To: Ruben J Cogburn
From: Jennifer McCallian
Date: December 12, 2010
Re: Investigation of Ruben J Cogburn for violation of the IWPA 2001
The Federal government would argue:
- there is a growing public interest and awareness in historic Indian battles
- There is increased desire to visit the historic sites
- Tourism enhances economic development in the western states
- Tourism is a key industry in several Western States
- It is within Congress power to pass the IWPA and regulate this industry
- Ruben destroyed the coral that was part of an historic event and sold artifacts
- Therefore Ruben destroyed an historic site and has engaged in interstate commerce in violation of a Federal law
QUESTION
Is Ruben Cogburn in violation of the Congressional Indian Wars Preservation Act of 2001 by bulldozing an old structure on his property? I will argue this Congressional Legislation exceeds Congress’ authority under the Commerce Clause and is therefore unconstitutional.
Response
Yes. Mr. Cogburn, much to his dismay, is in violation of the Indian Wars Preservation Act passed by Congress in 2001.
Statement of Facts
Federal authorities claim the IWPA act protects any structure or site, located on private land, that has significance to the Indian Wars from 1864-1892. Journal and newspaper accounts confirmed that Ruben unknowingly bulldozed the corral in which there was a significant battle in May of 1865.
QUESTION
Does Article II, Section 3 of the Colorado Constitution allowing the right to possession and protection of property invalidate or somehow impact the federal Law?
RESPONSE
No. In Gibbons v. Ogden (1824) the Supreme Court held that states cannot pass legislation for the regulation of internal affairs regarding trade or the police powers that would normally fall within the scope of the state powers, if such legislation is inconsistent with federal law enacted under the commerce clause. Congress has the authority to pass laws and the states cannot make laws in direct conflict with Congress. Congress has the authority to regulate interstate commerce. The question remains, are Rubens actions effecting interstate commerce?
QUESTION
Does inadvertently destroying one piece of historically relevant property have an aggregated and substantial effect on commerce in Colorado?
RESPONSE
It makes no difference because aggregated and substantial effect is flawed and can be used to construe any activity as interstate commerce. Referencing United States v Lopez (1995) Justice Thomas concurred with the court that “The substantial effects test suffers from this flaw (grants Congress a police power over the Nation), in part because of its aggregation principle.” Under so-called “class activities” statutes, Congress can regulate whole categories of activities that are not themselves either “interstate” or “commerce.” In applying the effects test, we ask whether the class of activities as a whole substantially affects interstate commerce, not whether any specific activity within the class has such effects when considered in isolation.” The federal argument of being able to regulate gun possession or gender motivated violence by creating remedies or whether one can throw something away on their land that they have no knowledge of or connection to and is seen as junk, is a slippery slope argument. If Congress can use Interstate Commerce to have jurisdiction over these activities then they can surely have jurisdiction over all crime, over all people’s property and over all ways in which one can carry a weapon. This exceeds congress’ power. The Constitution does not support the proposition that Congress has authority over all activities that substantially effect interstate commerce. “The Constitution prohibited amendments that would affect Congress’ lack of authority to prohibit or restrict the slave trade. One can argue if the aggregated effects test is invalid as stated in Lopez then the new test would include Congress’ ability to regulate commerce by: a] channels of interstate commerce, b] instrumentalities of interstate commerce even if the threat comes only from intrastate activities c]power to regulate activities having a substantial relation to interstate commerce. Ruben’s family’s property contained an old wall seen as an eye sore by his wife. This one little wall left over from a battle long ago does not to have a substantial relation (defined as an immediate, quantifiable and direct relationship) to interstate trade.
QUESTION
Are there facts present in the IWPA that support the Hypothesis that destroying historic sites and selling artifacts to locals have a substantial relation to inhibiting or effecting interstate commerce?
Response
No. In the case of the IWPA Congress has made no findings of fact to correlate or give a substantial relation to inhibiting interstate commerce by destroying historic sites. There is no evidence in the IWPA to back up the claim that historic sites lead to tourism, which leads to interstate commerce. In United States v. Morrison (2000) the justices agreed with the ruling in United States v. Lopez and added the perspective that the statute outlawing gun possession indicated “no express jurisdictional element which might limit its reach to a discrete set of firearm possession that additionally have an explicit connection with or effect on interstate commerce. Such a jurisdictional element may establish that the enactment is in pursuance of congress regulation of interstate commerce.” Congress is not obligated to findings of fact but the IWPA contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress’ power to regulate interstate commerce. Fact finding would lend support to the argument that historic sites are sufficiently tied to interstate commerce but the IWPA is lacking this element. Second, Ruben sales were strictly intrastate affairs.
QUESTION
Did Rueben engage in interstate commerce when he sold artifacts to in state residents?
Response
No, but he engaged in Intrastate commerce. By selling the artifacts and distributing them in his state he engaged in intrastate commerce. In Gibbons v. Ogden, Justice Marshall implied a distinction between Congress’s power over interstate commerce and that of the states over intrastate commerce. In Gonzales v. Raich (2005) Congress was given the authority to regulate purely local activities in so much as they are part of a “class of activities,” namely a national marijuana market that was bigger than local or statewide sales. Ruben is not part of an artifacts national market intending to hide his nationwide sales under the guise of local commerce to avoid federal regulation. The nature of his artifacts is such that they are very rare to begin with undermining his ability to reach a market that is beyond his state. His supply and demand is limited and his intention was to profit from an accidental find. These scarce and rare items do not have a substantial relation to interstate commerce between the states as put forward in the test from United States V. Lopez. United States v. Darby (1941)-The power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce. The IWPA claims that legitimate end is tourism but provides no evidence as such. Tourism can be defined as the clever marketing of a state’s assets. Tourism in Ruben’s state will continue unchanged and unimpeded regardless of whether he replaces the old coral or not. The aggregate effect is no longer the test. To seize his property, threaten him with fines and jail does not represent a legitimate end of the granted power of Congress to regulate interstate commerce. This is Congress attempting to confiscate and use the police power given not to it but to the states. In Heart of Atlanta Motel Inc v. United States (1964) the legitimate end was to stop discrimination at a hotel that serviced many (over 50%) interstate travelers. The means, Congress’ authority to pass legislation to prohibit discrimination by claiming that it decreased interstate commerce, justified the ends, the use of the commerce clause and the 14th amendment that was then applied to the states by the 10th amendment, in this case. The causality links between tourism, interstate commerce and Rubens coral and the sale of a few artifacts is attenuated at best.
First Hypothetical Fact Pattern, Question II
The definition of the powers given to Congress by Article 1, Section 8 of the Constitution has evolved over time. If Ruben’s case had to be decided in 1938 it would most likely not end in his favor. The bench mark cases at that moment in our history drastically extended Congress’ reach with the Commerce Clause. McCulloch v.Maryland, Gibbons v. Ogden, United States v. E.C. Knight, Hammer v. Dagenhart were exercises in judicial activism that extended Congress’ reach beyond its intended powers in Article I, Section 8. If Rubens case was before the courts before 1938 it would have been decided based on the law and tests in Jones & Laughlin Steel Corp. The Indirect and direct effect test would have been applied along with the aggregate and without Morrison and Lopez the substantiate the flaw of the Jones test our case would have been lost. Jones reestablished Gibbons v. Ogden and extended the reach of Congress to regulate anything that has a substantial effect on Commerce. It amended the Indirect/Direct Test and after this judgment Congress passed the Fair Labor Standards Act of 1938. To further Illustrate the impacts of Jones on my case and other after 1938 one can look to United States v. Darby in 1941 and Wickard v. Filburn in 1942 both of which continued to expand Congressional reach and regulation with the commerce clause. Darby moved away from the substantial test. The question became whether the production is intended for commerce. If one is producing goods intending that they be used in commerce, then the regulation on the production, whether it is in a child labor regulation or minimum wage regulation, the regulation will be upheld so long as it involves the production of goods intended for commerce. In WIckard production may be regulated if it potentially affects commerce.
My argument in Ruben’s defense rests on cases such as Morrison and Lopez that substantially reign in and limit Congresses reach with the commerce clause. His defense is grounded in the notion that the proper test exists in whether an activity has a substantial relation to interstate commerce without consideration of indirect or the aggregate. Without Lopez and Morrison which came many years after the expansion of Congressional powers in Jones & Laughlin Steel Corp my client would be doomed.
Wickard v. Filburn would have been the end of our defense if not for the court in Lopez seeing the flaw in aggregate effect. Wickard held that if the aggregate effect of an action is not trivial then it can be regulated by Congress. The problem is too much of anything can be applied by an aggregate effect and therefore no economic activity can be excluded. My client’s activity of bulldozing an historic site taken in the aggregate, with the assumption made through findings that tourism contributes to commerce as established in Heart of Atlanta Motel, would have been subject to federal punishment.
The following illustrates the evolution of the commerce clause:
The evolution of the commerce clause
McCulloch v. Maryland(1819)-Congress has the power to incorporate a bank, even though that power is not specified within the Constitution. A state does not have the power to tax an institution created by Congress pursuant to its powers under the Constitution. This case reinforced Martin v. Hunter’s Lessee
Gibbons v. Ogden (1824)-The Court held that the states cannot pass legislation for the regulation of internal affairs that would normally fall within the scope of the states’ police powers, if such legislation is inconsistent with federal law enacted under the commerce power.
United States v E.C. Knight Co-The power of Congress to regulate commerce may operate to suppress monopoly whenever it comes within the rules by which commerce is governed, or whenever the transaction is itself a monopoly of commerce.
Hammer v. Dagenhart-The Commerce Clause does not grant Congress the power to regulate the transportation in interstate commerce of goods that have been produced using child labor.
National Labor Relations Board v. Jones & Laughlin Steel(1937) –distinction between direct and indirect effects on interstate commerce. The court held that intrastate activities that have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions are within Congress’ power to regulate.
Wickard v Filburn (1942)-Congress has the power to regulate local intrastate activities such as the production of wheat for personal use, if they have an aggregate effect on interstate commerce.
Katzenbach v McClung (1964)- Congress can regulate business activity that is purely local, if any part of the activity affects interstate commerce, if the aggregate activity has a substantial effect on commerce.
United States V. Lopez (1995)-proper test requires an analysis of whether the regulated activity sustainably affects interstate commerce.
SECOND HYPOTHETICAL FACT PATTERN
The Constitutionality of the of the Anti-Waco Bill
TO: House of Representatives
FROM: Jennifer McCallian
Deputy Attorney General of State of Colorado
Arguments for Constitutionality
State policing power
In Bibb v. Navajo Freight Lines, Inc. , It is acknowledged that the state has exceptional scope that is broad and pervasive in its power to regulate the use of its highways. Safety measures carry a strong presumption of validity when challenged in court. Southern Pacific Co. v. State of Arizona establishes that the state maintains its exceptional scope in policy decisions dealing with safety measures in reducing accidents and casualties as long as the law has more than a slight effect on safety as not to outweigh the national interest in maintaining the free flow of interstate commerce. Southern Pacific also holds that impeding movement impacts interstate commerce.
Another question is whether the Anti-Waco Bill puts an undue burden on interstate commerce. It does not have a significant effect on commerce by being off the road because there are many options available by car manufacturers but the Waco certainly does impede ccommerce by being on the road. By slowing traffic below limits acceptable to the law, the Waco impedes interstate commerce in the most literal sense.
Fact Findings
Duke obtained an expert witness though the state is not obligated to do so that supports the notion that the WACO will significantly slow traffic on Colorado mountain roads. Evidence shows an extremely slow vehicle has the potential to cause accidents but more importantly it slows commerce
Arguments against Constitutionality
Discrimination-In Maine v. Taylor the court acknowledges that a state does not necessarily overstep its authority by passing statues that burden interstate commerce if it does so incidentally but those that affirmatively discriminate against such transaction do overstep state authority. While incidentally effective to commerce statutes violated the Commerce Clause they did so only if the burdens they impose on interstate trade are clearly excessive in relation to the putative local benefits, statutes that burden transactions more than incidentally are subject to a more demanding scrutiny. The burden then falls on the state to prove the statute serves a legitimate local purpose and that this purpose could not be served as well by available nondiscriminatory means….Maine v. Taylor
The Anti-Waco Statute takes aim at the specific car built by Ford in response to EPA standards for fuel economy. The Waco design is attempting to address a larger Federal mandate. To specifically forbid a certain car from being bought or sold in a particular state does discriminate and can be declared unconstitutional by the fact that it affects interstate commerce (purchasing and manufacturing the car) when a more nondiscriminatory means could be found.
The statute could be worded in a way that does not forbid the particular model of the Waco but instead address the specifications of any hybrid or electric car so that they would not impede travel on mountain roads. These regulations would then extend to all car manufacturers and fulfill the states interest in protecting the safety of its population. A statute of this nature would not be discriminatory in nature and would employee nondiscriminatory means of creating environmentally friendly cars that were safe for travel on all roads in all states.
Southern Pacific establishes the idea of what is essential for safety. It could be argued that traveling below the speed limit actually decreases the likelihood of injuries and casualties and the Waco will lessen rather than increase the danger of an accident. The state will be making an exception to impatient drivers by forbidding the sale and ownership of this car.
The Waco Bill will also create a discontinuity between Colorado and other states. In Bibb v. Navajo Freight Lines, Inc., having to switch flaps at state lines was thought to overwhelming impede commerce and uniformity among the states on the basis of Illinois’ state law excluded out of state truck companies whose regulations for mud flaps were different from competing with Illinois trucking industry. The correlation can be made that Colorado’s interest in a General Motors manufacturing plant is the impetus to an exclusionary state law on the grounds of safety.
Constitutional Law final
SO Facebook is going to file for its Initial Public Offering today! They’ve moved into their new building in Menlo Park and have the taps ready for the celebration.
