Video: The Commerce Clause and the concept of limited power

posted at 10:55 am on August 26, 2010 by Ed Morrissey

Perhaps at no other time since the New Deal has the Commerce Clause of the US Constitution held so much political relevance, and mainly for the same reason. Once again we have an administration mired in economic crisis attempting to massively expand federal power and jurisdiction, although there are differences. When FDR did it, he was at least attempting to create work for Americans struggling through the Great Depression. In this case, while Barack Obama spends hundreds of billions of dollars on ineffective Keynesianism, the expansion of government power is focused on everything but jobs — health care, energy production, Wall Street, and so on.  Reason TV looks at the loophole that FDR created and Obama exploits today for that massive expansion, and marvels at the mischief created by the strange interpretation of sixteen words in a document explicitly designed and created to restrain expansion of government power:

The heart of this debate is whether we accept that the Constitution exists to limit the power of the federal government.  It’s that basic.  If so, then Wickard has to be overturned at some point.  Otherwise, there are no limits on Congress, and the states have no sovereignty whatsoever.  Erwin Chemerinsky is fooling himself if he thinks that ObamaCare won’t go to the Supreme Court and that Wickard won’t be part of that discussion; John Eastman is right when he says that the implications are far too broad to have the decision limited to a circuit court of appeal.

By the way, Eastman and Chemerinsky appear regularly on the Hugh Hewitt Show to debate issues just like these.  Those segments are well worth following.


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OT: It seems that our Florida prognostications were right on the money. This race is now over, barring some titanic event.

KingGold on August 26, 2010 at 11:00 AM

Paging our HA expert on this subject, crr6….

Del Dolemonte on August 26, 2010 at 11:07 AM

Chemerinsky’s an idiot.

amerpundit on August 26, 2010 at 11:07 AM

Unfortunately, cases like Wickard will continue to dog the Court’s Commerce Clause jurisprudence so long as those on it continue to let it hold sway. Of course, the Court has, in cases like Lopez, evinced some intent in curbing the borderless ambit of Congress’ Commerce power. What some don’t seem to realize is that the Commerce Clause was followed up by the Tenth Amendment, which also should be the prism by which federal power should be viewed. For a brief, fleeting moment in National League of Cities v. Usery, the Court federalism basically right. Of course, things went back to normal (bad) in Garcia v. SAMTA. The bottom line here is that if the Tenth Amendment is to mean anything, the Supreme Court’s continued reliance on New Deal Commerce Clause caselaw is wholly misplaced. And un-American.

ieplaya on August 26, 2010 at 11:08 AM

Every speech the Left says the Republicans just want to go back to the same old things they have done in the past. How is that any different than what they do. Spend and control is all they have done for years.

Cindy Munford on August 26, 2010 at 11:09 AM

If Stalin only had the Commerce Clause, just think of what he might have accomplished!

Akzed on August 26, 2010 at 11:11 AM

Huh, so people will be punished for being self sufficient and wanting to be left alone.

Electrongod on August 26, 2010 at 11:12 AM

Marijuana is not a good test. It is the substance itself that is banned — as opposed to telling someone what they can do with a legal product.

Count to 10 on August 26, 2010 at 11:12 AM

The bottom line here is that if the Tenth Amendment is to mean anything, the Supreme Court’s continued reliance on New Deal Commerce Clause caselaw is wholly misplaced. And un-American. ieplaya on August 26, 2010 at 11:08 AM

Not only the Tenth Amendment, but Art. I Sec. 8.

Akzed on August 26, 2010 at 11:13 AM

The federal government can pretty much do whatever it wants. – Pete Stark (D)

Good Lt on August 26, 2010 at 11:14 AM

The heart of this debate is whether we accept that the Constitution exists to limit the power of the federal government. It’s that basic. If so, then Wickard has to be overturned at some point. Otherwise, there are no limits on Congress, and the states have no sovereignty whatsoever.

Thanks for posting this Ed. I do accept that the Constitution was specifically framed by The People to narrowly define the federal government —with a complete and limited framework of powers. The ninth and tenth amendments specifically state that the powers not delegated to the US are reserved for the states and the people. Thusly, the broad reaching and stretching of the commerce clause usurps more power and rights from both the states and the people beyond that which the Framers intended.

ted c on August 26, 2010 at 11:14 AM

First of all, Wickard v. Filburn needs to be overturned. By court decision if possible by legislative action if necessary.

Second, “I think what people choose might be seen as a personal liberty….it’s not a freedom not to have medical care.”

Really? Really, douchebag? What I eat might be seen as a personal liberty? F*ck you. And I don’t have the right to not have medical care? Because last I checked, I can refuse care.

amerpundit on August 26, 2010 at 11:15 AM

To listen to Chemerinsky and to know this is the default liberal position is truly freigtening: There is nothing the Federal Government can’t regulate in are pesonal lives and we just have to rely on their common sense. Wow, just Wow.

WisRich on August 26, 2010 at 11:15 AM

Chemerinsky is skeptical that we can know the Framers’ intent and doesn’t think that we should be bound by it even if we know what it is, but then he says it was the Framers’ intent for Congress to regulate all aspects of the economy–and presumably he does want us to bound to that intent.

Bill Ramey on August 26, 2010 at 11:17 AM

Probably one of the best videos I’ve seen regarding the usage of the Commerce Clause. We can only hope the conservative justices stay healthy until a conservative President takes over the reigns.

ButterflyDragon on August 26, 2010 at 11:20 AM

The Leftist Democrat Commonwealth (fitting name, eh what?) of Taxachusetts tried using the Commerce Clause a few years ago to tax their subjects for the “crime” of driving up here to New Hampshire to buy their car tires. It was laughed out of court.

Del Dolemonte on August 26, 2010 at 11:22 AM

Erwin Chemerinsky is fool…….

An out of context quote, but accurate. I hope you have a meta search running on your name Edwin and see my post. You are a defender of liberty lost. You are an arguer of how many angels can dance on a pinhead. You suck as an American and a defender of individual freedom.

Your children should know this about you. I do.

GnuBreed on August 26, 2010 at 11:22 AM

Wait, you mean the “lefty professor” really was a lefty professor, not someone parodying one?
*gulp*

Count to 10 on August 26, 2010 at 11:23 AM

The SCOTUS used to be a check on federal power but, since the new deal has done little to nothing to restrain federal power. I believe Madison once feared the collusion between the Court and either one of the other branches as a strong potential for the extraordinary growth of federal power–something we’ve seen since the 1930s. I do hope we can return to the day where the Court checks and balances the other two branches and that changes to the Constitution actually happen through amendments and not court rulings and flawed case law.

ted c on August 26, 2010 at 11:25 AM

“There’s not a freedom to not have medical care.” I can’t believe Chemerinsky, or anyone else, could really believe that.

It would be amazing if the Commerce clause was re-interpreted closer to its original meaning. Instead of government being able to regulate everything (air, food you grow for yourself, education standards, water) government would be severely restricted in scope.

hawksruleva on August 26, 2010 at 11:26 AM

How far can government reach? Who knows? Someday, the EPA will set limits on the very air we exhale.

hawksruleva on August 26, 2010 at 11:29 AM

So, If I buy a Volt and own a few acres to put up solar panels to charge said Volt, would I violate some commerce law because I didn’t purchase electricity off the grid? Can Congress regulate the amount of energy that I produce for myself?

Electrongod on August 26, 2010 at 11:30 AM

Marijuana is not a good test. It is the substance itself that is banned — as opposed to telling someone what they can do with a legal product.

Count to 10 on August 26, 2010 at 11:12 AM

I think that makes it an even better test. The decision meant that government can regulate the terms of trade, even when that trade is illegal by its own laws, and even when no actual trade is involved. It’s ludicrous on its face.

hawksruleva on August 26, 2010 at 11:32 AM

Second, “I think what people choose might be seen as a personal liberty….it’s not a freedom not to have medical care.”

amerpundit on August 26, 2010 at 11:15 AM

He has no concept of liberty or freedom past the notion of the freedom of elites to get away with this sanctimonious bulls**t.

MadisonConservative on August 26, 2010 at 11:40 AM

Reread your history Ed. NRA, CCC, WPA, the New Deal all expanded government, but did little to create jobs beyond the willing slave labor used to create amenities for the wealthy. Nor did they ease the suffering of those in need; that was done at the local level with food pantries, clothing drives, soup kitchens all set up mainly by municipalities and townships.

The lasting positive legacy of the 30′s depression was the introduction of soybeans as a crop to the midwest.

MarkT on August 26, 2010 at 11:40 AM

I’m wondering if there are things we as individuals can do to support state rights. For example, Montana firearm freedom legislation is an attempt to preclude the power of the Commerce Clause from locally produced firearm regulation. If enough people drove to Montana to buy Montana made firearms, this would by force of public will negate the SC decision.

Even the SC cannot ignore these acts forever. The challenges to OCare are another way to force original intent to be reexamined.

GnuBreed on August 26, 2010 at 11:41 AM

Really? Really, douchebag? What I eat might be seen as a personal liberty? F*ck you. And I don’t have the right to not have medical care? Because last I checked, I can refuse care.

amerpundit on August 26, 2010 at 11:15 AM

Change, baby, its a comin’! Just think, through the process of change, you can now smoke pot, but you can’t salt your fries.

Believe.

The decision meant that government can regulate the terms of trade, even when that trade is illegal by its own laws, and even when no actual trade is involved. It’s ludicrous on its face.

hawksruleva on August 26, 2010 at 11:32 AM

If you don’t claim income received as a result of things such as drug smuggling, kidnapping, counterfeiting, murder-for-hire, bank robbery, etc…you would be guilty of tax evasion.

That is patently absurd. Essentially it says that one branch of government tacitly, if not directly, approves illegal activity, as long as you pay the tax. Yeah yeah, I know all about Capone and the hard time he did for tax evasion. And not a single day for murder. So if Ol’ Scarface had filled out the 1040 with Schedule C, he wouldn’t have spent a day in jail.

BobMbx on August 26, 2010 at 11:43 AM

How far can government reach? Who knows? Someday, the EPA will set limits on the very air we exhale.

hawksruleva on August 26, 2010 at 11:29 AM

“Psst…hey…wanna see something? Look in here….thats a 3 GPF toilet….I got 5 of ‘em. I can get more if you want, but it’ll cost ya.”

BobMbx on August 26, 2010 at 11:46 AM

this case will be decided as all cases have in human history. By force. As long as people like Obama are around they will attempt to take more and more power. the only way to stop them is by force. sure the court can rule against the massive commerce clause but unless the states force the issue, unless the people force the issue and demand that the fed go by those limits imposed by the use of force at the ballot box or whatever then the government will continue to take more and more power. You can lock the beast up, chain it down, chop its parts up however you want but unless there is a watchman at the door prepared to force the beast back into the cage as the last line of defense the beast will always escape in the end. And even with the watchman the beast has a 50/50 chance of escape.

unseen on August 26, 2010 at 11:47 AM

I can’t play the video at work but my $.02 worth is that according to the Federalist Papers the clause is to keep states from passing commerce laws that will adversely affect other states.

Leftist/liberals always refer to it as the “Interstate Commerce Clause” implying that any commercial activity that passes between state lines falls under the jurisdiction of the federal government. When the Founders referred to states, they were referring to state governments.

The clause is meant to regulate conflicting commerce laws between state governments. The federal government can’t get involved until a conflict arises.

Harpoon on August 26, 2010 at 11:47 AM

You know I was wondering about this with Prop 19′s, legal pot, limit of 25 square feet per person. I guess under Wickard and United States v. Lopez (1995) they can do that but it’s BS. Maybe this is the law that finally gets this interpretation adjusted in the individual’s favor. Under this rational the government can regulate everything you grow even in window boxes if it’s consumed as like Filburn you wouldn’t be buying it on the open market and effecting commerce. Legalized pot is going to create an entire new branch of government, Agriculture Enforcement, and it’s going to require an army of people if they truly wish to regulate it’s commerce, collect the taxes and enforce growing limits.

Rocks on August 26, 2010 at 11:49 AM

American People: We are Nation of laws constrained by our written Constitution.

Chermerinsky: Written constitution? Phish! You have to look at the intent and you, the american people, couldn’t possibly know what that is.

Amerian People: Um, yes we do know. It’s called the Federalist Papers.

Chermerinsky: Awe, you simpletons are so, um, simple. You see, there is a super secrect intent that only we, the Liberal Intelligencia, can decipher with our Marxist decoder ring. We’ll fill you in as we go along.

WisRich on August 26, 2010 at 11:53 AM

To listen to Chemerinsky and to know this is the default liberal position is truly freigtening: There is nothing the Federal Government can’t regulate in are pesonal lives and we just have to rely on their common sense. Wow, just Wow.

WisRich on August 26, 2010 at 11:15 AM

I can’t wait till they reregluate sex, such as sodomy, so they can tax it by claiming that by staying at home and having sex for free you are effecting the regulation of the legalized prostitute trade. I wonder what the government limit on how many times a month you are allowed to have sex will be.

Rocks on August 26, 2010 at 11:55 AM

People still think we live in a constitutional republic under rule of law?

How quaint.

Rebar on August 26, 2010 at 11:59 AM

Historians discover lost letter of James Madison on the Commerce Clause: http://optoons.blogspot.com/2010/02/historians-discover-lost-letter-from.html

Mervis Winter on August 26, 2010 at 12:00 PM

The heart of this debate is whether we accept that the Constitution exists to limit the power of the federal government. It’s that basic. If so, then Wickard has to be overturned at some point.

There’s a huge flaw in your reasoning there. It couldn’t possibly matter less whether WE think Wickard should be overturned.

Someone who describes herself as a “radical Socialist” just got appointed to the supreme court. They are not about to rescind any of the Constitutional Amendments they have passed and ratified. If anything they’re going to keep making more of them.

logis on August 26, 2010 at 12:02 PM

WisRich on August 26, 2010 at 11:53 AM

I couldn’t have interpreted Chermerinsky’s intent any better.

Harpoon on August 26, 2010 at 12:04 PM

The bottom line here is that if the Tenth Amendment is to mean anything,

The Ninth and Tenth Amendments were rendered virtually irrelevant by the Sixteenth and Seventeenth. Wickard makes it clear that the only limit on Congress’ power is its own self-restraint. Returning the ability of state legislatures to choose the chamber of Congress that has the power to confirm treaties, and appointments to both executive and judicial positions, is absolutely necessary to shift the balance of power away from the “Federal” government and back to the states (which is what “Federal” originally meant).

The Monster on August 26, 2010 at 12:09 PM

The Ninth and Tenth Amendments were rendered virtually irrelevant by the Sixteenth and Seventeenth.

I don’t quite get this statement. The 16th Amendment relates to a graduated income tax, the 17th, popular election of Senators. The 10th Amendments, as I posted earlier, was given some brief life in Usery. And the Ninth Amendment was one of the bases for the grand “penumbras” of privacy that Justice William Douglas found to announce a right to abortion.

Wickard makes it clear that the only limit on Congress’ power is its own self-restraint.

Not only Wickard but many other decisions, which finally stopped at Lopez. The statement you made above was essentially the point — and a very good one — raised by the late Justice Lewis Powell in his dissent in Garcia. Essentially, the breadth of federal power is simply what Congress says it is.

ieplaya on August 26, 2010 at 12:21 PM

“The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty. … What country before ever existed a century and half without a rebellion? And what country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.”
– Thomas Jefferson, Letter to William Stephens Smith (13 November 1787), quoted in Padover’s Jefferson On Democracy

Shy Guy on August 26, 2010 at 12:43 PM

The Ninth and Tenth Amendments were rendered virtually irrelevant by the Sixteenth and Seventeenth.

I don’t quite get this statement. The 16th Amendment relates to a graduated income tax, the 17th, popular election of Senators.

Regarding the 17th, it means that by having State legislatures elect the Senators, it means that the States again gain control over the Senate.

SunSword on August 26, 2010 at 12:48 PM

Chemerinsky taught my bar review course. Now he is the go to Leftist for the media on all things legal. What a tool…

tommylotto on August 26, 2010 at 12:48 PM

Perhaps related to twisting the meaning of the constitution, the meaning of other laws are stretched, so that a party may sue (e.g. environmentalists or the ACLU) and direct public policy just thru litigation, even if they are wrong on the issues. In that case, “might makes right” prevails. Laws are no longer the final word, but rather a starting point. The US Constitution shouldn’t be a “starting point”. If it is, who knows where we’ll end up.

Paul-Cincy on August 26, 2010 at 12:58 PM

Quotations like that always remind me of the saying from Charles A. Beard:

You need only reflect that one of the best ways to get yourself a reputation as a dangerous citizen these days is to go about repeating the very phrases which our founding fathers used in their struggle for independence.

Today we essentially have political party that feels that they are unrestrained by law or constitution – which fits the Merriam-Webster Dictionary of tyrannical

– and the Merriam-Webster Dictionary of Oppressive as:
1 : unreasonably burdensome or severe
2 : tyrannical

Therefore it follows that a politician party that acts outside the constraint of the Constitution is really Oppressive (Rather than their deceptive self description of “Progressive”)

Our Oppressive “Rulers” had better be mindful of the fact that all these documents are really just “Social contracts” and that if they aren’t going to abide them, how long do they expect the people to abide them?

Chip on August 26, 2010 at 1:11 PM

Regarding the 17th, it means that by having State legislatures elect the Senators, it means that the States again gain control over the Senate.

SunSword

And it means turbo-charged pork-barrel spending without end, even if we ignore the anti-democratic nature of removing the direct vote.

chimney sweep on August 26, 2010 at 2:11 PM

The 16th Amendment relates to a graduated income tax, the 17th, popular election of Senators.

The Sixteenth gave Congress a powerful way to raise money without having to ask the states to remit in proportion to their representation in the House. The 17th took way the check the states had on national power.

Combined, they allow a Congress to enact laws like 55 mph speed limit and 21 minimum drinking age. In each case, Congress doesn’t have the power to directly enact the intended law, so instead it creates a law that demands the states pass appropriate legislation and enforce it to the satisfaction of “Federal” regulators, or lose “Federal” highway funds.

Can you imagine a Senator facing his state’s legislature for re-election, or a Representative thinking of running for Senate, voting to coerce those legislators into passing a law like that? I can’t.

The Monster on August 26, 2010 at 2:18 PM

changes to the Constitution actually happen through amendments and not court rulings and flawed case law.

ted c on August 26, 2010 at 11:25 AM

And so why is no one to be found to take these rulings, & the ones that made tghem, to task?
A glaring problem with the Judicial branch being appointed. But being elected would not serve a purpose either. What to do? How ’bout Congress stop caving in on nominees who are obviously a threat? Hmm..I don’t know…like Kagan? Others?

“Psst…hey…wanna see something? Look in here….thats a 3 GPF toilet….I got 5 of ‘em. I can get more if you want, but it’ll cost ya.”

BobMbx on August 26, 2010 at 11:46 AM

I’m sure they want us to be like parts of Mexico-not enough water to flush the toilets with the toilet paper, so we have to throw the soiled TP on the floor beside the toilet & have some little kid with a bucket come around & pick it up & dispose of it.
Think of the jobs that would be created by lowering allowed amount of gallons of water per flushes!

Badger40 on August 26, 2010 at 2:32 PM

Thomas Jefferson, Letter to William Stephens Smith (13 November 1787), quoted in Padover’s Jefferson On Democracy

Shy Guy on August 26, 2010 at 12:43 PM

Some manure is definitely more fragrant than other types.
Tyrant manure I would wager smells more like pig poo.
The manure of Patriots must smell like horse poo-fresh green grass-tranquil & almost pleasant.

Badger40 on August 26, 2010 at 2:34 PM

Some manure is definitely more fragrant than other types.
Badger40 on August 26, 2010 at 2:34 PM

A dead enemy always smells good – Alus Vitellus

logis on August 26, 2010 at 3:08 PM

OK, let’s simply amend the Constitution to take away Congress’s power to regulate commerce among the states. The feds can’t be trusted with it. In its place, authorise the Supreme Court to decide suits between states alleging the defendant state’s undue interference with interstate trade.

PersonFromPorlock on August 26, 2010 at 4:06 PM

Until FDR, the commerce clause was treated exactly as it was intended to: to limit, not expand the federal government’s power. Then FDR up and appointed SEVEN Justices to SCOTUS and destroyed that precedent. It’s amazing how very clear language (read: AMONG, not WITHIN states) has been bastardized to include every liberal crap sandwich idea imaginable.

As a second year law student in a very liberal environment, it’s virtually impossible to convince these people that the federal government does not have unlimited power to do whatever the heck it wants via the commerce clause. Any mention of states’ rights is met with admonishment. Hopefully we’ll have a return to originalism and a retreat from judicial activism, and a politicized SCOTUS that worries more about political expediency than ruling as the Constitution requires it to.

nmlaw2012 on August 26, 2010 at 4:30 PM

Chemerinsky’s an idiot.

amerpundit on August 26, 2010 at 11:07 AM

Funny you say that – people carry his treatise around like a Bible in these parts. :-/

nmlaw2012 on August 26, 2010 at 4:32 PM

No retarded leftist agitator troll posts here defending their great intellectual leader?

What gives?

Inanemergencydial on August 26, 2010 at 8:08 PM

When this does go to SCOTUS, expect Antonin Scalia and Kagan to be on opposite sides of the fence. If Kagan is so foolish as to write anything in or against the decision, expect Scalia to dismantle her “logic” into bits smaller than a LEGO ™, but with much less substance and strength.

I’m hoping for a regular and continuing series of decisions and concurrences slicing the logic of Obama’s appointees into the baloney it is.

njcommuter on August 26, 2010 at 8:19 PM