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In Gonzalez v. Raich, the Supreme Court held that the Controlled Substances Act could apply to home-grown marijuana that started in and never left California because it could still affect the interstate marijuana market, and thus fell under the Commerce Clause.

That seems like quite a bit of a stretch to me, to the point that it seems like everything is interstate commerce. What are some examples of things that are NOT interstate commerce?

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    Gonzalez v. Raich not new precedent. Commerce Clause has been far-reaching for several decades. – paulj Mar 2 at 16:47
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You are correct in understanding that as it is currently interpreted, Commerce Clause authority is incredibly broad.

Generally speaking, an activity can be regulated under the Commerce Clause if it involves a transaction or transportation across state lines. But it can also be regulated if the activity -- combined with other people doing the same thing -- has a nontrivial impact on interstate commerce. That was the case in Gonzalez; a single person growing a single marijuana plant would have little effect on the interstate market for marijuana, but because many other people do the same thing, the effect becomes nontrivial.

Because the test is so broad, there was a long period where you could safely guess the outcome of any Commerce Clause challenge by assuming that any activity was within the scope of Congress's authority to regulate.

There has been some narrowing over the last 25 years or so, though, beginning with United States v. Lopez, where the Court said a law made it a felony to carry a gun in a school zone: "The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." United States v. Lopez, 514 U.S. 549, 567 (1995).

A few years later, the Court also struck down a portion of the Violence Against Women Act that allowed victims of gender-based violence to sue their attackers in federal court -- partly because of the attenuated link between violent crimes and interstate commerce, and partly because of a separate concern about how to allocate authority to regulate criminal conduct in general, which has traditionally been the province of the states: "The Constitution requires a distinction between what is truly national and what is truly local, and there is no better example of the police power, which the Founders undeniably left reposed in the States and denied the central Government, than the suppression of violent crime and vindication of its victims. Congress therefore may not regulate noneconomic, violent criminal conduct based solely on the conduct's aggregate effect on interstate commerce." United States v. Morrison, 529 U.S. 598, 599 (2000).

Probably the most notable of the recent cases was the Obamacare decision, where the Court held that Congress could not regulate people based on their decision not to purchase health insurance -- that is, the Commerce Clause allows Congress to regulate economic activity; it does not allow it to regulate inactivity: "The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to 'regulate Commerce.'" Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 558 (2012).

As you can probably see, these are pretty narrow areas that Congress is unable to regulate. Broadly speaking, you should assume that if you are buying or selling anything, or if you are in any way using the "instrumentalities" of interstate commerce -- such as roads, phone lines, the Internet -- Congress has authority to regulate your conduct.

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  • These are the cases that I would have mentioned and there aren't many of them on point. The most recent iteration of Gonzales v. Raich, is Taylor v. U.S. (U.S. June 20, 2016) holding that the interstate commerce requirement of the Hobbs Act is so trivial that a court may take judicial notice of it's presence in the absence of any proof of a connection to interstate commerce, citing Wickard. supremecourt.gov/opinions/15pdf/14-6166_o7jp.pdf en.wikipedia.org/wiki/Taylor_v._United_States_(2016) – ohwilleke Mar 1 at 22:05
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    United States v. Lopez was unfortunately side-stepped by making it illegal to carry guns transported over state lines, which is almost every gun in existence. I'd remove it from your post. – JonathanReez Mar 1 at 23:59
  • @JonathanReez That sounds like a good point to add after the section on it, rather than removing it. – IllusiveBrian Mar 2 at 15:00
  • @JonathanReez I'm pretty sure you're imagining some development in the law. Under 18 U.S. Code § 926A, it remains generally legal to transport guns over state lines. Even if it weren't, that would make Lopez a better example for the OP, not a worse one. – bdb484 Mar 2 at 18:23
  • @bdb484 I'm talking about carrying guns near schools. Congress successfully went around the Supreme Court on that one. – JonathanReez Mar 2 at 18:34
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The doctrine followed in Gonzalez v. Raich, that a local activity affects a broad interstate market, and is thus subject to Federal law under the Commerce Clause of the US Constitution was first adhered to by the US Supreme court in the case of Wickard v. Filburn, 317 U.S. 111 (1942). This case is described in the Wikipedia article:

An Ohio farmer, Roscoe Filburn, was growing wheat to feed animals on his own farm. The US government had established limits on wheat production, based on the acreage owned by a farmer, to stabilize wheat prices and supplies. Filburn grew more than was permitted and so was ordered to pay a penalty. In response, he said that because his wheat was not sold, it could not be regulated as commerce, let alone "interstate" commerce (described in the Constitution as "Commerce... among the several states"). The Supreme Court disagreed.

In section II of its opinion on Wickard v. Filburn the Court wrote:

"The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce. . . . The power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution..." (Quoting United States v. Wrightwood Dairy Co., 315 U. S. 110)

But even if appellee's activity be local, and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as "direct" or "indirect."

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But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose ...

It is of the essence of regulation that it lays a restraining hand on the self-interest of the regulated, and that advantages from the regulation commonly fall to others. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process.

After the Wickard decision the power of Congress to regulate economic activity under the Commerce Clause remained effectively absolute until United States v. Lopez 514 U.S. 549 (1995). That case was a challenge to the Gun-Free School Zones Act of 1990, which banned possession of handguns within 1000 feet of a school. The Court held that this was not economic activity and was not subject to Federal regulation via the Commerce Clause. But Lopez left the basic holding of Wickard intact as far as clearly economic activity went. Five years later, in United States v. Morrison, 529 U.S. 598 (2000) the court held that the Federal Commerce Clause power did not reach actions that had only an indirect effect on economic activity. But while this ruling limited the effect of Wickard its main holding remained, and still remains, in effect. Wickard is still often cited in Commerce Clause cases, and it directly controlled the holding in Gonzalez v. Raich.

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Here's one example, from a relatively recent case, economic inactivity. In National Federation of Independent Business v. Sebelius, SCOTUS held that Obamacare's individual mandate could not be supported by a combination of Necessary and Proper + Commerce Clause because it regulated those choosing not to buy health insurance (it forced them to either buy it or pay a fine).

This is a good question, by the way. My understanding is that many constitutional scholars/lawyers see some logical contradictions in the Commerce Clause cases, and think that under the hood what really happens is SCOTUS just does whatever it wants.

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As held in JONES v. UNITED STATES 529 U.S. 848 (2000):

Because an owner-occupied residence not used for any commercial purpose does not qualify as property “used in” commerce or commerce-affecting activity, arson of such a dwelling is not subject to federal prosecution

In this case, the court held that living in one's own home does not make it "used in" commerce, even if the home is collateral for a loan, insured, and receives natural gas.

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