Selected issues are highlighted in selected cases; neither the list nor the summaries are intended to be comprehensive.
Mothers v. Haveman
In a March decision that has induced apoplexy among nanny state advocates, U.S. District Judge Robert Cleland has ruled that current law provides no private right to enforce Medicaid requirement against the states. If this is what Congress wants, Congress better make itself clear: state sovereign immunity is assumed in the absence of a clear legislative statement.
Disparate Impact, Same Outcome: Private Litigants May Enforce Title VI Regulations — For Now
Citizens in Action v. New Jersey Department of Environmental
On April 19, U.S. District Judge Stephen M. Orlofsky held that private plaintiffs may bring suit to enforce the “disparate impact” provision of Title VI and regulations issued thereunder—specifically, the EPA’s “environmental justice” regulations. The Title VI provision prohibits federally funded agencies from taking actions that, while not intentionally discriminatory, have a disparate (and adverse) impact on racial and ethnic minorities. As interpreted by the EPA and Judge Orlofsky, the EPA’s Title VI regulations effectively require affirmative action in industrial plant siting. If there are “too many” jobs-providing factories in minority communities, GM might have to build its next plant in Grosse Point.
Judge Orlofsky’s ruling was good for exactly five days: On April 24, the U.S. Supreme Court ruled that the disparate impact provisions may not be enforced by private litigants in Alexander v. Sandoval (2001). Undeterred, Judge Orlofsky ruled that the South Camden Citizen could remain in action by maintaining their lawsuit under 42 U.S.C. 1983. South Camden Citizens in Action v. New Jersey Department of Environmental Protection II, (D.N.J. May 10, 2001).
That ruling is wrong for a half dozen reasons. For an explanation, see the U.S. Chamber of Commerce’s terrific amicus brief on behalf of the appellants in South Camden. The decision will be reversed; the only questions are when, by whom (the Third Circuit or the Supremes), and on what grounds. For a district court decision that gets the legal issues of South Camden right see Westside Mothers, above. For an explanation of why this arcane stuff matters, see Federalism Outlook #7.
Circuit Cautions against using the Hobbs Act to Prosecute
States v. Min Nan Wang
The Hobbs Act, passed in 1951, makes robbery and extortion that "obstructs, delays, or affects" commerce a federal crime. In Wang, the Sixth Circuit took up the question of how much of an an effect a robbery must have on commerce to qualify for a Hobbs Act conviction. In other words, what is the Act's jurisdictional requirement in the post-Lopez world? According to Judge Batchelder, the required showing is different in cases where the victim is an individual than in cases when the victim is a business entity. "A robbery of a private citizen that causes only a speculative indirect effect on...interstate commerce will not satisfy the jurisdictional requirement of the Hobbs Act," she writes, adding that some criminal acts against individuals (such as the victimization of a large number of individuals, or the extortion of a very large sum) easily pass muster.
Proving that nursery tales are still told on the federal circuit, Judge Batchelder cautions against a "dog, dog bite pig theory of causation" in Commerce Clause decisions. "The little old woman had been stymied in her attempt to get home because her recalcitrant pig refused to cross a stile. So the old woman gave water to a haymaker for a wisp of hay to give to a cow for some milk to induce a cat to begin to kill a rat that began to gnaw a rope that began to hang a butcher who began to kill an ox who began to drink some water that began to quench a fire that began to burn a stick that began to beat the dog who began to bite the pig who jumped over the stile in a fright. While this sequence of events got the little old woman home that night, such a causal chain will not suffice to put Mr. Wang in federal court." The End.
Circuit Deems Child Support Payment an Object of Interstate Commerce
United States v. Morrison (2000) held that the Commerce Clause empowers Congress to regulate economic activities, or activities that are directly linked to interstate commerce. Non-economic activities are beyond the reach of the Commerce Clause. Lower courts are now grappling with the sensible but hardly self-explanatory distinction between “economic” and “non-economic” regulation.
In Faasse, a three-judge panel of the Sixth Circuit found that core provisions of the federal Child Support Recovery Act (CSRA), governing “deadbeat dads” who owe child support to dependents in another state, exceed the power of Congress under the Commerce Clause. Court-ordered child support payments, the court ruled, are undoubtedly monetary, but they are not “economic” in the relevant sense. For constitutional purposes, “economic conduct” must mean the voluntary exchange of goods and services.
Faasse was vacated and heard en banc by the full Sixth Circuit. In an opinion written by Judge Karen Moore, CSRA was found to be a legitimate use of the commerce power since child support payment is a "thing" that travels in interstate commerce. Congress, Judge Moore explains, "has the power...to regulate or exclude certain categories of goods from flowing across state lines through the channels of commerce."
Judge Alice Batchelder, in dissent vehemently disagreed. Citing Lopez, Morrison, and the Constitution, she notes that the Framers "drafted the Interstate Commerce Clause, not the Interstate Clause. The majority's construction renders the commerce component meaningless." There is no general federal police power in Article I; accordingly, Congress should not confuse its authority over trade with an authority over family and criminal matters.
Other Circuits have sustained the CSRA against constitutional challenges; however, a U.S. District Court in New York has recently ruled that CSRA violates the 10th Amendment. The best bet is that the U.S. Supreme Court will agree to hear a CSRA case during its 2001-2002 Term.
Circuit says Federal Anti-Porn Act May Exceed Congress'
US v. Corp
A three-judge panel considered shutterbug Jay Corp's conviction, in Michigan, under a federal kiddie-porn statute. Its conclusion: since the defendant's illicit photos were not meaningfully connected to interstate commerce, the defendant can not be prosecuted under the law. (According to prosecutors, the fact that the photographic paper was made out of state was enough to connect this activity to interstate commerce.)
The more interesting question, of course, is whether Congress has the authority at all, under the Commerce Clause, to criminalize the manufacture and distribution of child porn. Does child exploitation have a real nexus with interstate commerce? According to Judge Wellford, it may not--"we are faced with serious questions about the constitutionality of the Act"--because of standards in Lopez and Morrison. Whether the Sixth Circuit returns to this question remains to be seen; for now, the case suggests how judges might adopt a skeptical, 'show me the money' approach toward "substantial effects" without facially invalidating statutes.
Victim Relief Act Does Not Violate the Dormant Commerce Clause
or the Foreign Affairs Power
Gerling Global Reinsurance Corp. of America v.
In California, insurers that sold policies between 1920 and 1945 to Europeans are required to file information about those policies with the state Commissioner of Insurance. In June, U.S. District Judge William B. Shubb issued an injunction, ruling that the law interferes with the federal government's power over foreign affairs and probably the Commerce Clause, too. The Ninth Circuit disagreed; however, it added that the law may very well violate the insurers' rights to due process. (If a company is unable to provide the information required because of European privacy laws or because the company has no control over the information, the law still requires the suspension of the company's license.) The District Court is currently re-examining the issue.
Upholds Indiana Alcohol Shipping Law against Dormant Commerce Clause
Bridenbaugh v. Freeman-Wilson
Question presented: does a state law that prohibits consumers from buying wine directly from out of state sellers violate the Commerce Clause? According to the Seventh Circuit, no. As Judge Frank Easterbrook explains, in a battle between the 21st Amendment "which appears in the constitution, against the dormant commerce clause, which does not," the 21st Amendment wins.Indiana's three tiered system of distributing alcohol (manufacturers/distributors/retailers) may not be to everyone's liking, but it is the sort of state control that the Amendment was designed to protect.
Deference to Federal Criminal Law Passes 10th Amendment Muster
This case considered the constitutionality of a cooperative state-federal venture called “Project Exile,” a program, among other things, that turns firearm-related offenses into federal crimes.A three-judge panel held Exile constitutional because Virginia entered the partnership voluntarily; there are no 10th Amendment problems if a state can withdraw from a program at any time. Further, the court noted that “no law prevents the prosecution of state firearm offenses either before or after a federal criminal prosecution. When a defendant violates both state and federal laws, either the state or the United States or both may prosecute him.
7th Circuit: No End Runs, Please
Luder v. Endicott
In June, Circuit Judge Posner gave critics of sovereign immunity another reason to pause, rejecting, in Luder v. Endicott, a transparent "end run around the Eleventh Amendment." The question posed: can employees of a state prison bring a Fair Labor Standards Act claim against state employees (ie their supervisors) in their personal capacities? Judge Posner's answer: maybe, but it depends on the circumstances. This sort of suit might be tolerated if a state employee acts independently of state policy; however, a "suit nominally against (a) state employee... that demonstrably has the identical effect as a suit against the state is, we think, barred." Here, the amount of potential liability was so great that the state, if the plaintiffs had won, would have had to bear considerable responsibility. Case closed.
Suits to Enforce SMCRA
are Barred by the 11th Amendment
v. West Virginia Coal Association
Under the Surface Mining Control and Reclamation Act of 1977, regulatory authority over surface coal mining is shared between the Secretary of the Interior and state agencies. The question presented in Bragg: can a private individual sue his state when it fails to perform its SMCRA duties?
According to the Fourth Circuit, no: sovereign immunity bars citizens from bringing suits in federal court against their own states unless this outcome was specifically provided for in the text of federal statute. West Virginia did not waive its immunity when it decided to participate in the SMCRA program; indeed, the statute seems to protect state prerogatives. As Judge Niemeyer explains,
"Congress provided no 'unequivocal' warning that States which submit a program for approval by the Secretary thereby waive their immunity. To the contrary, the citizen-suit provision explicitly authorizes a compliance action 'against ... the appropriate State regulatory authority', 'but only "to the extent permitted by the eleventh amendment to the Constitution' (emphasis added). Far from expressing Congress' clear intent that participating States waive Eleventh Amendment immunity, this language actually preserves a State's sovereign immunity."
Judge Niemeyer also notes that the Ex Parte Young exception was not intended to force states to comply with their own regulations--it is designed to prevent state officials from violating federal law. Quoting from Pennhurst, he explains: "it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law."
A cert petition is pending at the Supreme Court.
Anti Bribery Law May Exceed Congress' Spending
States v. Morgan
The Eighth Circuit heard arguments in September concerning the constitutionality of a federal anti-bribery law, 18 U.S. Code Section 666.The court considered if the law, which was passed under Congress’ spending authority, can be applied in broad or limited circumstances. John Elwood of Miller, Cassidy, Larroca & Lewin argued that 666 can only be applied if a relationship exists between a bribe and the integrity of a federal program; local public corruption is a matter of local concern.
Morgan's challenge to Section 666 was procedurally barred by the court since he could not show actual innocence. As a result, the Spending Clause challenge to 666 was not considered by the Eighth Circuit. Judge Bye's concurrence, however, "lament(s) the fact" that a constitutional challenge to 666 was not in the cards. He explains that "Congress' spending power is comprehensible only by analogy to principles of contract...(and) in enacting 666...Congress did not contract with states or local governments." The anti-bribery law, Judge Bye notes, is the only federal crime on the books passed under the (supposed) authority of the Spending Clause. We agree, as he puts it, that the uniqueness of 666 "speaks volumes" for its constitutional validity.