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A law professor poses this hypothetical: On a visit to Earth, a lawyer from Mars discovers that the U.S. Supreme Court is reviewing the constitutionality of two federal laws. One bars states from selling personal data on drivers’ licenses; the other has created a federal cause of action for victims of gender-based violence. The Martian is told that the court will invalidate only one law as an intrusion on state sovereignty and asked which one. “I would argue every competent lawyer from Mars would guess wrong,” says the hypothetical poser, separation-of-powers scholar Peter Shane, of the University of Pittsburgh School of Law. He explains that the first law — the Driver’s Privacy Protection Act — really is a limitation on the states, but it was upheld 9-0 by the court this term in Reno v. Condon, No. 98-1464. The second, a provision of the Violence Against Women Act (VAWA) that was endorsed as necessary by a majority of the states, was struck down 5-4 a few days ago. If lawyers from outer space might be confused by the Rehnquist Court’s ongoing efforts to enforce constitutional boundaries between national and state sovereigns, is an earthbound Congress likely to do any better? Legal and political scholars think it might. In their view, Congress can still do a lot of interstate legislating, particularly in the economic field, despite the strictures of the high court’s May 15 ruling in U.S. v. Morrison, No. 99-5, which held that federal lawmakers lacked authority under the commerce clause and Sec. 5 of the 14th Amendment to enact the civil-suit remedy in the 1994 act. Make no mistake: Morrison, which stemmed from a suit by Christy Brzonkala against two Virginia Tech football players whom she accused of raping her, carries far more serious negative implications for Congress than the federalism thunderbolt issued by the justices in U.S. v. Lopez, 514 U.S. 549 (1995) — the first modern-era court limitation on Congress’ commerce clause powers. But the ruling does leave open several channels through which Congress can tackle the kind of noneconomic problems that triggered their lawmaking efforts in the Violence Against Women Act and the Gun-Free School Zone Act, struck down in Lopez, if Congress chooses to act. DON’T ASK US “I don’t think there’s a snowball’s chance in hell that a Republican Congress is going to take the trouble to climb over this hill,” though, says Professor Charles Tiefer, of the University of Baltimore School of Law, a former solicitor and deputy general counsel of the House of Representatives. “But if the next Congress has a Democratic House and a Republican Senate, you could see congressional Democrats proposing ways to protect causes like women, minorities and the environment, and a Republican Senate taking refuge behind a maximum reading of Chief Justice Rehnquist’s opinion and saying, ‘There’s nothing to be done.’ These are very much a party-polarizing set of rulings by the court.” Morrison is a key piece of the Rehnquist Court’s federalism jurisprudence, itself one of two likely legacies of this conservative bench. As with federal habeas corpus, the second legacy, the prevailing 5-4 majority, has used its view of the constitutional framework of government to dispense power, most recently to the detriment of Congress and the federal courts. Federalism concerns underlie the majority’s activism in federal habeas corpus as much as it does its work in the commerce clause, Sec. 5 of the 14th Amendment, and the 11th and 10th amendments. Calling for finality in death penalty appeals and greater deference to state-court judgments, the majority in the past two decades has imposed major procedural hurdles to federal court review of state convictions and sentences in the absence of congressional action. And although the majority’s activism on federalism seems dramatic, it is not unheralded. The vision of state and national boundaries of power now unfolding in recent decisions was clearly drawn by Chief Justice William H. Rehnquist years ago in his own dissenting opinions and other writings. He now enjoys the five votes necessary to implement that vision. On the commerce clause side of the majority’s work, Morrison ends any doubts that Lopez — which, for the first time in 60 years, struck down a federal law on commerce clause grounds — was an aberration or a limited ruling. “Until now, many people have plausibly said Lopez was a shot across the bow of Congress, trying to get Congress to do a better job, to be more attentive to what the commerce clause demands,” says Professor Thomas O. Sargentich, co-director of the Law and Government Program at American University Washington College of Law. “But it wasn’t really a grab for power by the court.” Before Morrison, he explains, there was a belief that with careful congressional findings about the interstate nature or effect of the activity being regulated, Congress could go forward. The Gun-Free School Zone Act had no real findings — as the justices then noted — to help it survive critical Supreme Court scrutiny, adds Tiefer. “VAWA, on the other hand, was well-supported in Congress by legislative findings regarding the scale and aggregate impact of violence against women,” he says. “In the 1930s, when the Supreme Court had some of the federalist fervor of the current court, well-supported findings like VAWA’s could sometimes protect a statute.” Morrison, Tiefer and others agree, does not defer to congressional judgment. It is a rejection of the philosophy underlying Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), which favors a political-process approach to federalism, one that says Congress is presumptively capable of adjusting power between the federal and state governments, adds Sargentich. Echoing the exact words of several court scholars, Tiefer says that the Rehnquist majority takes a “the court knows best” approach. And it is that division between “the court knows best” and “the political process knows best” that is at the core of the 5-4 split in Morrison. “From the point of view of a Justice [John] Harlan conservative, this is not a conservative approach, but a very activist step,” says Sargentich. But even within a “court knows best” approach, there is room for Congress to act under the commerce clause. “The elements of the Lopez test remain, cryptic as they are, and do provide something of a formula,” says constitutional law scholar Douglas Kmiec, of Pepperdine University School of Law. “But I think the chances of regulating noneconomic activity under the commerce clause have gone down considerably.” In Morrison, the chief justice said that modern commerce clause jurisprudence has identified three broad categories of activity that Congress can regulate: the use of the channels of interstate commerce, the instrumentalities of interstate commerce and people or things in interstate commerce, even though the threat comes only from intrastate activities; and economic activities that substantially affect interstate commerce. Gender-motivated violence, the majority said, is not economic activity. The majority added that Congress’ regulation of that activity could not be upheld based on its aggregate effect on interstate commerce: “The Constitution requires a distinction between what is truly national and what is truly local,” the chief justice wrote. “The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States.” WHAT MIGHT WORK Shane, along with a number of other scholars, identifies four avenues that could work for Congress in many cases in the post- Morrison era: � The use of Congress’ spending power rather than its regulatory power may be its most potent recourse, he says, explaining, “For example, if Congress had conditioned its funding of local police departments on cooperation in the identity-check program in the Brady gun control law, then there would have been no constitutional objection.” (The court struck down the Brady law on other grounds in Printz v. U.S., 521 U.S. 898 (1997).) � Congress also could include an interstate jurisdictional element in its statutes. “For example, it would still be permissible to have a civil action in federal court against persons who cross state lines in order to inflict gender-based violence,” says Shane. “The [still valid] criminal provision in VAWA includes that sort of element.” Sargentich agrees, explaining, “Since most people travel in interstate commerce, and lots of goods do, too, it would be possible to imagine an awful lot of what Congress wants to do could be covered.” But for now, Kmiec cautions, “There are an awful lot of statutes out there dealing with the environment, drug and weapons possession, and prohibitions against gambling and the like that have no interstate predicate and are potentially vulnerable because of [ Morrison].” � A third avenue is for Congress to find an economic link for its regulation, “even if at some level it seems a tad artificial to do so,” says Shane. “I take it there would be no problem with a Violence Against Women on College Campuses Act, in which the purpose of the law was to protect the free movement of students across state lines to attend universities of their choice unimpeded by the risk of gender-based violence.” � Finally, Congress could draft remedies against specific states that are failing to provide equal protection and due process under the 14th Amendment. That’s the approach taken in the Voting Rights Act, noted the court in Morrison. But, the court held, Congress could not use its lawmaking power under Sec. 5 of the 14th Amendment to enact the Violence Against Women Act civil-suit remedy for all states based on findings that bias against female victims operated in some states’ judicial systems. Besides responding to the court’s federalism concerns, Congress ultimately may have to confront an attitude evident in the court’s federalism rulings and prevalent in society today, says Sargentich. He refers to his longtime interest in the political science literature of the 1970s, which has a strong anti-Congress theme. “‘Congress is just a bunch of pigs at the trough’ is the theme,” he says. “That feeling is in our academic literature today.” Morrison, he adds, must associate with that feeling on some level. “It’s a disrespect for the national political process represented by Congress,” he explains. “It gets to the issue of their findings — should you take them as serious efforts by serious people to grapple with problems or view them as background noise? Your image of Congress will affect your view of findings. We probably have swung the pendulum too far to a one-sided view of Congress.”

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