US v. Morrison -- question

Thu Nov 3 17:14:57 PST 2005

Hi Marty: 

Quick Question re relationship between Pierce and Raich:  

Is the same causal link required for Congressional regulation of  the channels of interstate commerce  as for Congressional direct regulation of interstate commerce ?  

I always thought that coming under  the "channels" power precluded the need to even address the Katzenbach rational basis analysis - on the theory that the channels power gives Congress plenary power to regulate the routes through which interstate commerce is conducted. Thus channels regulation stands on it own without any other link to interstate commerce required.  The Pierce evidentiary rule  would clearly fall within that channels power because it was part of a statute  specifically designed to help Congress collect better information about  local road safety - ditto channels by definition - isn't it?. 

Although many might disagree as to whether the evidentiary rule would in fact improve the quality of highway safety information - isn't that judgment  clearly Congress' ? 

Perhaps one can argue that the federalism theory of Lopez/Morrison should logically apply as well to channels and instrumentalities power.  But is there anything in the cases that suggests the Court has taken that approach? Instead, they seem to have consistently labelled  the "channels" power as distinct from the "sustantially affects I/c" power. 

yb

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From: conlawprof-bounces at lists.ucla.edu on behalf of Marty Lederman
Sent: Thu 11/3/2005 6:28 PM
To: Mitch Berman; Don Crowley; Sean Wilson; conlawprof at lists.ucla.edu
Subject: Re: US v. Morrison -- question

Mitch:  Well, I was, quite literally, going to write "don't forget about Pierce County v. Guillen" -- but you beat me to it.  Here's how I described the Court's holding in Guillen in a brief I filed in Cutter (http://www.scotusblog.com/movabletype/archives/Cutter.Senators.Final.pdf) -- a holding (written by Thomas, no less) that makes the causal chain in Raich -- and Breyer's inferences in Lopez and Morrison -- seem downright unattentuated by comparison:

Cf. Guillen, 537 U.S. at 147 (federal statute requiring states to make certain hazardous-road reports inadmissible as evidence in state-court proceedings fell within Congress's Commerce Clause power to protect channels of commerce in light of the following possible causal chain:  Requiring such an evidentiary rule would make it more difficult for would-be plaintiffs to obtain evidence to support negligence actions against state and local governments, which would in turn "result in more diligent [government] efforts to collect the relevant information, more candid discussions of hazardous locations, better informed decisionmaking, and, ultimately, greater safety on our Nation's roads").

	----- Original Message ----- 
	From: Mitch Berman <mailto:MBerman at law.utexas.edu>  
	To: Don Crowley <mailto:crowley at uidaho.edu>  ; Sean Wilson <mailto:whoooo26505 at yahoo.com>  ; conlawprof at lists.ucla.edu 
	Sent: Thursday, November 03, 2005 7:10 PM
	Subject: RE: US v. Morrison -- question

	And there's Pierce County v. Guillen, a case decided the same term as Hibbs, in which the Court unanimously upheld a federal law that protects information compiled or collected by states and localities in connection with various federal highway safety programs from being discovered or admitted into evidence in state or federal trials.  Not commercial?  Intrudes on traditional areas of state sovereignty?  No problem.

	I would have said "And don't forget about Pierce County v. Guillen," but that would have been arch, for hardly anyone noticed it in the first place.

	Mitch

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	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

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	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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