[Retric]

No, a background of interstate commerce is considered to be meaningful. It’s why the Texas power grid being so isolating has meaning.

However the court views a commodity as influencing and being influenced by interstate trade even if that specific gallon of oil never crossed state lines. From a purely economic standpoint it’s a reasonable take. Even Europe’s use of oil influences US oil prices let alone what happens in another state.

It’s both an upside and downside of the judicial system that they take things in context.

[AnthonyMouse]

There are two problems with that.

The first is that the purpose of giving "interstate commerce" to the federal government was to address the problems incident to interstate commerce, e.g. someone in New York buys something from someone in Florida and there is a dispute, but New York doesn't have jurisdiction over the seller and Florida isn't interested in protecting New York buyers from Florida sellers. The sort of general purpose economic regulations at issue in Wickard weren't intended to be in scope to begin with.

And the second is that as soon as you let go of that limiting principle, you don't have a limiting principle. "Texas has its own power grid" but if Texas has lower or higher power costs then customers might be more or less inclined to locate in Texas rather than some other state and affect demand for power in some other state, so the distinction is lost and there is a practical erasure of any line at all.

[Retric]

> a practical erasure of any line at all

Not really the Texas power grid is hardly the only example.

Banning products like say Fireworks is a much broader exception. If there’s no marker to regulate then the feds can’t get involved. This applies to more than just total bans, it’s also why California can have such influence on automobiles and Texas influences textbooks etc.

You may feel there’s not enough things that fall into the exclusion, but that’s not the same thing as the exclusion not existing.

> address the problems incident to interstate commerce

Trademark infringement on trademarks held by an out of state entity breaks the principle you’re talking about without any sale directly crossing state lines.

Same deal if some state decides to subsidize growing broccoli, and that’s ultimately what decided the issue.

[AnthonyMouse]

> This applies to more than just total bans, it’s also why California can have such influence on automobiles and Texas influences textbooks etc.

This isn't because the existing commerce clause jurisprudence excludes the federal government from regulating these things, it's because the federal legislature passed legislation carving out an exception for California to do that:

https://en.wikipedia.org/wiki/Clean_Air_Act_(United_States)#...

> Trademark infringement on trademarks held by an out of state entity breaks the principle you’re talking about without any sale directly crossing state lines.

Trademarks are already regional. If there is a Joe's Diner in California and another one run by a completely different Joe in Massachusetts, there isn't a problem any more than it would be if there was an independent Joe's Diner in Canada or England. Whereas if there is a Joe's Diner chain headquartered in California which is operating franchises in Massachusetts and they therefore want a federal rather than state-level trademark on the name, that's interstate commerce. Making interstate operations a prerequisite for a federal trademark would not be a real problem.

> Same deal if some state decides to subsidize growing broccoli, and that’s ultimately what decided the issue.

That's not what happened in Wickard. The state wasn't subsidizing anything, the federal government was prohibiting farmers from growing wheat. One of the farmers grew wheat for his own use, in the same state, and was fined for it.

The Court's theory was that this affected interstate commerce, because if he didn't grow it then he might have bought it. Which is a problem if you're trying to do national-level central planning of wheat production, but that's not what the commerce clause is supposed to be for. Everything "affects" interstate commerce. The purpose of the grant is supposed to be to deal with the issues that arise specifically as a result of commercial interactions between people in different states.

[Retric]

> it's because the federal legislature passed legislation carving out an exception for California to do that

I’m talking about the influence beyond it’s borders as mentioned by the Wikipedia article:

“The law also prevents states from setting standards that are more strict than the federal standards, but carves out a special exemption for California… The California standard was adopted by twelve other states,”

Other states without that exception can still have California standards.

> Trademarks are already regional.

Regions that often cross state boundaries. People regularly register federally even if they are only using it within a state. It’s not that someone in the middle of Texas cares about companies in Hawaii, it’s that someone on the border of most states could be 1 mile from a competitor in another state.

> That's not what happened in Wickard.

I didn’t say it did, I said that’s part of why the argument was convincing.

> but that's not what the commerce clause is supposed to be for.

They explicitly used commerce NOT trade. Thus from a pure textual standpoint the scope was absolutely intended to be broader than just trade.

[AnthonyMouse]

> Other states without that exception can still have California standards.

Because the federal law specifically allows that:

https://www.law.cornell.edu/uscode/text/42/7507

> It’s not that someone in the middle of Texas cares about companies in Hawaii, it’s that someone on the border of most states could be 1 mile from a competitor in another state.

But now you're back to having actual interstate commerce, because you have residents of the neighboring state patronizing the business in Texas or vice versa.

> They explicitly used commerce NOT trade. Thus from a pure textual standpoint the scope was absolutely intended to be broader than just trade.

They used the word commerce because it was written in the 18th century. Here's the definition of "commerce" as recently as 1913:

> "The exchange or buying and selling of commodities; esp. the exchange of merchandise, on a large scale, between different places or communities; extended trade or traffic."

https://www.websters1913.com/words/Commerce

If anything, choosing the word "commerce" would imply that they meant to limit the scope of regulation to trade happening on a large scale.

More to the point, this is the actual text:

> To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Is this meant to give the US Congress the power to regulate entirely local businesses in Spain because Spain is a foreign nation and local business activity in Spain affects commerce with foreign nations?

[Retric]

> They used the word commerce because it was written in the 18th century.

Trade was in use as “the buying and selling or exchange of commodities” back in 1550. https://www.etymonline.com/word/trade#etymonline_v_16851

Meanwhile by 1680s commerce was taking on a wider definition than just the act of exchange. At the time something was commercial if it was done for profit. Commerce included the steps in preparation for trade rather than just the exchange of goods.

> But now you're back to having actual interstate commerce, because you have residents of the neighboring state patronizing the business in Texas or vice versa.

So lost business is a concern.

[ndriscoll]

Except in the ruling that established that idea, Filburn did not participate in any market at all with the grain in question. There was no commerce with anyone, which the court ruled affected commerce, and therefore subject to federal regulation. The idea that not participating in something is a form of participation is absurd and can be argued about literally everything.

Federal government wants to regulate what's allowed for parks, public or private? As entertainment, they're a substitute good for copyrighted movies, so if you go to a park, you're not watching a movie. Interstate commerce.

Federal government wants to regulate how you have sex with your spouse? They can regulate a market for traveling prostitution services. Don't use one because you're exclusive with your spouse? Interstate commerce.

These aren't even that far from the actual ruling (actually the park one is probably less extreme), where he couldn't feed his chickens with food he grew. Literally they argued they can regulate how you feed yourself from the fruits of working your land with no trade.

Sometimes it's fair to say SCOTUS deserves no respect and are either extremely disingenuous and corrupt, or profoundly mentally challenged and incompetent. Wickard is such a ruling. It's one of those things that makes you completely lose faith in the legitimacy of our government when you learn about it.

[Retric]

> Filburn did not participate in any market at all

You missed the nuance here. Growing alone didn’t make him a participant, his use made him part of the demand for a commodity.

That [Filburn’s] own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation

Thus if he had been growing wheat as practice or for the artistic value without using it then he would not have been considered as influencing the market.

[ndriscoll]

I'm not missing that nuance. My examples are making reference to that. Like I said, their argument can be made about literally anything at all. Make a completely private intimate recording with your spouse for your personal use? That affects the national market for pornography by reducing your demand, and the exact same reasoning would claim that the commerce clause grants the federal government authority to regulate it. Hosting a house party and want to play a flute that you literally carved out of wood that you produced on your land? That reduces demand for streaming platforms, and musicians are struggling so the government has a right to prop up their market and make it illegal for you to provide music services yourself. Want to install solar panels on your land? Now you're not participating in energy markets, so it's interstate commerce. Build a home by hand out of compressed earth dug up on site? The extra thermal mass and insulation reduces your demand for energy from interstate markets vs. usual construction methods. Interstate commerce. Plant a shade tree on the south side of your land or install awnings on your south windows? Reduced energy demand. Interstate commerce. Grow tomatoes or raise chickens for eggs in your backyard? Pretty much exactly analogous to Wickard. Interstate commerce. Capture and filter rainwater or drink municipal tap water? Reduced demand for bottled water. Interstate commerce. Have a horrible terminal disease and want to be allowed to die? Reduced demand for all sorts of things (including food and energy). Interstate commerce. The absence of demand for something because you did it yourself doesn't make you a market participant. It makes you not a market participant. Providing for yourself is part of your inalienable right to life.

[Retric]

> Make a completely private intimate recording with your spouse for your personal use?

Wheat is a commodity, works are art are not. So even just the first example you used doesn’t apply. We’ve specifically brought up multiple classes of exceptions on this thread and you added another one.

I suggest you read this before trying to come up with examples. https://en.wikipedia.org/wiki/Commodity

[ndriscoll]

Whether a good is fungible is a a subjective thing. Would the wider market consider your private recording as fungible among all of the other recordings out there? Almost certainly yes. In any case, it would certainly meet the threshold for affecting interstate commerce that Wickard started, which does not require you to be interacting with commodities markets specifically. The meaning of that was almost unlimited for a long time after Wickard. It took 53 years to finally decide that something was not interstate commerce: existing near a school in possession of a gun, and that was a 5-4 decision. The dissenting opinion postulated that gun violence in schools has a substantial effect on the job market because employers view education as important, and existing in possession of a gun near a school could affect gun violence in schools. This very nearly won out as an argument. You can't make this stuff up it's so ridiculous.

The court actually affirmed 6-3 in 2005 that Congress can regulate home-grown marijuana for personal consumption because of its possible effects on demand within a market that it is federally illegal to participate in. Because some people make illegal trades, even if you are a law-abiding citizen and never would, you apparently affect interstate commerce by following the law and growing your own (in a state where doing so is legal). Absolute trash ruling by a clown court. Directly based on Wickard.

When you look at the whole framework/design of the US government, it's obvious that Wickard was a garbage ruling and that they had at that point completely capitulated to FDR, who we recall had threatened to pack the court if they didn't start giving him carte blanche to do whatever he wanted. FDR wants unlimited authority to do anything? Commerce clause suddenly means Congress can regulate anything which could possibly (even in a counterfactual universe) involve a casual chain where someone interacts with something that interacts with something that eventually at some point in the chain could have crossed state lines.

[Retric]

> Whether a good is fungible is a a subjective thing.

It’s a continuum, but not particularly subjective. The degree to which something is an equivalent good depends on how people treat the item in question.

They may both be religious books but I doubt you’d find many people ambivalent if they are buying a Bible or Quran. They evaluate a used car based on mileage, but people are far more picky about content.