2 ms·

I'm pointing out that the states forbidding commerce across state lines is not a violation of the commerce clause per-se. Rather it's a violation of how the fed

by avar 9y ago

I'm pointing out that the states forbidding commerce across state lines is not a violation of the commerce clause per-se. Rather it's a violation of how the federal government has chosen to use the rights it's granted by the commerce clause. I.e. it's just the academic point that it's not inevitable that the Federal government uses the power of the CC to enforce free trade between states, that's just how it's chosen to implement it. I.e. there could be an alternate timeline of the US where the CC enforces the ability of individual states to impose interstate tariffs up to some threshold, similar to how the EU manages agriculture quotas within the single market.

mikeash 9y ago
Meaning that, pre-21st, the states could have regulated this if there was a federal law saying they could? Or perhaps merely if there was no federal law saying they couldn't?
- avar 9y ago
  I may be wrong about this, but my understanding of the CC is that if say Nevada were to enact a law saying that sales to California were subject to tariff they wouldn't be found to be in violation of the CC. Instead they'd be found in violation of some federal code that the government could enact because of the CC. I.e. the CC isn't some clause saying that free trade between states must be respected at all cost (sans the 21nd). Otherwise why would there be a federal drug law on the basis of the CC? That's a prohibition of the sale of certain goods on the back of prohibiting sales across state lines on the back of the CC. Hence the indirect reply to SeanLuke upthread. This is not a violation of the CC, but of some federal statute enacted on the basis of the CC. The distinction matters because if the CC isn't an amendment that ensures free trade the federal government could just as well use it to ensure trade restrictions between states as free trade, which it mostly does today.

by avar 9y ago

mikeash 9y ago

Meaning that, pre-21st, the states could have regulated this if there was a federal law saying they could? Or perhaps merely if there was no federal law saying they couldn't?

avar 9y ago
I may be wrong about this, but my understanding of the CC is that if say Nevada were to enact a law saying that sales to California were subject to tariff they wouldn't be found to be in violation of the CC. Instead they'd be found in violation of some federal code that the government could enact because of the CC. I.e. the CC isn't some clause saying that free trade between states must be respected at all cost (sans the 21nd). Otherwise why would there be a federal drug law on the basis of the CC? That's a prohibition of the sale of certain goods on the back of prohibiting sales across state lines on the back of the CC. Hence the indirect reply to SeanLuke upthread. This is not a violation of the CC, but of some federal statute enacted on the basis of the CC. The distinction matters because if the CC isn't an amendment that ensures free trade the federal government could just as well use it to ensure trade restrictions between states as free trade, which it mostly does today.