Comment by dralley a day ago
What exactly is your issue with this, as a textualist?
>[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .
This is foreign commerce. It falls under the explicit jurisdiction of Congress.
>that sentence makes it seems like Congress could do anything!
Yeah, it's the perhaps most powerful clause in the constitution. A large number of laws are formed like "[actual law ...] in commerce." That is the hook needed for a lot of laws to be constitutional. Technically those laws only apply to interstate or international commerce.
There are even supreme court cases discussing this:
>Congress uses different modifiers to the word “commerce” in the design and enactment of its statutes. The phrase “affecting commerce” indicates Congress’ intent to regulate to the outer limits of its authority under the Commerce Clause. [...] Considering the usual meaning of the word “involving,” and the pro-arbitration purposes of the FAA, Allied-Bruce held the “word ‘involving,’ like ‘affecting,’ signals an intent to exercise Congress’ commerce power to the full.” Ibid. Unlike those phrases, however, the general words “in commerce” and the specific phrase “engaged in commerce” are understood to have a more limited reach. In Allied-Bruce itself the Court said the words “in commerce” are “oftenfound words of art” [...] The Court’s reluctance to accept contentions that Congress used the words “in commerce” or “engaged in commerce” to regulate to the full extent of its commerce power rests on sound foundation, as it affords objective and consistent significance to the meaning of the words Congress uses when it defines the reach of a statute.[0]
[0] Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) https://supreme.justia.com/cases/federal/us/532/105/case.pdf
> Yeah, it's the perhaps most powerful clause in the constitution.
Only because the Court wants it to be, so they can play Calvinball.
Marijuana grown, sold, and consumed entirely within one state? Still interstate commerce! https://en.wikipedia.org/wiki/Gonzales_v._Raich
The original sin was Wickard, which found a farmer “growing wheat to feed animals on his own farm” was subject to interstate commerce “reduced the amount of wheat he would buy for animal feed on the open market, which is traded nationally, is thus interstate, and is therefore within the scope of the Commerce Clause” [1]. The court even noted that the farmer’s “relatively small amount of production of more wheat than he was allotted would not affect interstate commerce itself,” ruling that “the cumulative actions of thousands of other farmers” acting as he did would.
I think the meaning of the commerce clause is pretty explicit in the constitution. The existence of unreasonable interpretations of the commerce clause doesn't change that the commerce clause on it's own, just with a simple reading of it, isn't powerful. Also worth noting that at least one textualist, Justice Thomas, dissented in that case, exactly because of textualism.
> Yeah, it's the perhaps most powerful clause in the constitution
It's worth noting that many conservative lawyers and activists have been calling for a more limited interpretation of interstate commerce, as a way of shifting power away from Congress to individual states.
Whether Congress has jurisdiction here is not at issue. The court is deciding a different question, which is whether the ban would violate the first amendment. We look at their ruling:
>We granted certiorari to decide whether the Act, as applied to petitioners, violates the First Amendment.
The argument from TikTok is:
>Petitioners argue that such a ban will burden various First Amendment activities, including content moderation, content generation, access to a distinct medium for expression, association with another speaker or preferred editor, and receipt of information and ideas.
Sotomayor expands on this in her concurrence:
>TikTok engages in expressive activity by “compiling and curating” material on its platform. Laws that “impose a disproportionate burden” upon those engaged in expressive activity are subject to heightened scrutiny under the First Amendment. The challenged Act plainly imposes such a burden: It bars any entity from distributing TikTok’s speech in the United States, unless TikTok undergoes a qualified divestiture. The Act, moreover, effectively prohibits TikTok from collaborating with certain entities regarding its “content recommendation algorithm” even following a qualified divestiture. And the Act implicates content creators’ “right to associate” with their preferred publisher “for the purpose of speaking.”
The Supreme Court can only rule on cases brought to it. And in those cases, they are ruling on specific points of law which one party believes that a lower court misapplied. In this case, the parties asked the Court specifically to review whether a TikTok forced divestiture (not a ban, a forced sale) violated the First Amendment.
> The Supreme Court can only rule on cases brought to it.
That might be technically true, but if (1) you're the lawyer representing a party in an important case, (2) you've already appealed that case up to the highest appelate court and lost, and (3) you think there's any chance that the Supreme Court might change the ruling in your favor, then wouldn't it basically be professional malpractice to not petition for certiorari? Of course, they only accept a tiny percentage of the petitions they receive.
>What does this have to do with the First Amendment?
Because obviously changing the owner-editor of a media outlet has everything to do with their editorial policy. The SCOTUS just said that censorship is ok (and forcing the change of the editor is censorship, there is no doubt about it), as long as it's against another state's editorial preferences potentially having a significant audience in the country.
The government doesn't care about the editorial policy so long as if it's not managed by a foreign adversary or proxies of a foreign adversary, which obviously fall out of scope of the First Amendment. This is consistent with the wholly uncontroversial indictments of the owners of Tenet Media who allegedly conspired with Russia. Meanwhile, the commentators on the channel, such as Tim Pool and Dave Rubin, claimed to have had full editorial control over their content that just so happened to align exactly with Russian propaganda, yet they were free to go.
This is about as much foreign commerce as it is me buying a Xiaomi phone.
I know there's court precedent, but corporations aren't people. It's yet another Chinese platform that Americans use to communicate with other western companies.
> corporations aren't people
Corporate personhood is irrelevant to this case.
> > corporations aren't people
> Corporate personhood is irrelevant to this case.
Further more, "Corporations are people" implying corporations have rights isn't related to corporate personhood and is based on a (often deliberate by opposing politicians) misinterpretation of the phrase, as spoken by Mitt Romney.
What Romney was saying and what is true when he said "Corporations are people" is confusing because people interpret it as "Corporations are persons" which is not what he, or the case law he was referring to implied. The singular of the phrase is much more clear, a corporation is people.
The whole case was about a group of people pooling their funds to make a movie about Hilary Clinton being bad and the court found that the people still had free speech rights when acting through a corporation to pool their funds and so political donation limits didn't apply as long as no political campaign was involved. Hence, Super PACs having to say that the campaigns their supporting aren't involved with the campaigns.
It's actually an incredibly complicated and nuanced situation and the decision is equally so.
> I was looking forward to the day when I could finally marry Lockheed Martin
You can’t marry a child or your cousin (in most states), that doesn’t mean they aren’t people.
Funnily enough, as per Mitt Romney, the TikTok ban was done because it had too much anti-Israel content
>This is about as much foreign commerce as it is me buying a Xiaomi phone.
Isn't that obviously foreign commerce?
Well gosh, that sentence makes it seems like Congress could do anything!
However, this case is about something else. The opinion states that there is a first amendment interest, but that interest is secondary to a compelling national security interest that, in the court’s view, is valid. That may or may not be correct - but it is a subjective interpretation.