[EL] why an enforcement clause?

[BZall at aol.com]

Well, as one who has drafted dozens of constitutional amendments over  
thirty years (over 200 ballot initiatives), you ALWAYS worry about enforcement  
powers. Your clients are not spending millions (which is what it costs these 
 days for ballot measures) to do a public opinion poll. 
 
To add to what Brad Smith said earlier:
 
The big one in federal amendments is the power of Congress. Take a look at  
Katzenbach v Morgan, Oregon v. Mitchell and City of Boerne. But you can go 
back  to the original "powers" cases, the Civil Rights cases in, I believe 
1883. And  the more recent VAWA and Family Leave cases ten years ago. All 
whether  a particular congressional action was within the ambit of powers 
granted by an  amendment. Probably more, but that's just off the top. 
 
And today's big deal in powers clauses is the power to sue to enforce. See, 
 Doe v. Reed, resting on Arizonans for Official English v. Arizona (which  
I argued), and most important, its treatment of Judge Reinhardt's 9th  
Circuit opinion permitting intervention after judgment when the govt wouldn't  
defend. Can the proponent protect its product?
 
And just a personal opinion: the new draft is really, really vague and  
ambiguous. I suppose they think they're being statesmanlike, but to someone in  
the field it just looks sloppy. As they say, a good writer writes to be  
understood; a great writer writes not to be misunderstood. 

Barnaby Zall 
Of Counsel 
Weinberg, Jacobs  & Tolani, LLP 
10411 Motor City Drive, Suite 500
Bethesda, MD  20817
301-231-6943 (direct dial) 
bzall at aol.com  
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In a message dated 6/19/2014 12:04:46 P.M. Eastern Daylight Time,  
derek.muller at gmail.com writes:

 
 
 
As someone with absolutely no experience drafting proposed constitutional  
amendments (and only slightly more experience interpreting them), I wondered 
 why there's an enforcement clause in Section 2 when Section 1 is, itself, 
an  affirmative grant of power (I think).

Browsing other constitutional  amendments with enforcement clauses (e.g., 
13, 14, 15, 18, 19, 23, 24, &  26), it's because there's some kind of 
guarantee (e.g., the right to vote  shall not be denied, prohibition, etc.) in one 
portion of the amendment, and  Congress is given a grant of power to enforce 
that guarantee. That's in  contrast to something like the 16th Amendment, 
which was simply a grant of  power to lay and collect taxes.


So, here, Section 1 says that  "Congress and the States may 
regulate"--which is not the same as "shall have  power to regulate," but which I think gets 
at the same thing--and then Section  2 adds the power to implement and 
enforce that power to  regulate.


Is there any reason for what appears to be multiple  grants of power to do 
the same thing? Maybe the "may regulate" is simply  intended to indicate 
that it is now outside of the First Amendment's scope,  and the "shall have 
power" is the actual grant of enforcement? Or, is there  something else that 
more experienced legislative drafters could explain that  I'm missing?


Best,

Derek

Derek T.  Muller 
Associate Professor  of Law 
Pepperdine  University School of Law 
24255 Pacific Coast  Hwy. 
Malibu, CA  90263 
+1  310-506-7058SSRN Author Page:  http://ssrn.com/author=464341




On Thu, Jun 19, 2014 at 6:54 AM, Rick Hasen <_rhasen at law.uci.edu_ 
(mailto:rhasen at law.uci.edu) > wrote:







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