"Economic Activity"/"Things in Commerce"

[Marci Hamilton]

Good questions from Marty.

1.  The Court in Condon said that supplying the records was part of a stream
of commerce of information, that is sold at some point, and the government
was the originator.  So FOIA does not seem on point.

2.  The lawful/unlawful distinction comes from the common understanding of
commerce as an exchange of goods in the free market.  There is no free market
in illegal goods.  I agree the Court has not stated this distinction
explicitly; has it rejected it?

Marci


In a message dated 11/20/2002 7:38:37 PM Eastern Standard Time,
LoAndEd at AOL.COM writes:


> .  If it can be said that a state is "acting as an economic actor, not in
> its sovereign capacity" when it provides motor vehicle records to a private
> party, can the same be said of the federal government when it provides
> someone documents pursuant to a FOIA request?  (Recall that neither the
> statute nor Rehnquist's opinion in Condon requires that the state sell
> anything.  A "release" of the information is sufficient.  528 US at 141.)
> That's an awfully broad definition of "economic," no?
>
> 2.  Why is the "lawful"/"unlawful" line a "key distinction"?  Not because
> the Court has relied on it, right?  I must have missed the case holding
> that Congress has *less* power to regulate wrongful conduct than it does to
> regulate "lawful" conduct, or that the state's imposition of sanctions
> strips Congress of its power to regulate the same conduct.   (And where
> would *that* federalism principle come from, anyway?)  If our system of
> federalism prevents Congress from regulating conduct that the states
> already have addressed, we'd better take a hacksaw to most of the U.S.
> Code, starting with much of title 18, such as the Controlled Substances Act.
>


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