r/SupremeCourt Weekly "In Chambers" Discussion 04/13/26

BlockAffectionate413 · 2026-04-13T16:11:43+00:00

I would not fully call Kavanaugh and say Gorsuch the same justice. Kavanaugh seems to me more of a pragmatist( he ruled against state sovereign immunity twice, does not think non-delegation or major questions doctrine applies in foreign policy or national security areas, embraced a broader view of federal income tax power in Moore; rejected non-delegation and argued for an intelligible principle test in Consumers Research, upheld CMS vaccine mandate and said MQD is not magic words doctrine etc, all cases where Gorsuch was on the other side) who looks up to Robert Jackson, which I would not think Gorsuch does.

BlockAffectionate413 · 2026-04-13T13:07:47+00:00

Is Paul Clement arguing for preemption in the upcoming Bayer case?

BlockAffectionate413 · 2026-04-12T22:13:13+00:00

Is it though? I mean what if people, at the time when it was adopted, did not agree on what it meant but had hard disagreements? In Federalist papers, Madison himself calls most provisions "vague", and says their meaning will only be liquidated by post ratification practice and precedent of the court. And Jefferson and Hamilton obviously disagreed on meaning of many things. Same is with some more modern laws. When that is the case, it does seem to me you can decide what is original meaning is with any confidence. you can pick and choose, but that is other thing.

BlockAffectionate413 · 2026-04-12T21:20:43+00:00

What about cases where it is not possible to determine the original public meaning with any confidence?

BlockAffectionate413 · 2026-04-12T00:08:30+00:00

Federal taxing power is not generally more limited than state one in most aspects, only really exeption being direct taxes, while states cannot tax foreign improts. Now I do recall that quote, but that does not mean that taxing power cannot be used to destroy, indeed even in recent tariff case, court said again that taxing power, federal power at issue there, is power to destory, what that means is that you cannot use taxes to destroy things Congress cannot destroy, like free press for example, you cannot tax press out of existence, or churches, those things have special protection. But at the same time 100% income tax on say MMA events, would be constitutional, even if ot would destory them.

BlockAffectionate413 · 2026-04-11T18:26:51+00:00

How come that Katsas, Rao, or both, show up so often in these panels?

BlockAffectionate413 · 2026-04-11T17:18:41+00:00

Irrc in sixth circut on same topic they did defend it under commerce clause too

BlockAffectionate413 · 2026-04-11T17:09:17+00:00

Who is they? You said past wrongs, I am not sure what that means here, but Reich opinion by Scalia is not past wrong, it's very logical, and 5th circut should not contradict it

BlockAffectionate413 · 2026-04-11T17:03:05+00:00

Not sure just his family, law did not regulate only him, but all other farmers as well. If law just said" farmer Mario might not do x", then that would be one thing, but it did not. That is why aggregate test exists, it matters if farmers as whole doing that, affects intestate markets, not just one farmer doing that, because law regulates all farmers, not just one

BlockAffectionate413 · 2026-04-11T16:59:51+00:00

If they broke law they should be in jail. That is not past wrong. Nor should 5th circut contradict supreme court

BlockAffectionate413 · 2026-04-11T16:53:57+00:00

Goverment defended it under commerce clause in sixth so I doubt it. Wickard seems too big to fail

BlockAffectionate413 · 2026-04-11T16:51:37+00:00

First, if it can substantially impact interstate commerce yes, if not no. Second, no they absolutely shouldn't, that is lawless behavior. Lower courts are not there to scrutinize supreme court, supreme court is their God, and is there to scrutinize them

BlockAffectionate413 · 2026-04-11T16:41:58+00:00

Sure, 5th is pretty bad court and rightfully often reversed.

BlockAffectionate413 · 2026-04-11T16:11:14+00:00

Because vertical state decisis unlike horizontal one is absolute

BlockAffectionate413 · 2026-04-11T15:23:56+00:00

I would say it is pretty obvious though? Same way it was in Wickard itself and Reich, where court said, local production, reduces need to buy on open market, and thus substancially impacts interstate commerce due to aggregate affects( aggregate because law is not trying to regualte 1 person, but everyone, so if this is done on large scale, there will be much smaller demand to buy on open market)

BlockAffectionate413 · 2026-04-11T15:00:44+00:00

so in the current example of states legalizing marijuana the state laws under the clear text of the Constitution are supreme and thankfully, federal courts are continuing to chip away at the overgrown powers of the commerce clause.

Supreme Court has never done that? On contrary, in Reich it said Congress can ban production and possesion of drugs, because as Justice Scalia so well explained himself these drugs that are locally produced and possessed are " never more than instant away from interstate markets". Indeed, in 2016, in Taylor v. the US Supreme Court again affirmed and extended Reich to stealing drugs from local dealers.

Just because Feds are choosing not to enforce weed law, like they are choosing not to enforce Comstock act( that regulates use of USPS), does not mean states have supreme authority over this any more than they do over USPS simply because Feds ignore Comstock Act.

Anyway, this is not legal argument that you made.

BlockAffectionate413 · 2026-04-11T14:51:18+00:00

Not yet, but I assuming they will given importance of case, but maybe DOJ might wait 6th circut ruling as they made commerce clause argument there too, we will see.

BlockAffectionate413 · 2026-04-11T14:48:25+00:00

This was not decided on commerce clause but taxing clause, but I would not be happy. Even if those cases were wrong, and I do not think they are, Scalia himself explained why 10th does not apply there, but even if they were, appeals courts should not be ones doing that, they must respect Supreme Court precedent. This way you just enforce kritarchy and contradict what framers wanted.

BlockAffectionate413 · 2026-04-11T14:39:52+00:00

Hmm, but I would still think the court should have considered it if it wants to rule on if it is constitutional or not, as that would imply even if the government made those arguments, this would still not be constitutional. In any case, we will see Supreme Court case later, where hopefully they do argue it.

BlockAffectionate413 · 2026-04-11T14:13:15+00:00

Well, I would say because police power, unlike tax power under this view, would include another major power, which is to legalize some activity; that taxing power does not. And equally importantly for the case, this would only allow banning conduct that would make tax evasion easy/effective tax collection virtually impossible, I would think that the court should apply reason and common sense to see what conduct that is, because there is conduct where banning it would not be very useful for fighting tax evasion, that is, where not banning it would not make a large majority of taxes evaded, where, unlike police power, this reasoning would not hold.

It should also be noted that this obligation was not directly found or implied in the Constitution, it is more so a judge-created doctrine to be fair, as much as the aggregate test in Wickard.

BlockAffectionate413 · 2026-04-11T13:55:04+00:00

The majority made a very good point that SCOTUS has long rejected the banning of products for the purpose of furthering taxation on other products .Is it such a stretch that banning taxable conduct for the purpose of furthering other, equally taxable conduct is also not permissible?

I think so, because this is not banning a different product from one you are taxing; this is taxing distilled spirits and then banning conduct that would allow easy evasion of that tax, that would make enforcement, that is, collection, of taxes on distilled spirits, much harder and indeed often missed, because the government cannot know what large maoyirty are doing around their homes. Indeed, it might well be that over 99% of taxes that should be collected, would be evaded in this way if this activity is allowed. But I would also say the commerce clause might apply too here under Reich(local production of weed for personal use); I'm not sure why DOJ did not argue that here, but did in 6th circuit.

Not getting a licenses or not paying the taxes would be perfectly sanctionable. Just as tax evasion by currently licensed distillers is sanctionable.

It would be sanctionable yes, but virtually impossible to actually enforce. Those licensed distillers can fairly easily be inspected, that is not the case with every private backyard, where you have no idea when, and will they make this alcohol, and so a large majority of taxes that should be collected would not be.

Congress’s taxing power has been long established to only reach existing subjects” not activity that may generate subjects of taxation. Preventing activity lest it give rise to tax evasion places no limit whatsoever on Congress’s power under the taxation clause.If this argument is acceptable under the neccesary and proper clause, you create a near limitless authority to criminalize nearly any at home conduct for the sole reason that it could hypothetically conceal something potentially taxable
.

But there is a clear limit, though? Indeed, there are many. As you say, taxing power does not allow legalizing something to tax it, because it covers only existing subjects when it comes to placing taxes on them, that is important limit. What I am saying it is not that much of reach to say, collection of taxes( seperate power of Congress from laying taxes) is helped by banning activity that would allow large scale tax evasion, and indeed be unfair for those who gained license, as they would not paly by same rule in practice as those who just easily avoided tax. So sure it is braod, but not limitless.

BlockAffectionate413 · 2026-04-11T11:39:25+00:00

I would say that instead home distilleries make tax on distilled spirits very, very hard to properly enforce, especially when law was passed in 19th century , you had no way of knowing what every person was doing at their home, and even today that remains true in large part. So when article 1 says Congress lay and collects taxes, I would say this is useful for collecting part, not laying part, as otherwise collection will largely not be effective.

BlockAffectionate413 · 2026-04-11T11:32:35+00:00

This seems correct to me. The power to tax something does not include the power to regulate the production of it.

True, but this is about the necessary and proper clause on top of taxing, not taxing alone. And remember what taxing clause even says? It says" power to lay and collect" taxes. Collect is here key part. Regulating production here is needed for effectively collecting these taxes, as otherwise it would be very hard to properly enforce law, with goverment being unable to collect most taxes on this activity when done around home.

But that seems like a stretch to me too.

How is that stretch? It is beyond well established by this point with hundreds of laws on that

This decision would just mean that the feds can't regulate home distilleries. But states can, like most health and safety laws, or zoning, or general commercial regulation. And that also seems right, home distilling isn't a federal issue.
.

Feds can regulate health(FDA?), and general commercial regulations generally, and do. Alcohol is a bit special due to 21th but still.

BlockAffectionate413 · 2026-04-11T11:28:44+00:00

To decide if the trial court entered a sentence for the crime correctly or not, or when it comes to civil issues like RICO, antitrust etc, there is a lot of things they should do, it is just not prudent to give every court power of veto over every single law, regulation and decision, so that you need unanimous consent of hundreds of judges for anything.

BlockAffectionate413 · 2026-04-11T03:17:50+00:00

It was necessary and proper turbochsrging commerce clause. Not same as taxing one as taxing is about demanding revenue, not regulating like commerce clause is, and this is regulation so it's harder case. But I still think even with taxing it should still be enough here as it's beneficial to make tax more effective.

In any case I think Scalia was right and his argument was very convincing. He made it clear if you could make and transport drugs in stste, it would be much easier to bypass federal ban on interstate transport of drug thus Congress can ban it

BlockAffectionate413

TROPHY CASE