where we're at currently...
on one side, legis power (art I) and on the other, judicial power (art III)
doctrines on boundaries and outer limits power can be seen in a chronological sequence, to squeeze down ballooning national power.
1. definition of commerce power limited to interstate marketplaces, but eclipsed by darby and wilburn
2. nat'l league of cities doctrine is abandoned in favor of garcia ruling
3. but with lopez, the US goes back to enforcing the boundaries of nat'l power and raich makes a sort of "stopping point"
4. "commandeering" (see below)
3 and 4 have helpful limiting doctrines in garcia and raich (i.e. renquist on the 10th amd't limiting doctrines "will be back", thomas feels we will return to the "early 20th cent readings")
... anyways, these are a lot of federalism ideas. a helpful consolidation can be found here.
since my head is exploding, i'm gonna take a break and read a saki story ^___^
ny v. us (1992) i.e., the "take title" threat that the low level radioactive waste act exceeds congress' authority...
side note: interesting discussion on the opinion...
the problems with the 1980 and 1985 statute
nat'l legis consenting to state legis in the realm of interstate commerce (keeping in mind that the boundary is plenary, and here the compact statute exercises that)
opinion basically says that 10th amd't limits congress but gives interpretive authority to US...
why's this a problem?
how do we figure out next time what side of the test the court will be on?
and the brady act
why is this a problem? no evidence of an assumption that the fed gov't may command the states' executive power in the absence of a particularized const. authorization.... in fact, the early congresses had the opposite assumption...
this is not a law of general application, but instead is being applied to targeted individuals
what's the area outside the 1oth amd't boundary? general police power
the executive enforcement function at the state level is the police, and this power is being commandeered by the fed gov't -- that's the violation to the state sovereignty
dissent: according to the framers, state powers are empowered to enhance the capacity of the fed gov't "by extending the authority of the federal head to the indiv citizens of the several states, will enable the gov't to... execute its laws"
stevens compares the brady act to the crime control center missing children reports: data at the local level which is necessary and important at the federal level should be reported... though ginsberg thinks that may be a different type of problem than commandeering
child labor tax - an intent based, indirect tax revenue stream, to deter certain employment practices
bailey v. drexel furniture co. US says it's not cool to tax child labor...
mccray v. us US says the motive didn't render it invalid, because it's alright to tax look-like margarine butter...
wtf??
taft says it's consistent, barrett says it's not.
tax penalty provisions extraneous to any tax needs are not taxes.
revenue is negligible but it's regulatory purposes... does this work?
health care statute. there's a mandatory purchase requirement, which would be managed under tax structure...
was bailey overruled or does some of it remain? maybe things that are tooooo regulatory are beyond the congress' power, but there hasn't been anything since that presses the boundary
spending. congress may "pay and provide" but there's no actual call out for spending.
why is the court focused on the spending power? because the US is under the lochner era and there's no filburn doctrine available
agricultural adjustment act pays farmers to not grow. the money comes from taxing food processors
why doesn't the gov't defend this as use of taxation power? because it would be a regulatory tax, and this is coming on the heels of bailey. need a new doctrinal argument
"debts and general welfare": what does this mean as far as congress' power? it's an end to the taxing power but not a separate power to itself. and its not strictly limited to the enumerated powers as an end -- hamilton's view of the meaning of the constitution. is the better reading: "while the power to tax is not unlimited, it confines are set in the clause which confer it, and not in those of section 8 which bestow and define the legislative powers of the congress. it results that the power of congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the constitution."
basically, everybody's got a price and this is a structure set up to influence you with a price to coerce you to behave a certain way... but does the opinion really turn on this coercive nature of legis power?
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