Answer to Weekly Bar Question 04/21/08

(A)   is the best response, because any attempt by Congress to force a state to enact particular legislation would violate the Tenth Amendment.Although the Tenth Amendment today doesn't pose much of a limit for Congress, it does prevent Congress (or any other part of the federal government) from compelling a state to enact or enforce a particular law.  N.Y. v. U.S. (1992).  That's what Congress has purported to do here, by requiring each state to make certain conduct a crime.  (Congress could use the power of the purse to coerce states into acting, by denying federal funds to states that don't pass the statute.  But that's not what Congress is doing here.) 

(B)  is not the best response, because banning controlled substances that had moved in interstate commerce does have a sufficient nexus with commerce to allow congressional regulation.The examiners are trying to trick you by making you think that U.S. v. Lopez (1995) (Congress can't ban guns near schools, because there's not enough connection to interstate commerce) applies.  But the federal statue in Lopez banned all guns - even those that had never traveled in interstate commerce.  Had it banned just guns that had moved in interstate commerce, the result in Lopez would almost certainly have been different.  A jurisdictional nexus, a direct ban by Congress on the possession, use, or distribution near schools of drugs that had moved in interstate commerce, would bring the statute within the commerce power.(Note that a recent development in the law may make the need for a jurisdictional nexus unnecessary in this situation.  In 2005, in Gonzales v. Raich, the Court concluded that it could forbid even the purely intrastate noncommercial cultivation of marijuana for medical purposes.  It relied extensively on Wickard v. Filburn (1940), which established that "Congress can regulate purely intrastate activity that is not itself ‘commercial,' in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.") 

(C)  is not the best response, because the jurisdictional statement doesn't take care of the fact that Congress is unconstitutionally ordering states to enact statutes.If Congress were passing a statute that made the drug-related conduct here a federal crime, the jurisdictional statute would indeed be enough to create a sufficient nexus to interstate commerce.  (See the discussion of Lopez in Choice (B) above.)But that's not what Congress is doing.  Instead, it's ordering states to enact statutes containing the jurisdictional provision.  And with or without jurisdictional provisions, ordering a state to enact a statute violates the Tenth Amendment, as discussed in Choice (A). 

(D)  is not the best response, because it ignores the Tenth Amendment problem, and also incorrectly asserts that there is a "general welfare clause."First, as discussed in Choice (A), Congress violates the Tenth Amendment when it orders a state to enact a particular statute.  Second, Choice (D) suggests that there is an independent Congressional power to act for "the general welfare."  This is not so - there's a power to "tax and spend ... for the general welfare," but that's not what's at issue here (because Congress is doing pure regulating, not taxing or spending).  So this choice is wrong in both result and reasoning, and the reasoning is wrong in two different respects.