Friday, June 29, 2012

The Court & The Commerce Clause

Reading a Court opinion, as I am doing this morning, I am some times bored, some times entertained, some times nauseated, and some times I'm just baffled.  Consider the following tidbits from Chief Justice Roberts in the health care opinion announced yesterday:
1. The Federal Government "is acknowledged by all to be one of enumerated powers."
2. The enumeration of powers is also a limitation of powers, because "[t]he enumeration presupposes something not enumerated.
3. If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution. 
4. The Constitution authorizes Congress to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
5. We have recognized, for example, that "[t]he power of Congress over interstate commerce is not confined to the regulation of commerce among the states," but extends to activities that "have a substantial effect on interstate commerce." 
I'm baffled.

Of course these quotes come from what Justice Roberts has written over several pages.  Quotes 1-3 summarize the meaning of our Constitution of enumerated powers.  Quote 4 is the enumerated power in our Constitution which is known as the commerce clause.  Quote 5 is a good statement of what the Court has come, over the years, to actually think about the Constitution's commerce clause.

I don't understand how quotes 1-4 can fit with quote number 5.  The last quote says that Congress has been granted more power over commerce, specifically it has been granted power to regulate intrastate commerce, than the power we find granted to Congress when we read the words actually written in the Constitution.

I do like the Justice's choice of words "not confined."  I think this is telling.  I think it is inconsistent with quote 2 which says our Congress is a legislature of limited powers.  It seems to me reasonable to suggest that "not confined" is pretty much the opposite in meaning to "a limitation of powers."

It also seems to me reasonable to conclude that over the years the Court has come to change the meaning of the commerce clause.  But, in doing that, the Court has done more.  It seems the Court has turned a constitution for a government of limited powers into a constitution for a government that is "not confined" to expressly enumerated powers.

And, if so, it seems reasonable to conclude that the Court, over the years, has essentially amended the Constitution.  Of course, if you read the Constitution, you will not find that the Court has the constitutional power to amend the Constitution.

Perhaps it is time to put away the Court's commerce clause jurisprudence and end the contortions the Court must go through in presenting it's opinions to convince us that a written constitution for a limited government can also be a constitution for a government that is unconfined?


Unknown said...

Didn't Roberts specifically reject the government's commerce clause claim and scale back the jurisprudence in that area a bit?

When I say "scale back," I am not making a grand claim; I'm just referring to the fact that after the New Deal jurisprudence and Wickard v. Filburn, the power was basically unlimited. This opinion, however, recognizes at least one limit -- Congress cannot compel us to enter commerce in order to regulate it. Five justices supported that interpretation, and it was responding directly to at least one of the consolidated cases being considered, so it's therefore probably a holding (though I'm not sure of that yet).

Small victory for restrained commerce clause jurisprudence, if you ask me.

(This is all putting aside the taxing power discussion for now).

Larry Eubanks said...

Why not recognize Wickard was wrongly decided to begin with? Instead of making a marginal change within a conceptual framework which is inconsistent with the Constitution, why not return to the words that are still in the Constitution?

Who are you?

Austin Frindt said...

A very material object of this power was the relief of the States which import and export through other
Federalist 42 is clear on the intent of the commerce clause. To prevent State A from imposing a tax on State B if B needs to ship goods through A to get to C. Very simple.

"A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former."

Larry Eubanks said...


Doesn't this suggest that the power we have come to say is the power to regulate interstate commerce is not the enumerated power in the Constitution? In other words, the phrase "among the states" means pretty specifically your illustration of states A, B, and C. It does not mean interstate commerce.