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Plenty of stuff isn't interstate commerce. The expansion of Federal Commerce Clause powers is the result of a more expansive application of the Necessary & Prop

• derefr 7y ago
  Almost everything can be interpreted as interstate commerce (and is!) I believe what the GP is saying is that, in light of this, a more prescient constitution would have restricted Congress's power to regulate interstate commerce, breaking that down into many small powers and no default blanket assumption of power beyond those.
  • wahern 7y ago
    Example: The growing or even selling of marijuana is not interstate commerce. No court has ever said it constitutes interstate commerce. It's only been deemed to possibly substantially effect interstate commerce, except when the particular product or participants are actually crossing state borders.[1] But that interpretation alone doesn't get you to the interpretation that the Federal government can regulate it; it's literally two steps divorced from interstate commerce. It's the Necessary & Proper Clause that was used to encompass activities involving marijuana. Saying that everything can be interpreted as interstate commerce is misleading, and if it intended as a critique of constitutional law has the effect of suggesting that nothing can actually be done to change it as a practical matter, when that's just not the case. The Necessary & Proper Clause by its nature provides poorly defined boundaries, which means it's far easier to limit extensions than if the definition of interstate commerce had literally been made expansive--which, to reiterate, has remained much the same since the expansion of Federal powers began in the late 19th century and arguably even since the 18th century. I grudgingly agreed with the argument that Obamacare was a valid use of Federal Commerce Clause power (as extended by the Necessary & Proper Clause) because of the precedent of Gonzales v. Raich from 2005 when two conservative justices agreed with the logic above with four other liberal justices. But Gonzales was new case law. At the time they could have legitimately and reasonably drew a line that said such activity was too far removed from interstate commerce. But they didn't. Apparently even for a justice like Scalia they'd prefer to complain that "everything is interstate commerce" rather than draw meaningful--and obvious--distinctions. But Scalia (along with Kennedy) didn't, not because it would overturn precedent--it was an unanswered question--but because he didn't want to throw the FDA and the War on Drugs in particular into disarray. So when Obamacare came around and Scalia was apoplectic about Roberts siding with upholding the law (albeit on a tax theory), all I could do was roll my eyes. My point being: let's be honest and fair about this stuff. By pretending that these extensions of Federal power are a fait accompli, then that's precisely what we'll get. Not because it's true, but because we're just being lazy. Even if one is committed to existing precedent, there will come a day when we see pressure to extend Federal power further, probably in entirely unpredictable ways. Honesty and vigilance will matter. [2] AFAIU, using telecommunications in the transaction is a separate crime. It's not the buying/selling, per se, but the use of interstate infrastructure to conspire to buy/sell.