SCt's cert grant in Title II ADA case
Tobias B. Wolff
tbwolff at UCDAVIS.EDU
Wed Nov 20 16:49:13 PST 2002
I guess that's part of the point -- how much of Wickard survives?
Morrison rendered Wickard unavailable where a statute seeks exclusively (or, primarily) to regulate "non-economic" activity (gender-motivated violence).
I guess what I'm asking is, does the need for a comprehensive remedy still have force in Commerce Clause analysis where the "non-economic activity" is neither the primary nor the
principal target of the statute, but simply a component (and, by hypothesis, an integrated component) of what the statute aims to regulate.
LoAndEd at AOL.COM wrote:
> Don't know whether Tobias Wolff's is the "type of argument that is cognizable under the new Commerce Clause jurisprudence," but wouldn't it appear to describe Wickard itself?
> Tobias Wolf writes:
> Marty's post raises an interesting question.
> Say that Congress enacts comprehensive legislation in a given field, like access for
> the disabled in public facilities. Assume that, considered in isolation and on a
> case-by-case basis, the statute satisfies the new Commerce Clause jurisprudence in
> many (even most) of its expected applications, but not all. That is, assume that
> most of the facilities that would be regulated by Title II are either "economic"
> under Morrison, and hence subject to aggregation, or else contain a nexus to
> interstate commerce; but that some do not.
> If a challenge is brought by one of the small subset of facilities that, when
> considered in isolation, is not regulable under the Commerce Clause, is it available
> to the government to argue that the law must be comprehensive in its application in
> order to be effective? That is, can the government argue that allowing
> non-economic, intrastate facilities to enjoy exemptions from the statute will
> undermine its overall effectiveness, and hence that the Commerce Clause authority to
> regulate the facilities that are clearly "economic" or "interstate" includes a power
> to regulate the intrastate facilities in order that the regulation of the former
> not be undermined? (One possible example among many: The disabled must enjoy access
> to free local buses in order to take advantage of their access to airports and
> Forget, for the moment, whether that argument is factually correct with respect to
> Title II. Is it a type of argument that is cognizable under the new Commerce Clause
> -- T
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