[analog31]

I wonder how the business that I conduct with my ISP is "interstate commerce." The wire connecting my house to my ISP begins and ends in my state. As I understand things, it's the speed of data running up and down that wire that net neutrality seeks to protect.

[gizmo686]

Wickard v. Filburn

It is considered interstate commerce to grow wheat on one's own farm to feed one's own animals under the theory that by doing so, he removed himself from the interstate wheat market (where he would otherwise have bought his wheat).

Since the internet plays a major role in interstate markets, one could easily extend this arguement to say that even local internet connections are interstate commerce.

One could actually argue that most anything is interstate commerce. This is one of the main reasons we don't hear courts arguing that federal laws overstep the constitutional authority of the federal government: everything is interstate commerce.

[AnthonyMouse]

Is there a case that considers how this applies to preemption?

For example, could the federal government preempt the states from having public schools, public roads or a police force under the commerce clause because they impact the interstate market for private schools, private roads and private security? It seems like maybe they should only be able to preempt when the thing is actually interstate commerce and not just affecting it. But is there any case deciding that issue one way or the other?

[wahern]

It's hyperbole to say everything effects interstate commerce as a legal matter. See https://en.wikipedia.org/wiki/United_States_v._Lopez, where the court struck down the Federal Gun-Free School Zones Act of 1990.

On the other hand, that's a really low bar for the Federal government to meet. Especially in light of https://en.wikipedia.org/wiki/Gonzales_v._Raich, where the court upheld Federal criminal prohibition of homegrown marijuana for personal use, and where everybody stipulated (IIRC) that her marijuana wouldn't enter the stream of commerce. Note that both Kennedy and Scalia upheld Federal powers here, which is why their vehement opposition to Obamacare's individual mandate was so hypocritical.

[tmaly]

I think this was a serious abuse of the commerce clause. It seems you could effectively argue that anything affects interstate commerce and extend this type of reasoning in a way that circumvents the idea of commerce within the confines of the state border.

This type of abuse of the commerce clause should be rolled back to something more sane that reflects the original intent. The courts seem to bend the words of the constitution to increase central authority. Our freedoms suffer as a consequence in my opinion.

[pas]

You of course can argue that anything and everything affects interstate commerce, but ... in 1995 in Lopez the Court held that, no, there are truly local things, and laws not dealing with commerce (like the gun-free zone for schools act that was struck down at that time) lack authorization from the Constitution.

And this view was again reinforced in Morrision. Congress tried to use the Commerce clause to criminalize rape against women. The Court held that even though violence against women surely has some effect on the economy, that is very far from substantial. Even if viewed in the aggregate.

Our freedoms suffer some, sure, but the wheat (and other) market(s) got saner, which helped a lot of people, greatly expanding their freedoms. (On the other hand Wickard is used to regulate medical marijuana, which takes away some freedom.) But, but... it also allowed (and would allow) fixing healthcare, which was (would be) a big freedom improvent.

[tmaly]

I am not quite sure the market(s) got saner. I would argue that these laws impeded the recovery during the great depression. We had a mini depression in 1921 that recovered much faster without this overreach of the commerce clause.

[bscphil]

I'd argue that this is one of those rulings that any sane person would think is in error; it's effectively the result of "modernization" of our government through the court system. Federalism is (for better or for worse) just not the way any modern democracy is run. We've stepped quite cleanly away from localization of powers to join other modern countries, and stepped away from strict construction of constitutional provisions in the process. Is this a problem? Maybe.

[jackpirate]

Wow. Learning about cases like this makes me wish I trained to be a lawyer just so I understood exactly how weird law really is.

[gerash]

There is so much emphasis placed on precedent in the US justice system and I don't understand why.

With that line of argument I could also argue anything you do or say within the confines of your house is also public's business because it affects the public ultimately one way or another.

[blihp]

There's a lot of value placed on consistency and predictability both in civil and criminal law. If the law were arbitrary, then there really is no single set of rules that apply equally to everyone. So when a court decides X in a given case, any other parties going to a court in the same jurisdiction with the same set of facts and circumstances expects the case to be decided in a similar way. Of course, that's the perfect world theory and caveats apply.

[saalweachter]

I would emphasize "any other parties": one of the goals is that if I or if someone who is rich, famous or influential were to be defendants in court cases with similar facts, we would receive similar judgements - who the defendant is shouldn't matter, and paying attention to relevant precedents helps ensure that.

I would also mention that the internet tends to misuse precedent in the same way, well, the internet misuses logical fallacies. Finding a precedent you think is applicable to a court case doesn't mean the verdict is decided. Both sides, assuming they have competent lawyers, will submit numerous precedents they believe favors their side, after all. It is up to the courts to decide whether the precedents are applicable and whether to apply the precedent in any give case; precedents inform the court, they do not replace it.

[gnode]

Because the US justice system inherits from English common law. The moral motivation is that it is unfair to judge equivalent cases differently. This contrasts with civil law systems, used predominantly throughout mainland Europe / ex-Roman empire, which have the moral motivation that explicit codification of the law is the best way to be fair.

[wahern]

Civil Law systems have a doctrine similar to stare decisis with the same logic--fairness in outcomes. It just operates differently because of different views about the structure of government.

I think the main reason that Civil Law systems have voiced opposition to judge-made law is because since their advent (French Revolution onward) Continental systems have emphasized democratic control and thus the supremacy of the legislature, whereas Anglo-American law historically emphasized (or reflected) competing power structures. An early French constitution made it criminal for a judge to "invent" a rule to settle a case; if the law was ambiguous the judge was supposed to refer the case to the legislature. But guess how many times a court declared a law ambiguous and referred it to the legislature? (Point being, Civil Law systems noisily refuted the legitimacy of judge-made law, but the reality was different.)

It's notable that Parliamentary Supremacy didn't completely solidify in Britain until the late 1700s. American law didn't inherit such a notion of unlimited legislative authority. The concept of Substantive Due Process emerges from this environment, as does the far less controversial Judicial Review (from Marbury v Madison).

Also, FWIW, there's a common misconception (even among lawyers) that the Civil Law is somehow more closely related to Roman Law than the Common Law. That's not really true. Roman Law actually had judge-made law and something like stare decisis, though the technical details were quite different. Emperor Justinian attempted to impose reforms, but these were widely opposed and occurred at the tail end of the Roman Empire. In as much as the Civil Law was based on interpretations of the Justinian Code, that doesn't mean it was reflective of actual Roman Law. And in any event, most of the major distinctions between the Civil Law and Common Law emerged long after misinterpretations of Roman Law had permeated everybody's legal thinking.

[gnode]

Interesting.

> American law didn't inherit such a notion of unlimited legislative authority.

I wonder if this is due to US's structure being that of a constitutional republic rather than a democratic republic. I.e. the Supreme Court (which executes the constitution) must be superior to the legislature.

[YayamiOmate]

So it's interstate because it doesn't participate in interstate commerce?

Do tautologic conclusions make legitimate precedents? Dang...

[imbur]

Wickard v. Filburn is the landmark case here. A farmer growing wheat on his own land, to feed to animals on his own land, all in the same state, is considered interstate commerce. The supreme court decided that the test is not about whether it is really interstate commerce, but if the activity exerts a substantial economic effect on interstate commerce.

[Retric]

You can’t see internet across state lines. You can sell wheat across state lines, which seems like a major difference.

The heathcare system is another example of this. Emergency rooms in Texas are useless to people in Florida.

[pas]

Yet the ACA (Obamacare) was held constitutional due to the Commerce Clause.

Sure, if the ACA would regulate non-economic aspects of ER visits, those parts would have been likely struck down. (Unless otherwise authorized by the Constitution.)

[exabrial]

Silicon valley is a unique and quite humorous example of your point, but to play devil's advocate, the internet definitely extends beyond California

[mcny]

Is the last mile local or interstate? I know we used this for the healthcare law, affordable care act ACA which I never understood. Is it illegal to shut down a quick service restaurant location for health code violation? Food extends beyond California as well.

[pas]

Is there a substantial economic effect of regulating the activity? Well, California might be its own enemy this time, but so is are the Federalist judges the GOP/Republicans prefer. As CA is too big to hide in the bushes, anything it does has likely substantial effect on the US - though it's easy to argue that ISPs are _very_ adept at adapting to local regulations, so they would simply configure their network devices this or that way depending where the subsribers are.

And of course Federalist judges are not exactly that consistent either.

So we shall see, but I sincerely don't see how this would affect interstate ISP markets substantially.