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| | | | | American Constitutional Law, Volume One
Gregg Ivers, American University
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Case Problems
Chapter Seven: Power Reserved to the States
The Boundaries of State Sovereignty
In April 2001, six men and women asked the Supreme Court to hear a challenge to the following law, the congressional Traditional Practices Act of 2000:
IT SHALL BE ILLEGAL FOR ANY PERSON TO SOLICIT OR ENGAGE IN SEXUAL INTERCOURSE IN EXCHANGE FOR MONEY, GOODS OR SERVICES FROM ANOTHER PERSON:
(1) When an Individual Becomes a Prostitute: A female becomes a prostitute once s/he has performed, offered or consented to perform a first act of sexual intercourse for money, goods or services.
(2) Homosexual Acts: A person may commit the crime of fornication by engaging in homosexual acts. A homosexual act is defined as the act of oral or bodily intercourse between two persons of the same sex involving their genitalia.
IT SHALL BE ILLEGAL FOR ANYONE TO ESTABLISH A BUSINESS, LIMITED PARTNERSHIP OR CORPORATION FOR THE ABOVE STATED PURPOSES.
INDIVIDUALS FOUND IN VIOLATION OF THIS ACT SHALL BE SUBJECT TO PUNISHMENT OF NOT LESS THAN SIX MONTHS OR MORE THAN 2 YEARS IN A FEDERAL PRISON; AND/OR SUBJECT TO A FINE OF NOT LESS THAN $25,000.
The plaintiffs claim that the law violates the Tenth Amendment. Specifically, they claim that the law intrudes upon the power of the states to determine their own laws regarding the regulation of sexual practices. They point out that the Supreme Court, in Bowers v. Hardwick (1986), held that the Fourteenth Amendment left the regulation of sexual practices to the states. In that case, states were either free to permit or prohibit homosexual sodomy, but they were not constitutionally required to endorse either permission. They note that the Constitution does not endow the national government with the power to intrude upon matters that do not raise a federal constitutional question. Citing Printz v. United States (1997), the plaintiffs also point out Congress is only permitted to exercise those powers expressly delegated to it by the Constitution. Allowing Congress to make laws governing the regulation of prostitution and sexual practices would intrude upon the traditional responsibility of states to make and enforce their own laws in these areas. A majority of states have decriminalized their laws banning the sexual practices described in Section 2 of the TPA, and two states permit prostitution.
Defending the congressional law, the United States Solicitor General argues that the TPA is a valid exercise of federal commerce power. Pointing to legalized prostitution in two states, the government argues that the industry explicitly markets its services to potential customers around the country, and even solicits international vacation and business packages. Prostitution is not a matter of intra-state commerce, and not removed from congressional commerce power. Moreover, argues the government, Congress is fully empowered under its general police power (Champion v. Ames [1903] to regulate in the interest of the public welfare.
Questions
1. Does the Traditional Practices Act of 2000 violate the Tenth Amendment?
2. When the Constitution is silent on the source of "expressly" delegated power to a particular branch or level of government, what is best way to determine where the source of appropriate government power?
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