What About Tom Coburn's 'Expansive View of the Commerce Clause'?

Sen. Tom Coburn (R-Okla.), who on Tuesday pressed Supreme Court nominee Elena Kagan to acknowledge limits to congressional power under the Commerce Clause, yesterday told ABC News:

I think the thing that's very worrisome is that she has a very expansive view of the Commerce Clause, and I find that she's ignorant of the Constitution's limitation of that, especially what our Founders wrote.

Coburn is probably right to surmise that Kagan "has a very expansive view of the Commerce Clause" (as does the justice she is replacing and as any nominee chosen by Barack Obama was apt to), and I agree that it's worrisome. But it's unfair to describe her as "ignorant" of the Framers' intent or the original understanding of the clause. More likely, she does not think those considerations should be decisive in determining the federal government's powers.

In any case, Coburn himself "has a very expansive view of the Commerce Clause" when it serves his purposes. Another subject on which he grilled Kagan was "partial birth abortion," which he successfully sought to prohibit throughout the country. In 2007, after the Supreme Court upheld the federal Partial-Birth Abortion Ban Act, Coburn welcomed the decision and bragged that he was "one of the original authors" of the bill. Guess which enumerated power Congress supposedly was exercising when it passed Coburn's law.

The ban applies to "any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion." As Independence Institute scholar David Kopel and University of Tennessee law professor Glenn Reynolds noted in a 1997 Connecticut Law Review article, this language is baffling "to any person not familiar with the Commerce Clause sophistries of twentieth century jurisprudence....Unless a physician is operating a mobile abortion clinic on the Metroliner, it is not really possible to perform an abortion 'in or affecting interstate or foreign commerce.'" These are precisely the sophistries that Coburn, one of the few members of Congress who even pays lip service to the doctrine of enumerated powers, claims to oppose. Just as the Supreme Court should not have abused the Constitution to override state abortion restrictions in Roe v. Wade, avowed constitutionalists like Coburn should not abuse the Constitution to impose federal abortion restrictions.

More on the unfulfilled promise of constitutional conservatism here. In a 2007 Reason article, Dave Weigel asked whether Coburn is "an extreme social conservative, a libertarian hero, or both."

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  • ||

    Unless a physician is operating a mobile abortion clinic on the Metroliner, it is not really possible to perform an abortion 'in or affecting interstate or foreign commerce.

    You haven't demonstrated that Coburn disagrees. As far as I know, Coburn believes that the scope of Congress's power under the Commerce Clause is (or should be) quite limited, but that he wants Congress to regulate those few abortions that fall within that scope.

  • ||

    Caption:

    Yes, I pried it from Robert Byrd's cold, dead hands.

  • Cap'n NoStar||

    Jacob, Jacob, Jacob.
    Didn't you get the memo that Weigel is persona non grata, unless it is to rag on him?

  • ||

    But it's unfair to describe her as "ignorant" of the Framers' intent or the original understanding of the clause. More likely, she does not think those considerations should be decisive in determining the federal government's powers.

    Why can't it be both? I think she is, in fact, ignorant of the Framer's intent and the original understanding of the Commerce Clause because she believes such things are irrelevant.

    Kagan is not, repeat, not, a Constitutional scholar. She is an administrator who, more recently, was hired as an advocate for expansion of state power. She has never needed to understand, much less agree with, the original intent of the Constitution to advance her career, and so you can rest assured that she does not.

  • Gilbert Martin||

    And she has never been a judge either.

    That is one of the main reason Obama chose her because she has no track record of adjudicated cases to provide evidence of the nature of her judging.

  • The Gobbler||

    Present.

  • Fist of Etiquette||

    "Ignorant" in that she's ignoring the limitation. Coburn is bringing the word back to its root.

  • Joshua||

    whereas you want to bring it back to its WOOT! ?

  • ||

    Now if you want to accuse Coburn of hypocrisy (or at least of confusion), you might mention how, when he was in the House of Representatives, he co-sponsored the Parental Rights and Responsibilities Act of 1995, a bill introduced by his fellow Oklahoma Republican, Steve Largent. This bill would have provided that no state or federal government official or agency could "interfere with or usurp the right of a parent to direct the upbringing of the child of the parent." The bill defined this right as including the right to make health care decisions for the child, as long as those decisions didn't result in danger of death or serious physical injury to the child. At the same time, Coburn was sponsor of the Coburn/Ackerman Newborn HIV Testing Amendment, which would have mandated that all parents have their newborn children tested for HIV, regardless of whether that test was necessary to prevent death or serious physical injury to those children. I wrote to then-Rep. Coburn pointing out the inconsistency, but I never got a reply. (However, a friend of mine who worked on the Hill told me later that she had talked with the Coburn staffer who was handling these matters and that the staffer admitted to her that I was right, and that his boss's positions couldn't really be reconciled.)

  • ||

    On the first one, can't you argue that the Congress has the power to prevent states from violating their citizens' rights?

    The second one, however, is just crap and indefensible.

  • ||

    The bill defined this right as including the right to make health care decisions for the child, as long as those decisions didn't result in danger of death or serious physical injury to the child.

    IOW, he would have prohibited parents from deciding that their comatose, brain-damaged child, who had no hope of recovery, but who nonetheless exhibited pain responses when given care by hospital staff, had to be kept "alive" and tortured for as long as possible.

  • ||

    I think the partial birth abortion language is a cheap shot. Colburn as far as I know believes that life begins at conception. Ideally the ban in his view should have been enacted under the general welfare clause and done to ensure the states didn't violate the 14th Amendment by depriving unborn children of their lives. But no court would ever buy that. The only way a court would ever uphold such a law was via the commerce clause. So that is what was used. I don't really see how that is hypocritical.

  • LibertyMark||

    I think it is hypocritical. It's the ends justify the means. If you think using the CC in this way is wrong, and would like the original meaning restored, then you lose all credibility by doing the very thing you think is wrong.

    BTW, the only way I can see the Federal government having a Constitutional justification to overrule the states on abortion is via the equal protection clause of the 14th. If you start from the proposition that the embryo/fetus is a person, and the state in question has a law against murder, then clearly the fetus is not being equally protected by the law against murder.

    I prefer the Feds staying out of it completely.

  • ||

    Exactly. And I am quite sure that is how Colburn would have done it. But to do it that way would guarantee that the law would be struck down. So the only way to do it and have an effect was to use the law in a way allowed by the courts.

    That is only hypocritical if you think anything short of falling on your sworn in useless but symbolic gestures is hypocritical.

  • LibertyMark||

    If you think a cause is permanently and hopelessly lost, then why even bring it up? That means his defending the original meaning of the CC is simply pandering.

    I have to admit that I like it when he strokes me like that, but then I get pissed when I realize that he's just using me.

  • bubba||

    I'm pretty sure that Coburn would prefer that the Feds keep their noses out of abortion so that Oklahoma could ban it.

  • LibertyMark||

    Well, that's Federalism for ya.

  • Michael Ejercito||

    BTW, the only way I can see the Federal government having a Constitutional justification to overrule the states on abortion is via the equal protection clause of the 14th. If you start from the proposition that the embryo/fetus is a person, and the state in question has a law against murder, then clearly the fetus is not being equally protected by the law against murder.


    See the Civil Rights Cases .

    The 14th Amendment does not give Congress power to regulate private acts, and abortion is a private act.

  • Joshua||

    You missed the starting proposition. If the embryo is a person, then abortion is an act between two people, one of them unable to give consent to anything, much less murder.

    Granted, I don't agree with the starting proposition, but you can't just ignore it.

  • ||

    The what clause? General welfare??? An interpretation of the general welfare clause in such a manner that grants plenary power to take actions that would appear to stem from a non-existent federal police power is precisely the sort of expansive interpretation of the constitution that is problematic.

    It matters not whether the federal abortion bill was promulgated under the commerce clause or the general welfare clause, either requires an expansiver interpretation of the limits of federal power that is inconsistent with the concept of a government of limited, delegated powers. In short, it's very hypocritical to attack her view of the commerce clause and then use an expansive view of the commerce clause where it suits his purposes.

    Analysis of whether the federal government has the power to do a thing should not focus one iota on whether that thing is good or bad. From a constitutional perspective, good or bad is irrelevant. All that matters is what the government has the power to do.

  • ||

    Don't forget about the good and proper clause!

  • LibertyMark||

    The Commerce and General Welfare Clauses: the evil twins of the Constitution.

    Well, there's another set of evil twins: The Supremacy and Necessary and Proper clauses.

    Politicians' favorite tools.

  • ||

    No it doesn't. Not if you believe that life begins at conception. If life begins at conception, then the feds most certainly have an interest in ensuring that the states to do not allow the murder of their citizens. If the State of Oklahoma passed a law giving parents the right to kill any child under 10 and the courts refused to act, you don't think the Congress would have the power to act? Of course they would

    You are buying into the fallacy that the courts are the only method of enforcing rights. They are not. The right to not be deprived of your life without due process of law is a federal right guaranteed by the federal constitution and the Congress has just as much authority to see that the states respect that right as the Courts do.

  • LibertyMark||

    None of that has anything to do with the General Welfare clause.

  • ||

    I misspoke. Necessary and Proper Clause.

    "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

    "and all other powers vested by this Constitution" I would say that gives them the power to ensure that states respect federally guaranteed rights.

  • Michael Ejercito||

    If the State of Oklahoma passed a law giving parents the right to kill any child under 10 and the courts refused to act, you don't think the Congress would have the power to act?


    What constitutional provision would give them the power to act?

    The 14th Amendment constrains state behavior, not private behavior.

  • ||

    "What constitutional provision would give them the power to act?"

    The act of arbitrarily refusing to protect some citizens from murder but not others is a state act. It is not that the act of me killing you violates the 14th Amendment. It is the state's refusal to prosecute me for doing it, while prosecuting others for the same act, is.

  • Michael Ejercito||

    The act of arbitrarily refusing to protect some citizens from murder but not others is a state act. It is not that the act of me killing you violates the 14th Amendment. It is the state's refusal to prosecute me for doing it, while prosecuting others for the same act, is.


    Do you have Supreme Court precedent backing you up?

  • Joshua||

    so you're arguing that it would be OK for Oklahoma to legalize murder?

    Surely I'm misunderstanding something?

  • Ben P.||

    "Murder" being a crime under state law for the most part, it is in fact a state power to decide that some some deaths -- some *takings* of human life and inflictions of death -- are not in fact 'murder' in any legal sense.

    This is why some states can declare that it is not murder if, for instance, I shoot and kill you while you are attempting to break into my house. Another state, however, might disagree and term that murder.

    One state might decide it is an offense of homicide, in one degree or another, if I slide you down that fifteenth shot of tequila and you die. One might not.

    The state decides this, yes. The Feds don't.

    So ... can Oklahoma legalize murder? No. Because the second it legalizes it, it ain't murder. But it can legalize the taking of a life so that it ain't murder. QED.

  • muddle||

    In which case it is also perfectly acceptable to use it to dictate what the proles can eat and smoke and grow.

    If it is only a tool to get what you want, you can't bitch when others use it that way, too.

  • ¢||

    So Coburn possibly (we don't know what he himself wrote) explicitly tied the scope of a law to the judiciary's interpretation of the commerce clause, and he argued for a narrow judicial interpretation of the commerce clause, but because the judiciary's interpretation of the commerce clause isn't as narrow as Coburn argues it should be, he's a ratfucker?

  • ||

    Unless a physician is operating a mobile abortion clinic on the Metroliner, it is not really possible to perform an abortion 'in or affecting interstate or foreign commerce.'"

    Uh, the doctor had to use a road to get to the clinic. Roads are connected to interstate highways. Interstate highways go to airports which service foreign destinations. Also, Kevin Bacon.

  • ||

    All in less than six degrees.

  • Homer Simpson||

    Mmmmmm... Bacon...

  • The Gobbler||

    If you abort a baby, it impacts the census, the apportioning of congressional representatives and the redrawing of congressional districts. Every time a woman aborts in my district, somewhere another district realizes a benefit.

  • ||

    You have a very dark mind indeed.

  • The Gobbler||

    You have no idea...

  • ||

    I never realized that abortion and gerrymandering could be linked in just one step.

    Nice play, Mr. Gobbler.

  • LibertyMark||

    The Commerce Clause does grant the Feds a power: to make commerce "regular" among the several states. That is, the power to force the states into a nation-wide free trading block with no internal tariffs or obstacles to movement of goods.

    This setup has produced massive wealth.

    Now, we have a marauding demon inhabiting the dead and grotesque body of the Commerce Clause.

    Politicians of both teams regularly call forth the demon to do their bidding.

  • ||

    It would be nice if they would ever reanimate the dormant commerce clause and keep states from doing shit like requiring people to buy a care from a car dealer or buy a house via a real estate agent.

  • Cliché Bandit||

    Are there really states that require real estate agents be involved in all sales? Are you fucking kidding me?

    Nope, rage part still works, just a little rusty

  • WTF||

    I don't know that there is any state that requires all sales of real estate to go through a licensed real estate broker - I doubt it; I think one could make a pretty good argument that such legislation would be unconstitutional. But I do know that most states require anyone acting as an agent for a seller or buyer of real estate to be licensed as such.

    I have bought and sold houses without involvement of a real estate agent. Once you've done it a couple times, you know what the issues are.

  • LibertyMark||

    Ah, the licensing smokescreen.

    The purpose is almost always to protect politically-connected groups from competition.

    The interstate shipping of wine is in this category, since liquor wholesalers are protected by the states. There have been CC-related cases about this, but the outcome is murky to me.

  • ||

    Here in GA there was (and may still be) a law prohibiting the purchase of a coffin from anyone but a licensed undertaker. Guess who charged the most for their coffins (as opposed to wholesalers), and guess who was disporportionately represented in the state legislature?

  • SIV||

    In the GA General Assembly rent-seekers cut out the middleman.

  • Hank Buster||

    We can probably agree that Congress­®, as an institution, is so far removed, philosophically, from the principles of the Founders as to render its hodgepodge of conflicting and contradictory verbal spewings wholly unpalatable to Libertarian™ concerns. Our commentary, which validates our discontent in so many snarky and ineffectual ways, does little to further Libertarian™ causes. Am I right? Discuss.

  • ||

    Drink!

  • Hank Buster||

    Think!

  • ||

    Stink!

  • ||

    Klink!

  • Hank Buster||

    Hogaaaaan!

  • ||

    I know nothing--NOTHING!

  • General Burkhalter||

    You got pretty lips, boy.

  • Cliché Bandit||

    Blink!

  • Cliché Bandit||

    DAMN THREADED COMMETNS!!!

  • Hank Buster||

    To the cooler, Bandit!

  • ||

    The enumerated powers horse left the barn long ago.

    In his glorious dissent in GONZALES V. RAICH, Justice Thomas wrote

    If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything -- and the Federal Government is no longer one of limited and enumerated powers.

    As we have seen, Congress can and the Federal Government no longer is.

  • LibertyMark||

    This is why I am warming up to nullification. Maybe the last peaceful option before the whole thing has to torn down?

  • WTF||

    Unless a physician is operating a mobile abortion clinic on the Metroliner, it is not really possible to perform an abortion 'in or affecting interstate or foreign commerce.'

    Conductor: "Tickets, please."

    Doctor: "Speculum!"

    Passenger: "Oh, excuse me, I thought this was a no abortion car."

    Conductor: "Next one up, ma'am."

  • ||

    In a 2007 Reason article, Dave Weigel asked whether Coburn is "an extreme social conservative, a libertarian hero, or both a rat****er."

  • ||

    If someone hadn't beat me to it, I was thinking of adopting the handle "Rat****er".

  • Mo||

    Unless a physician is operating a mobile abortion clinic on the Metroliner, it is not really possible to perform an abortion 'in or affecting interstate or foreign commerce.'"

    Oh, is that so. You assume that all the medical supplies, from the latex gloves to the paper robes that show your ass, were manufactured and packed from in state sources. Not to mention shipped in a way that only used vehicles manufactured in state and fueled by gas drilled and refined in state. Otherwise, somewhere in the supply chain, something crossed state lines.

  • ||

    I know you're trying to parody the proponents of the expansive reading of the Commerce Clause, but in fact the Supremes used pretty much exactly this reasoning to get to the result in Daniel v. Paul, 395 U.S. 298 (1969). (Since that was a case about the reach of the public accommodations title of the Civil Rights Act of 1964, I'll just sit back and await the comments arguing that it's racist to limit the definition of "interstate commerce" to, you know, commerce between the states.)

  • WTF||

    somewhere in the supply chain, something crossed state lines.

    Which means that Congress likely has the power to regulate those items, as they are directly in interstate commerce. But the power to regulate any person who might USE one of those items, once the item has come to rest in a particular state? SCOTUS used to reject that very idea - before FDR's New Deal era, that is.

    At some point, the connection to "interstate commerce" has to become so tenuous and remote as to no longer legitimately fall within Congress's power - a power which plainly was meant to be circumscribed and limited.

  • ||

    From Coburn's perspective (social conservative on some issues, libertarian on some), the Partial Birth Abortion Ban Act was a win. By its terms (in the first sentence), the PBABA was limited to:

    Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion

    Therefore, if the courts found that the doctor was in or affecting interstate commerce, the bill limited partial birth abortions. If the courts found that they didn't, then Coburn got some precedent limited other uses of state power. IMHO, it was actually fairly elegant.

  • ||

    That is a really good point.

  • ||

    Not really, no.

    In the context of the courts determining anything and everything to be interstate commerce, which they do, it's an empty, meaningless gesture that Coburn added either to make himself feel better, or to fool people into believing he actually respects the limits of the Constitution.

  • ||

    If that is how the court interprets the law already, then what difference does this law make? If you don't agree with the 75 MPH speed limit and think it should be 55, but the state doesn't agree, are you then a hypocrite for following the law and driving 75? I don't think so. That is a pretty broad view of hypocrisy.

    If he had done something that required the court to expand the clause even more than it already was, I would agree with you. But that is not what happened here.

  • muddle||

    Thus, similarly, when unreconstructed do-gooders also use the CC to make you eat your granola at gunpoint, they're just using the tools at hand to pursue what they see as right.

    The tool is there, is what you're saying. If Coburn can use it to sniff panties, UWS school marms can use it to fix your diet.

  • Ben P.||

    No, but you *are* a hypocrite if you don't agree with the 75MPH speed limit and think it should be 55MPH on every stretch of road except the one that goes where you want to go.

  • West Texas Boy||

    What, no reason mention of her explicit disownership of the Declaration of Independence today?

    Or, by extension, her implicit rejection of the entire 9th Amendment?

    Sen. Coburn asked, ""Do you personally believe there is a fundamental right in this area? Do you agree with Blackstone? He said that [the right to self-defense through gun ownership] was a natural right."

    Kagan responded, "To be honest with you, I don't have a view of what are natural rights independent of the Constitution."

    "So," Coburn asked, "you wouldn't embrace what the Declaration says, that we have certain God-given rights" and that among these are the right to life, liberty, and the pursuit of happiness?"

    Kagan answered, "I believe that the Constitution is an extraordinary document, and I am not saying that I do not believe there are not rights preexisting the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws."

    Coburn continued to press her, and she was insistent: "[Regarding] the question of what I believe as to what people's rights are outside the Constitution and the laws, that [as a judge] you should not want me to act outside the basis" of the Constitution and the laws. I think you should ask me to act on the basis of law, which is the Constitution and the statutes of the United States."

    So much fail in all of that. Whooey.

  • West Texas Boy||

    If only Coburn had brought up the 9th.

  • ||

    Or the debates surrounding the adoption of the Bill of Rights where people objected to it out of the fear that someday someone would take just the position that people only have those rights guaranteed in it and no more.

  • T||

    Prescient, weren't they?

  • WTF||

    Gotta wonder how much worse it would have been - or much more quickly we would have gotten to where we are today - if they had not had that debate or had not included the BoR.

    (shudder)

    I figure, at least that created *some* kind of backstop or brake, to slow or impede the rush toward overarching federal government control. But it seems the brakes have faded and the impediment has fallen, for the most part.

  • Mo||

    What, no reason mention of her explicit disownership of the Declaration of Independence today?

    Not to defend her, but the DoI isn't a governing document. However, disowning the 9th is a bunch of bull. At least she didn't explicitly say that it's an ink blot or something.

  • West Texas Boy||

    Not to defend her, but the DoI isn't a governing document.

    Correct and I agree, but the question was about "natural law" and "natural rights" and the DoI explicitly lists quite a few of those, which dovetails nicely with the 9th.

    Clearly, her "I will adhere to the Constitution" BS is intended to sound like a reasonable pseudo-textualist to people who aren't paying attention... hence I wish Coburn had had the wherewithal to veer into the 9th and not mention the DoI exclusively. That was very clearly a lost chance at a GOTCHA.

    (with the disclaimer that I cannot bring myself to watch any of this and am relying on the news... maybe it did come up at some point and I missed it...)

  • West Texas Boy||

    Oh yeah - missed the Bork reference the first time.

  • Liberal Douche||

    There must be no limits to government power... uh, when OUR party is in the majority, that is. Otherwise, slap on the cuffs AND ankle shackles.

  • Random Dude||

    Sadly, I can't respect Coburn anymore given that he voted for TARP.

    His whole career of being a PITA on spending bills was obliterated by that one vote.

  • Christian Louboutin||

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  • bags||

    Ah, the licensing smokescreen.

    The purpose is almost always to protect politically-connected groups from competition.

  • Milama||

    really important thing

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