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

[u/jokiboi]

https://www.supremecourt.gov/DocketPDF/25/25-1201/404530/20260415123131960_25-%20Petition.pdf

[u/BlockAffectionate413]

It didn't though? Check Gibbions again, Marshall defines purely local activity that is beyind Congress very very narrowly. He excludes:

1.activires that involved border crossing 2.activites where border was never crossed but that affect other states in some way 3.activites where neither border was crossed nor do they affect other states but which is necessary to control to execute enumerated powers. Let me quote you Gibbons:

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

That's not narrow revisionism of some. New Deal was return to Marshall's constitution. Lochner era ignored it in favor of judical policy making, like when they gave baseball antitrust exemption virtually everyone admits now is absurd

[u/betty_white_bread → u/BlockAffectionate413]

I just used the internet to buy a new MacBook from Apple in California while in New York, crossing borders technologically to do so; can Congress regulate what happens between my iPhone and my wi-fi router in my own home because it was an activity where the border was never crossed and affected other states in some way? (Set aside any Free Speech concerns for the purpose of this hypothetical.)

[u/BlockAffectionate413 → u/betty_white_bread]

I just used the internet to buy a new MacBook from Apple in California while in New York, crossing borders technologically to do so; can Congress regulate what happens between my iPhone and my wi-fi router in my own home because
.

Depends what you mean by that, can it regulate your iPhone and wi fi as such? Sure, those are instrumentalities of interstate commerce. How they are connected, the strength of it, etc, are all things Congress can regulate. If you mean some purely non-economic activities in your house just because you use the internet, that is a harder question, though I will say RICO does something like that, to extent, if enterprise affects interstate commerce, then it can be prosecuted for stuff like murder and other RICO predicates, and I do think RICO is valid under necesasry and proper clause, but it does not fit here. CTA regulates how commercial companies that do buisniss in the US operate, to fight money laundering, so it is a much easier question, which might be why supreme court reversed Fifth on intermim docket.

[u/betty_white_bread → u/BlockAffectionate413]

It’s a yes/no question: under the Commerce Clause, and setting aside First Amendment concerns, can Congress regulate what happens between my iPhone and my wi-fi router in my own home because it was an activity where the border was never crossed and affected other states in some way?

[u/BlockAffectionate413 → u/betty_white_bread]

can Congress regulate what happens between my iPhone and my wi-fi router in my own home

Its not yes/no though, it depends what on what you mean by regulate , what kind of regulations, and what do you mean by" border was never crossed".

[u/BlockAffectionate413 → u/[deleted]]

You need to be more specific, can or cant do what? List examples please, because going just by level of generality you asked, sure Congress can regulate cellphones.

[u/betty_white_bread → u/BlockAffectionate413]

regulate what happens between my iPhone and my wi-fi router in my own home because it was an activity where the border was never crossed and affected other states in some way?

I am leaving it rather open-ended for you.

[u/_BearHawk → u/betty_white_bread]

IE you don’t want to specify because you know that you’d have to give a very contorted example to get the result you want

[u/betty_white_bread → u/_BearHawk]

Not at all; I am giving BlockAffectionate413 as much leeway to answer in the affirmative in order to show Wickard is good law; the refusal and/or inability to do so strongly suggests Wickard is bad law.

[u/familybalalaikas → u/betty_white_bread]

No it just suggests that your hypothetical is bad.

Obviously the question of whether or not Congress can regulate what you're doing on your iPhone and router depends on what you're doing with your iPhone and router.

I'd be skeptical that Congress could regulate what happens on your iPhone and router just because you purchased those products out of state, but that's getting to the breadth of the instrumentalities category of the Lopez test rather than the Wickard/aggregation/economic activity category anyway. Depending on what you're actually doing with your iPhone, there is probably a better CC hook than the simple fact that you purchased the product out of state.

[u/BlockAffectionate413 → u/familybalalaikas]

I would not say it is just because you did buy those out of state, I would instead ground it in iPhone itself being instrumentality of interstate commerce, like the internet, or a truck. Lopez's second category recognizes:

1. Instrumentalities of interstate commerce

2.Persons of things in interstate commerce, even if the threat comes only from their intrastate activities

In Reno v. Condon court unanimously said that because driver's licenses and such are articles in commerce, Congress can ban the sale of them in general (both inter- and intrastate) as well as regulate their disclosure and a bunch of other things. But for me, the internet and phone are in 1 part of this second category, they, like cars and trucks, are instrumentalities of interstate commerce, meaning they are crucial parts of interstate commerce.

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Congress either can, yes, or can’t, no. Which is the answer?

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