Supreme Court

Commerce Clause Stirrings at the Supreme Court

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Earlier today the Supreme Court declined to take up the case of Alderman v. United States, which centered on whether the Commerce Clause allows Congress to forbid violent felons from buying, owning, or possessing body armor. In a notable move, Justice Clarence Thomas dissented from this decision, arguing that by failing to take up the case, "the Court tacitly accepts the nullification of our recent Commerce Clause jurisprudence." That jurisprudence includes United States v. Lopez (1995), where the Court struck down the Gun-Free School Zone Act for exceeding Congress' authority to regulate interstate commerce. In Thomas' view, the lower court's ruling in Alderman failed to take Lopez into account, and by allowing that flawed decision to stand, the Supreme Court permitted a ruling whose "logic threatens the proper limits on Congress' commerce power and may allow Congress to exercise police powers that our Constitution reserves to the States."

More importantly, Justice Antonin Scalia joined Thomas' dissent. Remember that these two were on opposite sides of the Court's notorious 2005 decision in Gonzales v. Raich (2005), with Scalia agreeing with the majority that medical marijuana cultivated and consumed entirely within one state nonetheless counted as commerce "among the several states." So by signing on here, rather than simply keeping his vote secret like the other seven justices, Scalia has sent a pretty clear signal that, Gonzales notwithstanding, he still believes the Commerce Clause places a few genuine limits on congressional power. We'll have to wait and see if he thinks those limits extend to ObamaCare's individual insurance mandate.

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  1. We’ll have to wait and see if he thinks those limits extend to ObamaCare’s individual insurance mandate.

    Serious question: What if the Supreme Court declined to take up that case?

    1. Then the lower court decision would stand?

      If there is conflict in the circuits (which there might well be, if even one of them strikes any part of ObamaCare), then they will have to take it up.

      1. I was interested in finding out if there any way, given conflict in the circuits, any way the SCOTUS could legally refuse to hear the case. Apparently not. Thanks, R C.

        1. any way the SCOTUS could legally refuse to hear the case.

          Yes they can.

          I think RC is saying that when there is a conflict so glaring in the circuits over such a huge broad law they pretty much have to.

          They legally can choose to not look at anything they don’t want to, but not taking it up would be so uncouth that it is very unlikely.

  2. It would take some radical shifts to get the Commerce Clause back in line. Even with the minor rumblings we’ve had over the last decade.

  3. So by signing on here, rather than simply keeping his vote secret like the other seven justices, Scalia has sent a pretty clear signal that, Gonzales notwithstanding, he still believes the Commerce Clause places a few genuine limits on congressional power.

    Unless demon rum weed is involved, of course.

  4. Clarence Thomas seems to be the most consistent of the Supreme Court Justices.

  5. This would imply thinking Obamacare might be unconstitutional, which is anti-govt hate speach, which contributes to the environment that breeds mass shootings. How dare you.

    That, and I whip my hair back and forth.

  6. he still believes the Commerce Clause places a few genuine limits on congressional power.

    Commerce clause allows federal actions that Scalia likes and prohibits the federal actions he does not like.

    To bad the specifics of his likes and dislikes do not mesh-up well with left wing values…otherwise the left would worship him.

    1. “limits on congressional power”

      The fuck I do!

    2. ^this

      He’s not libertarian, he’s a Scaliatarian.

    3. Who knew that he liked flag burning so much?

  7. The Supreme Court is not going to put any major limits on the Federal Government using the Interstate Commerce clause because that would make large parts of the Federal Government unconstitutional and the Supreme Court is part of that same Federal Government and was appointed and confirmed by people who support that broad interpretation of the Interstate Commerce clause.

    At most you will get a few rulings which curtail some of the most outrageous use of the Interstate Commerce clause and that is it and depending on who is on the court you might not even get that.

    P.S. This is not what I want to happened but my opinion of who gets put on the court and how much they don’t really want to rock the boat that much and a broad reduction on the use of the Interstate Commerce Clause would not just rock the boat but tip it over.

    1. Agreed. I can’t think of any senator that will confirm a judge that will essentially nuke everything they will pass.

  8. Actually, they can strike down the mandate w/o impacting any other big social programs. We’re not asking them to take down Social Security.

    1. We’re not asking them to take down Social Security.

      AHEM, speak for yerself…

    2. All in time….

      1. “We” meaning specifically when filing objections to Obamacare. My point was just that striking it down doesn’t strike SS down.

  9. I feel like a gardener when the first see breaks the ground. Where might this go?

    At least Thomas can be counted on!

  10. Alderman v. United States, which centered on whether the Commerce Clause allows Congress to forbid violent felons from buying, owning, or possessing body armor.

    Is there some magical protection “violent felons” possess that prevents them from being penetrated with bullets, thus eliminating any reasonable personal use for body armor?

    Does Mr. Alderman plan to bludgeon one or more persons with the body armor in question? Is there any reason to believe that he may, at some point in the future, do harm to one or more persons with the body armor in question?

  11. the worst thing about decisions like this is that they are not really looking at the law but reflecting their own personal opinons of what should be done. Despite the fact that the first amendment says that there shall be no limits on speech the courts have decided allow certain limits and not allow others. Its essentially them rewriting the law itself.

  12. Scalia = fraud

  13. What I want to know is which of the two Bush appointees punted on this. It only takes four justices to grant a cert petition, and a strictly left/right view would expect Roberts and Alito to line up alongside Thomas and Scalia. One of them didn’t. Not surprising considering Bush’s motivation to appoint justices friendly to federal power, but it’d be nice to know which (or both).

  14. The Supreme Court is not going to put any major limits on the Federal Government using the Interstate Commerce clause because that would make large parts of the Federal Government unconstitutional and the Supreme Court is part of that same Federal Government and was appointed and confirmed by people who support that broad interpretation of the Interstate Commerce clause.
    ????? ????? ??????? ???? ????? ???????
    At most you will get a few rulings which curtail some of the most outrageous use of the Interstate Commerce clause and that is it and depending on who is on the court you might not even get that.

  15. failed to take Lopez into account, and by allowing that flawed decision to stand, the Suprem

  16. d, the Supreme Court permitted a ruling whose “logic threatens the proper limits on Congress

  17. as commerce “among the several states.” So by signing on here, rather than simply ke

  18. ecision in Gonzales v. Raich (2005), with Scalia agreeing with the majority that medical

  19. s counted as commerce “among the several states.” So by signing on here, rather than sim

  20. counted as commerce “among the several states.” So by signing on here, rather than s

  21. dissent. Remember that these two were on opposite sides of the Court’s notorious

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