Does Anything Exceed the Commerce Clause Nowadays?

A question has been going around on legal blogs -- "Does a Federal Mandate Requiring the Purchase of Health Insurance Exceed Congress' Powers Under the Commerce Clause?"

My answer is:  Nowadays (not in the original intent) is there anything the Feds can do that exceeds current interpretations of the commerce clause?  In Raich, the Supreme Court decided that a product (marijuana) that was grown in state for personal consumption, like tomatoes in your own garden, and was used legally under state law, can still be regulated under the commerce clause.    As Clarence Thomas wrote in dissent:

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

No kidding.

Unfortunately the theory that this personal use in California could somehow affect marijuana pricing in other states (by growing their own, they reduced demand for out of state weed which might affect prices in Arizona -- again similar to an argument that growing your own tomatoes might affect prices in another state) won the day in the Court.   With the Supreme Court accempting this "butterfly effect" argument  (because truly the demand of one person in a national market is like a butterfly flapping its wings in China and affecting a hurricane in the Gulf of Mexico), anything falls under the commerce clause.


  1. Colin:

    Amen. Supreme Court justices that grant such an expansive view of the commerce clause ought to be disbarred. The notion that the Founding Fathers would go to the trouble of very carefully setting out a set of limited and enumerated powers granted to the legislative branch and then obviate it all through the commerce clause doesn't pass the common sense test.

    What's really ironic is that we have a number of Democrats citing federalism as a justification for continued prohibition of purchasing health insurance across state lines, when this would appear to explicitly fall under the purview of the commerce clause. They invoke the clause for everything but the very thing it was designed to be used for.

  2. Methinks:

    The original meaning of the commerce clause is to "regulate" as in "keep commerce regular". That is, the Federal government was supposed to ensure that there were no restrictions on commerce between states.

    So, how is it remotely in keeping with the commerce clause for states to prevent citizens from buying health insurance across state lines?

    What does Nancy Pelosi have to say about that (rhetorical)?

  3. PJ:

    This is not news. Nothing does, nor has it since Supreme Court Wickard v Filburn decision in 1942. FDR did more to take liberty from individuals and states and put power at the Federal level than any other president in our history.

    At the same time, the overall SCOTUS pro-do-anything argument might be more like: Yes, that one individual won't impact other states, but if the Federal law cannot forbid this action, then there will be thousands of people like these individuals doing the same thing, and creating sufficient activity that leads to contraband crossing state lines.

    Whether they do that or just blindly follow almighty 'precedent' the result is the same - carte blanche for the Fed govt.

  4. GU:

    For a real laugh (or frown as it were) check out the case that the Raich majority relied on: Wickard v. Filburn. Wickard is truly one of the wackiest cases I've ever read.

    Coyote mentioned the original intent of the Commerce Clause, but that's not even needed in the more egregious cases like Raich; just look at the text:

    "Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." (Art. I, § 8 cl. 3).

  5. Reed Coray:

    I see much similarity between (a) SCOTUS ruling that "a product (marijuana) that was grown in state for personal consumption, like tomatoes in your own garden, and was used legally under state law, can still be regulated under the commerce clause", and (b) SCOTUS ruling that greenhouse gases (GHGs) meet the definition of a pollutant under the Clean Air Act (CAA); and since CO2 is a GHG, it is a pollutant under the Clean Air Act (EPA-HQ-OAR-2008-0318, July 11 2008). The net effect of both rulings is the patently ridiculous practice that "fill-in-the-blank" is subject to control by the federal government. In my opinion, a society with no laws and a society with too many laws are one and the same. In the former case, the society's leadership can take any action it wants because it isn't encumbered by any rules. In the latter case, the society's leadership can take any action it wants because it can always find a rule that justifies that action.

    Reed Coray

  6. hoipolloi:

    Shhhhh, stop talking about this. If nobody asks the question, then it doesn't have to be answered.

  7. me:

    I am thinking about learning spanish. I hear Buenos Aires is a nice place to live... :(

  8. Esox Lucius:

    Does anyone even know if the current administration is calling on the commerce clause as their basis for the power to socialize health care? I would be interested to see if they ever had to answer that question.

  9. seanooski:

    The constitution is dead. I promise you, the right wing establishment regrets Clarence Thomas. He's the last idealist,the last true patriot in any hall of Federal power. God help us.

  10. Ian Random:

    The left appears to be predominantly federalists, I can't fathom anytime they'd relinquish any power back to the states.

  11. Steve W from Ford:

    The US is no longer a constitutional republic and has not been since at least Wickard. IMHO these depredations are cumulative in their effects and multiply as the rule of law breaks down and people no longer know what to expect.
    Fortunately for us the concepts are very strong and are taking quite a long time to be forgotten.
    And hey! We can always hope that the liberals are right and the constitution is just a dusty relic of old racist white guys.

  12. Rob:

    This blog affects the business of newspapers (I'm not reading thei op-ed). So, be careful, the progressives (I like to call them regressives) want newspapers to stay alive and do better than digital distribution of news.
    I guess blogging can be regulated under the commerce clause somehow?

  13. Solar Panel:

    Hi, cool read. I just found your site and am already a fan. =P

  14. nom de guerre:

    IIRC, during the constitutional convention - the one they told the public was about something else, and then wrote up the constitution in secret, which i'm pretty sure they didn't have the authority to do - there were a few major sticking points. the old revolutionary war vets hated the idea of a strong national govt, or even just a framework that might someday provide cover for one, so they insisted on and got the bill of rights put in right up front.

    another faction, more subtle and wise in the unscrupulous ways of power, took great offense at the "general welfare" clause. they saw it as a perfect means for future power-hungry pols to get their noses under the tent. sadly, they lost that fight. same goes for the 'commerce' clause.

    or maybe it doesn't matter. the 1st and 2nd amendments are crystal clear - "congress shall make no law limiting" - and we now are the proud owners of gun control, and speech control. all with the blessing of the SCOTUS - even though the constitution doesn't give them that power. politicians and lawyers are like cockroaches: they never quit trying, and they can squeeze themselves into the slimmest of openings. you watch: in a generation or less, there'll be licenses and fees that have to be paid in order to blog. hearings will be held on whether the proposed blog will 'serve the community' in approved ways.

    crazy? naaah. you could buy heroin and cocaine at the drugstore in 1912. kids ran down to the saloon to buy a bucket of beer for pop in the '30's. you could buy rifles (and handguns?) through the mail as late as 1963. i made many trips to the gas station to buy ciggies for my pop in the '70's. kids in cars rode in mom's lap, or sometimes (the horror!) standing up on the seat until the 80's. and on and on. i'm willing to bet the commerce clause was used as the rationale to make illegal all those once-innocuous behaviors. and blog posts cross state lines....

  15. Ariel:

    In University, while going through ChE, I took a Constitutional History class, hoping for an historical understanding of the Bill or Rights along with the Reconstruction Amendments. The Professor spent almost all his time on the Interstate Commerce clause and the ICC (the first quasi-legislative organization in the Executive Branch) and...I thought he was nuts. It took many years before I truly understood his point, that this clause was the end of the Federal system, as SCOTUS has interpreted it. Not the 14th or 15th Amendments, but this simple power to regulate, again thanks to SCOTUS.

  16. Ariel:

    Regarding Wickard v. Filburn, 317 U.S. 111 (1942), I think of the Marx Brothers, nothing specific other than it rises to the same comedic level.

  17. Max Lybbert:

    The Gun Free Schools Act of 1990 exceeded the Commerce Clause in 1992 (United States v. Lopez). The Violence of Women Act of 1994 exceeded the Commerce Clause in 2000 (United States v. Morrison). And the Indian Gaming Regulatory Act had parts struck down in 1996 partly because of the Commerce Clause (Seminole Tribe v. Florida). But those are the only recent cases I'm able to find.

  18. Mesa Econoguy:

    Fifty Eliot Spitzers

    The framers created the Commerce Clause of the Constitution precisely to prevent local and state governments from strangling free trade among the states. But the framers left it up to Congress to decide when to pre-empt state authority. Therefore the Frank-Obama plan is probably not unconstitutional. It merely overturns an 1864 judgment made by Abraham Lincoln and Congress that has allowed a national market in banking to flourish ever since.
    The Frank-Obama rewrite of the National Bank Act would give state AGs the kind of enforcement power that even Mr. Spitzer, the former New York enforcer, probably never imagined. Not only could 50 attorneys general sue to enforce their new state laws; they would also gain the power to enforce federal laws. So even a practice deemed legal under federal law by federal authorities would still be open to 50 other interpretations, with the inevitable cost and confusion that would result.

    Don’t worry, Government would never try anything so stupid, ever, I promise. Until next week.

    Or now.