Replies

"There just is no comparison to a plane flying up in ..."

Yes there is. If the intrastate activity has a substantial effect on Congress' regulatory efforts, they may legislate that activity.

Look, if the guy is storing his plane on the ground, or even if the guy is flying his plane in non-regulated airspace, he's not having a substantial effect. Only when he flies into regulated airspace do we have a problem, and only then may the federal government prohibit him from flying.

Why? Because he then has a substantial effect on Congress' interstate regulatory efforts. My argument was to rebut the argument that "Congress cannot regulate purely intrastate activities". I used the airplane analogy to show that "yes they can and you even agree with it".

Congress has a finding stating that the possession of drugs has a substantial effect on their interstate regulatory efforts. Go ahead and argue why it shouldn't have an effect. Be my guest. Knock yourself out. But since it does have a substantial effect, we now agree that Congress may legislate it.

You just admitted that a guy storing his plane on the ground is not having a substantial effect on interstate commerce, so the feds can't regulate that. (It is impossible to fly in non-regulated airspace though by the way.) Having a pot plant in your back yard has no greater effect on interstate commerce than storing a plane in your backyard. The airspace where planes fly is all part of a big commercial highway for interstate and international commerce. The guy growing a pot plant for his own personal use might possibly sell some of it. Maybe that small amount which he sells might possibly find it's way into interstate commerce. There are an awful lot "mights" in there.

These little tiny medical marijuana grows done by individuals for person use (not talking about marijuana the big business things in California) really couldn't make a dent in interstate commerce even if all of it was sold. But presumably Rhode Island's statutes are only allowing small plots for personal medicinal use among those who have been given permission to do so and does not allow for commercial activity. Allowing a relative few people to possess a small amount or even grow a small amount won't make a bit of difference in the grand scheme of things in this country where many thousands of tons are on the market every year.

If a guy grows a pot plant or two in his backyard for personal medicinal use he is not having any effect on interstate commerce. When you say this one person's small scale noncommercial activity done wholly within the confines of his state maybe might possibly have some effect on interstate commerce and therefore can be regulated by the federal government, you might as well say that any conduct has a "substantial effect on interstate commerce" and is therefore subject to federal control. We aren't talking about conduct that by golly always has a substantial effect on interstate commerce. We are talking about conduct that maybe might possibly have some little small tiny effect on interstate commerce but probably only if someone breaks the state medical marijuana law could it possibly even have that.

Compare this activity to flying a plane. When you get up there in your private plane, you are in the way of commercial flights. You are in the way of military flights. You are in the way of mail carriers. Not only is there the risk of in-flight collisions, there is the problem of dealing with the risk of in-flight collisions, and all of the planning, routing, communications, insurance, and so on involved. And if you are anywhere close to any state borders, you are likely to cross them. You wouldn't even know it probably because the ground in one state doesn't really look any different than the ground in the state right across the state line. You can't fly in a pattern around my airport without crossing state lines because the airport is so close to a state border. You really cannot fly a plane without getting in the way to some degree of activities the federal government does have the power to regulate. It is absolutely necessary that the federal government regulate their airspace. In order to to keep these things running they have the Constitutional power to run, they need to know where you are and make sure you aren't doing something stupid to jeopardize all these other aircraft.

No one is arguing that they shouldn't be able to regulate airspace even if that airspace happens to be over a state. Piloting a plane is not an instance of conduct that a maybe might possibly effect interstate commerce, or military activity, or mail carriers. It absolutely does have an effect on these things.

Justice Thomas is right. The "substantial effects test" is nothing but a blank check for the feds to get away with regulating conduct not within their Constitutional power to regulate. That they talk about "substantial effects" is really nothing but a joke. They can say just about any conduct maybe might possibly have an effect on interstate commerce and almost always get away with regulating it even if the framers of the Constitution had absolutely no intent to grant them that power. It's a ridiculous test, and the only people who like it are politicians and government bureaucrats who don't want the Constitution to get in their way and worshipers of the federal government like you who want the federal government to micromanage the lives of the masses who you so obviously find far inferior to yourself.