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Old June 7, 2009, 09:16 AM   #1
Bartholomew Roberts
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Could the United States function with a narrow reading of the Commerce Clause?

First, I imagine some of you may be wondering how the "commerce clause" has any bearing on the right to keep and bear arms. The following short article by Thomas Sowell is a great explanation of both the commerce clause, how it has been misinterpreted of late, and how it affects your gun rights (and you can read the entire thing in less than 5 minutes).

Some quick background for those just coming to this debate can also be found at Wikipedia and in this more scholarly article by Glenn Reynolds for the CATO Institute.

So now that we have some background, my question for discussion: Could the United States continue as we know it if the Commerce Clause were interpreted more narrowly? If everything from the USDA to FDA to medical devices to gasoline in your fuel tank were suddenly regulated by the state instead of the Feds, would quality of life improve or would we see life become more complex and regulatory?
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Old June 7, 2009, 09:27 AM   #2
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I think we'd get by just fine. If you look at the FDA alone the length of time that they take to allow a new drug to come to market often kills as much as 10x the number saved by keeping a bad drug off the market. For example a new heart medication that they estimate will save 10,000 lives per year but took ten years to gain approval equals 100,000 lives lost by the delay. I'd rather have the 50 states make make choices for themselves. And nothing will stop them from banding together and pooling resources to share the cost of drug approval.

Moving the food safety issue to the states is also a winner. That brings accountability much closer to the people. A faceless bureaucrat in Washington is far less accoutable than a local official.
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Old June 7, 2009, 11:03 AM   #3
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Which would be better in terms of bringing government power closer to the "We The People" Ideal? A diverse collection of States with their own powers, or one large "State" ? I Can't see having the Interstate Commerce Clause, reduced to the latitude it was designed to have, as anything but positive. The only subset that would see an increase in difficulties would be to those who now abuse it's authority. It would be somewhat of a reversal back from "united state" back to United States.

Economically, I would think it would be a wash, monies that are now used by the FDA, USDA, etc. could go back into State coffers, and used for the same purposes, simply administered by State governments.
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Old June 7, 2009, 05:25 PM   #4
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Yeah, but what happens when you take your California approved Oxycotin to Texas and they say it is an illegal opiate and that your 30 day is sufficient to charge you with trafficking? Hope you are ready to hear your burly Mexican cell mate singing "Up in the west Texas jail of El Paso, I met a pretty young American boy" as you fall asleep crying each night.

I just found out that when I pay $20 for my hunting license this year the Fed is going to give ODNR $60. That is the problem. ODNR, a long with every other state department/bureau/whatever is entirely owned by the federal government. It might as well be national government, at least then some of the overlap and blame games would be eliminated.
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Old June 7, 2009, 05:33 PM   #5
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Could the United States continue as we know it if the Commerce Clause were interpreted more narrowly?
It's a moot point. I think it hardly likely that congress, the president, or the courts are going to willingly restore the constitution. It's far more likely that we will continue to drift closer a centralized socialist state because no one empowered to apply the brakes has the slighted desire to do so. That's why I support this proposal for a narrowly defined constitutional convention. I highly recommend reading the entire thing including the plain-English explanation at the end before rejecting it out of hand.

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Yeah, but what happens when you take your California approved Oxycotin to Texas and they say it is an illegal opiate and that your 30 day is sufficient to charge you with trafficking? Hope you are ready to hear your burly Mexican cell mate singing "Up in the west Texas jail of El Paso, I met a pretty young American boy" as you fall asleep crying each night.
So the solution is to have all power vested in the federal government and leave the states a mere formality? I think not. Interstate travel with prescription drugs can be handled as an interstate commerce issue just as it is now. By the way there is nothing to prevent Texas making Advil or Nyquil a felony under current law. States have been quite effective in standardizing motor vehicle laws and could easily do the same with drugs. But the real point is that if you need something right now to preserve your life, something that the FDA is 5 years from approving, then shouldn't that be your choice to chance. Sort of like it's your choice to decide if the risks of not owning a gun outweigh the risks of owning a gun.
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Old June 7, 2009, 10:08 PM   #6
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It's a moot point. I think it hardly likely that congress, the president, or the courts are going to willingly restore the constitution. It's far more likely that we will continue to drift closer a centralized socialist state because no one empowered to apply the brakes has the slighted desire to do so
The Court has the power to do so. They put the brakes on large portions of the New Deal, and US v Lopez makes for very good precedent.

The Firearms Freedom Act(s) being passed in several states have the potential to push this issue in short order. We may be seeing a major "10th Amendment v. Commerce Clause" death match in the courts in the next couple of years.

Back to the original question, I'd say yes. The United States functioned just fine under strictly enumerated Powers until 1933.
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Old June 8, 2009, 10:04 AM   #7
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Quote:
So now that we have some background, my question for discussion: Could the United States continue as we know it if the Commerce Clause were interpreted more narrowly? If everything from the USDA to FDA to medical devices to gasoline in your fuel tank were suddenly regulated by the state instead of the Feds, would quality of life improve or would we see life become more complex and regulatory?
I don't think that it would change all that much. A lot of things are legitimately interstate commerce, and could still be regulated by the feds. Most drugs and medical devices are only made in one or a few states but are used in every state so its a good bet there is a lot of interstate commerce there.

The dramatic change is that the DOL would be out of business, as there is not even a remote chance that job safety has anything whatsoever to do with interstate commerce. Some might object to that.

Quote:
Yeah, but what happens when you take your California approved Oxycotin to Texas and they say it is an illegal opiate and that your 30 day is sufficient to charge you with trafficking?
No much different than when you take your Texas legal gun to CA and become a felon for it. Its almost certain that were the court to make a rational decision about the commerce clause that the states would come up with some way to make it work. They were able to make it work before 1933.
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Old June 8, 2009, 10:38 AM   #8
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No much different than when you take your Texas legal gun to CA and become a felon for it.
And right now, most people have either decided they can't carry outside their own state, or that they will do it and just be unsure if it is legal. I would hate to be in the position of deciding where I go on vacation based on where my prescription is legal. I was using pharmaceuticals as an example, but for this forum CCW is probably better. I do not want to deal with all these questions for every single thing whenever I cross a state line.

I am pointing out that the Fed, to a large extent, runs the states now. They can threaten federal funding and force them to capitulate on almost anything.
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Old June 8, 2009, 10:54 AM   #9
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The Court has the power to do so. They put the brakes on large portions of the New Deal, and US v Lopez makes for very good precedent.
That was before the court packing threats. Since then the court was ceased to recognize the 10th Amendment as any more than a rubber stamp for federal power grabs. For example most federal environmental and labor laws fly in the face of the constitution. So does the nationalization of the banking and auto industry and most federal guns laws. The 10th only allows for the federal government to maintain the free flow of goods between states, not decide what those goods may be and what goods are lawful.

Quote:
The Firearms Freedom Act(s) being passed in several states have the potential to push this issue in short order. We may be seeing a major "10th Amendment v. Commerce Clause" death match in the courts in the next couple of years.
Those symbolic measures while well meaning and worthy of support are doomed. The courts long ago abandoned any pretense of enforcing any limitation on the powers of the federal government. The only answer with teeth is a realistic threat of a constitutional convention. Anything else will be laughed off by the courts.
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Old June 8, 2009, 11:12 AM   #10
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A narrow reading? I'm confident we'd survive just fine WITHOUT the commerce clause.

(Pretty good articles BTW)
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Old June 8, 2009, 12:31 PM   #11
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For example most federal environmental and labor laws fly in the face of the constitution. So does the nationalization of the banking and auto industry and most federal guns laws.
Environmental laws. Pollution, especially air and water pollution does not respect state boundaries so it is relatively easy to put together a pretty good argument that at least some environmental protection at the federal level is quite legal.

Labor laws. Agreed. Nothing in the constitution that gives the feds any say in this area, short of a government contract of some sort.

Nationalization. No power whatsoever granted to the feds to run any businesses at all.

Gun laws. I might argue that the feds could under the 2nd and 14th set limits that states could not exceed as to what infringements of the RTKBA are allowed. Most of the existing gun laws are patently unconstitutional, with the possible exception of some of the NFA stuff, as it is tax based, and you might be able to argue for it, although it is a stretch. Federal laws on what guns can and cannot be imported are probably constitutional, as the feds have a lot of power in this area.
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Old June 8, 2009, 07:10 PM   #12
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Most of the existing gun laws are patently unconstitutional, with the possible exception of some of the NFA stuff, as it is tax based, and you might be able to argue for it, although it is a stretch.
Actually, the NFA is a really good example of how the Commerce Clause can be used to stifle States' rights.

To quote John Ross:

Quote:
A clear example of the fact that the National Firearms Act had nothing to do with crime and everything to do with government power occurred immediately prior to its passage. Senator Hatton Sumners of Texas, the Chairman of the House Judiciary Committee, had been a virulent opponent of the proposed bill and had bottled it up because it “did violence to states’ rights”
By Mr. Ross' estimates, compliance with the NFA registry was less than 1%, which isn't really surprising. Anyone supporting the NFA at the time would have been conscious of several factors:
  1. Most folks in 1934 could not afford a $200 tax
  2. The NFA wasn't highly publicized, and most people didn't even know about it
  3. Even if it were a success, maintaing the infrastructure to administer a tax on millions of guns would have been unweildy and unprofitable
Plainly put, the NFA was a ban dressed up as a revenue-collecting measure, and FDR knew it.

US v. Miller was the big test, and unfortunately, we were in the Hugo Black period, after which the Supreme Court had abandoned any pretense of opposing FDR. If Miller had gone before the Court one year earlier, the NFA may very well have been declared unconstitutional, as it had been on the appellate level.

When Miller first went up for appeal in Arkansas, Circuit Judge Ragon ruled that, "the National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States."

When it went before the Supreme Court (two months later), one of Barry's arguments in favor of the NFA was that the Treasury had jurisdiction because the shotgun had been transported across state lines. Never mind that there was no "commerce" involved. Guns or wheat: the Feds had a mandate to regulate whatever they wanted.

Quote:
Federal laws on what guns can and cannot be imported are probably constitutional, as the feds have a lot of power in this area.
I'd disagree, but I tend to favor a very strict reading of Enumerated Powers. It'd certainly be a hard thing to fight, though.
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Old June 8, 2009, 07:37 PM   #13
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I think states just need to challenge the Federal government a lot more on issues pertaining to the commerce clause. For instance, on the 922r regulations. There is a large shipping and receiving port in Savannah, GA and GA's gun laws are pretty relaxed. I think with a unified effort by gun retailers, owners, and a member or two of GA's state legislature we could have one shipment of non 922r compliant guns come in and go out to retailers let the Federal gov find out about it and then tell them to do something about it. This is assuming you could get the guns past customs agents.


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Old June 8, 2009, 08:29 PM   #14
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I think with a unified effort by gun retailers, owners, and a member or two of GA's state legislature we could have one shipment of non 922r compliant guns come in and go out to retailers let the Federal gov find out about it and then tell them to do something about it. This is assuming you could get the guns past customs agents.
There's a big difference between challenging a bad law and simply flouting it.

I mean, really, do you know what a bad idea this would be for everyone involved in such a scheme? The whole endeavor would be crushed in short order, and what then? Every participant would be spending the next couple of decades in prison, at the very least. I can only imagine the consequences for those in state government who agree to such a thing.

Even organizing it could be construed as conspiracy and prosecuted.

This is precisely how constructive change does not happen.

Back to topic, if we were to see a stricter reading of the Commerce Clause and a return to pre-FDR Enumerated Powers, I don't think the FDA and USDA would simply evaporate. It would be a very gradual process, and while those organizations would likely survive, they would likely be pared down somewhat.
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Old June 8, 2009, 09:52 PM   #15
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This is another one of our great hypothetical threads that is totally irrelevant because no one is going to do anything anyways.

Quote:
I mean, really, do you know what a bad idea this would be for everyone involved in such a scheme?
I have often wondered what the few would do if several thousand people met somewhere and each converted a gun to full auto publicly. Could they really arrest several thousand people, most of whom had no criminal record or anything? The burden on the criminal justice system of providing due process to that many extra people who had real lawyers would be problematic on its own. The government would have to spend hundreds of millions of dollars if not billions to prosecute everyone.

Quote:
This is precisely how constructive change does not happen.
IDK, even in Chine, where the government killed hundreds or thousands 20 years and 4 days ago, things loosened up after the government made the point that they were still in charge.
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Old June 8, 2009, 11:02 PM   #16
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Federal laws on what guns can and cannot be imported are probably constitutional, as the feds have a lot of power in this area.
I'd disagree, but I tend to favor a very strict reading of Enumerated Powers. It'd certainly be a hard thing to fight, though.
One of the enumerated powers is very clear on this subject.

Quote:
Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
No matter how strictly you read it, congress has the power to regulate commerce with foreign nations. There is no limit imposed at all on this power.
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Old June 9, 2009, 11:14 PM   #17
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The Interstate Commerce Clause was originally intended to regulate foreign commerce, commerce with the Native Americans, and commerce between the states. In this capacity I believe it to be quite useful. However, I take issue when it is paired with the Necessary and Proper Clause to extend power of the federal government to areas they would otherwise have had no power to regulate. This kind of abuse was foreseen by Patrick Henry and other Anti-Federalists that claimed that the Necessary and Proper clause would provide boundless power to the federal government.

As it turns out, Patrick Henry was right. It is not the Commerce Clause in and of itself that is the enemy to the 2nd Amendment. I believe it is the Necessary and Proper clause. Only when paired with the Necessary and Proper Clause is the Commerce Clause any real threat to 2nd Amendment rights or any other right for that matter.

To sum up my view: I don't believe restricting or more narrowly interpreting the Commerce Clause is necessary to protect our rights. I believe that if one more narrowly interprets or does away with entirely the Necessary and Proper Clause, you thereby remove the only thing that makes the Commerce Clause threatening.
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Old June 12, 2009, 04:01 PM   #18
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I think we're always better off when the states are allowed to respond to their constituents and we don't have to worry about what they want in CA or MA .... states rights need to make a comeback IMHO
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Old June 13, 2009, 07:41 PM   #19
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No matter how strictly you read it, congress has the power to regulate commerce with foreign nations. There is no limit imposed at all on this power.
Nor is there any limit on the power to regulate commerce among the several states. I disagree with Micahweeks' statement that the "necessary and proper" or "elastic" clause is the root of our trouble.

When the clause was written, the federalists argued that it was not needed because if Congress were granted the power to regulate commerce, then obviously they were granted the power to pass any laws which would be necessary and proper in pursuit of that goal. How else are they expected to do it? If we had not written the necessary and proper clause into the Constitution, something functionally like it would have emerged from case law, and probably very early on.

I think the problems I see with the commerce clause come from expanded views of what is commerce and what is interstate. Homegrown wheat, cannabis plants, and machine guns for personal use don't seem to me to be interstate or commerce. But they are said to substantially affect interstate commerce. As Kozinski put it in the Stewart case:

Quote:
Therefore, the fact that
Raich did not herself affect interstate commerce was of no
moment; when Congress makes an interstate omelet, it is enti-
tled to break a few intrastate eggs.
Justice Thomas summed it up best in his Raich dissent:

Quote:
If stability is possible, it is only by discarding the stand-alone substantial effects test and revisiting our definition of “Commerce among the several States.”
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Old June 13, 2009, 07:50 PM   #20
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I'm comfortable the way things are, with maybe just a little bit more federal involvement for the sake of greater rights. Certainly "states rights" is a meaningless term, used to restrict freedom and equality.

A little socialism for us normal folks would be a good thing, as opposed to socialism for bailed-out companies while the bill goes to us.
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Old June 14, 2009, 02:08 AM   #21
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Interesting post, ImprobableJoe. I like your moxie.

A little socialism would be good for us? Well, get ready. A bunch of people are fixing to passionately disagree.

However, you bring up an interesting point. Every U.S. citizen lives with some degree of socialism.

Social Security? Redistributing my tax dollars to pay for your grandpa's bills. Socialism.

Live in Tennessee? You pay something called TennCare. My tax money goes to pay for some poor or lazy guy's medicine. Socialism.

How many people bought a house with some form of government down payment assistance or a subsidized loan? Umm... that was tax money. Yours and mine. Socialism.

Got a tax rebate under Bush? Look at that! Socialism.

Do I agree that more socialism would be a good thing? Well, I don't think so. As a matter of fact, I believe one of the quickest fixes for many of our problems is to remove a lot of the socialist things from our system. But, I do see your point about socialism for the big companies. That I agree with completely. I know the Commerce Clause gives the government the right to do that to regulate interstate and foreign commerce, but it has been a gross misuse of tax money.
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Old June 14, 2009, 04:53 AM   #22
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Certainly "states rights" is a meaningless term, used to restrict freedom and equality.
I'm not certain of that at all. For example, in the Raich case, the State of California, acting in the traditional capacity of states to regulate medicine, had said that citizens meeting certain criteria could legally grow and use cannabis plants for medical purposes.

The federal government came along and said no, if one person can do it so can millions (the "aggregation principle), and if millions do it, it can affect interstate commerce (the "substantial effects" test).

Seems to me that in that case, the "states rights" argument was advancing more individual freedom, while the "commerce clause/federal power" argument was restricting it.

A very similar argument occurred in the US v Oregon case about physician assisted suicide. Once again in that case we saw the State of Oregon affording a freedom to their citizens that did not meet with federal approval. Once again the argument was "states rights vs commerce power of the feds" with the states rights side arguing for greater individual freedom.

In the famous Lopez case, the argument was that state and local governments, if anyone, should make regulations about how close to a school you can be with a gun. The counter-argument was that guns near school affect (guess what?) interstate commerce, and are a federal matter. Once again, the states rights argument favored greater individual freedom and less central control from the federal government.

In the Stewart case, the 9th Circuit initially said that a homegrown machine gun for personal use is not subject to federal regulation under the commerce power. The "states rights" argument says that we should be allowed to design and build our own machine guns for personal use without federal interference, while the "commerce clause/federal power" side says that the feds have the power to ban that activity. Yet again, the states rights argument is the one that affords more individual freedom, and the federal power argument is on the side of restricting individual freedom.

It's true that over a hundred years ago, the states rights argument was used in a racist way to restrict freedom for some people, but those 4 examples show which way the tide has turned. It seems to me that these days, the commerce clause/federal control argument is the one without substance, and the one used most often to restrict freedom. Got 4 or more recent examples going the other way?
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Old June 14, 2009, 04:03 PM   #23
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A constitutional convention would be disasterous. the new constitution would simply legalize all of these bad and currently illigal,but ignored practices. it would result in a drastic increase in federal powers. We would become the USRA, United Socialist Republic of America.
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Old June 14, 2009, 04:23 PM   #24
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Oh boy! Two publii on a commerce clause thread! Look out!
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Old June 15, 2009, 03:28 PM   #25
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Environmental laws. Pollution, especially air and water pollution does not respect state boundaries so it is relatively easy to put together a pretty good argument that at least some environmental protection at the federal level is quite legal.
That's more of an argument that it is necessary, but that doesn't make it legal or constitutional. To make it legal, you would have to point out where in Article 1, Section 8 of the Constitution the Congress might get the power to make environmental laws.

Congress, lacking imagination, simply points to the commerce clause these days when anyone challenges their authority, and the courts nod sagely and move on. At least, that's what usually happens...

Your comment brought to mind something I heard about during the confirmation hearings for Chief Justice Roberts. It seems the environmentalist lobbies didn't like his nomination. Why? Anti-environment, of course. OK, so what did he do that was "anti-environment" while being a judge?

He stated in a ruling that he did not believe that toads found only in California were subject to federal authority under the interstate commerce clause. Believe it or not, what I found amazing was NOT that a court is even seriously considering the question of whether an indigenous California toad is interstate commerce or not. What I found amazing was what Roberts said NEXT. He went on to say that he might uphold the Endangered Species Act on some other grounds, but he did not think the toads were interstate commerce.

OK, what other grounds? Go ahead. Look at article 1, section 8 of our Constitution and find for me the authority by which Congress might write a law like the ESA. Oh, and don't use the commerce clause. Good luck with that. If you get frustrated and can't find it, just remember that the Chief Justice says it's in there someplace. (I can't find it either.)
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