betasteve wrote:Esc wrote:vanwinkle wrote:betasteve wrote:Probably the fact that someone can't grow their own wheat for personal consumption because of a conclusory and speculative justification that in the aggregate, this will impact something they should be regulating anyway.
In an exam context, just think about it this way: At least it's easy to apply! Does this affect commerce in the aggregate? Then it's covered under the Commece Clause! The end!
Don't forget the triad of confusion - Lopez, Morrison, and Raich.
See... those cases seem to make sense to me... Lopez and Morrison both basically saying that where the activities are not directly affecting interstate commerce, you can't aggregate. I mean Morrison lists out the 4 factors that were implicit in Lopez, but really it's that allowing you to aggregate anything tangentially related to interstate commerce provides no limiting principle. And certainly, because the const is one of enumerated powers, and it gave power to cong. to regulate commerce among the states, not to regulate commerce, then there must be some point in which Congress can't reach.
Then Raich basically said that it doesn't matter if the market is illegal, it's still a market, and the same enticements are there that existed in Wickard—the mere ability to enter the market, and if you aggregate that, it is going to defeat Congressional regulation the other way. Though I do think that O'Connor dissent was relevant re: this opinion at least facially gives opportunity to end-around Lopez if the restriction were built into a larger comprehensive scheme.
My sense re: Lopez and Morrison was not only that they did not directly affect interstate commerce, but they are not a commercial activity to begin with. In these cases the Court expressed a palpable concern that if congress could regulate non-economic activities that could be argued to have a tenuous affect on commerce that congress would effectively be vested with a national police power, since all crimes can logically have some effect on commerce. This would effectively defeat the federalist principle that states should serve as laboratories of experimentation in order that the various legal theories can be applied and refined thereby.