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Old Posted Sep 26, 2018, 9:58 PM
Notyrview Notyrview is offline
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Location: New York City
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Quote:
Originally Posted by Mr Downtown View Post
^You seem determined to see this through the lens of the 20th century's expansion of the Commerce Clause when it's an entirely different question. It's not a matter of whether something is properly done by the states or by the feds; Illinois Central stands for the proposition that there are some things that even the sovereign may not do.

Illinois Central is settled law, relied on by decades of important environmental decisions. The only thing that could change that would be a constitutional amendment or a Supreme Court decision reversing Illinois Central.
It is simply your opinion that this case is binding. But if the facts and circumstances favored the governments position as completely reasonable and just downright good for the public at large, the court would almost surely carve out an exception. As you said yourself, the common law is messy, and that's because the essence of the common law is change. A court case from 1892 is obviously going to have some serious problems when applied to modern life and there's nothing to stop a thoughtful Court from revisiting its assumptions or interpreting it more narrowly.
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