[supercat]

Do the facts of the individual cases determine limit of federal jurisdiction under the commerce clause, or should there be objective criteria for what those limits are set before the cases are considered?

IMHO (and if I'm on a federal jury, this is what will apply), the standard should be whether the defendant's conduct is such that either:

1. The defendant knew or expected that its effects would be contrary to Congress' enumerated powers, or
2. The defendant should have known that its effects would be contrary to Congress' enumerated powers, or
3. A reasonable person would judge that, if many people acted 'just like' the defendant is accused to have done, such actions would undermine Congress' enumerated powers.

Suppose someone grows pot for his own personal use and smokes it himself. He does not sell it to anyone.

One cannot reasonably argue that this person's actions, taken as a whole, increase interstate traffic levels of pot. Nor can one argue that his actions, in whole or in part, in any way reduce legal interstate traffic.

One could argue that by smoking the pot rather than selling it, the person reduces the amount of pot that gets exported from his state illegally, or that by growing it he reduces the amount imported, but such reductions, even if real, should hardly be the basis for federal complaint.

The only way one could argue that the person's actions increased interstate traffic would be if one were to take them separately and suggest that by smoking the pot rather than selling it, he increased the amount of pot imported by other people in his state (since he wasn't filling their demand); or that by growing the pot rather than purchasing it, he was increasing the amount exported by other people in his state (since they weren't selling it to him, they sold out-of-state). Both of these arguments, however, in essence say that this person is increasing interstate commerce by refusing to illegally take part in it.

I think it would be fair to say that someone who buys pot without regard for where it came from, or who sells larger-than-immediate-personal-use quantities without regard for where it's going, should expect that the pot he buys or sells is likely to be involved in interstate commerce. On the other hand, if he buys from someone who claims to have grown it himself, or if he sells to someone with a doctor's script who claims to want it for personal in-state use, such a person would not have reason to believe that pot would be involved in interstate commerce.

BTW, I see this sort of thing as being a "safety valve" for federal overreaching. Normally, it would not be worthwhile for someone to go through the effort of ensuring that business was only done intra-state, but if federal regulation of a business or commodity becomes too severe, people within a state should be allowed to form an island beyond that overreaching federal power.

[robertpaulsen]

"On the other hand, if he buys from someone who claims to have grown it himself, or if he sells to someone with a doctor's script who claims to want it for personal in-state use, such a person would not have reason to believe that pot would be involved in interstate commerce."

Would you apply this same thinking to our DWI laws? I mean, just because someone has been drinking and driving is no reason to believe they'll get into an accident (the reason for the law). Shouldn't that person be judged individually? What about speeding? Same thing. Shooting a gun in a public place? Oh, you know I can go on and on.

So, all those laws need to be changed to allow individuals to make their case?