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Comment by lersrvwtogether | Hacker News Reader

Where is the power to regulate intrastate ISP commerce granted to the federal government?

Certainly not in the US Constitution.

What a slippery slope.

SCOTUS first held in 1824 that the Commerce Clause gives the federal government the right to regulate intrastate commerce in a 6-0 decision.

You're about 200 years too late to be arguing that there's no basis in the US Constitution.

Gibbons v. Ogden was about Congress's right to regulate interstate commerce, not intrastate commerce.

The massive expansion and erosion of the meaning of interstate commerce didn't begin until Wickard v Filburn in 1942.

If the framers of the constitution had intended for the federal government to have unlimited regulatory authority, they wouldn't have referred to Interstate Commerce. They would've just said: the federal government can do whatever it wants.

Redefining "interstate" is a mistake that one would hope that at least libertarian conservatives (who deliberately avoid expansionary scope creep without limit) would oppose.

Gibbons v Ogden was about New York's granting of a monopoly on all steamboat services within New York, and the ruling held that "Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior"--in other words, that the right to regulate interstate commerce necessarily intrudes on the right to regulate intrastrate commerce to some degree.

Wickard v Filburn held that the Commerce Clause extends to regulating the growing of wheat for personal consumption, that involved no commercial transactions whatsoever.

Ah, good thing the internet stops at each state's borders.

"It took about 150 years, starting with a Bill of Rights that reserved to the states and the people all powers not explicitly delegated to the federal government, to produce a Supreme Court willing to rule that growing corn to feed to your own hogs is interstate commerce and can therefore be regulated by Congress."

    --- David Friedman

Well, I believe the interpreted scope of the interstate commerce clause is a heavily debated (and shifting) topic that is perenially to at least someone's dissatisfaction, so at least know that you're not alone.

> to produce a Supreme Court willing to rule that growing corn to feed to your own hogs is interstate commerce

That gloss on Wickard v. Filburn was a self-fulfilling prophecy. Filburn both sold his wheat crop and used it to feed his livestock which he also sold on the market.

I never understood why legal scholars, especially conservative legal scholars, so adamantly adhered to the notion that Wickard would clearly apply to purely private use. I tend to think it's out of spite--so upset about a decision that they promoted an unreasonable interpretation as a way to vindicate their ire.

It wasn't until Gonzales v. Raich (2005) that the court clearly stated Commerce Clause powers could extend to purely personal harvest and use, where neither the product (wheat, marijuana) nor derivatives (hogs, THC brownies) would be sold[1]. And ironically (or not so ironically), it was Scalia that cast the deciding vote.[2] And why did he do it? Basically because of reliance interests--Scalia worried the legal basis for the War on Drugs would come crashing down, and that would be too disruptive. But that's tautological--it only makes sense if you ignore the facts in Wickard and the commercial nature of the drug trade. Self... fulfilling... prophecy.... :(

[1] The counter-argument is that the Wickard opinion talks about the excess wheat consumed on the farm displacing demand for purchasing wheat. But he was already a commercial farmer--it was a matter of regulating commercial demand and commercial supply. And wheat is perfectly fungible, afterall, so of what matter is it that some small portion of the wheat might have gone directly to his table? The quotas were well in excess of what would be needed for purely personal consumption, direct and indirect. The notion of displaced demand can be easily cabined to the context of a commercial enterprise, and it strains credulity to believe the Wickard justices thought otherwise. Filburn wasn't a subsistence farmer, and wheat was a direct input to his commercial livestock. So analogizing that situation to homegrown marijuana displacing demand for, e.g, commercial medications is ridiculous (or, at the very least, an analogy one could just as easily reject as accept, again circling back to this notion that the parade of horribles from Wickard was wholly self-inflicted).

[2] And because of his Gonzales decision, for the Obamacare personal mandate Scalia was forced to retreat to a tenuous distinction between mandates and prohibitions, a distinction that would have been entirely unnecessary if he wasn't committed to the Wickard mythos[3]. If he had sided with the other conservatives in Gonzales, it would have been clear that the Commerce Clause couldn't support an individual mandate any more than a private use prohibition. (That would still leave open taxing powers as a basis, however, just as Roberts concluded.)

[3] Apropos HN, s/mythos/cargo cult/

Wickard was still ultimately about a restriction on personal consumption. "But he participated in commerce otherwise" is a distraction - who of us doesn't, when you get down to it? When it comes to weed grown for private consumption, it could be argued to affect one's participation in the labor market; i.e. one's ability to sell one's labor - or, perhaps, the quality and/or quantity of that labor.

Besides, why even focus on selling in the first place? The Commerce Clause doesn't make a distinction between selling and buying, so if participating in the market as a seller is enough to put any activity that affects your supply within scope, then why wouldn't participating in the market as a buyer do so just the same for any activity that affects your demand?

You're claiming that it didn't readily follow - but, well, if it wasn't until Raichs that anybody even tried seriously challenging that notion in court, then it sounds like it did readily follow in practice.

Thanks for the hyper informed rebuttal I probably don't agree with.

Quality work!

Let me know when you can guarantee none of your ISP's packets don't go over state borders.

Arguments over the interstate commerce clause of the constitution aside, I find it really hard to believe an _Internet_ service provider doesn't move anything over state lines, which is clearly within the federal government's jurisdiction.

But this is about what your ISP does to your packets between when they receive them an d when they pass them to you - it would only be interstate if your ISP processed your packets in a different state (maybe your fiber crosses into another state)

My ISP is Comcast. Their network is nationwide. They actually run major IP backbones. There's an excellent chance that packets destined for me are entering their network in a different state than the one I reside in.

It's huge, national providers like Comcast and Time Warner that are sparking the majority of concerns around net neutrality. On a practical level, nobody is super worried about predatory behavior from, say, Cruzio, an independent ISP serving Santa Cruz County.

Well, there is this hilarious statement by SCOTUS (an opinion penned by Scalia):

> Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.

From 2005's Gonzales v. Raich

I haven't read the case but he was likely paraphrasing Wickard v. Filburn when he wrote that since that's where federal judicial approval of that sentiment comes from. The idea that feds can regulate noncommercial intrastate activity in order to affect interstate commerce is way older than 2005.

Yeah, you're not really wrong, and I'm only an amateur SCOTUS watcher anyways. I just find the contortions of that sentence, and especially the fact that Scalia, the arch-originalist, wrote it, wryly amusing.

One might've thought that a conservative court would halt inappropriate expansion of federal power in order to preserve small, limited government and liberty.

Liberty of the governed to set laws at a local level (where they do not conflict with Constitutionally-protected rights and powers enumerated to the federal government).

Well there's the interstate commerce clause, not sure why them being an ISP changes anything.

op said 'intrastate', not sure if that relates to your point.

an argument can be made that intrastate impacts interstate, but not sure where the threshold lies - AFAIK you don't have alcohol companies suing in court to oppose local alcolhol regulations on this basis, etc, as an example (though I'm sure they lobby heavily).

That threshold is defined by Gonzales v. Raichs at the moment, and it's low enough that it's possible for the feds to ban growing cannabis purely for personal consumption.

For state and local laws, it would be a matter of the corresponding state constitution - but it's less of an issue on that level, because state constitutions are generally not written in such a way as to restrict the power of the government to a few explicitly enumerated things.

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