You think you have trouble understanding the limits of Congressional power under the Commerce Clause?
A conlawprof wondered whether under Commerce Clause (Art. I, Sec. 8, Cl. 3) doctrine, which is defined by:
- Wickard (1943) (growing wheat for use on the farm -- e.g. feeding livestock, baking bread --in violation of gov't regs has a substantial effect on interstate commerce even if not sold, thus the regs are not unconstitutional as beyond Congress's delegated powers.
- Lopez (1995) (school-guns not having substantial effect on interstate commerce even if threat of violence interferes with education),
- Morrison (VAWA) (2000) (violence against women on campus not having an effect on interstate commerce despite fear of travel it may inspire),
- Raich (2005) (medical Mj is subject to congressional power to criminalize even if home grown and used because Mj laws are part of a larger regulatory scheme that Congress clearly has power to control, i.e. trafficking in drugs across state lines and international borders.
Could Congress lawfully intervene in the death of the late Ms.Schiavo under the commerce power on the ground that medical care could be argued to have some out of state sources, hence inter-state origins, such as travel of patients and doctors, and importation of medical supplies, equipment, and medicine from all over.
Suppose patients come from all over the world to famous medical institutions for specialized care; isn't that interstate and foreign commerce?
Suppose they were coming here seeking final care, palliative care, hospice care, etc., i.e. to die. Couldn't Congress regulate that?
What about Ms. Schiavo, who remained in her state of residence for years before she died.
If Congress could regulate this local activity, then why not abortions, or people who travel across state lines to have an abortion?
One professor offered this [the bracketed changes and additions are mine]::
Lopez and Morrison both purport to rest on an economic/noneconomic distinction.
Congress can't regulate purely local noneconomic conduct meaning ["even if"] it has a substantial effect on commerce, but it can regulate purely local economic conduct if it has such an effect [such as the wheat in Wickard].
That distinction might not be a coherent one -- I tend to agree with Justice Souter that it's not -- but it is the distinction on which Chief Justice Rehnquist relied in his opinions for the Court in those cases.
So the difference between public education [Lopez] and medical care [Raich] would be that the latter is economic while the former isn't. Seems plausible enough to me, and if I believed in the distinction the way Lopez and Morrison say they do I think I'd buy it. [sb]
Other comments appear below.
The below quotes appeared earlier in the thread. You might like to see how conlawprofs appear when kicking something around. I delete the i.d. of the writer to give anonymity while "listserving" (blogging, essentially, using the medium of a centralized listserve or email exchange); they're warned in advance that they may be published, rightly or wrongly. Rightly in this case, I believe.
*** Quoting***
The following passage from Chief Justice Rehnquist's opinion in Lopez leaves me uncertain about whether Congress may enact direct regulations of medical treatment. Off hand, I cannot guess at what distinctions there would be between federal regulation of curriculum and federal regualtion of medical treatment programs.
Justice Breyer focuses, for the most part, on the threat that firearm possession in and near schools poses to the educational process and the potential economic consequences flowing from that threat. . . .
Specifically, the dissent reasons that
(1) gun related violence is a serious problem;
(2) that problem, in turn, has an adverse effect on classroom learning; and
(3) that adverse effect on classroom learning, in turn, represents a substantial threat to trade and commerce . . . . This analysis would be equally applicable, if not more so, to subjects such as family law and direct regulation of education. For instance, if Congress can, pursuant to its Commerce Clause power, regulate activities that adversely affect the learning environment, then, a fortiori, it also can regulate the educational process directly. Congress could determine that a school's curriculum has a-significant" effect on the extent of classroom learning. As a result, Congress could mandate a federal curriculum for local elementary and secondary schools because what is taught in local schools has a significant "effect on classroom learning," cf. post, at 9, and that, in turn, has a substantial effect on interstate commerce.
Justice Breyer rejects our reading of precedent and argues that "Congress . . . could rationally conclude that schools fall on the commercial side of the line." Post, at 16. Again, Justice Breyer's rationale lacks any real limits because, depending on the level of generality, any activity can be looked upon as commercial. Under the dissent's rationale, Congress could just as easily look at child rearing as "fall[ing] on the commercial side of the line" because it provides a "valuable service--namely, to equip [children] with the skills they need to survive in life and, more specifically, in the workplace." Ibid.
We do not doubt that Congress has authority under the Commerce Clause to regulate numerous commercial activities that substantially affect interstate commerce and also affect the educational process. That authority, though broad, does not include the authority to regulate each and every aspect of local schools.
*** The post that started the string. ***
Subject: End of Life Decisions and the Commerce Clause
Forgive me if the list already discussed this question in the wake of the Schiavo litigation and legislation, but . . Is there any doubt (pre or post Raich) that Congress could regulate decisions to provide or refuse to provide life-sustaining treatment, food, or hydration, etc. under the commerce clause? People receiving care in a hospital, hospice, or nursing home are engaging in a commercial transaction.
Many of those receiving care in their homes are engaged in the commercial transaction of employing a home health aide, visiting nurse, etc. Even for those receiving care from family members, arguably the rule of Raich (whatever it is) allows regulation (for example, under the Scalia theory that it is necessary to the success of the broader regulatory program).
Congress could conclude that these transactions should not be used in a way that hastens death, or it could require that these transactions include the possibility of ending treatment to allow death. All of this would be subject to any substantive due process right to receive pain medication that would also hasten death (as per O'Connor et al in Glucksberg -- but how would Roberts vote?).
I guess my question is two-fold.
First, is there a flaw in this commerce clause logic, and second, what are the best arguments against this line of reasoning? [jtp]
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A teacher/school's services to a student seem just as economic as a doctor/hospital's. A distinction might be that students aren't paying anything, but that's the difference between a 100% public subsidy and a less-than-100% subsidy -- not the distinction between economic and non-economic conduct.
I really thought the Chief was saying that schools and curriculum were traditionally local in nature, so that Justice Souter was correct when he argued that there was a bit of "dual federalism" resurrected and injected back into post-'37 commerce clause analysis. [jt]
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I agree that under the current cases medical care could be labeled "commercial activity", but (if I were litigating such a case), I would argue that ending life is not a part of the commercial aspect of medical care but a deeply personal decision and, when the patient has not spoken, a matter of intra-family disagreement (like a divorce or child custody dispute).
Therefore, this matter is in one of the core areas of local control which the federal courts have carefully refused to enter.
Would this fly? [mp]
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If there is any boundary at all to Congress's power to regulate commerce among the several states, I would have to think that it lies in the notion that an individual cannot be forced to engage in it.
The [alleged] right to die has to be distinguished from the [alleged] right to assist.
Your death, whenever and however it occurs, is not going to have a
substantial effect on interstate commerce (unless you're enough of a
celebrity to boost the Nielsen's on CNN). But the provision of
assistance, like the provision of medical care generally, like the
provision of any other service or product, introduces commerce and in
gross might have a substantial effect on interstate commerce.
The rule of Raich is that the intrastate production and distribution
of a pharmaceutical has a substantial effect on interstate commerce.
This might have been more obvious if PhRMA had the nerve to file an
amicus brief pointing out the effects upon the industry of the
unregulated distribution of an unpatented pharmaceutical, which has
no serious side-effects, and which effectively (at least for purposes
of summary judgment) treats a host of physical and mental conditions.
They might also have pointed out that contra O'Connor's ridiculous finding of fact, there are a lot of more or less effective, more or less dangerous, more or less fun drugs that could be produced in a California lab without direct engagement in interstate commerce.
They might also have pointed out that the case wasn't about whether some sick old lady has as much of a right to garden her weed as she does to weed her garden, but about whether each of 50 states can establish separate legal regimes for the intrastate production and distribution of pharmaceuticals.
Think therapeutic thalidomide instead of medical
marijuana.
The distribution of voluntary death to end the suffering of
terminally ill patients, like the distribution of medical marijuana,
would probably have mostly beneficial effects on interstate commerce,
but that doesn't mean they aren't substantial.
I don't think the
Commerce Clause authorizes legislation that would prohibit a
terminally ill patient from putting a bullet through his brain, but
whether they can pass a law against selling him the gun depends on
how broadly you read Lopez. [jn]
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Phew! Jn has a lotta punch!
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