Congressional override of Geduldig
lesl at UDEL.EDU
Wed Apr 26 20:29:12 PDT 2000
It is not true that all commerce (post Garcia)is interstate or foreign commerce.
A back-to-nature type who has a few sheep and makes wool and weaves rugs and
hangings from it and sells them only to local retailers and hires a couple kids
in the neighborhood as apprentices is not engaged in interstate commerce, even if
her loom was mnfctrd out of state. Even if you multiplied her by all the people
like her, that is not many looms, ergo negligible impact on interstate commerce.
What is changed from Marshall's day is that folks like her are a tiny tiny
minority instead of a sizable chunk of the population.
Does anyone on the list think Lopez would have gone differently if Congress had
lots of findings about how the defects of U.S.Education are hurting our
competitiveness in the global economy? Intriguing to me that neither of our
presidential candidates seems to care a fig whether his proposals for helping
education fit under Congress's delegated powers.
Richard Dougherty wrote:
> I understand and accept the "political process" abnegation of responsibility.
> On the merits: Would it be too extreme to say I am surprised at the answer?
> Is the proper rendering of Garcia that all commerce is interstate commerce? I
> realize that that is long-settled, I just wonder whether it's right. Under
> substantial effects doctrine, is there any state activity that is not
> interstate? Limiting the question to employment, does it matter if the state
> activity involves one employee or 1,000?
> (I know this is long-debated, I just didn't expect this account from Michael
> McConnell; I take it Sandy Levinson didn't either? "I am delighted to receive
> Michael's statement about Garcia's being rightly decided. I hope that
> doesn't come back to haunt him in a future confirmation hearing!")
> What of Lopez, then? It seemingly doesn't involve commerce or the state as
> direct employer (though it might, because of the school system funding and
> state certification of teachers?), but how far are we from Breyer's "This is
> the House that Jack Built" dissent? Is there a critical dividing line I'm not
> Richard Dougherty
> University of Dallas
> Michael McConnell wrote:
> > The reasoning in Garcia was terrible because the Court never reached
> > the merits -- it held that the federal/state balance is left to the
> > political process.
> > Participation in the labor market is economic in nature, and since
> > the labor market is national in scope, it is (or least substantially
> > affects) interstate commerce. Not only is that long settled, but it
> > make sense: the supply and demand for labor in each state affects the
> > market in other states.
> > The only difficult question is whether the state's status as state
> > gives it an implied immunity. The best answer to that, I think, is
> > that the federal government has no authority to control a state's
> > conduct in its governmental (lawmaking or law enforcing) capacity --
> > at least in the absence of express textual authority, see Testa v.
> > Katt -- but that it has authority to regulate a state's participation
> > in commerce in a commercial capacity, such as the capacity of
> > employer. In other words, Congress has the power to regulate commerce
> > (even when conducted by state governments) but does not have the
> > power to direct the the state to exercise governmental functions.
> > > Date: Mon, 24 Apr 2000 13:34:27 -0500
> > > Reply-to: Discussion list for con law professors
> > > <CONLAWPROF at listserv.ucla.edu>
> > > From: Richard Dougherty <doughr at ACAD.UDALLAS.EDU>
> > > Organization: University of Dallas
> > > Subject: Re: Congressional override of Geduldig
> > > To: CONLAWPROF at listserv.ucla.edu
> > > Michael:
> > > Since Garcia has always confused me, could you spell out a bit the
> > > right reasoning that would lead to the same conclusion? Does the
> > > question of the interstate nature of the commercial activity make a
> > > difference? Or is the funding question part of the interstate
> > > implication? (If you have addressed this in print, is there a cite
> > > I could get?) Richard Dougherty
> > >
> > > Michael McConnell wrote:
> > >
> > > > Congress has the authority to regulate state and local governments in
> > > > their capacity as participants in commerce (including as employers),
> > > > by means of generally applicable laws; thus, Garcia was rightly
> > > > decided, though badly reasoned. Nothing in New York or Printz is to
> > > > the contrary. That principle would extend to the PDA.
> > > >
> > > > -- Michael McConnell (U of Utah)
> > -- Michael McConnell (U of Utah)
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