Commerce Clause

[Lewis Henry LaRue]

Paul asks if U.S. v. Sullivan is not a square holding for the Scarlet
Letter thesis about the commerce clause.  I think not.

If we assume that the commerce power extends to the retail sale, then
the druggist's act in removing the label is an act that removes the
protection that the Congress prescribed.  The label is prescribed as
a protection for the consumer.

So the real question in Sullivan is whether the Congressional power
extends to the retail sale.  I assume that Lopez's distinction
between commercial and non-commercial entails that the retail sale is
within the power of Congress.

I do admit, however, that there is language in Sullivan that support
the Scarlet Letter theory; but I would like to call it dictum, since
the consequences of not so calling it seem enormous; and further, it
seems that the court that decides Lopez will have an incentive to
call it dictum, just as the court that decided Boerne v. Flores had
an incentive to call most of Katzenbach v. Morgan to be dictum.

Best wishes,   Lash


Lewis Henry LaRue
Washington and Lee University
School of Law
Lexington, VA 24450-0303

e-mail address: LHL at WLU.EDU
telephone: 540-463-8513
fax: 540-463-8488