Regulation

"Liberals have every bit as much reason as conservatives to worry about the expansive interpretation of the commerce clause"

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The Pacific Legal Foundation's Tim Sandefur offers a nice reminder that libertarians and conservatives aren't the only ones who have good reason to worry about the Supreme Court's ridiculously broad interpretation of congressional power under the Commerce Clause:

Again, this can't be emphasized enough: liberals have every bit as much reason as conservatives to worry about the expansive interpretation of the commerce clause. For example, it was by exploiting that interpretation that conservatives adopted nationwide restrictions on certain types of abortion that liberals believe should be protected from government interference. The Constitution is intended to shield us from the government, and if we lower that shield because "our guy" is in the White House, you'll be left without protection when "their guy" gets the White House the next time around. As James Madison said in The Federalist, "Enlightened statesmen will not always be at the helm. Nor, in many cases, can [the public interest be pursued] without taking into view indirect and remote considerations which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole."

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67 responses to “"Liberals have every bit as much reason as conservatives to worry about the expansive interpretation of the commerce clause"

  1. I think we know by now that enlightened statesmen will rarely, if ever, be at the helm.

  2. Me today, you tomorrow.

    1. The first thing that popped into my head. You have perminently altered my brain, RCD.

    2. Im in ur hed, makin you smart.

      1. True, dat.

  3. We should all know this by now. If you grant someone in authority certain powers, don’t be surprised if the next guy in office uses those powers in a way you don’t like. The best solution, IMO, is to not grant powers in the first place.

    I think people fail to learn this lesson because their shortsightedness and arrogance (go Team Red/Blue!) leads them to believe that once their team wins once, they’ll never lose.

    1. It’s also them thinking “now is our chance to pass/do X!”, and deciding that whatever they have to do to be able to get there is worth it, without any consideration of what it will mean when the other team does exactly the same thing.

      1. The worst part about this is that it is actually speeding up, rather than slowing, the growth of government, and the proliferation of bad laws. They know their time is limited, so they try to cram through as much shit as will fit until they are justifiably un-elected.

        1. Yup. The party in power becomes so unpopular so quickly now that they just try and get everything they can into their short window of power.

    2. But the ______ party will be in office for the next 20 years!!

      1. Of course, the ~ ______ party will only be a rump party, confined to the ______ part of the country.

        1. Always remember half the population have less than 100 IQ.

          1. Not true. Some of the population has exactly 100 IQ, so only 1/2 of the remaining population is less than 100.

            Technically correct is the best kind of correct.

          2. And without protection against the tyranny of the majority- that means the half with 100 or less has a pretty good chance to restrict the freedoms of those with 200 or more.

    3. That’s why I hope Mass passes it’s electoral college law. It’ll be great listening to the moans when all 12 of their electoral votes go to a Republican despite their state’s popular vote having gone to the Democrat.

    4. The response I usually get is “Well, that’s why I’m responsible enough to vote TEAM RED/TEAM BLUE! It’s the fault of TEAM BLUE/TEAM RED that powers are misused!”

  4. “conservatives adopted nationwide restrictions on certain types of abortion.”

    That will be overturned, because abortion is a fundamental God given rite protected by the constitution. It is the most important rite women have, without it women have no rites.

    1. Sarcasm meter non-responsive, but either way, the misspelling of right as rite is hilarious.

      1. No, rob, don’t you see that Jane was talking about Wiccans? Wiccans have rites too!

      2. It could be viewed a sacrificial rite for good health/absolution of personal responsibility.

    2. You mispelled “womyn”, Jane.

      Oh, and Take care of THIS.

      1. Sandwiches and blowjobs for everyone!

    3. Ritual abortions rock.

  5. We should all know this by now.

    We all do.

    But it’s almost like power itself is what some of us are for, regardless of what it does, or even whose it is.

    Almost!

  6. Liberals prefer the other route. Enact an all-powerful, all-controlling government and then do everything possible to shut out the “bad” people.

    1. On the bright side, once the right people have absolute power, keeping the wrong people out should be pretty easy, eight?

      1. On the bright side, once the right people have absolute power, keeping the wrong people out should be pretty easy, eight?

        Until the right people become the wrong people.

        1. Until the right people become the wrong people.

          But, but, that can’t happen!

  7. The Constitution is intended to shield us from the government, and if we lower that shield because “our guy” is in the White House, you’ll be left without protection when “their guy” gets the White House the next time around.

    I don’t get it.

  8. I call Bull***.Liberals want a want few restrictions on abortions under Roe.They have no intention of letting states decide for themselves.The commerce clause has nothing what so ever to do with it.Imagine the cuts in the federal government if it was used in it’s original intent.s

    1. —“Imagine the cuts in the federal government if it was used in it’s original intent”—

      I imagine it all of the time.

  9. Something tells me liberals are starting to think that maybe they are going to spend some time in the wilderness.

    1. No. The true believers think everything will be better when they purge the centrist Democrats!

      They really are that delusional.

      1. And reform the filibuster.

        1. Something tells me that your team will be touting the Senate’s cup-and-saucer qualities again soon enough…. which is the basically the point made, here, but in a different way.

          1. Pretty unlikely in the Senate. When a rule’s abused beyond recognition, it’s time to revisit it. I’d say the same thing if Democrats did it, but they wouldn’t as long as they don’t develop the inane political strategy of opposing everything just for the sake of opposing it.

        2. And reform the filibuster… until Democrats are in the minority again, and need it to jam up the works.

          That’ll be fifteen dollars, Tony. Cash. You’re responsible for the taxes on that, as well.

  10. It’s also them thinking “now is our chance to pass/do X!”, and deciding that whatever they have to do to be able to get there is worth it, without any consideration of what it will mean when the other team does exactly the same thing.

    But, as we have learned to our great chagrin, nothing the previous idiots did ever gets undone. So eventually, everybody wins!

    1. It’s idiots all the way down.

    2. My campaign in a nutshell, “I’ll only vote for undoing things!” Though I may consider voting in favor of bills that reduce in aggregate in a nod to being so far ahead of the political curve.

  11. This reminds me that political discourse these days seems to divide people based on ends; but looking at the means they’re willing to use to achieve those ends would be useful.

    A leftist that believes in rule of law and establishing a system that right-wingers and corrupt leaders will have difficulty undermining will have as much in common with a right-winger with a similar attitude as with a short-sighted left-winger.

    1. A leftist that believes in rule of law and establishing a system that right-wingers and corrupt leaders will have difficulty undermining will have as much in common with a right-winger with a similar attitude as with a short-sighted left-winger.

      I wish I knew where to find one.

    2. That’s why they’re called republicrats. Same system of government with small quibbles in management style.

  12. “if we lower that shield because “our guy” is in the White House, you’ll be left without protection when “their guy” gets the White House”

    This is a logical statement and therefore will not compute in the liberal “brain”.

    Nice try though.

  13. If the federal ban is struck down on commerce clause grounds, you’re just going to see most states pass their own bans modeled after the federal statute.

    Remember, the reason for the federal statute was that SCOTUS kept striking down state PBA bans as “threatening” to Roe v Wade (yes, that’s what passes for logic in abortion jurisprudence).

  14. certain types of abortion that liberals believe should be protected from government interference.

    I always get a kick out of this circumlocution, which has become pretty much universal in the liberal media, to avoid saying “partial birth abortion”. You’re inducing labor and crushing the baby’s* skull as he or she comes out of the birth canal. No sense in sugar coating it.

    * I trust that no one will take issue with my use of the word “baby” here to describe the occupant of the birth canal a few seconds before birth. Actually, I don’t trust that, which is why I added this footnote to make such people look foolish.

    1. Please state your reasoning on why a mother cannot kill her fetus, baby, two-year-old, or otherwise. From whence does the child’s ostensible right to life derive? I mean, if we’re going to have the conversation, then let’s have it already. What, in your view, are the implications, one way or the other?

      Also, know that I fully expect you will not rely on any arbitrary Tony-style moralist arguments.

    2. The word is preemie, Tulpa. Liberals hate tiny little weak, sickly premature babies, although that’s just part of a long list of things they hate, the black-hearted fiends:

      * Babies in general
      * Puppies and kittens
      * Baby Jesus
      * Sunshine
      * Chocolate
      * Ice Cream
      * Mom’s apple pie
      * Freedom
      * America
      * The Troops
      * Beer
      * Cheerleaders
      * Happiness
      * Humanity

  15. Are you serious? Are you serious?

  16. Are you serious?

    Are you serious?

  17. I have yet to find someone who could tell me how the commerce clause satisfies the constitutionality of the health care mandate AND could actually recite the clause.

    1. I’m sure that Wickard v Filburn (because people who grow their own wheat do not buy wheat from other states, banning home grown wheat is covered by the interstate commerce clause) would be involved in the defense of the health care mandate in the courts:

      Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.

      Hmm… may be a court case over Obamacare could overturn that decision?

      1. Where Wickard went off the rails was in stating that “stimulating trade at increased prices” was a “regulation” of commerce. I believe its actually the exact opposite.

        1. Oh, how soon you forget that Raich was the case that was going to overturn Wickard.

          Hmmm, how to frame a case that would overturn Slaughterhouse and Wickard all in one fell swoop.

    2. Except that they are now not defending it as an exercise of Congress’s power to regulate commerce – they are arguing it is a valid exercise of Congress’s taxing power. Because, of course, just as Obama promised, there would be no new taxes on anyone making under $250,000. Or $150,000. Or something.

    3. Oh, and BTW, the Commerce Clause is one of Congress’s enumerated powers in Article I, Section 8:

      Congress shall have the Power To … regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes … .”

      A compliant and complicit SCOTUS has, however, allowed “commerce among the several states” to come to mean (i) the channels of interstate commerce, (ii)the instrumentalities of interstate commerce, or persons or things in Interstate Commerce (even when involving only intrastate activity) and (iii) those activities having a substantial relation to interstate commerce.

      And then all you have to do is link this power with the “necessary and proper” clause (… to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers … .”), and voila (or, as is more common on the interweb “walla”), you’ve got unlimited cosmic power.

      Wickard represents the furthest extent that SCOTUS has been willing to take it, however. We shall see whether the current or future court chooses to take it even farther.

  18. Progressives get around this inconvenient truth by using some sort of “march to progress” meme: i.e., in the long run, they’re going to win. What REALLY doesn’t make sense is why conservatives, who generally agree that the Leviathan tends towards liberalism (see “Slouching Towards Gomorrah” and others), have little problem increasing its powers nonetheless.

    1. Because we’re human and we also have an irresistible primal urge to boss people around?

      Don’t expect us to be the faithful defenders of the Consitution… that’s the Court’s job and they mailed it in a long time ago. Our job is to get reelected. Prick.

  19. oh…

    /sarc

  20. Any system that depends on the “right people being in charge” is doomed to failure.

    That’s the beauty of limited government. No one’s in charge of most things.

    1. To date there has never not been someone in charge. Be glad it’s someone you can vote for.

      1. Even better when you have freedom, since the person making most of the decisions that impact your life is not just one of two malicious bastards you choose between, but someone you actually trust to do the job well, or at the very least have your best interests at heart.

      2. Meet Tony, battered wife.

        While elsewhere, Sigmund Neu is busy diagnosing individualists as chronically, if subconsciously, defeatist.

        I l-oh-lled.

      3. There’s a big difference between someone in charge, and someone in charge of everything we touch in our lives, a la our current government.

        Either regulations or taxes interfere with every (legal) aspect of our lives. If it is legal, government has their dirty fucking hands in it making it more expensive and less convenient.

        You’ve been here long enough, Tony, to confuse libertarianism with anarchy.

        Shorter version: Shut the fuck up, Tony!

        1. You utopians need to get over your fear of the commerce clause. Fuck state governments, it’s all too messy.

      4. And there is the root of the human condition – SOMEONE must be in charge, because FUCK ME, it is too scary to contemplate the alternative!

      5. Again–it’s better to have 1000 bad men run free than to have 1 bad man in power.

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