US v. Morrison -- question

Fri Nov 4 10:05:11 PST 2005

Yes, but at least as far as I know (and I'd be happy to be corrected), those pre-Guillen cases involved regulations of the instrumentalities or channels of interstate commerce themselves; they did not involve regulation of purely intrastate activity for the (purported) purpose of protecting the instrumentalities or channels.

The Guillen Court never explained why the (non)economic character of the intrastate activity being regulated is relevant (perhaps even dispositive) when Congress regulates intrastate activity for the purpose of promoting commerce, but is entirely irrelevant when Congress regulates intrastate activity for the purpose of protecting the instrumentalities or channels of commerce.  And the same could be said regarding the "traditional area of state sovereignty" factor: that looms large in the former context but was irrelevant to the Guillen Court. There may be good reasons for these superficial dissimilarities but I daresay that what those reasons might be is not so obvious as to go without mentioning.

Mitch

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Earl Maltz
Sent: Thu 11/3/2005 7:34 PM
To: Marty Lederman
Cc: conlawprof at lists.ucla.edu
Subject: Re: US v. Morrison -- question

Certainly an expansive reading of Congressional power, but one that is
unrelated to the theories of either Lopez or Morrison.  Since well before
1937, Congress has been held to have plenary authority to regulate and
protect the instrumentalities of interstate commerce.  It was this theory
that the Court relied upon,  rather than the theory that the regulation was
in any meaningful sense economic.

I think that it is also quite significant that the opinion was written by
Justice Thomas--hardly the poster boy for the theory that Congress should
have broad power to regulate even economic activity.

At 07:28 PM 11/3/2005 -0500, Marty Lederman wrote:
>"urn:schemas-microsoft-com:vml" xmlns:o =
>"urn:schemas-microsoft-com:office:office" xmlns:w =
>"urn:schemas-microsoft-com:office:word" xmlns:st1 =
>"urn:schemas-microsoft-com:office:smarttags">
>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>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: <mailto:MBerman at law.utexas.edu>Mitch Berman
>To: <mailto:crowley at uidaho.edu>Don Crowley ;
><mailto:whoooo26505 at yahoo.com>Sean Wilson ;
><mailto:conlawprof at lists.ucla.edu>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
>
>
>----------
>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.
>
>
>
><http://us.lrd.yahoo.com/_ylc=X3oDMTFqODRtdXQ4BF9TAzMyOTc1MDIEX3MDOTY2ODgxNjkEcG9zAzEEc2VjA21haWwtZm9vdGVyBHNsawNmYw--/SIG=110oav78o/**http%3a/farechase.yahoo.com/>Yahoo!
>FareChase - Search multiple travel sites in one click.
>
>
>----------
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