Answer to Weekly Bar Question 03/03/08
(B) is the best response, because the "substantial effect on commerce" rationale has been accepted by the Supreme Court.In Wickard v. Filburn (1942), the Court held that Congress could regulate even the consumption of wheat on the farm where it was produced, because such intrastate uses had a substantial effect on interstate commerce. The same principle would apply here - a local sale or rental of property would indirectly affect interstate commerce.
(A) is not the best response, because Congress has no power to regulate for the general welfare.Congress does not have the power to enact regulatory legislation for the general welfare. Art. I Sec. 8 gives Congress the power to "tax and spend" for the general welfare, but that's not what's happening here - what's happening here is pure regulation. (By the way, this "general welfare" wrong answer is perhaps the single most frequently-sprung trap in the history of MBE Con Law questions. Rare is the MBE that doesn't use it at least once.)
(C) is not the best response, because the Thirteenth Amendment cannot be used to protect against sexual-orientation discrimination.The Thirteenth Amendment expressly protects against slavery. Its enforcement clause has been interpreted to allow Congress to legislate against the "badges of slavery," and to prohibit even private actors from practicing racial discrimination. The Court has never held that the Amendment may be used outside of the racial area. It's possible (though not certain) that Congress could rely on the Amendment to prohibit private discrimination on the basis of ethnicity and national origin in addition to race, since these are similar to racial discrimination. But it's very unlikely that the Amendment can be used to bar private discrimination on grounds so distinct from slavery as sexual orientation.
(D) is not the best response, because it is a misstatement of law, in that the Fourteenth Amendment does not prohibit private actors from engaging in discrimination (whether irrational or not).The Equal Protection clause of the Fourteenth Amendment bars discrimination when there is state action. When a purely private actor practices discrimination, Congress' Fourteenth Amendment Sec. 5 remedial powers do not permit it to prohibit that discrimination. So although Congress could probably rely on its Sec. 5 powers to prohibit public entities (states and cities, for instance) from discriminating on grounds of sexual orientation, it cannot do so with respect to purely private discrimination. See U.S. v. Morrison (2000) (Congress can't us it 14th Amendment Sec. 5 powers to let victims of gender-motivated violent crimes sue in federal court.)
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