New GOP senator: Federal ban on child labor is unconstitutional

[Martinus]

Err, he is from Utah. 

If you have retard states like Utah in your union, you reap what you sow. And most likely this will not damage him politically, because his voters are retards.

[Grey Fox]

That's quite interesting. I had no idea "incorporation" existed.

[DontSayBanana]

That's quite interesting. I had no idea "incorporation" existed.

It's logical- some of the latter amendments are clearly intended to deal with the federal government, but contain phrasing that could be construed to include state governments as well- look at the 17th amendment and the 27th amendment.  The former specifies federal congressmen, the latter is phrased in an ambiguous way that could cover state senators and representatives as well.

[MadImmortalMan]

Err, he is from Utah. 

If you have retard states like Utah in your union, you reap what you sow. And most likely this will not damage him politically, because his voters are retards.

At least they're looking into the important issues facing their state in this time of economic turmoil. Like becoming the first state to designate an official state gun.

http://www.reuters.com/article/2011/03/18/us-automatic-pistol-utah-idUSTRE72H08Z20110318

[The Minsky Moment]

The notion that interstate commerce as used in Section 1 should be interpreted narrowly to include only the actual transport, transmission or sale of persons, property, or commodities across state boundaries and the instrumentalities for carrying that out is not in itself absurd.  As a matter of legal precedent, it is a dead issue, however.

It does seem rather odd that of all the uses of the commerce power to single out, this guy chose to highlight child labor laws.  Yes that was the issue in Hammer almost 100 years ago, but it was in part revulsion against Hammer that began to turn the tide against the the strict construal of the commerce clause.

[Valmy]

It does seem rather odd that of all the uses of the commerce power to single out, this guy chose to highlight child labor laws.

I was thinking the same thing.  With deft political instincts like that it is no wonder he got elected.

[Razgovory]

It does seem rather odd that of all the uses of the commerce power to single out, this guy chose to highlight child labor laws.

I was thinking the same thing.  With deft political instincts like that it is no wonder he got elected.

I think this is the guy who unseated a long standing Republican Senator.

[dps]

That's quite interesting. I had no idea "incorporation" existed.

You have a good excuse for not knowing this--you're not a US citizen or resident. 

I'm shocked that Yi didn't know it, though--it's pretty basic constitutional law.

If you follow that same line of prehistoric constitutional jurisprudence, you would invalidate the Congressional  partial birth abortion ban(which I bet Senator Lee supports) as abortion is a "purely local activity." I bet the Utah elected Senator Lee wouldn't agree w/ that.

Is the partial birth abortion ban justified as being covered by the interstate commerce clause?  I don't think so.  If it is, then it really shouldn't pass muster, IMO.  Child labor laws (as part of labor laws in general) I'll accept as being justified under the interstate commerce clause, but not the partial birth abortion ban.

[Grey Fox]

You have a good excuse for not knowing this--you're not a US citizen or resident. 

While that's true. I have no idea if such thing exist in Canadian constitution law as I know even less about the Canadian constitution law.

[Admiral Yi]

I'm shocked that Yi didn't know it, though--it's pretty basic constitutional law.

Brown Wolf and I have probably taken roughly the same number of US constitutional law classes.

[stjaba]

I'm shocked that Yi didn't know it, though--it's pretty basic constitutional law.

I had no idea about incorporation before I took Con Law last year. Since over half of all Americans have trouble naming a single member of the Supreme Court(http://public.findlaw.com/ussc/122005survey.html), I doubt most have any idea about incorporation.

Is the partial birth abortion ban justified as being covered by the interstate commerce clause?  I don't think so.  If it is, then it really shouldn't pass muster, IMO.  Child labor laws (as part of labor laws in general) I'll accept as being justified under the interstate commerce clause, but not the partial birth abortion ban.

Legislation doesn't require a constitutional "hook" in the language of the bill, although I think this Republicans are trying to implement a rule that would require that.  So there is no explicit constitutional justification in the legislation for the partial birth abortion ban. But good luck finding another constitutional clause besides the interstate commerce clause that would empower the federal government to ban partial birth abortion. Thomas's concurrence, which Scalia joined, in the partial birth abortion ban suggested unease with the legislation, for instance.

The interstate commerce clause is the hook for tons of federal legislation that has little to do with interstate commerce. For instance, civil rights legislation, oddly enough, is justified solely under the interstate commerce clause.* Lots of federal criminal law is justified under the interstate commerce clause as well- for instance, loan sharking laws. That's why laws like the law criminalizing the possession of a firearm by a convicted felon require showing that the firearm traveled in interstate commerce for conviction. The FBI actually has experts who specialize in tracking the manufacture of firearms and bullets so that they can testify at trial that the possessed firearm traveled through interstate commerce.

*In the Civil Rights Cases of the 1880s, the Supreme Court struck down federal anti-discrimination statutes ruling that the 14th Amendment did not apply to private actors. So, in the 1960s, when newly passed civil rights acts were being challenged, the Court justified it under the interstate commerce clause. One of the private parties challenging the law was a BBQ restaurant in Alabama. The court noted that the restaurant purchased food that moved through interstate commerce. Another plaintiff was a motel in Atlanta- the court noted that it served travelers who traveled from state to state.

In the 1990s, the Court actually did strike down two laws as not being within the interstate commerce power- one involving violence against women and another involving guns in schools. But more recently, the Court upheld a federal marijuana law under the interstate commerce clause. So, there's definitely a lot of interesting precedent at play for the Obamacare litigation.

[Barrister]

You have a good excuse for not knowing this--you're not a US citizen or resident. 

While that's true. I have no idea if such thing exist in Canadian constitution law as I know even less about the Canadian constitution law.

It does not.  We only have one constitution, and it applies to both the provinces and the feds.

[dps]

I'm shocked that Yi didn't know it, though--it's pretty basic constitutional law.

I had no idea about incorporation before I took Con Law last year. Since over half of all Americans have trouble naming a single member of the Supreme Court(http://public.findlaw.com/ussc/122005survey.html), I doubt most have any idea about incorporation.

I forget sometimes just how poorly educated many of my fellow citizens are.  Generally, though, our posters here are better educated than the average (scary, isn't it?).

Is the partial birth abortion ban justified as being covered by the interstate commerce clause?  I don't think so.  If it is, then it really shouldn't pass muster, IMO.  Child labor laws (as part of labor laws in general) I'll accept as being justified under the interstate commerce clause, but not the partial birth abortion ban.

Legislation doesn't require a constitutional "hook" in the language of the bill, although I think this Republicans are trying to implement a rule that would require that.  So there is no explicit constitutional justification in the legislation for the partial birth abortion ban. But good luck finding another constitutional clause besides the interstate commerce clause that would empower the federal government to ban partial birth abortion. Scalia and Thomas have said as much.

I wasn't intending to suggest that there was anything in the legislation itself to justify if, but rather to how it is/was justified in discussions of the topic.

[stjaba]

I wasn't intending to suggest that there was anything in the legislation itself to justify if, but rather to how it is/was justified in discussions of the topic.

As far as I know, It hasn't been discussed too much in the court system. The ban was never challenged for lack of Commerce Clause nexus. Thomas suggested in his concurrence that the parties should have taken that issue up implying he might think there was a lack of a nexus between the clause and the ban. In the majority opinion, the Court briefly noted that the Commerce Clause gave justification, and that the legislation involving safety.

This is too exacting a standard to impose on the legislative power, exercised in this instance under the Commerce Clause, to regulate the medical profession. Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends.