It may, but not by virtue of being well-regulated.
I’m no legal scholar but my understading is that Scalia wrote a separate, much more narrow opinion in Raich concerning the ability of the government to enforce the federal ban on Marijuana. I think he used the Necessary and Proper clause to determine that intrastate activity can be regulated if it violates a federal law.
Oh I absolutely agree. I’ve personally never cared for the apparent scope of the commerce clause—unlimited?!—but I don’t really have a nice rule I could suggest which would limit it in a way I found reasonable. Convincing oneself is a fairly low standard, and I can’t meet it. 
I don’t personally support the notion that the constitution as written is incapable of handling an issue just because the framers didn’t conceive of certain problems. I agree in some cases that a new amendment should be used, but I think this claim is too often used. Unmanned flight was surely not in the framers’ minds when drafting the Fourth Amendment but I don’t think we need a new amendment to cover drones used to snoop on people.
On the commerce thing, though, I think I might just agree that we should have amended the Constitution to handle problems related to commerce which weren’t directly related to commerce among the states. It seems like a power the federal government should have, but that doesn’t mean it currently does. There seemed to be a period where SCOTUS took “the government should probably have/not have this authority, so let’s find it” as the rule. In hindsight, maybe they’d have been better off ruling against the government, so a clear consensus could be reached through normal political channels.
Because my ideal of liberty, much like the framers’, is that essential rights ought not be able to be taken away by mere political whim.
Without a limiting principle, the logic of your position is that all sorts of personal choices, from the food I eat to the clothes I wear, can be dictated to me, with my only defense the vicissitudes of the electorate.
I find that profoundly abhorrent.
The middle option: some other clause. MA can sue PA and OH. The case goes to the Supreme Court, who has original jurisdiction.
Sure. Kansas v. Colorado, a.k.a. “Quit usin’ all the water!” Arizona v. California, a.k.a. a.k.a. “Quit usin’ all the water!” That’s all I can think of for now.
Thanks, Chessic I will take a peek.
Can someone explain to me why it seems that “regulate” means “pass any law whatsoever”? It seems like the fight is always over the meaning of ‘interstate’ and never over the meaning of ‘regulate’. Congress can pass regulations to encourage or discourage activity as it sees fit, but that doesn’t mean the inverse is true- that every action to encourage or discourage activity is a regulation.
ISTM that in order to regulate something, it has to exist first. You can’t regulate my healthcare transactions if I’m not making any. It makes sense to say “We’re regulating your beer transactions by saying you can’t make one.” It makes no sense, though, to say “We’re regulating your beer transactions by saying you have to make one.”
Chessic, consider your objection in light of intergovernment transactions. For instance, “The Congress shall have Power… To regulate Commerce with foreign Nations…” It can’t decide to not do something until it does it?
But that’s not what I said; in most cases, no amendment is needed, because in most cases the new technology doesn’t make a difference. The 4th amendment prohibits unreasonable searches; the mechanisms by which a search is conducted are an entirely secondary question, and all that need be decided is whether or not they are “reasonable.”
But clearly, some things present genuinely new problems: the idea of things created in one state and then processed in another and then sold in a third are not one of them; but purely local activity in one state that could have had a direct, concrete and significant affect on another, ISTM was such a phenomenon.
Agreed, entirely.
It’s easier to simply ignore the constitution than go to the effort of changing it, and it’s natural that politicians should try to do so. Unfortunately, the court has failed its obligation to stop them.
You’re absolutely right; I had meant to mention suing as a possibility.
The Federal Minimum Wage law applies to any employee affected by “Interstate Commerce”. Certain exemptions, of course, such as the Act is not applicable to state and local governments and employee pay rates.
If I remember right, the case law states that most every person employed is affected by IC somehow.
Why doesn’t that make sense–and why, Bricker isn’t compulsion to join the militia part of regulating it?
Regulating beer transactions by requiring you to make one is poor law, of course, but it sure sounds to me like regulating beer transactions. What definition of “regulate” applies here?
Health care is, of course, in a weird category, inasmuch as pretty much everybody uses health care services at some point in their lives. This near-universal use of the services means that you’re not regulating something by requiring them to use it; it’s already being used. You’re regulating how people pay for it, by requiring them to pay for the services they’ll use via insurance.
Honest question: how did we go from “Congress has the power to regulate X” to “Congress has the power to regulate anything that affects X to any degree”? We don’t seem to stretch things to the same degree elsewhere.
What law would be applied to “nuisance claims between states”?
Well, first there was a problem with shipping, it seems.
One state gave the steamboat rights to a single company. Another company wanted rights to use their waterways as well, and the first company sued to restrain him.
SCOTUS, under John Marshall, ruled that navigation was a part of interstate commerce and thus the Federal regulations applied. Gibbons v. Ogden - Wikipedia
From there it got restrained a bit, but was more widely expanded again after the New Deal. Wickard being the most obvious ruling. Labor relations were also a big deal - Federal labor relations legislation requires a more expansive Commerce Clause. And once you conclude that some intrastate commerce is inextricably linked with interstate commerce it’s a pretty straight shot to where we are.
There was a chance to exclude non-activity in some more recent cases but that path was not taken. The clause was restricted a bit when parts of the Violence Against Women act was struck down, but I must admit the arguments there are well above my non-lawyer head.
Also I would take slight exception to your “to any degree” formulation. There are limitations in place, but they are rather broad. There is very little doubt that the individual mandate, for example, would fall within them.
Starts even earlier than Gibbons v. Ogden, with McCulloch v. Maryland. In that case, it was successfully argued that the Necessary and Proper Clause gave Congress the power not only to do things it was explicitly allowed to do by the Constitution, but also implied powers: those which were needed to carry out its constitutional powers and duties properly.
[QUOTE=John Marshall]
Take, for example, the power “to establish post-offices and post-roads.” This power is executed by the single act of making the establishment. But from this has been inferred the power and duty of carrying the mail along the post road from one post office to another. And from this implied power has again been inferred the right to punish those who steal letters from the post office, or rob the mail. It may be said with some plausibility that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post office and post road. This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record or process of a Court of the United States, or of perjury in such Court. To punish these offences is certainly conducive to the due administration of justice. But Courts may exist, and may decide the causes brought before them, though such crimes escape punishment.
<snip>
If no other motive for [insertion of the Necessary & Proper Clause] can be suggested, a sufficient one is found in the desire to remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in the Constitution if that instrument be not a splendid bauble.
<snip>
We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.
[/QUOTE]
You’d have to look a whole one post back to find the name of the case (which, granted, I misspelled when referencing it).
Because, as Sister Margaret taught me when I learned to diagram sentences, the subject is Congress. The verb ‘regulate’ indicates the action taken by the subject. The direct object is “interstate commerce.” So “interstate commerce” receives the action of the verb.
When Congress says I have to do something, then they are regulating me, not interstate commerce.
It seems to me that Commerce Clause arguments have nothing to do with liberty and everything to do with states rights. After all, nobody is arguing that Massachusetts can’t lay down a mandate, only that Big Guv can’t. I confess that I am not especially keen on state rights arguments. Nor in fact is industry: they regularly inveigh against a so-called, “Crazy-quilt patchwork of laws”, when it suits them.
What we need to do is to kick the judicial activists to the curb and simply return to the original intent of the founding fathers. How do I measure original intent? I use the Scalia/Geller method: I read minds across time and space. And George Washington tells me that Wickard v. Filburn was entirely correct.
It would be possible for the states to demand an Article V constitutional convention to define what interstate commerce is. I think the current definition is a poor one simply because no one can really say what interstate commerce really is anymore. The old definition of a transaction that crosses state lines is easy. I order a book from Amazon and they shipped it from another state. I even think that a holistic view is appropriate such as a transaction with a company that regularly ships to all 50 states falls under the ICC even if my specific transaction is intrastate.
So fast-forward to today. I go to my local hardware store and buy a rake made in Missouri. Have I engaged in interstate commerce? The current interpretation is yes and the ridiculousness of *Wickard *and *Raich *is that if I make my own rake, I have participated in interstate commerce because but NOT buying a rake, I have affected the prices on the national rake market. Now the question SCOTUS was addressing is based on that interpretation of the ICC, can the Feds require me to buy a rake?