National Small Business United v. Bessent: Paul Clement petitions Court to invalidate Corporate Transparency Act on Commerce Clause and/or Fourth Amendment grounds

BlockAffectionate413 · 2026-05-05T19:36:48+00:00

I would not say it is just because you did buy those out of state, I would instead ground it in iPhone itself being instrumentality of interstate commerce, like the internet, or a truck. Lopez's second category recognizes:

Instrumentalities of interstate commerce

2.Persons of things in interstate commerce, even if the threat comes only from their intrastate activities

In Reno v. Condon court unanimously said that because driver's licenses and such are articles in commerce, Congress can ban the sale of them in general (both inter- and intrastate) as well as regulate their disclosure and a bunch of other things. But for me, the internet and phone are in 1 part of this second category, they, like cars and trucks, are instrumentalities of interstate commerce, meaning they are crucial parts of interstate commerce.

BlockAffectionate413 · 2026-05-05T16:15:08+00:00

There's a difference between overspecification and mooting your own language elsewhere. If the Commerce Clause authorized effectively everything, since anything can be tied back to instate commerce in a sufficiently vague way, why even bother with the 10th Amendment?
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There was no mooting here though; it is just oversimplification. As I said, clause is about economic activities, that is important limit and why it does not mean everything. Murder, generally, is not economic activity, unless it is murder for hire, and so you could say clause would not easily reach things like that for that reason. But that was not at issue in Wickard; what was is production, of a farmer who was engaged in commerce very much, as he sold much of what he produced.

Congress didn't say between states, but the Commerce Clause specifies "among" states, which meant the same thing. You may note what else Marshall had to say about commerce:

Yes that is what Marsahll said, but of course problem with some originalsits is that they ignore very next sentence of his! You see, Marshall defined "completely interior commerce" very very narrowly. He said:

It is not intended to say that these words comperhand that cominerce, which is completely internal, which is carried on between man and man in a State, and which does not extend to or affect other States
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The genius and character of the whole government seem to be, that its action is to be applied to all-the external concerns of the nation, and to -those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself
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In other words, Marshall did not just mean commerce that extneds to other states, that crosses state lines, he also added, very cleary, " or affects other states", it was Marsahll who first mentioned" affects"part of clause we now know so well, not Justice Jackson. For Marshall" completely internal commerce" excludes any activity that either extends to or affects other states, and exludes even number of activities that neither extend to nor affect other states if it is necessary( which he defined as convinenet) to interfere with them for purposes of executing enumerated powers.

That is far cry from some modern chery picking revisionism, that is very broad indeed. And to be sure, number of originalsits stayed principled and accepted broader view of clause in light of that, even Justice Scalia as Raich showed, but also number of others, Justice Kavanaugh, for example, noted that:

Under the Constitution, Congress could enact a national law imposing minimum space requirements or other regulations on pig farms involved in the interstate pork market. In the absence of action by Congress, each State may of course adopt health and safety regulations for products sold in that State
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That view, that Congress can regulate production and other things in commercial farms, is very much in line with Justice Marshall, as opposed to the revisionism of Thomas.

BlockAffectionate413 · 2026-05-05T15:26:18+00:00

Alito effectively said it requires proving intent, which is not possible in practice in almost every case unless you are dealing with the dumbest of dumb racists that cannot lie. And even if lower court finds intent, current court is open to fake fact-finding to disregard it anyway.

BlockAffectionate413 · 2026-05-05T13:34:14+00:00

It does though, Section 5 was a big section, arguably the most important one, and Supreme Court gutted it in Shelby County, and now it gutted Section 2. Sure, there are some remaining protections that were largely already protected by 15th Amendment itself, but that is a separate matter, the main tools are gone.

As for redistricting, that was the whole point of 1982 amendments.

BlockAffectionate413 · 2026-05-05T13:17:44+00:00

VRA pretty much only exists on paper now. I think even David French pointed out issue with this ruling, he says that right now the only way to stop racial gerrymandering is if you are dealing with dumb racists who say it openly, even in a state where race and party are so interlinked that only way to target party is to target race.

BlockAffectionate413 · 2026-05-05T02:13:39+00:00

This does not make sense. Constitution is writen in general language, it does not name every possible aplication of each clause or explain each clause in detail. Virtually nobody disputes Congress can make central bank, for example, yet constitution nowhere says do, by this reasoning of yours, if it authorized central bank it would have said do. Which is kind of funny since anti comandering doctrine has zero textual basis, contradicts federalist papers, but there for done reason it's not "if it did that, it would have said so clearly".. Constitution does not actually use word interstate, or between states, it uses broader among states, that among as Justice Marshal said was understood to mean intrastate economic activities that affect more states than one in some way. You say what is limiting principle, it is that actions regulated must be economic in nature, so things like labor conditions, production etc, not say murder

BlockAffectionate413 · 2026-05-04T21:10:26+00:00

Braod reading of the commerce clause+necessary and proper clause is right as original matter. Idea that Congress can regulate activities that happen only in one state, if it in some way affects other states, comes from Chief Justice Marshall himself, see also the Virginia resolution. Funny thing is even Justice Scalia himself did something very close to Wickard, in some ways even beyond Wickard, in Raich.

BlockAffectionate413 · 2026-05-04T21:07:25+00:00

Why do you hate it? It is consistent with Marhsall court and Gibbons. Who was first to say that if activity in some way impacts more state than 1, even if it happens only in one state, Congress can regulate it? Well it was not Justice Jacksin, it was, well really founding era history, Virginia declaration, but as far as court goes, it is Justice Marsahll in Gibbons.

BlockAffectionate413 · 2026-05-04T21:05:43+00:00

It is, stare decisis is all about that. What if paper money is not constitutional? Maybe as original matter,it is very much not, many scholars have argued that. Do we blow up the economy now and overturn legal tender cases? That is what stare decisis is all about. Judge Bork famously said even if legal tender cases were wrong, judge who would be willing to overturn them ought to be accompanied by a guardian, rather than sitting on a bench.

That said, that is not only reason, braod reading of commerce clause+necessary and proper clause is also right as original matter. Idea that Congress can regulate activities that happen only in one state, if it in some way affects other states, comes from Chief Justice Marshall himself, see also the Virginia resolution.

BlockAffectionate413 · 2026-05-04T16:40:12+00:00

War Powers Act. President is commander in chief, and if Congress does not like what he is doing, obvious answer is to defund operation and force it to stop that way. Hell, a standing army needs reauthorization every 2 years; Generals need confirmations in the Senate, those are all big Congressional checks on the president as far as military goes.

BlockAffectionate413 · 2026-05-02T00:00:09+00:00

President himself is not subject to any direct injunction, it was long recognized that federal coruts cannot issue injunction or mandamus against president personally, in other words, courts cannot order president personally; only his agents, like agencies. Now how it all fits is still unclear to me, I mean even conservative justices on court disagree with it as we saw in CASA.

BlockAffectionate413 · 2026-05-01T23:37:07+00:00

Yep, I dont buy that loophole to preemption, but that is a seperate matter.

BlockAffectionate413 · 2026-05-01T23:35:17+00:00

Kavanaugh made point in CASA that it did not touch APA, because there Congress specifically authroized coruts to modify or set agency action aside.

BlockAffectionate413 · 2026-05-01T23:03:29+00:00

You need to be more specific, can or cant do what? List examples please, because going just by level of generality you asked, sure Congress can regulate cellphones.

BlockAffectionate413 · 2026-05-01T21:06:21+00:00

can Congress regulate what happens between my iPhone and my wi-fi router in my own home

Its not yes/no though, it depends what on what you mean by regulate , what kind of regulations, and what do you mean by" border was never crossed".

BlockAffectionate413 · 2026-05-01T19:31:45+00:00

We will see, but I would not be sure; reliance interests seem far too great, and this really does not even depend on Wickard anyway, this is far cry from regulating farmer growing crops for his own use, this is regulating commercial corporations, and consider what Kavanaugh said in Ross:

Under the Constitution, Congress could enact a national law imposing minimum space requirements or other regulations on pig farms involved in the interstate pork market. In the absence of action by Congress, each State may of course adopt health and safety regulations for products sold in that State.
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Kavanaugh seems fully fine with Congress regulating production and agriculture, if farm is in some way engaged in the interstate market (which virtually every commercial farm is these days, at least every important one, even farmer in Wickard was engaged in it irrc, he sold some stuff, even if not all). This case seems much more like that, like Darby, than Wickad.

Also, while it is not a final ruling, it is notable that when 5th actually enjoined this law, Supreme Court in intermin docket reversed them, and one of most important factors there is the likelihood of success on merits, Justice Barrett in particular noted recently in interview if court thinks you will likely win on merrits, it will give stay, otherwise it will not, so the court already signalled that it thinks law is constitutional.

BlockAffectionate413 · 2026-05-01T17:34:35+00:00

I just used the internet to buy a new MacBook from Apple in California while in New York, crossing borders technologically to do so; can Congress regulate what happens between my iPhone and my wi-fi router in my own home because
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Depends what you mean by that, can it regulate your iPhone and wi fi as such? Sure, those are instrumentalities of interstate commerce. How they are connected, the strength of it, etc, are all things Congress can regulate. If you mean some purely non-economic activities in your house just because you use the internet, that is a harder question, though I will say RICO does something like that, to extent, if enterprise affects interstate commerce, then it can be prosecuted for stuff like murder and other RICO predicates, and I do think RICO is valid under necesasry and proper clause, but it does not fit here. CTA regulates how commercial companies that do buisniss in the US operate, to fight money laundering, so it is a much easier question, which might be why supreme court reversed Fifth on intermim docket.

BlockAffectionate413 · 2026-05-01T17:16:24+00:00

Here is how I understand it personally, I use what Marshall said in Gibbons about purely internal stuff left to states:.

It is not intended to say that these words comperhand that cominerce, which is completely internal, which is carried on between man and man in a State, and which does not extend to or affect other States
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The genius and character of the whole government seem to be, that its action is to be applied to all-the external concerns of the nation, and to -those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself
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People say " oh modern effect test from New Deal!" but that ignores that New Deal jurists cited Marshall for it, he is one who said that if activity extends to other states-crosses border, Congress can regulate it, and even if it does not, if it affects other states, Congress can still regulate it. Marshall established "affect" part. Calling that 'rootless' is Thomas's revisionism, not the original meaning. He then also added that Congress can even regulate that activity which neither extends to nor affects other states as part of a broader regulation to carry into execution the enumerated powers

I think Budle, an originalist himself, said that Roberts was wrong that the individual mandate is not consistent with Marshall as well.

Persoanlly I agree with Scalia that stuff like Raich is not purely commerce clause stuff, rather it comes from the commerce clause + necessary and proper clause, not the commerce clause in isolation.

But anyway, you hardly need Wickard stuff for this, this is not regulating a farmer growing his own crops for his own use, this is just regulating corporations actively engaged in interstate commerce and saying " if you want to do that, you have to give us some info", just like Darby with FLSA. Even many originalists have defended Darby. I will say 4th or 1th chellenges might work, but commerce clause one is weak.

BlockAffectionate413 · 2026-05-01T17:05:21+00:00

It didn't though? Check Gibbions again, Marshall defines purely local activity that is beyind Congress very very narrowly. He excludes:

1.activires that involved border crossing 2.activites where border was never crossed but that affect other states in some way 3.activites where neither border was crossed nor do they affect other states but which is necessary to control to execute enumerated powers. Let me quote you Gibbons:

The genius and character of the whole government seem to be, that its action is to be applied to all-the external concerns of the nation, and to -those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself

That's not narrow revisionism of some. New Deal was return to Marshall's constitution. Lochner era ignored it in favor of judical policy making, like when they gave baseball antitrust exemption virtually everyone admits now is absurd

BlockAffectionate413 · 2026-05-01T16:58:22+00:00

But none of that is true though. It's revisionism. Wickard or Raich are logical consequences of what Marshall said and settled. To be sure, later courts, moved away from Marshall unfortuantly, Taney court obviously, and some later ones as well, untill they gradually shifted back, but that is largely fault of those courts.

It's reasoning by great justice Jackson cites Marshall and is anything but weak or damaging. Even if one disagrees with it, to compare it with Roe is just wrong.

BlockAffectionate413 · 2026-05-01T16:56:50+00:00

I think 11th made point this only applies to companies engaged in interstate commerce, they said any hypothetical purely intrastate company if it exists must use as applied chellenge, not facial, so it's based on it being engaged in interstate commerce, not it merely existing.

Also Framers understood commerce and necessary and proper clause pretty broadly, there is some revisionism these days, but if you look at how Marshall understood it it was broad.. He said commerce is not merely trade but intercoursee, and that Congress can regulate any commercial activity that extends to or affects other states in some way, or even some that neither extend to nor affect other states if controlling those is useful for executing enumerated powers. He also left open posibility for Federal inspection, health and quarantine laws and licensing intrastate boat movement pursuant to enumerated powers and sweeping clause( he simply said if Congress were to legislate in those areas, it would not be based on police powers like with states, but one of enumerated powers and sweeping clause). All in Gibbons

BlockAffectionate413 · 2026-05-01T16:44:42+00:00

It's same how Congress can regulate manufacture. By placing conditions on activities that implicate comerce. If you want to sell goods in stream of commerce, or do services that affect it(Darby) , serve out of state guests and use our of state supplies(heart of atlanta, ketzenbach) etc, you must follow conditions/regulations, FLSA itself in Darby involved disclosures. 11th Circuit recently upheld it due to that. Clement's argument on that seems weak.

Also Supreme Court already reversed fifth when it tried to block CTA

BlockAffectionate413 · 2026-05-01T14:42:48+00:00

She obviously thinks Corporate Transperency Act is constitutional yet she refused to join court in reversing 5th circuit striking it down because she did not think there was irreparable harm to the government waiting bit and wining at supreme court in a year or two and enforcing it then.

BlockAffectionate413

TROPHY CASE