[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.

[AnthonyMouse]

> Trade was in use as “the buying and selling or exchange of commodities” back in 1550.

No one is arguing that the word trade didn't exist at the time. But there are several other words that also existed at the time, like business, or work, or production, which they also didn't use.

Moreover, the expansive interpretation is inconsistent with the rest of the same article, e.g.:

> The Congress shall have Power > ... > To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; > ... > To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; > ... > To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

Counterfeiting and copyright infringement and high seas piracy are all going to affect interstate commerce, so why would they need to be separately enumerated if the commerce clause was intended to make them redundant?

> 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 what is this distinction buying you? Suppose that commerce includes production of goods intended for sale, and then "commerce among the several states" would include production of goods intended for sale between states. That still doesn't get you Wickard, which was production of goods for the direct use of the producer within a single state and continues to manifest the flaw that it omits any discernible limiting principle.

> So lost business is a concern.

Trademarks aren't about lost business, they're a consumer protection rule designed to prevent fraud. They protect the buyer from being misled about the identity of the seller. This is why you nominally can't sell a trademark. (Businesses use a conceit where they sell the "goodwill" associated with the mark and transfer the mark with it, which is a loophole that the courts have long let them get away with so everybody uses it, but in principle it's not allowed, and this is presumably why you don't see many blatant instances like people openly selling trademarks on eBay.)