction Act

Alaska Department of Environmental Conservation v. EPA (2004) -- EPA
authority under Clean Air Act to issue orders when a state conservation
agency fails to act

McConnell v. FEC (2004) -- campaign finance

Groh v. Ramirez (2004) -- sufficiency of non-particularized search warrant

Grutter v. Bollinger (2003) -- affirmative action

Brown v. Legal Foundation of Washington (2003) -- no takings violation in
IOLTA funding scheme

American Insurance Ass'n v. Garamendi (2003) -- presidential foreign-affairs
"pre-emption" of state law

Stogner v. California (2003) -- ex post facto clause as applied to changes
in statutes of limitations

Alabama v. Shelton (2002) -- right to counsel

Rush Prudential HMO v. Moran (2002) -- upholding state laws giving patients
the right to second doctor's opinion over HMOs' objections

Kelly v. South Carolina (2002) -- capital defendant's due process right to
inform jury of his parole ineligibility

FEC v. Colorado Republican Federal Campaign Committee (2001) -- upholding
limits on "coordinated" political party expenditures

Zadvydas v. Davis (2001) -- prohibiting indefinite detention of immigrants
under final orders of removal where no other country will accept them

Easley v. Cromartie (2001) -- race-based redistricting

Rogers v. Tennessee (2001) -- "judicial" ex post facto

Brentwood Academy v. Tennessee Secondary School Athletic Association (2001)
-- state action

Stenberg v. Carhart (2000) -- "partial-birth abortion" ban

Mitchell v. Helms (1999) -- direct aid to religious schools

Davis v. Monroe County Board of Educ. (1999) -- recognizing school district
liability under Title IX for student-on-student sexual harrassment

Schenck v. Pro-Choice Network (1997) -- injunctions against abortion-clinic
protestors

Richardson v. McKnight (1997) -- private prison guards not entitled to
qualified immunity in section 1983 suits

Camps Newfound/Owatonna v. Town of Harrison (1997) (dormant Commerce Clause)

Morse v. Republican Party of Virginia (1996) -- provisions of the Voting
Rights Act are constitutional as applied to choice of candidates at party
political conventions

Schlup v. Delo (1995) (habeas, actual innocence) 

<http://balkin.blogspot.com/2007/04/profound-effects-of-justice-oconnors.htm
l> 
Posted 10:34 AM by Marty Lederman [link] 

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