"Economic Activity"/"Things in Commerce"
Hamilton02 at AOL.COM
Wed Nov 20 19:52:43 PST 2002
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?
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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