Entries categorized "Federal Powers"

Clean Water Act and the Commerce Clause

In United States v. Gerke Excavating, No. 04-3941 (7th Cir. Jun. 21, 2005), Judge Posner applied Gonzales v. Raich's broad holding to a Commerce Clause challenge against the Clean Water Act.  The government's argument in Gerke would have been comical had the panel not accepted it.  The government argued that it could regulate this piece of land:

Located on a 5.8 acre tract near Tomah, Wisconsin, that the owner wanted to develop, the wetlands are drained by a ditch that runs into a nonnavigable creek that runs into the nonnavigable Lemonweir River which in turn runs into the Wisconsin River, which is navigable.

Slip op. at 2 (emphasis added).  Is this chain of inferences enough to give Congress the power to regulate the excavation?  Yes.

Obviously filling in a 5.8 acre tract (not all of it wetlands— we do not know how much of it is) is not going to have a measurable effect on the depth of the Wisconsin or Mississippi Rivers. But that cannot be the test. The sum of many small interferences with commerce can be large, and so to protect commerce Congress must be able to regulate an entire class of acts if the class affects commerce, even if no individual act has a perceptible effect. See, e.g., Gonzales v. Raich, 125 S. Ct. 2195, 2205-07 (2005); Wickard v. Fillburn, 317 U.S. 111, 118-29 (1942).

Slip op. at 4-5.  Thus, "[w]hether the wetlands are 100 miles from a navigable waterway or 6 feet, if water from the wetlands enters a stream that flows into the navigable waterway," then Congress can regulate it.  Id. at 6.

Lest you think this is a laughing matter, or that the case is no big deal, consider John Rapanos, a grandfather whom prosecutors wanted to send to prison because he filled in a ditch whose connection was more attenuated to interstate commerce than in this case.  Fortunately, the judge didn't sentence Mr. Rapanos to prison, though that's not much of a silver lining considering Mr. Rapanos is now a felon.

UPDATE: Greg Broderick of the Pacific Legal Foundation argued the case on behalf of Gerke Excavating.  His appellate brief is available here.  Mr. Broderick also wrote an interesting article entitled "The Shifting Sands of the Clean Water Act," which you can read here.  (Hat tip: Sandefur)

Commerce Clause and Physics

This post (via Volokh) reminded me of an old post (7/1/2004) explaining the Court's Commerce Clause jurisprudence.  Here goes:

The only way to understand the Court's Commerce Clause jurisprudence is by turning to chaos theory.  Chaos theory tells us that if a butterfly flaps its wings in Hong Kong, it may cause a hurricane in Texas.  "Fundamental to chaos theory is the phenomenon of sensitive dependence on initial conditions, commonly referred to as the Butterfly Effect."  Leonardo Electronics Almanac.

If I sneeze in California, it may cause an earthquake in Missouri. Hence, Congress has the power to criminalize my intrastate sneezing because it may substantially affect interstate commerce.  (After all, an earthquake can cause billions of dollars in damage.)  Everyone has heard of the million dollar man.  But had you heard of the billion dollar sneeze?

Although my tongue was firmly in cheek when I wrote that post, it's not far from off.  In Raich, the Court held that commerce is anything that Congress has a rational basis for concluding is commerce.  And, according to Justice Breyer, here is what counts as a rational basis:

[W]e can imagine a reason, but if you look at it realistically, you know there's no good reason.... I mean, if you put your mind to it, you can make one up, which is sort of the test for rational basis in the economic context. But as soon as we become realistic, there isn't much of a reason.

Pretty close, 'eh?

UPDATE: Darn, darn, darn!  Someone else beat me to the butterfly effect angle.  Via Sandefur:

Perhaps you know this, but the Sixth Circuit Court of Appeals adopted your chaos theory reference in United States v. Wang, 222 F.3d 234, 239 (6th Cir. 2000):

[W]hen the United States argued that gun possession in school zones would, in the aggregate, result in violent crime which would result in costs which would affect the national economy through the mechanism of insurance, the Court responded: "To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Lopez, 514 U.S. at 567, 115 S.Ct. 1624.... Just this sort of "butterfly effect" theory of causation would be required to find liability in the great majority of Hobbs Act cases in which the victim is a private citizen.[1] See James Gleick, Chaos: Making a New Science 8 (1987) (discussing the parable of the flapping of a butterfly's wings that creates a minor air current in China, that adds to the accumulative effect in global wind systems, that ends with a hurricane in the Caribbean).

FN1. This might also be viewed as the "dog, dog bite pig" theory of causation. See The Little Old Woman and Her Pig, in The Tall Book of Nursery Tales 92 (1972). The little old woman had been stymied in her attempt to get home because her recalcitrant pig refused to cross a stile. So the old woman gave water to a haymaker for a wisp of hay to give to a cow for some milk to induce a cat to begin to kill a rat that began to gnaw a rope that began to hang a butcher who began to kill an ox who began to drink some water that began to quench a fire that began to burn a stick that began to beat the dog who began to bite the pig who jumped over the stile in a fright. Id. at 97. While this sequence of events got the little old woman home that night, such a causal chain will not suffice to put Mr. Wang in federal court.

Eleventh Amendment and Title II

Bill M. and six other developmentally disabled adults (Plaintiffs) sued Nebraska and various Nebraska officials in their official capacities, alleging violations of Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12131 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and other federal and state law provisions. Plaintiffs asserted that they are each “eligible for, desire, have applied for or have attempted to apply for and have been denied home and community-based Medicaid-funded services.” Compl. at 2. They alleged that Nebraska’s withholding of funding to these services has left them without adequate services to meet their needs and placed them “at imminent risk of unnecessary institutionalization.” Id. Nebraska and the officials moved to dismiss on various grounds. The district court denied the motion.

This interlocutory appeal is limited to one aspect of the dismissal motion: Nebraska’s contention that Eleventh Amendment immunity precludes the district court from having subject matter jurisdiction over the Title II claim. Plaintiffs contend that Title II and related statutory provisions ostensibly abrogate Eleventh Amendment immunity with respect to a Title II claim. Nebraska argues, in response, that the extension of Title II to the states is unconstitutional under our circuit’s precedent. The United States has intervened to defend the statutory abrogation.

Bill M. v. Health & Human Serv., 04-3263 (8th Cir. May 27, 2005) (holding that Tennesse v. Lane does not apply in denial of access to welfare benefits cases).

Federal Powers and Cell Phones

A computer whiz and U. Wisc. MBA student found a way to send out a signal that would block all police communication over radio.  On one night, his signal blocked a control channel that a computer used to re-direct radio traffic to prevent signal bleeding.  Because of this, police were unable to communicate over police radios.

The student was convicted under 18 U.S.C. 1030(a)(5), which makes it a felony to interfere with computer-related systems used in interstate commerce.  The student brought a federal-powers based challenge to his conviction.  He argued that since his signal did not affect communications in other states, Congress lacked the power to criminalize his conduct.  Judge Easterbrook, writing for a unanimous three-judge panel, disagreed.

Mitra observes that his interference did not affect any radio system on the other side of a state line, yet this is true of many cell-phone calls, all of which are part of interstate commerce because the electromagnetic spectrum is securely within the federal regulatory domain. See, e.g., Radovich v. National Football League, 352 U.S. 445, 453 (1957); Federal Radio Commission v. Nelson Brothers Bond & Mortgage Co., 289 U.S. 266, 279 (1933). Congress may regulate all channels of interstate commerce; the spectrum is one of them. See United States v. Lopez, 514 U.S. 549, 558 (1995); United States v. Morrison, 529 U.S. 598, 608-09 (2000).... Once the computer is used in interstate commerce, Congress has the power to protect it from a local hammer blow, or from a local data packet that sends it haywire.... Section 1030 is within the national power as applied to computer-based channel-switching communications systems.

United States v. Mitra, No. 04-2328, at *7 (7th Cir. Apr. 18, 2005).  The holding is sensible, and unsurprising.  The only troubling aspect of the decision is his writing that "all [cell phone calls] are part of interstate commerce [ ]."  This turns every conversation made via cell phone into a potential federal offense.

Channels of Commerce

You can't transport lottery tickets from state-A to state-B, even if states A & B allow the transportation and possession of lottery tickets.  Today the Eighth Circuit - in under three-pages - upheld the provision of the Animal Welfare Act that prohibited the interstate transportation of cocks into states that allow cock fighting.  Slavin v. United States, No. 04-2225 (8th Cir. Apr. 4, 2005).

Although the case has little doctrinal value, it's a reminder of how far the courts have gone from an original understanding of the Commerce Clause.  How is preventing the transportation of an item that is legal in state-A and state-B "regulating" commerce?  Randy Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101 (2001) (arguing that Congress' power to regulate interstate commerce did not generally include the power to prohibit the movement of commercial items that Congress found objectionable).

Crime and Federalism Wins in the Circuits

In United States v. Lopez, 514 U.S. 549 (1995) the Court, for the first time since 1937, struck down a law because it exceeded the scope of Congress' commerce power. Understandably, the federal circuits reacted with caution: no court struck down a criminal statute immediately post-Lopez.  Granted, the federalism gurus of the fightin' Fifth tried.

Three years after Lopez, the Fifth Circuit - which, we'll remember, gave us Lopez - examined constitutional challenges to the Hobbs Act. In United States v. Hickman, 151 F.3d 446, rehearing en banc 179 F.3d 230 (CA5 1999), cert. denied 530 U.S. 1210 (2000) an equally divided en banc panel of the Fifth Circuit affirmed convictions under the Hobbs Act against a Commerce Clause-based attack.  Perhaps Lopez was an abberation.

Then in United States v. Morrison, 529 U.S. 598 (2000), the Court held that the civil remedy provision of the Violence Against Women Act violated the Commerce Clause. And the next week, in Jones v. United States, 529 U.S. 848 (2000), the Court construed the federal arson statute narrowly because, applying it to the burning of a private resident, would raise considerable constitutional problems in light of Lopez.  The Court was taking federalism seriously. Did the circuits hear its call?  Not for another three years.

Again, the Fifth Circuit heard an attack brought against the Hobbs Act.  In United States v. McFarland, 264 F.3d 557 (5th Cir. 2001), rehearing en banc 311 F.3d 376 (5th Cir. 2002), cert. denied, 538 U.S. 962 (2003), the Fifth Circuit again split evenly in rejecting a challenge that the Hobbs Act exceeded Congress' commerce power.

No federal circuit held that a federal criminal law was unconstitutional under the Commerce Clause until nearly eight years after Lopez, and three years after Morrison.  The circuits, it seemed, did not take Lopez or Morrison seriously - at least not seriously enough to implement it.

In United States v. McCoy, 323 F.3d 1114 (9th Cir. 2003), a 2-1 panel reversed a conviction under the federal child pornography law because the pornographic images were not transported interstate. In McCoy, a mother was convicted under federal child pornography laws for taking sexually-explicit pictures of herself and her daughter.  The government failed to prove that McCoy took the photographs for commercial gain, or that the photographs traveled interstate.  Because of that, her prosecution was unconstitutional under the Commerce Clause.

On the heels of McCoy came United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003) (Kozinski, J.). The issue in Stewart was whether Congress' commerce power allowed it to criminalize the possession of a home-made machine-gun Stewart had converted his semi-automatic rifle to fire automatically with parts that had moved through interstate commerce. Holding that Congress lacked the power, Judge Kozinski wrote:

Indeed, some of the machinegun parts did move in interstate commerce. At some level, of course, everything we own is composed of something that once traveled in commerce. This cannot mean that everything is subject to federal regulation under the Commerce Clause, else that constitutional limitation would be entirely meaningless. As Lopez reminds us, Congress’s power has limits, and we must be mindful of those limits so as not to obliterate the distinction between what is national and what is local and create a completely centralized government.

Id. at 1135 (quotation marks omitted).

In Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), cert. granted, 124 S.Ct. 2909, 72 (U.S. Jun 28, 2004), a 2-1 panel held that the Controlled Substance Act, to the extent that it criminalized the use of marijuana not purchased nor obtained interstate, was an unconstitutional exercise of power under the Commerce Clause. Wrote Judge Pregerson:

The cultivation, possession, and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized as commercial or economic activity. Lacking sale, exchange or distribution, the activity does not possess the essential elements of commerce.

Id. at 1229-30.  The Ninth Circuit has been silent on crime and federalism issues post-Raich.  But in 2004, the Eleventh Circuit spoke.

In United States v. Maxwell, 2004 WL 2191801 (11th Cir., Oct. 1, 2004), a unanimous three-judge panel held that Congress may not criminalize the intrastate possession of child pornography, even if the child pornography is kept on items that moved through interstate commerce. In Maxwell, the defendant kept his child pornography on diskettes that moved through interstate commerce. However, the prosecution could not establish that the pictures on the disks were taken outside of Maxwell's home state - Florida. Thus, the law was unconstitutional as applied to him. Significantly, the panel held that it would not apply the aggregate affects test of Wickard v. Filburn to non-commercial activity.

A couple of weeks ago, in United States v. Smith, No. 03-13639 (11th Cir. Mar. 18, 2005), a different and unanimous three-judge panel affirmed Maxwell's holding, and reviewing for plain error, held that allowing Maxwell-type prosecution would be reversed.

Even though there are over 4,000 federal criminal laws, the circuits have only given us a five crime and federalism victories in ten years. It seems that most circuits do not take Lopez and Morrison seriously.

The New Crime and Federalism Jocks

In United States v. Peters (CA11) a three judge panel devoted 19-pages to a plain error analysis of the constitutionality of selling a firearm to a felon.  Why perform this analysis when reviewing for plain error?

I have an answer -- On the heels of U.S. v. Maxwell and U.S. v. Smith, the Eleventh Circuit wants us to know that they are the new federalism jocks.

Sure, the Fifth Circuit was the first court to hold that Congress exceeded its power under the Commerce Clause since 1937.  And post-Lopez it appeared that the Fifth Circuit would keep its title as the federalism jocks.  But in Hickman (the constitutionality of the Hobbs Act) and McFarland (Hobbs Act take 2), the Fifth Circuit twice failed to limit Congress' power to enact federal criminal laws.  Recently, in U.S. v. Bird, the Fifth Circuit declined to strike down a clearly unconstitutional law.

Then the Ninth Circuit moved in with three big crime and federalism cases - U.S. v. McCoy (intrastate possession of child p*rnography), U.S. v. Stewart (the home-made machine gun case), and Raich v. Ashcroft (intrastate possession of medicial marijuana).  But the Ninth Circuit has been silent for a while.

Thus, the Eleventh Circuit moved in.  In Maxwell they reversed a child p*rnography conviction.  In Smith they reversed another child p*rn conviction (on plain error review!).  And in Peters they told us, "We take federalism seriously," even when the advocates don't think the raise the issue below.

Let's hope that Raich - which the government will win - will be a narrow win for the government, so we can see if the Eleventh Circuit has its title taken away.

Maxwell, Plain Error, Child Porn, and a Circuit Split

Last year, in United States v. Maxwell (CA11) a unanimous three-judge panel held that Congress lacked power, under the Commerce Clause, to criminalized the instrastate possession of child pornography.  In Maxwell, the government argued that because the disk that contained the image travelled interstate, that Congress could criminalize what was possessed on the disk.  The panel disagreed, for reasons I explained here.

Plain error review will govern Commerce Clause-based challenges to 2252A convictions.
Yesterday, in United States v. Smith, No. 03-13639 (11th Cir. Mar. 18, 2005), a unanimous three-judge panel, relying on Maxwell, reversed the defendant's conviction.  Smith summarized the enumerated powers issue, but also held that Maxwell-like appeals will be reviewed for plain error, and that prosecuting the defendant was plain error.   Thus, if anyone has pending 2252A appeals in the Eleventh Circuit, raise Maxwell.

Forget plain error -- There wasn't any jurisdiction.
The better ruling would have been for the panel to hold that where Congress lacks the power to enact a criminal law, the court never had jurisdiction to hear the case (excpet, of course, to pass on constitutionality and thus jurisdiction).  Lack of subject matter jurisdiction can be raised at any time, and cannot be waived.  "The parties cannot waive lack of jurisdiction, whether by express consent, or by conduct, or even by estoppel.  The court, whether trial or appellate, is obliged to notice want of jurisdiction on its own motion [ ]."  Wright & Kane, Federal Courts at 28 (6th ed.).  Thus, where Congress lacks the power to enact some law, it's obvious then that the courts lacked subject matter jurisdiction to supervise a prosecution under the invalid law.

There's a circuit split on Congress' power to criminalize child pornography under the Commerce Clause.
Also of note is the major circuit split.  The First Circuit has held that storing child pornography on items that have moved in interstate commerce is a sufficient nexus to interstate commerce.  United States v. Morales De-Jesus. Thus, Congress may criminalize the intrastate possession of child pornography contained on such devices.   A district court, relying on De-Jesus, rejected a commerce-based challenge.  United States v. Grimmett (D.Kan.).  So the issue should soon hit the Eighth Circuit.

The Eleventh Circuit disagreed.  United States v. Maxwell.  The Ninth Circuit has also held that instrate possession of child pornography can not be criminalized under the Commerce Clause.  United States v. McCoy.  So did the Sixth Circuit, though it's rationale was slightly different.  United States v. Corp.

There's no question that the Court will grant cert to address this circuit split.  The only question is what effect, if any, Ashcroft v. Raich will have on this line of cases.  If the Court uses the rationale in  Raich that I think it will, then Maxwell and Stewart will be no more.  In Raich, I predict the Court will hold that there is a federal interest in keeping marijuana prices high (to reduce demand and thus usage).  States that legalize marijuana, even if only for medicinal purposes, decrease demand for marijuana and thus the price decreases.  Cheper marijuana means more users.  I discussed this argument here.

A similar rationale will govern the child porn line of cases.  Namely, Congress has an interest in keeping the cost of child pornography high to reduce demand.  Thus, someone who obtains his child porn intrastate does not need to avail himself to the national market, and thus, the price of child pornography decreases.  Hence, to keep costs up (and thus reduce demand) Congress could rationally determine that it is necessary and proper to criminalize the intrastate production and possession of child porn.

Yeah, that rationale is basically crap, but I'm only saying what the law is, or will be, not what it should be.

UPDATE:  Judge McConnell provides us a comprehensive survey of the circuit split.

Many of our sister circuits have considered the constitutionality under the Commerce Clause of § 2252(a)(4)(B), as well as the analogous jurisdictional provision found in 18 U.S.C. § 2251(a), which criminalizes child pornography production. Of the nine circuits to address the issue, six have found such jurisdiction a valid exercise of Congress’ Commerce Power. See United States v. Morales-De Jesus, 372 F.3d 6, 10, 17-18 (1st Cir. 2004) (upholding a conviction under § 2251 finding that aggregated local intrastate production has a “substantial effect” on interstate commerce); United States v. Holston, 343 F.3d 83, 88-91 (2d Cir. 2003) (concluding that the activity proscribed by § 2251 is economic in nature and can be regulated at the intrastate level by Congress); United States v. Buculei, 262 F.3d 322, 329 (4th Cir. 2001) (“There can be no doubt that the production of visual depictions of minors engaging in sexually explicit conduct, i.e., child pornography, is economic in nature.”); United States v. Hoggard, 254 F.3d 774, 746 (8th Cir. 2001) (affirming conviction under § 2251); United States v Kallestad, 236 F.3d 225, 228-31 (5th Cir. 2000) (affirming a conviction under § 2252(a)(4)(B) on the ground that the statute regulates an activity that has a “substantial effect” on interstate commerce in light of the Morrison factors); United States v. Angle, 234 F.3d 326, 338 (7th Cir. 2000) (affirming a § 2252(a)(4)(B) conviction under a market theory; the statute “prohibits intrastate activity that is substantially related to the closely regulated interstate market of child pornography”); United States v. Rodia, 194 F.3d 465, 476 (3d Cir. 1999) (affirming conviction under § 2252(a)(4)(B) under market theory); United States v. Robinson, 137 F.3d 652, 656 (1st Cir. 1998) (affirming a conviction under § 2252(a)(4)(B) because the local possession of child pornography “‘through repetition elsewhere,’ . . . helps to create and sustain a market for sexually explicit materials depicting minors” and thus substantially affects the instrumentalities of interstate commerce).

Four decisions from three circuits have held prosecutions for possession of home-made child pornography unconstitutional as exceeding congressional power under the Commerce Clause. See United States v. Smith, 2005 WL 628686 (11th Cir., Mar. 18, 2005); United States v. Maxwell, 386 F.3d 1042 (11th Cir. 2004); United States v. McCoy, 323 F.3d 1114 (9th Cir. 2003); United States v. Corp, 236 F.3d 325 (6th Cir. 2001). Three of these decisions involved factual circumstances with much more tenuous connections to interstate commerce than the facts present here. Maxwell concluded that the application of § 2252(a)(4)(B) was unconstitutional where the interstate transfer of blank computer disks was the sole connection to interstate commerce introduced at trial. 386 F.3d at 1049. McCoy involved a single family photograph of a child taken by a parent with, according to the Ninth Circuit, no commercial or interstate component. 323 F.3d at 1115. Corp involved several photographs taken by a 23-year-old man of a 17- year-old girl who was within months of majority status, 236 F.3d at 326.

United States v. Riccardi, No. 03-3132, slip op. at 26-30 (10th Cir. Apr. 19, 2005) (footnotes omitted).

An Odd Bird

In United States v. Bird, 124 F.3d 667 (5th Cir. 1997)

Frank Bird ... while protesting outside the America's Women Clinic in Houston, Texas, threw a bottle at a car driven by Dr. Theodore Herring (Herring), an abortion provider, as he attempted to enter the clinic premises. As Bird threw the bottle, he yelled, "Herring, I'm going to get you. I'm going to kill you."

Bird was prosecuted under 18 U.S.C. 248 (the Freedom of Access to Clinic Entrances Act, or FACE), which makes it a felony to harass an abortion doctor and does not include a jurisdictional element that would require the federal government to prove that, hells bells, there's a federal issue in the case.  But Judge Garwood wrote for a 2-1 panel that Congress could regulate discreet, insulated, instrastate acts to protect the broader market for abortion:

Because we find that there was a sufficient basis for the Congress to have determined that the activity proscribed by the Act, though intrastate, could have a substantial affect on the congressionally-recognized national market for abortion-related services [FACE was valid under the Commerce Clause.]

After all, if doctors are afraid to go to work, they won't accept money to perform abortions.  [Note to Republicans -- How in the hell did you guys let this law get enacted? Did your love for criminalizing everything exceed your disdain for abortion?]

Bird was convicted, but he did not learn his lesson.  Comes now Bird IIUnited States v. Bird, No. 03-20884 (5th Cir. Feb. 28, 2005).

Five years later, Bird drove his truck through the door of an abortion clinic.  And he was again prosecuted under FACE.  The district court properly dismissed the indictment, since a post-Morrison understanding of the Commerce Clause could not save FACE.

A 2-1 panel of the Fifth Circuit Court of appeals reversed the trial court, writing that "We do not find that the Supreme Court’s decision in Morrison materially affects our holding in Bird I."  Judge DeMoss again dissented.  Wrote the good judge:

As in Lopez and Morrison, the criminal activity at issue here, the intentional damaging and destroying of a facility that provides reproductive health services, is neither an economic nor a commercial activity.  ***  The Court in Morrison further suggested that Congress could not, in the absence of a regulated activity which is economic or commercial, simply exercise a general police power...
Because Congress does not have a general police power, it surely cannot have the authority to define as criminal conduct under federal law private acts that are intended to interfere with another person’s exercise of some constitutional right, whether that right is to be free from gender-based violence as in VAWA or to choose to access reproductive health services, such as abortion, as in FACE.5 Purely criminal activities that are not premised in economic or commercial contexts are subject to an entirely different scheme of congressional regulations, none of which is justifiable under the Commerce Clause.

Slightly more provocatively, Judge DeMoss's reading of Morrison concludes:

Morrison refutes the concept of an aggregate effect on a national market when the conduct proscribed is violent criminal conduct. 529 U.S. at 615-19. As a preliminary matter, the Commerce Clause may not reach noneconomic activity that only affects commerce through a “but-for” causal chain.
While Bird I concluded that Wickard, reaffirmed by Lopez, permits the aggregation of intrastate, noncommercial activity, the Supreme Court’s more recent decision in Morrison expressly forecloses any such aggregation.

Please read the full dissent here.

I'm going to take a walk and think about this decision.  I'll report my thoughts later, and hope you include yours as a comment.