By granting plenary review now, the Court could consider at one swoop the application of the substantial effects test to federal regulation of non-economic activity with or without reliance on jurisdictional elements. The government also argues that the decision below was correct. That argument at most could reinforce the need to resolve the conflict among the Circuits, but the government is wrong in any event. That argument proceeds as if Lopez did not exist. The government relies on aggregating the effects of all residential arsons on interstate commerce to conclude that there is a sufficient basis for federal regulation under the commerce power.
Aggregation is impermissible here.
The government's view would permit the needed connection to commerce to consist of something not identified in the statute's jurisdictional element. Similarly, to construe the commerce power to permit federal regulation of any conduct that has significant economic costs in the aggregate would justify federal regulation of almost any crime. Indeed, the government's analysis would permit Congress to enact nationwide zoning laws, or to make window-breaking a federal crime, based on a jurisdictional element that had no meaningfully limiting effect. The government does not grapple with these necessary consequences of its position. The petition for a writ of certiorari should be granted.