What are the limits of the Commerce Clause? 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?
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: &quot;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.&quot; 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: &quot;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.&quot; 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: &quot;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.'&quot; 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 &quot;instrumentalities&quot; of interstate commerce -- such as roads, phone lines, the Internet -- Congress has authority to regulate your conduct.
As for the ex post facto question, an ex post facto law is one that makes an act illegal when it was legal at the time of the commission. Let's now look at the clause: (b) Effective date.—The amendments made by this section shall take effect on the date of the enactment of this Act, and the amendment made by subsection (a) shall apply regardless of whether the conduct alleged occurred, or is alleged to have occurred, before, on, or after such date of enactment. What amendment is made in section subsection a? Section 230(e) of the Communications Act of 1934 (47 U.S.C. 230(e)) is amended by adding at the end the following: “(5) NO EFFECT ON SEX TRAFFICKING LAW.—Nothing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit— “(A) any claim in a civil action brought under section 1595 of title 18, United States Code, if the conduct underlying the claim constitutes a violation of section 1591 of that title; “(B) any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 1591 of title 18, United States Code; or “(C) any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 2421A of title 18, United States Code, and promotion or facilitation of prostitution is illegal in the jurisdiction where the defendant’s promotion or facilitation of prostitution was targeted.”. This does not make any act illegal. It say "we don't mean by this that...", and does not make any act illegal. The basic definition of the crime is here: §2421A(a) Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce, owns, manages, or operates an interactive computer service (as such term is defined in defined in section 230(f) the Communications Act of 1934 (47 U.S.C. 230(f))), or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person shall be fined under this title, imprisoned for not more than 10 years, or both likewise §2421A(a). The bold part is standard language invoking the Commerce Clause, which is the source of federal authority in what would otherwise be a state matter. The italicized part, referring to intent, indicates that the website owner/operator has to have a wrongful intent, so it's not just a penalty against those who own or operate a website for content produced by the users of the site, if those users advertise prostitution or sex trafficking. The First Amendment has a number of limits, for example you are not free to threaten or defraud, or advertise murder for hire, of advertise employment, housing or lodging (etc) discriminatorily (e.g. "Women need not apply" is illegal). The question would be whether the government has a compelling interest in limiting free speech (I think the court would say yes), and is this the narrowest restriction possible that accomplishes that interest (again, yes). So it would probably pass strict scrutiny. The purpose of the act is both to tune up the Communications Decency Act and to extend the Mann Act, which makes certain forms of interstate sex a crime. So, 18 USC 2422 (a)Whoever knowingly persuades, induces, entices, or coerces any individual to travel in interstate or foreign commerce, or in any Territory or Possession of the United States, to engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both"; (b) Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life. This expands the federal limits on prostitution in a standard way.
Growing marijuana is very often legally classed as "manufacture of a controlled substance." In criminal law, "manufacture" tends to be explicitly defined to include cultivation, but this is in fact a reasonably common use of the term (it doesn't have to mean producing with machinery). And so it's extremely unlikely that anyone will be convinced that you even might have thought the agreement didn't cover growing marijuana. The intent of the parties is fairly clear there.
Is this illegal? YES Is there any specific law for this? YES: Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 says, inter alia, this: Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,-- [...] (b) ... possesses ... or uses cannabis, [...] shall be punishable,-- (ii) where such contravention relates to sub-clause (b),-- (A) and involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both... Note that these are maximum sentences, and that Section 2 includes ganja in its definition of cannabis.
The ADA does not explicitly cite any constitutional provision as the source of the Congressional authority to pass it. It may be presumed to be supporters by the Interstate commerce clause. During the 20th century and to the present this clause has been interpreted very broadly to grant regulatory authority over almost any economic activity in the US. An early and leading case on this point was Wickard v Filburn 317 U.S. 111 (1942). In this case regulation under the Commerce Clause of the planting and harvesting of wheat intended to be fed to livestock on the farm, and consumed by the residents thereof, but not separately marketed, was held to be proper and within the power of congress. The opinion in this case says: (at 120) We believe that a review of the course of decision under the Commerce Clause will make plain, however, that questions of the power of Congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as &quot;production&quot; and &quot;indirect&quot; and foreclose consideration of the actual effects of the activity in question upon interstate commerce. Quoting Swift &amp; Co. v. United States, 196 U. S. 375, 196 U. S. 398 (at page 122) the opinion further said that: &quot;commerce among the States is not a technical legal conception, but a practical one, drawn from the course of business.&quot; The opinion went on to say that: (at 124-125) That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it. The same consideration might help in determining whether, in the absence of Congressional action, it would be permissible for the state to exert its power on the subject matter, even though, in so doing, it to some degree affected interstate commerce. 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 &quot;direct&quot; or &quot;indirect.&quot; (at pages 127-128) That appellee'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 where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial. (at pages 128-129) 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 to stimulate trade therein at increased prices. None of the cases under the ADA that I have found challenge the congressional power to pass the act. In the Wikipedia article on the act, it is said to be largely based on the scheme of Section 504 of the Rehabilitation Act of 1973. I there were serious question as to the Congressional power to pass such laws, i would have expected a challenge to have been litigated in that time.
The state can decriminalize all drugs under state law, no problem. They merely have to repeal their version of the Uniform Controlled Substances Act and all related legislation. However, the federal drug statutes, contained in 21 U.S.C. 13, still apply because of the principle of dual sovereignty (if a state tried to explicitly overrule them, the Supremacy Clause would come into play). Let's take a look at some of the statutes under Title 21, Chapter 13, of the U.S. Code. Section 801 of that chapter described Congress's findings in enacting the Controlled Substances Act. §801(3) through (6) provide the basis for federal authority to regulate intrastate affairs with respect to drug trafficking and possession. The section claims that intrastate drugs "contribute to swelling the interstate traffic," and concludes that "federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic." Thus, the federal government will continue to enforce the federal controlled substances laws regardless of state legalization. A notable exception is the Rohrabacher-Farr amendment, which bans DOJ from using federal funds to prosecute medical marijuana programs legal under state law. However, the federal government isn't always successful in (and doesn't always attempt) regulating intrastate behaviors using its interstate commerce authority. For example, the original Gun-Free School Zones Act of 1990 (since amended and complemented by a 1994 law using the condition-of-funding approach), was struck down by the Supreme Court in United States v. Lopez, 514 U.S. 549 (1995). The law, banning possession of handguns near schools, was found to be an overreach of the Commerce Clause authority. But it was amended by adding the additional interstate nexus of the gun having been moved interstate, which was a very minor limitation in practice. Since it only exempts individuals with a license issued by the state where the school is, it has significantly limited the ability of states to pass "constitutional carry" laws and allow for CCP reciprocity, because many highways and homes fall within its reach. So, if a state is willing to lose all of its federal funding, then Congress can't ever force it to create, maintain, or enforce a state law. But in many ways, the federal government can still enforce its will through criminal law on a number of intrastate activities.
Well baseball for historical and frankly crazy decisions of SCOTUS is exempt because it is not a business that crosses state lines (by definition of the court if by no one else's). The other sports have had their run-ins with antitrust laws; some they've won and some they've lost. All of these have been to do with antitrust provisions in restraint of trade between leagues and clubs and clubs and players. As for monopoly powers: The elements of monopolization are twofold: possession of monopoly power in a relevant market; and willfully acquiring or maintaining that power. There are two clear defences to allegations of running a monopoly: the definition of the market - if the market is defined as &quot;baseball&quot; then there is a clear monopoly, however, if the market is &quot;professional sports&quot; it is not so clear that there is a monopoly. Certainly, both definitions of market are arguable. that the monopoly was &quot;the result of superior skill, foresight, and industry&quot;. These types of monopoly are allowed as the acquisition of monopoly power was not willfull.
To the extent Constitutionally permitted or as further limited by the state’s own law Constitutionality, a suit may be brought (or a prosecution launched) when the state has personal jurisdiction over the defendant. … a state court may only exert personal jurisdiction over an individual or entity with &quot;sufficient minimal contacts&quot; with the forum state such that the particular suit &quot;does not offend 'traditional notions of fair play and justice.'&quot; What constitutes sufficient &quot;minimum contacts&quot; has been delineated in numerous cases which followed the International Shoe decision. For example, in Hanson v. Denckla, the Court proclaimed the &quot;unilateral activity of those who claim some relationship with a nonresident cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the nature and quality of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protection of its laws.&quot; For the abortion bill, an organisation that provides funding to Texas residents probably has “minimum contacts”, an out-of-state doctor who treats all-comers probably doesn’t. For employment laws: if the employee is based and work takes place in the state, yes. There is a separate question of which state's law applies which is independent of which state's courts can hear the case. A California court can decide that it can hear a case according to Texas law for example although, in practice, if the California court felt that all of the issues were Texan, they would probably decide they lacked jurisdiction.