With the Supreme Court soon to determine the legality of Obama’s health care law, the Constitution will again be in the news. But while folks talk about the Constitution a lot, it tends to focus on only a few parts. Some folks are big fans of the second amendment and interpret it as creating a right to private ownerhsip of firearms. Others focus on one clause of the first amendment as outlawing crosses and such on government-owned lands. Once in a while, someone will suggest that recent claims by the Bush and Obama Administrations to legally kill American citizens without trial or indefinitely detain them without charge violate this or that amendment, but most of the Constitution exists largely outside of public consciousness. Indeed I wonder how many people actually know that Article 1, Section 8 lists 18 things that congress has the power to do, clearly intending that Congress is limited to only these 18 things, and that if there’s any doubt about the matter, amendments 9 and 10 make it extra clear that the people and states maintain all freedoms unless the Constitution specifically says that Congress can take away those freedoms. I also wonder how many people know how much of the justification for the current federal government rests on one item from that list of 18, the commerce clause:
[Congress has the power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
Over the years, the Supreme Court has used this clause to justify all kinds of federal legislation, from agriculture subsidies to labor law. Some of the things justified by the commerce clause are things that any rational person would want, such as the Clean Air and Water Act. Others are ridiculous. For example, in Gonzales v. Raich, the Supreme Court ruled that if I grow a marijuana plant on my own property for my own consumption, the federal government can punish me using its powers under the commerce clause. Defenders of the new health care law will base their case on the commerce clause as well.
So I wonder, among people who believe that the Constitution is generally a good idea, is there anyone who thinks that use of the commerce clause has gotten entirely out of bounds? If so, what should be done about it? If not, is there anything that the federal government could possibly do that wouldn’t be justified under the commerce clause?
In politics class, they basically said that the elastic clause lets the federal government do whatever they want. If the Constitution was antithetical the general welfare of the people (which it would be if it was used to oppose universal healthcare) then it isn’t serving the purpose it was crafted for.
I think the Constitution is generally a good idea, but I’m glad you put that word “generally” in there. We do not live in a world any longer in which it makes sense to have a bunch of barely-joined independent states; technology and finance have moved us to a point where we need a lot of centralized power. This is simply the reality of the situation. As such, it makes sense to stretch the commerce clause to include common-sense approaches.
That said, my kinda-sorta-hope is that the Supreme Court totally derails Obamacare, creating a rallying-cry for Democrats, and that when we go through the whole process again, some sort of single-payer solution comes out of it. The solution we have right now to the healthcare crisis is woefully inadequate, and we need real reform.
The commerce clause is most definitely abused. Shamefully abused. The judicial branch isn’t doing its job of being the watchdog, and often is guilty of aiding and abetting the abuses of the other branches.
Left Hand of Dorkness, if the result of derailing Obamacare had a snowball’s chance in hell of getting us to a single-payer system I’d say rock an’ roll. But I’m afraid that the reality is that the far-right ideologues would carry the day and we’d be back to the beginning, with no hope of catching up to the rest of the developed world.
This does raise a counter-question for me. Most of the people that complain about Congressional overreach vis-a-vis the Commerce Clause are also those that believe that the plain text of the Constitution should be followed as much as possible.
With that in mind, could any textualists explain why “Congress shall have the power to regulate commerce among the several states” should mean anything other than what it says? There are no limitations or caveats on the clause whatsoever.
It would seem that any attempt by the judiciary to limit this power would be an overreach unless it was in an attempt to balance it against, say, First Amendment rights. And that complaints regarding congressional overreach are rightly expressed at the ballot box, not in the courts.
But what is there to do that doesn’t affect interstate commerce? If I sell my car to the guy across the street, the Feds are gonna say that that sale affects interstate commerce because if I had not sold it to him, he might have purchased a car from another state or from a seller that has economic interests in multiple states, and thus my sale affected commerce because it prevented the possibility of such.
Agreed. The federal government has the power to regulate person-to-person automobile sales. The current rules seem to limit it to those who sell more than 6 such vehicles, but I don’t see why it would be unconstitutional to apply them to all sales.
I’m not saying that Congress should regulate all such areas, merely that they could.
This is an excellent point. If we’re in a situation wherein every financial transaction has some interstate component, that tells us about how the world has changed since the eighteenth century. If folks are no longer comfortable giving such power to Congress, wouldn’t an amendment be in order?
Clarification: Most people considering the constitution in this manner don’t speak of it “creating rights” but rather recognizing pre-existing (inherent, unalienable, endowed by creator, etc.) rights
I agree with this. If the “interstate” in “interstate commerce” is interpreted so broadly that any economic activity falls under it, then the word should have been omitted. The fact that the framers didn’t omit it means that they meant to distinguish “interstate commerce” from “intrastate commerce” (caveat: Maybe it doesn’t. I don’t know enough Constitutional history to make that claim very strongly. But it certainly seems that way).
In my opinion, regulating interstate commerce should only apply to to commerce that crosses state lines. And it definitely shouldn’t apply to things like growing or making something for your own personal use as in Wicard v Filburn. That sort of speculative reasoning should have no place in law.
Not that I expect this to change. The trend of vesting more power in the nation and less in the states is a strong one.
So if I grow wheat on my own land, for my personal consumption, can Congress fine me, under the theory that they are regulating interstate commerce? (Because I am growing my own wheat, I don’t buy wheat, the wheat I would have bought movies in interstate commerce.)
It;s one thing to say there are no limits on regulating commerce. It’s quite another to say that because you have unlimited to regulate commerce, you also have the power to penalize someone for not buying things that move in interstate commerce.
Agreed that they are two different things. I think the appropriate standard is whether the non-activity has significant impact on interstate commerce. I think there is little question that allowing unlimited personal wheat production would make regulation of the interstate wheat market impossible. I think a very similar argument can be made for Obamacare.
There is also the question of whether regulation of non-economic activity is essential for providing effective regulation of interstate commerce. I believe this distinction is what Scalia laid out in his concurrence in Gonzalez v. Raich.
I tend to side with Congress in questions of legislative authority simply because I have the power to replace Congress but not to replace justices (at least not directly or on any reasonable time scale). If the public wants to get rid of Obamacare it’s extremely easy to do so - elect Mitt Romney and 6 or so more GOP Senators and it’s gone.
I believe that Bricker’s opinion is that Wickard was wrongly decided but that it is now such settled case law that Obamacare should be upheld. But on a “personal opinion” level he thinks that the Commerce Clause is much too broadly construed.
As to why he didn’t mention the case by name, well likely it’s a famous Bricker gotcha-ya. You ruined the big reveal!
Why are those things different? Regulating an activity doesn’t always mean preventing an activity. Sometimes it means compelling the activity.
School attendance is regulated by requiring people to attend school; taxes are regulated by requiring people to pay them; a well-regulated militia may require people to join the militia. Do you disagree?
I read an argument that everyone in America is considered part of a militia as per the Second Amendment. Thus shouldn’t it follow that providing for the health of the militia is an important aspect of organising and regulating them?
Because that power is contained within a list of other powers which would be duplicative and unnecessary if the one clause was meant to mean “anything you want.”
For example, why the power to print and coin money, or establish post offices and postal roads, or grant copyrights, or any of those such things if commerce covers them all?
When you analyze the whole document from a textual perspective, you immediately must conclude that the purpose of the clause, especially when the framers talk of a national government with “few and limited powers,” and enact a 10th amendment reserving residual powers to the state, cannot be to vest any and all powers in the central government. That definition doesn’t fit within the rest of the text.
So, as a textualist, you must indeed say that it gives exactly what it says it does: the power to regulate interstate commerce. Period. Not the power to regulate things that might possibly affect interstate commerce. Only interstate commerce.
Such an extension of power would be like a law saying I can’t talk to my neighbor because otherwise I would send him a letter thereby affecting postal revenues and creating less coining of money, etc.