I simply cannot understand the modern commerce clause.

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NYC2014
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I simply cannot understand the modern commerce clause.

Postby NYC2014 » Wed Apr 18, 2012 4:47 pm

This is as far as I get:

Lopez Test:
1) Use of the channels of interstate commerce (Roads, railroads, etc).

2) The instrumentalities of commerce, or persons or things in interstate commerce, although the threat may come from intrastate.

3) Activities that are substantially related to or substantially affect interstate commerce.

There's something about economic activity, regulatory schemes, aggregation, and the like. I have no idea how it fits in and haven't found a suitable framework anywhere. Please, sweet baby Jesus, can someone help me?!

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bk1
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Re: I simply cannot understand the modern commerce clause.

Postby bk1 » Wed Apr 18, 2012 4:59 pm

This is what I've got:

Basically prior to Lopez it seemed like pretty much anything was commerce (nothing had been invalidated since the Lochner era). Even some pretty sketchy stuff (Wickard - where wheat grown on the farm and never leaves the farm, but when you aggregate all the farmers who do this in the US it becomes "interstate commerce"). Lopez brings back the idea that there are limits on the commerce clause and states the 3 parts of the commerce clause you have above. The problem with Lopez is that they don't really apply it very well except to say that the aggregation of guns near schools does not substantially affect interstate commerce. You then get Morrison which basically articulates the factors that you apply to figure out whether something does substantially affect interstate commerce. So it's a factor test and not straightforward. Those factors from Morrison/Lopez are:

Is it commercial or noncommercial? (gun ownership is noncommercial - Lopez, beating women is noncommercial - Morrison, growing pot is commercial - Raich)
Is it typically subject to state regulation?
Do Congressional findings support the idea that it has a substantial impact on the national economy? (this might not be so helpful though because Congress had a ton of findings in Morrison yet the Court's response was lolno)

After saying no to aggregation twice (Lopez and Morrison) the court fucks shit up again with Raich. Raich is a lot like Wickard, basically something grown for entirely personal use that won't ever leave the state, but the court says it is interstate commerce. Raich basically creates a huge escape hatch in that it is an incredibly broad reading of interstate commerce and allows for the regulation of almost anything. In Raich it is okay to aggregate weed because it is part of a larger pattern that Congress can legitimately regulate.

So essentially:

Congress can regulate:
1. channels of interstate commerce
2. instrumentalities of interstate commerce
3. things with substantial relation to interstate commerce
(factors for determining 3 out):
a. commercial or noncommercial?
b. typically subject to regulation?
c. Congressional findings on its interstate commerce impact?

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bk1
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Re: I simply cannot understand the modern commerce clause.

Postby bk1 » Wed Apr 18, 2012 5:00 pm

This thread might help: viewtopic.php?f=3&t=182196 (I particularly like Always Credited's analysis).

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sundance95
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Re: I simply cannot understand the modern commerce clause.

Postby sundance95 » Fri Apr 20, 2012 1:54 am

bk1 wrote:This thread might help: viewtopic.php?f=3&t=182196 (I particularly like Always Credited's analysis).

tyft :lol: :lol: :lol:

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Extension_Cord
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Re: I simply cannot understand the modern commerce clause.

Postby Extension_Cord » Fri Apr 20, 2012 8:41 am

There are no limits to the modern commerce clause.

-Got an A.

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ben4847
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Re: I simply cannot understand the modern commerce clause.

Postby ben4847 » Fri Apr 20, 2012 9:21 am

bk1 wrote:This thread might help: viewtopic.php?f=3&t=182196 (I particularly like Always Credited's analysis).

excellent

dsconn2
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Re: I simply cannot understand the modern commerce clause.

Postby dsconn2 » Fri Apr 20, 2012 9:40 am

Lopez and Morrison do not allow Congress to aggregate the effects of non-economic activity in order to reach a level where the activities being regulated can be said to effect interstate commerce.

Scalia in Raich throws a monkey wrench in the whole system by imputing the necessary and proper clause to supplement the commerce clause...if making growing pot at home illegal is necessary and proper to some broader legitimate congressional regulatory structure (Drug Enforcement) than congress may regulate the activity under the commerce clause/n&p clause.

However, in the recent ACA arguments, Scalia did not pose a single question regarding the application of the necessary and proper clause. If analyzed under Scalia's Raich necessary and proper doctrine, the ACA would most certainly have stood, however, this application is found only in Scalia's lone concurrence in Raich and he probably used it to not concede to the realist doctrines that governed pre-lopez, morrison, while still being able to ban the dreaded pot but without any serious thought of incorporating the necessary and proper clause analysis into a more formal understanding of commerce clause jurisprudence.

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TheFutureLawyer
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Re: I simply cannot understand the modern commerce clause.

Postby TheFutureLawyer » Fri Apr 20, 2012 3:40 pm

hmm.

more to add later.

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Bless
Posts: 533
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Re: I simply cannot understand the modern commerce clause.

Postby Bless » Fri Apr 20, 2012 3:43 pm

bk1 wrote:This is what I've got:

Basically prior to Lopez it seemed like pretty much anything was commerce (nothing had been invalidated since the Lochner era). Even some pretty sketchy stuff (Wickard - where wheat grown on the farm and never leaves the farm, but when you aggregate all the farmers who do this in the US it becomes "interstate commerce"). Lopez brings back the idea that there are limits on the commerce clause and states the 3 parts of the commerce clause you have above. The problem with Lopez is that they don't really apply it very well except to say that the aggregation of guns near schools does not substantially affect interstate commerce. You then get Morrison which basically articulates the factors that you apply to figure out whether something does substantially affect interstate commerce. So it's a factor test and not straightforward. Those factors from Morrison/Lopez are:

Is it commercial or noncommercial? (gun ownership is noncommercial - Lopez, beating women is noncommercial - Morrison, growing pot is commercial - Raich)
Is it typically subject to state regulation?
Do Congressional findings support the idea that it has a substantial impact on the national economy? (this might not be so helpful though because Congress had a ton of findings in Morrison yet the Court's response was lolno)

After saying no to aggregation twice (Lopez and Morrison) the court fucks shit up again with Raich. Raich is a lot like Wickard, basically something grown for entirely personal use that won't ever leave the state, but the court says it is interstate commerce. Raich basically creates a huge escape hatch in that it is an incredibly broad reading of interstate commerce and allows for the regulation of almost anything. In Raich it is okay to aggregate weed because it is part of a larger pattern that Congress can legitimately regulate.

So essentially:

Congress can regulate:
1. channels of interstate commerce
2. instrumentalities of interstate commerce
3. things with substantial relation to interstate commerce
(factors for determining 3 out):
a. commercial or noncommercial?
b. typically subject to regulation?
c. Congressional findings on its interstate commerce impact?

Good post.

Renzo
Posts: 4265
Joined: Tue Dec 02, 2008 3:23 am

Re: I simply cannot understand the modern commerce clause.

Postby Renzo » Sat Apr 21, 2012 7:58 pm

bk1 wrote:This is what I've got:

Basically prior to Lopez it seemed like pretty much anything was commerce (nothing had been invalidated since the Lochner era). Even some pretty sketchy stuff (Wickard - where wheat grown on the farm and never leaves the farm, but when you aggregate all the farmers who do this in the US it becomes "interstate commerce"). Lopez brings back the idea that there are limits on the commerce clause and states the 3 parts of the commerce clause you have above. The problem with Lopez is that they don't really apply it very well except to say that the aggregation of guns near schools does not substantially affect interstate commerce. You then get Morrison which basically articulates the factors that you apply to figure out whether something does substantially affect interstate commerce. So it's a factor test and not straightforward. Those factors from Morrison/Lopez are:

Is it commercial or noncommercial? (gun ownership is noncommercial - Lopez, beating women is noncommercial - Morrison, growing pot is commercial - Raich)
Is it typically subject to state regulation?
Do Congressional findings support the idea that it has a substantial impact on the national economy? (this might not be so helpful though because Congress had a ton of findings in Morrison yet the Court's response was lolno)

After saying no to aggregation twice (Lopez and Morrison) the court fucks shit up again with Raich. Raich is a lot like Wickard, basically something grown for entirely personal use that won't ever leave the state, but the court says it is interstate commerce. Raich basically creates a huge escape hatch in that it is an incredibly broad reading of interstate commerce and allows for the regulation of almost anything. In Raich it is okay to aggregate weed because it is part of a larger pattern that Congress can legitimately regulate.

So essentially:

Congress can regulate:
1. channels of interstate commerce
2. instrumentalities of interstate commerce
3. things with substantial relation to interstate commerce
(factors for determining 3 out):
a. commercial or noncommercial?
b. typically subject to regulation?
c. Congressional findings on its interstate commerce impact?


This is all good and correct. I would add that 3c is helpful, but not definitive, while 3a is required, as shown by Morrison: in that case there were extensive congressional findings on the effect on interstate commerce, and the Court said that this was not good enough because the effects on commerce were not proximate enough to the behavior being regulated. Compare this to Raich and Wickard, where the commodity being grown (wheat or pot) never actually entered into commerce, but was never more than one transaction away from it.




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