Commerce Clause - Lopez/Morrison/Raich

[vanwinkle]

Does it bring you joy that Constitutional Law favors progressive instability and not the Constitution? Yes, I do think I am constitutionally literate actually. Laugh all you want.

I don't think you are, because you cite the cases that do not advance an understanding of an interpretation of a clause of the Constitution. Regardless of whether you think that interpretation is right or wrong, your inability to identify and discern which cases are relevant shows you are Constitutionally illiterate.

You're quickly making a positive impression here (just like Bernie is quickly making a negative one).

[chicago520]

k

[bernie shmegma]

The point is this:

The spending power is a separate enumerated power; it can be exercised in and of itself.

As such, Congress can use the spending power to get states to waive challenges to laws that may not otherwise pass under a separate enumerated power.

Yes Congress could have passed a law regulating the drinking age based on their commerce power, but they didn't have to. Dole stands for the proposition that Congress can use the spending power to pass a law/enforce a law/even encourage states to waive sovereign immunity so long as their use of the spending power:

1)Is in pursuit of the general welfare
2)Imposes unambiguous conditions so that the states may make knowing choices
3)Imposes conditions which are reasonably related to a federal interest
4)Imposes conditions which are not barred by any other independent constitutional provision.

At times there may be some interplay between the two powers, but the fact is they exist independent of one another. They do not need to rely on each other. Congress could conceivably use their spending power to effectuate a law or regulation that has absolutely no effect on interstate commerce, and does not implicate the commerce power at all.

That's all; that's it; leave it alone.

You also missed that it can't be coercive. I wasn't saying that Congress should use their commerce power at all. I was saying that these provisions circumvent the enumerated Commerce powers via taxing and spending. I also think Dole fails three of the 5 conditions it set. But, yes, you are right that this was the outcome of the case, unfortunately.

First things first: The whole point here is this: OP wanted to know how the modern commerce clause works. If op read Dole he would not come away with a sufficient understanding of the modern commerce clause. In fact, his most pressing question concerned how the substantial effects test is applied to economic/non-economic activity; Dole does not provide an answer to that question.



It's ok to think that Dole fails its own test. It's probably a good thing that you challenge the reasoning rather than just accepting it as precedent to be honest. It's not ok to continue to assert that Dole is a good case to aid in one's understanding of how the modern day court approaches whether or not laws passed pursuant to Congress' commerce power are constitutional uses of the power.

Agreed. Maybe by discussing it though, our understanding would bring about a challenge that changes our understanding.

[Learning Hand]

There is no categorical no to regulation of activity that is not economic in nature. That is the point of the whole substantial effects test. What school do you go to?

I believe the test you're referring to is where a local activity has a substantial effect on interstate commerce. The activity, as defined by the court, must still be "economic" in nature.

[bernie shmegma]

Does it bring you joy that Constitutional Law favors progressive instability and not the Constitution? Yes, I do think I am constitutionally literate actually. Laugh all you want.

I don't think you are, because you cite the cases that do not advance an understanding of an interpretation of a clause of the Constitution which the OP originally asked for. Regardless of whether you think that interpretation is right or wrong, your inability to identify and discern which cases are relevant shows you are Constitutionally illiterate.

This is true. What I brought up was completely irrelevant. It led to a different discussion though...

[vanwinkle]

Agreed. Maybe by discussing it though, our understanding would bring about a challenge that changes our understanding.

Discussing of O'Connor's dissent in Dole on an Internet forum, even if it somehow managed to win everyone over to your side, would do absolutely nothing to overturn standing precedent. Until the precedent is changed, the cases being discussed by the OP are good law (and in fact, if you would stop and realize it, do place fundamental limitations on the Commerce Clause that you'd actually support). That's the most ironic part; you're focusing on an older dissent when there are actually points in the majority and concurrences of the newer cases that could help your side more. Lopez and Morrison work to impose real limitations on the scope of the Commerce Cause, and they do so with or without an understanding of O'Connor's dissent in Dole.

[chicago520]

.

[seespotrun]

WOW there are a lot of misstatements of law above. jesus christ. this is very very easy and not hard or "nebulous." Congress cannot regulate non-economic activites after the lopez, morrison, and raich. how many times do you want the SCOTUS to shout this is your god damn ears.

if you are to reply to this, please cite EXACT QUOTES FROM A CASE saying something that contradicts the above.

NOTE: DO NOT CITE Scalia's concurrence in Raich; that is NOT BINDING LAW. So, don't. lol.

What is growing and using marijuana for one's personal use?

lol economic activity if the Court says its econ activity. come on. also, raich groups home with illicit market to capture the econ activity distinction. if you don't like that, argue with those jerks on the SCOTUS not me. LOOOOOOOOOL

Why do academics cite Scalia's concurring to synthesize Raich, Morrison, and Lopez?

Let me predict your answer to this question: "lol. cuz they are retards and need to get refunds on lawl schoolss. LOOOLLLLLL."

My rebuttal: If your professor is one of those academics who synthesize Raich, Morrison, and Lopez using Scalia's concurrence, then cite Scalia's concurrence on your exam. A law school exam isn't a brief to SCOTUS, it's a regurgitation of what your professor has taught you (you know, that person who grades it). In the less than predictable world of Constitutional Law - yes, chicagoLOOOLLLL, it is "nebulous" - law school professors' predictions and approximations of what the "doctrine" is will vary about as widely as the opinions of the politically charged Court.

Point being: Your statement of the law is capable of being just as "wrong" as any poster you told to get a refund. So stfu and gtfo.

[Aqualibrium]

enjoy your B-. anyway, YES there is a categorical distinction. it is just a flexible one.

and I quote: Raich: "thus far in our Nation's history our cases have upheld CC regulation of instrastate activity ONLY WHERE THAT ACTIVITY IS ECONOMIC IN NATURE."

I told you to supply a quote when responding. Darby's subs aff test is DUSTY. read some of the new law you dope.

I go to (apparently) a better school than you do hahhahahahahahahahahahaha

Dusty but not dismissed. The point is that there is an analysis to go through when an activity is non-economic in nature, but has a substantial effect on interstate commerce. Perhaps a non-economic regulation will never get upheld, but the fact is there is an analysis. I defy you to go into an exam and write "there is a categorical no to regulation of non-economic activity. Therefore, this law is unconstitutional."

I won't get into a whose dick is bigger contest with regards to schools;I don't care that much (I know what school you got to, and you can easily find out which on I go to).

[24secure]

There is no categorical no to regulation of activity that is not economic in nature. That is the point of the whole substantial effects test. What school do you go to?

I believe the test you're referring to is where a local activity has a substantial effect on interstate commerce. The activity, as defined by the court, must still be "economic" in nature.

Would you (or the Court) say that this has to be a commodity that could be used to make something that could substantially affect interstate commerce?

And I know my school sucks. There's no need to dwell on that.

[Matthies]

[
The spending power is a separate enumerated power; it can be exercised in and of itself.

As such, Congress can use the spending power to get states to waive challenges to laws that may not otherwise pass under a separate enumerated power.

Yes Congress could have passed a law regulating the drinking age based on their commerce power, but they didn't have to. Dole stands for the proposition that Congress can use the spending power to pass a law/enforce a law/even encourage states to waive sovereign immunity so long as their use of the spending power:

1)Is in pursuit of the general welfare
2)Imposes unambiguous conditions so that the states may make knowing choices
3)Imposes conditions which are reasonably related to a federal interest
4)Imposes conditions which are not barred by any other independent constitutional provision.

At times there may be some interplay between the two powers, but the fact is they exist independent of one another. They do not need to rely on each other. Congress could conceivably use their spending power to effectuate a law or regulation that has absolutely no effect on interstate commerce, and does not implicate the commerce power at all.
That's all; that's it; leave it alone.

This is generally correct, except that the spending power cannot be used to legislate or create legislation based on the spending power alone, unless its spending regulation. Remember the spending power says 'Congress may spend to proved for common defense and general welfare." Congress can SPEND for the general welfare, but not directly legislate for it. They can't regulate under the general welfare clause, only spend under it. hence the necessity of the 21st amenendt to do so. The spending power can be used to comple states to agree to legislation, but not as a basis for a non-spending regulation which the 21 Yo drinking Act or whatever it was called did. Raising the drinking age to 21 could not be supported under the spending power because its a non-spending regulation which would violate the general welfare clause.

[eth3n]

Lopez, Morrison and Raich are all technically good law, despite the fact that they point in different directions.

You should really be following your professor's direction on how he wants to see this kind of question play out, hope you went to class

My Prof = "not sufficient to say that any of them control, need to explain why one of the other cases does not." But there is no guarantee that this will get anyone credit but me.

[solidsnake]

Moreover, OP asked a fairly limited-scope question. One skill you would be advised to develop, 0L, is the art of never offering more info than you were asked; and, second, know when your or someone else's answers are non-responsive.

and lol@at you thinking you are constitutionally literate just because you can (rightfully) bitch that American federalism has died.

Does it bring you joy that Constitutional Law favors progressive instability and not the Constitution? Yes, I do think I am constitutionally literate actually. Laugh all you want.

I think what makes Con Law so interesting is that literal readings of the Constitution have very little to do with constitutional literacy. There was so much intellectual wealth at the time of ratification that seemingly conflicting strands of both classical liberalism and civic republicanism are found in the document. Negative rights are by their very nature not expressly written in; should we not construe them? 19th century due process led to unprecedented liberty and freedom for American citizens and immigrants; and yet the FDR fear-based rational basis deference of the Hughes court left us with very little individual rights. But a literal reading of the Constitution wouldn't get us very far in resolving these tensions: the C doesn't define the scope of our rights, but only gives us broad strokes. It is up to us as lawyers to turn it into an evolving conversation that reflects the society in which we want to live.

[Unemployed]

There is no categorical no to regulation of activity that is not economic in nature. That is the point of the whole substantial effects test. What school do you go to?

enjoy your B-. anyway, YES there is a categorical distinction. it is just a flexible one.

and I quote: Raich: "thus far in our Nation's history our cases have upheld CC regulation of instrastate activity ONLY WHERE THAT ACTIVITY IS ECONOMIC IN NATURE."

I told you to supply a quote when responding. Darby's subs aff test is DUSTY. read some of the new law you dope.

I go to (apparently) a better school than you do hahhahahahahahahahahahaha

Quoted for Douche (and the irony of a Cardozo troll's touting pedigree).

[Learning Hand]

There is no categorical no to regulation of activity that is not economic in nature. That is the point of the whole substantial effects test. What school do you go to?

I believe the test you're referring to is where a local activity has a substantial effect on interstate commerce. The activity, as defined by the court, must still be "economic" in nature.

Would you (or the Court) say that this has to be a commodity that could be used to make something that could substantially affect interstate commerce?

And I know my school sucks. There's no need to dwell on that.

As I understand it, the holdings say it has to be economic in nature. “Economics,” as Stevens says, refers to “the production, distribution, and consumption of commodities.” Raich. Of course, Thomas blasted this broad interpretation with Scalia-like snark: "If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the'powers delegated' to the Federal Government are 'few and defined,' while those of the States are 'numerous and indefinite.' The Federalist No. 45, at 313 (J. Madison). Scalia's concurring (with Stevens!?) opinion in Raich attempts to extend the scope of congressional authority to noneconomic activity by using the Necessary and Proper Clause in conjunction with the Commerce Clause. That is, Congress could regulate noneconomic activity that would otherwise undercut a national regulatory scheme. But, as someone else said, Scalia's opinion is persuasive, not binding, authority. So, as it stands, it must be economic in nature. However, if you're taking an exam, and a Commerce Clause issue comes up with a congressional attempt to regulate a borderline noneconomic activity, you could probably score points by setting forth Scalia's argument to extend congressional power. Then, you could say that such a broad interpretation of federal power poses a grave threat to federalism and state sovereignty, and reject it.

[seespotrun]

There is no categorical no to regulation of activity that is not economic in nature. That is the point of the whole substantial effects test. What school do you go to?

enjoy your B-. anyway, YES there is a categorical distinction. it is just a flexible one.

and I quote: Raich: "thus far in our Nation's history our cases have upheld CC regulation of instrastate activity ONLY WHERE THAT ACTIVITY IS ECONOMIC IN NATURE."

I told you to supply a quote when responding. Darby's subs aff test is DUSTY. read some of the new law you dope.

I go to (apparently) a better school than you do hahhahahahahahahahahahaha

Quoted for Douche (and the irony of a Cardozo troll's touting pedigree).

That sentence has way too many negatives. (The one you did not not quote)

How do you not permaban posters 30 times a day? You're like Frodo from LotR

[24secure]

There is no categorical no to regulation of activity that is not economic in nature. That is the point of the whole substantial effects test. What school do you go to?

I believe the test you're referring to is where a local activity has a substantial effect on interstate commerce. The activity, as defined by the court, must still be "economic" in nature.

Would you (or the Court) say that this has to be a commodity that could be used to make something that could substantially affect interstate commerce?

And I know my school sucks. There's no need to dwell on that.

As I understand it, the holdings say it has to be economic in nature. “Economics,” as Stevens says, refers to “the production, distribution, and consumption of commodities.” Raich. Of course, Thomas blasted this broad interpretation with Scalia-like snark: "If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the'powers delegated' to the Federal Government are 'few and defined,' while those of the States are 'numerous and indefinite.' The Federalist No. 45, at 313 (J. Madison). Scalia's concurring (with Stevens!?) opinion in Raich attempts to extend the scope of congressional authority to noneconomic activity by using the Necessary and Proper Clause in conjunction with the Commerce Clause. That is, Congress could regulate noneconomic activity that would otherwise undercut a national regulatory scheme. But, as someone else said, Scalia's opinion is persuasive, not binding, authority. So, as it stands, it must be economic in nature. However, if you're taking an exam, and a Commerce Clause issue comes up with a congressional attempt to regulate a borderline noneconomic activity, you could probably score points by setting forth Scalia's argument to extend congressional power. Then, you could say that such a broad interpretation of federal power poses a grave threat to federalism and state sovereignty, and reject it.

Too bad my test is all multiple choice...

FML

[vanwinkle]

How do you not permaban posters 30 times a day? You're like Frodo from LotR

I am not really sure what prevents me from pulling the trigger. I am not so sure what the Frodo comment implies (never seen the move).

Frodo is the one entrusted to carry the One Ring to Mordor to destroy it, because he can resist its power (or at least they know that nobody else could, leaving it with him by default).

(Yes, I am a geek.)

[seespotrun]

How do you not permaban posters 30 times a day? You're like Frodo from LotR

I am not really sure what prevents me from pulling the trigger. I am not so sure what the Frodo comment implies (never seen the move).

Frodo is the one entrusted to carry the One Ring to Mordor to destroy it, because he can resist its power (or at least they know that nobody else could, leaving it with him by default).

lol.. makes sense now. And thanks, to both.

Instead of banning, I guess I just take it out by snark and biting comedy?

Well, the biting comedy is certainly appreciated, but the next time chicago250 posts I'd laugh even harder if he got permabanned.

And Vanwinkle, thanks for repping Tolkien. (high five)

[rsuelzer]

Wickard - not entering into a market is an economic activity.

The court has not ruled out the fact that there may be non-economic activity that is part of interstate commerce. Lopez and Morrison explicitly state this.

[vanwinkle]

Wickard - not entering into a market is an economic activity.

The court has not ruled out the fact that there may be non-economic activity that is part of interstate commerce. Lopez and Morrison explicitly state this.

If I remember right, they said that they can regulate activity that is non-economic if it is part of a larger scheme of economic regulation. (This is essentially a restatement of Wickard.) That's how they regulated private use of marijuana in Raich; it's not economic in nature to grow something for private use, but it's part of a larger scheme of shutting down the movement of marijuana in interstate commerce.

[vanwinkle]

I had a different reading of Raich... I thought the court essentially analogized it to Wickard... there is a market for weed; it may be illegal, but it is still a market. Thus, weed, like personally grown wheat affects interstate commerce because it has an economic effect on the market regulated. And taken in aggregation, this effect is substantial.

And I don't remember Lopez and Morrison talking about a larger scheme, but I may be misreading what you've written.

I was referring to Scalia's concurrence in Raich, and its explanation of the Lopez and Morrison cases, not the cases themselves. (I could've made that a lot clearer, oops, my bad.)

But he was essentially saying what the majority did anyway; they took noneconomic activity (marijuana grown for private use) and regulated it for its effects on a larger economic activity (marijauana traffic in interstate commerce). His opinion isn't binding but I think it's still a valid way of looking at things overall.

Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce.

It's really same thing you're saying. He's just framing things in a way that logically makes sense upholding Wickard after striking down the laws in Lopez and Morrison. Those cases involved a regulation that wasn't actually regulating interstate commerce, so no aggregation was valid. But since the law in Raich was regulating something that could be considered commerce, Wickard could apply.

[bernie shmegma]

Moreover, OP asked a fairly limited-scope question. One skill you would be advised to develop, 0L, is the art of never offering more info than you were asked; and, second, know when your or someone else's answers are non-responsive.

and lol@at you thinking you are constitutionally literate just because you can (rightfully) bitch that American federalism has died.

Does it bring you joy that Constitutional Law favors progressive instability and not the Constitution? Yes, I do think I am constitutionally literate actually. Laugh all you want.

I think what makes Con Law so interesting is that literal readings of the Constitution have very little to do with constitutional literacy. There was so much intellectual wealth at the time of ratification that seemingly conflicting strands of both classical liberalism and civic republicanism are found in the document. Negative rights are by their very nature not expressly written in; should we not construe them? 19th century due process led to unprecedented liberty and freedom for American citizens and immigrants; and yet the FDR fear-based rational basis deference of the Hughes court left us with very little individual rights. But a literal reading of the Constitution wouldn't get us very far in resolving these tensions: the C doesn't define the scope of our rights, but only gives us broad strokes. It is up to us as lawyers to turn it into an evolving conversation that reflects the society in which we want to live.

We couldn't have more opposite views. You're justifying a deviation from constitutional structure. Your views are common. I would argue the most common, especially in law school. There is a reason for that and it doesn't have to do with classical liberalism or civic republicanism I can assure you that. Whereas that is precisely what my views have to do with. I have wayyyy too much to say in response right now though.This is basis for pretty much every policy, every philosophical, economic, existential, historical concern that I have. For another thread at another time. I'll give you some sources too if you're interested in Con theory.

[vanwinkle]

I think what makes Con Law so interesting is that literal readings of the Constitution have very little to do with constitutional literacy. There was so much intellectual wealth at the time of ratification that seemingly conflicting strands of both classical liberalism and civic republicanism are found in the document. Negative rights are by their very nature not expressly written in; should we not construe them? 19th century due process led to unprecedented liberty and freedom for American citizens and immigrants; and yet the FDR fear-based rational basis deference of the Hughes court left us with very little individual rights. But a literal reading of the Constitution wouldn't get us very far in resolving these tensions: the C doesn't define the scope of our rights, but only gives us broad strokes. It is up to us as lawyers to turn it into an evolving conversation that reflects the society in which we want to live.

We couldn't have more opposite views. You're justifying a deviation from constitutional structure. Your views are common. I would argue the most common, especially in law school. There is a reason for that and it doesn't have to do with classical liberalism or civic republicanism I can assure you that. Whereas that is precisely what my views have to do with. I have wayyyy too much to say in response right now though.This is basis for pretty much every policy, every philosophical, economic, existential, historical concern that I have. For another thread at another time. I'll give you some sources too if you're interested in Con theory.

The problem is that what solidsnake is talking about is not his personal views on what Con Law should be but the reality of what Con Law is. He's not justifying anything, he's just talking about discussing the way things are. It doesn't matter what you believe the constitutional structure should be, the only thing that really matters in a discussion when someone has asked for help analyzing a Con Law issue is what the law actually is. Your responses might make good theory, but they have nothing to do with practical or realistic discussion of what constitutional law actually currently is in the United States.

[Llewellyn]

The problem is that what solidsnake is talking about is not his personal views on what Con Law should be but the reality of what Con Law is. He's not justifying anything, he's just talking about discussing the way things are. It doesn't matter what you believe the constitutional structure should be, the only thing that really matters in a discussion when someone has asked for help analyzing a Con Law issue is what the law actually is. Your responses might make good theory, but they have nothing to do with practical or realistic discussion of what constitutional law actually currently is in the United States.

IMO let this guy finish his 1L Fall semester before explaining to him why he got C's in all his courses.