Yes, it works both ways. Just as the Court
can single out certain applications to uphold as within
Congress's power (e.g., Salinas, Raines); it can also
invalidate only certain "portions," or applications, of
statutes challenged on congressional power grounds. In addition to
Morrison, that also describes, e.g., Garrett, in which the
Court invalidated ADA title I but left ADA title II for another day. Why
didn't the Court instead look at whether the ADA as a whole was
"proportional and congruent"?
The ADA title II question is now before the Court
(Tennessee v. Lane, No. 02-1667), and one question in that case may be
whether the Court can or will evaluate the section 5 power to enact title II
only as to certain "applications" (in that case, access to court proceedings),
while leaving other applications (sidewalks, drivers' licenses, etc.) for
another day.
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Title: Message
- Re: Lopez and "as applied" considerations of c... Conkle, Daniel O.
- Re: Lopez and "as applied" considerations... Marty Lederman
- Re: Lopez and "as applied" considerations... David Driesen
- Re: Lopez and "as applied" considerat... Marty Lederman
- Re: Lopez and "as applied" considerat... John Nagle