02 October 2004

Major Commerce Clause Case

The Eleventh Circuit Court of Appeals handed down a major Commerce Clause case today. In United States v. Maxwell, No. 03-14326, (11th Cir., Oct. 1, 2004) a unanimous three-judge panel held that Congress could not criminalize the intrastate, non-commercial, possession of child pornography.

Maxwell lived in Florida. At his apartment he kept child pornography on computer disks. However, the prosecution could not prove that the pictures of the children contained on the disks were taken outside of Florida. The prosecution sought to prove an interstate nexus by arguing that the disks moving through interstate commerce was a sufficient tie to hold Maxwell liable. The Eleventh Circuit disagreed. Most significant about the decision is this line: "We believe [the Wickard v. Filburn] aggregat[ion] approach cannot be applied to intrastate criminal activity of a noneconomic nature." Slip opinion at 37.

This is reasoning we hope SCOTUS will adopt in Ashcroft v. Raich, where the question presented is whether Congress may regulate the wholly intrastate, non-commercial cultivation of medicial marijuana. Let's hope that the Supreme Court will heed the Eleventh Circuit's wisdom and return our federal government of enumerated powers.

I digest Maxwell here.

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