Commerce Clause Question For Con Law Forum

[roxy8338]

What exactly is the current BLL under Raich? Did Raich essentially undue the narrowing of the clause that occurred in Lopez and Morrison?

[Unitas]

What exactly is the current BLL under Raich? Did Raich essentially undue the narrowing of the clause that occurred in Lopez and Morrison?

First there are three types of economic activity under Lopez:
-First, Congress can regulate channels of interstate commerce
-Second, Congress could regulate the instrumentalities of interstate commerce
-Third, Congress could regulate those activities which have a substantial effect on interstate commerce.

Raich and those cases deal under the third category:

No... Raich was basically just an application of Wickard being done on an illegal activity that was still directly economic.

Non-economic activity like in Lopez and Morrison has still never been aggregated like Wickard and Raich to show it impacts interstate commerce. Morrison seemed to say intrastate activity that was non-economic has never been aggregated, doubt that matters though. The court didn't reject it in Morrison, just said never has happened - something like thus far we haven't done it and aren't setting down a categorical rule against it, just aren't doing it. Raich just held the activity was economic by means that even though wasn't commerce; a failure to regulate it would undercut regulation of the market in the commodity. Congress also had a rational basis in Raich to feel that the pot would end up in interstate market regardless, like in Wickard.

Test is: Rational basis for concluding an economic or commercial activity in the aggregate (meaning if everyone does it), substantially affects interstate commerce. However, purely non-economic activity has been treated to not aggregate under Lopez and Morrison, but given the right case may allow it. Lopez said something like a stronger connection to commerce may allow it, possibly healthcare?

[verdandi]

Test is: Rational basis for concluding an economic or commercial activity in the aggregate (meaning if everyone does it), substantially affects interstate commerce. However, purely non-economic activity has been treated to not aggregate under Lopez and Morrison, but given the right case may allow it. Lopez said something like a stronger connection to commerce may allow it, possibly healthcare?

[Sidebar: the nuance about healthcare is whether congress can use the commerce power + necessary and proper clause to regulate economic *non*activity that, in the aggregate, affects interstate commerce. This is unresolved, though most people believe SCOTUS will ultimately allow it. this is completely unnecessary knowledge for a 1L con law exam. I just wanted to solidly connect precedent to current events for the OP. Sometimes these kinds of connections help me understand things, especially conlaw.]

[Pizon]

Test is: Rational basis for concluding an economic or commercial activity in the aggregate (meaning if everyone does it), substantially affects interstate commerce. However, purely non-economic activity has been treated to not aggregate under Lopez and Morrison, but given the right case may allow it. Lopez said something like a stronger connection to commerce may allow it, possibly healthcare?

[Sidebar: the nuance about healthcare is whether congress can use the commerce power + necessary and proper clause to regulate economic *non*activity that, in the aggregate, affects interstate commerce. This is unresolved, though most people believe SCOTUS will ultimately allow it. this is completely unnecessary knowledge for a 1L con law exam. I just wanted to solidly connect precedent to current events for the OP. Sometimes these kinds of connections help me understand things, especially conlaw.]

Do you think SCOTUS will allow it? Maybe I'm being overly cynical, but I fear it will vote along ideological lines. The Scalia/Thomas bunch might strike it down just to damage Obama's presidency.

[verdandi]

Do you think SCOTUS will allow it? Maybe I'm being overly cynical, but I fear it will vote along ideological lines. The Scalia/Thomas bunch might strike it down just to damage Obama's presidency.

Personally, I think it has about a 25% chance of being struck down by SCOTUS. Scalia and Thomas vote together but actually not usually for the same reason (Scalia is a textualist and Thomas is (tries to be) a pure originalist). In this case, Thomas is surely going to take the opportunity to turn back the scope of the commerce clause, because he thinks it far too broadly interpreted. Scalia might go the other way, given his expansive concurrence about the necessary and proper clause in Raich. However, if he does not see any affirmative grant of power in the commerce clause for this in the first place, then he might not feel he can even reach the necessary and proper clause.

Alito will probably vote to strike it down. Roberts *might* be swayed by the power argument; again, he might not be.

Then there is Kennedy. Personally, I think he'll vote to strike it down. He's got a quasi-libertarian streak in him, and I think he'd be swayed by the slippery slope argument about the scope of the commerce clause (e.g., if the government can force individuals into a market, we are getting awful close to a federal police power). Then again, he's notoriously enamored with all things international and European (probably not fair but I'm generalizing here) so maybe he'd go for it.

In sum: I actually think the biggest question marks on the side of striking it down are Scalia (based on his concurrence in Raich) and Roberts (who actually isn't that easy to predict). Roberts's allegiance to Rehnquist, who led the charge against turning back the commerce clause in Lopez and Morrison, might lead him to continue that trend and strike it down. Just hard to say.

And now that I've officially highjacked the thread, I leave it to the OP to ask any other con law questions.

[king3780]

Test is: Rational basis for concluding an economic or commercial activity in the aggregate (meaning if everyone does it), substantially affects interstate commerce. However, purely non-economic activity has been treated to not aggregate under Lopez and Morrison, but given the right case may allow it. Lopez said something like a stronger connection to commerce may allow it, possibly healthcare?

[Sidebar: the nuance about healthcare is whether congress can use the commerce power + necessary and proper clause to regulate economic *non*activity that, in the aggregate, affects interstate commerce. This is unresolved, though most people believe SCOTUS will ultimately allow it. this is completely unnecessary knowledge for a 1L con law exam. I just wanted to solidly connect precedent to current events for the OP. Sometimes these kinds of connections help me understand things, especially conlaw.]

Actually, it's not unnecessary to know for 1L con law exams. I just took mine last week and there was an essay question on Obamacare and how the commerce clause and necessary and proper clauses relate.

[DaydreamBeliever]

Hey guys,

I am still trying to grasp a firm understanding of the Commerce Clause and the powers Congress has under it.

I understand that they can regulate markets, but what authority do they have to make people buy health insurance ( in essence creating a market?)

In addition, since this is a mandate, would we not look to the Taxing and Spending Powers which can be used so long as they benefit the general welfare?

My only question is can we count "not buying healthcare" as an activity and if so, wouldn't this mean that we are basically giving them police powers?

I don't think this would be worth arguing under the 10th amendment but it may be worth noting that as well.

[king3780]

Hey guys,

I am still trying to grasp a firm understanding of the Commerce Clause and the powers Congress has under it.

I understand that they can regulate markets, but what authority do they have to make people buy health insurance ( in essence creating a market?)

In addition, since this is a mandate, would we not look to the Taxing and Spending Powers which can be used so long as they benefit the general welfare?

My only question is can we count "not buying healthcare" as an activity and if so, wouldn't this mean that we are basically giving them police powers?

I don't think this would be worth arguing under the 10th amendment but it may be worth noting that as well.

I strongly recommend you check out volokh.com. This whole area has been debated ad nauseam from both sides of the issue. I summarized the arguments in my outline and I think it helped tremendously. It's explained pretty clearly and I think you'd be better off reading it from the legal scholars on Volokh Conspiracy than my summary of their words.