The Commerce Clause Wars--continued from GQ

I think that this is an excellent debate which was stuck in GQ, but I would like to explore it further.

I really would like posters’ thoughts on these following ideas:

First, I don’t really care what the Supreme Court has said on the matter. If that is a hangup then maybe it all boils down to “intent of the framers v. evolving doctrine” debate, and all of this is repetitive and moot. Is this simply a debate between these two ideas?

Second, in my mind, I see the Constitution as a grant of limited, enumerated powers to the National Government with the rest and residue held by the states. Agreed or no?

And I guess your responses to 1 and 2 determine whether the following questions are relevant, but one of the powers granted to Congress is to "“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. Since we are concerned with internal laws, not related to Indian tribes we can reduce this to “To regulate commerce…among the several States” Agreed?

Number 4: Would you agree that a power such this means that a law may touch on something which is not commerce, and is not among the several states? For example, is a law telling a man how much wheat he may grow on his property, or whether or not he may grow marijuana a “regulation of commerce among the several states”?

5: Agree or no, that if you take the current interpretation of the Supreme Court as to the power of Congress under the commerce clause, that it turns the 10th amendment on its head. It basically grants an all-encompassing view of power that has no real restriction, in violation of point #2?

6: If your answer to #5 is no, then please give me a hypothetical of a law which would be beyond the power of Congress to enact.

I guess this is a good starting point…

I completely agree. Although I’m not sure I agree with you about any of it, it’s a fascinating debate. And your post is a great starting point.

I think it’s absolutely an argument about constitutional interpretation–you admit so yourself. Under one interpretation (that favored by SCOTUS now), regulating wheat growers (for example) is entirely within the commerce clause power. Under a strict textualist view, it’s possibly invalid (if you ignore the Reasonable and necessary clause). (I don’t know what an originalist would say–but could entirely imagine it wasn’t intended to limit congressional power to the position rejected in Gibbons v. Ogden–to loosely state it, that commerce is just things actually crossing the border at the time they do so.)
Another way of saying this is that this is it’s an argument about how much you can interpret the constitution. Now, the way the constitution is drafted (as a set of principles, rather than (as in many state constitutions), a detailed list of rules, it seems designed to require interpretation.

Even from the text, there are several rational tests, and some interpretation is necessary: I will use the example of a sale of wheat from state A to state B, and take them from narrow to broad.

The position rejected in Gibbons–just stuff crossing the border, at the time it does so.
Including only things actually in interstate commerce at that moment, but during the whole transfer–so, regulating the sale in state A, the transfer from A to B.

Including some concept of the “stream of commerce”–so including the ability to regulate the unsold wheat in grain silos in state A, held for sale in interstate commerce, but not yet sold?

Including some things that affect interstate commerce (as the current interpretation)–such as the growth of wheat? If so, to what extent.

I would argue all but the last would be valid from a textualist standpoint–and then the question is which one to use–as you can see, they’re very different. So even to a textualist, some interpretation is necessary to get a rule.

I’d say “enumerated” powers–some are broad (such as the treaty power), and others are limited (such as the power to organize a navy). As I see it, that’s not the real debate–the debate is what the limitations are,—and how the text of the constitution defines those limitations.

Sure, but why not just use the whole thing? It doesn’t save much time.

First of all, you have to ask this question in light of the “necessary and proper” clause. So I would frame it as “is regulating this activity a necessary and proper law to carry into execution the power to regulate commerce”

And if so, I’d say “sometimes.” For example, is it reasonable to regulate some in-state activity without which the regulation of unquestionably interstate commerce is futile? Or, to put it another way, is it reasonable to create a regulation on commerce that inherently regulates in-state acts?

For example, regulating the use of pesticides on corn–in order to prevent the shipping of unsprayed goods in commerce? Or, requiring all corn shipped in commerce has been sprayed with pesticides while growing–a regulation of commerce, but one that inherently regulates farming.

Reject. The tenth amendment is defined by the rest of the constitution, not the other way. That is plain from its text–the tenth only applies to powers the rest of the constitution doesn’t give to the federal gov’t.

So if the commerce clause allows regulating wheat farming, then regulating wheat farming does not violate the Tenth–because it is a power granted to the federal government. This is not to say federal overreach does not violate the tenth–but that the tenth does not limit the rest of the constitution (by definition)–it applies when the rest of the constitution doesn’t tell you what the rule is.

The breadth of the commerce power does not change its validity under the Tenth. What violates the tenth is the federal gov’t taking a power not granted under the CC–but that does not say anything about what that power is. It can be broad or narrow.

For example–if the commerce clause instead said “the power to make laws on any subject”–it would be unquestionably immensely broad. Would it violate the tenth? No–because the constitution gives that power to the federal government.

Plus, you have to look at such questions in the context of a case (as is necessary under Art III to have a federal court even hear it). So the question is “is this particular law beyond the federal lawmaking power under hte commerce clause”

Hypothetical? If you want a real one, try the law rejected in US v. Morrison–trying to criminalize violence against women in all cases.

But more broadly, I don’t think this addresses the principal debate here–If you accept the CC reaches things that affect commerce (as I contend), and if you accept that there are many degrees of effect on commerce (as is obvious), then what we’re doing here is just drawing lines–not debating the fundamental constitutional issue.

You can accept, fundamentally, the modern conception of the CC, and yet define it in a way that forbids many, or few things–it’s a question of how attenuated an effect is enough. But that’s not constitutional interpretation–that’s where you draw the line within the constitutional interpretation you’ve chosen. You could, for example, accept that the commerce clause allows regulation of things that affect commerce, and still argue that that effect ought to be fairly direct (and have the CC relatively narrow). I just don’t see this question as affecting the more structural questions of interpretation .

I believe that the Commerce Clause is a good thing, for ensuring that we don’t get into state vs. state trade wars. I believe that the USSC was wrong in Gonzalez when it decided that someone growing Marijauna for personal medical consumption per California law could be arrested under the Commerce Clause.

I think that Montana is playing an interesting game by having firearms for manufacture, sale and possession in Montana only - in an attempt to have no interaction with Federal authorities:

http://law.rightpundits.com/?p=402

Just throwing some more food for thought onto the pile:

how relevant is it that you travel speeds are somewhere around 100x faster today than than when the constitution was written?

Sort of. Maybe.

Well, since that’s what it says it is, I’ll agree.

Agreed.

According to the line of reasoning in the SCOTUS case, yes (even tho that’s not really a very clear summation of Wickard v. Filburn).

Seemingly, but only because the definition of “commerce” is so broad. Any exchange of material goods, money, services or even an exchange of ideas can be considered commerce.

[nitpick]

Congress can basically enact any law they want. Whether or not it will stand up in court is the litmus test.

[/nitpick]

The 2nd thread I started on this board taught me a lot about the CC. I don’t care for how far-reaching the clause is, but really, with the way it’s written, I can see how the SCOTUS reached their decision in Wickard. I just don’t like the aftermath of that decision.

Montana (and Tennessee and other states) will fail with this effort. Part of the decision in Gonzales v. Raich, (and if I remember correctly, Wickard) had to do with the fact that the commodity in question could have an effect on prices and availablility in other states, thus it can be regulated. IIRC, in Wickard, the family grew more wheat than their allotment, so they would not have to buy what the family and farm needed. Since this meant that a potential consumer would not need the open market in order to acquire their supply, that would have some effect on the commerce of the wheat market, therefore the US Gov. was within their rights to act.

In Raich, I seem to recall that the SCOTUS reasoned that there was no way to ensure that the marijuana would all be consumed by the plaintiff. It could be stolen, and sold on the open market, even in another state. It could be stolen and used, so that commerce is now effected similar to Wickard. It could… on and on with possible ways that it could have some effect on commerce, thus it is within the scope of the powers granted in the CC.

The guns are no different. A gun made in Montana could be stolen, taken to Colorado and sold. Plus, there’s no way that all the materials and machinery and knowledge for gunsmithing came solely from Montana, thus it falls within the scope of the CC.

I think that is as fair enough of an interpretation as any. You argue well for a step by step analysis of what we should say is Congress’ power to regulate commerce.

But, if you take a step back and look at the constitution as a whole, does it make sense to outline a specific set of things that Congress has the power to do, then add an amendment (10th) to reaffirm this limitation, but then interpret one of these powers to grant them an almost limitless license to do seemingly whatever they choose?

Necessary and proper seems like an innocent instruction to carry out these delegated powers in a reasonable manner. I need to raise an army? Ok, I can buy guns, uniforms, rations, etc. I don’t need a specific grant of power to buy uniforms. I do so because it is a “necessary and proper” part of raising an army.

If Congress passed a law saying that all 5 year old males needed to be in bed by 9pm, under the guise that such a thing was positive for their future health so that they could make good soldiers, one would laugh at such a reach, although it does make rational sense.

And try as I might, I can’t reconcile the differences in Wickard and Raich, versus those in Lopez and Morrison. It seems as if the latter two would have just as much of an effect on interstate commerce as the former.

You lose.

I don’t disagree with your statement that whoever starts making guns in Montana without a Federal license probably won’t win their case.

However, I think that they should win. I personally think that the Court was wrong on the medical marijuana case (and Justice Thomas in his dissent was right). The CC has been used to justify far too much Federal activity in what should be state level decision making.

Really? We are to bow at the altar of the almighty Court and not hold any other opinion?

We could cut down the Great Debates section of this board considerably.

I don’t disagree with you at all here. I think the application of the CC to so much is too much. I might feel differently if the Feds were limited to regulating actual commerce, but to allow them to regulate anything that might possibly affect interstate commerce, eventually, maybe, someday, in some way… That’s ludicrous. Everything I do all day long might have some effect on interstate commerce.

I mean, under the guise of the powers in the CC, Congress could pass a law saying that each of us must spend money everyday, since if we don’t, that would affect the volume of interstate commerce, thus my not spending money endangers the continued valuation of enterprises all over the country blah blah blah, etc.

No; but it is meaningless to discuss constitutional law and ignore the opinions of the SCOTUS.

Right, but so many of these threads get into “Well, you are wrong because in the case of…blah, blah, the Supreme Court said…”

I am pretty well versed on Con Law. I know what the Supreme Court said. I disagree with that interpretation because of my previous arguments. Their opinions build off of each other and become a tangled web of nonsense that reflects nothing of what the founders intended, the text of the document says, or the spirit intended thereof.

Any argument that uses a Supreme Court cite justifies itself by relying on an earlier case. And that earlier case usually relies on an even earlier case than that. It’s like the party game where you tell the person next to you a sentence and they pass it around the room and it comes back to you garbled. That’s what the Court has done with the commerce clause.

Let’s keep it simple though. How does the power to “regulate commerce…among the several states” lead one to think that that entity has the power to regulate something that is:

  1. Not commerce
  2. And not among the states (e.g. occurs in one state only)

?

But … but…

sigh

Wow.

True, but OTOH, the supreme court are also a group of fairly experienced legal scholars. Without meaning to demean your knowledge of constitutional law, I would safely contend that the average supreme court justice has more.

Now, I totally agree with the implicit point you’re making–that this is a debate about what the law should be, not a GQ about what the law is, and so there is no force to the argument that “SCOTUS says it, so there.” On the other hand, people quite reasonably can and in many cases do find their decisions to be persuasive–especially on a question of constitutional interpretation where there is more than one reasonable result that can be supported by in text, purpose, history, precedent, and policy.

Except, of course, for rejecting most of those older cases in the 30s and 40s. So modern jurisprudence is based on older cases, but it’s not just a centuries-old line of case law, misinterpreting the commerce clause.

Of course, in practice, this argument must be made in the context of some kind of activity. Do you want to offer a hypothetical? I’ll use X for simplicity.

I see two possible counters to this argument to argue that X is, in fact, not within the commerce clause power:

(1) that, properly understood, X is “commerce” “among the states.”

Each of my and your arguments necessarily turn on how we define ‘commerce’ and “among the states.” It is entirely possible to view these concepts broadly–as the current supreme court does. It is also entirely possible to view these concepts broadly while accepting your textual interpretation of the commerce clause–the text just plain doesn’t define “commerce” or “among.”

Now, to most people, these may seem obvious–but, of course, from your knowledge of Con Law, you will understand that there can be reasonable disputes on how to interpret them.

For example, on “among” the states, http://en.wikipedia.org/wiki/Gibbons_v._Ogden is a nice example of how there is more than one reasonable interpretation of “among.”

Even if you think there is a unitary commonsense definition, there is certainly plenty of room for dispute about how to use that definition to create a functional rule of decision.

(2) Similarly, I would think it quite reasonable to argue that Congress can regulate X, even if not commerce and not among the states, if such regulation is necessary and proper to the regulation of something that is unquestionably interstate commerce.

I find the textual source for that authority in the “Necessary and Proper” clause. I contend that that is exactly what it was created to do. This authority is, I feel, an important source of the current SCOTUS understanding of the commerce clause.

Now, I see your opposition as stemming from a belief that the commerce clause shouldn’t be unlimited. I actually agree that it shouldn’t be unlimited–but the current SCOTUS interpretation, after Lopez and morrison is not unlimited–it is simply very broad.

I actually agree with Lopez and Morrison–that there are some things that are beyond the commerce power, for example a broad statute making violence against women a federal crime. So I don’t think the CC is unlimited.

Converesely, I see no reason why it shouldn’t be interpreted as a relatively broad grant of power–especialy in the modern era where transportation is quicker, economies are more integrated, and more things are properly understood as “interstate” or “commerce” than might be the case in the 18th Century. While you quote Jefferson, I’d point to Alexander Hamilton (who wrote about half of the federalist papers) to support the contention that the commerce clause was intended (by at least some of the framers) to be a relatively broad grant of authority.

For starters, it’s important to understand that the Supreme Court isn’t removed from politics. The Supreme Court originally struck down many, many laws based on the simple concept that the law wasn’t constitutional because Congress didn’t have the power to pass it. Then came a pretty powerful President you may have heard of who threatened a court-packing scheme and all of a sudden the court fell in line, and new precedents were established. So the modern interpretation of the commerce clause is based purely on a tainted precedent, not on actual interpretation of the text or its original meaning.

But we are where we are. On to the OP’s questions:

Second, in my mind, I see the Constitution as a grant of limited, enumerated powers to the National Government with the rest and residue held by the states. Agreed or no?

Agree 100%

Since we are concerned with internal laws, not related to Indian tribes we can reduce this to “To regulate commerce…among the several States” Agreed?

Yep. The original purpose was to prevent states from imposing trade barriers between each other. Only Congress can do that. It was never intended as a writ of absolute power to control commerce in the United States.

Number 4: Would you agree that a power such this means that a law may touch on something which is not commerce, and is not among the several states? For example, is a law telling a man how much wheat he may grow on his property, or whether or not he may grow marijuana a “regulation of commerce among the several states”?

I would definitely agree that such a law is unconstitutional. However, current jurisprudence on the issue says that Congress may regulate all that which directly affects interstate commerce. But even under current jurisprudence, that power is not absolute, although we’ll need to see several more decisions before we find the true limits of that power.

5: Agree or no, that if you take the current interpretation of the Supreme Court as to the power of Congress under the commerce clause, that it turns the 10th amendment on its head. It basically grants an all-encompassing view of power that has no real restriction, in violation of point #2?

Yep. Until SCOTUS places some very real, firm limits on the commerce power, their interpretation violates the 10th amendment. Their only legalistic “out” is the constant reassurance that there are actually things Congress may not do, they just haven’t run up against them yet.

The good news is that SCOTUS has reserved the right to rein in Congress’ commerce power. Lopez was just the beginning. EVentually we will see very real brakes put on the power.

6: If your answer to #5 is no, then please give me a hypothetical of a law which would be beyond the power of Congress to enact.

A law forcing everyone to grow marijuana.:slight_smile:

Actually, that’s not a joke, and it’s related to the individual mandate. If Congress can force you to buy health insurance, what in the Constitution would prevent Congress from making you grow marijuana? Or buy a car from GM? Or buy a certain company’s stock? Or donate to the campaign of your local incumbent?

Since this grew out of the individual mandate thread, I think that these are legitimate questions. If SCOTUS allows the individual mandate, that would be a HUGE expansion of Congress’ commerce power. The people would literally no longer have any control over their family budgets. Congress would have the authorization to tell you what you have to purchase.

Reject. The tenth amendment is defined by the rest of the constitution, not the other way.

You’re sort of right, but the problem is that the existence of the 10th amendment is pointless if Congress can do all that but which is prohibited to it by the Bill of Rights. Since states also cannot violate the Bill of Rights, that interpretation means the states have no power at all except that which Congress generously allows them to have.

There’s just no way that interpretation holds water.

**Congress can basically enact any law they want. Whether or not it will stand up in court is the litmus test.
**

That’s true in practice, but it’s also true in practice that SCOTUS can approve mandatory abortion of African-American female fetuses.

All three branches’ elected officials take an oath to defend the Constitution. That means that interpreting the Constitution is not the sole province of the courts. The courts give Congress and the executive great deference precisely because the courts expect them to show restraint and because the branches are supposed to be co-equal. The President is duty-bound to veto laws he believes are unconstitutional. Congressmen are duty-bound to vote against laws they believe to be unconstitutional. Any time a politician approves a law knowing that he believes it to be unconstutional, that should be an impeachable offense. There is no greater crime a politician can commit than to violate their oath of office.

Actually, my interpretation is correct. The interpretation you are arguing against, that “the tenth amendment is defined by the bill of rights,” is (1) absurd, (2) not supported by the text of the constitution, and (3) not what I said.

As you quote, I said

Rest of the Constitution does not equal bill of rights. Especially as the tenth is talking about powers, not rights. You’ll find most of those powers in Articles 1-3, with a few outliers (e.g. XIV section 5).

And, for those in this thread who are textualists, I will point out that that is what the thing says. It reserves to the states or the people those powers not allocated to the federal government.

So how, by a straightforward textual reading of the tenth amendment, do we figure out what powers are reserved to the states/people?

We look at the rest of the constitution to determine what powers are granted to the federal government. The bill of rights is a set of restrictions on those powers which (for the most part) also limit the states after the Fourteenth Amendment.

To repeat simply: the plain text of the tenth amendment says that the powers it reserves to the states are defined by the rest of the constitution. The powers reserved are those not granted to the federal government. To determine which powers are reserved to the federal government, you look to the rest of the constitution.

Seriously–if you want to take the (IMHO, silly) approach of a strict textualist interpretation of the constitution, go right ahead. But if you do, the text of the tenth is clear (it’s so clear, I would argue there’s little room to interpret it even if you aren’t a textualist). Where do you get the idea it does more than its plain language suggests?

You’re absolutely right about this:

the plain text of the tenth amendment says that the powers it reserves to the states are defined by the rest of the constitution. The powers reserved are those not granted to the federal government. To determine which powers are reserved to the federal government, you look to the rest of the constitution.

But where modern jurisprudence fails is that it defines the powers of Congress so broadly that there is nothing left to the states except what Congress lets them have.

Again, are the powers of Congress, in practice, limited only by the Bill of Rights? And if not, can any real limits be named, even hypothetical? The Lopez and Morrison decisions were pretty minor restrictions. Now a striking down of the individual mandate, that would be pretty major and be the first real limit imposed. And if that limit isn’t imposed, Congress becomes nearly all-powerful.

Congress already controls the purse strings of the federal government. To a large extent, Congress also now controls the purse strings of the states. Not just what they give states in grants, but also in what they require states to spend money on. If Congress also controls what families must spend their money on, what liberty do we have left other than what Congress allows us to have out of the goodness of their hearts?

Not at all, unless this fact is considered in the drafting of a Constitutional amendment that is ultimately ratified.