ANSWER: I see your point. But does that make the possession of the feather itself, as an activity, economic in nature? To me, the growing of a commodity that is actively traded on huge international markets, even if only used for home consumption, is more economic in nature than the possession of a feather. But I will admit that what qualifies as "economic" is, at least to some degree, in the eye of the beholder.
QUESTION: Further, if more people like Que start using eagle feathers for their personal/religious use, it will impact the interstate commerce via an aggregate effect.
ANSWER: But that is jumping to the ultimate question -- the effect on interstate commerce. The question here is logically prior: what is the nature of the activity that is being regulated? We must address that first, for it is a critical aspect of the legal inquiry as to whether the activity will be deemed, as a matter of law, to substantially affect interstate commerce.
QUESTION: Second, as decided in Raich, even though Que is claiming that the statute itself is not constitutional, but as it applies to her is unconstitutional, courts will not excise individual components of the statute, especially when the statute is regulating the broad activity of preventing destruction of animals and protecting endangered species.
QUESTION: Second, as decided in Raich, even though Que is claiming that the statute itself is not constitutional, but as it applies to her is unconstitutional, courts will not excise individual components of the statute, especially when the statute is regulating the broad activity of preventing destruction of animals and protecting endangered species.
ANSWER: True. And there is a good argument, based on Raich, that prohibiting non-commercial, intrastate activities is appropriate in the functioning of the broader regulatory scheme, which is more clearly aimed at the regulation of interstate commerce (i.e., the interstate market in eagle parts).
QUESTION: Third, assuming arguendo that the activity is "noneconomic," it is still "necessary and proper" for Congress to regulate the activity as a necessary part of the more general regulation of interstate commerce by protecting endagnered species. (Scalia's argument in Raich).
ANSWER: Or at least Congress is probably rational in so concluding, which is all that Raich seems to require (or Scalia in his concurrence).
QUESTION: So, Que's indictment should not be dismissed.
ANSWER: I tend to agree. But I would admit a degree of uncertainty, just because nothing in this business of constitutional law is ever truly clear or definite.