From: MARKUS BRAKHAN <71201.1016@compuserve.com>
Subject: Federal Scalping Law - NO
Reply-To: 71201.1016@compuserve.com
Organization: The Internet
Date: Wed, 11 Nov 1992 05:17:41 GMT

 Jay Flemma posted his response without posting my argument. Without
having done any more research, I agree that the Commerce Clause allows
Congress to do any thing it pretty much pleases. I think that as a
practical matter the problem is more effectively dealt with at the
state level, based on the legal *and political* argument which
follows. I have about 12 Dead tours (full, many more partial) worth of
scalping experience. The people selling the tickets are individual
scammers, and the people busting them are parking lot security and
local police. It is simply more expeditious, and less expensive in
taxpayer dollars, for the problem to be dealt with by local
authorities. So for anyone who still cares:


OK, here we go. Federalism on Phish.net. But this is how Supreme Court
cases affect us every day. . .
Jay Flemma (jflemma@mailbox.syr.edu) writes:
       The Commerce clause give Congress the BROAD, SWEEPING power to
   tell the state's that they either must stop something from crossing 
   state
   lines, or that they must allow something to cross state lines.
        One of the the most famous cases discussing the Commerce Clause
   (I'll send the name and citation later, after I research them.)
   involved lottery tickets.  Lottery Tickets were deemed a "noxious
   substance" and were labeled as "immoral and contrary to the public
   good."  Thus they were not and are not allowed to cross state lines.
   (See...you can't buy NJ tickets in NY) The state still has the power
   to have its own lottery if it wants, BUT NOT SOMEONE ELSE'S.
        The same argument can be made about tickets for scalping.
   Every state has anti-scalping laws, but cannot reach another state's
   jurisdiction over the scalper.  So what some bright lawyer will do
   (when he/she gets the chance) is argue that by selling these tickets
   at an illegal price, the scalpers are promoting the infusion of
   "noxious substances and immoral conduct"
        The parallels between the lottery ticket case and the scalping
   case are striking.

 I disagree that concert tickets are analogous to lottery tickets. 
(Unless you want to argue that gambling and music are similar roads to
depravity, in which case you might have something. . .) Generally
speaking, Congress has the power to regulate _intra_state commerce if
it affects _inter_state commerce. Therefore Congress may regulate
tobacco, alcohol, narcotics and firearms, may tax income, and may
regulate interstate business. But police power over crime that is
_intra_state remains the power of the states under the Tenth Amendment,
principles of federalism and political theories of decentralization. 
That is why states may regulate the shipment of agricultural products
in a manner that protects the health of the people but not in a way
that discriminates against out of state producers. (cf. _Hunt v. 
Washington State Apple Advertising Commission_, 432 U.S. 333 (1977)) 
Concert tickets are a commodity, not a noxious substance, and ticket
scalpers are by and large local scammers. Therefore I argue that it is
not a federal problem and should not be subject to another federal
law.
 The so-called "Lottery Case" (Champion v. Ames, 188 U.S. 321 (1903)) 
questioned Congress's power to regulate the interstate movement of
lottery tickets. The Supreme court held, 5-4, that Congress could
"supres[s]. . .nuisances injurious to public health or morality". In
1903 I doubt that many would consider show tickets to be the same
threat to public welfare that lottery tickets were, and look how little
lottery tickets are regulated now.
 More recently, the court has held that New Jersey could _not_ ban the
importation of garbage from New York and Pennsylvania. _City of
Philadelphia v. New Jersey_, 437 U.S. 617 (1978), although
interestingly, the conservative members of the court filed a dissent
noting that garbage is more similar to quarantined agricultural
products which states may regulate than to goods which states are
forbidden to discriminate against. 
 A state may only regulate goods from out-of-state in a
nondiscriminatory manner. The federal policy underlying this rule is
that the nation as a whole benefits from the free flow of goods between
states and the absence of protectionist state policies. I fail to see
how a state may regulate the sale of tickets for events occurring
within its own borders and not regulate the sale of tickets for events
without its borders, so long as the regulation does not distinguish
events and treats all scalpers equally- as local scammers. A state law
that says, "It shall be unlawful to resell a ticket for an
entertainment or sporting event for more than 125% of its original
selling price, or to package such tickets with other services where the
total price charged fails to reflect the actual value of the services
offered with the ticket," should cover scalp sales regardless of
source, and does not discriminate against out-of-state events and
fulfills a legitimate state purpose of protecting the public form
usury, thereby passing constitutional muster.
 In _Perez v. U.S._, 402 U.S. 146 (1971), the Supremes, Douglas, J. for
the court, held that loan sharking was a type of crime that for reasons
cited "directly affects" (FN1) interstate commerce to the extent giving
rise to Congressional authority to control a crime that would otherwise
be left to the police powers of the individual states. Loan sharking
appears to me more like scalping than "transportation of lottery
tickets" (the conduct proscribed in the Lottery Case), therby
indicating that scalping could be regulated by Congress. However, 
Justice Stewart, in dissent, argued that loan sharking is a local crime
worthy only of local regulation under a state's police power.
 Although Congress may have the authority to regulate concert ticket
sales as a type of commerce that is by its nature interstate, several
factors lead me to the conclusion that ticket scalping should not be
considered a federal problem and also that there may be no legal
authority for Congress to do so. I base this conclusion on the
following points: (1) The Tenth Amendment (reserving unenumerated
powers, including police powers, to the states), (2) the _Perez_ 
dissent (as indicative of the current majority's view towards state
police power), (3) my view that ticket scalpers are a problem of local
crime and generally do not indicate organized crime [except TB ;-)], 
and (4) the general wisdom of leaving the states alone as much as
possible (especially when the court is so stacked).
 Just don't buy 'em.
MARKSUMARKUSMARKUSMARKUSMARKUSMARKUSMARKUSMARKUSMARKUSMARKUSMARKUSMARKUS