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Essay on Just-Affirmative-Grant Theory

Answer 1 1) Affirmative Power – The 28th Amendment was properly, albeit swiftly, enacted. Although the super-majority requirements of the amendment process are meant to force deliberation, the absence of deliberation does not invalidate an otherwise proper amendment. Any flaws in the amendment process (of which there do not appear to be any), would not be justiciable in any event. Unlike other amendments, e. g. , 13, 14, 15, 19, the 28th Amendment contains no separate enforcement clause, but this is understandable in that the 28th is exclusively a grant of power; thus, an enforcement clause would be redundant.

The grant of concurrent authority to the states and Congress is odd but not unprecedented. (See the repealed 18th Amendment. ) In other areas, e. g. , commerce, Congress and the states have overlapping authority. Pursuant to the Supremacy Clause, federal enactments prevail in cases of conflict. Thus, Congress has the power to regulate flag-burning under the 28th Amendment and the Necessary & Proper Clause, and Section One of the Support Our Troops Act (“SOTA”) is therefore clearly authorized.

Section Two may be more problematic on other grounds (see below). The Spending Power and the power to raise armies and declare war arguably provide additional bases for the Act. (See #2 below). {Comment: Some answers suggested that the 28th Amendment would be invalid under City of Boerne v. Flores. This is simply wrong. Even under the broadest reading of Boerne, the Court’s decisions can be overruled by a constitutional amendment. } 2) Commandeering – Per Printz, Congress may not direct state officials to enforce a federal regulatory scheme.

Yet Section Two of the Act places an “affirmative obligation” on state officials to do just that. Section Two can only be saved if a) it is construed as a valid conditional exercise of the spending power, or b) Printz does not apply to the War Power and the Act is an exercise of that power. a) Conditional exercises of the spending power survive the anti-commandeering principle of Printz and NY v. US because the states are given a choice: They only need comply with the directive if they wish to receive the federal money.

There are three difficulties with this argument here, however. First, in form, Section Two is phrased not as an option, but as a command, with the loss of federal funds coming as a penalty. On the other hand, “[t]hreat of loss, not hope of gain, is the essence of economic coercion. ” Butler. Thus, perhaps the apparent coercion is merely a product of inartful drafting, but this is a weak defense of the provision, because inartful drafting would not satisfy the requirement that conditional spending be unambiguous.

Another serious difficulty with the conditional spending approach is that the federal funds for primary and secondary education bear almost no relation to the goal of preventing flag desecration, contravening the dictum of South Dakota v Dole. Although it could be argued that preventing flag desecration serves and educative function, the same could be said about almost any government action. Third, even if the condition were valid as attached to a state, here it attaches retroactively to conduct by individual state officers, over whom the state may lack direct supervisory authority.

Thus, the conduct that triggers the loss of federal funding will often not reflect a deliberate state choice. b) Although Printz speaks in categorical terms, it might be understood as merely a limit on the Commerce Clause, that could be circumvented by exercises of other powers. Certainly in times of grave national emergency, one could imagine the need for the federal government to commandeer state and local officials. Could the Act be understood as an exercise of the War Power? Woods v. Cloyd W. Miller Co. (casebook at 236-37) gives Congress wide latitude under the War Power. However, the Act is in no way limited to wartime or even its aftermath. Further, even if Printz does not invariably apply to the War Power, current circumstances hardly suggest the sort of national emergency that would permit commandeering. 3) Separation of Powers – The Attorney General’s authority to cancel an item of federal spending bears a resemblance to the Line Item Veto Act struck down in Clinton V NY.

However, because there is no discretion — “the Attorney General shall issue a proclamation” — and because here, as in the statutes the Court distinguished in Clinton v NY, the AG’s act implements rather than contradicts Congress’s will, the Act survives. (See the discussion of Field v. Clark in Clinton, supp at 92. ) On the other hand, in Clinton the Court suggested that the President is entitled to a greater degree of latitude “in the foreign affairs arena” than with respect to domestic affairs.

Thus, SOTA is more problematic than the statute in Field v. Clark. Moreover, SOTA lodges the cancellation authority in the AG rather than the President. Although these factors make the present case a difficult one, on balance SOTA is probably on the constitutional side of the line, given the non-discretionary character of the AG’s decision, and the President’s ability to supervise the AG. It might also be argued that the Act violates the separation-of-powers component of Printz by removing executive authority from the President’s supervision.

The argument appears weaker here because of the AG’s role under Section Two and, in any event, does not add to the (already quite strong) federalism objection discussed above. 4) Equal Protection – There is strong evidence that Section Two was subjectively motivated by national origin stereotyping directed at Serbian-Americans. However, the law is neutral on its face and does not, so far as the record reveals, have any disparate effect on Serbian-Americans or any other identifiable group.

Thus, although national origin discrimination ordinarily triggers strict scrutiny, here, as in Palmer v. Thompson, we have no discrimination. It is possible that cases since Washington v Davis could be read to undermine Palmer, but no case has yet held that discriminatory purpose alone triggers strict scrutiny. Even if one thought it did, there would be a further question whether Vermont should have standing to raise this objection. To the extent that the Court views the principle of race (and national origin) neutrality as structural, there would be no difficulty in allowing Vermont, which clearly has Article III standing in light of the loss of funds, to raise the objection. )

Free Speech – By its literal terms, the 28th Amendment does not alter the 1st Amendment. It merely creates a new power subject to the previously existing limits. However, this just-an-affirmative-grant theory is problematic in that the 28th Am purports to confer an affirmative power on the states; yet the states do not derive their affirmative powers from the federal Constitution; thus, as to the states, the point of the Amendment is to lift the 1st Am’s bar to flag-desecration prosecutions, and it is logical to assume that this is the point with respect to the federal government as well.

Moreover, the obvious purpose of the 28th Am is, at a minimum, to overrule Texas v Johnson and United States v. Eichman. To hold otherwise would be to deny the People’s ability to amend the Constitution. In a prosecution against White, White could object that he did not violate the Act because the homemade 49-star flag was not “the flag of the United States. ” To the extent that the Act covers imperfect flag replicas, White could argue, it exceeds the government’s power under the 28th Amendment.

These are close questions; however, the difficulty of determining what exactly counts as a U. S. flag is ordinarily invoked as an argument against a flagdesecration amendment, and by passing the amendment, Congress and the states rejected this argument. Presumably, the 28thAmendment gives Congress some leeway to define a U. S. flag broadly. Whether it did so in the Act is largely a question of statutory construction, while the assignment asks for constitutional arguments. {Comment: Perhaps the statute fails to give proper notice, a due process issue that some answers raised.

Finally, Vermont probably has third-party standing to raise the 1st Am objection on the ground that overly broad laws chill free speech, and should be amenable to challenge by any party with Article III standing. {Comment: Too many answers analyzed the free speech question as if the 28th Am had no impact on the 1st Am. Some answers treated the 28th Am as establishing that the prevention of flag desecration is a compelling interest, which is a plausible and sensible reconciliation.

Some answers argued that even though the 28th Am makes flag-desecration proscribable, under R. A. V. Congress cannot single out a subset of the proscribable category. This is an interesting point, although note that the only subset here is of intentional rather than intentional plus unintentional flagdesecration, so presumably this is permissible singling out. However one resolves the tension between the First and 28th Amendments, the issue needed to be addressed. } Conclusion: Vermont can successfully argue that the Act is invalid on federalism grounds, and that AG Reno therefore lacked the authority to cancel the Goals 2000 funding.

Question II 1) Justiciability – There is an arguable ripeness objection, but this would appear to be a garden variety declaratory judgment action. Clearly Fanon and McNutter (hereafter “F&M”) will suffer an Article III injury if they are fined for holding hands in the park. 2) 1st Amendment – To the extent that F&M raise a freedom of association claim, this will be addressed below (see #3). Their 1st Am objection is principally a free speech claim. This appears to be an appropriate case for O’Brien. Unlike Arcara, here the act targeted (hand-holding) is itself expressive; moreover, it is often undertaken for expressive purposes.

Thus, at the least, O’Brien scrutiny should apply. Should the even more stringent standard of strict scrutiny apply? It might be argued that handholding, like flag-burning, is so obviously expressive in nearly all cases that any law targeting hand-holding should be seen as targeting speech. The defendants will urge that the court look to the legislative history to discover that the law’s purpose is not to stifle speech, but to address an evil associated with the physical act of handholding.

However, in O’Brien itself, the Court avoided ing on legislative history to determine the law’s purpose, and you should follow suit. In any event, you need not rely on legislative history, because the face of the policy here does not target expression in the way the face of the law did in Texas v. Johnson. O’Brien is, in form, similar to intermediate scrutiny. If you apply anything resembling conventional intermediate scrutiny, the policy would have to be held unconstitutional as dramatically over- and under-inclusive. The vast majority of people holding hands in the park – including people slowly strolling like F&M – pose no danger at all.

Conversely, reckless inline skating can cause serious injury whether or not skaters hold hands. Although a perfect fit is not required under intermediate scrutiny, a substantial one is, and this policy does not substantially advance its stated purposes. As you know, however, the Supreme Court has tended to apply O’Brien extremely deferentially, once it determines that the challenged policy is content-neutral. If you follow what the Court does rather than what it says, then something closer to rational basis scrutiny applies. (See #5 below.

You might, alternatively, view the policy as a time, place, or manner restriction – to be exact, a place restriction; it only proscribes hand-holding in Central Park. Content-neutral TPM restrictions are subject to the equivalent of the O’Brien test, so this doesn’t affect the bottom line. 3) Equal Protection – By referring to themselves as “life partners,” F&M suggest that they are gay. At this stage in the proceedings, there is no evidence that they were selectively prosecuted, and the policy on its face is neutral. The implications of their sexual orientation will be considered in #4.

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