Is Anything Not Interstate Commerce?

Will a Supreme Court led by John Roberts find limits to Congress' power?


William Rehnquist's most important accomplishment on the Supreme Court was to restore a modicum of respect for constitutional limits on federal authority—not the limits imposed by specified individual rights but the more fundamental and potentially more consequential limits imposed by insisting that congressional acts be grounded in specifically enumerated constitutional powers. Rehnquist's signal contribution was to remind Congress, his colleagues, and the nation that a wide-ranging federal power to do good things does not exist.

"We start with first principles," the chief justice wrote in the 1995 decision U.S. v. Lopez, which overturned the Gun-Free School Zones Act of 1990. "The Constitution creates a Federal Government of enumerated powers."

Those were thrilling words for critics of an ever-expanding federal government who had grown accustomed to a Congress that felt free to legislate on virtually any subject, citing its power to regulate interstate commerce as an all-purpose justification. It seemed the Supreme Court had rediscovered the principle that congressional legislation has to be authorized by the Constitution.

Judge John G. Roberts, the man whom President Bush has chosen to take Rehnquist's place as chief justice, has indicated sympathy for that idea—a fact that alarms not only the Democrats but Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), who is expected to press Roberts on the issue during his confirmation hearings next week. Indeed, it is doubtful that a single member of Congress, with the exception of Rep. Ron Paul (R-Texas), truly wants a Supreme Court that is serious about enforcing the Constitution's limits on congressional power.

But defenders of Leviathan have little to worry about, even if Roberts turns out to be as interested in a revival of federalism as his mentor and predecessor. The Supreme Court has been hesitant to continue in the direction signaled by Lopez, and only one justice, Clarence Thomas, has shown the stomach for following it to its logical destination, where regulating interstate commerce actually means regulating interstate commerce.

In Lopez, the government said it meant prohibiting possession of a gun in or near a school, a claim five justices rejected. "If we were to accept the government's arguments," Rehnquist wrote in the majority opinion, "we are hard-pressed to posit any activity by an individual that Congress is without power to regulate."

Five years later, in U.S. v. Morrison, the same five-justice majority overturned a provision of the Violence Against Women Act that allowed victims of gender-motivated violence to sue their attackers in federal court. "The Constitution requires a distinction between what is truly national and what is truly local," Rehnquist wrote.

The weakness of the new federalist majority became clear this year in Gonzales v. Raich, a case in which Justices Antonin Scalia and Anthony Kennedy switched sides to uphold the federal government's authority to arrest patients who grow marijuana for their own medical use, even in states where such use is legal. Rehnquist, to his credit, continued to insist upon "a distinction between what is truly national and what is truly local," as did Thomas and Sandra Day O'Connor.

Given the outcome of that case, the prospects for a newly constrained federal government are not bright. But if Roberts is as supportive of that goal as Arlen Specter fears and if O'Connor's yet-to-be-named successor is similarly inclined, there is some hope of luring Scalia and Kennedy back to a majority that tries to prevent the Commerce Clause from swallowing the rest of the Constitution. The next major test will be a case the Court is scheduled to hear this fall involving the Justice Department's attempt to override Oregon's assisted suicide law.

It is plain from the Bush administration's position in that case, in Raich, and in controversies ranging from the treatment of fetuses to the treatment of adults in persistent vegetative states, that the president has little interest in preserving federalism, despite his promise to appoint justices who apply the Constitution as written instead of rewriting it to suit their policy preferences. A president who thinks the federal government should oversee every school system in the country and pay for every senior citizen's prescription drugs is clearly not eager to pursue the Framers' vision of a political system in which such matters "are reserved to the States respectively, or to the people," as the nearly forgotten 10th Amendment says.

But given Bush's apparent preference for nominees who can be readily confirmed because there is little solid evidence of their views, perhaps he will accidentally deliver on his promise.

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4 responses to “Is Anything Not Interstate Commerce?

  1. Everything may seem to be interstate commerce but it certainly doesn’t mean that it falls under the commerce clause.
    Under the 9th Amendment states have the right to interstate commerce without undue interference.Besides this,the states have a naturally inherent right to commerce and it is absolutely necessary for the well being and common good of the state.This is simple natural law.
    Under the 10th Amendment Congress is not empowered to interfere with interstate trade.Actually they are prohibited.
    As far as “regulate” trade among the states Congress is only to oversee[a referee so to speak] that there are no irregularities.Congress can so choose to name these irregularities if it wishes.These would be just laws for an unjust law is no law at all.
    Each single state is capable of regulating trade between itself and every other state;and trade “among” the other states as well.No single state has the power to regulate trade among all the other states as a whole. Only an impartial power that is centralized can do this and this is Congress.But its role is very limited.
    Does or can Congress participate in interstate commerce since it isn’t a state?The answer I believe is that it acts like a state but obviously is not one.It is a bastard in that it does participate in interstate commerce all the time while screwing it up.
    The states just simply need to assert their right and when right ignore the courts and congress.
    The states are free and sovereign and have their own necessary and proper clause and know best what is in the best interests and how to achieve the common good and general welfare of the state.The states have an obligation to ignore any law not made in pursuance of the Constitution.And not to do so is a criminal act.The federal government has usurped states rights gradually over the last 90-100 years which is a criminal act because it deprives one of their liberty. unjustly.
    All men naturally desire the good[real or apparent],peace,happiness and these can only be aquired if one is free.
    The reason the states get along is they all desire the same things but may vary in how they obtain these necessities.It only needs to be done justly.
    The following principle is critical.

    One of the key principles of Catholic social thought is known as the principle of subsidiarity. This tenet holds that nothing should be done by a larger and more complex organization which can be done as well by a smaller and simpler organization. In other words, any activity which can be performed by a more decentralized entity should be. This principle is a bulwark of limited government and personal freedom. It conflicts with the passion for centralization and bureaucracy characteristic of the Welfare State.
    In the Gonzales case I would have taken Raich out of the custody of the federal agents.The notion that federal law trumps state law is a perennial figment and untrue.[see New Views of the Constitution–by John Taylor of Caroline]To try this case under the commerce clause is assinine and insane meaning doing something so stupid as to harm oneself and in this case appearing unreasonable.
    The application of the commerce clause in this instance and to give it this meaning is an encroachment on states rights and is unconstitutional and to be ignored.
    Are they trying to put the assisted suicide law under the commerce clause?If they are then they are morons and unfit.
    The commerce clause has very little bite and is a weak power.It has been abused and applied by either stupid or knowingly malignant justices for an ultimately malevolent purpose.
    To summarize:the regulation of trade among the states merely means that there will be no irregularities in interstate trading and Congress is not to “INTERFER” nor “DICTATE” to the states as to how they will conduct their business.

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