Under our dual system of federal and state governance, Congress is restricted to the exercise of powers expressly granted to it by the Constitution. Consequently, for VAWA to be valid, it must be the product of the valid exercise of one or more Congressional powers under the Constitution. In passing VAWA, Congress stated that it was exercising two distinct constitutional powers. VAWA is constitutional if it passes muster as a valid exercise of either power.

Congress first justified VAWA under its power to regulate interstate commerce. Since the mid-1930s, the Supreme Court has interpreted this power to mean that Congress can regulate any activity that has a "substantial effect" on interstate commerce. Until 1995, the Supreme Court did not strike down a single Congressional Act that was premised on the power to regulate interstate commerce. In that year, however, in U.S. v. Lopez, the Court struck down the Gun Free School Zones Act, which had made it a federal crime to possess a gun near a school. The Court found the connection between possession of guns near schools and interstate commerce was too attenuated to justify the Act under Congress' commerce power.

Congress also justified VAWA under its power, granted by the Fourteenth Amendment, to remedy failures by the states to protect their citizens' right to equal protection of the laws. Congressional exercise of this power must be directed against state action and cannot reach conduct that is purely private in nature. Thus, to be valid under this power, VAWA must be characterized as an attempt to remedy the failure of states to provide equal protection to persons who are victims of gender motivated violence. The most important recent decision of the Supreme Court in this area is the 1997 case of City of Boerne v. Flores, where the Court struck down the Religious Freedom Restoration Act. That Act, which purported to address the failure of the states to sufficiently guarantee religious freedom, could not stand under the Fourteenth Amendment (in part) because there was no evidence that the states had enacted any laws unfairly impinging on religion within the last 40 years.

In the case before the Court today, respondent Oxana Anisimov was an employee who worked in the dental offices of petitioner Jacob S. Lake. She sued Lake under VAWA, claiming that he had committed four crimes of gender-motivated violence against her, culminating in his rape of her at one of his former offices. Lake has challenged the constitutionality of VAWA, arguing that the Act cannot stand as either a valid exercise of Congress' power to regulate interstate commerce, or of its power to remedy failures of the states to guarantee the equal protection rights of their citizens. In today's argument, counsel for the petitioner will attempt to discredit VAWA on both grounds, while counsel for the respondent will be arguing that VAWA is the valid exercise of either commerce power, the Fourteenth Amendment power, or both.

Prior to his appointment, he served under the Reagan administration in the following capacities: Counsel to the White House Office of Policy Development in 1982; Counsel to the Department of Transportation in 1981 and 1982; Litigator at the Department of Justice in 1983; and Solicitor General form 1985 to 1989. He also served as Special Counsel to the Treasury Department from 1961 to 1962.

Charles Fried is also a leading constitutional law scholar. While a professor at Harvard Law School, he published numerous treatises and was a Guggenheim Fellow in 1971 and 1972. He is currently a Professor Emeritus at Harvard Law School.
 

Prior to his appointment to the bench, Judge Jensen served as District Attorney for Alameda County from 1969 to 1981. He also served as Deputy Attorney General at the Department of Justice from 1984 to 1986. Judge Jensen has authored several publications on criminal law and has taught seminars for prosecutors. He was named Distinguished Alumnist of the Year by Boalt Hall in 1983.
 

Prior to her appointment to the bench, Judge Wald served as Assistant Attorney General for Legislative Affairs in the Department of Justice from 1977 to 1979. She was an attorney for the Mental Health Law Project from 1972 to 1977, and the Project's Litigation Director from 1975 to 1977, as well as an attorney with the Neighborhood Legal Services Program and the Center for Law and Social Policy in Washington and co-chair of the Ford Foundation's Drug Abuse Research Project. She is a Council Member and Second Vice President of the American Law Institute and a Fellow of the American Academy of Arts and Sciences.
 

Andrew is a member of the Moot Court Board. He has received the Prosser Prize in California Marital Property, as well as a Moot Court Commendation.

In August, Andrew will marry his fiancee Dee Do, who is studying to be a teacher. Andrew will join the Oakland office of Donahue, Gallagher, Woods & Wood this fall.
 

During the summer after his first year in law school, Michael worked for the Regional Center of the East Bay, leading workshops on naturalization and working on a class action against the INS on behalf of immigrants with disabilities. Last summer, he clerked for Rudy, Exelrod, Zieff & True, a plaintiff-side employment litigation firm in San Francisco. Currently, Michael is one of the Executive Editors for the Berkeley Women's Law Journal. Last year, he was BWLJ's Production Editor, and for the fall semester he was also the Web Editor for the Berkeley Technology Law Journal. In addition, Michael has been active with the Workers' Rights Clinic, and clerked with the Berkeley Community Law Center's housing unit in his second year.

After graduation, Michael will join Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro in Los Angeles as a litigation associate. After a year at the firm, he will take a leave of absence to clerk for the Honorable Claudia Wilken, United States District Court, Northern District of California, in Oakland.