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Archive for the ‘330’ Category

#21: Dormant Commerce and State FOIAs

There has been a great deal of debate about whether the Founders intended that the Commerce Clause be read to include a restriction on the right of states to engage in certain regulation of commerce. This interpretation of the Commerce Clause is called the “dormant” or “negative” Commerce Clause. The application of the Dormant Commerce [...]

#24: The Amazon Tax

  Like Nevada, many states rely very heavily on sales tax income to fund government services. In the olden days, states required businesses within their borders to remit a percentage of their sales as taxes to the state government. These taxes, of course, are passed along to the customer, who often sees them added on [...]

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#23: Obamacare and Clean Air

As you will no doubt recall, the Supreme Court in NFIB v. Sebelius (2012) held that Congress did not have the power under the Commerce Clause to uphold the individual mandate to purchase health insurance coverage. The conservatives on the Court joined in this assessment. However, the Court also decided additional major questions in this case: one [...]

#22: The Tonnage Clause

As Americans, we like to pride ourselves with being very familiar with the provisions of our Constitution. But I bet you’ve never heard of the Tonnage Clause. This provision is tucked way down at the end of Article I § 10. It reads: “No State shall, without the Consent of Congress, lay any Duty of [...]

#21: Dormant Commerce

There has been a great deal of debate about whether the Founders intended that the Commerce Clause be read to include a restriction on the right of states to engage in certain regulation of commerce. This interpretation of the Commerce Clause is called the “dormant” or “negative” Commerce Clause. The application of the Dormant Commerce [...]

#20: Obroccolicare

One of the more curious aspects of the Court’s decision in NFIB v. Sebelius (2012) is the fact that the opinions mention the word broccoli a dozen times. This so-called broccoli mandate captured the imagination of Obamacare’s critics in the time leading up to the Court’s decision in Sebelius. The analogy goes like this: if Congress can make you purchase health [...]

#19: Commerce and Race

Our readings in this part of the course deal primarily with the changing interpretation of the Commerce Clause over time. To read these sections of the book, it would be easy to forget that the Court’s decisions on these cases took place in the context of an evolving economic, social, and political environment. An interesting [...]

#18: Regime Politics

Today’s readings talk about the so-called “switch in time” that happened in 1937. It’s clear that the Court’s interpretation of the Commerce Clause–which was in stark contrast to the more expansive interpretation demanded by a variety of New Deal Programs–was a thorn in FDR’s side. His so-called “court packing plan” was framed as a solution [...]

#17: The Meaning of Commerce

Our Commerce Power readings trace the development of the Commerce Power over several important spans of time: 1) before the New Deal, 2) the New Deal era, 3) the Commerce Power heyday, and 4) the modern era where the Commerce Power is seemingly in decline. The readings are formatted this way because of the sheer [...]

#16: Preempting Pot

Soon, we’ll be reading a commerce power case called Gonzales v. Raich (2005). In that case, the Court held that Commerce Clause gives Congress the power to regulate the intrastate cultivation and possession of marijuana for medical use. Because the Controlled Substances Act (21 U.S.C. 801) was a constitutionally permissible use of federal power, the law could be validly applied to [...]

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