Thursday, September 23, 2010

Interstate commerce and "attenuation"

QUESTION: I have a question regarding Morrison. The dissent by Souter and three other justices states that 42 U.S.C. 13981 would have passed muster between 1942 and 1995. Their reasoning is that gender-based violence is similar to racial discrimination in Heart of Atlanta and McClung in reducing mobility of employees and the production/cosumption of goods in interstate commerce. Applying Lopez test, Heart of Atlanta/McClung had activities affecting commerce as being involved in renting rooms in a motel or selling food, whereas in Morrison the connection between the regulated activity (gender-based violence) and the effect (mobility/consumption) is more attenuated. The court in Morrison ruled that the activity is "noneconomic." Does the "attenuation" factor makes the regulated activity in Morrison "noneconomic," or do you think that the time frame really impacted the holding here?

ANSWER: There are a few different ways of looking at this. First, let's take the purely doctrinal. From that perspective, there is a critical difference between the Civil Rights Act of 1964 (which regulates commercial activity directly--the operation of a hotel or restaurant) and sec. 13981 of VAWA (which regulates a form of assault). The former is a commercial activity, the latter is not. The majority sees this distinction as dispositive. You could also package this as "attenuation," as the connection of the regulated activity in Morrison to an effect on interstate commerce is at least once removed when compared to that in Heart of Atlanta or McClung. The Civil Rights Act directly and immediately shapes commercial behavior (who businesses must serve). The effect on commerce in Morrison is more attenuated. But, as I indicated last night, this seems like simply a different way of expressing the idea that the activity actually regulated by 13981 was not itself economic or commercial.
 
Second, as to timing: Yes, political time clearly is also an explanation. In 2000, there were 5 justices on the Court willing to curtail Congress's commerce power. In 1965, had 13981 come to the Court, I feel confident that the Court would have upheld the Act. As lawyers, we can distinguish the two cases (as I have tried to do above), but as Court observers we have to admit that the personnel on the Court at any given moment does a lot to explain how that doctrine is understood or construed -- at least at the margin.