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36. Is the statute constitutional?
A weed often found growing in vacant lots contains a stimulant that can be extracted by boiling the weed in water. Someone drinking the resulting «tea» can remain awake for long periods of time. However, drinking the tea can also cause paralysis and even death. Because the weed is so readily available, there is no commercial market for it. Congress has enacted a statute that makes possession of the tea a misdemeanor. The statute has no other provisions and is not part of a broader federal statutory scheme.
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A is incorrect. Congress may use its commerce power to regulate economic activity that is not itself a commercial transaction, such as the manufacturing and production of articles for interstate commerce. Additionally, Congress may incidentally regulate noncommercial activities in order to effectuate regulations of related commercial activities. See Gonzales v. Raich, 545 U.S. 1 (2005).
C is incorrect. The statute is outside the scope of congressional commerce powers because, even though stoves and fuels may have previously moved in interstate commerce, they are not channels or instrumentalities of commerce.
D is incorrect. The aggregate effects test applies only to regulations of economic activity. United States v. Lopez, 514 U.S. 549 (1995). If the regulated intrastate activity is not commercial or economic, generally the Court will not aggregate the effects and the regulation will be upheld only if Congress can show a direct substantial economic effect on interstate commerce. Here, the statute attempts to prohibit the possession of tea, which is a noncommercial activity with no link to interstate commerce.