This week we move to a consideration of federal power, state/federal governmental relations, and how the Supreme Court affects the exercise and scope of such power. We will cover specific doctrines in American law that shape how federal power is used. All of the readings can be found online, through the university Library’s portal or the link I’ve provided. You can use three different databases: HeinOnline (for the Bork/Troy article) and Lexis Nexis Academic or Westlaw Next (for some of the cases), all of which are available through the university Library’s portal. When reading the cases, read the WHOLE case, including any dissenting and concurring opinions.
Robert H. Bork and Daniel E. Troy, â€œLocating the Boundaries: The Scope of Congressâ€s Power to Regulate Commerce,â€ Harv. J.L. & Pub. Polâ€y, Vol. 25, No. 3 (Summer, 2002), pp. 849-893.
What do the authors identify as the historical reason for the creation of the Commerce Clause (CC)?
What do the authors identify as the â€œturning pointâ€ in CC jurisprudence? What was the nature of that turning point?
Does the Court construe the CC broadly or narrowly today?
How do the authors want the CC construed?
Your opinion: Should the CC be broadly or narrowly construed? Why?
What are some of the current problems to which the authors want the CC applied?
Wickard v. Filburn, 317 U.S. 111 (1942) (cut-and-paste “317 U.S. 111” into the search bar in Lexis or Westlaw Next)
Who wins this case, the government or the challenger?
What is the constitutional reasoning of the Court regarding this case?
How would you characterize this reasoning, originalist or living-constitutionalist?
National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012) (find in Lexis or Westlaw Next, or use link: https://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf (Links to an external site.))
On the current Supreme Court, Justice Kennedy is often thought of as the â€œswing vote.â€ Who was the swing vote in this case and how did the justice vote? Explain.
How does the Court construe the individual mandate? (Hint: There are TWO sections dealing with this provision. What does the Court say about both?)
What is the status of the expansion of Medicaid after this case? Whatâ€s the Courtâ€s reasoning?
YOUR OPINION: Where does Wickard stand after this case? It is likely still good law (i.e., valid and court-enforced law), but in what sense?
Murphy v. NCAA, 584 U.S. —; 138 S. Ct. 1461; 200 L. Ed. 2d 854 (2018) (link: https://www.supremecourt.gov/opinions/17pdf/16-476_dbfi.pdf (Links to an external site.))
What is the â€œanticommandeeringâ€ rule?
What is â€œpreemptionâ€?
What is the role of the Article VI Supremacy Clause?
What are the justifications cited by the Court for the anticommandeering doctrine?
What is the practical consequence of this decision?
Tennessee Wine and Spirits Retailers Assn. v. Thomas, 139 S. Ct. 2449 (2019) (link: https://www.supremecourt.gov/opinions/18pdf/18-96_5i36.pdf (Links to an external site.))
1. What does this case reveal about how the Court views federal power under the Commerce Clause?
2. What is the argument of Justice Gorsuch’s dissenting opinion?
3. How does this case reflect some of the concerns of the Founders from 1787?
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