US v. Morrison

Coyle, Dennis COYLE at law.edu
Tue Oct 25 18:13:25 PDT 2005


While plausible factual distinctions may be drawn between the two cases, Gonzales discards Morrison (and Lopez) in at least one important respect: rational basis deference to Congress has returned.  That is precisely the dissenting line in Morrison -- that the only question properly before the Court was whether Congress had a rational basis for concluding that the activity in question had a substantial effect on interstate commerce.  The Court maintained in Morrison that it was the constitutional responsibility of the Court to make the definitive determination as to whether there was a substantial effect on commerce, and it found that there was not, despite the small mountain of evidence provided by Congress regarding violence against women. If the Gonzales rational basis test were applied in good faith to the facts in Morrison and Lopez, we could expect the Court to hypothesize sufficient reasons to uphold the laws. Rational basis eliminates the significance of the substantial-effects test of Morrison and Lopez, and thus effectively abandons them.  
 
Of course, where the Court goes from here is anyone's guess. Perhaps I am being too cynical in suggesting that the Court may maintain both lines of precedents, with each conveniently available to be employed, depending on which side picks up the fifth vote, and will rationalize this by drawing narrow factual distinctions, when the precedents are fundamentally at odds with each other.
 
Dennis Coyle
Associate Professor
Catholic University of America

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Bernard Bell
Sent: Tue 10/25/2005 6:26 PM
To: CONLAWPROF at lists.ucla.edu; s-gerber at onu.edu; jca at stanford.edu; jsilbey at suffolk.edu
Subject: Re: US v. Morrison



Do you really think that Gonzalez goes so far as to discard Morrison and Lopez?  Gonzales seems clearly distinguishable to me for reasons that the majority identifies.  Production, transfer, and consumption of a commodity that could be sold in an existing interstate market is commercial activity in a way that engaging in a criminal assault or merely possessing a gun is not.  Moreover, if Congress is to effectively prohibit the sale and production of sale of marijuana generally (which is unquestionably commercial in nature), it certainly seems necessary to regulate even cultivation and consumption of marijuana for personal use.  I would agree that the reasoning of the majority in Gonzales does not incorporate a generous reading of Lopez and Morrison.

Regards,

Bernie Bell

Bernard W. Bell
Associate Dean for Faculty
Professor & Herbert Hannoch Scholar
Rutgers Law School-Newark
123 Washington Street
Newark, NJ 07102
(973) 353-5464 (voice)
(973) 353-1445 (fax)
bbell at kinoy.rutgers.edu


>>> Scott Gerber <s-gerber at onu.edu> 10/25/05 06:06PM >>>
The more problematic decision for me, at least in terms of doctrinal
consistency (to borrow from Janet Alexander), is Gonzales v. Raich.  It
seems to me that critics of U.S. v. Morrison are worrying about nothing,
given that Gonzales appears to discard Morrison and Lopez sub silentio.

Scott Gerber
Law College
Ohio Northern University




      Rehnquist and the Judicial Conference lobbied Congress against VAWA
on the ground that it would flood the federal courts with insignificant
domestic violence cases.  When Congress passed it anyway,  the Court struck
it down.  Cf. the "domestic relations exception" to diversity jurisdiction
which (like modern 11th amendment jurisprudence) finds no support in the
constitutional text.  Judith Resnik's "Housekeeping," which traced federal
jurisdiction's gender bias, continues to ring true.
        Of course the animus toward VAWA doesn't help one provide students
with a principled doctrinal explanation.
                -- Janet Alexander

**********
Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty/gerber/

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