Kopel, Reynolds, & Congress on Commerce

Dave Kopel and Glenn Reynolds:

"The president's moral views on cloning are not unreasonable — though any time you find yourself agreeing with Luddites like Jeremy Rifkin and Kirkpatrick Sale is probably a good time to reconsider whether you're right. But whether or not cloning research is a bad idea, the president needs to spend a lot more time thinking about whether it's something that the federal government even has the power to ban.

The federal government, as the president has reminded us, is a government of limited powers, powers that are enumerated in the Constitution. And nothing in the Constitution grants the federal government the power to ban research into cloning, or to suppress other types of science.

The fact that Congress has the power to raise armies, enact bankruptcy laws, and create a Postal Service obviously doesn't give Congress the power to ban scientific research. There's only one enumerated power of Congress for which even a bad-faith argument can be made in favor of congressional power. The Constitution grants Congress power "to regulate Commerce with foreign nations, and among the several states, and with the Indian Tribes" (Art. I, sec. 8, cl. 3). From the 1960s through the 1980s, the Supreme Court interpreted this congressional power to regulate some types of commerce as congressional power to regulate anything, anytime, anywhere."

I think this view of the interstate commerce power of Congress makes sense. In view of many of the questions and statements made by Senators in the Roberts hearing this week, I wonder what those in Congress think about the commerce clause. Chief Justice Marshall wrote for the Court in the first case to interpret the Commerce Clause that when the Constitution says that Congress has the power to regulate interstate commerce this also means that there are some areas of economic activity that Congress does not have the power to regulate. I wonder what those in Congress would include on a list of those areas of economic activity Congress does not have the power to regulate?

Last night I heard a Senator say on television something like (I'm paraphrasing): "Roberts says we cannot regulate manufacturing. Nobody else says that." So, I take that to mean that at least this Senator thinks this is true: manufacturing = interstate commerce. If manufacturing is interstate commerce, then what aspects of economic activity cannot be regulated by Congress? Can anybody suggest a list of things Congress cannot do? What do you think members of Congress would put on this list?