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Welcome to the CRCL Ames 2012 Liveblog!

JW = Judge Wolf, JS = Justice Souter, JR = Judge Raggi

November 15, 2012 - 10:15:22 pm by Matt Giffin

CR-CL out. Good evening to all.

November 15, 2012 - 10:14:13 pm by Matt Giffin

Justice Souter reaches his conclusion, and the CRCL Amesblog with him

November 15, 2012 - 10:10:56 pm by Matt Giffin

He further suggests that the petitioners should have argued that the silence of the US indicates the invasive effect which the Ames Buy American Act has for federal power. The federal government’s absence from the case should tell us something; no such case should be decided under settled doctrine without the participation of the U.S. When the government doesn’t speak, “that is proof that something has skewed the processes of government here.”

November 15, 2012 - 10:07:14 pm by Matt Giffin

Justice Souter suggests that the proper disposition of the case might have been revocation of certiorari on the grounds that it was improvidently granted

November 15, 2012 - 10:05:31 pm by Matt Giffin

Justice Souter in his closing remarks returns at some length to the issue of the United States’s silence on the issue. This becomes the “big issue” in the case.

November 15, 2012 - 09:59:32 pm by Matt Giffin

Justice Souter — the proper way to respond to losing Ames is to “look for better judges.”

November 15, 2012 - 09:51:17 pm by Matt Giffin

Judge Raggi — even moot court competitions taking place at New Haven have some merit, after all

November 15, 2012 - 09:49:56 pm by Matt Giffin

Best Brief: Respondents (Hirabayashi Memorial Team)

Best Oralist: Emma Freeman

Best Team: Respondents

November 15, 2012 - 09:48:03 pm by Matt Giffin

Justice Souter: counsel were uniformly great, and the decisions were difficult. Recognizes that moot court judges often say this, but this time it is especially true. Coming from Justice Souter, rings true

November 15, 2012 - 09:45:43 pm by Matt Giffin

We are about to have results

November 15, 2012 - 09:45:26 pm by Matt Giffin

The Judges return

November 15, 2012 - 09:30:28 pm by Matt Giffin

Most of our bloggers are headed out — we’ll be around until the judges come back with their decision, however

November 15, 2012 - 09:27:20 pm by Matt Giffin

big round of applause in the courtroom

November 15, 2012 - 09:27:09 pm by Allison Wiseman

Petitioner: When two parts of a law are inextricably linked, they stand or fall together.

November 15, 2012 - 09:27:01 pm by Matt Giffin

We have now wrapped up arguments. Great job by all four oralists, in this blogger’s humble opinion.

November 15, 2012 - 09:26:49 pm by Andrew Mamo

And we’re done

November 15, 2012 - 09:26:27 pm by Matt Giffin

Petitioners pick up on one of the more aggressive bench questions to respondents — how are the liquidated damages remedies provided by the Act commensurate with anything a private party could do? I think a strong point.

November 15, 2012 - 09:25:59 pm by Michael Decker

Petitioner argues against the market-participant exception:
1) the state is not protecting its people, but the U.S. people as a whole

2)  the state is not acting as a private trader, since they are prohibiting, under penalty, certain actions

November 15, 2012 - 09:25:34 pm by Eric Rice

November 15, 2012 - 09:25:30 pm by Eric Rice

JR: When it’s spending its own money why can’t a state spend it as it wants?

November 15, 2012 - 09:25:19 pm by Jon Cioschi

Query: “don’t stop believin” in zschernig?

November 15, 2012 - 09:24:49 pm by Michael Decker

Petitioner says a more rational statute would meet its aims not by constraining the state to “buy U.S.” but by constraining it to “buy nearby.”

November 15, 2012 - 09:24:27 pm by Allison Wiseman

Petitioner: “I don’t know where Ames is, but let’s suppose it’s somewhere around here, near Massachusetts.”

November 15, 2012 - 09:24:24 pm by Matt Giffin

The petitioners point to Lopez and Morrison to argue for some scrutiny into legislative purpose. Judge Wolf responds by pointing out that the Court’s adventure in Commerce Clause Limitation may have run its course. But see NFIB v. Sebelius. 

November 15, 2012 - 09:24:18 pm by Andrew Mamo

No one knows where Ames is! But apparently it is far from Hawaii

November 15, 2012 - 09:23:37 pm by Jon Cioschi

JW: Have Lopez and Morrison been followed in the past 10 years, or have they turned out to be illusory?

November 15, 2012 - 09:23:10 pm by Matt Giffin

Petitioners combat respondents’ suggested black-box attitude towards the legislative purposes here

November 15, 2012 - 09:23:00 pm by Allison Wiseman

Petitioner begins his response by arguing that the fact that the record is light is a great argument for reversing the summary judgment below.

November 15, 2012 - 09:22:59 pm by Duncan Farthing-Nichol

JS: Each side had the chance to put information in the record upon the motion for summary judgment.

November 15, 2012 - 09:22:36 pm by Duncan Farthing-Nichol

JS: How can you make that argument? Each side made motions for summary judgment and had the chance to insert information.

November 15, 2012 - 09:21:56 pm by Jo-Ann Karhson

Respondent to JS: There is good reason to believe that Congress can overcome collective action problems in foreign policy issues — Congress can respond when something causes enough foreign harm to warrant a court’s intervention and Congress is better equipped to handle those situations.

November 15, 2012 - 09:21:42 pm by Andrew Mamo

1. good reason to believe Congress can overcome collective action problems in foreign policy. 2. Congress is best equipped to intervene

November 15, 2012 - 09:21:39 pm by Duncan Farthing-Nichol

JS: Do you think we have a bipartisan foreign policy?

November 15, 2012 - 09:21:19 pm by Duncan Farthing-Nichol

JS: You say Congress would act, but can realistically can Congress act? The truth is that the possibility of Congressional action on anything right now is very difficult. If you’re putting weight on Congress’ act, isn’t that an argument that the court should act as Congress cannot?

November 15, 2012 - 09:20:43 pm by Matt Giffin

Justice Souter has delicately suggested that Congress is not so effective these days

November 15, 2012 - 09:20:30 pm by Andrew Mamo

Congress can assess foreign policy consequences, even if many states have similar provisions. They act on behalf of the nation as well as on behalf of their constituents.

November 15, 2012 - 09:20:23 pm by Jo-Ann Karhson

Respondent to JR: Even if many states pass these laws, the Congress people will be able to assess the foreign policy effects. If these cumulative acts were enough of a problem, Congress would act to preempt these actions.

November 15, 2012 - 09:19:53 pm by Eric Rice

JR: I want to act you a preemption question that applies to both arguments.  There seems to be a question as to whether Congress could muster the votes to preempt.

November 15, 2012 - 09:19:23 pm by Matt Giffin

We are now downplaying Canada. Is this offensive to Our Closest (geographically) Allies?

November 15, 2012 - 09:18:47 pm by Matt Giffin

Respondent argues that the effects of this act demonstrate that the state is not acting as a paradigmatic sovereign entity — its just one customer, and not a regulator crowding out a disfavored company entirely

November 15, 2012 - 09:18:43 pm by Andrew Mamo

The effects are limited. This is not a regulation – it is a spending policy of the state as a market participant.

November 15, 2012 - 09:18:05 pm by Andrew Mamo

The act does not shut companies out of Ames. It just reduces one customer: the state itself

November 15, 2012 - 09:17:50 pm by Jo-Ann Karhson

Respondent to JR: The political branches here have not taken any action or expressed any concern about our policy

November 15, 2012 - 09:17:43 pm by Andrew Mamo

State policies are not immune under the market participant exception, but they should only be subject to the political branches.

November 15, 2012 - 09:17:09 pm by Eric Rice

JR: We’ve got 20 states that do this and more could be on the way. At what point do we have to consider that this could have an effect on foreign commerce as well?

November 15, 2012 - 09:16:59 pm by Andrew Mamo

Market participation is market participation, regardless of the size of the actor. The state acting as a market participant does not include the action of the private actors within the state.

November 15, 2012 - 09:16:51 pm by Matt Giffin

respondent pivots to the facts here — stronger ground. Arguing that in this case, the effects of the discrimination are de minimis and do not violate the constitutional norms protecting Congress’s right to conduct foreign affairs free of sabotage by renegade states. California could well be a republic unto itself and a wacky hippie foreign policy unto itself, but Ames is less likely to cause a brouhaha on the international stage

November 15, 2012 - 09:16:30 pm by Jo-Ann Karhson

Respondent to JR: Policy would apply the same regardless of the size of the state.

November 15, 2012 - 09:15:15 pm by Andrew Mamo

If a state acted outside the bounds of what a private market participant could do, it would not meet the requirements of the exception. But even if it isn’t, the relevant sections of the law can be severed.

November 15, 2012 - 09:15:01 pm by Jo-Ann Karhson

Respondent to JW: The heart of your question is fairness; when states go into the marketplaces, they are like private market participant. The state has not gone farther than a private market participant could.

November 15, 2012 - 09:14:42 pm by Matt Giffin

Here, too, the bench seems to be more aggressive than it was with petitioners

November 15, 2012 - 09:14:38 pm by Jon Cioschi

JW: Not subject to market forces because want to get best quality for best price.  They’re using this policy for other purposes–environmental protection, etc.  This causes me to wonder whether market participant concept is unworkable with regard to municipalities, and whether still viable at all.

November 15, 2012 - 09:13:40 pm by Andrew Mamo

History, Federalism, Fairness. Commerce Clause directed to state regulations discriminatory against other states. No constitutional plan to limit states from operating freely in the market. Hence mkt participant exception. Federalism: regulations on state economic activity is offensive to sovereignty. Fairness: when states go into the marketplace they are treated similar to private actors in the market.

November 15, 2012 - 09:13:00 pm by Jo-Ann Karhson

Respondent to JS: The market participant exception is justified on (1) history, (2) federalism, and (3) fairness

November 15, 2012 - 09:12:40 pm by Matt Giffin

Judge Wolf resurrects a petitioner argument — is this not unduly extending a troublesome market participant exception to international territory, where it had never been extended before?

November 15, 2012 - 09:12:38 pm by Jon Cioschi

JW: Questions of my colleagues indicate fundamental difference between governmental entity and private corporation.  This raises the question whether market participation rule for interstate commerce should be applicable at all.  Why, given difficulties emerging from this colloquy, should we maintain any market participation exception for states?

November 15, 2012 - 09:11:33 pm by Andrew Mamo

The assistance to the local green building industry is a state interest

November 15, 2012 - 09:11:24 pm by Duncan Farthing-Nichol

JS: Aren’t we entitled to be very skeptical about a claim for intangible damages when it is based on the statements, for example, that the statute is to provide American manufacturers with an even playing field, when that is the opposite of what the statute does? The statute is explicitly discriminatory. When the act makes such nonsensical claims, aren’t we entitled to ignore those rationales?

November 15, 2012 - 09:11:11 pm by Matt Giffin

Another mismatch that Justice Souter is pursuing: between the avowed goal of “leveling the playing field” and the result — which is discrimination

November 15, 2012 - 09:10:11 pm by Andrew Mamo

The state is putting forward intangible harms in the form of liquidated damages

November 15, 2012 - 09:09:56 pm by Eric Rice

JR: A private contractor might specify a product and not get it.  Then how would you assess damages?

November 15, 2012 - 09:09:28 pm by Andrew Mamo

Respondent agrees that the state of Ames is a contracting party. Harms: damage to the environment, damage to quality of goods — legislature deemed quality to be higher domestically

November 15, 2012 - 09:09:24 pm by Eric Rice

JR: What if these goods are not lower quality?

November 15, 2012 - 09:09:21 pm by Jo-Ann Karhson

Respondent to JR: Harms = damage to the environment, damage to the quality of goods received…

November 15, 2012 - 09:09:12 pm by Matt Giffin

The mismatch between who supposedly suffers the harm and who collects the damages is a thorny issue for respondent

November 15, 2012 - 09:09:02 pm by Eric Rice

JR: You want to be treated as a market participant we need to look at you as a contractor not a policy maker.  That’s not what you want.  What are we missing?

November 15, 2012 - 09:09:00 pm by Jo-Ann Karhson

Respondent to JR: The harms are to the state and to its citizens.

November 15, 2012 - 09:08:46 pm by Duncan Farthing-Nichol

JS: Harms to whom? The liquidated damages are for the benefit of private contractors, not third parties. You said the ultimate damages are to the American manufacturer and they are difficult to ascertain. Liquidated damages just protect the parties to the contractor. Isn’t that the end of the analogy to private contract?

November 15, 2012 - 09:08:32 pm by Matt Giffin

Justice Souter presses harder on his assertion that there are no “damages” here. Can paying damages to a private contractor vindicate the “harm” suffered by the People of Ames, which is the sort of inchoate harm that respondent is pointing to?

November 15, 2012 - 09:07:43 pm by Jo-Ann Karhson

Respondent to JS: There are damages here. They are not economic, but are intangible harms. The same ones that motivated the legislature to pass the act in the first place.

November 15, 2012 - 09:07:41 pm by Andrew Mamo

A discussion of liquidated damages: The damages are not economic – intangible harms that motivated the passage of the act. Harm to the people of Ames


November 15, 2012 - 09:07:29 pm by Duncan Farthing-Nichol

JS: Well, except that, the theory of liquidated damages, starts with the proposition that there are damages, and that the liquidated damages don’t rise to something punitive. But here, there aren’t any damages. We know the subcontractor was able to buy the panels for less than if he complied with the act. The savings were passed on to Ames. Where are the damages?

November 15, 2012 - 09:07:09 pm by Matt Giffin

Does the liquidated damages penalty provided in the statute rise to the level of a “penalty” of a type only a sovereign entity can impose? Is it relevant that there are no “damages” in ordinary contract terms?

November 15, 2012 - 09:06:12 pm by Jo-Ann Karhson

Respondent to JR: The act imposes liquidated damages.

November 15, 2012 - 09:05:42 pm by Jo-Ann Karhson

Respondent to JR: The penalties that the Ames act imposes are no different than the penalties that a private party could impose in a contract dispute.

November 15, 2012 - 09:05:41 pm by Eric Rice

JR: Your adversaries seemed to admit the possibility that if this was a contract it might be ok, but the problem is that it is a law with penalties that go beyond what a contract would have.

November 15, 2012 - 09:04:55 pm by Andrew Mamo

Federal interference in commerce is an intrusion in state sovereignty. Any sort of intervention should be limited to the political branches, rather than the courts

November 15, 2012 - 09:04:41 pm by Matt Giffin

Respondents open up on the dormant commerce issue by defending the market participant doctrine, which was the main focus of petitioner’s attack

November 15, 2012 - 09:04:25 pm by Andrew Mamo

Market participant exception should apply for foreign commerce as it does in domestic interstate commerce

November 15, 2012 - 09:03:50 pm by Matt Giffin

Nice conclusion by Ms. Freeman

November 15, 2012 - 09:03:42 pm by Duncan Farthing-Nichol

JS: Thank you, counsel.

November 15, 2012 - 09:03:42 pm by Jo-Ann Karhson

Respondent to JR: The petitioner hasn’t borne its burden

November 15, 2012 - 09:03:39 pm by Matt Giffin

Of course in West Lynn Creamery, things did not go so well for the state respondent, even if the Court’s language points to results rather than purposes

November 15, 2012 - 09:03:32 pm by Andrew Mamo

(says the respondent)


November 15, 2012 - 09:03:29 pm by Eric Rice

JR: Why would that be so when the question is whether this is Constitutional?  Why shouldn’t this get a higher level of scrutiny?

November 15, 2012 - 09:03:04 pm by Andrew Mamo

Courts tend to prefer not to question legislative findings of fact. Message to judges: stop pressing on this point!

November 15, 2012 - 09:03:01 pm by Matt Giffin

Justice Souter has become aggressive in querying the legitimacy of state interests. Respondent points to West Lynn Creamery — courts should stay out of the minds of legislatures

November 15, 2012 - 09:02:39 pm by Duncan Farthing-Nichol

JS: Yes, but you had the opportunity under your motion for summary judgment to put this material into the record, if you had it.

November 15, 2012 - 09:02:05 pm by Duncan Farthing-Nichol

JS: Why?

November 15, 2012 - 09:02:05 pm by Andrew Mamo

No formal legislative history here, we must infer rational bases for the legislation. Domestic goods may be environmentally friendly — less transportation. Higher quality, maybe?

November 15, 2012 - 09:01:54 pm by Jo-Ann Karhson

Respondent to JR: We don’t have the legislative history, so the Court should infer rational bases. That holds up our two first points.

November 15, 2012 - 09:01:52 pm by Matt Giffin

Judge Raggi makes a point that the petitioners made in their reply brief — questioning how the Act advances a state interest in quality or “going green” when there is no demonstrated connection that buying American products necessarily serves either aim

November 15, 2012 - 09:01:40 pm by Eric Rice

JR: This does not require the purchase of the best products, but American products even if foreign products are better.  So I don’t see how it furthers the first two.

November 15, 2012 - 09:00:48 pm by Andrew Mamo

Substantial state interests implicated in the act: the preamble to the act mentions state prerogatives: environmental protection, quality control over public works, and public works procurement


November 15, 2012 - 09:00:34 pm by Matt Giffin

Respondent pivots back to the main argument

November 15, 2012 - 09:00:21 pm by Jon Cioschi

JW: If none of them are present–there is a footnote with quotes from various cases–perhaps legislators are more skillful now, or less candid.  It does seem fairly pointed that this would foreseeably have a dramatic effect on sales from China, given the volume of solar panel sales from that country.  I am struggling to find distinctions between this case and Zschernig.

November 15, 2012 - 09:00:19 pm by Duncan Farthing-Nichol

JS: If none of them are present, and there is a footnote with quotes of various cases, but maybe legislators are more skillful or less candid now. Perhaps there hasn’t been the same opportunity for criticism. But since China has the majority of solar panels, at least, why can’t we infer that the statute is targeted? I can understand why you argue that Journeg should be overruled, but I’m struggling to find material differences between this case and Journeg if we should apply it.

November 15, 2012 - 08:59:48 pm by Matt Giffin

Bench has been more aggressive with the respondents thus far

November 15, 2012 - 08:58:47 pm by Andrew Mamo

We have no analysis of Marxist regimes, unlike in Zschernig and Zschernig-like situations.

November 15, 2012 - 08:58:45 pm by Jo-Ann Karhson

Respondent to JW: The quote you point to doesn’t reflect the heart of the decision.

November 15, 2012 - 08:58:07 pm by Jon Cioschi

JW: Was there that kind of evidence in Zschernig at all?  Reads Douglas quote from Zschernig.  I didn’t discern that there was a vast record of such targeting or singling out evidence in Zschernig.

November 15, 2012 - 08:57:50 pm by Matt Giffin

desiderata makes an appearance from the long-ago golden tongue of William O. Douglas

November 15, 2012 - 08:57:10 pm by Andrew Mamo

This is distinct from Zschernig’s application of a probate statute in a way that would provoke or single out other countries.

November 15, 2012 - 08:56:57 pm by Jo-Ann Karhson

Respondent to JS: The reason for the implementation of the act wasn’t meant as a criticism of the Chinese labor policy. The student protests were about that, but the general counsel was only concerned with whether the manufacturing occurred domestically or not.

November 15, 2012 - 08:56:43 pm by Andrew Mamo

The act was not implemented as a criticism of China. The GC of the University was not criticizing China, just implementing the act  for the use of non-American materials


November 15, 2012 - 08:56:18 pm by Duncan Farthing-Nichol

JS: You can’t disagree with the fact that the university didn’t take on the kids protesting China. The reason for the university’s action was revealed in the protest over Chinese labor policy.

November 15, 2012 - 08:56:06 pm by Matt Giffin

Worth pointing out that the “purpose” underlying legislation is a frequent feature of inquiry in the dormant commerce clause context. It generally hasn’t been fertile ground for a fully “hands-off” attitude towards the hidden hearts and minds of legislators

November 15, 2012 - 08:55:46 pm by Jo-Ann Karhson

Respondent to JS: We disagree that the protests of the students reflect the position of the university.

November 15, 2012 - 08:55:38 pm by Duncan Farthing-Nichol

JS: Okay, but you’re drawing a fine distinction. On the record, there is only one reason to believe why the statute was invoked by Ames. That reason is the domestic policy of China. Why isn’t that enough?

November 15, 2012 - 08:54:47 pm by Andrew Mamo

Distinguish reason the statute was implemented and reason that it was brought to the university’s attention

November 15, 2012 - 08:54:43 pm by Matt Giffin

Respondent accurately points out that the University hasn’t singled out China. But can the statute be said to, given its legislative history? It might depend on how much of a textualist mood one is in at the moment

November 15, 2012 - 08:54:32 pm by Duncan Farthing-Nichol

JS: Why does the university have to be the one that singles out?

November 15, 2012 - 08:54:32 pm by Jo-Ann Karhson

Respondent to JS: The record doesn’t reflect that the University singled out China.

November 15, 2012 - 08:54:25 pm by Andrew Mamo

Is the law singling out the labor policies of China? Nothing suggests so. First, the only inquiry of the university was whether or not the materials were domestic. Nothing specific about China.

November 15, 2012 - 08:53:58 pm by Duncan Farthing-Nichol

JS: Before you get into the strengths of the interests, let me go back to the singling out. As I understand it, it is not that the statute must single out, but that the statute invites singling out. Why is such invitation not the case here? This case is before us because Ames is singling out the domestic labor policy of China. Why is the Ames statute not inviting to single out?

November 15, 2012 - 08:52:58 pm by Jo-Ann Karhson

Respondent says to JR:  Precedent  says that one or two countries have been considered “singling out” as we understand it, but even if there was a larger group, it would fail the second prong of the inquiry.

November 15, 2012 - 08:52:48 pm by Andrew Mamo

The second question: balance strength of interests

November 15, 2012 - 08:52:46 pm by Matt Giffin

The materials discussed one of Ames’ legislative goals as being combating Chinese influence. Does this count as “singling out.”

November 15, 2012 - 08:52:16 pm by Eric Rice

JR: What basis is there for limiting it to criticism of one country? Why not say the Soviet Bloc, or any country that uses child labor? Why should the test be criticism of one country?

November 15, 2012 - 08:52:13 pm by Andrew Mamo

For another history lesson, we return to laws that single out the Soviet Bloc.

November 15, 2012 - 08:51:28 pm by Jo-Ann Karhson

Respondent says to JW: Our test is an articulation of the way that lower courts have found it easiest and simplest to implement Zschernig’s holding.

November 15, 2012 - 08:51:27 pm by Andrew Mamo

A fun day for transcribing case names: now we have Mujica

November 15, 2012 - 08:51:24 pm by Matt Giffin

Judge Wolf pounces on the two-part test — respondent points to Mujica as a case implementing this putative test

November 15, 2012 - 08:51:02 pm by Jon Cioschi

JW: Has your test ever been used in this two-part form to decide any case?

November 15, 2012 - 08:50:39 pm by Andrew Mamo

The general thrust of the argument is that preemption is best left to the political branches and there is no need for judicial intervention here


November 15, 2012 - 08:50:39 pm by Jo-Ann Karhson

Respondent says to JW: Zschernig is unnecessary and the court should disavow them.

November 15, 2012 - 08:50:17 pm by Jon Cioschi

JW: There’s nothing you can point to to preempt Zschernig?  Are you arguing that it should stand?  Or should we reverse it?

November 15, 2012 - 08:49:52 pm by Jo-Ann Karhson

Respondent says to JR: there are limitations on state actions, but they should be realized by preemption.

November 15, 2012 - 08:49:44 pm by Matt Giffin

It seemed to me from the briefs that the 2-part test the Respondents are advocating as derived from Zschernig is vulnerable to criticism as unduly minimizing the precedent

November 15, 2012 - 08:49:28 pm by Andrew Mamo

States may act on issues that touch on foreign affairs as long as they do not do so more than incidentally

November 15, 2012 - 08:49:06 pm by Duncan Farthing-Nichol

JS: I understood your argument not to be that in the face of inaction of the political branches, the states could do anything. You’re not saying that the states can do anything if the US government says nothing.

November 15, 2012 - 08:48:50 pm by Matt Giffin

Respondents seem to be arguing that the foreign relations power doesn’t have a “dormant” piece at all — at the very least, deference to the political branches should be the first resort in all cases

November 15, 2012 - 08:48:28 pm by Eric Rice

JR: So Section 8 powers can be exercised by the states until the federal government takes action? Is that a “use it or lose it” proposition for the federal government?

November 15, 2012 - 08:47:56 pm by Andrew Mamo

Cites Zschernig for the proposition that states can act on minor matters as long as the federal government has not acted. A federal “use it or lose it” in JR’s words.

November 15, 2012 - 08:47:39 pm by Jo-Ann Karhson

Respondent says Art 1 section 10 says that states cannot do high level things (like wage war) but states may act in ways that do not (more than indirectly) affect foreign affairs

November 15, 2012 - 08:47:21 pm by Eric Rice

JR: Are you urging us to construe Section 10 to not limit the state’s powers? That any Section 8 powers are concurrent? How do 8 and 10 interact?

November 15, 2012 - 08:46:46 pm by Andrew Mamo

Interruption early: no evidence suggests that buy state laws are unduly interfering — but there’s no factual record at issue here


November 15, 2012 - 08:46:37 pm by Matt Giffin

Respondent starts out by making the “acquiescence” point — Buy American statutes are common, and congressional silence should be relevant

November 15, 2012 - 08:46:26 pm by Eric Rice

JR: We don’t have a factual record on that do we?

November 15, 2012 - 08:45:58 pm by Jo-Ann Karhson

Respondent begins with dormant foreign affairs power

November 15, 2012 - 08:45:48 pm by Andrew Mamo

And the hirabayashi team is up

November 15, 2012 - 08:45:39 pm by Michael Decker

Petitioner argues it doesn’t matter that the executive and legislature haven’t acted– it still weakens the executive’s hand in foreign affairs.

November 15, 2012 - 08:45:03 pm by Jon Cioschi

JW: Isn’t there vivid distinction between this case and Crosby, where Justice Souter relied on grounds that Congress had given President power over economic sanctions vis-a-vis Burma, and thus impliedly preempted interfering state acts, and this case, where Congress and the President haven’t acted?

November 15, 2012 - 08:44:45 pm by Matt Giffin

Judge Wolf mentions Crosby again — the gist is whether congressional action is a better touchstone for preempting state action than a broader constitutional rule

November 15, 2012 - 08:44:08 pm by Michael Decker

Petitioner says the foreign affairs concern is fundamentally about weakening U.S. government’s foreign affairs judgment/power.

November 15, 2012 - 08:43:25 pm by Duncan Farthing-Nichol

JS: Let me ask you, just to switch hats for a second. Let us go back to the foreign affairs power. Every state passes a Buy State law. Under the foreign affairs power, are the Buy State laws unconstitutional?

November 15, 2012 - 08:42:20 pm by Duncan Farthing-Nichol

JS: What if every state passes a Buy State law? What’s the result?

November 15, 2012 - 08:41:44 pm by Michael Decker

Petitioner returns to the “Ames only” vs. “U.S. only” distinction, playing down the invitation to backlash in the former case.

November 15, 2012 - 08:41:12 pm by Eric Rice

JR: As soon as you exclude anyone other than Ames you exclude foreign, how would that be permissible?

November 15, 2012 - 08:40:57 pm by Matt Giffin

The extent to which petitioners disparaged the market participant doctrine, before arguing the act fails under it anyway, may be causing problems here

November 15, 2012 - 08:40:33 pm by Eric Rice

JR: If we are prepared to tolerate a market exception for the Interstate Commerce Cause wouldn’t that exclude foreign products?

November 15, 2012 - 08:39:34 pm by Matt Giffin

Justice Souter circles back to his initial question — how do we go about deciding this supposed impact on the US interest without any participation by the US in the case?

November 15, 2012 - 08:39:21 pm by Duncan Farthing-Nichol

JS: Let me go back to a point I raised earlier. You’re basically making an argument of fact. There will be a certain significance if this is allowed. Why is the United States silent, if the matter is significant?

November 15, 2012 - 08:38:48 pm by Michael Decker

Petitioner brushes away weighing of state size. (It doesn’t matter that Ames is small– “it’s the principle of the thing.”)

November 15, 2012 - 08:38:34 pm by Matt Giffin

Petitioners are pitching their approach as more administrable — courts won’t have to judge how big or important a state is in judging its enactments. Good point.

November 15, 2012 - 08:38:08 pm by Duncan Farthing-Nichol

JS: But that will also very with the size of the state. California may well be considerably larger than a foreign country. Would the application of your argument vary if we were dealing with California Buy American Act or a Rhode Island Buy American Act?

November 15, 2012 - 08:37:32 pm by Michael Decker

Petitioner argues it is worse for foreign sellers to face a buy-American law than a buy-Ames law, for indirect benefits to American companies that affect international commerce (and, petitioner implies, U.S. government interests).

November 15, 2012 - 08:37:19 pm by Matt Giffin

Petitioners are running out of time to get to their case against the Ames law even conceding the validity of the market participant doctrine

November 15, 2012 - 08:36:14 pm by Jon Cioschi

JW: Let’s say statute said “solar panels need to be produced exclusively in Ames.”  Facially, might look like a domestic prohibition.  Practically, it would be permissible if we kept market participation exception.  How can we keep market participation exception in globalized economy?

November 15, 2012 - 08:35:26 pm by Michael Decker

“Zschernig: how DO you pronounce it?” wonders Judge Wolf.

November 15, 2012 - 08:35:16 pm by Matt Giffin

Petitioners in their brief disparaged the market participant doctrine heavily; they stop short of saying it should be overruled though. Now the Justices are pointing out that they saw the doctrine as “unworkable”; if so, why apply it even to the interstate context? Not sure its a question they want to be dwelling on, if they can avoid it.

November 15, 2012 - 08:35:11 pm by Jon Cioschi

JW: You’re not relying on stare decisis with regard to market exception, but relying on it too heavily with respect to Zschernig.


November 15, 2012 - 08:34:03 pm by Michael Decker

Petitioner distinguishes cases treating interstate from international commerce: state doesn’t have interest in protecting nation as a whole as much as it does in protecting its own citizens as against those of other states.

November 15, 2012 - 08:33:38 pm by Eric Rice

JR: Why isn’t this Akin to White, while instead of requiring the employees be American it requires the materials be American?

November 15, 2012 - 08:33:33 pm by Matt Giffin

Petitioners pivot back to the statute which they say discriminates on its face; Justices continue to be interested in the broader question though

November 15, 2012 - 08:32:58 pm by Matt Giffin

Targeting a foreign power, in the doctrine, weighs more towards unconstitutionality. Justice Souter is now asking whether that targeting, in a discretionary setting, would raise constitutional questions

November 15, 2012 - 08:32:45 pm by Michael Decker

Petitioner argues that one-time “buy American” purchase would not be problematic…

November 15, 2012 - 08:32:27 pm by Duncan Farthing-Nichol

JS: In a one-time buying action. Is that unconstitutional?

November 15, 2012 - 08:32:06 pm by Duncan Farthing-Nichol

JS: Let me ask you a question. If your argument is sound, let’s assume there is no Buy American statute in Ames. But when Ames buys green technology, it engages in exactly the same discrimination it does not. No Chinese green technology. Would that be unconstitutional?

November 15, 2012 - 08:31:42 pm by Michael Decker

Petitioner argues that state regulations of foreign commerce should be subject to higher scrutiny because of higher risk to nation as a whole: pro-nation statutes more likely to invite retaliation than pro-state statutes.

November 15, 2012 - 08:30:55 pm by Matt Giffin

Is the fact that market participation has not been extended to dormant foreign commerce significant, as petitioners argue, or merely a function of constitutional avoidance, as respondents will argue?

November 15, 2012 - 08:30:32 pm by Duncan Farthing-Nichol

JS: How do we refuse to do it with coherence to the text of the provision?

November 15, 2012 - 08:30:29 pm by Michael Decker

Petitioner sets out its course respondent’s market-participant argument.

November 15, 2012 - 08:29:40 pm by Allison Wiseman

Petitioner argues for an implicit prohibition to be read into Constitution.  10th Amendment does not come into play.

November 15, 2012 - 08:29:16 pm by Andrew Mamo

And now so do the Articles of Confederation.

November 15, 2012 - 08:29:09 pm by Matt Giffin

Petitioners pointing out that a state’s ability to discriminate against “foreign” commerce (sister states or foreign nations) is significantly narrower than the federal government’s ability to engage in such anti-foreign discrimination. States do not properly have the power to speak for the United States, or to engage in the shaping of American foreign policy. This much is surely conceded by both sides; what Respondents will point to is the de minimis impact of this regulation, as well as the “disfavored” (at least per them) nature of the underlying doctrine

November 15, 2012 - 08:28:59 pm by Jon Cioschi

JW: In your brief, you argue hat Art. I § 8 gives Congress “the exclusive power” to regulate foreign commerce.  How is this reconcilable with the 10th Amendment?   I see nothing in text of Constitution that expresses intention to prohibit the states from doing some things that affect international affairs.  Global warming, included.

November 15, 2012 - 08:28:41 pm by Andrew Mamo

The Tenth Amendment rears its head

November 15, 2012 - 08:28:25 pm by Allison Wiseman

Petitioner: National interest is in protecting American jobs and promoting the interest of the United States.  State cannot protect the United States as a whole.

November 15, 2012 - 08:28:01 pm by Duncan Farthing-Nichol

JS: Why can’t Ames protect American jobs?

November 15, 2012 - 08:27:40 pm by Duncan Farthing-Nichol

JS: Why would a federal act serve a legitimate public purpose when a state does not have a public purpose?

November 15, 2012 - 08:27:12 pm by Eric Rice

JR: Do you think the foreign affairs doctrine you’re urging goes so far as disallowing a state sending a trade envoy to another country to promote the buying of Florida oranges or Idaho potatoes?

November 15, 2012 - 08:27:09 pm by Duncan Farthing-Nichol

JS: Do you believe that a federal Buy American act is unconstitutional?

November 15, 2012 - 08:27:03 pm by Allison Wiseman

Petitioner: Under commerce clause, Court could decide that state’s potential reliance on market participant exception would be misplaced because state had no reliance on local state interest. State should not be able to cause harm to the entire United States.

November 15, 2012 - 08:26:34 pm by Matt Giffin

Petitioners tacitly conceding that the “market participant doctrine” in dormant commerce jurisdiction provides a more solid foothold for the respondents than does anything in the foreign relations power

November 15, 2012 - 08:26:07 pm by Eric Rice

JR: You don’t think the Market Participant Doctrine would have a role to play in the Foreign Affairs area as well?

November 15, 2012 - 08:25:32 pm by Eric Rice

JR: I want to be certain I understand why you want us to go here at all.  Could we reject your dormant Commerce Clause argument and accept your dormant Foreign Affairs clause?

November 15, 2012 - 08:24:47 pm by Michael Decker

Petitioner argues that “the weight of legislative inertia” should err on the side of pre-empting state foreign commerce.

November 15, 2012 - 08:23:39 pm by Matt Giffin

Zschernig is a major point of contention here — Respondents will seek to severely downplay its precedential significance as a case which has since been sidelined by the Court, though not overruled

November 15, 2012 - 08:23:37 pm by Duncan Farthing-Nichol

JS: But remember that in Garamendi the case came up when there was action by the executive branch. Here, we don’t have any executive action, Congressional action, or any US opinion. This is not Garamendi.

November 15, 2012 - 08:23:17 pm by Jon Cioschi

JW: In which decision was Zschernig relied upon by this Court?

November 15, 2012 - 08:22:51 pm by Andrew Mamo

For those playing along at home, there’s an extended discussion of Zschernig v. Miller

November 15, 2012 - 08:22:40 pm by Jon Cioschi

JW: Zschernig has hardly ever been relied upon.  If we’re thrown back on that case, isn’t a fine candidate under Brandeis view of stare decisis to be corrected by us?

November 15, 2012 - 08:21:50 pm by Allison Wiseman

Petitioner: The exclusivity of the foreign affairs power has been repeated over and over in this Court’s reasoning and decisions.

November 15, 2012 - 08:21:32 pm by Matt Giffin

Question now going to a matter covered more extensively in Respondents’ brief — the role of Congress’s silence in determining amount of offense to the federal foreign relations power

November 15, 2012 - 08:21:07 pm by Jon Cioschi

JW: The assertion that states may not intrude into foreign affairs is based on some manifestation power from federal government–in cases respondents cite, such as the Chinese Exclusion Cases.  Do you support that reading of these cases?

November 15, 2012 - 08:20:13 pm by Allison Wiseman

Petitioner: We can rely on the principle that the federal foreign affairs power is exclusive.

November 15, 2012 - 08:19:58 pm by Duncan Farthing-Nichol

JS: But not for that point, though.

November 15, 2012 - 08:19:46 pm by Duncan Farthing-Nichol

JS: That may have been rather an adventurous attitude on the part of the Supreme Court. That opinion was written by a justice certainly no shrinking violet when it came to exercising the judicial power. What is the doctrinal reason for deciding the case before the court?

November 15, 2012 - 08:19:06 pm by Allison Wiseman

Petition argues that the best reason for this Court not to take the views of the US into account is that even if the US intervened on the side of the Respondent, Petitioner still would prevail.

November 15, 2012 - 08:18:27 pm by Duncan Farthing-Nichol

JS: Let me ask you a question that goes beyond the material. It’s a question that you may not have an immediate answer for, but it goes to a fundamental difficulty. We can assume that we took this case because there are 20 state Buy American laws out there. That is enough of a critical mass for a comprehensive review. But the remarkable thing about the case as it comes to us now is that the United States of America is not here. There is no amicus brief, no brief from the State Department. When we asked to make doctrine on a case such as this, isn’t it better to dismiss the case without the US government’s guidance, given the fundamental importance of the issue to the United States. Why should we decide this case now?

November 15, 2012 - 08:18:04 pm by Matt Giffin

Justice Souter’s question about the existence of 20 “Buy American” laws — points to the strange posture of this case. If the United States itself is not before the Court, can the adversarial system adequately deal with the situation. This is not something covered in either brief; it will be interesting to see how petitioners deal with it.

November 15, 2012 - 08:15:57 pm by Eric Rice

JR: Are you urging us to conclude that there are no limits on the states in foreign affairs until Congress has acted?

November 15, 2012 - 08:15:01 pm by Matt Giffin

Bench is fairly cold thus far

November 15, 2012 - 08:14:58 pm by Allison Wiseman

Petition argues the state has a disability to intervene in foreign affairs, though this is a structural guarantee not explicitly in the Constitution.

November 15, 2012 - 08:14:23 pm by Matt Giffin

Petitioner now explaining the relatively shady origins of the dormant commerce and “dormant foreign relations” doctrines

November 15, 2012 - 08:14:21 pm by Eric Rice

JR: Where does the Constitution say the states lack the ability to intercede in foreign affairs?

November 15, 2012 - 08:13:52 pm by Eric Rice

JR: Why is that non enough?

November 15, 2012 - 08:13:41 pm by Eric Rice

JR: States are willing to cede foreign affairs powers when preempted

November 15, 2012 - 08:13:29 pm by Allison Wiseman

Petition opens by arguing that the state of Ames took an act interfering with international law and that the Court’s precedent must reject it.

November 15, 2012 - 08:11:52 pm by Duncan Farthing-Nichol

JS: We will hear argument case #12 152, Go Glow v Simpson. Before the arguments begin, I would like to hear from the counsel about the disposition of their time.

November 15, 2012 - 08:11:36 pm by Matt Giffin

Justice Souter introducing the case and inviting argument

November 15, 2012 - 08:11:09 pm by Duncan Farthing-Nichol

JS: I guess it’s up to me. Please be seated.

November 15, 2012 - 08:10:46 pm by Matt Giffin

Oyez Oyez Oyez

November 15, 2012 - 08:10:15 pm by Matt Giffin

All Rise

November 15, 2012 - 08:09:51 pm by Matt Giffin

Hirabayashi memorial team — named in honor of a Japanese-American challenger to the Japanese exclusion order in World War II. Though he lost his case at the time, the decision was later rescinded by the Ninth Circuit, which recognized the profound error of the earlier decision

November 15, 2012 - 08:08:19 pm by Matt Giffin

Bill Stuntz Memorial team — named for the late Professor Stuntz at HLS, in honor of his scholarship in the field of criminal law, and his contributions to understandings of the moral and racial dimensions of our criminal law

November 15, 2012 - 08:07:10 pm by Matt Giffin

The two Questions Presented:

  1. Whether the Ames Buy American Green Technologies Act, Ames Rev. Stat. § 401, is invalid as an intrusion on the federal government’s foreign affairs power.
  2. Whether the Ames Buy American Green Technologies Act, Ames Rev. Stat. § 401, is invalid under the dormant Foreign Commerce Clause.

November 15, 2012 - 08:05:11 pm by Matt Giffin

BSA congrats to both teams and all participants

November 15, 2012 - 08:04:10 pm by Matt Giffin

This is, apparently, the 102nd Ames Final

November 15, 2012 - 08:03:00 pm by Andrew Mamo

And the festivities are about to begin.


November 15, 2012 - 08:02:48 pm by Matt Giffin

I think we are about to start

November 15, 2012 - 07:59:05 pm by Matt Giffin

As Vice President Biden would say if he were with us, the anticipation is QUITE LITERALLY palpable.

November 15, 2012 - 07:57:13 pm by Andrew Mamo

The dean greets the teams. Perhaps the judges will make an appearance?


November 15, 2012 - 07:54:42 pm by Matt Giffin

The Courtroom is close to filled up, which portends progress

November 15, 2012 - 07:43:45 pm by Matt Giffin

The proceedings are, for the 112th consecutive year, starting somewhat late.

November 15, 2012 - 07:40:36 pm by Matt Giffin

Now it is really and truly fixed.

November 15, 2012 - 07:38:43 pm by Andrew Mamo

Timestamp issue fixed. I know you were all anxious about that.

November 15, 2012 - 07:37:03 pm by Matt Giffin

The entries are appearing in actual order though, so not to worry

November 15, 2012 - 07:36:27 pm by Andrew Mamo

Please ignore the timestamps. We are experiencing technical difficulties.

November 15, 2012 - 07:31:33 pm by Matt Giffin

The case is Go Glow, Inc. v. Simpson, which involves two constitutional doctrines: the foreign dormant commerce clause and the Congress’s Art. I, Sec. 10 International Relations power. The petitioners are arguing that a state statute is invalid under both doctrines, and respondents argue that the state statute, the “Ames Buy American Act,” is valid.

For details on the case and the briefs, see

November 15, 2012 - 07:27:56 pm by Matt Giffin

The Respondents, going second, will be the Gordon Hirabayashi Memorial Team, represented by Yaira S. Dubin, Emma L. Freeman, Benjamin F. Jackson, Michael D. Lieberman, William H. Milliken, and Michael J. Springer

November 15, 2012 - 07:26:14 pm by Matt Giffin

The petitioners tonight are the William J. Stuntz Memorial Team, represented by Ryan Doerfler, Cormac Early, Conor Mulroe, Josh Segal, Vivek Suri, and Allison Trzop.

November 15, 2012 - 07:22:54 pm by Matt Giffin

It appears that the judge we originally thought would be Judge Reinhardt of the 9th Circuit will instead by Judge Mark Wolf

November 15, 2012 - 07:19:57 pm by Andrew Mamo

Still working out some technical issues. We’ll be with you shortly.

November 15, 2012 - 07:18:29 pm by Matt Giffin

Hello CRCL readers on all 7 continents

November 15, 2012 - 07:18:00 pm by Andrew Mamo

Welcome to the 2012 CRCL Ames Liveblog!

November 14, 2012 - 11:14:29 am by Jeff Dunn


We are now accepting submissions for Volume 52.1! Interested in submitting?