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hoos89
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Postby hoos89 » Tue Apr 23, 2013 2:55 pm

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hoos89
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Re: Con Law: Commerce Clause Bootstrap Question

Postby hoos89 » Tue Apr 23, 2013 2:58 pm

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OneMoreLawHopeful
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Re: Con Law: Commerce Clause Bootstrap Question

Postby OneMoreLawHopeful » Tue Apr 23, 2013 3:25 pm

The whole "out of favor with the court" thing is speculative right now.

Darby was decided the year before Wickard v. Filburn, and Wickard is usually understood to be the controlling case on this issue (the gov't can prevent a farmer from growing wheat to feed to his own cows, because this entirely intrastate activity will impact interstate commerce in wheat). The Wickard reasoning has more-or-less subsumed the Darby reasoning.

As for why it's "speculative," it's been upheld very recently in Gonzales v. Raich (where the majority opinion stated that growing marijuana for personal consumption was little different from the facts in Wickard), but in this term's Obamacare decision, Roberts states that the Obamacare could not be upheld by the commerce clause; it's only legal because of the Taxing power.

So it's hard...Raich was decided very recently, and the part of the Obamacare decision relating to the commerce clause would likely be argued to be "dicta" by the Federal Gov't in subsequent lawsuits. Yet you cannot argue that a majority of the court (the 4 dissenters + Roberts) believes that the commerce clause would not justify Obamacare.

As for "Can Congress directly fine a state under the commerce clause?" that sounds like it would violate New York v. US, which stated that the Federal Gov't can provide incentives to states in order to get them to participate in a regulatory regime, but the Federal Gov't CANNOT compel states to participate in said regime. Since a direct fine sounds like an attempt to compel, it probably wouldn't fly.

Just be careful not to confuse this with the spending power - it's okay to withhold funds provided by the Feds, that's an incentive, not a fine (because the Feds provided the money in the first place). You cross the line when the gov't is no longer providing an incentive and instead is just threatening a penalty.

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hoos89
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Re: Con Law: Commerce Clause Bootstrap Question

Postby hoos89 » Tue Apr 23, 2013 3:43 pm

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OneMoreLawHopeful
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Re: Con Law: Commerce Clause Bootstrap Question

Postby OneMoreLawHopeful » Tue Apr 23, 2013 4:04 pm

Okay, I guess I misunderstood the question; I thought that the fine would be for failure to join some regulatory regime.

If the state itself were the one processing the wild horse meat, then yeah, it seems like the federal law would be controlling under Garcia. I just never assumed that the state itself would be the one violating the regulation. You're definitely on the right track there.

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hoos89
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Re: Con Law: Commerce Clause Bootstrap Question

Postby hoos89 » Tue Apr 23, 2013 4:14 pm

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laxbrah420
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Re: Con Law: Commerce Clause Bootstrap Question

Postby laxbrah420 » Tue Apr 23, 2013 4:23 pm

Why are you bringing obamacare decision into this?

Roberts rejected the activity/inactivity distinction as metaphysical bullshit, but he came pretty close to adopting it by saying that the power to regulate commerce presupposes the existence of commercial activity to be regulated --and that it does not confer the power to create an activity to regulate... or to compel individuals to act to purchase a product.

It's a pretty fact specific opinion I think? I don't see how that relates to regulating a "local activity" like the OP asked? I think you'd be pretty far off to even bring Sebelius into this

Am I missing something from the opinion?

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OneMoreLawHopeful
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Re: Con Law: Commerce Clause Bootstrap Question

Postby OneMoreLawHopeful » Tue Apr 23, 2013 5:07 pm

laxbrah420 wrote:Why are you bringing obamacare decision into this?

Roberts rejected the activity/inactivity distinction as metaphysical bullshit, but he came pretty close to adopting it by saying that the power to regulate commerce presupposes the existence of commercial activity to be regulated --and that it does not confer the power to create an activity to regulate... or to compel individuals to act to purchase a product.

It's a pretty fact specific opinion I think? I don't see how that relates to regulating a "local activity" like the OP asked? I think you'd be pretty far off to even bring Sebelius into this

Am I missing something from the opinion?


The OP seemed confused about why his professor might have said that "bootstrapping" is out of favor with the court. There is evidence in Sibelius that it is out of favor.

The strongest quote on this subject from Sibelius is:
"The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States."

This gives rise to people like the OP's professor saying that Darby-esque thought is "out of favor" with the court. Reading lines like that, it seems pretty clear that Roberts (and a majority of the court) believes that there is a hard limit on the commerce clause. Indeed, Roberts also relied heavily on Lopez throughout the decision, suggesting (again) that the court is ready to continue to limit commerce clause power.

As it applies to local activity, the rule Roberts set out in Sibelius seems pretty clear: if the regulation cross the line from "regulating activity" into "regulating individuals" then it is commerce clause overstep. Depending on the facts in the issue spotter, it's possible that a "regulation of local activity" issue might require this argument.

You are also correct, however, in that it would be silly to bring it up in many instances (particularly if something looked a lot like Wickard and not at all like regulation of individuals).

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laxbrah420
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Re: Con Law: Commerce Clause Bootstrap Question

Postby laxbrah420 » Tue Apr 23, 2013 11:50 pm

OneMoreLawHopeful wrote:
As it applies to local activity, the rule Roberts set out in Sibelius seems pretty clear: if the regulation cross the line from "regulating activity" into "regulating individuals" then it is commerce clause overstep. Depending on the facts in the issue spotter, it's possible that a "regulation of local activity" issue might require this argument.

:? this is so fucking wrong. it's a fucking opinion about compelling individuals to buy something... that's not even close to not being able to "regulate individuals"...which they definitely CAN do. See: criminal laws

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OneMoreLawHopeful
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Re: Con Law: Commerce Clause Bootstrap Question

Postby OneMoreLawHopeful » Wed Apr 24, 2013 2:55 am

laxbrah420 wrote: :? this is so fucking wrong. it's a fucking opinion about compelling individuals to buy something... that's not even close to not being able to "regulate individuals"...which they definitely CAN do. See: criminal laws

Have you even read the opinion?

I even gave you a word-for-word quote, see section III a 1.

Roberts explicitly states that laws that regulate activity are upheld by the commerce clause, and that laws which regulate individuals are not supported by that clause. He states that the Perez case, which looked at a criminal law, was upheld because it still looked at regulation of an activity.

Seriously, read section III a 1, Roberts is pretty clear about the activity/individuals distinction.

Edit: to be clear, that part of the opinion is not part of the majority opinion, but the point of this thread was to describe why Darby reasoning may be out of favor. In section III a 1, Roberts makes it clear he believes there are hard limits on the commerce clause. Taken together with th dissenters, there is reason to believe Darby is out of favor.
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LazinessPerSe
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Re: Con Law: Commerce Clause Bootstrap Question

Postby LazinessPerSe » Wed Apr 24, 2013 3:02 am

OneMoreLawHopeful wrote:
laxbrah420 wrote: :? this is so fucking wrong. it's a fucking opinion about compelling individuals to buy something... that's not even close to not being able to "regulate individuals"...which they definitely CAN do. See: criminal laws

Have you even read the opinion?

I even gave you a word-for-word quote, see section III a 1.

Roberts explicitly states that laws that regulate activity are upheld by the commerce clause, and that laws which regulate individuals are not supported by that clause. He states that the Perez case, which looked at a criminal law, was upheld because it still looked at regulation of an activity.

Seriously, read section III a 1, Roberts is pretty clear about the activity/individuals distinction.


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laxbrah420
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Re: Con Law: Commerce Clause Bootstrap Question

Postby laxbrah420 » Wed Apr 24, 2013 4:34 am

:?
Dude, it's an activity/inactivity distinction. Your quote says, "regulate individuals as such" to communicate that just because somebody will inevitably partake in activity doesn't mean the court can compel him to do so... if that's all you meant by regulating the individual that's fine, but i think it's a strange, and potentially misleading way to frame the dichotomy. There's no balancing question setup here...we're not trying to determine whether the regulation is hitting an activity OR an individual... we're looking to determine whether there is an activity at all.




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