It's possible that the government thought that if they did try to challenge the Commerce Clause analysis, then the Supreme Court could have struck down Filburn. They'd much rather lose narrowly on this specific case than have Filburn reversed entirely.
replySCOTUS did a pretty hilarious soft "strike down" of Wickard where they basically determined the gun free school zone act (GFSZA) violated interstate commerce clause. So congress just added "in interstate commerce" to the GFSZA and now it does the exact same thing even if there was no interstate commerce involved, and nothing involved ever crossed state lines or actually entered interstate commerce.
replySo SCOTUS basically solved this by saying the law had to say "in interstate commerce" but it is basically just there as a talisman to ward away challenges, a distinction without any difference as it becomes a tautology.
I don't agree that requiring a talisman is irrelevant-- ineptly drafted laws will lack them and fail more easily. The legislative effort to add it may not happen later, especially once judicial review has spoken negatively of the underlying constitutionality of the law.
replyIt also is not of no effect-- it's an element of defense and people have escaped GFSZ act because the government failed to satisfy interstate commerce (and internet search suggests the some courts have taken it to mean that the presence of the gun in the school zone itself must have impacted interstate commerce, rather than just the gun's past purchase did). Every element the prosecution must prove at any level increases the marginal cost of prosecution and makes it less likely to be imposed on more marginal cases.
That seems like a pretty over-reaching interpretation. It makes sense in the context (needing to support federal economic control during WW2). But in some sense the economy is a dynamic system that touches and is touched by almost every decision we make. I made a pot of coffee this morning, should the federal government have the ability to decide whether or not I’m damaging the cafe market by not supporting my local cafe?
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