Play Spot the Constitutional Functions!
In today's column about Ron Paul's fiscal plan, which includes eliminating five federal departments, I write, "Aside from carrying out the decennial 'enumeration' mandated by Article I, Section 2, does the Commerce Department do anything that is constitutionally authorized, let alone essential?" An alert reader, Dan Katz, has the answer:
While I have a healthy disdain for much of what goes on at the Commerce Department, I feel I must point out that in addition to the census function you mention, the Commerce Department also executes (by way of the National Institute of Standards and Technology a.k.a. NIST) the constitutionally authorized Congressional power to "fix the Standard of Weights and Measures" (Article I, Section 8) and further executes (by way of the admittedly dysfunctional Patent and Trademark Office a.k.a PTO) the constitutionally authorized Congressional power to provide patents and trademarks "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (also Article I, Section 8).
I assume Paul would move necessary functions, such as the Energy Department's responsibilities vis-à-vis nuclear weapons, to other agencies. But this seems like a fun game: Can you spot the constitutionally authorized functions in the three other departments Paul wants to abolish (HUD, Education, and Interior)? And in case that gets boring, what other departments or agencies should have been included on Paul's list? His plan eliminates the Transporation Security Administration, for instance, but leaves in place its nine-year-old parent agency, the Department of Homeland Security.
Gene Healy on abolishing DHS here. Me on abolishing the Commerce Department here.
Editor's Note: As of February 29, 2024, commenting privileges on reason.com posts are limited to Reason Plus subscribers. Past commenters are grandfathered in for a temporary period. Subscribe here to preserve your ability to comment. Your Reason Plus subscription also gives you an ad-free version of reason.com, along with full access to the digital edition and archives of Reason magazine. We request that comments be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of reason.com or Reason Foundation. We reserve the right to delete any comment and ban commenters for any reason at any time. Comments may only be edited within 5 minutes of posting. Report abuses.
Please
to post comments
Pretty sure Education doesn't do anything constitutional.
+1
And nuclear weapons should be defense. Transportation should be the postal road builders, if they are not already, and Coast Guard belongs back there.
Post Roads are suggested by the Constitution as a function of government, not required by it.
That's actually true of IP, as well, though I'm not one of your anti-IP libertarians. "Congress shall have the power to. . .promote the progress of science and useful arts. . . ."
If they stopped at "useful arts" we would not have the NEA.
Boring. You are just boring.
TEH GENERAL WELFARE!!! All these departments stay!
There is a very good reason that nuclear weapons were historically not handed over the DoD, but rather the AEC (Atomic Energy Commission, what would later be folded into the DOE). Namely, it seems like a really, really good idea to make sure the nuclear weapons complex remains under civilian control and oversight, given the unique nature of nuclear weapons.
Put another way - the DoD can't even manage to figure out whether they've loaded live warheads aboard an aircraft flying inside U.S. borders. Do you really want to give them total control over the nuclear weapons complex?
There'a a good reason nuclear weapons ended up under the AEC (Atomic Energy Commission, later folded into the DoE), rather than the DoD. Given the unique nature of nuclear weapons, I'd much rather the weapons complex remain totally under civilian control.
After all, this is the same DoD which can't even ensure live warheads aren't being transported on fighter craft above U.S. airspace. You really want to hand them the keys to the asylum?
http://en.wikipedia.org/wiki/2.....s_incident
DOE story of the week:
Arne Duncan, U.S. Secretary of Education, Walks Out on 1,000-Plus Parents Who Traveled to His L.A. County Town Hall
Still trying for that elusive 4,000 comment post Jacob?
There are some valid agencies within departments, but that doesn't mean certain departments shouldn't otherwise go away.
Absent FEMA, all of DHS's functions are constitutional. I understand the objections to the department. But Constitutionality isn't one of them.
The TSA is not a regulatory body that would fall under the Commerce Clause. Is the argument that the police powers necessary to enforce Commerce Clause related regulations thus allow for the creation of the TSA?
If you have the ability to regulate commerce, you clearly have some police powers that go with that. How else do you regulate? TSA is a much closer call than CBP, ICE, USS, USCG, or USCIS. Those are hands down constitutional. But I think it probably passes.
So, feeling up women and committing sexual assault on minors is a constitutionally mandated function?
The Constitution doesn't mandate shit. It just says what the government can do. There is nothing to say it has to do anything. So lets get that straight up front.
And yeah, airlines are clearly interstate commerce. And making sure they don't blow up and thus people not want to take them relates to commerce.
My F250 crosses state lines almost every day and I can run people over with it. Does that mean I get government screening of everybody I give a ride?
If the government were stupid enough to want to inspect every vehicle that went across state lines, it probably could.
Suki! My F250 is better than YOUR F250!
Yours a 4x4? Diesel? Mine's gas - LOVE it!
4X4, Gas.
And mine is prettier.
Ha! Mine's 4x4, gas V10, quad cab, and gets 10 whole miles to the gallon. Suck on that, bitches!
The TSA violates the 4th amendment.
Also, I assume if you are flying from Dallas to El Paso or from Los Angeles to San Francisco the TSA doesn't inspect anything since it is clearly not interstate commerce.
Regulating interstate commerce is one thing; interfering with the right to travel is another. Air travel is the only mode of transportation that can take you from NY to LA in a day so the feds heavily restricting access violates that right.
The Secret Service is constitutional? Really? Because if the Founders wanted there to be any kind of national police force I think they would have included it in the Constitution.
The Secret Service's primary function is to go after counterfeiters and protect the currency. That is clearly a constitutional function since the feds have the exclusive power to coin money. And protecting federal officials is also a valid federal function.
Why are so many libertarians so fucking brain dead about the Constitution they claim to value so much?
I don't give two shits about the constitution, compared to individual liberty.
Sure, lets have no laws or rules just a commitment to individual liberty. Good luck with that.
If they are real rights they just enforce themselves?
The Secret Service's function is to go after small-scale counterfeiters, not the biggest counterfeiters of all - their bosses in the Treasury Department and the bankers at the Federal Reserve.
I think you are thinking of something different (and worse) than counterfeiting.
Coins and currency are not the same thing.
By that standard, telephone calls aren't covered by the language of the 4th amendment and radio and TV and Internet aren't covered by the 1st.
"necessary and proper" covers the Police Powers issue. The constitutionality of organizations like USS or FBI is more an issue of the laws they are enforcing, rather than the organizations themselves.
^^This^^
Some of those objections kinda involve constitutionality.
The Commerce Clause clearly reads: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;"
This implies it only gives power to regulate the actions of the States, not actions by private agents. If it was meant to allow the Feds the power to regulate citizens it would have added "the people". So most actions by DHS are unconstitutional.
That is not what it means at all. It says "among the states" not "between the states". Commerce "among the states" is just that, commerce among private parties that crosses state lines. No court in the history of the country has ever read it that way including the first courts that were made up of people who wrote the damn document.
They always said "people" when they meant citizens. Just like in the Second Amendment it says "The right of the people", not the states. Just because the courts are unable to read plain language does not make them right. Any reading giving "states" the same meaning as "people" is wrong.
But it says "among" not "between". And when the people who wrote the document never interpreted the document to mean that, that is pretty good evidence it doesn't mean that.
I think you are correct, John, it is absurd to think that the commerce clause only applies to transactions among state governments. But I don't thing that using "among" rather than "between" is important. "Among" is used when there are more than two entities involved. "Between" is for when there are only two. The distinction has eroded somewhat in contemporary English.
+ [random number]
So then you agree with MNG about the Obama Admin using the commerce clause to regulate how and when we buy health insurance?
We could always have the Coast Guard go back to patrolling for pirates.
They do actually.
I hope they sing jaunty tunes and swing mugs of ale from side to side whilst doing so.
Bring back the rum ration!
Don't forget sodomy, and the lash!
Nah. They are coasties, which is just another word for nerd. With the exception of the badasses who jump out of helicopters and rescue people in hurricanes, they are the nerdiest of all the services. More nerdy than the Air Force.
The rum ration would fix that.
I hope they sing jaunty tunes and swing mugs of ale from side to side whilst doing so.
The Coast Guard or the pirates? or both?
What is that a picture of beneath the ship? Is that supposed to be a lighthouse or a sword shooting laser beams out of the handle?
Can't it be both?
That is why Star Wars is public domain. Spielberg used that for the light saber idea. [/sarcasm]
Spielberg came up with the light saber?
It looks like a cross radiating glory or some shit. Unconstitutional.
I say we use the power to fix standards of weights and measures to switch to the metric system.
Never you philistine.
Fuck that shit. You want the metric system, go live in Communist Occupied Europe.
Even librarians update their systems once in a while.
http://www.librarything.com/gr.....esc#forums
It says "set," not dictate what everybody will use or else.
Multiplying things by 9.8 is a waste of time.
Ha. NIST does have a two man office to encourage iconoclastic americans to convert to the french-made metric system. They are working super hard!
http://www.nist.gov/pml/wmd/me.....rogram.cfm
Also, did you miss the Metric Week?
http://www.nist.gov/pml/wmd/me.....ober-9.cfm
I never got a metric to normal conversion calendar.
Already happened.
The only system of weights and measures established as valid directly by Act of Congress was the Metric system, back in 1866; a set of metric standards was sent to every state at that time. And all other units of weight and measure in the US are defined entirely in terms of metric units, and have been since 1893.
Back when federalism meant "throw Congess' damn meterstick on the fire, we got patronage jobs to fill!"
"Never!" the red-blooded American patriot said, as he popped a vitamin pill with 500mg of vitamin C, removed the flier advertising the 5K run next week from his mailbox, and stepped onto his motorcycle powered by a 750cc engine to go to Walmart to pick up some two-liter sodas and 9mm ammo.
Wow, I agree with the Commodore for once. Mark this day, people!
Referring to me by a nickname is going to seriously screw up the parsers at the NSA. Have some professional courtesy.
So because the metric system is forced upon us, we like it? If you want to call that motorcycle a 40 cubic inch, you will get no complaint from me.
My intended point was that it didn't require any force or govt decisions to make those measurements common, just the necessities of global commerce.
On the flip side, oil country tubulars are manufactured and defined in inches with metric conversion for those ignorant furriners.
Interestingly, too, flatscreens are sold in inches in Germany.
Now that I am defending the English system. I find it antiquated and outmoded.
Powers of 10 are boring. That is why I will never use metric in informal or wood related projects. I like my powers of two.
I say we switch to natural units, as God intended.
Haha, oh wow, I never expected so many people to post. Anyway, as an engineering student I work with metric all the time. Except heaters always come in BTUs. Fuck British Thermal Units, they're completely useless and unAmerican.
Although I will say this: Fahrenheit/ Rankine is scaled better than Celsius/ kelin.
What about the decikelvin scale?
DEA hands down. And by extension the FDA.
Neither of them do anything of value nor are they authorized by any part of the constitution.
If the FDA limited itself to inspecting food transported across state lines it would be constitutional under the commerce clause.
That and inspecting imports.
Even that is a very wide interpretation of the commerce clause.
*Fecal Standards and Measurements*
United States of America
Huh?
You don't think there should be standards (not necessarily government enforced) for the amount of feces in your food?
You do realize that there is some amount of rat feces in everything, don't you?
Even my steak? I'm kind of doubting that.
Wait, anything that is for the "Genereal Welfare" is constitutional. I know because John and MNG told me so. This whole idea of "Enumerated Powers" is nonsense made up by the tinfoil hat crowd.
+69
We should ax all departments and agencies created after the Eisenhower administration.
What would those be?
EPA
Education
DHS
HUD
HHS
I can't think of any others.
VA?
Nope. It was created under Hoover.
Department of Veteran's Affairs was established in 1989.
VA stands for Veteran's Administration.
No it was raised to a cabinet level position in 1989. It was formed in 1930.
http://en.wikipedia.org/wiki/U.....ns_Affairs
*BUZZ* It was not a department until 1989. The question specified departments.
And agencies.
OSHA
OSHA is not a cabinet level department. It is under labor. But yes, that would be a great thing to get rid of.
He said departments and agencies
EEOC
Not a cabinet level position.
SPQR
Those damn Goth kids took care of that for you.
"We should ax all departments and agencies created after the Polk administration."
FIFY
We should ax all departments and agencies created after the EisenhowerWashington administration.
Fixed.
We should ax all departments and agencies created after the EisenhowerWashington Griffin administration.
HUD and Education are definitely superfluous. I would sell off the public lands under the Department of the Interior, but you would need someone to manage offshore areas, especially since I don't believe they're under state sovereignty. Also, I think the State Department can manage relations between our dependencies, since they're largely self-governing. (I think we should get on with negotiations with Puerto Rico on statehood or "enhanced commonwealth" already, but that's just me.)
Where is the regulatory power offshore? Violations on the high seas per Law of Nations?
Under the law of the sea each country has an exclusive economic zone where they own all of the fishing and natural resources. The zone is 200 nm off the coast.
Then why can't the states regulate their pieces?
Because the states don't own it. They are not the national sovereignty. Outside 12 miles it belongs to the feds.
Yeah looked it up 3 nautical miles for the states, 9 nautical for Texas and gulf coast Floriad. 12 miles is the end of Federal territory and where the EEZ starts to 200 miles.
Florida should change its name to "Floriad".
Florabama?
The Floriad is the epic poem set in Florida.
The states each get 3 miles (don't hold me to that)except Texas (and Florida?) who get more because of the treaty bringing the Republic of Texas into the union (and that took decades of court wrangling).
The zone is 200 nm off the coast.
200 nanometers? That's not very far!
Nautical Miles.
Note that 200 nm means 200 nautical miles, not 200 nanometers.
IANAL, but I do know there are economic rights granted to the Feds on offshore properties. Since the treaties governing this are international, and the States can't negotiate rights like this between nations as per Article II, Section 2. Simply put, there's no way that this could be feasibly kicked to the states without stumbling onto a lot of legal doo-doo.
What were the original departements?
State, War, Treasury, I know.
Interior also, or did that come later?
The original four under Washington were State, Treasury, War and the Attorney General.
AG isnt a department, but is a cabinet position, I guess.
Ag wasn't created until the 19th Century.
AG == Attorney General.
DOJ is a department. And the AG was effectively DOJ back then.
When did Justice get officially created? You are right about effective, but wonder when it came into real being.
There was lots of silver before the 19th century.
I think Interior was mid 1840's, after the Mexican War.
I think Interior was mid 1840's, after the Mexican War.
Correct. And next came agriculture and then labor.
Put another way - the DoD can't even manage to figure out whether they've loaded live warheads aboard an aircraft flying inside U.S. borders. Do you really want to give them total control over the nuclear weapons complex?
Incident in question:
http://en.wikipedia.org/wiki/2.....s_incident
There'a a good reason nuclear weapons ended up under the AEC (Atomic Energy Commission, later folded into the DoE), rather than the DoD. Given the unique nature of nuclear weapons, I'd much rather the weapons complex remain totally under civilian control.
After all, this is the same DoD which can't even ensure live warheads aren't being transported on fighter craft above U.S. airspace. You really want to hand them the keys to the asylum?
(Google "2007 United States Air Force nuclear weapons incident" for what I'm talking about, as the spam filter keeps eating my posts).
NOAA has something to do with fish which protected by the Fish & Chips clause that some traitor snuck into the Constitution to protect his English heritage. I think it was Hamilton.
NOAA is the DEA of fishermen. They've been stealing their catch and cash for years. Scientists don't even like them.
HUD and Education should be concerns of cities (and maybe states), not the federal government. Good riddance. Energy and Commerce are best left to the free market, with minimal regulation. Departments not needed.
But the federal government still owns large tracts of land, especially in the west. I would have kept the Department of the Interior, at least until all the federal lands were sold or opened up to homesteading.
Interior also handles Indian affairs. And a lot of that land out west is pretty hard to sell. But surely someone would buy it. But even then you have land on old military reservations and such that is too polluted to sell.
So when the fuck is Interior going to do something about White Injun's claim that (s)he can't gambol about the plains?! Huh? What about that?
Useless Dept of Interior!
*shakes fist*
Restore full sovereignty to the Indian tribes, and let the State Department handle any diplomatic interactions.
No thank you. Full customs inspection coming back from the casino isn't my idea of a good thing.
I wouldn't worry too much about that. If I recall correctly, an Indian tribe has sovereignty like a state, not like another country. In other words, do you really need a passport to cross state lines? 🙂
We could institute a trade treaty that would dispense with formal customs, among other things. I'd call that treaty SHAFTA.
This is true. BLM land is a mixed bag. Some of it is nothing but industrial waste wastelands, and others are prime land. Most of it is in the middle of fucking nowhere, and of little interest to most people. Large scale ranchers might stake a claim on some of it, but there isn't much incentive on behalf of private citizens to buy the land and develop it.
I just hunted some BLM (Bureau of Land Management) in NE Wyoming which was mostly leased out to a private company for pumping oil.
I'm good with National Parks.
Doesn't the Department of Interior also spray water from the toilet onto crop fields?
Of course, once you reduce Federal lands within states to the authorized "places . . . for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings", you quickly run out of anything for the Department of the Interior to do.
Protect the Department of Gambolling!
Restore the Hoboken Rainforest!
Reveal the secret location of Big Rock Candy Mountain!
It's in Area 51, isn't it?!
Awesome - I just posted Article 1 on FB for exactly this reason - cause Congrefs is apparently about regulating Terbacky Chewin' (at least for today).
*consults Constitution again*
Nope - can't find the part about being fuckin' SoCon Nannies. Fuck you, R and D pols, and the sheepfucking proles who let you get away with [everything] without a whimper.
Ima go smoke cigarettes and chew terbacky (at the same time) on an elementary school playground at recess.
*flips the bird with both hands*
...right after I do some hunting, collecting, and gamboling
Careful with your words, that's like saying candyman 3 time in front of the mirror. WI might show up and ruin it.
I can't do any gamboling until I hunt down a deck of cards and collect a pile of chips.
Dept of Commerce also runs the Internet root servers, iirc. Though the UN (aka the democracy of dictators) is doing what it can to end that little arrangement so that the dictators can have more effective means of controlling it than filters and kill switches.
That's a good point. What would the internet root server system look like under total private control?
Like a house with cardboard plumbing.
ICANN still administering, but no longer needing Dept. of Commerce authorization for changes? Probably not a lot different. And if it went bad, reviving the ORSN or a duplicate wouldn't be too difficult, any more than it would be if the Dept. of Commerce administration went bad.
There's a reason for that: The DHS is a collage made from other agencies. Instead of simply scrapping it altogether, there would be a need to establish what agencies need to absorb its functions.
I've kinda figured that we need four or five executive departments headed by Secretaries. One each for (internal/external) function (involving/not involving) the use of force.
Call them War, State, Justice and <whatever> (Commerce and Transportation?). Plus maybe the Treasury.
Not that the neat semantic distinction is perfectly reflected in the real world, but then at least we'd known what each Department is nominally responsible for.
I think you'd need the Treasury if only to coordinate the necessary financial functions of government. Other than that, I'd live.
Wouldn't Treasury be your internal/non-force department?
Interior?
The Indian Commerce Clause.
Because Frum is a douchebag, he is whining about weather satellites:
http://www.frumforum.com/ron-pauls-spaced-out-plan
Apparently Frum is in a panic because he thinks the weather satellites will just be abandoned. Because it would make so much fiscal sense to abandon a productive asset. Why, when evil Ron Paul and his gang of libertarians shut down the Commerce Department, they're just going to have a big bonfire of all of its assets. All those desks and office supplies will make a mighty big bon pile! Woo hoo!
He's also very upset that if the answer here is to privatize the satellites, there's no detailed plan giving the names, birth dates and identifying marks of the people who will buy the privatized satellites. This despite the fact that the Federal government already has a well-established mechanism for disposing of surplus property by RFP.
It's also despite the fact that there's a 25 year paper trail out there of Paul saying that when we shut down the space program certain essential operations will be transferred to the Department of Defense, so he doesn't really even have any evidence here that Paul wants to get rid of the weather satellites. But I guess that's beyond his Google skills.
That's absurd. While we're admittedly still piddling about in LEO as far as manned spaceflight goes, there is a robust industry in satellites, from weather to communications. The government simply isn't needed to support a market like that.
Oh, for fuck's sake.
Yeah, first, the Defense Department would almost surely keep the Defense Meteorological Satellite Program operating anyway, because it needs weather data for military purposes. The program is currently operated by NOAA, for cost-cutting reasons . . . which strongly suggests that actually the NOAA program would be just be moved from Commerce to Defense in a Ron Paul realignment.
But, let's say that the NOAA-owned sats were sold off and the DoD didn't release any data for use by the public, being all secret-secret. Okay. Has Frum ever actually watched local TV news? There's a fortune to be made selling weather satellite data to some substantial fraction of the thousands of US local TV stations, probably via their affiliated networks. You might even be able to finance two or three competing satellite weather providers if NOAA wasn't involved. And of course, companies like ADM need weather data, too. There are all sorts of private buyers.
Okay, say those companies turn out to not be able to actually make enough money to cover costs, and the ex-NOAA network and commercial rivals all go down. Fine. Other countries also operate weather satellites for their own reasons, and those countries would likely be perfectly happy to defray their costs by selling data to Americans anyway. Europe, Russia, India, and China all have polar-orbit weather satellites that make twice-daily passes over the USA.
So, yeah, if private companies can't make a go of it, and we don't do public access to the DoD weather program data, and four separate foreign weather satellite operators all decide to freeze out US civilians, then we need the Commerce Department operating weather sats. Congratulations, Frum, on demanding we preserve a sixth line of defense against market failure.
We don't need this government program, because the Pentagon will do it and we can always buy it from foreign governments plus private industry can handle it instantly and we don't care if the 100% budget savings is phony.
Can you spot the constitutionally authorized functions in the three other departments Paul wants to abolish (HUD, Education, and Interior)?
All authorized. Commerce Clause, General Welfare, Necessary and Proper. You know the drill.
My brother works for the National Weather Service, which is somehow part of the Department of Commerce.
Everyone talks about the weather, and finally the federal government is doing something about it!
Ron Paul is the man for the job. He's honest and consistent. Imagine that from a politician!
http://www.whatthehellbook.com/the-book/