US v. Morrison -- question

Jonathan Miller jmiller at swlaw.edu
Thu Nov 3 14:15:44 PST 2005


I would add Scalia's approach -- which is implicit in the majority -- as 
also something new.  The idea that if there is a regulatory scheme that 
is a regulation of interstate commerce, provisins that are necessary and 
proper to advance the scheme are also constitutional.  Who knows how far 
this will be taken in future cases, but it certainly opens the door very 
wide and could include many noneconomic activities.

Jonathan Miller

Douglas Laycock wrote:

> The trial lawyers carefully set up the facts in Raich; there was no 
> exchange.  Plaintiffs grew their own in their homes; the more 
> disabled plaintiffs had friends do it for them, for free.  
> The government's theory was that there was production, which is 
> economic, and which substituted for a commerical exchange.
>  
> True enough, but equally true of all household production.  Cooking 
> dinner is production, and it substitutes for going out to a 
> restaurant.  Picking up the mess in your bedroom produces a service of 
> economic value, and it substitutes for hiring a cleaning service.   On 
> the government's theory, the market transaction for which the 
> household production substitutes does not have to be a legal 
> transaction, so more intimate bedroom activities may also substitute 
> for a commercial transaction.
>  
> This does not overrule the exclusion of "noneconomic activities" in 
> Lopez and Morrison, but it announces a very expansive conception of 
> what counts as economic.
>  
> Douglas Laycock
> University of Texas Law School
> 727 E. Dean Keeton St.
> Austin, TX  78705
>    512-232-1341 (phone)
>    512-471-6988 (fax)
>  
>
> ------------------------------------------------------------------------
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Don Crowley
> Sent: Thursday, November 03, 2005 3:39 PM
> To: 'Sean Wilson'; conlawprof at lists.ucla.edu
> Subject: RE: US v. Morrison -- question
>
> Depends on what you mean by backing off.  I suppose the Raich case 
> could be cited as backing off but there the issues get complicated by 
> the drug question and conservatives can distinguish the case from 
> Morrison by saying that there was an economic exchange. 
>
>  
>
> Conceivably you are thinking of Tenn v. Lane where O'Connor joins the 
> centrists (couldn't resist) to apply the application of Title II of 
> the ADA to the States over an 11th amendment claim.
>
>  
>
> Or you could be thinking of Nevada v. Hibbs where individuals were 
> allowed to sue states in federal court under the Family and Medical 
> Leave Act.  Here both O'Connor and Rehnquist showed "cold feet" to the 
> recent Court trend.
>
>  
>
> Don
>
>  
>
> ------------------------------------------------------------------------
>
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sean Wilson
> Sent: Thursday, November 03, 2005 12:26 PM
> To: conlawprof at lists.ucla.edu
> Subject: US v. Morrison -- question
>
>  
>
> Has there been a case decided after US v. Morrison that tells us 
> whether or not the Court is backing off this commerce clause stuff? I 
> had thought that O'Connor was getting cold feet, but I can't remember 
> how that thought arrived in my head. I seem to remember another case 
> out there -- is there one? Could someone please post its cite or case 
> name? Many thanks in advance.  
>
>  
>
> ------------------------------------------------------------------------
>
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-- 
Jonathan Miller
Professor of Law
Southwestern University School of Law
675 S. Westmoreland Ave.
Los Angeles, CA 90005-3992
Tel. 213-738-6784

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