Tribute to James M. McGoldrick, Jr.

Tribute to Pepperdine Caruso School of Law Professor James M. McGoldrick, Jr

The Commerce Clause, The Preposition, and the Rational Basis Test

In Gonzales v. Raich, the United States Supreme Court upheld the application of the federal Controlled Substances Act to bar the use of state-grown marijuana for instate personal medical use. In so doing, the Court ratified the expansion of Congress’ commerce power beyond any known limits. It abandoned the “substantial effects” test that it had used since 1937 and applied the “rational basis” test. This Article traces the historical development of Congress’ enumerated powers from the earliest cases, emphasizing the expansive view of commerce power found in Gibbons v. Ogden. From that strong beginning for the commerce power, the Article follows the various detours of the United States Supreme Court cases, some cases imposing now rejected limits on the commerce power, some setting the foundation for the modern test. The main thrust of the Article is to argue that both in terms of history and in terms of our federalist form of government that Congress’ commerce power in instances not involving the actual crossing of state lines should be limited to local activities that in a practical fact-based way have a substantial impact on interstate commerce. The Article asserts that the rational basis test should have no role to play in determining Congress’ power to regulate interstate commerce, that the rational basis test is not only historically unsupportable, but that it also represents a failure of the Court to play its appropriate role in protecting “Our Federalism.

The Dormant Commerce Clause: The Endgame—From Southern Pacific to Tennesse Wine & Spirits—1945 to 2019

This article attempts to develop the undue burden balancing and the virtually per se discrimination tests of the modern Dormant Commerce Clause starting with the 1945 case of Southern Pacific v. Arizona and moving to Tennessee Wine & Spirits Retailers Ass’n v. Thomas, a case decided by the United States Supreme Court in June of 2019. The Commerce Clause, Article I, Section 8, Clause 3 gives Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Our most famous Chief Justice of the United States Supreme Court, John Marshall, defined Congress’s commerce power “among the several states” to be plenary and complete, setting the stage for Congress to use this power over interstate commerce as the basis for much of Congress’ power to pass legislation. Out of this immense federal power, Chief Justice Marshall deduced that since Congress had plenary power over interstate commerce, the states had none. Only Congress could regulate interstate commerce. Marshall called the implied limitations of the Commerce Clause “dormant” leading to what we now call the Dormant Commerce Clause. There are two main aspects to the modern Dormant Commerce Clause. First, states may pass evenhanded laws that impact interstate commerce, but even evenhanded laws may not impose undue burdens on interstate commerce. Second, states may not discriminate against interstate commerce by treating commerce from other states differently than in-state commerce simply because it is out of state. Under the undue burdens test, the Court will consider a number of factors, but primarily the Court will undertake a factual evaluation of the importance of the state interest in passing the law that impacted interstate commerce versus a practical consideration of the harm to interstate commerce. Under the discrimination rule, the Court will almost certainly find the discriminatory state law to violate the Dormant Commerce Clause, but the Court uses an almost tortuous series of approaches to reach what is close to a foregone conclusion. This tortious approach has led some to say that it is impossible to know which of the two tests to apply. This article attempts to identify the key factors involved in the Court’s undue burdens balancing approach and to closely explore the Court’s attempt to define discrimination and to determine when a state might be allowed to discriminate against interstate commerce. The hope is that at the very least students, lawyers, and lower courts might have some guidance in applying the two tests and in knowing the difference between the two

A new parameterization of an empirical model for wind/ocean scatterometry

The power law form of the SEASAT A Scatterometer System (SASS) empirical backscatter-to-wind model function does not uniformly meet the instrument performance over the range 4 to 24 /ms. Analysis indicates that the horizontal polarization (H-Pol) and vertical polarization (V-Pol) components of the benchmark SASS1 model function yield self-consistent results only for a small mid-range of speeds at larger incidence angles, and for a somewhat larger range of speeds at smaller incidence angles. Comparison of SASS1 to in situ data over the Gulf of Alaska region further underscores the shortcomings of the power law form. Finally, a physically based empirical SASS model is proposed which corrects some of the deficiencies of power law models like SASS1. The new model allows the mutual determination of sea surface wind stress and wind speed in a consistent manner from SASS backscatter measurements