Patterico's Pontifications

2/23/2011

Reducing Judge Kessler to Absurdity: Why “Commerce” Cannot Be Interpreted To Include Inactivity or “Mental Activity”

Filed under: General — Aaron Worthing @ 2:36 pm



[Guest post by Aaron Worthing; if you have tips, please send them here.]

This is a follow up to my post yesterday on Judge Kessler’s opinion upholding Obamacare.  Update: Thanks to Glenn Reynolds for the link to my previous post on the subject.

———————–

Let me posit a hypothetical.  Imagine a man is born and raised in Japan and never leaves the country.  At the age of eighteen, he seeks to purchase a locally manufactured car.  The car was manufactured solely in the nation of Japan, and he pays for it in Japanese currency.  He proceeds to use it solely in Japan.

Now ask yourself a simple question.  By buying this car, has this man engaged in commerce with the United States?  The answer would seem to be obviously not.

But by the reasoning of Judge Kessler’s opinion and the other opinions upholding Obamacare, it would.  Consider the entire Commerce Clause in context:

The Congress shall have Power…  To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes[.]

So the term “commerce” is the same whether we are talking interstate or international trade.  Now consider how Judge Kessler interprets that term, “commerce” when discussing principles of commerce clause jurisprudence:

Wickard established two basic principles which are particularly applicable to this case. First, the Court held that “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 . . . .”…  Wickard therefore signals that the prime focus of the Commerce Clause inquiry is the activity’s effect on interstate commerce, not whether it is local or commercial.

Second, the Court held that the fact “[t]hat 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.”…  Put differently, an individual’s activities may fall within the reach of Congress’s Commerce Clause power even if, when considered alone, the effect on interstate commerce is negligible, so long as such activities, in the aggregate, have a substantial effect on such interstate commerce.

Well, what part of that doesn’t apply to the purchase of an Japanese car?  The decision to buy a Japanese car rather than an American car has a substantial economic effect on international commerce, right?  Or at the very least you can admit that even if his effect on the demand for American cars is trivial by itself, his contribution taken together with that of many others similar situated, is far from trivial.

So by the logic of Judge Kessler’s reasoning, Congress could pass a law tomorrow making it unlawful for any person on the planet to purchase any car not manufactured in the U.S. and it would be, if anything, an easier case than Obamacare because you don’t have that pesky “activity/inactivity” concern.  And of course if we determine that the decision not to buy something is economic activity, or alas, “mental activity,” then we can pass a law positively requiring this Japanese citizen who is a complete stranger to this nation, to buy an American car even if he has no need for a car at all.

Of course this approach has one virtue going for it.  It gives us a great way to fix that pesky trade deficit, right?

Naturally, this post has been facetious so far.  I have been engaged in a particular kind of argument, the reductio ad absurdum, or reduction to absurdity. If you can show a proffered interpretation of the law allows for absurd results, then it suggests that this interpretation is wrong.

Now you might argue first, “yes, but Congress would never dare try such a crazy thing.”  But the issue is not whether Congress would actually do this, but would the Constitution allow for it.

A much better argument is to say, “yes, but that would mean that Wickard and similar commerce clause cases were wrongly decided?”  Wickard v. Filburn was a case in which a man claimed that his decision to grow wheat for personal consumption was not “commerce” and thus it was not subject to Congressional regulation.  He lost on that claim, and most interpret that case as interpreting the commerce clause to reach his conduct.  But as Randy Barnett has pointed out, the “substantial effects” doctrine in Wickard wasn’t about the Commerce Clause.  Read that passage again: “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[.]”  (Emphasis added.)  The Court specifically denied that it was any kind of commerce at all, but Congress could regulate that activity because it was necessary and proper to do so.

And if we understand doctrines like the substantial effects doctrine as being about the Necessary and Proper Clause, then that language in the Constitution can give us something that the International and Interstate Commerce Clause cannot: a reason why we should treat people in foreign countries different from Americans.  Of course the argument for necessity is the same, but what about propriety?  Obviously any law that is specifically unconstitutional is improper under the Necessary and Proper Clause, but if the founders merely meant “otherwise constitutional” they could have written that.  So obviously a law can be otherwise constitutional, and still “improper.”  And it would seem that under the Constitution of a nation founded in significant part with the battle cry of “no taxation without representation,” it is utterly improper to attempt to regulate the conduct of a man who not only has no representation in this country, but has no voluntary contact with it.

Now you might object that Wickard really was a commerce clause case and cite various ambiguous passages from it.  But I have made it clear, however, that to the extent that it was a “pure” commerce clause case, it would have been wrongly decided.  There is no good reason to pretend that “commerce” means something different in an international (rather than interstate) context, and yet if the international commerce power was interpreted that broadly, that would be absurd..  As Justice Black once said, “the  ultimate  touchstone  of  constitutionality  is  the  Constitution  itself  and  not  what  we  [on the Supreme Court] have  said  about it.”  To the extent that dicta in Wickard contradicts this approach, it has to be ignored to avoid the absurdity of claiming that we can regulate the purely local and even non-commercial activity of a stranger to this country.  That allows the holding in Wickard to stand, for Congress’ power to reach every bit as far as it did under Wickard, but on an arguably different justification.

And that means that a law like Obamacare would rise and fall purely on whether it conforms with the necessary and proper clause.  And in the case of Obamacare, it fails.  It is not proper because it violates our first amendment right to engage in boycotts.  As I wrote a few months back:

[C]onsider a simple example.  Rosa Parks one day decides she is not giving up her seat to a white man even though a law purports to require her to, and as a result, she is arrested.  In response Martin Luther King, Jr. and many others lead a boycott of the bus system.  But, according to the court in Liberty University [a case upholding the mandate], Congress could pass a law requiring every person to use a city bus for transportation where it is available, and thus outlaw the Montgomery Bus Boycott.

And it is not necessary to carry the law into executionAs I wrote last year:

The correct reason why the necessary and proper clause will not avail the government requires us to look at that constitutional language again: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” (emphasis added).  In other words it is not just a power to do something that is generally “necessary and proper,” but only to “carry[] into Execution” a valid exercise of congressional power…  But as correctly pointed out in this amicus in the Florida suit, this law isn’t necessary to execute the law.  Rather, it is necessary to reduce the ill effects of the law:

In short, the Individual Mandate is not necessary for implementation or enforcement of the PPACA’s insurance industry reforms. Instead, Defendants claim that the Mandate is “essential” to avoid the consequences of those reforms: bad incentives, higher premiums, and ultimately the “extinction” of the insurance industry.

So that is… the government’s big mistake.  Its not [enough] that it is generally necessary, but it must be necessary to carry the law into execution.  And the mandate is not related to executing Obamacare at all.

And either reason, standing alone, is enough to declare the law unconstitutional under the Necessary and Proper Clause.

[Posted and authored by Aaron Worthing.]

47 Responses to “Reducing Judge Kessler to Absurdity: Why “Commerce” Cannot Be Interpreted To Include Inactivity or “Mental Activity””

  1. I call dibs on the phrase “living document!”

    ukuleledave (19a833)

  2. Ironically, we must thank Judge Kessler for crystallizing the absurdity of the pro-ObamaCare position. Truly, if Congress can regulate inactivity as “[affecting] interstate commerce,” and can conflate health CARE with health INSURANCE, then we may as well throw out the Constitution’s Article I, along with the Ninth and Tenth Amendments.

    Mitch (890cbf)

  3. We really ought to start taxing people in Japan for buying Japanese cars.

    Newtons.Bit (922da8)

  4. Fear not. I believe lots of talk and lots of jawing and lots of writing will remove this judge from the bench; will overturn the ruling; and will cause Obama’s defeat in 2012. Hahahahaha.

    They’re not even pretending their not the masters of Animal Farm any more.

    tehag (d4eb2a)

  5. Your hypothetical about the Japanese guy ignores the due process clause and personal jurisdiction, which is a separate analysis.

    Congress could pass a law saying all cars worldwide must be built in the US because it obviously impacts interstate and international commerce. The Constitution gives them that power, and the courts can’t deny it. Courts will enforce the law to the extent it doesn’t offend other parts of the Constitution.

    But, if you try to take the Japanese guy to court to enforce it, he will show that he doesn’t have sufficient contacts in any US jurisdiction to be subject to our laws — he hasn’t “availed” himself as the decisions say. So another Constitutional provision blocks the otherwise fully Constitutional law based on the Commerce clause from being enforced against that individual.

    The same is true if the guy is solely located in, say, California, and has no contacts with Michigan, but Michigan tries to enforce “ObamaCar” based on the federal law that all cars must be US made and Michigan has a follow on statute that allows Michigan to sue to enforce the federal rule. The law is consistent with the Commerce Clause, because Congress can obviously regulate something like car manufacturing that touches interstate commerce. But Michigan can’t establish personal jurisdiction against the California guy and the Due Process clause forbids the suit.

    But if Congress passes “ObamaCar”, and Arkansas passes a follow on statute that requires everyone to buy American in conformance with the federal statute and that also allows a state action against violators, and goes after an Arkansas resident who bought a Toyota built in Japan? Incredibly stupid law, but fully consistent with the Commerce Clause and the Due Process clause, and fully Constitutional.

    Aplomb (aaa545)

  6. aplomb

    all of what you are saying goes to whether it is “proper” to reach out to this japanese citizen. but clearly the commerce power by itself, as read by the liberal judges, can reach him even if all he does all day is sit and scratch himself on the nards. or confines his business solely to japan.

    Aaron Worthing (73a7ea)

  7. Aaron,

    Well, what I said goes to whether it is “proper” but that is not a subjective analysis, it is a Constitutional limit on the Commerce Clause imposed by the Due Process clause.

    Liberal and conservative judges are usually pretty much in agreement that the Commerce Clause is almost unlimited, but Due Process is one of the key limits.

    If you want to consider the flip side, think of cases like the Supreme Court’s Quill decision which invoke the “dormant” Commerce Clause. An out of state company with no physical contacts to State X was found to have personal jurisdiction under the Due Process Clause simply by sending catalogs into State X and sending orders by mail into State X — it had availed itself to jurisdiction. But State X can’t impose sales and use tax on the company because while there are sufficient Due Process contacts there isn’t enough nexus (physical presence) for the Commerce Clause. Not because Congress said so but because Congress was silent about this possible burden to interstate commerce. And here’s the important part, the Court made clear that if Congress did pass a law saying that State X could tax this situation, it would be fully fine. The Court almost begged Congress to do so.

    Point being, courts respect the Commerce Clause so much they will invalidate state action in areas where they think this is an area where Congress could have passed a law, but didn’t, so the courts assume the silence means Congress doesn’t want this particular area “burdened” or otherwise messed with, until Congress says so. The Commerce Clause is one of the few areas where even Federalist Society types agree Congress can reach in and affect things on a local level.

    When Congress actually speaks and invokes the Commerce Clause, courts really have little basis to get in the way, unless like I said it violates another part of the Constitution. A federal law based on the Commerce Clause that violates say Second Amendment gun rights, or free speech, or due process, or whatever other Constitutional rights you might raise are the exceptions of course. Even when it rubs up against other Constitutional provisions the Commerce Clause can be surprisingly powerful; it got the job done on dismantling Jim Crow laws better than Equal Protection did.

    If you want to beat Obamacare in court, you have to come up with some other Constitutional argument than Congress exceeding its grasp on the Commerce Clause. (Due Process is clearly the best bet.) Health care is clearly an interstate industry that Congress can regulate so the Commerce Clause is satisfied; forcing private individuals to pay money and enter into private insurance contracts or face fines is a clearly debatable Due Process proposition.

    Aplomb (aaa545)

  8. If I have contempt for a court, isn’t that contempt still there, even if I don’t express it ? But the court’s failure to fine me for that contempt shows that I’m actually not doing something that would be fined if I was doing what I’m thinking .. or am I ?

    Bill Maher (03e5c2)

  9. One thing I think shines through in all these arguments over constitutionality is the subtlety of the the phrasing of the US Constitution. That an action of congress be both necessary AND proper is a wicked obstacle course some 250 years hence, as it was most certainly intended to be.

    Paul Dubuc (108e70)

  10. A citizen of Japan not in the US is not subject to the laws of the US.

    This is the most absurd post I’ve read on this page.

    Wickard v Fillburn concerned the risk of the farm belt cutting off trade with the rest of the country. Filburn was a farmer.

    “In July of 1940, pursuant to the Agricultural Adjustment Act of 1938, as then amended, there were established for the appellee’s 1941 crop a wheat acreage allotment of 11.1 acres and a normal yield of 20.1 bushels of wheat an acre. He was given notice of such allotment in July of 1940, before the Fall planting of his 1941 crop of wheat, and again in July of 1941, before it was harvested. He sowed, however, 23 acres, and harvested from his 11.9 acres of excess acreage 239 bushels, which under the terms of the Act as amended on May 26, 1941, constituted farm 115*115 marketing excess, subject to a penalty of 49 cents a bushel, or $117.11 in all. ”

    Hard to see how the US could come to rule the world (and make foreigners subject to our laws as you fantasize) without the Federal government being able to regulate at this level.

    Bernard F. (d80b5a)

  11. “Hard to see how the US could come to rule the world”

    Bernard F. – Hard to see how Congress could regulate thought as well, doncha think?

    daleyrocks (ae76ce)

  12. “Hard to see how Congress could regulate thought as well, doncha think?”

    It’s can’t.

    Bernard F. (d80b5a)

  13. “Hard to see how Congress could regulate thought as well, doncha think?”

    It can’t.

    Bernard F. (d80b5a)

  14. benard

    > This is the most absurd post I’ve read on this page.

    The absurdity of it is the point, because it is directly implied by the decisions upholding obamacare. of course we can’t, which is exactly why kessler and kompany are wrong.

    Aaron Worthing (73a7ea)

  15. ““Hard to see how Congress could regulate thought as well, doncha think?”

    It can’t.”

    Bernard F. – Judge Kessler disagrees with you, which is why she said ObamaCare was constitutional.

    daleyrocks (ae76ce)

  16. Bernard eatz boogerz.

    JD (109425)

  17. JD – Bernard is an idiot.

    daleyrocks (ae76ce)

  18. Comment by Aaron Worthing — 2/23/2011 @ 8:04 pm
    The absurdity lies in the jurisdictional component–Congress can’t make laws which apply to Japanese who never come to the US.

    The absurdity does not (unfortunately) lie in the Commerce clause component. As evidence, change the hypo to one in which Congress bans Americans from buying Japanese cars (or non American made cars in general). It becomes, sadly, no longer absurd.

    kishnevi (9ee373)

  19. Aplomb, fortunately Judge Kessler has seen and solved that problem. Even though the Japanese citizen singled out for an example has never previously availed himself of the jurisdiction, he might at some time in the future possibly avail himself, thus the US Congress has the power to create laws affecting him. Jurisdiction would not be a factor since the Congress in establishing that the car buying requirement was worldwide has established jurisdiction (jurisdictional limitations prevent a court from establishing jurisdiction absent congressional declaration but congress was granted the power the power to establish jurisdiction through legislation in the US Constitution). Personal jurisdiction is an interesting sideline, but ONLY applies to lawsuits and regardless the rule is that for federal cases the federal courts have personal jurisdiction anywhere not covered by state courts (see rule 4 (k) (2), Federal Rules of Civil Procedure).

    max (2f2a28)

  20. Any court ruling that relies on Wickard (or even mentions it) is on shaky Constitutional ground. Some one put LSD in the courts water cooler the week they came up with that montstrosity.

    Have Blue (854a6e)

  21. Good takedown of Aplomb’s argument Max. But you forgot one other thing. The Constitution also explicitly allows the Congress to take the life, liberty and property of foreign citizens who have not established any jurisdiction with the United States. I present to you Article I, Section 8, Clause 11: “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;”

    The US can come in and “collaterally damage” a foreigner and his family, his house, and his sheep herd and force his countrymen to live under a foreign military dictatorship, even though he never formed a “nexus” with or “personal jurisdiction” in the United States. So to say that an isolated foreigner is immune from US jurisdiction is contradicted by an explicit power given to Congress. Maybe this was on Judge Kessler’s mind: “Hey, if we can Constitutionally kill any person on Earth, surely we can pile inference upon inference until we justify requiring a citizen to purchase health insurance.”

    LB (0e603d)

  22. I propose a tax on all foreigners living abroad.

    Techie (4c48a8)

  23. “A citizen of Japan not in the US is not subject to the laws of the US.”

    And yet terrorists and pirates never in the US will be given more rights than US citizens during their stay in NYC.

    dfbaskwill (c021f2)

  24. have blue

    wickard was more or less reaffirmed on gonzales v. raich. like it or not, the S.C. will continue to follow it.

    Aaron Worthing (e7d72e)

  25. I suppose that a restaurant or movie review on an individual’s personal website or social network page would be subject to the learned Judge Kessler’s ruling because it could, depending on the review, attract or drive away business.

    Layton Kor (20463c)

  26. According to Kessler, Congress can regulate mental activity.

    Judging is mental activity.

    Therefore, Congress can regulate judging.

    The judiciary is no longer a co-equal branch, it is now subordinate to the legislative and executive branches.

    LarryD (feb78b)

  27. Larry Reilly is mental.

    Ergo congress can regulate his posts.

    DohBiden (984d23)

  28. Layton

    well to be fair to this judge, she would probably state that this was protected speech.

    Aaron Worthing (e7d72e)

  29. No this is a silly argument. Your analogy fails because when you switch from interstate to international there isn’t a federal government. The application of the commerce clause to Japan isn’t like the US regulating activity in California, its like Pennsylvania regulating activity in California. The commerce clause is part of treating the US as a national market where individual states usually cannot and certainly cannot easily control how commerce in another state might enter their state. The international system is obviously different in that national governments have plenary power to restrict commerce with other nations.
    Mandate may be unconstitutional – but your argument won’t establish that.

    TomO (e4c9be)

  30. Based on this line of thinking, we’ve now become a Tom Cruise movie where the government can prosecute future criminals based on their thought, or inaction, or whatever the government chooses.

    Rochf (ae9c58)

  31. I was about to not comment, but I was afraid Judge Kessler might fine me for thinking about not commenting.

    How about the US passes a law mandating that every Japanese citizen buy a US made car. Yes, again there are jurisdictional issues, but on Judge Kessler’s commerce clause reasoning, it would be alright.

    rbj (9f3937)

  32. You have committed ThoughtCrime. Please report yourself to the nearest detention center, Citizen.

    luagha (5cbe06)

  33. My primary concern is with the damage these rulings are doing to our system of jurisprudence, or perhaps more correctly, to the damage these political appointments, themselves, are doing to our judicial system.

    We now have three Democratic appointed judges calling the legislation constitutional and two Republican appointees striking it down as unconstituional.

    The pattern is clear.

    If our system of justice has becone politicized, if judicial decisions have become synonomous with political decisions, then where is the incentive for the opponents to obey the law? We have already seent his at the highest levels of our govt itself as the Obama administration announced its intention to continue th implement Obamacare even in light of the adverse decisions.

    How can anyone respect any decision–why should anyone obey the law?

    T (400783)

  34. that’s very well said Mr. T

    happyfeet (a55ba0)

  35. T

    i agree with happy feet.

    Aaron Worthing (e7d72e)

  36. Happy feet and Aaron Worthing,

    Thanks, but it’s not intended as a rhetorical question.

    Why should anyone obey the law, and what can be done to begin to repair the system? IMHO it’s no less than civilization itself that’s in jeopardy.

    T (400783)

  37. T

    its up to us, to make sure that the only people elected to office will choose judges that will actually respect the constitution. not much more i can say.

    Aaron Worthing (e7d72e)

  38. T, to some extent, you obey because it’s practical. Our rulers have power, and the citizens do not. Refuse to pay taxes, such as via Obamacare penalties, and you you go to prison. Your kids go hungry. Etc.

    To some extent, you hope your side upholds the law in an appeal to the middle to join us because following the rules is more important than most of the issues we see rule breaking over.

    Dustin (b54cdc)

  39. Aaron,

    “its up to us, to make sure that the only people elected to office will choose judges that will actually respect the constitution.”

    What a pesky system this democracy is (sarc).

    Dustin,

    To obey because it’s practical is different from obeying because it’s the right thing to do.

    The latter is to obey the spirit of the law to achieve a (judicially) decreed result; the former is to obey the letter of the law but to “game the system” to thwart the judicial decision.

    We’ve seen so many of these “lawyer’s mind tricks” that one is almost forced to game the system just to survive.

    T (400783)

  40. But, if you try to take the Japanese guy to court to enforce it, he will show that he doesn’t have sufficient contacts in any US jurisdiction to be subject to our laws

    dfbaskwill, you beat me to it. My first reaction was, what if he kills an American and we send him to GITMO? Then can we fine him for buying the wrong car?

    What about the other residents fo GITMO? From the Jihadi tapes I’ve seen they all drive Toyota Hi-Lux pickups instead of Ford Rangers, which has a substantial negative impact on US commerce. Clearly now that they’ve established substantial ties to the US they must now buy an American pick-up upon release or pay a fine, no?

    Final question, I live in TX and thought about going to Vegas and visiting the Bunny Ranch but decided not to. Prostitution is illegal in TX, where I conducted that suspect mental activity. Have I committed any thought crimes that would subject me to prosecution under the federal government’s powers to regulate interstate commerce?

    Steve (49173f)

  41. I wrote above (#33, 12:28 PM) that:

    “. . . the Obama administration announced its intention to continue [to] implement Obamacare even in light of the adverse decisions.”

    Now the Obama administration announces that they will not enforce DOMA.

    Let’s see here. They will continue to implement Obamacare even though it’s been deemed unconstitutional, and they will refuse to enforce DOMA even though it hasn’t been deemed unconstitutional.

    And just where does the rule of law fit in here? Oh, that’s right, laws are for the little people.
    What a wonderful example this administration is setting for all Americans.

    I repeat my earlier question:

    “How can anyone respect any decision–why should anyone obey the law?”

    T (76d34b)

  42. “How can anyone respect any decision–why should anyone obey the law?”

    Law? What law? Law has been replaced with naked power to command. And we all know the nature of power:

    We kinda agree with Mao that political power comes largely from the barrel of a gun.

    Ron Bloom, currently the Obama Administration Manufacturing Czar, speaking at the 6th Annual Distressed Investing Forum, Feb 27-28 2008.

    By the way, T, in your list of Obama Admin transgressions you forgot to mention that they were found in contempt of court for ignoring a Louisiana Federal District Court ruling.

    Steve (49173f)

  43. Steve,

    Didn’t forget, just didn’t want to dilute the point with a laundry list. Thanks for bringing it to everyone’s attention.

    I did not know about the Ron Bloom quote. Let’s see, political power from the barrel of a gun, they bring a knife we bring a gun, get in their face—-no wonder Jimmy Hoffa Barack Obama is in bed with the unions, he taught them everything they know.

    T (76d34b)

  44. LB, it wasn’t intended as a take down, just a pointer to Judge Kessler’s reasoning and a reminder of laws which mostly are larned just to make it through law school and used once in a blue moon. As for the war making powers line of argument, that would probably be the only way to ENFORCE a law requiring Japanese citizens to buy US made automobiles, however under current constitutional doctrine the US Congress has the power to makes laws affecting foreign citizens. The Alien Tort Claims Act was passed back in 1789 and was construed @1980 to make certain actions in foreign nations by foreign people with no connection to the US and no impact on the US violations of US law. This doesn’t even come close to being as sweeping as the ATCA (as currently interpreted) since the actions actually have an effect in the US, albeit an indirect one.

    max (2f2a28)

  45. Hmmmm. I was going to say that the reason AW’s “Japanese car” statute is absurd (redactio ad absurdum-wise) has nothing to do with the Commerce Clause interpretation, but because such a statute ignores such other constitutional concepts like, citizenship and the reach of the Constitution itself.

    But I see someone beat me to it (#5)

    Kman (5576bf)

  46. As others have posted here, the example is specious. And it has nothing to do with due process. It has to do with the limits of sovereignty. U.S. law governs activity here, not activity abroad (unless it is directed to the U.S., that’t the modern view, that U.S. law can regulate activity abroad directed to the U.S.)

    The point becomes clear if you consider other powers that the Constitution grants to Congress besides the Commerce Clause, which do not have an interstate component. For example, Congress is empowered to create patent and copyright laws. (“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;”) Under the patent laws which Congress created pursuant to this clause of the Constitution, you can infringe a patent without ever leaving one state or doing any interstate activity. If I make and use a device covered by someone else’s patent, I am an infringer, even if I never leave my house.

    Yet if I do the same act in Japan, I do not infringe the (U.S.) patent. U.S. patent rights apply only in the U.S. That’s because U.S. patent law (like all law) is a function of U.S. sovereignty.

    The federal system set out in the Constitution is a system of dual sovereignty. When you are in a State, you are subject to the laws of two sovereigns: that State, and the United States. But neither State law nor U.S. law can be applied to activities outside the U.S. if they have no connection to the U.S.

    Bored Lawyer (5f203c)

  47. I say the government should mandate that all non-Japanese citizens purchase a GM car. I thought about not buying a GM, and thought about buying another Lexus, therefore I engaged in commerce, and can be regulated and/or mandated into purchasing GM, especially given the govt interest in same.

    JD (d56362)


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