Those Enumerated Power Thingies Were So 18th Century

Jonathon Adler argues that Senator Feinstein grossly exaggerated the number of cases where the Supreme Court said the Congress had exceeded the bounds of the commerce clause.  Feinstein said it was dozens of times in the last 10 years, Adler counts about two.  I don't have my own count, but smaller numbers seem right to me -- just look at the extent of activities Congress currently pursues under the banner of the Commerce Clause.   For god sakes, several years ago the Supreme Court ruled that federal marijuana laws trumped state laws based on the commerce clause -- even when the drugs are grown for personal use and don't cross state lines.  As Clarence Thomas wrote in that case in dissent:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything and the Federal Government is no longer one of limited and enumerated powers.

But what I found really depressing in Adler's post was this:

Adding up all of the cases in which the Court found statutes exceeded all of the federal government's enumerated powers, including the sovereign immunity cases, the commandeering cases, and the 14th Amendment cases, in the last twenty years still doesn't get us to the three-dozen-plus cases Feinstein claimed. Add in the federalism-related constitutional avoidance cases, and we're still a ways off.

Given all the expansions of federal and Executive power over the last 10 years, and the hundreds of cases in front of the Supreme Court, the Court has not been able to rouse itself more than a handful of times to declare that the feds have exceeded their powers under the Constitution?  Bummer.


  1. Anon:

    Two is correct.

    Lopez and Morrison.

    That's it. Raich is one of my favorite Thomas dissents, BTW.

  2. GU:

    Welcome to the confluence of Borkean "judicial deference" and "living constitutionalism." Who needs a third co-equal branch of government anyway?

  3. Link:

    For too long I thought Thomas just followed Scalia. Raich shows Thomas is the last of a dying breed of jurist. Scalia is a whore for increased federal power, and a prude to boot.

    We're too big a country -- and too diverse -- to be run from DC. We're about to learn this the hard way. Federalism is a remarkable historical gift to address this but we killed it. State's rights no longer matter, except for blue states like California that want to export their own regulatory regimes.

  4. Anon:

    Federalism wasn't killed by SCOTUS, Link.

    It was killed by the 17th Amendment. It has been slowly dying since.

  5. Dr. T:

    You could go back a century and find only a few cases where the Supreme Court slapped down Congress or the President for overstepping Constitutional bounds. Even FDR (dictator wannabe) only got stomped on twice.

    As an aside: I believe that Clarence Thomas stands among the best Supreme Court justices since our government was established. He consistently and strongly defends federalism, and he uses an originalist approach (in contrast to the liberal justices who prefer outcome approaches).

  6. Craig:

    Hey, if wheat grown for personal consumption during the Depression can be regulated by Congress, why not weed?

  7. Edmonston:

    Many provisions of the U.S. Constitution are NEVER enforced. SCOTUS evolved its own "line-item veto"... totally ignoring provisions that interfere with the costumed Justices’ personal vision & social objectives.

    When the SCOTUS switched to discretionary certiorari in 1925 (allowing the court to choose its own docket), the Court paved the way for its highly arbitrary & unlawful treatment of the Constitution.

    It's no coincidence that all "unenforced" Constitutional provisions place limitations on the scope and power of government -- but the few provisions of enumerated government powers have been interpreted 'expansively' by SCOTUS.

    The Court invented 'balancing tests" for Constitutional rights... limiting those absolute individual rights by supposed "compelling interests" of the government. (Of course, no similar balancing tests apply to government powers).

    Nothing new about this treachery. Lincoln ended the 1789 U.S. Constitution in 1865... but it has taken generations for the tyranny to firmly take hold across the nation.

  8. Rick C:

    Craig, it's important to make sure that both the wheat and the weed raised for personal consumption were regulated under the novel premise that "raised for personal consumption" is _interstate commerce_. That doesn't even pass the laugh test.

  9. markm:

    Craig, in the wheat case, the law exempted a certain amount of wheat for personal use. The farmer had considerably exceeded that. I don't know how reasonable the size of the personal use exemption was compared to what a family could use for bread, etc., versus, say, feeding it to fatten beef that would be sold in interstate commerce, but at least Congress had recognized that there was some amount that was beneath federal regulation. The marijuana laws recognize no such limits.