"I write separately only to express my view that the very notion of a ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases. By continuing to apply this rootless and malleable standard, however circumscribed, the Court has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits. Until this Court replaces its existing Commerce Clause jurisprudence with a standard more consistent with the original understanding, we will continue to see Congress appropriating state police powers under the guise of regulating commerce."
-Clarence Thomas
Well, there goes the FAA regulating intrastate flights, huh? Fly the hostile skies of Clarence Thomas.
"Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior. It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States."
-- Gibbons v Ogden (1824). Opinion written by Chief Justice and Founding Father John Marshall.
Geez. It sure does seem to me that Chief Justice and Founding Father John Marshall was saying that if commerce DID affect other states, Congress may regulate it. (Later courts clarified that and said not only must it affect other states, it must substantially affect other states.)
Who to believe? A Founding Father's opinion in a landmark case or Clarence Thomas' musings?
"-- I write separately only to express my view that the very notion of a 'substantial effects' test under the Commerce Clause is inconsistent with the original understanding --".
Typically, our Communitarian commerce clause FReekers drag out the pitiful old 'FAA bit', as if anyone contests the 'police powers' of Congress to reasonably regulate air traffic among the several States.
Bizarre tactic.
A professor of mine in law school said that the Commerce Clause wasn't a legal theory, but a talisman, which the Federal Government displayed whenever its power was questioned.