Tuesday, February 1, 2011

A More Eloquent Critique Of Judge Vinson's Decision

Or What ELSE Was Wrong With Vinson's Decision. . .

Professor Orin Kerr (a law professor at GW University in DC) has quite succinctly laid bare the manifold structural problems with Judge Vinson's opinion, but the chief one is this: it contradicts the doctrinal test enunciated by a majority of the US Supreme Court in Comstock, decided less than a year ago -- without so much as a nod to the fact that he -- as a trial court judge -- purports to effectively overrule the Supremes (cheeky, that!):

. . . .I think [one has] to confront the doctrinal test that the U.S. Supreme Court offered in a majority opinion just a few months ago in United States v. Comstock:
". . . .[I]n determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. . . ."

It seems to me that when the Supreme Court says that this is what “we look to see” when determining if a power falls within the Constitution, then that is a doctrinal test to which a trial judge is bound under the principle of stare decisis. That’s especially true when a Justice wrote a concurring opinion treating it as a doctrinal test, and no one corrected him. At the very least, this is language worth mentioning to explain why it’s not a test you’re think you’re bound to as a trial judge. But Judge Vinson doesn’t even mention this language. Instead, he focuses on Alexander Hamilton and Federalist No. 33. Given the gap between the original meaning of the scope of federal power and the case precedents, I don’t think this approach is persuasive for a District Court judge to take. . . .

As I said, many would do a better job than I did, on this. And here is Exhibit A, as but one example, above.

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