Mouldy- Not to flatter, but you should teach ConLaw or, at least, edit the books. You have a rare skill in defining the problems and exploring the legal history.
Maybe more if I find time to re-read Gonzales with your thoughts in mind.
Diito DS' sentiments.
Thanks guys, that means a lot, especially from current law and doctoral students.
I haven't had a chance to read the cases or think much about your post, Mouldfan, but your account does not immediately strike me as being right. (This is an invitation for you to show me why I am wrong.)
The Court made as applied challenges MORE available -- but that was because it made facial challenges, in which courts say "uh-uh, the whole thing goes", LESS available. And driving parties to use as applied challenges mean that more of the legislature's work stands after a (successful) challenge. How does that go with a judicial power grab?
I don't necessiarly disagree with you UC, but I think the issue is a state v federal one and not an "as applied" v. facical challenge one. As I understood the law pre- Ayotte "as applied" challenges were arguably unavailable to litigants challenging state laws. Prior to Ayotte most of the "federal courts" jurisprudence suggested that when it came to state laws the federal courts had only the power to declare a statute constitutional or unconstitutional (hence the use and popularity of facial challenges).
Post Ayotte it appears that federal courts can consider “as applied” remedies to challenges to state laws. This, in my opinion, increases the power of federal courts by giving them power they previously didn't possess. Now, it would seem that the remedies available in federal court to challenges to state law are equal to the remedies available in federal court to challenges to state law. This new development should, if I am correct, lead to more litigation over state laws in the federal courts and less litigation in the state courts. Hence, my conclusion of a "power grab" by the federal courts, inserting themselves into a relm traditionally reserved to the state court system.
oops, the above comment should read Now, it would seem that the remedies available in federal court to challenges to federal law are equal to the remedies available in federal court to challenges to state law. Brain moving faster than fingers on the keys.
Gonzales v. Oregon a federal power grab? Now I'm really confused....
Okay, apparently I wasn't as clear as I thought. My thesis was that the only way to rationalize Gonzales and Ayotte was to argue that they were both power grabs by the Court. To do this I had to make two arguments.
First, I claimed that in Gonzales the Court grabbed power by reinterpreting Auer and inserting themselves into the regulatory process by now having to decide when agency regulations are mere parrots of the statues and when they are more than that and therefore deserving of judicial deference.
Second, I argued that in Ayotte the Court grabbed power by giving themselves the authority to sever or provide "as applied" remedies to state statutes, where previously those remedies were only available to federal statutes. Two different power grabs, one on the regulatory level one at the state level, both, in my opinion, potentially dramatically increasing the power of the federal courts.
Hopefully that makes things clearer. I'm not 100% sure I'm right, so I welcome UC and others to take the opposing side. That said, I thought that the Court's language in Wisconsin v. FEC helped a great deal as least with respect to the as applied remedy to facial challenges. Although, admitedly BCRA is a federal law so it's not quite analgous to Ayotte, but it's at least consistent with the underlying theory I was espousing.
I think the lesson I should learn is that I need to read things BEFORE commenting on them....
Nah...where's the fun in that?
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