Time for a new subject

Scaperlanda, Michael A mscaperlanda at OU.EDU
Mon Nov 4 13:58:51 PST 2002

Are the standardization of time and the saving of time acts undertaken based
on Congress' Commerce power?  If so, is the telling of time an
"instrumentality" of commerce?  Is it a "channel" of commerce?  If neither
instrumentality nor channel, is the telling to time an activity that
"substantially affect[s] interstate commerce"?  Even if it substantially
affects interstate commerce, it might still hypothetically be beyond
Congress' commerce power under Lopez and Morrison if the telling of time is
a non-economic activity.  As the Court in Morrison said, "While we need not
adopt a categorical rule against aggregating the effects of any noneconomic
activity in order to decide these cases, thus far in our Nation's history
our cases have upheld Commerce Cl. regulation of intrastate activity only
where that activity is economic in nature..."

Michael Scaperlanda
Gene & Elaine Edwards Family Chair in Law
University of Oklahoma College of Law
300 West Timberdell Road
Norman, Oklahoma 73019
(405) 325-4833
FAX (405) 325-0389
mscaperlanda at ou.edu <mailto:mscaperlanda at ou.edu>
-----Original Message-----
From: Sanford Levinson [mailto:SLevinson at MAIL.LAW.UTEXAS.EDU]
Sent: Monday, November 04, 2002 1:44 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Time for a new subject

It may well be that I went overboard with the hypo, stimulated by the
fascinating manuscript that I read about the 19th century "time cases."  I
would make one point, though, with regard to Eugene's citation of Reno.
Does this suggest that Ussery is now a completely dead letter and that,
contrary to O'Connor's promise (or threat) in her dissent in Garcia,
federalism-oriented conservatives would *not* wish to reverse Garcia and,
therefore, have fully accepted the argument that the national government can
regulate states so long as it is part of a "neutral law of general
application" that embraces private citizens as well?


At 06:06 PM 11/03/2002 -0800, you wrote:

        I must be missing something here:

        (1)  As Reno v. Condon (2000) unanimously held, the federal
government retains the power to regulate what States do, so long as it "does
not require the States in their sovereign capacity to regulate their own
citizens," and "does not require the South Carolina Legislature to enact any
laws or regulations, and it does not require state officials to assist in
the enforcement of federal statutes regulating private individuals."  If a
uniform federal time act is treated as a means of "fix[ing] the standard of
. . . measures," then it seems to me that it can be applied to state
government conduct as well as private conduct.

        (2)  Even if states were somehow immune from the law, can we really
envision a state government choosing to keep a different time from the time
that all the state's citizens keep in their transactions (since they are
bound by the federal law)?

        And if I'm right on either of these points, then I'm not sure what
this hypo tells us about the supposed unsoundness of the Court's recent
federalism jurisprudence (and forgive me if I misunderstood the hypo's
goal).  Congress should, I think, have the power to set a uniform national
timekeeping system.  It in practice does have this power, and would have it
under the conservatives' view of federalism.  What exactly is the problem?


> -----Original Message-----
> From: Sanford Levinson [mailto:SLevinson at MAIL.LAW.UTEXAS.EDU
<mailto:SLevinson at MAIL.LAW.UTEXAS.EDU> ]
> Sent: Sunday, November 03, 2002 2:29 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Time for a new subject
> Glenn Reynolds writes:
> >I was going to suggest it fell under art 1 sec.8, cl. 5:
> "To. . . fix
> >the standard of weights and measures."  But whatever.
> Well, yes, but wasn't the point of  NY and Printz to say that
> it didn't matter that the Constitution assigned explicit
> authority to Congress if the law in question trenched on the
> state's own sovereignty (with the exception of Fourteenth
> Amendment legislation)?  So Congress can "fix . . . measures"
> for the "private" sector and pre-empt contrary state law, but
> does that mean that the state can't stick to "natural" time
> in operating its own institutions?
> sandy
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