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June 28 : June 15 : April 19 : February 2 : January 14
June 28, 2004
- The Supreme Court's Federalism Cases This Term:
A String of Decisions Upholding Federal Power Show the Portrayal of the Court as Extreme Is A Caricature
Professor Marci A. Hamilton, Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law has written a paper discussing the U.S. Supreme Courts' Federalism cases this term. She writes,
"In the 1990s, when the current Supreme Court first launched its federalism jurisprudence, there was great consternation that it would roll back thirty years of civil rights jurisprudence. A corollary concern was that state and local government, presumed to be hostile to civil rights, would gain power to crush such rights.
The Supreme Court, however, is not an institution that is naturally inclined to extreme results. This Term, more than any other, reveals that the Court is actually quite moderate on federalism issues. Indeed, in three of four of this Term's federalism cases, the Court ruled against the states' rights argument.
It's high time for those who claimed that "the sky is falling" with respect to the Supreme Court and federalism to recant. In this area, as in many others, the Court has taken a moderate perspective that balances state and federal rights and interests. In this column, I will review the four federalism cases decided so far this Term, and explain why each result is a moderate solution."
Please click HERE
to read the full paper. (PDF)
June 15, 2004
- KLINGLER v. DIRECTOR, DEPARTMENT OF REVENUE
Issued May 3, 2004
The Eighth Circuit Court of Appeals held 2-1 that applying Title
II of the ADA to prohibit the Director of the Missouri Department
of Revenue from collecting a $2 annual fee from persons obtaining
handicapped parking placards is an unconstitutional exercise of
Congress's commerce clause power. The court found that all four
of the factors set forth in the Morrison case favor a finding
that applying Title II of the ADA in this case would be unconstitutional.
The complete opinion can be accessed by clicking HERE.
(PDF)
UNITED STATES v. R.J.S. Issued May 6, 2004 The Eighth Circuit
Court of Appeals held that the commerce power reaches wholly intrastate
telephone calls, so long as the calls are made with telephones
connected to an interstate telephone system. The court reiterated
its prior holding that a telephone, regardless of whether it is
used to make an interstate or intrastate call, is an instrument
of interstate commerce. The court also stressed that defendant's
call made both telephones unavailable to outside, interstate contact,
and thus that the telephone defendant used to communicate the
threat was an instrument of interstate commerce. The court affirmed
the conviction for use of a telephone to communicate a false threat.
The complete opinion can be accessed by clicking HERE.
(PDF)
TENNESSEE v. LANE Issued May 17, 2004 The United States Supreme
Court held (in a 5-4 decision) that suits for both monetary damages
and injunctive relief under Title II of the ADA constitute a valid
exercise of Congress' authority to enforce the Fourteenth Amendment.
The Court limited its holding to only those cases dealing with
the "fundamental" right of access to the courts. The Court found
that the Title II requirements for access by disabled persons
to public programs and public buildings was a congruent and proportional
response to identified discrimination against the disabled. The
principle dissent, authored by Justice Rehnquist, questioned whether
sufficient evidence of discrimination by the states had been shown,
and also questioned whether the legislative response to such discrimination
embodied in Title II was proportional. Justice Scalia also wrote
an well-reasoned dissent in which he questioned the long-accepted
premise that "prophylactic" legislation could be passed by Congress
under the guise of "enforcing" the guarantees of the 14th Amendment,
and questioned the application of such legislation against any
state in which Congress had not relied on particular evidence
of an identified history of relevant constitutional violations
by that state.
The complete opinion can be accessed by clicking
HERE.
SABRI v. US Issued May 17, 2004
The United States Supreme Court held that 18 U.S.C. section 666(a)(2),
which proscribes bribery of officials of entities that receive
at least $10,000 in federal funds, does not require proof of connection
with federal money and is a valid exercise of Congress's Article
I authority.
The Court stated that it does not presume the unconstitutionality
of all federal criminal statutes from the absence of an explicit
jurisdictional hook, and there is no occasion even to consider
the need for such a requirement where there is no reason to suspect
that enforcing a criminal statute would extend beyond a legitimate
interest cognizable under Article I, §8. The Court noted that
Congress has Spending Clause authority to appropriate federal
moneys to promote the general welfare, Art. I, §8, cl. 1, and
corresponding Necessary and Proper Clause authority, Art. I, §8,
cl. 18, to assure that taxpayer dollars appropriated under that
power are in fact spent for the general welfare, rather than frittered
away in graft or upon projects undermined by graft.
The Court
stated that Congress does not have to accept the risk of getting
poor performance for its money, owing to local and state administrators'
improbity. According to the Court, Section 666(a)(2) addresses
the problem at the sources of bribes, by rational means, to safeguard
the integrity of federal dollar recipients, and although not every
bribe offered or paid to covered government agents will be traceably
skimmed from specific federal payments, or be found in the guise
of a quid pro quo for some dereliction in spending a federal grant,
these facts do not portend enforcement beyond the scope of federal
interest, for the simple reason that corruption need not be so
limited in order to affect that interest. Money is fungible, bribed
officials are untrustworthy stewards of federal funds, and corrupt
contractors do not deliver dollar-for-dollar value. The court
held that it is enough that the statute condition the offense
on a threshold amount of federal dollars to the government such
as that provided here and a bribe that goes well beyond liquor
and cigars.
The court rejected the claims that the statute was
unconstitutional because it exceeded Congress' power under the
Commerce Clause. The claim that §666 is of a piece with the legislation
ruled unconstitutional in United States v. Lopez, 514 U. S. 549,
and United States v. Morrison, 529 U. S. 598, is unavailing
because these precedents did not control. In those cases, the
Court struck down federal statutes regulating gun possession near
schools and gender-motivated violence, respectively, because it
found the effects of those activities on interstate commerce insufficiently
robust. Here, in contrast, Congress was within its prerogative
to ensure that the objects of spending are not menaced by local
administrators on the take.
The court also held that§666(a)(2)
is not an unduly coercive, and impermissibly sweeping, condition
on the grant of federal funds, but is authority to bring federal
power to bear directly on individuals who convert public spending
into unearned private gain. Justice Thomas drafted a dissent in
which he took issue with the majority's treatment of the Necessary
and Proper Clause.
The complete opinion can be accessed by clicking
HERE.
April 19, 2004
- 2004 First Quarter Federalism & Separation of Powers Update
Practice Group Publications Chair Tara Ross has provided a comprehensive
update of developments that are of interest to the practice group
from the first quarter of 2004. Click HERE
to read this update. (PDF)
February 2, 2004
- United States Supreme Court Upholds Consent Decree Against 11th Amendment Challenge
A unanimous United States Supreme Court reversed the Fifth Circuit Court of Appeals, holding that consent decrees in federal courts may be enforced without a separate inquiry as to whether enforcing the decrees would violate the 11th Amendment. The consent decree required Texas officials to implement a detailed plan to provide certain services for children participating in the Medicaid program. The Court noted that the decree arose from a federal dispute and furthered the objectives of federal law, and specifically cited the "vindication" of an "agreement that the state officials reached to comply with federal law."
The Court recognized that consent decrees might improperly deprive future state officials of their designated legislative and executive powers, but held that the remedy for such deprivations was the trial court's ability to modify a consent decree in light of changed circumstances.
Click to read the full decision in Frew,
et al., v. Hawkins. (PDF)
January 14, 2004
- Federalism & Separation of Powers Practice Group Update
Practice Group Publications Chair Tara Ross has provided a comprehensive
update of developments that are of interest to the practice group
from the fourth quarter of 2003. Click HERE
to read this update. (PDF)
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