Commerce Clause

From Ace of Spades via Maggies Farm

Obama and, it seems, many courts, would like to pretend that while the Constitution generally speaks of enumerated and limited powers -- all other powers, such a the police power, reserved for the people and the states -- that the Commerce Clause generally is a "Take-Back" clause that essentially calls bullshit on everything else in the Constitution.

That is, everything else in the Constitution is about establishing particular powers of the federal government, and, expressly, reserving those not named (or "necessary and proper" to undertake a named power) to the states.

But this new claim is that really there is only one clause that matters in the Constitution, and that is the Commerce Clause, and this one brief clause renders all 4400 other words in the Constitution null and void, because the Commerce Clause says, it is contended, that the federal government may do anything so long as, in the aggregate, it "affects interstate commerce," which, as is often pointed out, applies to everything.


  1. John David Galt:

    Federalist #44 explains perfectly well what is and is not "interstate commerce." Judges who haven't read it are incompetent; those who have, but won't follow it are liars and oath breakers.

  2. Ted Rado:

    Why not just declare the constitution null and void? That is essentially what the courts have done when they say that the commerce clause trumps everything. When I exhale, my breath is carried across stae lines. Therefore the USG has the right to control my every move. What bullshit!

    The latest from the appelate court re compulsary health insurance is a dagger through the heart of the constitution. It is a relic of he past.

  3. John Moore:

    Hardly a new claim - the Commerce clause was used to eviscerate limited powers in the 1930's.

  4. MikeinAppalachia:

    A threat to "pack the court" supported by a wave of propaganda in the media of the time (but not popular with voters) and a few deaths and retirements of Justices gave FDR what he needed in a SCOTUS to implement key "New Deal" acts. Then the "Wheat Growing" decision ("Wickard"?) in '42 became the precedent for the "no limits" use of the commerce clause. Now, the Court can use that to say that intrastate use of a substance which is illegal to grow, ,sell,possess, or use in any other state can be regulated by the Feds because its legal use in Calif will affect its price in jurisdictions where its use is illegal. Orwell would understand.

  5. caseyboy:

    There is still reason to hope. I have believed for some time that this SCOTUS would like to tighten up some muddy areas resulting from previous decisions. The commerce clause and the establishment clause are 2 such areas This SCOTUS appears to want to put some real structure around these principles and they are more likely than not to come down on the side of original intent.

    The below links to a well written summary of the 6th Circuit's decision on ACA. Randy Barnett really takes it apart. Whereas Judge Sutton's narrow basis for siding with Obama on the mandate seemed persuasive, Randy says it won't hold much weight with the Supremes.

  6. Matthew Brown:

    I don't think it's correct to tar just Obama with this, though; EVERY president and EVERY congress in living memory (or a reasonable approximation thereof) has used the Commerce Clause to justify expansive interpretations of Federal authority.

    The healthcare law is just a step further, building on a previous history of similar steps.