Federalism – Page 7 – Marquette University Law School Faculty Blog

Cockfighting, Congress, and Interstate Commerce

Post author:Scott C. Idleman
Post published:January 30, 2012
Post category:Congress & Congressional Power Constitutional Interpretation Criminal Law & Process Federalism Public

Some convicted defendants in South Carolina are crying foul at the application of the federal Animal Welfare Act to criminally punish the promotion of cockfighting. The statute is said to be based in the power of Congress, found in article I, section 8 of the Constitution, to “regulate commerce . . . among the several States . . . .” Federal prosecutors successfully applied the statute at the trial level, and now the case is before a three-judge panel of the U.S. Court of Appeals for the 4th Circuit.

The defendants (now appellants) argue that their conduct is not sufficiently related to interstate commerce, and is too local in character, to justify Congress’ exercise of its interstate commerce authority. Their contention in this regard is not about whether the promotion of cockfighting may be banned, but rather whether such conduct may be banned by Congress, which can only enact statutes that further its constitutionally enumerated powers. (Such conduct is largely prohibited, albeit with a lesser criminal sanction, by South Carolina law.) Their contention, moreover, appears not to be that the Animal Welfare Act as a whole is unconstitutional, but only that its application to their particular conduct exceeds Congress’s interstate commerce power.

The appellants’ arguments have a familiar ring to them.

John Paul Stevens’ Restraint

Post author:Gabriel Houghton
Post published:January 16, 2012
Post category:Constitutional Interpretation Federalism Judges & Judicial Process Legal History Public U.S. Supreme Court

After he retired in 2010, John Paul Stevens published Five Chiefs: A Supreme Court Memoir. After a brief description of the first twelve Chief Justices of the United States Supreme Court, from John Jay through Harlan Fiske Stone, he describes in more detail the last five with whom he was professionally acquainted. Stevens clerked for Wiley Rutledge, after earning the highest GPA in the history of Northwestern Law School, during the 1947 – 48 Term when Fred Vinson was Chief Justice. Stevens was in private practice in Chicago, sometimes teaching antitrust law at the University of Chicago, when Earl Warren presided over the Court. It was during this time, however, that he argued his only case before the Court. In Five Chiefs, he notes that the most memorable aspect of his experience as an advocate before the Court was the sheer proximity of the Justices. Though the distance between the lawyer and the bench is over six feet, Stevens felt sure that “Chief Justice Warren could have shaken my hand had he wished.”

Details like this provide an inside glimpse of the Court. Early in his account, Stevens describes how the prohibition against playing basketball in the gym directly above the courtroom occurred during Vinson’s tenure: Byron White, one of Vinson’s first clerks and a former All-American, was practicing layups during oral argument. Stevens’ anecdotes are always respectful of their subjects and strike one as rather tame, at least until one realizes that civility, the ability to “disagree without being disagreeable,” is of the utmost importance to him.

Severability and the Erie Doctrine

Post author:Ryan Scoville
Post published:October 11, 2011
Post category:Federalism Public U.S. Supreme Court

“Severability” doctrine holds that where a statute is partially unconstitutional, a reviewing court can excise the unconstitutional part rather than declare the entire statute invalid, if consistent with legislative intent. The doctrine figures centrally in a broad array of constitutional litigation, including ongoing litigation over the “individual mandate” provision of the Patient Protection and Affordable Care Act. And the doctrine is powerful because the viability of large statutory schemes can hinge entirely on whether an unconstitutional component is severable.

But while important, severability is in many ways perplexing and underexplored. No one has come up with a fully satisfying test for determining when severance is appropriate. And no one, as far as I can tell, has critically examined choice-of-law rules pertaining to the doctrine’s application.