Commerce Clause: Economic v. Non-Economic

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romothesavior
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Commerce Clause: Economic v. Non-Economic

Postby romothesavior » Tue Apr 19, 2011 1:13 pm

I have a question about the “substantial effects” analysis under the Commerce Clause. I know the CC has been talked about in a number of threads, but I couldn’t find the exact answers I’m looking for (so I’m sorry if this has been answered already.)

I understand that there are three ways that Congress can regulate under the Commerce Clause: 1) channels of interstate commerce, 2) instrumentalities of interstate commerce, and 3) activities which substantially effect interstate commerce. Under 3), there is a different analysis for economic vs. non-economic activities. I understand that economic activities can be aggregated, so that even if an individual instance of an activity does not affect interstate commerce, it can be regulated if that type of activity in its entirety affects interstate commerce (Heart of Atlanta, Wickard v. Filburn). However, non-economic activities cannot be aggregated (such as guns in school zones or battered women).

But what makes an activity “economic” vs. “non-economic?” Are there certain things the court looks to in deciding which category to place an activity into?

Also, I vaguely remember some discussion on a distinction between economic v. commercial (I think this was in Raich?) How important is this distinction? What is the distinction (like, how is something non-commercial but economic and vice-versa?) And where does it fit into this nice little flow chart I’ve got going here?

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romothesavior
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Re: Commerce Clause: Economic v. Non-Economic

Postby romothesavior » Tue Apr 19, 2011 1:46 pm

And a related question: was the regulation in Raich economic or non-economic? Scalia seems to suggest it is non-economic, but the majority calls it a regulation of an economic class of activities.

lovelaw27
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Re: Commerce Clause: Economic v. Non-Economic

Postby lovelaw27 » Tue Apr 19, 2011 6:33 pm

According to my con law professor there is no particular way to analyze whether or not something is economic. You just have to use common sense. Also according to my con law professor it is unclear after Gonzalez whether the economic vs. non-economic distinction still matters.
Last edited by lovelaw27 on Tue Apr 19, 2011 9:30 pm, edited 1 time in total.

td6624
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Re: Commerce Clause: Economic v. Non-Economic

Postby td6624 » Tue Apr 19, 2011 6:49 pm

uhh shot in the dark here but in addition to just using common sense i think part of the analysis will be the existence of a market for whatever is being talked about. there is a market for wheat and for marijuana. there might be a market for guns, but there isn't a market for the right to possess a gun in a school zone. that's taking it a step (or two or three) outside of the market itself and so it's not economic?

i have no idea what i'm talking about

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fathergoose
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Re: Commerce Clause: Economic v. Non-Economic

Postby fathergoose » Tue Apr 19, 2011 6:57 pm

As I understand it, Scalia was suggesting that you could aggregate it even if it was a non-economic activity so long as it was part of a larger regulatory scheme that was economic.

But I'm curious about whether there is a bright line real for economic vs. noneconomic as well

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Charles Barkley
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Re: Commerce Clause: Economic v. Non-Economic

Postby Charles Barkley » Tue Apr 19, 2011 9:19 pm

Edit - I realized I did not answer your question. Sorry.

GMVarun
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Re: Commerce Clause: Economic v. Non-Economic

Postby GMVarun » Wed Apr 20, 2011 9:05 am

So this is from my outline:

Is the regulated activity economic?
(a) Activity being regulated itself be properly characterized as being economic in nature or
(b) Regulation of the activity an essential part of a larger regulation of economic activity

And Raich defines "economic" as being "Economics refers to the production, distribution, and consumption of commodities."

This is still somewhat ambiguous (I think for example wage can be regulated under this because it is the consumption of labor services, a commodity).

GMVarun
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Re: Commerce Clause: Economic v. Non-Economic

Postby GMVarun » Wed Apr 20, 2011 9:07 am

The majority finds Raich to be economic under (a) above and Scalia talks about it under (b). Both are saying its economic, and both necessarily will need to use the aggregation principle, if I remember right.

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YourCaptain
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Re: Commerce Clause: Economic v. Non-Economic

Postby YourCaptain » Wed Apr 20, 2011 9:15 am

My professor seemed to imply that what is non-economic is a matter of intuition.

The reason that Gonzales classified it as 'economic' was because it's a fungible good; people buy, trade, and use controlled substances and there's a very tangible and defined market for it.

That's why there's no difference (categorically for this) between teddybears and marijuana; they're both commodities and both have a market that stretches across state lines.

If you think about it, law school outlines could be regulated under #3 as Economic activity. Here's my question - you could probably classify the production & trade of an outline as economic, but the production medium (pen & paper vs. computer-made) would arguably be non-economic? But even if the 2nd would be non-economic it could have a substantial effect on the outline market and thus fall under #3.

The reason that the jurisdictional hook in Lopez works is because it concerns the market for the gun, but the original version of the statute simply concerned possession proximity to a school, which had extremely indirect connections to economic activity. However, if they used the old statute's language but changed School to Port/Pier/Warehouse/Walmart Distribution center then it's still not 'economic' but you could tag it in #3 because it could very well have an effect.

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Always Credited
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Re: Commerce Clause: Economic v. Non-Economic

Postby Always Credited » Wed Apr 20, 2011 1:29 pm

fathergoose wrote:As I understand it, Scalia was suggesting that you could aggregate it even if it was a non-economic activity so long as it was part of a larger regulatory scheme that was economic.

But I'm curious about whether there is a bright line real for economic vs. noneconomic as well


This is what I got out of it as well.

Omerta
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Re: Commerce Clause: Economic v. Non-Economic

Postby Omerta » Wed Apr 20, 2011 9:08 pm

Always Credited wrote:
fathergoose wrote:As I understand it, Scalia was suggesting that you could aggregate it even if it was a non-economic activity so long as it was part of a larger regulatory scheme that was economic.

But I'm curious about whether there is a bright line real for economic vs. noneconomic as well


This is what I got out of it as well.


There isn't a bright-line rule. The reason why is because it depends on how you characterize the activity. Is an abortion a medical service (economic) or an exercised right (non-economic)? When you define what the "activity" in question is, then you've determined the answer.

dontknowwhereimgoin
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Re: Commerce Clause: Economic v. Non-Economic

Postby dontknowwhereimgoin » Sat Apr 23, 2011 1:04 am

Scalia was eschewing category (3) of the Commerce Clause from his analysis. He finds that non-economic activities can be aggregated if they are part of a larger regulatory scheme over something economic. He makes this link by employing the necessary and proper clause of Art. I Section 8

Edit: As far as whether something is economic or non-economic the Court looks at the item in question: is it a good bought/sold/exchanged in markets (this is what leads Thomas to suggest that the sub-class of local growers and users should be exempt from the CSA-- a good argument)? Also is there a jurisdictional hook in the law: did Congress specify guns which "moved in interstate commerce" (this is what sunk Lopez, in addition to the fact that the law was regulating "possession" which was deemed too attenuated to the possibility of a drop-off in national productivity which could substantially affect interstate commerce)?

As Breyer points out in Morrison, however, there is hardly any activity today which does not affect commerce, and, when aggregate, does so substantially. However, as O'Connor might say, this opens the door for Congress to find a rational basis to regulate areas of family law and criminal law traditionally left to the states, which blurs the roles of the federal gov't and the States beyond recognition divesting legislatures from political responsibility.

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soaponarope
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Re: Commerce Clause: Economic v. Non-Economic

Postby soaponarope » Sat Apr 23, 2011 10:55 am

romothesavior wrote:I have a question about the “substantial effects” analysis under the Commerce Clause. I know the CC has been talked about in a number of threads, but I couldn’t find the exact answers I’m looking for (so I’m sorry if this has been answered already.)

I understand that there are three ways that Congress can regulate under the Commerce Clause: 1) channels of interstate commerce, 2) instrumentalities of interstate commerce, and 3) activities which substantially effect interstate commerce. Under 3), there is a different analysis for economic vs. non-economic activities. I understand that economic activities can be aggregated, so that even if an individual instance of an activity does not affect interstate commerce, it can be regulated if that type of activity in its entirety affects interstate commerce (Heart of Atlanta, Wickard v. Filburn). However, non-economic activities cannot be aggregated (such as guns in school zones or battered women).

But what makes an activity “economic” vs. “non-economic?” Are there certain things the court looks to in deciding which category to place an activity into?

Also, I vaguely remember some discussion on a distinction between economic v. commercial (I think this was in Raich?) How important is this distinction? What is the distinction (like, how is something non-commercial but economic and vice-versa?) And where does it fit into this nice little flow chart I’ve got going here?



Ok... this is the deal. Back in the day, the commerce clause pretty much nullified the 10th amendment. The makeup of the Court began to change and they decided that they would limit the Commerce Clause. So, how do you know if something is economic vs. non-economic?

Here are the steps when analyzing the aggregate affect:

1). Is it economic in nature? In Gonzalez v. Raich the SCOTUS held that the aggregate affect of marijuana was economic in nature. The market price of marijuana is affected by how much comes in and out in the country. It is a commodity that is economic in nature because its price fluctuates with supply and demand.

2). Is there causation? This is key. It's like torts. If but for the Congress regulation of marijuana, then the price would fluctuate. There has to be some causation. For example, in Morrison, the SCOTUS struct down the Violence against Woman Act (whatever the statute was called). The government argued that the law in question protected woman and that if "but for" that law that woman would be abused not attend college, have trouble finding jobs, and thus have adversely affect commerce. The SCOTUS said, no... there are too many intervening factors for that argument to be sound. That is, the proximate causal link b/w the governments argument is too far attenuated. Thus, it failed this prong of the test.

3). Are there any legislative findings? If in your fact pattern, the legislature has evidence that what they're trying to regulate does affect commerce it will help your argument (this step is not bedrock, but it helps). For example, in Gonzalez, the government produced evidence of the affect/link to regulating marijuana and commerce.

4). State Sovereignty i.e. 10th amendment: Is Congress trying to regulate laws that are traditionally reserved to the States? For example, in Morrison, regulating the conduct in question is generally a job for the States. The federal government was impermissibly interfering with State Sovereignty in regulating crime with the "Violence against Women Act." However, in regards to Gonzalez... the government often regulates drugs coming to and from the country (FDA) and thus the regulation of marijuana did not impermissibly interfere with 10th amendment.

5). Finally, somewhere in your analysis mention what enumerated power Congress is relying on, i.e. Article 1 Sec 8.

And there you go. Aggregate affects test.




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