Raich v. Guillen (and Reno v Condon)

[Earl Maltz]

I'm not "blaming" him at all.  In my view (although I don't agree with all 
of his conclusions) it's a great way to think!

At 05:06 PM 11/4/2005 -0600, Yvette Barksdale wrote:
>Earl Maltz writes:
>
>"Thomas is a categorical thinker--Congress has plenary power over the
>instrumentalities of commerce, but no power over things that are "not"
>commerce.  Most modern constitutional thinkers, by contrast, seem to focus
>on the magnitude of effects on interstate commerce."
>
>
>
>You may be right  that Thomas often analyzes issues conceptually and 
>categorically. However, I think with respect to the interstate commerce 
>issue -  this categorical thinking arises from the post-Lopez Court's 
>analysis  - which "Lopezed" the "intrasate activity that affects 
>interstate commerce" strand of the commerce clause while leaving the 
>post-New Deal "channels"/"instrumentalities" analysis intact.  Their 
>stated position in all of the opinion segregates the 
>Channels/Instrumentalities issue and reaches the "effects" test only after 
>concluding the channels and instrumentalities analysis doesn't apply. So, 
>which "category" you're in affects the analysis - regardless of whether 
>the underlying considerations for all of the categories are  similar.  So, 
>I'm not sure you can blame for Thomas for this.
>
>Another "category matters" case was Reno v. Condon - there the court 
>concluded that the drivers license information collected intrastate by 
>each state for drivers licensed within that state was a "thing in 
>interstate commerce" because the information was sometimes used by persons 
>engaged in interstate commerce. Thus Congress could prohibit the release 
>of such information, whether the released info was sold or not, or moved 
>interstate or not, or used in interstate commerce or not. The fact that 
>businesses often used the information in interstate commerce - made the 
>information itself an instrumentality of interstate commerce. Once so, the 
>"intrastate" or "interstate" nature of the information was irrelevant to 
>the analysis - once the regulated item was an insrumentality of interstate 
>commerce - it was in.
>
>Of couese, Reno was also a case where the "instrumentality" itself was 
>regulated -  thus not a case like Guillen where than other stuff being 
>regulated as  a "means of regulating" interstate commerce - as the 
>previous poster noted.  But, the label "instrumentalty" was a stretch when 
>the statute did not require any commercial, or interstate  use of the 
>information.  Nevertheless the label, instrumentality, controlled.  There 
>the author was Rehnquist.
>
>
>
>yb
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>________________________________
>
>From: conlawprof-bounces at lists.ucla.edu on behalf of Earl Maltz
>Sent: Fri 11/4/2005 2:48 PM
>To: Howard Schweber
>Cc: conlawprof at lists.ucla.edu
>Subject: Re: Raich v. Guillen
>
>
>
>For me, one of the most interesting parts of this discussion is the way in
>which it reveals the difference Justice Thomas's thought processes and the
>thought process that predominates among constitutional scholars.  Thomas is
>a categorical thinker--Congress has plenary power over the
>instrumentalities of commerce, but no power over things that are "not"
>commerce.  Most modern constitutional thinkers, by contrast, seem to focus
>on the magnitude of effects on interstate commerce.
>
>At 02:07 PM 11/4/2005 -0600, you wrote:
> >It seems to me that the Shreveport rule applies to Guillen only by an
> >exceedingly attenuated chain of connections.  In fact, if one views this
> >institutionally the logical chain is even more peculiar than the one that
> >Prof. Lederman describes.  Congress, after all, was not regulating
> >intrastate roads, it was regulating state legislatures in order to control
> >the actions of state courts in order to create a series of political
> >incentives for the executive agencies of the state governments . . . in
> >order to affect the roads.  I find it amazing that this did not raise all
> >kinds of New Federalism problems, starting with commandeering and
> >essential sovereign functions!
> >
> >
> >At 07:33 PM 11/4/2005 +0000, marty.lederman at comcast.net wrote:
> >>I think the analogy is actually much more apt, as Mitch suggests.  Even
> >>if one assumes that "transport," or "navigation" *is* "commerce" -- which
> >>is a much *less* obvious proposition than the notion that the sale and
> >>purchase of a commodity (e.g., marijuana) is "commerce" -- nevertheless
> >>regulation of *local* roads is the regulation of *intrastate*
> >>commerce.  Yes, this is, of course, within Congress's power -- but it is
> >>so because of its inevitable impact on *interstate* commerce.  (See
> >>Gibbons, the Daniel Ball, Coombs, and loads of subsequent cases.)
> >>
> >>In both cases -- Guillen and Raich -- the trick is to see how regulation
> >>of an intrastate, noneconomic activity affects interstate commerce.  You
> >>all know the rationale of Raich -- if local possession is not prohibited,
> >>odds are it will have an impact on the regulation (i.e., prohibition) of
> >>interstate sales of the product, i.e., of interstate commerce
> >>simplicitur.  (You can throw in as many links in the causal "chain" as
> >>you think appropriate.)
> >>
> >>In Guillen, not only does one have to make the *additional* leap -- not
> >>necessary in Raich -- of deeming transport of persons "commerce" (I
> >>agree, this is no longer an unexpected move, but it remains an extra
> >>step, not compelled by original or plain "meaning"); but, even then, the
> >>causal chain must be extended to at least the following "length" in order
> >>to arrive at the requisite impact on "interstate commerce":
> >>
> >>1.  Congress requires states to make certain hazardous-road reports
> >>inadmissible as evidence in state-court proceedings.
> >>
> >>2.  This makes it more difficult for would-be plaintiffs to obtain
> >>evidence to support negligence actions against state and local governments.
> >>
> >>3.  Which in turn "result[s] in more diligent [government] efforts to
> >>collect the relevant information."
> >>
> >>4.  Which then leads to "more candid [governmental] discussions of
> >>hazardous locations."
> >>
> >>5.  Which in turn promotes "better informed decisionmaking."
> >>
> >>6.  Which leads to greater safety on roads *within* the State of
> >>Washington (an effect on intrastate commerce).
> >>
> >>7.  Which, because of the single, national "unified system of
> >>transportation," ultimately redounds to "the greater safety on our Nation's
> >>roads."
> >>
> >>(Of course, you can add many steps in between steps 6 and 7 -- but as
> >>Earl suggests, the Court assumed *those* interim connections long ago.)
> >>
> >>Once one acknowledges that interstate sales of marijuana and interstate
> >>travel of persons are both "interstate commerce" that Congress is
> >>empowered to regulate and protect (if, indeed, the sale of marijuana
> >>isn't more at the "core" of such power), why isn't Raich a much easier
> >>case than this Guillen chain?
> >>
> >>
> >> > The information collected in Guillen was information about public
> >> roads and
> >> > the statute at issue in these cases was designed to further the 
> protection
> >> > of those roads.  At least since the Shreveport Rate Cases, 
> the  Court has
> >> > held that all avenues of transportation have been treated as part of a
> >> > single unified system for the transportation of commerce and thus 
> Congress
> >> > has the authority to regulate and protect those avenues.  You might take
> >> > the view that that line of cases is wrong.  But it really has nothing
> >> to do
> >> > with the Lopez/Morrison/Raich analysis.
> >> >
> >> >
> >> > At 12:05 PM 11/4/2005 -0600, you wrote:
> >> > >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. 
> Fi >> n al.p > >
> >> >
> >> 
> df>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>mailto:MBerman at law.utexas.edu>Mitch
> >> Berman
> >> > > >To: <<mailto:crowley at uidaho.edu>mailto:crowley at uidaho.edu>Don 
> Crowley ;
> >> > > ><<mailto:whoooo26505 at yahoo.com>mailto:whoooo26505 at yahoo.com>Sean
> >> Wilson ;
> >> > > ><<mailto:conlawprof at lists.ucla.edu>mailto:conlawprof at lists.ucla.edu>
> >> c onla
> >> > > wprof 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>mailto:conlawprof-bounces
> >> @ list
> >> > > s.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>mailto:conlawprof-bounces
> >> @ list
> >> > > s.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=X3oDMTFqODRtdXQ4BF9TAzMyOTc1MDIEX3M 
> DO >> T Y2OD > >
> >> >
> >> 
> gxNjkEcG9zAzEEc2VjA21haWwtZm9vdGVyBHNsawNmYw--/SIG=110oav78o/**http%3a/farechase
> >> >
> >> 
> .yahoo.com/>http://us.lrd.yahoo.com/_ylc=X3oDMTFqODRtdXQ4BF9TAzMyOTc1MDIEX3MDOTY
> >> >
> >> 
> 2ODgxNjkEcG9zAzEEc2VjA21haWwtZm9vdGVyBHNsawNmYw--/SIG=110oav78o/**http%3a/farech
> >> > ase.yahoo.com/>Yahoo!
> >> > > >FareChase - Search multiple travel sites in one click.
> >> > > >
> >> > > >
> >> > > >----------
> >> > > >_______________________________________________
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