November 07, 2005

O'Connor's Clause

by PG

Armen thinks that Bush has found a near replacement: "I still believe that O'Connor was not as moderate as advertised, i.e., she and Alito probably line up far more than both liberals and conservatives would like." My own theory is that O'Connor's conservatism found greatest expression in limiting the reach of congressional power claimed through the interstate commerce clause, and that she otherwise was quite moderate. Indeed, despite the scorn from the legal establishment that often greeted her balancing tests, I bet she aligns well with the average American other than in her federalism votes.

Even in federalism, however, Alito appears to be to O'Connor's right. She voted with the majority in Lopez to find that there was nothing to do with interstate commerce in possessing a firearm in a school zone, but his infamous dissent in U.S. v. Rybar* tried to push Lopez's reasoning to overturn a federal statute that banned possession of machineguns acquired after 1986. Alito thought the statute was too broad because it would reach machineguns that had been converted into such at home, with no commerce involved at all, and this is precisely the situation that the 9th Circuit found not to fall under federal power in U.S. v. Stewart, which Raich effectively overturned -- against O'Connor's strong dissent. Will Baude mentions this dissent in noting

On the other hand, Dole is different, since it's about alcohol, whose regulation might uniquely be an area of state concern after the Twenty-First Amendment: "The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." [Of course, under standard federal pre-emption analysis, it is far from clear why this clause limits federal power at all.]
O'Connor joined both Thomas's and Stevens's dissents in the interstate wine shipment cases, emphasizing that unlike Kennedy, Scalia, Souter, Ginsburg and Breyer, she sees the 21st Amendment as a particular bar to interfering with state sovereignty. Stevens, after all, normally sees federal interstate commerce power quite expansively, but the prospect of states' being unable to regulate speakeasies was too much for him.

As for U.S. v. Butler, I may be misreading it completely, but for some reason I thought that when Roberts says,

While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers 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. But the adoption of the broader construction leaves the power to spend subject to limitations.
he did mean that, in Will's phrasing, "the spending clause was limited to expenditures that were necessary and proper to the furtherance of the other enumerated powers," as opposed to being limited to what might be called the spending clauses: " to pay the Debts and provide for the common Defence and general Welfare of the United States [...] To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy."

* For some reason it makes me happy to discover that there was a case called U.S. v. Rambo in which the defendant also tried to challenge the Article I power to ban possession of machine guns. More seriously, I doubt that Alito would go as far as Thomas in radically revising interstate commerce precedent -- a required nexus between interstate commerce and the machinegun in question would have satisfied Alito. And I justify writing this post instead of reading for my seminar because it's a federalism seminar and this was like a review, right?

November 7, 2005 09:18 PM | TrackBack

Well O'Connor certainly thought he meant that expenditures are "not limited by ddirect grants of legislative power found in the Constitution." And given Roberts (I)'s decision to side with Hamilton over Jefferson, and given that this was Jefferson's view, I'm pretty sure Roberts thinks that the Congress can spend money without having to explain which enumerated power it's using. I.e., he believes that the spending power confers the power to spend money where Congress would lack the power to legislate directly.

Posted by: Will Baude at November 8, 2005 09:15 AM
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