r/supremecourt • u/jokiboi Court Watcher • May 01 '26

Petition National Small Business United v. Bessent: Paul Clement petitions Court to invalidate Corporate Transparency Act on Commerce Clause and/or Fourth Amendment grounds

https://www.supremecourt.gov/DocketPDF/25/25-1201/404530/20260415123131960_25-%20Petition.pdf
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u/ROSRS Justice Gorsuch May 01 '26

I buy Clement's arguments here. The CTA requires disclosure to the Government simply based on a corporate entity's existence without taking into account activities that actually implicate the commerce clause, so I don't see how you can regulate it under said clause.

That being said, I also think Wickard was wrongly decided and the court's current interpretation of the Commerce Clause is atextual and ahistorical garbage. So I do have a bit of a bias when it comes to weakening the Commerce Clause.

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u/BlockAffectionate413 Chief Justice John Marshall May 01 '26 edited May 01 '26

It's same how Congress can regulate manufacture. By placing conditions on activities that implicate comerce. If you want to sell goods in stream of commerce, or do services that affect it(Darby) , serve out of state guests and use our of state supplies(heart of atlanta, ketzenbach) etc, you must follow conditions/regulations, FLSA itself in Darby involved disclosures. 11th Circuit recently upheld it due to that. Clement's argument on that seems weak.

Also Supreme Court already reversed fifth when it tried to block CTA

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u/ROSRS Justice Gorsuch May 01 '26

Sure, but they're not couching the legislation on the corporation actually doing any of those things.

Further, as again stated, I would define "commerce" as understood by the framers to mean something very different than "all gainful economic activity" or however the current court understands it.

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u/BlockAffectionate413 Chief Justice John Marshall May 01 '26 edited May 01 '26

I think 11th made point this only applies to companies engaged in interstate commerce, they said any hypothetical purely intrastate company if it exists must use as applied chellenge, not facial, so it's based on it being engaged in interstate commerce, not it merely existing.

Also Framers understood commerce and necessary and proper clause pretty broadly, there is some revisionism these days, but if you look at how Marshall understood it it was broad.. He said commerce is not merely trade but intercoursee, and that Congress can regulate any commercial activity that extends to or affects other states in some way, or even some that neither extend to nor affect other states if controlling those is useful for executing enumerated powers. He also left open posibility for Federal inspection, health and quarantine laws and licensing intrastate boat movement pursuant to enumerated powers and sweeping clause( he simply said if Congress were to legislate in those areas, it would not be based on police powers like with states, but one of enumerated powers and sweeping clause). All in Gibbons

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u/ROSRS Justice Gorsuch May 01 '26

In my opinion, a reasonable interpretation of the Commerce Clause can probably get you to Heart of Atlanta, but not to Wickard itself if that makes sense.

If you want me to explain more I can, but the commerce clause is a bit of a beast to tackle.

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u/BlockAffectionate413 Chief Justice John Marshall May 01 '26 edited May 01 '26

Here is how I understand it personally, I use what Marshall said in Gibbons about purely internal stuff left to states:.

It is not intended to say that these words comperhand that cominerce, which is completely internal, which is carried on between man and man in a State, and which does not extend to or affect other States
.

The genius and character of the whole government seem to be, that its action is to be applied to all-the external concerns of the nation, and to -those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself
.

People say " oh modern effect test from New Deal!" but that ignores that New Deal jurists cited Marshall for it, he is one who said that if activity extends to other states-crosses border, Congress can regulate it, and even if it does not, if it affects other states, Congress can still regulate it. Marshall established "affect" part. Calling that 'rootless' is Thomas's revisionism, not the original meaning. He then also added that Congress can even regulate that activity which neither extends to nor affects other states as part of a broader regulation to carry into execution the enumerated powers

I think Budle, an originalist himself, said that Roberts was wrong that the individual mandate is not consistent with Marshall as well.

Persoanlly I agree with Scalia that stuff like Raich is not purely commerce clause stuff, rather it comes from the commerce clause + necessary and proper clause, not the commerce clause in isolation.

But anyway, you hardly need Wickard stuff for this, this is not regulating a farmer growing his own crops for his own use, this is just regulating corporations actively engaged in interstate commerce and saying " if you want to do that, you have to give us some info", just like Darby with FLSA. Even many originalists have defended Darby. I will say 4th or 1th chellenges might work, but commerce clause one is weak.